2023 WI 26
SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1362-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Jovan T. Mull,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 401 Wis. 2d 195,
973 N.W.2d 14
(2022 – unpublished)
OPINION FILED: April 4, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 29, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Joseph R. Wall & Jonathan D. Watts
JUSTICES:
ROGGENSACK, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY,
HAGEDORN, and KAROFSKY, JJ., joined. DALLET, J., filed a
dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Christine A. Remington, assistant attorney general,
with whom on the briefs was Joshua L. Kaul, attorney general.
There was an oral argument by Christine A. Remington, assistant
attorney general.
For the defendant-appellant, there was a brief filed by
Christopher P. August, assistant state public defender. There
was an oral argument by Christopher P. August, assistant state
public defender.
2
2023 WI 26
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1362-CR
(L.C. No. 2015CF2419)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. APR 4, 2023
Jovan T. Mull, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
ROGGENSACK, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY,
HAGEDORN, and KAROFSKY, JJ., joined. DALLET, J., filed a
dissenting opinion.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, J. We review an
unpublished, per curiam decision from the court of appeals.1 The
court of appeals granted defendant Jovan T. Mull a new trial
because it concluded Mull received ineffective assistance of
1State v. Mull (Mull II), No. 2020AP1362-CR, unpublished
slip op., (Wis. Ct. App. Feb. 1, 2022) (per curiam).
No. 2020AP1362-CR
counsel at his trial, which resulted in his conviction for
first-degree reckless homicide.2
¶2 We conclude that Mull's trial counsel did not perform
deficiently. Because we make this determination, we need not
assess whether counsel's performance prejudiced the defense.
Lastly, we decline Mull's request to grant him a new trial in
the interest of justice because the controversy was fully tried,
and it is not probable that justice has miscarried.
Accordingly, we reverse the court of appeals.
I. BACKGROUND
A. The Incident
¶3 Ms. Ericka Walker was shot and killed in her bedroom
during a crowded house party in the early morning hours of March
7, 2015, when a fight bordering on a brawl erupted. Eyewitness
accounts are consistent so far as the general details of the
evening, but differ significantly regarding the specifics.
¶4 Most accounts describe the initial outbreak of a
small, personal fight, which subsided only to swell into a
larger clash almost immediately. The fight escalated quickly
from grabbing, to pushing, to throwing dishes, to the use of one
or multiple tasers. A few people and Ms. Walker, who by most
accounts was not involved in the fight, sheltered in a bedroom
off of the main living area where the fight was taking place.
Seeing a roommate engaged in the fight, Ms. Walker pulled him
2The Honorable Jonathan D. Watts of Milwaukee County
presided and entered the judgment of conviction.
2
No. 2020AP1362-CR
and his friend into the bedroom with her. However, the pair
continued to fight, throwing objects at people standing outside
the bedroom's main door from a second door to the bedroom. The
fight culminated when someone fired multiple shots into the
bedroom through the closed door, striking and killing
Ms. Walker. Ms. Walker's autopsy confirmed she was struck by
six bullets.
B. The Investigation
¶5 Police arrived on scene and began investigating the
shooting immediately. Witness accounts suggest that 40 to 100
people attended the party, and police obtained statements from
more than 25 individuals. Eyewitness descriptions identified
the person who shot through the door as a black male who fired
the gun with his right hand, but descriptions were otherwise
very inconsistent.
¶6 The array of witness statements described the shooter
as 16-24 years old, 5'2"-5'11" tall, slim, medium or stocky
build, with a medium or dark complexion. Investigators were
told the shooter had short dreads, a short "afro," a four-inch
"afro," and "short, curly hair." Numerous people described the
shooter as wearing a red sweatshirt, although some reported the
sweatshirt was "Adidas" brand, while others told investigators
it was a Wisconsin Badgers sweatshirt. Two people told police
the shooter wore a blue sweatshirt. Three individuals reported
seeing the shooter in a black or dark sweatshirt, while another
person reported the shooter was in a white t-shirt. The shooter
3
No. 2020AP1362-CR
was described as wearing red Rock Revival pants while others
reported the shooter wore black pants or blue jeans.
¶7 Accounts varied as to how many people were outside the
bedroom. One witness placed two individuals outside the
bedroom, both with guns and one in an orange shirt. Others told
police three to eight men were looking for the two individuals
Ms. Walker pulled into the bedroom. Reports also varied as to
whether the lights were on or off in the living room during the
fight. Nearly all accounts, however, suggested Vashawn Smyth3
and his friend Menjuan Bankhead were involved in the initial
stages of the fight.
