                                                                2018 WI 34

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:              2014AP2561
COMPLETE TITLE:        State of Wisconsin,
                                  Plaintiff-Respondent,
                            v.
                       David McAlister, Sr.,
                                  Defendant-Appellant-Petitioner.

                             REVIEW OF DECISION OF THE COURT OF APPEALS
                                              (no cite)

OPINION FILED:         April 17, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 11, 2018

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Racine
   JUDGE:              Emily S. Mueller

JUSTICES:
   CONCURRED:          KELLY, J., concurs (opinion filed).
   DISSENTED:          A.W. BRADLEY, J., dissents, joined by
                       ABRAHAMSON, J. (opinion filed).
  NOT PARTICIPATING:

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed by Robert R. Henak, Ellen Henak, and Henak Law Office,
S.C., Milwaukee.         There was an oral argument by Robert R. Henak.


       For the plaintiff-respondent, there was a brief filed by
Scott        E.   Rosenow,    assistant   attorney   general,    and   Brad   D.
Schimel, attorney general.            There was an oral argument by Scott
E. Rosenow.
                                                                         2018 WI 34
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.     2014AP2561
(L.C. No.    2005CF0324)

STATE OF WISCONSIN                             :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,
                                                                      FILED
       v.                                                        APR 17, 2018

David McAlister, Sr.,                                               Sheila T. Reiff
                                                                 Clerk of Supreme Court

            Defendant-Appellant-Petitioner




       REVIEW of a decision of the court of appeals.                Affirmed.



       ¶1   PATIENCE DRAKE ROGGENSACK, C.J.                In January 2007, a

jury convicted David McAlister, Sr. ("McAlister") of attempted

armed robbery (threat of force), armed robbery (threat of force)
and possession of a firearm by a felon for crimes that occurred

in late 2004.        At trial, the State presented testimony from

Nathan Jefferson ("Jefferson") and Alphonso Waters ("Waters").

They   testified     that   McAlister   was    their       accomplice        in    the

robberies.

       ¶2   In   2014,     McAlister   filed   the      Wis.     Stat.      § 974.06

motion for a new trial that is now before us.                    He alleged that
he had newly discovered evidence represented by the affidavits
                                                                             No.     2014AP2561



of three men who allege that Jefferson and Waters lied when they

testified that McAlister was involved in the crimes for which he

was convicted.           The circuit court1 denied McAlister's motion

without     an    evidentiary         hearing,        and    the   court       of     appeals

affirmed.2

      ¶3     Our review focuses on whether McAlister has provided

newly     discovered      evidence      that     is    sufficient       to    require        the

circuit court to hold an evidentiary hearing.                           In so doing, we

consider whether the affidavits McAlister submitted in support

of his motion meet the requirements necessary to qualify as

newly discovered evidence.                We specifically examine whether the

affidavits       were    cumulative         evidence        and    whether         they     were

uncorroborated          evidence      for    which      corroboration              should    be

required.

      ¶4     We conclude that the affidavits were merely cumulative

evidence     because      they     were     additional       evidence        of     the     same

general character as was subject to proof at trial, i.e., that

Jefferson       and   Waters     lied     when   they       implicated       McAlister       in

order to achieve favorable plea bargains for themselves.                                     We

also conclude that the affidavits were insufficient to require

the circuit court to hold a hearing on McAlister's motion for a

new     trial    because       they     were     supported         by    neither          newly

discovered corroborating evidence or circumstantial guarantees

      1
          The Honorable Emily S. Mueller of Racine County presided.
      2
       State v. McAlister, No.                   2014AP2561,        unpublished           order
(Wis. Ct. App. Aug. 10, 2016).


                                             2
                                                                             No.     2014AP2561



of   trustworthiness.            Therefore,        the    circuit       court        did   not

erroneously exercise its discretion when it denied McAlister's

motion for a new trial without an evidentiary hearing.                               State v.

Avery,      2013    WI    13,   ¶22,    345       Wis. 2d    407,       826     N.W.2d      60.

Accordingly, we affirm the court of appeals' affirmance of the

circuit court.

                                  I.    BACKGROUND

      ¶5      The    two    crimes     of     which      McAlister        was      convicted

occurred in December 2004 in the City of Racine.                               On December

21, Nathan Jefferson and Monique McAlister ("Monique") attempted

an armed robbery of the Catholic Community Credit Union (the

"Credit Union").3          When the Credit Union's security alarms began

to ring, Jefferson and Monique ran from the scene without any

money.      On December 28, Waters, Jefferson and Monique committed

an armed robbery at Wisconsin Auto Title Loan ("Title Loan").

      ¶6      Police      arrested     Waters      and    Jefferson       separately         in

March      2005     for    robberies      unrelated         to    the     December         2004

robberies.         Waters was questioned by Racine Police Investigator

William Warmington regarding an armed robbery that occurred at

an   Open    Pantry.        Waters     initially         denied     any       knowledge     or

involvement, but after being confronted with video footage that

Warmington        indicated     matched     the     description         of     one    of   the

offenders, Waters admitted that he had been involved.                                  Waters


      3
       Monique McAlister is the defendant David McAlister's
niece.    She also is referred to as Monic McAlister in the
record.


                                              3
                                                                No.     2014AP2561



told Warmington that McAlister had planned the robbery at Title

Loan and served as the getaway driver.                    Waters described in

detail the location of and the interior of McAlister's home,

including where the gun used in the Title Loan robbery could be

found.

      ¶7   Upon his arrest, Jefferson told police that McAlister

had   planned    each    of   the   December    robberies,     served    as   the

getaway driver and provided the gun he carried at the Credit

Union.     Based    on   the   information      obtained     from   Waters    and

Jefferson,   police      obtained    a   search    warrant    for   McAlister's

residence, where they found a .22-caliber handgun.                    McAlister,

who is a convicted felon, was arrested.

      ¶8   At McAlister's trial, Waters testified on behalf of

the State.      He testified that shortly before December 28, 2004,

McAlister had driven Waters to Title Loan, where he instructed

Waters how to conduct the robbery.                On December 28, McAlister

picked up Waters in a gray Hyundai, a picture of which was

received as Exhibit 4 and then picked up Monique and Jefferson.

      ¶9   After testifying that the gun the police took from

McAlister's house, which had been marked as Exhibit 11, was

"very familiar," Waters described the robbery itself.                  On cross-

examination,       defense     counsel       repeatedly     attacked     Waters'

credibility.       Defense counsel hammered on Waters' history of

lying to police, calling attention to Waters' initial statements

to police after his March 2005 arrest.

           Q.      You denied that you robbed the Open Pantry?


                                         4
                                                   No.    2014AP2561


     A.    Yes.

     Q.   You told them:   No,   I   didn't.   I    had    no
involvement with that?

     A.    Yes.

     Q.   Then they told you that they had video of
the robbery?

     A.    Yes.

     Q.    And that they believed you were the guy that
did it?

     A.    Right.

. . . .

     Q.   You knew then that the detectives had solid
evidence establishing that you had committed an armed
robbery?

     A.    Yes.

     Q.   At that point in time,         you   asked      the
detectives: What am I looking at?

     A.    Right.

     Q.   And by that you meant, how much prison time
am I going to get for having done this armed robbery?

     A.    Yeah.

     Q.   Then you asked them, quote, what can I tell
you to help me, right?

     A.   If I -- yeah.     If I did, instinct I did
because I knew that I was in trouble. I didn't know,
you know, what was really going on.     So you know,
yeah, I was looking for help.

. . . .

     Q.    You are willing to lie to keep yourself out
of jail?



                           5
                                                        No.     2014AP2561


         A.   Well, out of instinct because I've -- I've
    been arrested so many times, 13 times, and when they -
    - when I seen that I was in trouble, of course, yes.
    I -- I didn't want to be in trouble. I was trying to
    talk my way out of it, yes.

