2023 WI 3
SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP2119-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Larry L. Jackson,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 399 Wis. 2d 841,
967 N.W.2d 311
(2021 – unpublished)
OPINION FILED: January 20, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 30, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jeffrey A. Wagner
JUSTICES:
DALLET, J., delivered the majority opinion for a unanimous
Court.
NOT PARTICIPATING:
ROGGENSACK, J., did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Frederick A. Bechtold and Frederick A. Bechtold
Attorney at Law, LLC, Minnesota. There was an oral argument by
Frederick A. Bechtold.
For the plaintiff-respondent, there was a brief filed by
Eric M. Muellenbach, assistant attorney general, with whom on
the brief was Joshua L. Kaul, attorney general. There was an
oral argument by Eric M. Muellenbach, assistant attorney
general.
An amicus curiae brief was filed by Melinda A. Swartz and
the Law Office of Melinda Swartz, LLC, Milwaukee, on behalf of
the Wisconsin Association of criminal Defense Lawyers.
2
2023 WI 3
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP2119-CR
(L.C. No. 2015CF004698)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JAN 20, 2023
Larry L. Jackson, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
DALLET, J., delivered the majority opinion for a unanimous
Court.
ROGGENSACK, J., did not participate.
REVIEW of a decision of the Court of Appeals. Affirmed in
part, reversed in part, and cause remanded.
¶1 REBECCA FRANK DALLET, J. A defendant is entitled to
a Machner1 hearing if his postconviction motion sufficiently
alleges ineffective assistance of counsel and the record fails
1State v. Machner, 92 Wis. 2d 797,
285 N.W.2d 905 (Ct. App.
1979). A Machner hearing is "[t]he evidentiary hearing to
evaluate counsel's effectiveness, which includes counsel's
testimony to explain his or her handling of the case." State v.
Balliette,
2011 WI 79, ¶31,
336 Wis. 2d 358,
805 N.W.2d 334.
No. 2020AP2119-CR
to conclusively demonstrate that he is not entitled to relief.
See State v. Ruffin, 2022 WI 34, ¶37,
401 Wis. 2d 619,
974
N.W.2d 432. Although one of Larry Jackson's three
postconviction claims met both of these requirements, the
circuit court2 denied his motion without a hearing and the court
of appeals affirmed. We affirm in part, reverse in part, and
remand to the circuit court with instructions to hold a Machner
hearing regarding that claim.
I
¶2 In 2015, Richard King was shot and killed in front of
a duplex on North 60th Street in Milwaukee. Jackson was
subsequently charged with first-degree intentional homicide and
possession of a firearm by a felon.
¶3 King and his wife, C.W., lived in the duplex along
with their upstairs neighbors Gerald Tucker and his wife,
Tiffany. The two couples did not get along, and on the day of
the homicide, King was upset with Gerald over some broken glass
he found near his car. King and his friend Andre Dorsey
confronted Gerald and Tiffany with a gun. The tension was
momentarily defused, however, when the Tuckers' kids came
outside. According to Gerald, after getting inside, Tiffany
called their friend Jackson and asked him to come over. Later
on, King confronted Gerald again after he stepped outside to
smoke a cigarette. Dorsey, who was now standing off to the
The Honorable Jeffrey A. Wagner of the Milwaukee County
2
Circuit Court presided.
2
No. 2020AP2119-CR
side, saw a man with a medium complexion who he later identified
as Jackson walk up to Gerald. The two whispered to each other
and then entered the front of the duplex. Moments later, Dorsey
heard gunshots and saw King fall to the ground. He then saw a
hand with a light complexion pointing a gun through a crack in
the doorway fire two shots in his direction. After the shooting
stopped, C.W. saw a young African American man with a dark
complexion run past her ground floor window. She was never able
to positively identify him.
¶4 Gerald was arrested as a suspect in the homicide.
While he was in custody, he told police that he did not know who
shot King. Months later, he identified Jackson as the shooter
after learning that police had recovered the murder weapon.