¶8 Shortly after the party, rumors began circulating on
Facebook accusing Smyth of firing his gun into the door. A
mysterious Facebook user contacted Ms. Walker's former
girlfriend Cheyenne Pugh to convey that Smyth was the person who
shot through the door. Pugh reported this information to
police. Witness Keshawna Wright told officers she had seen
Smyth shoot into the door at the party. Police initially
investigated and arrested Smyth for Ms. Walker's death. Smyth
remained adamant that he did not have a gun while at the party.
Smyth first told officers he was already leaving the house when
The record reflects numerous alternate first and last name
3
spellings for many subjects involved. We use the spelling used
at trial for those who testified or the most common spelling
that appears in the record. Further, many individuals have
nicknames, but as the record connects an individual's name and
nickname, and neither party disputes this, we proceed using what
appeared to be each person's legal name.
4
No. 2020AP1362-CR
the shooting began, but in later interviews he told
investigators he was in the house when someone shot through the
door. One individual involved in the fight did not identify
Smyth in a lineup in which he was the target. Smyth is right-
handed.
¶9 Witness Jalyn Lynch reported that he saw two people
holding guns at the party and identified one of them as
Bankhead. Lynch told officers that Bankhead did not shoot into
the door, but rather he shouted to the other person with a gun
to shoot through the door. Witness Wright did not identify
Bankhead in a lineup for which he was the target. Officers
arrested Bankhead as a felon in possession of a firearm.
Bankhead told officers he wore a red Wisconsin Badgers
sweatshirt on the night of the party. The record does not
reflect why investigators turned their attention from Bankhead.
¶10 During one interview, Smyth told officers Tyler Harris4
displayed a handgun to Smyth from across the room at the party
minutes before someone shot through the door. Smyth reported to
investigators that Tyler Harris later told him he "emptied [his]
clip" at the party. Shortly after, Tyler Harris changed his
Facebook status to indicate he needed to "stay low." Witness
Channel Howard identified Tyler Harris in a photo array as the
"person [she] saw in possession of a gun at [the] party."
Officers arrested Tyler Harris as a felon in possession of a
4There are four individuals with the last name Harris in
the record: Tyler, Sanchez, Demon, and Dejuan. For clarity, we
refer to each individual by his full name.
5
No. 2020AP1362-CR
firearm. The record does not reflect why investigators turned
their attention from Tyler Harris.
¶11 A few days after the incident, Pugh began hearing new
rumors that Jovan Mull was the person who shot Ms. Walker
through the door. Pugh received photos of Mull from unknown
senders who said the person in the photo was the shooter. Pugh
brought that information to investigators' attention, too.
¶12 The investigation then focused on Mull. Witness Lynch
stated he did not remember seeing Mull at the party, although
others recalled seeing him there. Three individuals——Sanchez
Harris, Alphonso Carter, and Desmond Butler——separately
identified Mull in a photo array as the person who shot through
the door. Four people——Demon Harris, Tyler Harris, Charles
Cantrell, and Elicia Burrows——did not recognize or identify Mull
as the shooter in separate photo arrays. Smyth told
investigators Mull was "the person that had the gun in the
kitchen," although he did not identify Mull as the shooter.
Smyth also told investigators that he and Mull did not have an
amicable history.
¶13 Additional accounts implicated Mull. Sanchez Harris
told investigators that Mull said he had a gun on him while they
rode to the party together. Sanchez Harris further told
officers Mull "did the shooting," but also that, Mull "had to
be" the shooter. Vachune Hubbard told investigators that he had
spoken with Mull shortly after the party and Mull said that at
the party, "[T]hey got to fighting, so I got to shooting," and
"I shot through the door." Mull is right-handed.
6
No. 2020AP1362-CR
¶14 The State ultimately charged Mull with first-degree
reckless homicide for Ms. Walker's death.
C. Mull's Trial
¶15 A four-day jury trial took place in April 2016. The
State presented multiple witnesses, including witnesses who
attended the party, witnesses who did not attend the party, and
investigators. The defense did not call any witnesses
independently.5
¶16 The State called Ms. Walker's former girlfriend, Pugh,
who did not attend the party. On direct examination, the State
questioned Pugh regarding Facebook messages and a photo of Smyth
that Pugh received and brought to police regarding the shooter's
identity. Counsel objected on foundation and hearsay grounds
multiple times during Pugh's testimony. In one instance, Pugh
read a message on the stand to which defense counsel made a
5 The defense submitted a witness list that identified nine
individuals. Of those nine individuals, eight were cross-listed
on the State's witness list. The ninth, and the only name that
was not cross-listed, was "Donika Payton," which may be an
alternate spelling of "Donieka Payton." Review of the record is
inconclusive as to whether Donika and Donieka are actually the
same person.