    . . . .

         Q.   Now,    the whole reason that you started to
    ask them about    what you could do to help yourself and
    will they give    me a break if I tell something, is you
    wanted to make   a deal, right?

         A.   No. I knew that by being honest -- because
    I've dealt with the court system for so long, I knew
    if I was being honest, that things would be easier on
    me in the long run because the more you lie, the more
    trouble you get into. So I wanted to clear things up
    at that time.

    . . . .

         Q.   Now,     you    are     aware    that     in
    November . . . November 10th, of 2003, you came into
    contact with police at that point. It was an Officer
    Stehlow who had asked you your name, and at that point
    in time you told him your name was Steve Jordan,
    correct?

         A.   I don't remember that.

[Defense counsel refreshes Waters' recollection].

         Q.   Okay.   Now that you've reviewed that, you
    recall that in November of '03, you were confronted by
    this police officer?

         A.   Yes.   And    I   obstructed   by   telling     him   a
    different name, yes.

    . . . .

         Q.   Now, on October 30th, of 1998, do you recall
    being again confronted by the police and identifying
    yourself as Steve Morris, with a date of birth 12/6 of
    '68?

[Defense counsel refreshes Waters' recollection].


                                  6
                                                      No.   2014AP2561


          A.   I obstructed.   I gave a false name.

    . . . .

         Q.   On July 19th, of 1998, do you recall having
    been confronted by the police and identifying yourself
    as Marcus L. Booker, date of birth 12/16 of '69?

          A.   Not that I recall.

[Defense counsel refreshes Waters' recollection].

         Q.   Okay.   You agree with me that on this day
    you lied to the police, gave them the name Marcus
    Booker, date of birth 11/18/69?

          A.   Yes.

         Q.   And again, the whole reason that you lied
    was to try to keep yourself out of jail?

          A.   Yes.

          Q.   That's something that you are willing to do?

          A.   At those moments, yes.

          Q.   But not at this moment?

          A.   Those were the past.   This is the future.

          Q.   When did the future begin?

          A.   The day that I got arrested.

         Q.   So for the first time in your career, first
    time in your adult life that you decided that things
    were going to be different and now you're going to
    tell the truth, was when you were arrested by
    Investigator Warmington and Investigator Diener?

          A.   Yes.
    ¶10   On re-cross, defense counsel suggested that because

Waters now faced 154 years total incarceration, he had a very

big incentive to implicate McAlister.    Waters denied that he had
any knowledge of a deal.

                                 7
                                                             No.    2014AP2561


         Q.   You understand that because you've agreed to
    testify here today, that what the prosecutor is going
    to do is he's somehow going to reduce your exposure?

           A.     No.   I didn't know any of that.

         Q.   You were unaware that your lawyer had cut
    this deal with the prosecutor?

         A.   No, no.   I never -- no one ever brought me
    anything about a deal to me, no.

         Q.   Your lawyer, who is sitting right there,
    your position is he has never discussed with you the
    fact that you have an agreement with the DA?

           A.     No.
    ¶11    The    following    day,   however,    the    court     read    this

stipulation to the jury:

         The State of Wisconsin by Assistant District
    Attorney James Newlun and defendant David McAlister
    personally and by attorney Patrick K. Cafferty hereby
    agree that the following is true.   One, the District
    Attorney's office has agreed that it would reduce the
    maximum sentence Alphonso Waters faces by either
    dismissing some of his charges or reducing the
    seriousness of the charges.

         Two, the District Attorney's office has agreed to
    recommend that Alphonso Waters should serve less
    prison time than it would have recommended if Alphonso
    Waters had not testified in the trial of David
    McAlister.

          And three, Assistant District Attorney James
    Newlun conveyed the terms of this agreement to
    Alphonso Waters through his attorney Douglas Pachucki
    sometime prior to Waters testifying on January 23rd,
    2007.
    ¶12    Jefferson    also    testified    on   behalf    of   the      State.

During   his    questioning    by   the   assistant     district    attorney,




                                      8
                                                                         No.   2014AP2561



Jefferson admitted that he had a plea bargain with the State and

the terms of that bargain.

      ¶13     Jefferson admitted that he and Monique attempted to

rob the Credit Union.          He said that McAlister had driven them to

and from the Credit Union in a four-door gray Hyundai, a picture

of which was received as Exhibit 5.                        He said that McAlister

provided the .22 semiautomatic handgun that he carried, which he

identified as Exhibit 11.

      ¶14     Jefferson also testified about the Title Loan armed

robbery.        Jefferson      stated      that    on     that    day,   in    the   same

vehicle, McAlister drove Jefferson, Waters and Monique to Title

Loan to commit the robbery.                After the robbery, McAlister drove

the    four     of    them    back    to    his     apartment,      which      Jefferson

described consistently with Waters' earlier description given to

police.

      ¶15     When questioned by police, Jefferson stated that he

had originally lied, but later told the truth about the two

robberies.         Jefferson testified that at the time of his arrest

he    was     aware    that    Waters      had     also    been    arrested     because

McAlister had told him as much.                   McAlister had told Jefferson,

"Don't say nothing about the robberies; and if I did, that he'll

make my life a living hell."

      ¶16     On     cross-examination,          defense    counsel      stressed    that

the effect of the plea agreement between Jefferson and the State

was that Jefferson's imprisonment exposure was reduced from 60-

plus years to 20 years.              As he did with Waters, defense counsel


                                            9
                                                   No.   2014AP2561



drew attention to Jefferson's past lies to police to avoid going

to jail.

    ¶17    At the conclusion of testimony, the circuit court read

the following jury instructions regarding witnesses' testimony:

         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.    In determining the credibility of
    each witness and the weight you give to the testimony
    of each witness, consider these factors.

         Whether the witness has an interest or lack of
    interest in the result of this trial; the witness's
    conduct, appearance and demeanor on the witness stand;
    the clearness or lack of clearness of the witness's
    recollections; the opportunity the witness had for
    observing and for knowing the matters that the witness
    testified about; the reasonableness of the witness's
    testimony; the apparent intelligence of the witness;
    bias or prejudice, if any, that has been shown;
    possible motives for falsifying testimony; and all
    other facts and circumstances during the trial which
    tend either to support or to discredit the testimony.

    . . . .

         You have heard testimony from Alphonso Waters and
    Nathan Jefferson who stated that they were involved in
    the crimes charged against the defendant. You should
    consider this testimony with caution and great care,
    giving to it the weight that you believe it is
    entitled to receive. You should not base a verdict of
    guilty upon it alone unless after consideration of all
    the evidence, you are satisfied beyond a reasonable
    doubt that the defendant is guilty.

         You have heard testimony from the two witnesses
    Alphonso Waters and Nathan Jefferson who have received
    consideration for their testimony.    These witnesses,
    like any other witness, may be prosecuted for
    testifying falsely.     You should consider whether
    receiving consideration affected the testimony and

                                10
                                                                          No.    2014AP2561


    give the testimony the weight that you believe it is
    entitled to receive.
    ¶18       Following deliberations, McAlister was found guilty of

attempted armed robbery with use of force in violation of Wis.

Stat.   § 943.32(2),        armed    robbery        with    threat        of    force    in

violation of § 943.32(2) and possession of a firearm by a felon

in violation of Wis. Stat. § 941.29(2).

