                                                              2014 WI 59

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2012AP46-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Jimothy A. Jenkins,
                                  Defendant-Appellant-Petitioner.



                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 346 Wis. 2d 280, 827 N.W.2d 929
                                  (Ct. App. 2013 – Unpublished)

OPINION FILED:          July 11, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 8, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Carl Ashley

JUSTICES:
   CONCURRED:           CROOKS, J., concurs. (Opinion filed.)
   DISSENTED:           ZIEGLER, GABLEMAN, JJ., dissent. Opinion filed.
   NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Joseph E. Redding, West Allis, and oral argument by Joseph E.
Redding.




       For the plaintiff-respondent, the cause was argued by Aaron
O’Neill, assistant attorney general, with whom on the brief was
J.B. Van Hollen, attorney general.
                                                                    2014 WI 59
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.       2012AP46-CR
(L.C. No.    2007CF1225)

STATE OF WISCONSIN                        :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                 FILED
      v.
                                                            JUL 11, 2014
Jimothy A. Jenkins,
                                                               Diane M. Fremgen
              Defendant-Appellant-Petitioner.               Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.              Reversed and

remanded.


      ¶1      SHIRLEY S. ABRAHAMSON, C.J.       The defendant, Jimothy

A. Jenkins, seeks review of an unpublished decision of the court

of appeals affirming a judgment and order of the Circuit Court

for Milwaukee County, Carl Ashley and Rebecca F. Dallet, Judges.1


      1
       State v. Jenkins, No. 2012AP46-CR, unpublished slip op.
(Wis. Ct. App. Jan. 15, 2013).

     The   Honorable  Carl   Ashley  entered   the  judgment   of
conviction and imposed sentence.      The Honorable Rebecca F.
Dallet entered the order denying Jenkins' postconviction motion.
                                                                         No.    2012AP46-CR



      ¶2        A jury found the defendant guilty of one count of

first-degree intentional homicide, as a party to a crime, with

use       of     a    dangerous      weapon,        contrary        to     Wis.        Stat.

§§ 940.01(1)(a),         939.05,    and     939.63    (2007-08);2        one     count    of

first-degree reckless injury, party to a crime, with the use of

a   dangerous        weapon,    contrary     to    Wis.     Stat.   §§ 940.23(1)(a),

939.05, and 939.63; and one count of possession of a firearm by

a felon, contrary to Wis. Stat. § 941.29(2).

      ¶3        After trial, the defendant brought a postconviction

motion         seeking   a    new   trial    on     the     grounds      that     he     had

ineffective assistance of trial counsel and that a new trial was

required in the interest of justice.3

      ¶4        After    an    evidentiary       Machner4    hearing,      the    circuit

court denied the defendant's postconviction motion seeking a new

trial, determining that the defendant's trial counsel was not


      2
       All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
      3
          Wisconsin Stat. § 805.15(1) reads as follows:

      (1) Motion. A party may move to set aside a verdict
      and for a new trial because of errors in the trial, or
      because the verdict is contrary to law or to the
      weight of evidence, or because of excessive or
      inadequate damages, or because of newly-discovered
      evidence, or in the interest of justice.       Motions
      under this subsection may be heard as prescribed in s.
      807.13. Orders granting a new trial on grounds other
      than in the interest of justice, need not include a
      finding that granting a new trial is also in the
      interest of justice.
      4
          State v. Machner, 101 Wis. 2d 79, 303 N.W.2d 633 (1981).

                                             2
                                                                   No.    2012AP46-CR



ineffective     and   that   a    new     trial   was   not   required       in   the

interest of justice.         The court of appeals affirmed the circuit

court.

     ¶5      The defendant raises two issues on review.

     ¶6      First,    did       the      defendant      receive         ineffective

assistance of trial counsel when defense trial counsel failed to

present testimony at trial of potentially exculpatory witnesses,

namely    an    eyewitness       other    than    the   State's      witness      and

witnesses      with   evidence     that       another   person     committed      the

homicide for which the defendant was convicted?

     ¶7      Second, did the court of appeals err in refusing to

order a new trial in the interest of justice under the court of

appeals' discretionary reversal authority pursuant to Wis. Stat.

§ 752.35?5

     ¶8      We address only the issue of whether the defense trial

counsel was ineffective for failing to call the eyewitness Cera


     5
       Wisconsin Stat. § 752.35, governing discretionary reversal
by the court of appeals, reads as follows:

     Discretionary reversal. In an appeal to the court of
     appeals, if it appears from the record that the real
     controversy has not been fully tried, or that it is
     probable that justice has for any reason miscarried,
     the court may reverse the judgment or order appealed
     from, regardless of whether the proper motion or
     objection appears in the record and may direct the
     entry of the proper judgment or remit the case to the
     trial court for entry of the proper judgment or for a
     new trial, and direct the making of such amendments in
     the pleadings and the adoption of such procedure in
     that court, not inconsistent with statutes or rules,
     as are necessary to accomplish the ends of justice.

                                          3
                                                                    No.   2012AP46-CR



Jones to testify at trial.                We conclude, under the totality of

the circumstances in the instant case, that the defendant has

demonstrated both prongs of the test for ineffective assistance

of counsel as articulated in Strickland v. Washington, 466 U.S.

668 (1984):         trial counsel's deficient performance that did not

meet       the   standard   of     objective     reasonableness,    and   prejudice

against the defendant that resulted from the trial counsel's

deficient performance.

       ¶9        Consequently, we reverse the decision of the court of

appeals and remand the cause to the circuit court for a new

trial.6

                                            I

       ¶10       The facts in the instant case are undisputed for the

purposes of this appeal.

       ¶11       On March 23, 2007, the car in which Toy Kimber and

Anthony Weaver were traveling ran out of gas near 2100 North

38th Street in Milwaukee.                 Kimber lived seven blocks away on

45th Street.
       ¶12       After   leaving    the   car,    the   two   men   met   two   young

women, one of whom was Cera Jones.                   Kimber admitted to buying

$10 worth of marijuana from Jones.                 During their conversation, a

car drove past them, made a U-turn, and drove towards the four

individuals.         A man exited the car's rear seat holding a rifle.

       6
       We need not and do not address whether defense trial
counsel was ineffective in any other respects, and we do not
address whether the court of appeals erred in failing to
exercise its discretionary reversal authority to order a new
trial in the interest of justice.

                                            4
                                                                        No.    2012AP46-CR



He shot at Kimber and Weaver, injuring Kimber in the leg and

killing Weaver.         The shooter then reentered the vehicle and the

vehicle drove away.

      ¶13    Immediately after the shooting, police officers talked

to both Kimber and Jones.               Kimber initially told police that he

did not know the shooter.               Jones initially told police that she

could not see the shooter's face because it was dark and he was

wearing a hood.

      ¶14    The   next       morning,     March    24,     2007,    Kimber     was   re-

interviewed      by     the    police      and   shown    a     photo    array,     which

included the defendant.             Kimber identified the defendant as the

shooter.        Kimber had known the defendant for at least three

years and may have seen the defendant earlier in the evening.

      ¶15    Jones was re-interviewed by the police on April 1,

2007.       Jones told police that she had not seen the shooter

before.      She stated that the shooter had a clean-shaven baby

face and medium complexion and that he did not have acne scars.

Jones     was    also    shown      a    photo     array,       which    included     the
defendant.      She did not select the defendant from the array.                       In

a statement attached to the defendant's postconviction motion,

Jones attests that she also gave a statement that the defendant

was   definitely        not   the    shooter     and     that    she    had    seen   the

defendant across the street minutes after the shooting occurred.

The police report does not include these two statements.

      ¶16    The      defendant      was    arrested      and       charged.        While

awaiting trial, the defendant shared a jail pod with Corey Moore
and Christopher Blunt.              According to statements and affidavits
                                             5
                                                                      No.        2012AP46-CR



in the defendant's motion for a new trial, while in jail, Blunt

recognized      the     defendant       and   admitted       that    he     [Blunt]     had

committed the shooting.               Moore stated that he overheard this

conversation.

       ¶17    The defendant brought the conversation with Blunt to

his attorney's attention.               Defense trial counsel then informed

the prosecutor in writing of Blunt's and Moore's statements.

Defense trial counsel did not further interview Blunt or Moore.

       ¶18    At trial, Kimber's testimony that the defendant was

the    shooter       was   the   only     evidence   that      directly          tied   the

defendant to the shooting.7               Kimber testified that on the night

of    the    shooting,      prior    to    being   shown      a     photo    array,      he

identified the defendant as the shooter.8                      On being shown the

photo       array,     Kimber       identified     the       defendant.             Kimber

additionally         testified   that     there    was   a    history       of    disputes

between people living around 45th Street, such as himself, and

people living around 38th Street, such as the defendant.




       7
       The State and the defendant each called witnesses to
testify at trial. For example, the State called various police
officers who responded to the crime scene and conducted
interviews and photo arrays.   The State also called a witness
who allegedly told police that he had seen the defendant hold a
firearm similar to the one used in the shooting and a witness
who allegedly told police that she was in the defendant's
alleged alibi location and did not see the defendant.   None of
these witnesses introduced evidence that directly connected the
defendant to the shooting.
       8
       Police officers testified that at the scene                                 of   the
shooting Kimber said he did not know who shot him.