Assuming they are the same person, all individuals
identified on the defense's witness list were also identified on
the State's witness list. Of the eight individuals on the
defense's witness list, the record supports that neither the
State nor the defense subpoenaed five of those witnesses. The
State subpoenaed the remaining three individuals on the
defense's list——Sanchez Harris, Elicia Burrows and Keshawna
Wright. Sanchez Harris appeared and testified at trial, but the
record reflects Burrows and Wright could not be located after
multiple attempts.
7
No. 2020AP1362-CR
hearsay objection. The State explained the message was offered
"to explain further [officers'] investigation." The court
overruled all of the defense's objections. Pugh then testified
that others told her Mull was the shooter. Pugh received a text
with a photo of Smyth, and another person sent her a photo of
Mull on Facebook. Pugh testified she brought this information
to investigators.
¶17 On cross-examination, Pugh confirmed she did not know
the person who sent her a Facebook message and photo of Smyth,
nor the person who sent her a photo of Mull. Pugh's responses
included references to "they" or "them," which Mull's counsel
sought to clarify for the court reporter. His subsequent
questions resulted in the following exchange and statement from
Pugh:
[Trial counsel]: And then you talked about, "They."
Is there another person the message is going to?
[Pugh]: It's not actually on my messenger. It was
just other people coming up to me about the situation
and sending [their] love out I guess about talking to
me and say they apologize for her death and stuff like
that.
And also another lady was telling me about him
going -- being in the hood bragging about it saying
that he hit a lick over there on 35th and he killed
the stud bitch.
[Trial counsel]: I guess. Just could you define what
that means?
[Pugh]: Stud. It's a female who dresses like a guy.
Trial counsel did not move to strike Pugh's testimony, nor did
he move for a mistrial. Instead, trial counsel pivoted to
8
No. 2020AP1362-CR
explore Pugh's relationship to the investigation. The jury
heard additional testimony from Smyth, Sanchez Harris, Carter,
Butler, and Hubbard.
¶18 Smyth testified that he attended the party, and he
described the events culminating in the "big brawl." Smyth also
testified that he saw two people with guns in the living room——
Mull and Tyler Harris. Smyth told the jury he heard the shots
fired, but that he did not actually see Mull fire a gun.
¶19 Sanchez Harris testified that Mull rode to the party
with Sanchez Harris and his brothers, and that Mull announced he
had a gun on him. Sanchez Harris stated he was in the living
room when Ms. Walker was shot, and he saw one person wearing a
red sweatshirt pointing a gun at the bedroom door. Sanchez
Harris testified Mull was also in the vehicle when they left the
party and Mull said, "You better not say anything. I know your
faces." He testified that Mull wore a red Wisconsin Badgers
sweatshirt the night of the party, and the State entered Sanchez
Harris's prior identification of Mull in a photo array from the
investigation into evidence.6 He testified that Mull was "the
person who probably did it."
6 Sanchez Harris testified he was shown only two photos in
the photo array, and that he identified Mull's photo as the
person who shot through the door. Whether there was a problem
with the photo array is not before us for review. The
prosecutor walked Sanchez Harris through the photo array
identification form that he signed, where his circled responses
indicate he viewed six photos.
9
No. 2020AP1362-CR
¶20 Carter testified he was at the party and that he saw
two men outside the bedroom door with guns. One man told the
other to "[s]hoot in there," and the other person shot through
the door. The State admitted Carter's prior positive
identification of Mull as the shooter in a photo array.
¶21 Butler testified he was at the party and that he
recalled the shooter wearing a red sweatshirt. The prosecution
admitted Butler's prior identification of Mull from a photo
array. However, after seeing Mull in the courtroom, Butler
recanted his identification because he did not believe Mull
looked like the person he identified in the photo array. "As
I'm looking at [Mull], the height even different like. The body
language. I'm looking. I don't want to convict nobody that's
innocent."
¶22 Hubbard did not attend the party, but he testified in
accordance with the statements he made to officers during the
investigation. Namely, Hubbard affirmed that he previously told
investigators that Mull told him "I got to shooting" at the
party and "I shot through the door."
¶23 The jury found Mull guilty of first-degree reckless
homicide. Mull subsequently received a bifurcated sentence of
twenty-five years initial confinement and ten years extended
supervision.