    ¶19       In May 2008, McAlister moved for a new trial, arguing

that (1) the State failed to provide full disclosure of the
terms of agreements struck between the State and Waters and

Jefferson;     (2)    the   jury    was      not    informed       that    Waters'      and

Jefferson's plea offers were "performance based" or otherwise

contingent on their value to the State; (3) the State failed to

correct Waters' alleged perjury; (4) the real controversy was

not fully tried because the jury did not hear testimony from

alibi   and    other      witnesses;      and      (5)   McAlister        had    received

ineffective assistance of counsel because defense counsel failed

to introduce alibi and exculpatory evidence.                         His motion was

denied following an evidentiary hearing on October 23, 2008.

    ¶20       On   May    19,   2014,     McAlister        filed    the        motion   for

postconviction       relief     under   Wis.       Stat.   § 974.06       that     is   now

before us, claiming that he had newly discovered evidence.                               In

support of his motion, McAlister submitted affidavits of three

men who claimed that Jefferson and Waters admitted prior to

trial   that       they   intended      to      falsely     accuse        McAlister      of

involvement in crimes in order to reduce their own punishment.




                                          11
                                                                        No.    2014AP2561



    ¶21     Wendell McPherson ("McPherson") swore that in March

2006,    while     he     and     Waters        were     incarcerated         at    Dodge

Correctional Institution, Waters told McPherson that "he lied

and told the police that, David McCallister [sic] planned these

armed robberies, [and] also said he lied and told police that

David McCallister [sic] gave him the gun to use and [] drove the

get away car."       Waters also allegedly told McPherson that while

he was in Racine County Jail, he wrote Jefferson explaining what

to say to police.             The attestation of McPherson's affidavit

occurred    March       22,     2013,   seven         years     after    the       alleged

conversations with Waters took place.

    ¶22     Corey Prince ("Prince") swore that between January 4,

2006 and May 25, 2007, while he and Jefferson were in the Racine

County Jail, Jefferson told him that his co-defendant, Alphonso

"Bird"   Waters,     had      instructed        him    on     exactly   what       to    say

regarding    their      pending    charges.            Jefferson     allegedly          told

Prince that "the older man was never involved in any of the

robberies they committed[, and] 'Bird' instructed him to lie so

that they could receive a shorter sentence."                       Prince said that

in 2012 he met McAlister at the Waupun Correctional Institution.

Prince said he overheard McAlister talking about his case, and

how two men named "Nate" and "Bird" had framed him.                       Prince then

approached McAlister and told McAlister what he knew.                          Prince's

affidavit was attested to on August 8, 2012, between five and

one-half    and   six    years     after    the        alleged    conversation          with

Jefferson took place.


                                           12
                                                                       No.     2014AP2561



      ¶23    Antonio Shannon ("Shannon") swore that on December 28,

2004, he and a woman were sitting in his car across from Title

Loan.      They saw a hooded man running towards them, followed by

police     sirens.      Two    years     later,    Shannon     was    housed    in   the

Racine County Jail with Jefferson.                   Jefferson told Shannon of

his involvement in the Title Loan robbery.                         Shannon said that

Jefferson told him that he and a man named "Bird" were the only

two people involved in the robbery, but that he had an "out,"

which was a plea deal if he testified against "someone he said

was not involved in the robbery."                 The attestation was signed on

September 25, 2013, seven years after the alleged conversation

took place.

      ¶24    McAlister argued, pro se, that he was entitled to a

new trial as a matter of due process.                   The circuit court denied

McAlister's motion without an evidentiary hearing.                      The court of

appeals     affirmed.         We   granted      review,    appointed       counsel   for

McAlister, and now affirm the court of appeals.

                                   II.   DISCUSSION

                              A.   Standard of Review

      ¶25    The issue in this case is whether McAlister's Wis.

Stat. § 974.06 motion for a new trial is sufficient to entitle

him   to    an   evidentiary       hearing      based     on   a   newly     discovered

evidence claim.      To decide that question, "[f]irst, we determine

whether the motion on its face alleges sufficient facts that, if

true, would entitle the defendant to relief."                        State v. Allen,

2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433.                            We review


                                           13
                                                                          No.     2014AP2561



this   question       of   law,      independently,         based    on    the    specific

factual allegations made and the record as a whole.                               State v.

Bentley, 201 Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996).

       ¶26    Second, "if the motion does not raise facts sufficient

to entitle the movant to relief, or presents only conclusory

allegations, or if the record conclusively demonstrates that the

defendant is not entitled to relief," the decision to grant or

deny a hearing is within the circuit court's discretion.                               Allen,

274 Wis. 2d 568, ¶9.           "A circuit court erroneously exercises its

discretion when it applies an incorrect legal standard to newly-

discovered evidence."               State v. Plude, 2008 WI 58, ¶31, 310

Wis. 2d 28, 750 N.W.2d 42 (citing State v. McCallum, 208 Wis. 2d

463, 474, 561 N.W.2d 707 (1997)).

                              B.     General Principles

                               1.     Perjury concerns

       ¶27    The gravamen of McAlister's argument is that Waters

and    Jefferson      perjured        themselves       at    his     trial      when     they

testified     that    he   was      involved     in    armed     robberies.         At    the

outset,      we    emphasize     that     "the   crime      of   perjury        erodes    the

integrity of our judicial system."                    State v. Canon, 2001 WI 11,

¶9, 241 Wis. 2d 164, 622 N.W.2d 270.                        Its effect is profound

whether      the    perjury    is    in   trial       testimony     or    in    affidavits

submitted to the court.              This is so because "[i]t is fundamental

to the American system of jurisprudence that a witness testify

truthfully.          Without        truthful     testimony,         it    is    nigh     onto

impossible to achieve the primary goal of our judicial system,


                                            14
                                                                                     No.    2014AP2561



justice."           State       v.       Rivest,        106    Wis. 2d 406,           416-17,     316

N.W.2d 395 (1982); see also United States v. Mandujano, 425 U.S.

564, 576 (1976) ("Perjured testimony is an obvious and flagrant

affront       to     the       basic          concepts        of      judicial        proceedings.

Effective restraints against this type of egregious offense are

therefore imperative.").

       ¶28    However, whether to grant a hearing on a Wis. Stat.

§ 974.06      motion       for       a    new    trial        based    on   newly          discovered

evidence      that       claims          to     uncover        perjured         trial       testimony

requires careful examination of the movant's specific factual

allegations in the context of the record as a whole.                                       Zillmer v.

State,       39     Wis. 2d          607,       612-13,        159     N.W.2d        669      (1968).

Furthermore, in a § 974.06 motion, the burden shifts to the

defendant         who     must       show       the      need        for    a     postconviction

evidentiary hearing with a clearly articulated justification.

State v. Balliette, 2011 WI 79, ¶58, 336 Wis. 2d 358, 805 N.W.2d

334.

                               2.     Postconviction motions

       ¶29    "After the time for appeal or postconviction remedy

provided      in    Wis.       Stat.      § 974.02        has      expired,      a    prisoner     in

custody under sentence of a court may bring a motion to vacate,

set aside, or correct a sentence, utilizing the procedure set

out in Wis. Stat. 974.06."                       Id., ¶34 (citing State v. Allen,

2010   WI     89,       ¶22,    328       Wis. 2d       1,     786    N.W.2d      124).         Under

§ 974.06(1), a prisoner may make such a motion where he or she

is claiming that:              (1) his sentence was imposed in violation of


                                                   15
                                                                                No.    2014AP2561



the   constitution;       (2)       the       court       imposing       the    sentence         was

without jurisdiction; (3) the sentence was in excess of the

maximum; or (4) the sentence is otherwise subject to collateral

attack.     Id.

      ¶30    McAlister argues that his motion is a matter of due

process.      The      State,      however,          argues      that    claims       of    actual

innocence based on newly discovered evidence do not fall into

any of the permissible categories under Wis. Stat. § 974.06.