                                              6
                                                                             No.     2012AP46-CR



      ¶19     In contrast, the defendant testified that he was in

the   home    of     Daniel    McFadden       at     the    time       of    the     shooting.

McFadden's     home    is     across    the       street    from       the       scene    of    the

shooting.

      ¶20     McFadden testified that the defendant was asleep and

that he woke the defendant when the shots were fired.                                On cross-

examination, McFadden also testified that immediately following

the shooting, he told police officers that he had not seen the

defendant at the time of the shooting and had last seen him

around 2 p.m. that afternoon.

      ¶21     The State and the defendant stipulated that Kimber had

five adult convictions and four juvenile adjudications, that the

defendant      had    two     prior     juvenile           adjudications,            and       that

McFadden      had      one     adult     conviction              and     three           juvenile

adjudications.

      ¶22     The    jury     convicted        the    defendant             of     the     crimes

charged.

      ¶23     The     defendant        moved        for      a     new       trial         in     a
postconviction motion based upon both (1) ineffective assistance

of counsel for failing to investigate, subpoena, and present

witnesses     who    would     have    supported          the    proposition         that       the

defendant was not the shooter; and (2) the interest of justice.

Attached to the postconviction motion were signed statements by

Jones   and    Moore     obtained       by     the    defendant's            postconviction

counsel's investigator and the investigator's report regarding a

conversation with Blunt.


                                              7
                                                                       No.     2012AP46-CR



    ¶24     The   circuit      court     granted      a     Machner          evidentiary

hearing.

    ¶25     At the Machner hearing, the parties stipulated that

Moore and Blunt would have testified similarly to the statements

they gave to the investigator.               Moore's statement attests that

while sharing a jail pod, Blunt made statements to the defendant

admitting    to    the    shooting      of      Kimber      and        Weaver.         The

investigator's report about Blunt indicates that Blunt denied

making those statements and denied knowing the defendant.

    ¶26     At    the    Machner       hearing,       defense          trial     counsel

testified that his notes regarding individual witnesses had been

destroyed in a flood.          He stated that his trial strategy was

twofold——attacking       the   credibility       of   the    victim          eyewitness,

Kimber, and providing an alibi for the defendant.

    ¶27     In response to questions about why he did not call

Jones as a witness, defense trial counsel testified as follows:

       • He was uncertain whether he met with Jones; he could

            not   specifically         recall     whether         he     had     met    or
            interviewed Jones;

       • He could not recall why he did not call Jones as a

            witness;

       • He could not recall why or whether Jones's testimony

            would have fit with the theory of the case;

       • He would have read police reports detailing Jones's

            testimony;

       • He could not recall discussing the photo array with
            Jones; and
                                         8
                                                        No.      2012AP46-CR



       • He could not recall why he did not discuss Jones's

          photo array with the relevant police officer.

    ¶28   At the hearing, Jones testified that:

       • She did not identify the defendant in the photo array;

       • She told officers that the shooter had a smooth baby

          face, which the defendant does not have;

       • She told the officers that the defendant was not the

          shooter;

       • She knew the defendant from the neighborhood;

       • She   spoke   with   defense     trial   counsel   on    multiple

          occasions    but    was   not    contacted    afterwards       or

          subpoenaed to be called as a witness; and

       • On the evening of the shooting, she told officers that

          she could see the shooter's face before he put his

          hood up.

    ¶29   Regarding why he did not call either Moore or Blunt as

a witness, defense trial counsel testified as follows:

       • He never talked to Blunt;
       • He believed that Moore would have been "credible";

       • He requested that the prosecutor interview Moore;

       • He could not recall whether he or his investigator

          ever talked to Moore; and

       • Moore's counsel told him that Moore would not testify.

    ¶30   The circuit court denied the motion for a new trial

both with regard to ineffective assistance of counsel and the

interest of justice.


                                    9
                                                                 No.   2012AP46-CR



     ¶31   The circuit court reasoned that trial counsel was not

ineffective    because     (1)    Jones    would   "not   come    across    as   a

credible witness" and in any event "there is not a reasonable

probability that the result of the proceeding would have been

different,"9   and   (2)    the    statements      of   other   witnesses    whom

defense counsel had not called at trial "would not have come in"

under hearsay rules.10

     9
       The circuit court stated its reasoning at the                     Machner
hearing as follows:

          And the reasons that I think that the defense
     can't meet that burden [of prejudice] is because I
     think there are just way too many inconsistencies with
     Miss Jones' statements and I think all of what she
     testified to is frankly she just did not come across
     as a credible witness. I'm going to go through those
     specifics that show that I don't believe that she was
     credible and I think that the jury would have had
     difficulty with some of these statements as well.

           . . . .

          So I just think that given the contradictions in
     her testimony, I don't find her credible. I think she
     would have been impeached on the stand with all these
     statements and her descriptions kept changing. And I
     think that based on that, even if she had testified,
     there is not a reasonable probability that the result
     of the proceeding would have been different.
     10
       The circuit court stated its reasoning at the Machner
hearing as follows:

     I just think in terms of a hearsay analysis at that
     point, that those statements just would not have come
     in in that way.      We'd have an alleged statement
     overheard by someone who isn't available, essentially
     not testifying, not being made available by his
     attorney. . . . And then to try to get in what he
     supposedly heard someone else say who also is saying
     he didn't say it, it really is so attenuated. I just
                                      10
                                                                No.   2012AP46-CR



     ¶32    The circuit court also decided for the same reasons

that the interest of justice did not necessitate a new trial.

     ¶33    The court of appeals affirmed the circuit court order

denying the motion for a new trial for ineffective assistance of

counsel and denying the motion for a new trial in the interest

of justice.

                                       II

     ¶34    Criminal     defendants       are    guaranteed     the   right   to

effective     counsel     by     the      United      States    and   Wisconsin

Constitutions.11         The   benchmark        for   judging   any   claim   of

ineffective assistance of counsel is whether counsel's conduct

so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just

result.12

     ¶35    Whether a defendant received ineffective assistance of

trial     counsel   is   a     two-part     inquiry     under   Strickland    v.

Washington, 466 U.S. 668 (1984).13               A defendant must show both




     don't think that there is that reliability of which
     hearsay statements are based on so as to allow that to
     come in in that fashion.
     11
          U.S. Const. Amends. VI and XIV; Wis. Const. art. I, § 7.
     12
       State v. Domke, 2011 WI 95, ¶34, 337 Wis. 2d 268, 805
N.W.2d 364 (citing State v. Trawitzki, 2001 WI 77, ¶39, 244
Wis. 2d 523, 628 N.W.2d 801 (quoting Strickland v. Washington,
466 U.S. 668, 686 (1984))).
     13
       State v. Carter, 2010 WI 40, ¶21, 324 Wis. 2d 640, 782
N.W.2d 695 (quoting Strickland, 466 U.S. at 687).

                                       11
                                                                        No.    2012AP46-CR



(1)     that      counsel      performed     deficiently;        and    (2)    that    the

deficient performance prejudiced the defendant.14

      ¶36        When reviewing whether counsel performed deficiently,

the Strickland standard requires that the defendant show that

his counsel's representation fell below an objective standard of

reasonableness considering all the circumstances.15                           A court is

highly          deferential      to    the        reasonableness        of     counsel's

performance.            A court must make every effort to reconstruct the

circumstances of counsel's challenged conduct, to evaluate the

conduct from counsel's perspective at the time, and to eliminate

the distorting effects of hindsight.16                  Strategic decisions made

after less than complete investigation of law and facts may

still      be    adjudged      reasonable.17        "Just   as   a     reviewing      court

should not second guess the strategic decisions of counsel with

the benefit of hindsight, it should also not construct strategic

defense which counsel does not offer."18

      ¶37        Even     if   counsel's      performance        was     deficient,      a

defendant must also show prejudice by demonstrating that there


      14
       Domke, 337 Wis. 2d 268, ¶33 (citing Strickland, 466 U.S.
at 687).
      15
           Carter, 324 Wis. 2d 640, ¶22.
      16
           Id.
      17
           Id., ¶23.
      18
       Harris v. Reed, 894 F.2d 871, 878 (7th Cir. 1990)
(concluding that trial counsel was deficient for failing to
offer a strategic reason for not calling potentially exculpatory
witnesses).

                                             12
                                                                         No.    2012AP46-CR



is a reasonable probability that the errors "had an adverse

effect on the defense."19            The proper test for prejudice in the

context of ineffective assistance of counsel is whether "there

is     a     reasonable         probability      that,       but        for      counsel's

unprofessional errors, the result of the proceeding would have

been    different.          A   reasonable      probability        is    a     probability

sufficient        to   undermine     confidence      in     the    outcome."20         The

required showing of prejudice is that "counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial

whose result is reliable."21              A defendant fails to demonstrate

prejudice if it appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.22

       ¶38    Whether a defendant received ineffective assistance of

counsel is a mixed question of law and fact.23                          This court will

uphold      the   circuit       court's   findings     of    fact,       including     the

circumstances          of   the    case   and    the      counsel's          conduct   and




       19
       State v. Burton, 2013 WI 61, ¶49, 349 Wis. 2d 1, 832
N.W.2d 611 (quoting Strickland, 466 U.S. at 693). See also Wis.
Stat. § 805.18 (harmless error rule, made applicable to criminal
proceedings by § 972.11(1)).
       20
       Burton, 349 Wis. 2d 1, ¶49 (quoting Strickland, 466 U.S.
at 693).
       21
            Strickland, 466 U.S. at 687.
       22
       State v. Weed, 2003 WI 85, ¶2, 263 Wis. 2d 434,                                 666
N.W.2d 485 (quoting State v. Harvey, 2002 WI 93, ¶44,                                  254
Wis. 2d 442, 647 N.W.2d 189).
       23
            Domke, 337 Wis. 2d 268, ¶33.

