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Plea withdrawal — newly discovered evidence

State v. Edward Devon Smart, 2012AP1178-CR, District 1, 5/7/13; court of appeals decision (not recommended for publication); case activity

Smart is not entitled to plea withdrawal based on co-actor’s testimony that he coerced Smart to commit the crime because the coercion evidence could have been presented using other witnesses known to defendant before he entered his plea:

¶7        Smart argues that Rushing’s testimony is new because he did not know Rushing would testify that he forced Smart to rob the victims.  We disagree.  A post-conviction statement by a co-actor exculpating a defendant is not newly discovered evidence if:  (1) the defendant was aware of the potential testimony before trial, and (2) the co-actor did not testify at the defendant’s trial as a result of the co-actor’s right against self-incrimination.  State v. Jackson, 188 Wis. 2d 187, 201, 525 N.W.2d 739, 745 (Ct. App. 1994).  Here, Smart had to be aware of Rushing’s potential testimony because, according to Rushing’s testimony, Smart was there to see it, as were the “two other guys” Rushing said were with Smart.  Smart’s choice not to call Rushing either because he did not think Rushing would testify about the coercion or because Rushing would not testify based on his right not to incriminate himself does not change things.  Smart could have called the “two other guys” to get before the jury what he now claims is newly discovered evidence. There is nothing in the Record to show that Smart attempted to get either Rushing or the “two other guys” to testify on his behalf.  Accordingly, he has also failed to satisfy the second “newly discovered evidence” factor:  that “the defendant was not negligent in seeking evidence.”  Further, Rushing has already been convicted of the crime.  Thus, he lacks credibility as a matter of law.  See id., 188 Wis. 2d at 200 n.5, 525 N.W.2d at 744 n.5 (“‘Once sentence is imposed … there is very little to deter [a co-actor] from untruthfully swearing out an affidavit in which he purports to shoulder the entire blame.’”) (quoted source omitted).

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