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State v. Jimothy A. Jenkins, 2012AP46-CR, petition for review granted 12/17/13

Review of unpublished per curiam court of appeals decision; case activity

Issue (composed by On Point)

In deciding whether trial counsel was ineffective for failing to call a witness, did the postconviction court err by deciding trial counsel’s failure to present the witness was not prejudicial because the witness was not credible?

Unlike electronically filed briefs in criminal cases, petitions for review are not available on the court’s website. Thus, On Point’s surmise about the issue presented is based on an argument highlighted by Jenkins in the court of appeals, and on the fact the case doesn’t appear to present any other unusual or novel issues that might prompt the court to take review.

Jenkins was convicted of homicide and first degree reckless injury for a shooting that killed one man and injured another. The only witness who identified Jenkins was the injured man, who initially told police he did not know the shooter but later identified Jenkins from a photo array. Jenkins testified he was in a nearby house at the time of the shooting, and an alibi witness backed this up. After his conviction Jenkins claimed his lawyer was ineffective for falling to call three witnesses: Jones, an eyewitness to the shooting who initially told police that she could not see the shooter, but later told police that Jenkins was not the shooter and that she saw Jenkins on a porch across the street minutes after the shooting; Blunt, who, Jenkins says, confessed he was the shooter while they were in jail together, but later denied he was involved; and Moore, another inmate who heard Blunt confess his involvement to Jenkins.

In concluding that the failure to call Jones was not prejudicial, the circuit court said (according to Jenkins’s court of appeal brief at 8) that “I don’t find her credible” because she would have been impeached with the inconsistencies in her statements; thus, the court concluded, there was not a reasonable probability that the result of the trial would have been different. As to Blunt, his denial of involvement wouldn’t have helped Jenkins, and Moore’s testimony about Blunt’s confession was likely inadmissible hearsay. (That’s assuming Moore would have testified at all, as he later refused to cooperate and his lawyer declared him “unavailable.”) The court of appeals agreed with all these conclusions.

Citing Ramonez v. Berghuis, 490 F.3d 482, 490 (6th Cir. 2007), and Vasquez v. Bradshaw, 522 F.Supp.2d 900, 926-27 (N.D. Ohio 2007), Jenkins’s basic point regarding the ruling about Jones is that the postconviction court has no business deciding whether the jury would have believed the witnesses; it must only determine whether, if believed, the witnesses might have provided evidence that undermines confidence in the verdict. As to Blunt and Moore, Jenkins argued Moore’s statement would have been admissible as a prior inconsistent statement, § 908.01(4)(a)1., had Blunt persisted in his denial, or as a statement by Blunt against his penal interest, § 908.045(4), if he took the Fifth. A statement against penal interest must be corroborated, though not by an independent source; nor should the court  assess the credibility of the statement, State v. Guerard, 2004 WI 85, ¶32, 273 Wis. 2d 250, 682 N.W.2d 12. We’ll see whether the supreme court will fashion a rule that keeps the postconviction judge from acting as a 13th juror.

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