                                           13
                                                                        No.   2012AP46-CR



strategy, unless they are clearly erroneous.24                     Whether counsel's

performance satisfies the standard for ineffective assistance of

counsel is a question of law which we determine independently of

the circuit court and court of appeals, benefiting from their

analysis.25

      ¶39     We turn to the arguments relating to defense trial

counsel's ineffective assistance of counsel.

                                           III

      ¶40     We    first     address      whether    defense        trial      counsel's

representation fell below the objective standard of reasonably

effective assistance.26

      ¶41     Failure    to    call    a   potential       witness    may     constitute

deficient performance.          In Toliver v. Pollard, 688 F.3d 853, 862

(7th Cir. 2012), the court declared that "in a 'swearing match'

between      two    sides,     counsel's     failure        to   call     two    useful,

corroborating witnesses, despite [potential bias as a result of]

the   family       relationship,      constitutes      deficient      performance."27

See also Goodman v. Bertrand, 467 F.3d 1022, 1030 (7th Cir.
2006)      (the    testimony   of     witnesses      who   would     corroborate     the


      24
       State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665
N.W.2d 305.
      25
       State v. Neumann, 2013 WI 58, ¶141 n.87, 348 Wis. 2d 455,
832 N.W.2d 560; Domke, 337 Wis. 2d 268, ¶33 (citing Thiel).
      26
           Domke, 337 Wis. 2d 268, ¶36.
      27
        Toliver v. Pollard, 688 F.3d 853, 862 (7th Cir. 2012)
(quoting Goodman v. Bertrand, 467 F.3d 1022, 1033 (7th Cir.
2006)).

                                            14
                                                                                 No.     2012AP46-CR



defendant's account was a "crucial aspect of [the] defense");

State v. White, 2004 WI App 78, ¶¶20-21, 271 Wis. 2d 742, 680

N.W.2d 362         (trial      counsel's        performance            was       deficient         for

failure to call witnesses who would have brought in evidence

that "went to the core of [the] defense.").

       ¶42     Defense trial counsel's deficient performance is clear

from    the    record.          He    knew     of   Jones.        He       knew        she   was    an

eyewitness and could testify about the shooting. He knew her

statements would contradict or impeach the eyewitness upon whom

the prosecution's entire case relied, Kimber.                                     He knew that

Jones    had      not     identified     the       defendant      on       the    night      of    the

shooting and that she did not identify him when she examined a

photo array.

       ¶43     Jones's         testimony        fit     defense             trial        counsel's

professed         trial    strategy      of    discrediting            and       impeaching        the

State's witness.

       ¶44     Similarly,            Jones's        eyewitness             testimony          would

corroborate         the     defendant's        version       of    events          and       support
defense trial counsel's professed alibi defense.                                       Jones would

have testified that she saw the defendant across the street

immediately after the shooting.

       ¶45     A failure to call a key witness, however, does not

always       necessarily        constitute          deficient          performance.                The

failure      to    call    a   witness       may    have   been        a     reasonable       trial

strategy.




                                               15
                                                                       No.    2012AP46-CR



      ¶46       The record is devoid of any reasonable trial strategy

to   support         defense   trial       counsel's     not     calling   Jones    as   a

witness at trial.

      ¶47       At the Machner hearing, defense trial counsel could

give no reason why he did not call Jones as a trial witness.

Indeed, defense trial counsel could not even recall having met

with Jones, let alone provide a reason for why he chose not to

call her as an witness at trial.                         We cannot figure out any

reasonable trial strategy.

      ¶48       For the reasons set forth, we conclude that defense

trial counsel's representation fell below the objective standard

of reasonably effective assistance.

                                             IV

      ¶49       As     noted      above,     once      deficient     performance         is

established, the defendant must demonstrate that the deficient

performance          was   prejudicial.        To   demonstrate       prejudice,     the

defendant must show that, absent defense trial counsel's errors,

there was a reasonable probability of a different result.
      ¶50       Our prejudice analysis is necessarily fact-dependent.

Whether counsel's deficient performance satisfies the prejudice

prong      of        Strickland     depends       upon     the     totality    of    the

circumstances at trial.28             The circuit court and court of appeals

determined that because of inconsistencies in Jones's statements

in the initial police report, the second police report, the

postconviction motion papers, and the Machner hearing testimony,

      28
           Thiel, 264 Wis. 2d 571, ¶62.

                                             16
                                                                        No.     2012AP46-CR



the defendant did not demonstrate a reasonable probability that

had Jones been called as a witness the result would have been

different.29       We disagree with these courts.

     ¶51     Looking at the totality of the evidence in the trial,

we   hold        that    the     defendant         sufficiently       demonstrated          a

reasonable        probability      that     a     different     result        would      have

occurred but for the failure to call Jones.

     ¶52     The       State's    case     rested     almost    completely          on     the

testimony of one eyewitness, the victim Kimber.                               The defense

offered     no    contradictory          eyewitness      testimony.       No     physical

evidence directly tied the defendant to the shooting.

     ¶53     In    such    a     case,    contradictory        eyewitness       testimony

supporting       the    defendant       would     expose   vulnerabilities          at     the

center of the State's case.                  When defense trial counsel knew

about     Jones    and    that    she     could    contradict     the    prosecution's

central      eyewitness          testimony,        the     excluded      contradictory

eyewitness would have contributed strongly to doubts regarding

the prosecution's case.              See United States ex rel. Hampton v.
Leibach, 347 F.3d 219 (7th Cir. 2003) (concluding that failure

to call key witnesses in a case with no physical evidence was

prejudicial).

     ¶54     Jones's       testimony        also     would     have     supported          the

defendant's        own    testimony        that      the     defendant        was     in    a




     29
       State v. Jenkins, No. 2012AP46-CR, unpublished slip op.
¶¶15-17 (Wis. Ct. App. Jan. 15, 2013).

                                            17
                                                                   No.        2012AP46-CR



neighboring    house    at   the   time   of    the   shooting     and        came   out

afterwards.

     ¶55   Although      Jones's       statements     were       not     necessarily

consistent over time, and her credibility could be challenged,

Kimber, the prosecution's key eyewitness, had similar if not

more substantial credibility problems.

     ¶56   The circuit court noted that Jones's description of

the shooter got "better and better as time [went] on," but the

same characterization could be applied to the statements of the

prosecution witness, Kimber, whose memory of the shooting seemed

to improve the day after the shooting.                  On the night of the

shooting, he told police that he could not identify the shooter.

The next morning, he affirmatively identified the defendant in a

photo array.     At trial, he averred that he did actually identify

the defendant on the night of the shooting, even though the

police report and an officer's testimony contradicted him.

     ¶57   The court of appeals noted that Jones was inconsistent

in describing her involvement in a marijuana sale earlier in the
evening.   Yet Kimber was involved in the same transaction, with

similarly inconsistent testimony.

     ¶58   The    parties     appear      not   to    dispute          that     Jones's

credibility    was     not   subject    to   attack    by    a    prior        criminal

conviction.      Kimber, the State's key eyewitness, had nine prior

convictions or juvenile adjudications; his prior convictions may

be used to attack his credibility.30
     30
       See Wis. Stat. § 906.09; State v. Gary M.B., 2004 WI 33,
¶21, 270 Wis. 2d 62, 676 N.W.2d 475.

                                        18
                                                                        No.   2012AP46-CR



       ¶59    In the particular credibility contest in the present

case, in which

          • both      eyewitnesses         had       inconsistencies          in      their

              statements;

          • the prosecution eyewitness had an extensive criminal

              record and (as far as the record shows) the defense

              eyewitness had none;

          • the entire basis of the prosecution's case rested on

              its eyewitness identification; and

          • no     physical     or      other      evidence     directly       tied     the

              defendant to the crime;

we hold that the failure to call Jones as a witness at trial to

give testimony contradictory to that of the State's eyewitness

had a reasonable probability of affecting the result of the

case.

       ¶60    As   Strickland     notes,      "a     verdict    or    conclusion       only

weakly    supported    by   the      record     is    more     likely    to   have    been

affected by errors than one with overwhelming record support."
Strickland, 466 U.S. at 696.

       ¶61    Our conclusion that defense trial counsel's deficient

performance in the instant case was prejudicial is supported by

Washington v. Smith, 219 F.3d 620, 633-34 (7th Cir. 2000), in

which the court granted relief because defense trial counsel's

error was prejudicial in "crippl[ing]" the defendant's defense

by     excluding    entirely      the     testimony      that        would    have    most

supported the defendant's theory.                  The Washington court declared
that    the   additional      witnesses       themselves        had     weaknesses     and
                                           19
                                                            No.    2012AP46-CR



potential inconsistencies, but "the mere fact that some negative

evidence would have come in with the positive does not eliminate

the     prejudicial    effect     of   leaving    corroborative     evidence

unintroduced"    and     inconsistencies    in    the   prosecution's     own

witnesses' testimony made it more likely that the additional

corroboration of alibi witnesses would change the result of the

case.