That weapon, a .40 caliber Smith and Wesson pistol, belonged to
Jackson's friend, Joe Brown, and was matched by ballistics
experts to a bullet and several casings found at the scene. At
trial, Brown testified that he loaned the gun to Jackson on the
day of the shooting. Jackson returned thirty to forty-five
minutes later with rubber gloves and the gun, which had some
bullets missing. The two men boiled the gloves to destroy any
evidence. After changing his clothes, Jackson left. The two
men met up the next day and Jackson allegedly confessed to being
involved in a shooting, although he did not mention King or the
Tuckers by name. Brown's friend, Anthony Boone, testified that
he had once seen Jackson at Brown's house standing outside of
the bathroom with what appeared to be a bag of clothes, but gave
conflicting accounts as to when that occurred.
3
No. 2020AP2119-CR
¶5 Jackson's defense at trial focused on his alleged
alibi: that he was at his mother's house on the evening of the
homicide. The only defense witness was Jackson's mother, Carol.
She testified that she remembered the night well, and that she
knew Jackson stayed at her house all night because her alarm
system would have gone off if any of the doors to the house were
opened.
¶6 The jury found Jackson guilty of both charges, and he
filed a postconviction motion alleging ineffective assistance of
counsel. In it, Jackson contended that his trial counsel was
ineffective for failing to contact two potential alibi witnesses
or call them at trial. Those two witnesses, Jackson's ex-
girlfriend, JaNikka Marsh, and his sister, Crystal Jackson,
submitted affidavits stating that they were with Jackson the
evening of the homicide, that they were not contacted by trial
counsel, and that they would have testified at trial if they
were called to do so. We discuss Marsh's and Crystal's specific
factual claims in further detail below. Jackson's
postconviction motion also contended that trial counsel was
ineffective in two additional respects: for failing to interview
his mother or prepare her to speak to detectives or testify, and
for incorrectly advising Jackson that the law required him to
testify first.
¶7 The circuit court denied Jackson's postconviction
motion without a hearing. Regarding trial counsel's failure to
contact Marsh or Crystal, the court discounted their proffered
testimony due to their preexisting relationship with Jackson and
4
No. 2020AP2119-CR
concluded that he had not sufficiently alleged deficient
performance and that the record conclusively demonstrated that
he was not prejudiced. See Strickland v. Washington, 466 U.S.
668, 687 (1984) (setting forth the two requirements for an
ineffective assistance of counsel claim, deficient performance
and prejudice). Additionally, the court held that Jackson's
claim that counsel did not interview Carol or prepare her to
speak to detectives or testify was conclusory, and that the
record conclusively demonstrated Jackson was not entitled to
relief on his claim that counsel incorrectly advised him that
the law required him to testify first. The court of appeals
affirmed. See generally State v. Jackson, 2020AP2119-CR,
unpublished slip op., ¶¶23-29 (Wis. Ct. App. Oct. 12, 2021).
II
¶8 When we review a decision denying a postconviction
motion without a Machner hearing, we evaluate two issues de
novo. See Ruffin, 401 Wis. 2d 619, ¶¶27-28. First, we assess
whether the motion on its face alleges sufficient material and
non-conclusory facts that, if true, would entitle the defendant
to relief. See id., ¶27. Second, we determine whether the
record conclusively demonstrates that the defendant is not
entitled to relief. See id., ¶28. If the defendant's motion
alleges sufficient and non-conclusory facts which would entitle
the defendant to relief and the record does not conclusively
establish otherwise, then the circuit court must hold a Machner
hearing. See id., ¶¶37-38; see also State v. Sholar,
2018 WI
5
No. 2020AP2119-CR
53, ¶50, 381 Wis. 2d 560,
912 N.W.2d 89 (citing State v. Allen,
2004 WI 106, ¶14,
274 Wis. 2d 568,
682 N.W.2d 433). Conversely,
"[i]f the motion does not raise facts sufficient to entitle the
defendant to relief, or if it presents only conclusory
allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief, the circuit court has the