The State raises an interesting issue given the facts presented;

however, we do not decide this issue because the State did not

present it to the circuit court, to the court of appeals or in

its response to the petition for review.                               Accordingly, we deem

the issue forfeited.              See State v. Hendricks, 2018 WI 15, ¶32,

379 Wis. 2d 549, 906 N.W.2d 666.

                             3.    Newly discovered evidence

      ¶31    If    a   judgment         is    to     be    set    aside    based       on    newly

discovered        evidence,       the        defendant         must     provide       sufficient

evidence to establish that defendant's conviction is a manifest

injustice.          Plude,        310    Wis. 2d          28,     ¶32.         To     obtain      an

evidentiary hearing for such an allegation, a defendant must

show specific facts that are sufficient by clear and convincing

proof, when considered in the context of the record as a whole,

that:     (1) the evidence was discovered after conviction; (2) the

defendant was not negligent in seeking the evidence; (3) the

evidence    is     material       to    an     issue      in     the    case;    and       (4)   the

evidence is not merely cumulative.                        Avery, 345 Wis. 2d 407, ¶25;


                                                16
                                                                                     No.       2014AP2561



State v. Love, 2005 WI 116, ¶43, 284 Wis. 2d 111, 700 N.W.2d 62

(citing State v. Armstrong, 2005 WI 119, ¶161, 283 Wis. 2d 639,

700 N.W.2d 98); see also State v. Machner, 92 Wis. 2d 797, 805-

06, 285 N.W.2d 905 (1979); McCallum, 208 Wis. 2d at 473.

         ¶32       If    a   defendant           satisfies      those   four     criteria,          then

"the         circuit         court         must     determine         whether        a       reasonable

probability exists that a different result would be reached in a

trial."            Avery,       345    Wis.       2d    407,    ¶25   (citing     McCallum,          208

Wis. 2d        at       473).         "A    reasonable         probability      of       a    different

result exists if there is a reasonable probability that a jury,

looking at both the old and the new evidence, would have a

reasonable doubt as to the defendant's guilt."                                           Id.    (citing

Love, 284 Wis. 2d 111, ¶44).

         ¶33       A claim of newly discovered evidence4 that is based on

recantation also requires corroboration of the recantation with

additional newly discovered evidence.                               McCallum, 208 Wis. 2d at

476.          As    we       have     explained,         "[r]ecantations         are         inherently

unreliable."             Id. (citing Dunlavy v. Dairyland Mut. Ins. Co., 21

Wis. 2d         105,         114,      124        N.W.2d       73     (1963)).               Therefore,

corroboration requires newly discovered evidence that "(1) there

is   a       feasible        motive        for    the       initial   false     statement;          and,

(2) there are circumstantial guarantees of the trustworthiness

of the recantation."                   Id. at 478; see also Zillmer, 39 Wis. 2d

         4
       Although as we explain below, the evidence at issue does
not fully meet the definition of recantation evidence, a
corroboration analysis does provide a useful framework for
discussing the evidence presented.


                                                       17
                                                                                    No.     2014AP2561



at   616    (concluding        that      "a    new       trial    may    be     based       upon    an

admission        of     perjury     if      the         facts    in     the     affidavit          are

corroborated by other newly discovered evidence").

                                      C.      Application

                                      1.      Cumulative

      ¶34       It is clear that McAlister has satisfied the first

three requirements necessary to secure an evidentiary hearing

based      on   newly     discovered          evidence.5            However,         whether       the

affidavits satisfy the fourth requirement necessary to qualify

as   newly      discovered        evidence          is    unclear;      i.e.,        whether       the

affidavits        are    cumulative           of        trial    evidence       that        attacked

Jefferson's and Waters' credibility.

      ¶35       The    court   of     appeals           concluded     that     the        affidavits

submitted by McAlister were "merely an attempt to retry the

credibility of Waters and Jefferson, whose credibility was well-

aired      at    trial."            State          v.     McAlister,          No.     2014AP2561,

unpublished order (Wis. Ct. App. Aug. 10, 2016).

      ¶36       McAlister      asks    us      to       ignore    the   court        of     appeals'

decision        and     recognize        that       the     State       has     conceded         that

McAlister        met     the    first         four        requirements         of         his   newly



      5
       The first three requirements are: (1) the evidence
contained in the written affidavits was not discovered until
after McAlister's conviction; (2) McAlister was not negligent in
failing to seek this evidence; and (3) the affidavits are
material to whether McAlister participated in the armed
robberies.   State v. Avery, 2013 WI 13, ¶25, 345 Wis. 2d 407,
826 N.W.2d 60.


                                                   18
                                                                    No.     2014AP2561



discovered     evidence     claim.6        However,    whether     alleged       newly

discovered     evidence     is     cumulative     forms    part    of     our    legal

determination of whether a jury considering the old and new

evidence would have a reasonable doubt as to McAlister's guilt.

Avery, 345 Wis. 2d 407, ¶25.              We are not required to accept the

State's concession.          State v. Gomaz, 141 Wis. 2d 302, 307-08,

414 N.W.2d 626 (1987).           Accordingly, we do not.7

    ¶37       We have long held that newly discovered evidence that

is merely cumulative is not grounds for a new trial.                         Lock v.

State,   31    Wis.   2d   110,    116,    142    N.W.2d   183    (1966).        Newly

discovered evidence is cumulative where it tends to address "a

fact established by existing evidence."                State v. Thiel, 2003 WI

111, ¶78, 264 Wis. 2d 571, 665 N.W.2d 305 (citing Washington v.

Smith, 219 F.3d 620 (7th Cir. 2000)); see also Wilson v. Plank,

41 Wis. 94, 98 (1876) (stating that newly discovered evidence in

the form of witness testimony is merely cumulative where it

"tends to prove propositions of fact which were litigated at

trial").

    ¶38       Notwithstanding       the   above    principles      applicable       to

evaluating      newly      discovered      evidence,       defining       when    such


    6
       "The State concedes that McAlister has met the first four
requirements [for newly discovered evidence]." State's Br., 18
n.5.
    7
       We are always disappointed when counsel concedes a
difficult issue, as counsel for the State has done here.   The
sorting out of difficult legal questions is where we most need
counsel's thoughtful assistance.


                                          19
                                                                      No.    2014AP2561



evidence is cumulative is difficult because the definition of

cumulative evidence turns to some degree on how the trial issue

is described.        For further guidance, we look to federal courts,

who also evaluate when newly discovered evidence is cumulative.

See 33 Fed. R. Crim. P.

    ¶39     In regard to motions for a new trial based on newly

discovered evidence, the United States Supreme Court has long

concluded that newly discovered evidence that is cumulative will

not support a motion for a new trial.                    The Court has defined

cumulative evidence as, "additional evidence of the same general

character, to some fact or point, which was subject of proof

before."       Southard     v.    Russell,      57     U.S.    547,    554       (1853).

Recantation     testimony    is    often      termed    cumulative       because       it

"serves merely to impeach cumulative evidence rather than to

undermine      confidence    in    the     accuracy      of     the    conviction."

Dobbert v. Wainwright, 468 U.S. 1231, 1234 (1984).                          Where the

credibility     of    a   prosecution      witness      was     tested      at    trial,

evidence that again attacks the credibility of that witness is

cumulative.       United States v. Champion, 813 F.2d 1154, 1171

(11th   Cir.    1987)     (concluding      that      evidence      bearing       on    the

credibility of a witness impeached at trial is cumulative).

    ¶40     Here, McAlister submitted a 2012 affidavit from Prince

about statements he claims that Jefferson made to Prince prior

to May 25, 2007; a 2013 affidavit from Shannon in which Shannon

relates what he says that Jefferson told him in 2006; and a 2013

affidavit   from     McPherson    about       statements      he   claims        to   have


                                         20
                                                                            No.   2014AP2561



heard Waters make in 2006.               Each affiant swears that, at some

point     prior   to    McAlister's      January       2007    trial,       Jefferson    or

Waters admitted their plan to perjure themselves at trial to

secure a plea bargain that would provide less imprisonment for

crimes to which they pled.