      ¶62   Wisconsin case law has similarly recognized that when

a potential witness "would have added a great deal of substance

and credibility" to the defendant's theory and when the witness

"could not have been impeached as having a criminal record," the

exclusion of the witness's testimony is prejudicial, even if the

witness's credibility could be impeached.            State v. Cooks, 2006

WI App 262, ¶63, 297 Wis. 2d 633, 726 N.W.2d 322.

      ¶63   The court of appeals in Cooks, quoting the federal

Washington case, 219 F.3d at 634, noted that "the mere fact that

some negative evidence would have come in with the positive does

not eliminate the prejudicial effect of leaving corroborative
evidence unintroduced."         Cooks, 297 Wis. 2d 633, ¶63.

      ¶64   In assessing the prejudice caused by the defense trial

counsel's performance, i.e., the effect of the defense trial

counsel's    deficient     performance,     a    circuit   court    may   not

substitute its judgment for that of the jury in assessing which

testimony would be more or less credible.31
      31
       In contrast, in a Machner hearing, a circuit court may
weigh the credibility of the witnesses, including trial counsel,
in assessing the deficiency and reasonableness of the trial
counsel's performance.

                                       20
                                                                         No.   2012AP46-CR



     ¶65    State v. Guerard, 2004 WI 85, 273 Wis. 2d 250, 682

N.W.2d 12, demonstrates this principle.                      In Guerard, the court

concluded that defense counsel in that case was deficient in

failing to call a witness.                 The court held that despite the

internal inconsistencies and credibility concerns regarding that

witness's testimony, defense counsel's deficient performance was

prejudicial.         The     perceived          weaknesses       in      the   witness's

testimony     "would       have     been       a    factor       for     the   jury    to

consider . . . . The jury would have had to determine the weight

and credibility to assign" to the witness's statements.32

     ¶66    Taking into account all the circumstances of the case,

we   conclude    that      defense        trial      counsel's         performance    was

prejudicial to the defendant; there is a reasonable probability

that the result of the proceeding would have been different had

defense trial counsel called Jones to testify at trial.

                                         * * * *

     ¶67    We conclude, under the totality of the circumstances

in the instant case, that the defendant has demonstrated both
prongs of the test          for ineffective assistance of counsel as

articulated     in   Strickland,         466       U.S.   668:         trial   counsel's

deficient     performance         that     did     not    meet     the     standard    of

objective reasonableness, and prejudice against the defendant

that resulted from the trial counsel's deficient performance.




     32
       State v. Guerard, 2004 WI 85, ¶¶46, 49, 273 Wis. 2d 250,
682 N.W.2d 12.

                                           21
                                                           No.    2012AP46-CR



    ¶68    Consequently, we reverse the decision of the court of

appeals and remand the cause to the circuit court for a new

trial.

    By    the   Court.—The   decision   of   the   court   of    appeals   is

reversed and the cause is remanded for a new trial.




                                   22
                                                                No.    2012AP46-CR.npc


       ¶69       N. PATRICK CROOKS, J.          (concurring).       Because I agree

that       the   defendant    was    denied     his    constitutional       right    to

effective assistance of counsel as a result of trial counsel's

failure to present the eyewitness testimony of Cera Jones at

trial, I join the majority opinion.                However, I write separately

to provide guidance on an issue of central importance not fully

addressed by the majority in this case, namely, whether the

circuit court properly scrutinized and weighed the credibility

of Jones's testimony in applying the prejudice prong of the

ineffective assistance of counsel test set forth in Strickland

v.   Washington,        466   U.S.   668    (1984).       The   propriety     of    the

circuit court's decision in this regard presents an issue that

was both briefed and argued before us.

       ¶70       As   correctly   noted    by    the    majority,     the   test    for

determining whether a defendant received ineffective assistance

of counsel is two-pronged.                State v. Carter, 2010 WI 40, ¶21,

324 Wis. 2d 640, 782 N.W.2d 695 (citing Strickland, 466 U.S. at

687).       The first prong requires the defendant to show that trial
counsel's performance was deficient.                    Id.     The second prong

requires the defendant to prove that trial counsel's deficient

performance prejudiced the defense.               Id.

       ¶71       In discussing the issue of ineffective assistance, the

circuit court focused on the credibility of Jones, in regard to

the prejudice prong of the Strickland analysis, rather than on

the matter of deficient performance of the defendant's counsel.1

       1
       The record is clear that the circuit court made                               no
findings of fact——credibility or otherwise——with respect                             to
trial counsel's deficient performance.

                                            1
                                                                         No.    2012AP46-CR.npc


The circuit court ultimately concluded that trial counsel was

not ineffective for failing to call Jones to testify at trial.

The circuit court reasoned that, even if trial counsel's failure

to call Jones was deficient, such an unprofessional error did

not prejudice the defendant because there was not a reasonable

probability         that     Jones's         testimony       would      have     altered      the

outcome of the trial in light of her failure to come across as a

credible witness.

      ¶72     The     circuit         court      erred      in      discrediting        Jones's

testimony for two reasons.                   First, the general rule in Wisconsin

is that issues of witness credibility and the weight to be given

to their testimony are matters for the jury to decide.                                 State v.

Friedrich, 135 Wis. 2d 1, 16, 398 N.W.2d 763 (1987).                                  Second, a

defendant attempting to establish prejudice for purposes of an

ineffective         assistance          of   counsel        claim      need    only    show    a

reasonable probability that, but for counsel's                                 unprofessional

error,   the    outcome          of   the     trial    would     have     been       different.

State v. Thiel, 2003 WI 111, ¶20, 264 Wis. 2d 571, 665 N.W.2d
305 (quoting Strickland, 466 U.S. at 694).                               As to the latter

point, "reasonable probability" does not mean "more likely than

not."    State v. Dyess, 124 Wis. 2d 525, 544, 370 N.W.2d 222

(1985) (citing Strickland, 466 U.S. at 693).

      ¶73     A proper application of the above legal principles to

the   facts    of     this       case    would       require     the    circuit       court   to

consider      the    following          questions      in     assessing        whether     trial

counsel's      error        in    failing        to    call      Jones        prejudiced      the
defendant:      (1)        Was    Jones's       testimony        within        the    realm    of

                                                 2
                                                              No.    2012AP46-CR.npc


believability in light of the totality of circumstances of the

case?; and (2) Was Jones's testimony materially beneficial to

the defendant's theory of the case?

       ¶74   Had the circuit court limited its inquiry to these

questions, it would have correctly reserved questions as to the

credibility and significance of Jones's testimony for the jury.

                                            I.

       ¶75   A   criminal   defendant       has   a   fundamental     right   to    a

trial by jury guaranteed by the Sixth Amendment to the United

States Constitution and Article I, Section 7 of the Wisconsin

Constitution.        State v. Anderson, 2002 WI 7, ¶10, 249 Wis. 2d

586, 638 N.W.2d 301.         Consistent with this fundamental right,

Wisconsin law provides that it is ordinarily the task of a jury

to decide both the credibility of a witness and the weight to be

given to his or her testimony.               Friedrich, 135 Wis. 2d at 16.

This   principle     is   confirmed   by      Wis     JI——Criminal    300,    which

instructs,

       It is the duty of the jury to scrutinize and to weigh
       the testimony of witnesses and to determine the effect
       of the evidence as a whole. You are the sole judges of
       the credibility, that is, the believability of the
       witnesses and of the weight to be given to their
       testimony.
       ¶76   While under certain circumstances it is possible for a

circuit      court   to   determine   that        a   witness's     testimony      is

incredible as a matter of law, it must be cognizant that "[e]ven

though there be glaring discrepancies in the testimony of a

witness at trial, or between his [or her] trial testimony and
his [or her] previous statements, that fact in itself does not


                                        3
                                                              No.   2012AP46-CR.npc


result in concluding as a matter of law that the witness is

wholly incredible."       Ruiz v. State, 75 Wis. 2d 230, 232, 249

N.W.2d   277   (1977).      Instead,       "the    question    is   whether     the

factfinder believes one version rather than another or chooses

to   disbelieve   the     witness    altogether.       Only    a    question    of

credibility    . . . is    raised.   That        question   [is]    one   for   the

jury."     Id.; see also McFowler v. Jaimet, 349 F.3d 436, 454 (7th

Cir. 2003) ("Inconsistencies in a witness's testimony are not

unusual either, and normally these are left for the factfinder

to assess.").     A court should not substitute its judgment for

that of the factfinder in this regard except where the evidence

is inherently or patently incredible.                 Gauthier v. State, 28

Wis. 2d 412, 416, 137 N.W.2d 101 (1965), cert denied, 383 U.S.

916 (1966).

                                           II.

     ¶77    The legal principle that it is normally the province

of the jury to scrutinize and weigh the testimony of witnesses

in criminal cases must apply when a circuit court is addressing
the prejudice prong of a claim for ineffective assistance.                      See

majority op., ¶64.         Adhering to this legal principle in the

context of ineffective assistance is entirely consistent with

the test for determining prejudice set forth in Strickland.