discretion to grant or deny a hearing." Ruffin,
401
Wis. 2d 619, ¶28 (citing Allen,
274 Wis. 2d 568, ¶9).
III
¶9 Jackson's postconviction motion alleges that his trial
counsel was ineffective for: (1) failing to investigate or call
alibi witnesses; (2) not interviewing Carol or preparing her to
speak to detectives or testify; and (3) incorrectly advising him
that the law required him to testify first. Before analyzing
whether Jackson is entitled to a Machner hearing on any of these
claims, we review some general principles applicable to claims
of ineffective assistance of counsel and Machner hearings.
A
¶10 A claim of ineffective assistance of counsel has two
prongs: deficient performance and prejudice. See Strickland,
466 U.S. at 687. "To demonstrate deficient performance, a
defendant must show that counsel's representation fell below an
objective standard of reasonableness considering all the
circumstances." State v. Dalton,
2018 WI 85, ¶34,
383 Wis. 2d
147,
914 N.W.2d 120. In evaluating counsel's performance, we
6
No. 2020AP2119-CR
are highly deferential to counsel's strategic decisions, but
counsel nevertheless "has a duty to reasonably investigate or to
make a reasonable decision that renders particular
investigations unnecessary." Id., ¶¶34-35 (citing State v.
Carter,
2010 WI 40, ¶23,
324 Wis. 2d 640,
782 N.W.2d 695). As
for the prejudice prong, a defendant must show "a reasonable
probability that, but for counsel's error, the result of the
proceeding would have been different." State v. Guerard,
2004
WI 85, ¶43,
273 Wis. 2d 250,
682 N.W.2d 12 (citing Strickland,
466 U.S. at 694). A "reasonable probability" in this context
means "a probability sufficient to undermine confidence in the
outcome."
Id.
¶11 With these general principles in mind, to determine
whether Jackson is entitled to a Machner hearing, we must decide
two questions. First, does Jackson's motion allege sufficient
material and non-conclusory facts that, if true, would entitle
him to relief? See Ruffin, 401 Wis. 2d 619, ¶27. Because
Jackson's motion alleges ineffective assistance of counsel, that
means he must allege facts that, if true, would satisfy both the
deficient performance and prejudice prongs of Strickland. See
Sholar,
381 Wis. 2d 560, ¶50. If we answer that first question
in Jackson's favor, we move on to the second and ask——regardless
of the sufficiency of his allegations——whether the record
conclusively establishes that Jackson is not entitled to relief.
See
id. In other words, does the record conclusively
demonstrate either that Jackson's counsel's performance was not
deficient or that he was not prejudiced? See id.; see also
7
No. 2020AP2119-CR
Ruffin, 401 Wis. 2d 619, ¶47. Jackson is entitled to a Machner
hearing only if we answer both of these questions in his favor.
B
¶12 We begin with Jackson's claim regarding two alibi
witnesses, his then-girlfriend Marsh and his sister Crystal.
According to Jackson's motion and the attached affidavits, he
gave their names to his attorney but neither were contacted.
Had they been contacted, both Marsh and Crystal stated they
would have testified at trial that Jackson was at his mother's
house at the time of the homicide.
¶13 Marsh's affidavit states that on the day of the
homicide, Jackson got off work at 4:30 p.m. Jackson and Marsh
picked up her children from daycare before 5:00 p.m. and got
dinner. They arrived at Jackson's mother's home sometime after
5:00 p.m. After they arrived, Jackson took a shower while
Marsh, who was not feeling well, laid down for a nap. After his
shower, Jackson joined Marsh in bed. Marsh slept until 9:30
p.m. when Jackson woke up and the two scrambled to get Marsh to
her job in time for the night shift.
¶14 Crystal's affidavit corroborates parts of this account
and provides additional details. According to her affidavit,
she was watching television at her mother's house on the evening
of the murder. When Marsh and Jackson arrived, Marsh was not
feeling well and she and Jackson went to his room so she could
nap. According to Crystal, the couple stayed in the room until
Jackson drove Marsh to work. Both Marsh's and Crystal's
8
No. 2020AP2119-CR
affidavits place Jackson at his mother's home at the time King
was killed.
