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Newly discovered evidence claim rejected

State v. Jerry Simone Wilson, 2018AP534, District 1, 3/12/19 (not recommended for publication); case activity (including briefs)

Wilson’s bid for a new trial based on newly discovered evidence fails because he was negligent for not seeking the evidence at the time of his original trial.

Wilson was convicted of reckless homicide and recklessly endangering safety for shooting three people in 2009. (¶¶3-14). He sought a new trial based on the evidence of Lakisha Wallace, a witness who didn’t testify at his trial but now says someone other than Wallace fired the shots. (¶¶20-23).

To get a new trial based on newly discovered evidence a defendant must show by clear and convincing evidence that: the evidence was discovered after conviction; the defendant was not negligent in seeking the evidence; the evidence is material to an issue in the case; and the evidence is not merely cumulative. State v. Plude, 2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42; State v. Armstrong, 2005 WI 119, ¶161, 283 Wis. 2d 639, 700 N.W.2d 98. In Wilson’s case, the circuit court, after an evidentiary hearing, held Wilson should have discovered Wallace’s evidence at the time of his first trial.  (¶26).

The court of appeals agrees, rejecting Wilson’s argument that the circuit court’s analysis put an unreasonable burden on him because Wallace was never identified or interviewed by the police and one of possibly 100 people in the vicinity of the shooting:

¶33 …. The record supports the postconviction court’s finding that prior to trial, Wilson knew about Wallace and the fact that she might have relevant evidence. At the evidentiary hearing, Wilson also stated that he asked trial counsel to go to the neighborhood and investigate individuals of that neighborhood. However, he admitted that he never provided Wallace’s name to his attorney even though he knew that “this” had happened in front of Wallace’s residence and he knew that she had been there because he set up the sound system for the party. A court cannot grant a new trial based on new evidence when the defendant knew about the evidence before trial but did not tell his lawyer. .

¶34     Furthermore, … Wilson had sufficient information before his trial that Wallace was a potential witness to the shooting. Wilson and Wallace knew each other from the neighborhood before the shooting and Wilson also knew that Wallace had a party at her home the night of the shooting because he helped her set up the music for the party. As a result, he knew her address and, after the State charged him with the crimes, Wilson knew that the party at Wallace’s home was relevant to the allegations against him. The complaint specifically references the party and provides the address of the duplex where it occurred. Wilson should have known that Wallace was a potential witness to the shootings and could have sought to learn what she knew.

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