     ¶78    As noted, the test for prejudice asks whether there is

a reasonable probability that, but for counsel's unprofessional

error, the result of the trial would have been different.                   State

v. Domke, 2011 WI 95, ¶54, 337 Wis. 2d 268, 805 N.W.2d 364
(quoting Strickland, 466 U.S. at 694).                 In the context of a

                                       4
                                                                       No.    2012AP46-CR.npc


criminal       conviction,      "'the       question       is   whether       there    is     a

reasonable probability that, absent the errors, the factfinder

would     have    had   a     reasonable      doubt       respecting        guilt.'"        Id.

(quoting       Strickland,       466        U.S.    at     695).        "'A        reasonable

probability is a probability sufficient to undermine confidence

in the outcome.'"           Id. (quoting Strickland, 466 U.S. at 694).

         ¶79   Importantly,       in    order        to    establish         prejudice,       a

defendant need not show that counsel's unprofessional error more

likely than not altered the outcome of the case.                                Dyess, 124

Wis. 2d at 544 (citing Strickland, 466 U.S. at 693).                                   Thus,

where a circuit court requires a defendant to convince the court

as   to    the    believability        of    an    uncalled     witness       in    order    to

establish        prejudice,     it     not    only       ignores      the    role    that     a

factfinder typically plays in determining the guilt or innocence

of   a    defendant,     it    also    imposes       a    heightened        burden    on    the

defendant        that   was    expressly      considered        and    rejected       by    the

United States Supreme Court in Strickland.

         ¶80   Unfortunately, we have not specifically addressed the
propriety of a circuit court's decision to scrutinize and weigh

the credibility of an uncalled witness for purposes of assessing

the prejudice prong of a claim for ineffective assistance.                                  The

result is that we have produced opinions reflecting somewhat

inconsistent views on the topic.

         ¶81   For example, in State v. Vennemann, 180 Wis. 2d 81,

97, 508 N.W.2d 404 (1993), we briefly addressed the issue in a

case involving a claim of ineffective assistance based on trial
counsel's failure to call a witness.                        Specifically, we agreed

                                              5
                                                                      No.    2012AP46-CR.npc


with the circuit court's conclusion that the outcome of the

trial would not have been different had the testimony of the

uncalled witness been presented at trial because the uncalled

witness "could have been easily impeached by other inconsistent

testimony."       Id.

       ¶82   Conversely, in State v. Guerard, 2004 WI 85, ¶49, 273

Wis. 2d 250, 682 N.W.2d 12, another case involving a claim of

ineffective assistance based on trial counsel's failure to call

certain witnesses, we concluded that the defendant had satisfied

his burden of establishing prejudice notwithstanding the "the

strength of the victim's testimony and the existence of some

inconsistency       between        [the       victim's]        testimony           and   [the

exculpatory       confession       that     was    the   subject      of     the    uncalled

witness'     testimony].       .   .   ."         Although    the     circuit      court    in

Guerard had not made an explicit credibility determination with

respect to the substance of the uncalled witness' testimony, as

was the case in Vennemann, we nevertheless explained that it was

the    proper     role    of    the    jury       to   determine       the    weight       and
credibility to assign to the exculpatory confession at issue.

Id.

       ¶83   When it comes to the correctness of a circuit court's

decision to scrutinize and weigh the credibility of an uncalled

witness for purposes of assessing prejudice in the context of

ineffective assistance,            Guerard        provides the better approach.

That   is    to   say,    Guerard's         approach     is    more     consistent       with

controlling legal principles in Wisconsin, whereas Vennemann's
approach     is    not.        Specifically,           the    court's       discussion      in

                                              6
                                                                       No.     2012AP46-CR.npc


Vennemann does not appear to contemplate that: (1) the well-

established       rule      in    Wisconsin      is      that    witness        credibility

determinations in criminal cases are generally reserved for the

jury;2     and     (2)      reasonable        probability             for     purposes      of

Strickland's prejudice prong does not require a defendant to

show that it is more likely than not that a new trial would

produce a different result.3

     ¶84    That       Guerard      provides       the    better        approach        toward

dealing    with    a     circuit     court's       ability       to    make     credibility

determinations         in    assessing       prejudice          for    purposes       of    an

ineffective assistance claim is confirmed by the United States

Court of Appeals for the Sixth Circuit.                    In Ramonez v. Berghuis,

490 F.3d 482, 490 (6th Cir. 2007), the United States Court of

Appeals for the Sixth Circuit held that a state circuit court

erred in discrediting the testimony of three potential witnesses

when assessing whether trial counsel's failure to investigate

those    witnesses       prejudiced     the      defense,       in     violation     of    the

defendant's       constitutional        right      to     effective          assistance     of
counsel.      The Ramonez court refused to defer to the circuit

court's assessment as to the lack of credibility and helpfulness

of   the    witnesses,           reasoning    in      pertinent         part     that      "our

     2
       See, e.g., State v. Friedrich, 135 Wis. 2d 1, 16, 398
N.W.2d 763 (1987) ("The credibility of witnesses and the weight
given to their testimony are matters left to the jury's
judgment.").
     3
       State v. Pitsch, 124 Wis. 2d 628, 641, 369 N.W.2d 711
(1985) (explaining that, in establishing prejudice in the
context of an ineffective assistance of counsel claim, a
defendant need not demonstrate that counsel's deficient error
more likely than not altered the outcome of the trial.).

                                             7
                                                                             No.       2012AP46-CR.npc


Constitution leaves it to the jury, not the judge, to evaluate

the credibility of witnesses in deciding a criminal defendant's

guilt or innocence."                Id.

       ¶85   We have approved a similar approach to that of Guerard

and     Ramonez     in      addressing        the        standard          for     a       "reasonable

probability of a different outcome" in a case involving the

recantation of a witness's testimony.                             In State v. McCallum, 208

Wis.    2d   463,      468,     561       N.W.2d       707   (1997),        we    considered        the

defendant's motion for a new trial based on newly discovered

evidence: the victim's recantation of her accusation of sexual

assault.      In denying the defendant's motion, the circuit court

determined that the victim's recantation was less credible than

her accusation; as a result, the circuit court reasoned that the

defendant had failed to establish a reasonable probability of a

different result at a new trial.                       Id. at 474.

       ¶86   On     review,          we     concluded          that        the     circuit        court

"employed the wrong legal standard when determining that there

was not a reasonable probability of a different outcome."                                              Id.
at 475-76.        We explained that the proper standard asked whether

there was a reasonable probability that a jury, looking at both

the    accusation        and    the       recantation,            would     have       a    reasonable

doubt     respecting           the        defendant's             guilt.           Id.       at    474.

Accordingly,           we      were        troubled          by      the     circuit           court's

determination          that     a     finding      of        "less    credible"             led   to    a

conclusion        of     "no        reasonable          probability          of        a     different




                                                   8
                                                                 No.    2012AP46-CR.npc


outcome," because "less credible is far from incredible."                           Id.

at 474-75.4

      ¶87      Thus,    while   we   have   not    specifically        addressed    the

propriety of a circuit court's decision to scrutinize and weigh

the credibility of an uncalled witness for purposes of assessing

prejudice in the context of ineffective assistance, I believe

that Guerard and Ramonez are instructive in that they advocate

an approach that most clearly comports with controlling legal

principles in Wisconsin.             That is to say, it is the jury's duty

to resolve questions as to the credibility and significance of

an uncalled witness's testimony.                See majority op., ¶¶64-65.

                                        III.

      ¶88      Because there are instances in which a circuit court

can properly determine that a witness's testimony is incredible

as a matter of law, I cannot advocate a bright-line rule wherein

a   circuit     court    must     always    conclude     that    a     defendant    was

prejudiced by his or her counsel's failure to call a particular

witness at trial.          Rather, the better approach is for a circuit
court     to    consider    the      following     questions     when     evaluating

prejudice for purposes of an ineffective assistance claim: (1)

is the uncalled witness's testimony worthy of belief in light of

the   totality     of    circumstances      of    the   case?;   and     (2)   is   the



      4
       The McCallum concurrence suggested that, when faced with a
recantation and an accusation, "[t]he circuit court does not
determine which of the two statements is more credible; the
circuit court is not to act as a thirteenth juror."      State v.
McCallum, 208 Wis. 2d 463, 490, 561 N.W.2d 707 (1997)
(Abrahamson, C.J., concurring).

                                            9
                                                                  No.    2012AP46-CR.npc


uncalled        witness's        testimony    materially       beneficial      to     the

defendant's theory of the case?

     ¶89    As to the former inquiry, the circuit court should

simply    ask     whether    the     uncalled      witness's    testimony      has    any

indicia of credibility in light of the evidence presented at

trial.5     In answering this question, the fact that the circuit

court     may    be    troubled      by   inconsistencies        in     the    uncalled

witness's       testimony    is     not   necessarily     of    any     import.       The

existence of inconsistencies in a witness's testimony does not

normally lead to a finding that the testimony is incredible as a

matter of law; rather, the existence of discrepancies ordinarily

creates a credibility question for the jury to resolve.                             Ruiz,

75 Wis. 2d at 232.

     ¶90    As to the latter inquiry, the                  circuit court should

simply consider whether the proposed testimony would be helpful

to the defendant's trial strategy such that, if the jury were to

believe     the       proposed      testimony,      it   would     likely      have    a

reasonable doubt respecting the defendant's guilt.
                                             IV.