¶15 We have little trouble concluding that, if these facts
are true, Jackson's motion sufficiently alleges a claim of
ineffective assistance of counsel. Indeed, the State does not
dispute that counsel's failure to contact these witnesses or
potentially call them at trial would constitute deficient
performance. See also State v. Jenkins, 2014 WI 59, ¶41,
355
Wis. 2d 180,
848 N.W.2d 786 ("[I]n 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." (quoting
Toliver v. Pollard, 688 F.3d 853, 862 (7th Cir. 2012)) (internal
quotation marks omitted)). And Jackson's motion sufficiently
alleges prejudice as well because it explains that counsel
failed to investigate Marsh and Crystal at all, let alone call
them at trial. See Allen,
274 Wis. 2d 568, ¶¶23-24 (explaining
that a post-conviction motion contains sufficient facts when it
alleges "the name of the witness (who), the reason the witness
is important (why, how), and acts that can be proven (what,
where, when)."); see also Washington v. Smith,
219 F.3d 620,
630-35 (7th Cir. 2000) (concluding that counsel's failure to
contact or produce possible alibi witnesses at trial was
constitutionally deficient performance and prejudicial).
¶16 Rather than focus on the sufficiency of Jackson's
allegations, the State argues that the record conclusively
establishes that Jackson was not prejudiced for two reasons.
9
No. 2020AP2119-CR
First, according to the State, weaknesses in Marsh's and
Crystal's proposed testimony and inconsistencies with Jackson's
mother's testimony mean that "neither [witness] could have
provided Jackson with an alibi." And second, "given the
overwhelming evidence against Jackson, there is no reasonable
probability that the result of the proceedings would have been
different."
¶17 As to the weaknesses and inconsistencies in testimony,
the State contends that because Marsh was asleep at the time of
the homicide, "she lacked personal knowledge of where Jackson
was at the time [King] was shot." The State also points out
that Marsh's and Crystal's stories differ from Carol's testimony
in two respects. First, Marsh says she laid down for a nap
before 6:00 p.m., but Carol testified that she had a serious
argument with Marsh around 6:30 p.m. Second, Crystal says that
Marsh and Jackson stayed in their room the whole evening,
whereas Carol testified that Jackson came in and out of the
bedroom several times.
¶18 The problem with these arguments is that, in assessing
whether a defendant is entitled to a Machner hearing, we must
assume that the factual claims made in support of the motion are
true. See State v. Love, 2005 WI 116, ¶37, n.15,
284
Wis. 2d 111,
700 N.W.2d 62. That Marsh was asleep at the
precise time of the murder or that Crystal's account may have
conflicted with Carol's trial testimony might be reasons for a
jury to discount their testimony. But we cannot know, nor
should we try to predict, how a jury might have weighed Marsh's
10
No. 2020AP2119-CR
and Crystal's credibility. See id. at ¶42 ("The general rule is
that credibility determinations are resolved by live
testimony."). Moreover, had Marsh and Crystal been contacted by
counsel, counsel might have made a different decision about
which alibi witness or witnesses to call at trial. In any case,
the jury would have had to determine what weight to give to
their accounts and might ultimately have convicted Jackson
anyway. But the failure of trial counsel even to contact Marsh
and Crystal is enough to "undermine [our] confidence in the
outcome." See Strickland, 466 U.S. at 694.
¶19 We also disagree with the State's assertion that the
overwhelming evidence of Jackson's guilt conclusively
establishes that he was not prejudiced. See Ruffin, 401
Wis. 2d 619, ¶40 (explaining that the record conclusively
establishes that the defendant is not entitled to relief if it
shows that there is "no reasonable probability that the outcome
would have been different"). In fact, the State's case was not
so overwhelming. The State's best evidence of Jackson's
involvement came from witnesses with serious credibility issues.