      ¶41    Jefferson testified to the attempted armed robbery of

the     Credit    Union,       which    he     said     that     McAlister         planned.

Jefferson        said   that      he     and      McAlister's         niece,       Monique,

participated       in   that    attempted         robbery.       He    testified       that

McAlister drove him and Monique to the Credit Union in a four-

door gray Hyundai.             He said that McAlister instructed him to

carry a .22 semiautomatic handgun, which McAlister provided.

      ¶42    Jefferson also described the armed robbery of Title

Loan, in which he, Waters and Monique participated.                               Jefferson

said that McAlister again drove the participants to the scene of

the robbery in a gray Hyundai.                 Jefferson testified that Waters

carried the same gun that McAlister had provided to him for the

attempted robbery of the Credit Union.                        After the Title Loan

robbery, Jefferson described going to McAlister's house, which

was   a   two-family      house    where       McAlister       had    the    upper    floor

apartment.

      ¶43    Jefferson          testified            that      he        was        offered

"consideration"         from     the     district           attorney's       office     for

providing    truthful      testimony         about    the    robberies.           Jefferson

confirmed that he had been charged with an armed robbery and an

attempted armed robbery.               He said that if he pled to attempted


                                             21
                                                                      No.    2014AP2561



armed robbery and testified at trial, the armed robbery would be

read-in, the sentence enhancers would be dismissed and the State

would recommend less prison time.                  Jefferson further explained

that    before   he    had    a     plea   offer    he   had   relayed      the    same

information about the robberies and McAlister's involvement to

police.      He had asked them for consideration for his testimony

and the officers said they could not do that.

       ¶44   On cross-examination, Jefferson acknowledged that the

effect of his plea agreement was to reduce his exposure for

imprisonment from a potential maximum of 60 years to a potential

maximum of 20 years.               He also acknowledged that the district

attorney would recommend less prison time because he cooperated.

Jefferson said that he was on probation or extended supervision

when he committed the crimes, and that he cooperated with the

officers because he was concerned about his probation getting

revoked and he thought that they might help him.

       ¶45   Before the jury, both the prosecutor and McAlister's

attorney     repeatedly      probed       Jefferson's     credibility       and   fully

laid out the terms of the plea agreement that Jefferson believed

he had been offered for testifying against McAlister.                        The jury

had to consider whether Jefferson had testified truthfully, or

whether his testimony was in response to the State's offer of a

lower    sentence      on    his    convictions     if    he   testified      against

McAlister.

       ¶46   Both     Prince's      and    Shannon's     affidavits    assert     that

McAlister was not involved in armed robberies with Jefferson,


                                            22
                                                                              No.        2014AP2561



and that Jefferson framed him to get a plea bargain that would

yield a favorable sentencing recommendation.                         These allegations

are of the same general character, and to the same point for

which testimony was elicited at trial, i.e., whether Jefferson's

testimony that McAlister was involved in the armed robberies was

truthful or whether he testified falsely to get a favorable plea

bargain.

    ¶47       Moving     on    to    McPherson's        affidavit,           it    focuses      on

Waters' testimony and asserts that Waters lied about McAlister's

involvement        in   the    armed   robberies        to    get    a       favorable        plea

bargain.      As with Jefferson, Waters was questioned repeatedly

about   the    specifics        of   McAlister's        involvement,              from    getting

picked up in McAlister's gray Hyundai, to picking up Jefferson

and Monique, to providing the .22 semiautomatic gun that Waters

carried.

    ¶48       McAlister's        attorney        questioned         Waters          about      his

repeated lying to authorities on many occasions, in regard to

other matters as well as in regard to armed robberies.                                          He

attempted     to    show      that   Waters   did       not   have       a    character        for

truthfulness, but rather, lied whenever it suited his purposes.

He also elicited Waters' agreement that he talked to police

officers and was testifying against McAlister with the hope of

receiving a lesser sentence for the crimes to which he pled.

    ¶49       Waters       acknowledged          that        he     faced          substantial

imprisonment for the crimes to which he pled and that he hoped

his testimony at McAlister's trial would help him.                                 Once again,


                                            23
                                                                No.     2014AP2561



the statements attributed to Waters in McPherson's affidavit are

additional statements of the same general character and to the

same point that was subject to proof at trial:                       Waters is a

repetitive liar; his testimony that McAlister was involved in

the robbery is not believable.               The jury heard it all before.

The McPherson affidavit is cumulative because it was drawn to

the   same    point,   i.e.,    that    Waters'    testimony    was    given   in

exchange for a lesser sentence for his own crimes.                   This is the

same evidence that was presented to the jury.

      ¶50    Accordingly, given the testimony at trial, the three

affidavits were of the same general character and drawn to the

same point, Jefferson and Waters lied about McAlister to benefit

themselves; therefore, the affidavits are cumulative.                  McAlister

did not satisfy the fourth requirement necessary to qualify as

newly discovered evidence.

      ¶51    Our   conclusion    that     the     affidavits    of    McPherson,

Prince and Shannon are merely cumulative evidence of the same

general character and drawn to the same point for which proof

was provided at trial, i.e., that Jefferson and Waters lied to

benefit      themselves,   is   sufficient        to   affirm   the    court   of

appeals.      See Avery, 345 Wis. 2d 407, ¶25.           However, because the

second issue is argued as a recantation issue, which has been

uniquely framed and fully briefed, we continue.

                                2.     Corroboration

      ¶52    The affidavits of McPherson, Prince and Shannon, all

of which were attested to years after McAlister's trial, aver


                                        24
                                                                  No.   2014AP2561



that Jefferson and Waters said that they intended to lie at

McAlister's trial.8          Jefferson and Waters allegedly said that

they were going to implicate McAlister in robberies in which he

did not participate so that they could take advantage of plea

bargains    regarding       robberies     in    which   Jefferson    and    Waters

admitted participation.

    ¶53     In the usual presentation, a recantation occurs when a

witness    formally    or    publically        withdraws   or   renounces    prior

statements or testimony.            Black's Law Dictionary 1382 (9th ed.

2009).     However, it is argued here that the affidavits presented

after    McAlister's    trial       contain     recantation     testimony,    even

though the witnesses' statements allegedly were made before they

testified at trial.

    ¶54     The   evidence        here   differs   from    classic   recantation

testimony in the temporal sense described above and also because

there was no formal or public renunciation of Jefferson's or

Waters' testimony.          Instead, the statements allegedly were made

while Jefferson and Waters were incarcerated with one or more of

the affiants, who relayed the statements.                  There is no writing

signed by either Jefferson or Waters.

    ¶55     However,        the     affidavits      bear    a    similarity     to

recantation evidence in that they use what is claimed to be

Jefferson's and Waters' own words to allege they lied at trial.

Stated otherwise, as with classic recantation, the witnesses'

    8
       McPherson alleges to have spoken with Waters; Prince and
Shannon allege to have spoken with Jefferson.


                                          25
                                                                          No.        2014AP2561



statements are presented after the witnesses' trial testimony

and attack the veracity of the witnesses' own testimony.

    ¶56     When testimony that is classic recantation testimony

is presented as newly discovered evidence, we require that the

alleged recantation "be corroborated by other newly discovered

evidence."       McCallum, 208 Wis. 2d at 476.                     "Corroboration is

required     because      recantation       is        inherently       unreliable;          the

recanting      witness    is    admitting        he    or   she    lied        under    oath.

Either   the    original       testimony     or       the   recantation         is    false."