     ¶91    If the circuit court had applied the above approach to

the facts of this case, then it would have properly reserved

questions       as    to   the    credibility      and   the   weight     of    Jones's

testimony for the jury to resolve.

     5
       This type of threshold inquiry pays tribute to the
"reasonable probability" language of the test for determining
prejudice set forth in Strickland v. Washington, 466 U.S. 668,
694 (1984), while not imposing a more heightened burden upon the
defendant than that contemplated by the United States Supreme
Court in Strickland.

                                             10
                                                                     No.   2012AP46-CR.npc


       ¶92     First, it is clear that Jones's eyewitness testimony

was within the realm of believability in light of the totality

of circumstances of this case.6                  As the majority explains, the

only direct evidence that the state had to link the defendant to

the shooting was the eyewitness testimony of the victim, Toy

Kimber.       Majority op., ¶18.          As a result, the case boiled down

to a credibility determination between Kimber and the defendant.

       ¶93      It is important to note that Kimber originally told

police that he did not know the identity of the person who shot

him.       It was not until the next morning that Kimber identified

the defendant as the shooter upon seeing the defendant's picture

in a photo array.            The record reflects that Kimber had known the

defendant for at least three years and that there was a history

of    disputes      between    people     living     around    North       45th   Street,

including Kimber, and people living around North 38th Street,

including the defendant.             The record also indicates that Kimber

had five adult convictions and four juvenile adjudications and

that       Kimber   changed    his   story      at   trial    with    respect     to   his
identification of the shooter on the night in question.

       ¶94     In comparison, Jones, the only other eyewitness to the

shooting, did not have an extensive criminal record.                              By all

accounts,       Jones    appeared    to    be    a   neutral    eyewitness        to    the

shooting.       She was neither a victim of the shooting, nor was she

someone who possessed a familial or romantic relationship with

the    defendant,       as   she   testified.         That    there    may    have     been

       6
       The circuit court never made an explicit finding that
Jones's testimony was incredible as a matter of law.     See
majority op., ¶31 n.9.

                                           11
                                                                         No.    2012AP46-CR.npc


inconsistencies in Jones's testimony should not have rendered

her   testimony      unworthy       of    belief,        particularly           in     light   of

Kimber's own inconsistent statements and the fact that the state

had little evidence that directly linked the defendant to the

shooting.        Questions as to the credibility and the weight to be

given to Jones's testimony should have been left for the jury to

answer.7

      ¶95    Second,        it     is     evident          that     Jones's           eyewitness

testimony was materially beneficial to the defendant's theory of

the     case.       The     defendant's          trial      strategy           was     two-fold:

(1) attack the credibility of the victim eyewitness, Kimber; and

(2) provide an alibi for the defendant.                      As to the former, it is

clear     that     Jones's       testimony          would    have        helped       undermine

Kimber's identification of the defendant as the shooter.                                       She

would     have    testified       that    she       knew    the    defendant           from    the

neighborhood and that the defendant was not the shooter.                                       She

would     have    further    testified         that    she    did        not    identify       the

defendant to police officers upon viewing a photo array and that
she told police officers the shooter had a smooth baby face, a

feature that the defendant did not possess.                          As to the latter,

Jones's     testimony       would       have   helped       support       the        defendant's

alibi     defense:    she        would    have      testified       that        she    saw     the

defendant across the street from the shooting minutes after the

shooting     occurred,       which       is    consistent         with    the        defendant's

alibi theory.        Thus, Jones's testimony, if believed by the jury,



      7
          Indeed, the State conceded this point at oral argument.

                                               12
                                                                          No.    2012AP46-CR.npc


would   likely    have       created        a    reasonable      doubt      respecting         the

defendant's guilt.

                                                 V.

    ¶96     Because      I     agree    that          the   defendant      was     denied      his

constitutional right to effective assistance of counsel, I join

the majority opinion.              However, I write separately to                          fully

address   the     impropriety          of       the    circuit      court's      decision       to

scrutinize and weigh Jones's testimony in assessing prejudice

for purposes of the defendant's claim of ineffective assistance.

Because     the    general       rule           in     Wisconsin      is        that     witness

credibility determinations in criminal cases are for the jury to

decide, and because the test for establishing prejudice in the

context of ineffective assistance does not require a defendant

to establish that trial counsel's error more likely than not

altered the outcome of the case, the circuit court erred in

discrediting      Jones's      testimony.              The   circuit       court's       inquiry

regarding prejudice should have been limited to the following

questions:      (1)    was     Jones's           testimony       within     the        realm    of
believability in light of the totality of circumstances of the

case?; and (2) was Jones's testimony materially beneficial to

the defendant's theory of the case?

    ¶97     Had    the    circuit       court          limited      its    inquiry       to    the

aforementioned        questions,        it        would      have    correctly          reserved

questions    as   to     the    credibility            and   significance          of    Jones's

testimony for the jury.

    ¶98     For the reasons stated, I respectfully concur.



                                                 13
     No.   2012AP46-CR.npc




14
                                                                      No.    2012AP46-CR.akz


       ¶99      ANNETTE       KINGSLAND         ZIEGLER,    J.      (dissenting).         I

respectfully dissent from the majority opinion.                              In my view,

Jenkins did not receive ineffective assistance of counsel in the

case at issue.              Given the highly deferential standard and the

presumption in favor of finding that counsel's performance was

objectively reasonable, I conclude that counsel's performance

was neither deficient, nor was Jenkins prejudiced by counsel's

alleged failures, such that there is a "reasonable probability"

that the result of the proceeding would have been different.

Further, I conclude that Jenkins is not entitled to a new trial

in the interest of justice.1

                                          I.     ANALYSIS

       ¶100 "Whether          a     convicted        defendant    received    ineffective

assistance of counsel is a two-part inquiry."                         State v. Carter,

2010       WI   40,    ¶21,        324    Wis. 2d 640,      782    N.W.2d 695      (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)).                               "First,

the    defendant            must     prove      that    counsel's     performance       was

deficient.        Second, if counsel's performance was deficient, the
defendant        must        prove       that    the    deficiency     prejudiced       the

defense."        Id.        A defendant "must satisfy both prongs of the

Strickland test" to succeed on a claim of ineffective assistance

of counsel.           Id.    I conclude that neither prong is satisfied in

the case at issue.

                                   A. Deficient Performance

       1
       The majority opinion does not address whether Jenkins is
entitled to a new trial in the interest of justice because it
concludes that a new trial is warranted on grounds of
ineffective assistance of counsel.

                                                 1
                                                                   No.    2012AP46-CR.akz


       ¶101 "To demonstrate deficient performance, the defendant

must    show    that     his    counsel's       representation         'fell    below      an

objective       standard       of     reasonableness'       considering         all       the

circumstances."                Carter,     324     Wis. 2d 640,          ¶22     (quoting

Strickland, 466 U.S. at 688).               "In evaluating the reasonableness

of     counsel's        performance,        this     court       must     be      'highly

deferential.'"           Id.    (quoting     Strickland,         466    U.S.    at    689).

"Counsel enjoys a 'strong presumption' that his conduct 'falls

within the wide range of reasonable professional assistance.'"

Id. (quoting Strickland, 466 U.S. at 689).                        "Indeed, counsel's

performance      need    not     be   perfect,     nor    even    very    good,      to   be

constitutionally adequate."               Id. (citing State v. Thiel, 2003 WI

111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305).

       ¶102 This presumption of constitutional adequacy extends to

decisions of trial strategy.               See Carter, 324 Wis. 2d 640, ¶23.

"Counsel's decisions in choosing a trial strategy are to be

given great deference. . . .              Even decisions made with less than

a thorough investigation may be sustained if reasonable, given
the strong presumption of effective assistance and deference to

strategic decisions."            State v. Balliette, 2011 WI 79, ¶26, 336

Wis. 2d 358,      805     N.W.2d 334       (citing    Carter,      324    Wis. 2d 640,

¶23; Strickland, 466 U.S. at                690–91).       "We must make 'every

effort . . . to eliminate the distorting effects of hindsight,

to     reconstruct       the     circumstances       of      counsel's         challenged

conduct, and to evaluate the conduct from counsel's perspective

at     the     time.'"          Carter,     324    Wis. 2d 640,          ¶22     (quoting
Strickland, 466 U.S. at 688).

                                            2
                                                                               No.       2012AP46-CR.akz


       ¶103 In         light        of     that    deferential           standard,             counsel's

performance           in     the    case     at    issue      was       not    deficient.            The

"witnesses"            that      counsel      chose          not    to       call,        Cera    Jones

("Jones"),            Christopher          Blunt        ("Blunt"),            and     Corey        Moore

("Moore"), were significantly compromised, would not cooperate

with counsel in his preparation of the case, and in any event,

would not necessarily have aided Jenkins' defense.2                                            From the

perspective of counsel at the time of trial, we must presume

that       counsel         concluded       that    these      witnesses         were        not   worth

calling.              In    fact,        presenting       these      witnesses            might     have

detracted from the defense that counsel was putting forward.