Gerald Tucker, the primary witness against Jackson, was arrested
as a suspect in the homicide and had the clearest motive to kill
King given their argument earlier that night. He told police on
two occasions that he did not know the shooter and even claimed
to have not seen the shooting. He changed his story and
identified Jackson as the shooter after serving a six-month
sentence on a revocation of probation, and only when he learned
the police had found the murder weapon. This disclosure
11
No. 2020AP2119-CR
resulted in a second probation revocation for obstructing the
investigation. At trial, he testified that in exchange for his
testimony, he hoped to reduce the 15-year sentence he was
serving as a result of that revocation.
¶20 Joe Brown, who said that Jackson confessed to him
after he returned Brown's gun, was a felon with three prior
criminal convictions facing state and federal charges with a
potential sentence of 15 years to life in prison for possessing
the murder weapon. At trial, he acknowledged that he too hoped
to minimize his time in prison by testifying against Jackson.
And in exchange for cooperation in Jackson's case, the State
ultimately dismissed the felon in possession of a firearm charge
and federal prosecutors agreed to recommend a reduced sentence
on his federal charge.
¶21 Andre Dorsey identified Jackson as the person who went
into the house with Gerald, but he was standing 15 feet away at
the time of the shooting and said that he saw only the shooter's
hand. Moreover, he described the shooter's hand as having a
light complexion but described Jackson as having a medium
complexion. Dorsey was also a felon with three prior criminal
convictions and on the evening of the homicide a gun was found
in his car. Although he was arrested, he was not charged as a
felon in possession of a firearm.
¶22 The only witnesses who were not potentially involved
in the shooting and whose credibility was not undermined by
prior convictions or other potential criminal exposure were C.W.
and Anthony Boone. C.W. did not see the shooter. Instead, she
12
No. 2020AP2119-CR
testified that she saw a man with a dark complexion run by the
front window after the shooting, but she did not positively
identify Jackson as that man when shown a photo array. And
although Boone testified that he saw Jackson at Joe Brown's
house, he gave conflicting accounts as to when that occurred.
Given these weaknesses in the State's case, and the existence of
multiple alibi witnesses that were not investigated by defense
counsel, let alone called to testify at trial, the record fails
to conclusively establish that Jackson is not entitled to
relief.
¶23 In sum, Jackson's motion alleges sufficient material
and non-conclusory facts that, if true, would entitle him to
relief on this claim. Moreover, the record fails to
conclusively show that Jackson is not entitled to relief. Had
Marsh and Crystal been contacted by counsel, they may have
testified, and the jury would have had to weigh their
credibility, and perhaps that of Jackson's mother, against the
State's witnesses, many of whom had credibility issues of their
own. Given that, we cannot say the record conclusively
demonstrates that there is no reasonable probability of a
different outcome. As a result, the circuit court did not have
discretion to deny Jackson a Machner hearing on this claim. See
Ruffin, 401 Wis. 2d 619, ¶37.
C
¶24 Turning to Jackson's claim that counsel did not
interview Carol or prepare her to speak to detectives or
13
No. 2020AP2119-CR
testify, we conclude that Jackson is not entitled to a Machner
hearing. That is because Jackson's motion is conclusory: it
does not explain how counsel should have prepared her and what,
if any, effect this might have had on her statements to
detectives or her testimony. See Balliette, 336 Wis. 2d 358,
¶48 (explaining that a postconviction motion is conclusory if it
"fail[s] to allege 'any factual assertions which would allow a
court to meaningfully assess [the defendant's] claim.'" (quoting
State v. Bentley,
201 Wis. 2d 303, 316,
548 N.W.2d 50 (1996))).
Without that information, Jackson's motion fails to allege
sufficient material and non-conclusory facts that, if true,
would constitute ineffective assistance of counsel. See
id.
