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Escalona hurdle overcome, but § 974.06 motion rejected on merits

State v. Casey M. Fisher, 2017AP868, District 1, 3/26/19 (not recommended for publication); case activity (including briefs)

Fisher’s § 974.06 postconviction motion clears the hurdle erected by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), but fails on the merits.

In 1994, after a trial, Fisher was convicted of armed robbery and homicide in the shooting death of a man named Mousa. He represented himself on his original direct appeal, which resulted in his conviction being affirmed in 1997. Twenty years later, Fisher, now being represented by the Wisconsin Innocence Project, filed a § 974.06 motion arguing his trial lawyer was ineffective for failing to present third-party perpetrator evidence to the jury. (¶¶1-3).

The state argued Fisher’s motion was barred under Escalona because he hasn’t shown sufficient reason for failing to raise this claim in his original appeal. Relying on State v. Allen, 2010 WI 89, 328 Wis. 2d 1, 786 N.W.2d 124, Fisher claims he had no knowledge of the third-party perpetrators at the time of his trial or during his original appeal; instead, he learned of them only after the Wisconsin Innocence Project got involved in his case and obtained the discovery. The state argues Fisher’s claim is rebutted by the fact that Fisher initially had an appointed lawyer for his 1996 postconviction proceedings and that lawyer sent Fisher his file when he withdrew. But the cover letter from the lawyer accompanying the file referred only to the court record and the transcripts, not the discovery, so the court of appeals concludes nothing in the record contradicts Fisher’s allegation that he hadn’t previously seen the discovery. (¶¶4-5, 23-26).

So it’s on to the merits. Here Fisher fares less well, as the court of appeals concludes, in a necessarily fact-specific discussion, that the record conclusively demonstrates that trial counsel’s failure to present the third-party perpetrator evidence—which involved a tip that three other men killed Mousa—was not prejudicial.

Basically, the tip about the three men was anonymous, and it’s not clear the tipster was an eyewitness, was reporting what others told him, or both. The three men were quickly found and questioned; while two of them had gunpowder residue on their hands and so could have recently fired a gun, and one had a “minute” amount of blood on his shirt, the crime scene evidence showed the shooter (and anyone with him in the car where the shooting occurred) would likely have been spattered with a significant amount of blood. Thus, the investigation of the three men did not produce viable third-party perpetrator evidence. And there was extensive evidence connecting Fisher to the crime: He told two witnesses he needed money and was going to rob Mousa’s store; other witnesses placed him in the passenger seat of Mousa’s car, where the shooter sat; and other witnesses testified that Fisher admitted committing the robbery and shooting. Thus, Fisher’s motion is insufficient to suggest any reasonable probability of a different result had counsel used the tip police report. (¶¶9-21, 33-38).

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