Thus, it is speculative to conclude as the majority does that

counsel's failure to call the witnesses was deficient, as that

term       is    defined         for     purposes       of    ineffective            assistance       of

counsel.

       ¶104 Defense              counsel's        strategy         at     trial          was     simple:

present evidence that Jenkins could not have been the shooter

because he was across the street at a "trap" house at the time
of the shooting.3                  In support of this strategy, counsel called

both       Jenkins         and   Daniel     McFadden         ("McFadden"),           a     friend    who

Jenkins         was    socializing         with     the      night      of    the     shooting,       as


       2
       The majority opinion rests its conclusion of deficient
performance solely on counsel's decision not to call Jones. As
a result, the majority opinion does not address counsel's
decision not to call Blunt and Moore.    Majority op., ¶9, n.6.
Because I conclude that counsel did not perform deficiently, I
address all the potential witnesses.
       3
       The record reflects that a "trap" house is a place for
young people to "hang out . . . smoke weed [and] drink."

                                                    3
                                                              No.    2012AP46-CR.akz


witnesses.    Both Jenkins and McFadden testified that Jenkins was

asleep at the "trap" house when he was awoken by the shots.                      As

the majority opinion correctly notes, the prosecution had only

one witness refuting this version of events.                Majority op., ¶18.

The state called Toy Kimber, a man with five adult convictions

and four juvenile adjudications, in its attempt to tie Jenkins

to the shooting.     Id., ¶21.

       ¶105 At the time counsel was developing Jenkins' defense

strategy, the only statements in the record from Jones were her

statements    to   police    in     the       days   following      the   shooting.

According to the police reports, Jones indicated that she did

not see the shooter's face because he was wearing a hood, and

stated that she was not familiar with the place of the shooting

or the people involved.           Jones had further told police that she

was not focused on the shooter, but rather, her attention was

drawn to the laser target on the victim standing in front of

her.     Further, Jones initially concealed from police that she

had been involved in a drug deal just prior to the shooting, but
subsequently gave several different accounts of that drug deal.

Jones' inconsistent and less than exculpatory statements provide

a reasonable explanation for why counsel would not have believed

that Jones would assist in Jenkins' defense.

       ¶106 Given that these were the facts available to counsel

at the time of trial, counsel had no reason to call Jones, as

her    testimony   would    not    necessarily       have   bolstered      Jenkins'

defense.



                                          4
                                                                 No.   2012AP46-CR.akz


      ¶107 The majority makes much of Jones' testimony at the

Machner hearing, wherein Jones first claimed that she had also

told police that Jenkins was definitely not the shooter.                           The

circuit    court,    however,      found     that    Jones'    testimony     in    this

regard was not credible.               Indeed, as the trial court noted,

Jones' testimony seemed to get "better and better" as time went

on, something that ordinarily does not occur with eyewitnesses.

The circuit court detailed why Jones would be impeached and how

she was not a credible witness.                 The circuit court concluded,

based on Jones' own statements, that Jones was herself involved

in a drug deal that evening.              As the circuit court concluded at

the Machner hearing, "there are way too many inconsistencies

with Miss Jones's statements and . . . frankly she just did not

come across as a credible witness."                 Majority op., ¶31 n.9.

      ¶108 The majority opinion fails to properly defer to the

circuit court's credibility determinations: "this court will not

exclude     the     circuit       court's       articulated      assessments        of

credibility and demeanor, unless they are clearly erroneous."
Carter,    324    Wis. 2d 640,      ¶19    (citing     Thiel,    264    Wis. 2d 571,

¶23).     The circuit court was in the best position to evaluate

the     witnesses    and    it    determined        that   Jones'      testimony    is

relegated to having questionable value, at best.                        Under these

circumstances, it is not difficult to see why counsel would not

put Jones on the stand, even assuming he knew of her potentially

exculpatory testimony.            Not calling a drug dealing witness, who

gave several inconsistent and impeachment-worthy statements to
police,    does     not    rise   to   the     requisite      level    of   deficient

                                           5
                                                                      No.   2012AP46-CR.akz


performance.          Simply stated, in finding counsel to be deficient,

the        majority     supplants          the       circuit     court's     credibility

determinations with its own credibility assessments.                             Typically,

we    do      not     second-guess          the      circuit     court's     credibility

determinations, and I would not do so in the case at issue.                             See

Carter,      324     Wis. 2d 640,         ¶19    (citing     Thiel,   264    Wis. 2d 571,

¶23).

       ¶109 The majority also does not respect the presumption due

to counsel——that he acted reasonably.                          Instead, the majority

presumes      that     Jones    is    a    credible,       believable,      game-changing

witness.       The majority concludes that counsel should have known

that the jury would have believed her inconsistent, impeachable

testimony.          The majority does not find it significant that, even

assuming counsel knew that Jones would testify as she did at the

Machner hearing, counsel would also have to account for Jones'

previous inconsistent statements and her involvement in a drug

deal that evening.             Perhaps even more jugular is that in order

for the jury to believe Jones' testimony the jury would have to
determine that the police lied and that they failed to include

Jones' exculpatory statements in the police reports.4                               To the

extent that it can be believed that counsel knew or should have

known about Jones' exculpatory testimony, counsel's performance

in    not     calling    Jones       still       was   not     necessarily       deficient.

Counsel's      decision        to    not    call     Jones     was   just   as    likely   a

reasoned strategy.

       4
       Other significant Brady implications may also arise given
the assumptions made by the majority.     See Brady v. Maryland,
373 U.S. 83, 87 (1963).

                                                 6
                                                                     No.   2012AP46-CR.akz


    ¶110 In         its     effort   to    cast    counsel's          performance       as

deficient, the majority opinion reads as if counsel did not even

try to develop witnesses for the trial.                   In point of fact, the

opposite rings true.              In building his trial strategy, counsel

testified      at     the     Machner      hearing       that        he    "definitely"

interviewed Jones as a possible witness, though he could not

remember    precisely       how    many   times    he   spoke      with     her    or   the

substance of those conversations.                  Jones herself testified at

the Machner hearing that counsel had spoken with her a total of

four times, twice by phone and twice in person.                              The record

further reflects Jones' only known statements at the time of

trial   were    not       exculpatory,    and     it    was    not     until      Jenkins'

postconviction motion that Jones was revealed as a potentially

exculpatory witness.          In fact, since by all accounts counsel did

interview Jones, he likely concluded that she was either not

exculpatory     or    not     credible.         Indeed,       at   least     two     other

potentially exculpatory witnesses besides McFadden were present

at trial, but counsel chose not to call these witnesses because
he concluded that they lacked credibility.                     The presumption due

to counsel is virtually nonexistent in the majority opinion.

    ¶111 A lot can happen in two and a half years to change a

witness' testimony.            The first we know of Jones' potentially

exculpatory testimony is at the Machner hearing.                            The Machner

hearing occurred two years and six months after Jenkins' trial.

Although counsel did not have detailed recall, as he had lost

his file in a flood, it is speculative to assume that Jones'
testimony at a trial some 30 months previous would have matched

                                           7
                                                                       No.        2012AP46-CR.akz


her    statement          at     the    Machner      hearing.          Again,        the     only

information in the police reports, which were created around the

time of the shooting two and a half years earlier, is that Jones

did    not   add     to    the     defense      presented.       If    we    afford        proper

deference to the circuit court, no credible evidence in this

record demonstrates that counsel knew, at the time of trial, of

Jones' potentially exculpatory testimony.                        If the majority were

to    couple   the       deference       due    to   the   circuit       court        with    the

presumption due to counsel, it would be hard pressed to conclude

that counsel was deficient.

       ¶112 Without presuming that counsel acted effectively, the

majority nonetheless concludes that counsel was deficient.                                    In

so doing, the majority must speculate that counsel did not have

a good reason for not calling Jones and give virtually no weight

to the circuit court's determinations, even though that court

heard the testimony and reviewed the matter at Jenkins' Machner

hearing.

       ¶113 Correctly, the majority does not opine that counsel's
performance        was         deficient    with       respect    to        the     other     two

allegedly exculpatory witnesses, Blunt and Moore.                                 According to

affidavits attached to Jenkins' motion for a new trial, Moore,

Blunt, and Jenkins all shared a jail pod after Jenkins' arrest.

Thus, had they testified, the jury would have learned that the

defendant was in jail.                 Jenkins argues that counsel is deficient

because      while    they        were     in   jail    together,       Blunt         allegedly

confessed to Jenkins that he was the true perpetrator of the
shooting.      Moore allegedly witnessed the confession.

                                                8
                                                                  No.    2012AP46-CR.akz


      ¶114 Although Blunt later denied having confessed, Jenkins

nonetheless argues that Moore's hearsay testimony regarding the

confession could have come in under two hearsay exceptions.                           See

Wis. Stat. §§ 908.01(4)(a)1, 908.04(1)(a).

      ¶115 The majority does not contradict the court of appeals'

conclusion that Jenkins' trial counsel was not ineffective for

deciding not to call Blunt and Moore.                        State v. Jenkins, No.

2012AP46-CR,      unpublished       slip       op.,    ¶¶20-22    (Wis.      Ct.     App.

Jan. 15, 2013).       I agree with the court of appeals' analysis

that counsel was not deficient for not calling Blunt or Moore.

