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Failure to impeach, newly discovered evidence don’t merit new trial

State v. Rondale Darmon Tenner, 2018AP1115-CR, District 1, 3/12/19 (not recommended for publication); case activity (including briefs)

Tenner complains his lawyer was ineffective for failing to impeach one of the state’s witnesses with her prior convictions. He also says he should get a new trial because he has an affidavit from a new witness who says another state’s witness actually committed the crime pinned on Tenner. The court of appeals disagrees.

Tenner was convicted of robbing and killing Hagen, a drug dealer. Tenner had asked another dealer, D.J., to connect him with Hagen for a deal. D.J. and his girlfriend were present, and testified Tenner pulled out a gun, ordered everyone onto the floor, robbed them, and shot Hagen before fleeing. Tenner was found at his girlfriend’s apartment, and she testified about Tenner’s asking her not to open the door and hiding his coat (which was identified by D.J.) in a laundry basket. (¶¶4-11).

Trial counsel didn’t bring out Tenner’s girlfriend’s prior convictions, but he did so based on trial strategy, thinking it would reflect poorly on Tenner’s character for dating someone with a criminal history; in addition, she had provided some testimony that was helpful to Tenner, so he did not want to “hurt” her. This was reasonable trial strategy to which the reviewing courts give great deference, so Tenner hasn’t shown counsel’s performance was deficient. (¶¶14, 23-25).

The newly discovered evidence Tenner touts is a statement from one Boyd, who says that while he D.J. were locked up together D.J. confessed that he, not Tenner, shot Hagen. (¶¶12, 15-16). Treating this as “recantation” evidence by D.J., the court of appeals finds it wanting under State v. McAlister, 2018 WI 34, 380 Wis. 2d 684, 911 N.W.2d 77, because it lacks sufficient corroboration in the form of a feasible motive for the initial false statement and circumstantial guarantees of the trustworthiness of the recantation, id., ¶58. D.J.’s motive to lie (to get away with the robbery and killing) was nothing new, and would have been obvious from the get-go; in addition, the circuit court found Boyd’s testimony to be wholly incredible, depriving D.J.’s “recantation” of circumstantial guarantees of trustworthiness. (¶¶27-33).

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