Gehin v. Wis. Grp. Ins. Bd., 2005 WI 16, ¶98, 278 Wis. 2d 111,

692 N.W.2d 572.        We conclude that no less should be required as

we assess the affidavits presented in the case before us.

    ¶57     As explained above, when newly discovered evidence is

based on recantation, the defendant must satisfy an additional

proof.       "[N]ewly      discovered        recantation          evidence           must   be

corroborated by other newly discovered evidence."                         McCallum, 208

Wis. 2d at 476.          "[T]he degree and extent of the corroboration

required    varies     from     case   to    case       based     on     its    individual

circumstances."          Id.    at   477;    see,       e.g.,     Rohl    v.     State,      64

Wis. 2d 443,     453,     219    N.W.2d 385       (1974)        (citing        Zillmer,      39

Wis. 2d at 616).

    ¶58     Corroboration        requires        newly      discovered         evidence      of

both:    (1) a feasible motive for the initial false statement;

and (2) circumstantial guarantees of the trustworthiness of the

recantation.      McCallum, 208 Wis. 2d at 477-78.




                                            26
                                                                     No.        2014AP2561



       ¶59   Here,     McAlister         has    failed       both    corroboration

requirements.        First, he has failed to present newly discovered

motives for Jefferson's and Waters' initial testimony, which he

claims is false.        Jefferson and Waters clearly wanted to obtain

plea bargains that would reduce their imprisonment time, but

this   motive   was     fully     explored     at    trial    and    is    not     newly

discovered.

       ¶60   Second, McAlister has not provided newly discovered

evidence to support circumstantial guarantees of trustworthiness

of the affiants or of the alleged statements.                   To the contrary,

the length of time that passed between McAlister's trial and the

submission of the affidavits cuts against concluding that the

affidavits are trustworthy.              Herrera v. Collins, 506 U.S. 390,

417 (1993) (concluding that "[n]o satisfactory explanation has

been   given    as    to   why    the    affiants      waited   until       the      11th

hour . . . to make their statements.").                  Here, McPherson, Prince

and Shannon waited between five and one-half and seven years

after Jefferson and Waters allegedly said that they were going

to commit perjury.         No newly discovered evidence supports this

delay.

       ¶61   Furthermore,        as     the    Seventh     Circuit        has     noted,

recantations made while in jail are "highly suspicious."                          United

States v. Walker, 25 F.3d 540, 549 (7th Cir. 1994).                                Here,

Jefferson and Waters were incarcerated when they allegedly said

they were going to frame McAlister.                 Also of interest, all three

affiants were incarcerated, and two, McPherson and Shannon, had


                                          27
                                                                                   No.       2014AP2561



been    sentenced         to      life     without       the     possibility            of     parole.

Accordingly, they could face no actual, additional incarceration

if found guilty of perjury for the affidavits they signed.                                         And

finally, none of the affidavits mentions Monique, McAlister's

niece,       and     Shannon's           affidavit       affirmatively             asserts        that

Jefferson told him that he and Waters were the only participants

in   the     robberies.            However,        trial        testimony      clearly           shows

Monique's active participation in the robberies.

       ¶62      McAlister         argues        that    despite     the       lack        of     newly

discovered         evidence        supporting           circumstantial         guarantees           of

trustworthiness,            the    three        affidavits       satisfy      an        alternative

means of showing corroboration.                        Specifically, McAlister argues

that the three affidavits corroborate each other because they

agree as to the basic facts:                     (1) McAlister was not involved in

the charged robberies; and (2) Jefferson and Waters nonetheless

sought       to     frame       him      for     those       robberies        to        reduce     the

consequences of their own misconduct.                             We are not persuaded.

The three partially-overlapping affidavits do not fulfill the

standards set forth in McCallum and all suffer from the same

lack of a newly discovered evidence of motive for Jefferson and

Waters     to      lie,    as     well     as    the     same    deficits          in    regard     to

trustworthiness.

       ¶63      Accordingly, we conclude that the alleged statements

of     Jefferson          and     Waters         that     attempt        to        withdraw        the

truthfulness of their testimony at McAlister's trial have not

been    corroborated.              Therefore,          the     circuit    court          had     sound


                                                  28
                                                                              No.     2014AP2561



reasons      to    exercise       its     discretion       and    to    deny      McAlister's

motion for a new trial without an evidentiary hearing.                                  Avery,

345 Wis. 2d 407, ¶22.

                                    III.     CONCLUSION

       ¶64    We conclude that the affidavits were merely cumulative

evidence      because     they      were     additional          evidence      of    the    same

general      character       as    was     subject      to      proof   at    trial,       i.e.,

Jefferson      and     Waters      lied    when    they      implicated        McAlister       in

order to achieve favorable plea bargains for themselves.                                      We

also conclude that the affidavits were insufficient to require

the circuit court to hold a hearing on McAlister's motion for a

new    trial       because        they    were     supported        by       neither       newly

discovered corroborating evidence or circumstantial guarantees

of    trustworthiness.             Therefore,        the     circuit      court       did     not

erroneously exercise its discretion when it denied McAlister's

motion       for   a    new       trial     without        an     evidentiary         hearing.

Accordingly, we affirm the court of appeals' affirmance of the

circuit court.

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

affirmed.




                                              29
                                                                       No.    2014AP2561.dk


      ¶65    DANIEL KELLY, J.             (concurring).          I join the court's

opinion except for its conclusion that the evidence offered by

Mr.   McAlister      is        cumulative.        I    agree     with        the   court's

observation that "defining when such evidence is cumulative is

difficult," majority op., ¶38, but a fairly straightforward test

can establish that the evidence here cannot be so characterized.

      ¶66    The point of evidence is to give the trier of fact the

raw material upon which to exercise his judgment in deciding

whether a particular fact is true.                     We presume he will act in

good faith, and will conclude that a fact is true if presented

with sufficient credible evidence.                It's easy enough to say that

anything beyond this quantum is cumulative.                      The tricky part is

determining whether new evidence is cumulative when the fact

finder has already determined the old evidence was insufficient

to establish the contested fact.

      ¶67    There       is,    however,     a    test    that       can     unmistakably

identify     new    evidence      as    non-cumulative,        and     we    should      have

applied it here.           It is this:           If the trier of fact were to
believe     the    new    evidence,      would    he    necessarily         conclude     the

disputed     fact    has       been    established?       If     so,       then    the   new

evidence cannot possibly be cumulative because it is capable of

producing a result the old evidence did not.                      I suspect it will

be a rare piece of information that will satisfy this criterion,

in which case other "cumulativeness" tests may be employed.                               But

evidence that does meet this standard definitively answers the

cumulativeness question.



                                             1
                                                                      No.    2014AP2561.dk


       ¶68    Mr. McAlister has presented such information here.                        At

trial, he introduced evidence suggesting that Messrs. Jefferson

and Waters had a strong motivation to falsely accuse him of

involvement in the crimes.             The jurors could have believed this

evidence——that is, they could believe the witnesses had good

reason to lie——and nonetheless conclude that, upon the event,

they told the truth.            The result of the trial suggests this is,

in fact, what they did.

       ¶69    Mr.       McAlister's   new     evidence   is     not     of     the   same

nature.       The       affidavits    he    now   presents     claim    that     Messrs.

Jefferson and Waters admitted they made up a story about Mr.

McAlister's involvement in the crimes.                   If the jurors were to

credit this new evidence, they could not simultaneously believe

that Messrs. Jefferson and Waters' trial testimony was truthful.

That is to say, the new evidence is capable of producing a

result    the    old      evidence    did    not.    Therefore,        it     cannot    be

cumulative.