      ¶116 The parties stipulated that had Blunt been called as a

witness he would have denied knowing Jenkins or anything about

the   shooting.      Id.,    ¶22.      Counsel         cannot    be     deficient     for

failing to call a witness who would have added nothing to his

client's case.      Id.     Thus, counsel's decision not to call Blunt

as a witness was not deficient performance.

      ¶117 With respect to counsel's decision not to call Moore,

Jenkins conceded that because Moore was in the postconviction
phase of his own trial, Moore's attorney refused to allow him to

be interviewed or make him available to Jenkins' counsel.                            This

concession reveals that Jenkins' counsel was not deficient in

not   calling     Moore   as    witness.              Such    investigation        weighs

strongly in favor of constitutionally adequate performance.                           See

Carter, 324 Wis. 2d 640, ¶22.

      ¶118 Further, at the Machner hearing counsel articulated a

reasonable   strategic       reason    behind          not    putting    the   alleged
confession   into    evidence:       the       confession       testimony      was    not

                                           9
                                                                    No.    2012AP46-CR.akz


credible and he "didn't want to . . . put a bunch of stuff into

evidence that's gonna blow up in our face or make the jury think

we're trying to blow smoke at them."                        Such a decision is a

reasonable    determination           related      to   trial     strategy,     and    not

deficient     performance.             See    Carter,      324     Wis. 2d 640,        ¶23;

Whitmore v. State, 56 Wis. 2d 706, 715, 203 N.W.2d 56 (1973)

(holding that "[a]n attorney's strategic decision based upon a

reasonable view of the facts not to call a witness is within the

realm of an independent professional judgment.").

      ¶119 As a practical matter, this was a difficult case for

the defense to build.                Witnesses were not exactly cooperative

with counsel.        Counsel was forced to secure the assistance of

Jenkins'    sister       to    try    and    get    witnesses       to     cooperate    in

Jenkins' defense.             In requesting an adjournment just prior to

trial, counsel averred that he had enormous problems in locating

possible witnesses and securing their cooperation.                             Counsel's

request     for    an    adjournment         was    granted.         Counsel     further

testified     at    the       Machner       hearing     that      possible     witnesses
regularly failed to show up for scheduled meetings, and that

they regularly changed their stories from one meeting to the

next, making a "multitude" of conflicting statements.                             All of

this speaks to counsel acting in a diligent and professional

manner under very difficult circumstances.                       When a witness does

not   cooperate,        it    cannot     always       be   said     that     counsel    is

deficient.        Here, at most, counsel failed to call a number of

witnesses     who       had    given    several         contradictory        statements.
Counsel was not deficient for failing to call such witnesses.

                                             10
                                                                       No.    2012AP46-CR.akz


       ¶120 Jenkins' defense was that he was not the shooter, and

that   he   was    actually       across       the    street    at     the    time    of    the

shooting.     Jenkins had a witness who corroborated his testimony,

and    refuted    the    sole     witness       for     the    prosecution.           Counsel

described McFadden at the Machner hearing as "quite cooperative

and quite credible" and "a good witness, one that's credible as

to alibi."        By contrast, other possible witnesses had given

counsel a "multitude" of conflicting statements.                                  Under these

circumstances,          why     would       counsel      confuse        the       jury      with

cumulative       witnesses       who     had     made    a     number        of    different,

possibly contradictory, perhaps nonexistent, statements over the

course of time?         Jenkins' counsel introduced what he believed to

be a credible witness who supported his defense.                              It cannot be

deficient     performance         for       counsel      to    decide        not     to     call

cumulative, impeachable witnesses who might, in fact, undermine

the client's case.

       ¶121 As we have stated, "[a] court must be vigilant against

the skewed perspective that may result from hindsight, and it
may not second-guess counsel's performance solely because the

defense proved unsuccessful."                   Balliette, 336 Wis. 2d 358, ¶25

(citing     Strickland,         466     U.S. at       689;     State    v.        Harper,    57

Wis. 2d 543,      556–57,       205     N.W.2d 1      (1973)).         Nonetheless,          the

majority     opinion          tends    to    second-guess         counsel's          actions.

Counsel in the case at issue, however, did not render deficient

performance as that term has heretofore been defined.                               Thus, the

first prong is not satisfied.
                                        B. Prejudice

                                               11
                                                                      No.   2012AP46-CR.akz


       ¶122 In addition to finding that counsel was deficient, the

majority must also conclude that Jenkins was prejudiced to the

requisite degree.          To satisfy the prejudice prong, the defendant

must     essentially       show   a   "reasonable            probability"       that      the

outcome at trial would have been different if counsel had called

the witnesses.          The majority rests its prejudice determination

on Jones' testimony alone.                  It concludes that her testimony

alone, albeit conflicting and contradictory, would have changed

the    jury's     conclusions.        For    many       of   the    reasons     discussed

previously, I disagree.           Jones' testimony would have, at best,

been of minimal assistance to the defense and more likely, been

harmful     and    damaging.          I     respectfully           disagree    with       the

majority’s conclusion that Jones' testimony would have affected

the outcome of the trial.

       ¶123 "To warrant setting aside the defendant's conviction,

the    defendant     must     demonstrate        that    his    counsel's       deficient

performance       was     prejudicial     to     his     defense."          Carter,       324

Wis. 2d 640, ¶37 (citing Strickland, 466 U.S. at 691–93).                                 "It
is not sufficient for the defendant to show that his counsel's

errors    'had     some    conceivable       effect      on    the     outcome       of   the

proceeding.'"           Id.   (quoting      Strickland,         466    U.S.     at     693).

"Rather, the defendant must show that 'there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.'"                            Id.; see

also Balliette, 336 Wis. 2d 358, ¶24.                    Jenkins cannot make this

showing in the case at issue.



                                            12
                                                                     No.    2012AP46-CR.akz


      ¶124 The          defense        strategy      was      to         challenge         the

identification of Jenkins as the shooter and instead establish

an alibi defense.            Even if Jones' testimony could have supported

both parts of that defense, it is difficult to conclude that,

given the significant problems with her inconsistent statements

and involvement in a drug deal that evening, her testimony would

have been persuasive to the jury.

      ¶125 Even assuming that it was error for Jenkins' trial

counsel to not call Jones, Blunt, and Moore, the inclusion of

their testimony would not have aided Jenkins' defense to the

requisite degree.             In the case of Jones, both the court of

appeals      and     the     circuit     court     concluded,        "given        all     her

contradictions . . . this              court      cannot     say     that        there's     a

reasonable probability that but for not calling her the result

would have been different."                Jenkins, No. 2012AP46-CR, ¶15.                    I

agree.

      ¶126 Jenkins was also not prejudiced by counsel's failure

to    call   Blunt      or    Moore.        As     the     circuit       court     properly
concluded,         Moore's      testimony      would      have     been     inadmissible

hearsay.       Jenkins        cannot    have     been     prejudiced       by     counsel's

failure to call a witness who would not have been allowed to

testify.     As for Blunt, the parties stipulated that, had he been

called as a witness, Blunt would have denied involvement in the

shooting, and would have denied knowing Jenkins.                            It cannot be

said that Blunt's testimony would have changed the outcome of

the   trial.       As   such,    failing    to     call    him     did     not    prejudice
Jenkins.     Thus, the second prong is, likewise, not shown.

                                            13
                                                           No.   2012AP46-CR.akz


                            C. Discretionary Reversal

      ¶127 Jenkins has also asked this court to grant him a new

trial under our power of discretionary reversal.                See Wis. Stat.

§ 751.06.     Because I conclude that counsel was not ineffective,

however, I also conclude that the case at issue was fully tried,

and a new trial in the interest of justice is not warranted.

See State v. McGuire, 2010 WI 91, ¶¶61-64, 328 Wis. 2d 289, 786

N.W.2d 227.

      ¶128 Indeed, when a defendant raises a claim of ineffective

assistance of counsel, relief is afforded to the defendant who

proves that claim.           The interest of justice analysis is not

intended as a fallback position for a defendant who does not

succeed in a claim          of ineffective assistance of counsel.           See,

e.g., State v. Davis, 2011 WI App 147, ¶15, 337 Wis. 2d 688, 808

N.W.2d 130.    The interest of justice statute "'was not intended

to   vest   this    court    with   power   of   discretionary    reversal   to

enable a defendant to present an alternative defense at a new

trial merely because the defense presented at the first trial
proved ineffective.'"         State v. Neumann, 2013 WI 58, ¶146, 348

Wis. 2d 455,       832   N.W.2d 560    (quoting    State   v.    Hubanks,    173

Wis. 2d 1, 29, 496 N.W.2d 96 (Ct. App. 1992)).

      ¶129 Jenkins' assertion is that counsel was ineffective.

If he cannot meet that test, he most certainly cannot meet what

should be the more stringent standard set forth in Wis. Stat.

§ 751.06.     Wisconsin Stat. § 751.06 is not intended to provide

relief for a defendant who cannot meet the burden of showing
ineffective assistance of counsel.

                                       14
                                                      No.    2012AP46-CR.akz


    ¶130 For the foregoing reasons, I dissent.

    ¶131 I   am   authorized   to   state   that   Justice    MICHAEL    J.

GABLEMAN joins this dissent.




                                    15
    No.   2012AP46-CR.akz




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