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Postconviction motion didn’t allege sufficient facts to justify hearing

State v. Howard D. Davis, 2017AP942-CR, District 1, 12/11/18 (not recommended for publication); case activity (including briefs)

Davis claimed trial counsel was ineffective in various ways, and that a juror may have introduced extraneous information into deliberations. The trial court denied his claims without a hearing. The court of appeals affirms.

A postconviction motion provides “sufficient material facts,” if it provides the name of the witness (the who), the reason the witness is important (the why and the how), and facts that can be proven (the what, where, and when). State v. Allen, 2004 WI 106, ¶24, 274 Wis. 2d 568, 682 N.W.2d 433. Davis’s ineffective assistance claims fail  primarily because his postconviction motion failed to state sufficient material facts that, if true, would entitle the defendant to relief. Here are Davis’s specific claims and why they are insufficient:

  • Failure to present alibi evidence. This claim is insufficient because the purported alibi evidence specified in the motion still left open the possibility that Davis was present at the scene of the crime. (¶¶20-24). Plus, the motion didn’t allege sufficient facts to establish trial counsel knew the specifics of the purported alibi evidence. (¶¶25-26).
  • Failure to present the testimony of a person who was present during the offense. Among other problems, the witness’s statement (that he didn’t recall seeing Davis that day, versus saying he definitely did not see him) was too equivocal to matter. (¶¶28-35).
  • Failure to adequately question a witness regarding the details of her prior convictions. This claim is rejected because the details of her prior convictions couldn’t have been elicited, and the jury clearly learned she lied about the number of prior convictions she had. (¶¶36-41).
  • Failure to request the other acts jury instruction regarding rap lyrics discovered in Davis’s jail cell and testimony that Davis had been shot by one of the victims but didn’t report that to the police. The motion fails to establish why the rap lyrics or Davis’s failure to report being shot are “other acts” evidence. (¶¶42-48).
  • Failure to request the jury instruction addressing consideration received by a witness in exchange for testifying. The motion failed to explain why the trial court was wrong in finding at trial that the witness was not given consideration. (¶¶49-52).
  • Failure to request a jury instruction addressing the missing recording of a witness’s statement. The record shows the jury heard that a detective lost the recording, so the circuit court did not have to give the instruction. (¶¶53-55).

As to the juror misconduct claim, the postconviction motion asserted one juror knew that Davis’s mother had been shot, and may have concluded that was in retaliation for Davis’s crime. But the motion doesn’t say which juror knew that, or what precisely the juror knew, or whether the information affected deliberations, or why the was prejudicial to Davis. (¶¶56-61).

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