       ¶70    Nevertheless, I agree with the court's conclusion that
this   evidence         requires   corroboration      before     Mr.    McAlister       is

entitled to an evidentiary hearing on his request for a new

trial.       This new information is in the nature of "recantation"

evidence (for which we have always required corroboration), even

though it presents as a pre-existing decision to commit perjury

rather    than      a    post   hoc   confession.        The    justification          for

requiring corroboration is the same——the inherent unreliability

of what often looks like a grown-up version of Kipling's "just-
so" stories.

                                             2
                                                                     No.   2014AP2561.dk


      ¶71    There is one other aspect of the court's opinion that

bears comment.           The court took the State to task for conceding

that Mr. McAlister's new evidence is not cumulative:                             "We are

always disappointed when counsel concedes a difficult issue, as

counsel     for    the    State    has   done   here."        Id.,    ¶36    n.7.       I

disagree.

      ¶72    One    of     the     distinguishing      characteristics           of    an

accomplished and wise advocate is knowing when to concede a

point.      And, having come to the realization that a previously-

defended position is not actually defensible, it takes courage

and humility to say so.            This is the type of candor we should be

encouraging,        not     condemning.          Just    because           the     court

(mistakenly, in my view) disagrees with the State's position

does not mean the State conceded for some reason other than its

professional, good faith assessment of the issue's merits.                            And

yet   the    court's      rebuke    implies     that   very    thing.         However,

institutional litigators (like the State) should make certain

that a concession truly is the result of a good faith assessment
of the issue's merits, and not an attempt to steer the court

away from issues it would prefer not to address.

      ¶73    I respectfully concur.




                                          3
                                                                            No.      2014AP2561-CR.awb


       ¶74     ANN WALSH BRADLEY, J.                      (dissenting).               A jury found

David    McAlister         guilty       of    several          crimes.          Now,     with    sworn

affidavits in hand, he asserts that he has newly discovered

evidence that his accomplices planned in advance to lie on the

stand during his trial to falsely implicate him.                                       The majority

denies him an evidentiary hearing on his claim that he "was not,

in     fact,        involved       in        the        offenses          for     which     he     was

convicted . . . ."

       ¶75     The    issue      in     this       case    is       not    whether      McAlister's

conviction should be vacated, or whether he should receive a new

trial.         It    is     merely       whether          he     should         be    afforded     the

opportunity         for    an    evidentiary            hearing       on    his      postconviction

motion.

       ¶76     Our system of law has always operated under the theory

that it is better for ten guilty people to go free than one

innocent to languish in prison.                           See State v. Dubose, 2005 WI

126,    ¶51    n.1,       285    Wis. 2d 143,             699       N.W.2d 582        (Butler,     J.,

concurring); Furman v. Georgia, 408 U.S. 238, 367 n.158 (1972)
(Marshall, J., concurring) (quoting William O. Douglas, Foreward

to Jerome Frank & Barbara Frank, Not Guilty 11-12 (1957)); see

also    In    re     Winship,      397       U.S.       358,    372       (1970)      (Harlan,     J.,

concurring).              Yet,    the        majority          opinion      strays        from    this

premise,       favoring         finality.           What       if    McAlister's         claims    are

true?     What if his witnesses are credible?                               We will never know

because the majority has short-circuited the process and there

will be no hearing.



                                                    1
                                                                    No.    2014AP2561-CR.awb


      ¶77   Not     only       does     the       majority    misstep        by    favoring

finality over a search for the truth, it also stumbles in three

significant       ways.        First,    by       refusing    to    accept        the    facts

alleged as true for purposes of determining whether McAlister is

entitled to an evidentiary hearing, the majority deviates from

our established case law.               See State v. Balliette, 2011 WI 79,

¶18, 336 Wis. 2d 358, 805 N.W.2d 334; State v. Love, 2005 WI

116, ¶¶54-55, 284 Wis. 2d 111, 700 N.W.2d 62.                             Second, it errs

in   determining     that      the    new     evidence       is    cumulative       of    that

already presented.         Third, it attempts to fit a square peg into

a round hole by creating a false equivalency between recantation

evidence    and    the    alleged       newly      discovered       evidence       at    issue

here.   I address each in turn.

                                              I

      ¶78   This case revolves around McAlister's claim that his

accomplices       lied    on   the    stand       during     his    trial.         With    his

postconviction motion, McAlister presented to the circuit court

the affidavits of three prison inmates——Wendell McPherson, Corey
Prince, and Antonio Shannon.

      ¶79   Each of the three inmates averred that he had contact

with one of McAlister's accomplices, Alphonso Waters or Nathan

Jefferson, prior to McAlister's trial.                       Most significantly, the

affidavits indicate that Waters and Jefferson stated that they

planned to lie in an effort to implicate McAlister.




                                              2
                                                                             No.       2014AP2561-CR.awb


                                                   A

      ¶80      The    majority            errs    first         by    failing          to     adhere      to

precedent.           It    denies         McAlister         a    hearing         when       the     facts,

accepted as true, indicate that McAlister is entitled to relief.

      ¶81      The    question            before       us       is    whether           McAlister         is

entitled to an evidentiary hearing, giving him the opportunity

to    establish       that       a    reasonable            probability            exists         that     a

different result would be reached at trial.                                      At this stage of

the proceedings, we must accept the facts alleged in McAlister's

motion    as    true.        See      Love,       284       Wis. 2d 111,           ¶54.           For    our

purposes,       it    is     not          relevant          whether         the        alleged      newly

discovered evidence is admissible or whether it is credible.

Id.

      ¶82      A court is not to base its decision solely on the

credibility of the newly discovered evidence, unless it finds

the new evidence to be incredible as a matter of law.                                          State v.

Avery,      2013     WI     13,       ¶25,       345     Wis. 2d 407,              826        N.W.2d 60.

Testimony       is    incredible            as     a    matter         of        law     or    patently
incredible      if    it    is       in    conflict         with      the    uniform          course      of

nature or with fully established or conceded facts.                                            State v.

Vollbrecht,        2012     WI       App    90,    ¶28       n.18,         344    Wis. 2d 69,            820

N.W.2d 443 (citation omitted).

      ¶83      Love, 284 Wis. 2d 111, presents facts very similar to

those    here.        In    Love,         the    defendant           was    convicted          of    armed

robbery and subsequently filed a motion for a new trial based on

newly discovered evidence.                       Id., ¶¶19, 21.              "Love included an
affidavit      from       Christopher            Hawley,        who    claimed          to     have      met

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another inmate, Floyd Lindell Smith, Jr., while at Green Bay

Correctional Institution.          Hawley averred that Smith admitted to

robbing [the victim] and shared in-depth details regarding the

incident."      Id.,     ¶21.   The     circuit    court      denied    the    motion

without an evidentiary hearing.              Id., ¶23.

       ¶84   This court remanded for an evidentiary hearing.                     Id.,

¶56.    Like this case, Love turned on the reasonable probability

prong of the newly discovered evidence test.                  Id., ¶¶52-53.       The

Love    court    accepted       the     facts      as    alleged       in      Love's

postconviction motion as true for purposes of its analysis:

       Love's postconviction motion indicates that Hawley
       would testify that Love was not the assailant. Hawley
       will testify that Smith (or if Love can get Smith to
       testify, then it would be Smith's testimony that he)
       committed this crime.      Whether that testimony is
       ultimately admissible is not relevant for our purposes
       here.    Whether that testimony is credible is not
       relevant for our purposes here.    It must be accepted
       as true.
Id., ¶54 (emphasis added).

       ¶85   Accepting    Love's      alleged    facts   as    true,     the    court

determined that Love was entitled to an evidentiary hearing.                       It

explained:

       If it is true, then the evidence against Love amounts
       to [the victim's] identification against another's
       assertion that Smith committed the crime.        Thus,
       viewing the new evidence, particularly in light of the
       identification discrepancies, there is a reasonable
       probability that a jury, looking at both, would have a
       reasonable doubt as to Love's guilt.
Id., ¶55.