10
No. 2020AP1362-CR
D. Procedural History
¶24 Mull timely filed for postconviction relief seeking a
new trial based on grounds that included ineffective assistance
of counsel and the interest of justice. The circuit court
denied the postconviction motion without a hearing,7 which Mull
appealed. The court of appeals reversed8 and ordered the circuit
court to conduct a Machner9 hearing. Specifically, the court
concluded Mull was entitled to a Machner hearing regarding his
allegations that trial counsel was ineffective for the two
claims we review today.
¶25 First, Mull asserted his trial counsel was ineffective
for "failing to file a third-party perpetrator motion regarding
any one of the viable alternate suspects." (Emphasis in
original.) Mull identified Smyth, Tyler Harris, and/or Bankhead
as potential third-party perpetrators that Mull could have named
consistent with a Denny10 defense.
The Honorable Jeffrey A. Conen entered the order denying
7
Mull's postconviction motion.
State v. Mull (Mull I), No. 2018AP1349-CR, unpublished
8
slip op., ¶1 (Wis. Ct. App. July 23, 2019).
State v. Machner, 92 Wis. 2d 797,
285 N.W.2d 905 (Ct. App.
9
1979). "The evidentiary hearing to evaluate counsel's
effectiveness, which includes counsel's testimony to explain his
or her handling of the case, is . . . called a Machner hearing."
State v. Balliette, 2011 WI 79, ¶31,
336 Wis. 2d 358,
805 N.W.2d
334.
State v. Denny, 120 Wis. 2d 614,
357 N.W.2d 12 (Ct. App.
10
1984). A Denny defense permits a defendant to raise a third-party perpetrator defense if the defendant can show "a
'legitimate tendency' that the third person could have committed
the crime." Id. at 623. A third-party perpetrator defense
11
No. 2020AP1362-CR
¶26 At the Machner hearing,11 trial counsel testified he
thought pursuing a reasonable doubt defense was preferable to
pursuing a third-party perpetrator defense because it was
difficult to locate witnesses to interview them. Trial counsel
testified to an "inability to contact certain witnesses to
prepare a Denny motion pretrial," even with the help of an
investigator. Trial counsel said "a lot of these people
wouldn't return phone calls, went by nicknames, [and Mull] did
not have phone numbers . . . or addresses." Trial counsel was
aware the State also had difficulty locating witnesses. Based
on this information, trial counsel determined there were a lot
of credibility issues and inconsistent accounts of what
happened, which he strategically thought presented a reasonable
doubt defense. Trial counsel also testified that he had
prepared two Denny motions for clients in other cases, both of
which were denied.
¶27 Secondly, Mull argued trial counsel was ineffective
for failing to object or move to strike Pugh's testimony. Mull
found his attorney's failure to strike Pugh's hearsay testimony
that "he" was "saying that . . . he killed the stud bitch,"
particularly deficient and prejudicial. At the Machner hearing,
trial counsel testified that he "objected to the line of
questioning," relative to the out-of-court messages the
requires motive, opportunity, and a direct connection to the
crime. Id. at 625.
The Honorable Joseph R. Wall presided at the hearing and
11
issued the subsequent order.
12
No. 2020AP1362-CR
prosecution presented through Pugh. "The judge had overruled,"
both on foundation and hearsay grounds. Relative to the hearsay
objection, the court allowed Pugh's testimony as course-of-
investigation testimony. Having been overruled, trial counsel
explained he attempted to discredit Pugh's testimony through
cross-examination by attacking her credibility and questioning
Pugh's motive in testifying. Trial counsel testified he did not
object, as the statement came out on his own cross-examination
of Pugh, and he did not move to strike the statement because he
did not want to "[bring] too much attention to the jury"
regarding Pugh's testimony.
¶28 The circuit court made a number of relevant factual
findings, which we discuss below. The court found trial counsel
credible, and it accepted his testimony. The circuit court
concluded "the errors asserted by the defense" did not rise to
the established standard of prejudice for ineffective assistance
of counsel. The circuit court accordingly denied Mull's
postconviction motion for a new trial following the Machner
hearing.
¶29 Mull appealed the circuit court's denial to the court
of appeals. Mull renewed his ineffective assistance of counsel
claims and his argument seeking a new trial in the interest of
justice. The court of appeals reversed and granted Mull a new
trial after it concluded Mull received ineffective assistance.