¶25 Jackson is likewise not entitled to a Machner hearing
on his claim that his counsel was ineffective when she told him
the circuit court would require him to testify first. After the
State rested, Jackson's counsel told the court that Jackson's
mother and Jackson would testify, in that order. When the
circuit court questioned the order of witnesses, counsel
responded "I know the Court's aware of the logistical issues we
have with him. Let me just talk to him about that, about if it
would be okay if he testifies first." Jackson alleges that he
then met with his counsel who told him "that the trial court was
going to require him to testify before any of the other defense
witnesses were called."
¶26 Jackson is not entitled to a Machner hearing on this
claim because he has not sufficiently alleged that counsel's
performance was deficient. See Balliette, 336 Wis. 2d 358,
14
No. 2020AP2119-CR
¶63. Although Jackson's motion alleges what counsel said
regarding the order of witnesses, it fails to demonstrate that
counsel's statement "was incorrect, much less unreasonable."
See Rodriguez v. United States, 286 F.3d 972, 984-85 (7th Cir.
2002) (rejecting allegations of deficient performance because
the advice of counsel that led the defendant to decide not to
testify was neither incorrect nor unreasonable); see also
Strickland,
466 U.S. at 687 (in order to show deficient
performance, a defendant must allege "that counsel made errors
so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment."). All that
Jackson alleges his counsel told him was that the circuit court
would require him to testify first. But Jackson does not
explain how that statement was incorrect. Instead, Jackson
asserts that the circuit court was required to allow him to
testify in his preferred order under Brooks v. Tennessee,
406
U.S. 605 (1972), because "there were no circumstances in his
case where having the other defense witnesses testify first
would have impeded the orderly progress of the trial."
¶27 Counsel's statement was not unreasonable because the
circuit court would not necessarily have violated Brooks by
requiring Jackson to testify first. After all, Brooks held only
that a statute requiring a defendant to testify first or not at
all violated the defendant's constitutional rights. Id. at 612.
And as numerous courts have concluded, Brooks does not restrict
the wide latitude trial courts have in managing the presentation
of evidence at trial on a case-by-case basis, including by
15
No. 2020AP2119-CR
"determin[ing] generally the order in which parties will adduce
proof." Geders v. United States, 425 U.S. 80, 86 (1976); see
also United States v. Singh,
811 F.2d 758, 762-63 (2d Cir.
1987); United States v. Leon,
679 F.2d 534, 538 (5th Cir. 1982).
Although Jackson alleges that allowing him to testify in his
preferred order would not have resulted in delay or otherwise
"impeded the orderly progress of the trial," those are not the
only circumstances in which it is permissible for a trial court
to require a defendant to testify first. See Singh,
811 F.2d at
762-63 (upholding an order requiring the defendant to testify
first to lay foundation for subsequent testimony). Thus, even
if everything alleged in Jackson's motion is true, it might
still have been permissible for the circuit court to require him
to testify first. And in that case, counsel's performance would
not have been deficient since her statement would have been
accurate, or at least not unreasonable. See Strickland,
466
U.S. at 687-88. Accordingly, the circuit court was correct to
deny this part of Jackson's motion without a Machner
hearing. Balliette,
336 Wis. 2d 358, ¶63.
IV
¶28 In sum, Jackson is not entitled to a Machner hearing
on his claims that counsel was ineffective for failing to
interview or prepare his mother to speak to detectives or
testify and for incorrectly advising him that the law required
him to testify first. But on his claim that counsel was
ineffective for failing to investigate or call two alibi
16
No. 2020AP2119-CR
witnesses, his motion alleges sufficient material and non-
conclusory facts that, if true, would entitle him to relief, and
the record fails to conclusively establish that he is not
entitled to relief. Accordingly, we affirm in part and reverse
in part the decision of the court of appeals and remand to the
circuit court with instructions to grant Jackson a hearing on
his alibi-witnesses claim.
By the Court.—The decision of the court of appeals is
affirmed in part, reversed in part, and the cause is remanded to
the circuit court for further proceedings consistent with this
opinion.
¶29 PATIENCE DRAKE ROGGENSACK, J., did not participate.
17
No. 2020AP2119-CR
1