       ¶86   The only material factual difference between this case
and Love is the timing of the alleged statements——the affidavits

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here relate to an admission of future perjury, while in Love the

affidavit related to an alleged admission to a past crime.                           In

both cases, the affiant was a fellow inmate.                          As in Love, I

would accept the alleged facts as true.

      ¶87   In his postconviction motion, McAlister alleged that

"[l]ong after McAlister's direct appeal and after he filed his

petition    for   writ      of    habeas     corpus,     he    learned     that   Corey

Prince, Wendell McPherson and Antonio Shannon had information

confirming that McAlister was not involved in any robberies and

that the State's two key witnesses against him, Alphonso Waters

and Nathan Jefferson had conspired to frame McAlister in order

to obtain relief from their own sentences."

      ¶88   Instead      of      accepting       McAlister's     alleged    facts     as

true, the circuit court here stated orally that the affidavits

are   "inherently     not     believable."          In   its    written     order,    it

likewise concluded that they "have limited credibility."                             The

circuit court thus went well beyond its role at this stage of

proceedings, engaging in a personal, subjective assessment of
witness credibility rather than accepting the facts presented as

true.

      ¶89   The majority turns a blind eye to the circuit court's

error and again delves into the credibility of the affiants'

statements.       In     its       misguided       search      for    "circumstantial

guarantees of trustworthiness," the majority laments that "the

length of time that passed between McAlister's trial and the

submission of the affidavits cuts against concluding that the
affidavits are trustworthy."                 Majority op., ¶60.            It further

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decries the "highly suspicious" nature of jailhouse statements

made by those serving life sentences.                     Id., ¶61.

       ¶90       This inquiry goes beyond the court's role based on the

procedural        posture      with    which       we    are    presented.            Properly

leaving      a    credibility        determination         for    a     later     date,      the

court's only determination here should be whether the McPherson,

Prince, and Shannon affidavits are incredible as a matter of

law.

       ¶91       I conclude that they are not.                  The statements are not

so outlandish as to be in conflict with the "uniform course of

nature."         See Vollbrecht, 344 Wis. 2d 69, ¶28 n.18.                        Without an

evidentiary hearing we simply do not know if the affidavits are

credible.         Accordingly, I would accept the alleged facts as true

and determine that McAlister should be afforded the opportunity

for an evidentiary hearing.

                                               B

       ¶92       The majority errs next by determining that the newly

discovered         evidence     is     merely       cumulative         of      that   already
presented.         It reaches this conclusion because "[t]he jury heard

it all before."          Majority op., ¶49.              According to the majority,

the alleged newly discovered evidence is "of the same general

character        and   drawn    to    the   same        point    for     which     proof     was

provided     at     trial,     i.e.,    that       Jefferson      and        Waters   lied   to

benefit themselves[.]"            Id., ¶51.

       ¶93       What was the "character" of the evidence offered?                           At

trial, both Jefferson and Waters were cross examined regarding
deals they made with the district attorney.                            See majority op.,

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¶¶9-11,    16.      In   each    case,    the       district    attorney      agreed   to

recommend    less    prison      time    in       exchange   for    their    testimony.

Id., ¶¶11, 16.       This evidence could certainly offer a motive for

Waters and Jefferson to lie and implicate McAlister, but it says

nothing about whether Waters and Jefferson in fact conspired to

frame McAlister.

    ¶94     In contrast, the affidavits of Prince, McPherson, and

Shannon,     if   true,    offer        direct       evidence      that     Waters     and

Jefferson conspired to lie.1             Direct evidence that Jefferson and

Waters planned to lie is of a different general character than

the circumstantial evidence of their motive to lie that was

presented at trial.             As McAlister aptly states in his brief,

"evidence that Jefferson and Waters in fact conspired to frame

McAlister is not cumulative to evidence that they had a motive

to do so."

                                              C

    ¶95     The majority's third error lies in its attempt to fit

a square peg into a round hole by creating a false equivalency
between recantation evidence and the alleged newly discovered

evidence in this case.

    ¶96     Recantations        are     inherently       unreliable.           State    v.

McCallum, 208 Wis. 2d 463, 476, 561 N.W.2d 707 (1997) (citing

    1
       That there was no direct evidence of a conspiracy
presented at trial was repeatedly highlighted by the prosecutor
during closing argument.     The State's closing argument was
peppered with statements such as, "[t]here's no evidence they
ever met and talked about it" and "there is no evidence they
ever even talked." If true, the McPherson, Prince, and Shannon
affidavits do provide such evidence.


                                              7
                                                                       No.    2014AP2561-CR.awb


Dunlavy v. Dairyland Mut. Ins. Co., 21 Wis. 2d 105, 114, 124

N.W.2d 73 (1963)).                "The recanting witness is admitting that he

or she has lied under oath.                  Either the original sworn testimony

or the sworn recantation testimony is false."                                  McCallum, 208

Wis. 2d at 476.              This is the reason behind the corroboration

requirement for recantation testimony.                         Gehin v. Wis. Group Ins.

Bd., 2005 WI 16, ¶98, 278 Wis. 2d 111, 692 N.W.2d 572.

       ¶97    Contrary to the majority's assertion, the evidence at

issue here is not akin to recantation evidence.                                     The alleged

"recantation"          is    not    the     product      of     the   witnesses           who   are

alleged      to    have      lied     on    the       stand,    Jefferson          and    Waters.

Rather,      the   alleged         "recantation"         statements          are    from    three

individuals who did not previously testify in this case.                                         By

definition,        a        recantation       must       consist        of         the     witness

withdrawing or renouncing prior testimony.                             See McCallum, 208

Wis. 2d at 476.             Neither Waters nor Jefferson has submitted an

affidavit recanting his trial testimony.

       ¶98    Consequently, the logic of the corroboration rule does
not hold here.          As we explained in McCallum, in the recantation

situation "[t]he recanting witness is admitting that he or she

has lied under oath.               Either the original sworn testimony or the

sworn recantation testimony is false."                         McCallum, 208 Wis. 2d at

467.    Here, the alleged "recantations" of Jefferson and Waters

were   not    made      under       oath.     There      is     no    sworn    "recantation"

testimony      from         the    "recanters."           The    "either/or"             situation

described in McCallum is not present here because Jefferson and



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Waters     each          made     only       one    statement        under       oath——his       trial

testimony.

         ¶99    The statements at issue are better characterized as

prior inconsistent statements rather than a "recantation."                                            A

prior inconsistent statement is not "inherently unreliable" as

is   a    recantation.                  To    the     contrary,          a    prior      inconsistent

statement           is       reliable        enough       to    constitute           a     non-hearsay

statement.               See    Wis.     Stat.      § 908.01(4)(a)1.                 The    majority's

attempt        to    force        the    evidence         here      within      the      category    of

"recantation" evidence is simply unconvincing.

                                                     II

         ¶100 If         a     Wis.    Stat.       § 974.06      motion        raises       sufficient

facts that, if true, show that the defendant is entitled to

relief,        the       circuit      court        must   hold      an       evidentiary      hearing.

Balliette, 336 Wis. 2d 358, ¶18.                               The sworn affidavits assert

that witnesses lied and McAlister maintains he was not involved

in the offense for which he was convicted.                                    Accepting the facts

as   alleged         in        McAlister's         motion      as   true,       I     conclude    that
McAlister has shown he is entitled to relief.                                   I therefore would

reverse the court of appeals and remand to the circuit court for

an evidentiary hearing.

         ¶101 Accordingly, I respectfully dissent.

         ¶102 I      am        authorized      to     state      that        Justice       SHIRLEY   S.

ABRAHAMSON joins this dissent.




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