State v. Mull (Mull II), No. 2020AP1362-CR, unpublished slip
op., ¶1 (Wis. Ct. App. Feb. 1, 2022). The court of appeals
determined trial counsel was ineffective for failing to present
13
No. 2020AP1362-CR
a third-party perpetrator defense, and for "failing to move to
strike or move for a mistrial following hearsay testimony" from
Pugh. Id. The court of appeals remanded for a new trial
without addressing Mull's interest of justice claim.
¶30 The State petitioned us for review on two questions
that largely reflect the claims Mull raised below. First,
whether the court of appeals impermissibly failed to defer to
trial counsel's strategic decisions; and second, whether this
court should grant Mull a new trial in the interest of justice.
II. DISCUSSION
A. Standard of Review
¶31 "An ineffective assistance of counsel claim presents a
mixed question of fact and law." State v. Pico, 2018 WI 66,
¶13,
382 Wis. 2d 273,
914 N.W.2d 95. We do not reverse a
circuit court's finding of fact unless it is clearly erroneous.
Id. "Findings of fact include 'the circumstances of the case
and the counsel's conduct and strategy.'"
Id. (quoting State v.
Thiel,
2003 WI 111, ¶21,
264 Wis. 2d 571,
665 N.W.2d 305).
Whether those facts demonstrate that counsel's performance fell
below the constitutional standard is a matter of law subject to
our independent review. State v. Pitsch,
124 Wis. 2d 628, 634,
369 N.W.2d 711 (1985).
¶32 We may exercise our discretion to grant a new trial in
the interest of justice "[u]nder both our inherent powers and
our statutory authority." State v. Armstrong, 2005 WI 119,
¶114,
283 Wis. 2d 639,
700 N.W.2d 98; see also State v. Avery,
2013 WI 13, ¶23,
345 Wis. 2d 407,
826 N.W.2d 60; Wis. Stat.
14
No. 2020AP1362-CR
§ 751.06 (2021-22).12 We recognize that "a circuit court is in
a better position than an appellate court to determine whether
confidence in the correctness of the outcome at the original
trial or hearing has been undermined." Morden v. Cont'l AG,
2000 WI 51, ¶87,
235 Wis. 2d 325,
611 N.W.2d 659. Because of
that, we approach a request for a new trial "with great
caution." Armstrong,
283 Wis. 2d 639, ¶114.
B. Ineffective Assistance of Counsel
¶33 The court of appeals reviewed Mull's two arguments,
which are renewed before us. Mull asks us to affirm the court
of appeals' conclusion that his trial counsel was ineffective
for failing to present a third-party perpetrator defense and for
failing to move to strike or move for a mistrial in light of
Pugh's testimony.
¶34 The Sixth Amendment of the United States Constitution
guarantees the effective assistance of counsel to every criminal
defendant. U.S. Const. amend. VI; Pico, 382 Wis. 2d 273, ¶18.
The purpose of the guarantee is "to ensure that criminal
defendants receive a fair trial," and "to justify reliance on
the outcome of the proceeding." Strickland v. Washington,
466
U.S. 668, 689, 692, (1984). A defendant is denied the right to
effective assistance of counsel when "his counsel performs
deficiently" and "the deficiency prejudices his trial." Pico,
382 Wis. 2d 273, ¶18.
All subsequent references to the Wisconsin Statutes are
12
to the 2021-22 version unless otherwise indicated.
15
No. 2020AP1362-CR
¶35 Counsel performs deficiently if his "conduct falls
outside [an] objectively reasonable range," which we recognize
is "wide." Id., ¶19. We apply a "strong presumption" that
counsel acts "reasonably within professional norms." State v.
Coleman, 2015 WI App 38, ¶20,
362 Wis. 2d 447,
865 N.W.2d 190.
We are "highly deferential" to counsel's decisions, provided
they are objectively reasonable and strategic. State v.
Breitzman,
2017 WI 100, ¶65,
378 Wis. 2d 431,
904 N.W.2d 93.
However, we do not review the reasonableness of trial counsel's
decisions with "the benefit of hindsight." Pico,
382 Wis. 2d
273, ¶22. We will not "second-guess a reasonable trial
strategy, [unless] it was based on an irrational trial tactic or
based upon caprice rather than upon judgment." Breitzman,
378
Wis. 2d 431, ¶65 (brackets in original). We cannot decide
after-the-fact that "a more appropriate decision could have been
made." State v. Felton,
110 Wis. 2d 485, 502-03,
329 N.W.2d 161
(1983).
¶36 On the other hand, it is not enough to merely "label"
counsel's challenged decisions "a matter of choice and of trial
strategy." Id. at 502. Rather, we examine trial counsel's
choices "in the context of the circumstances as they existed at
the time he made his decisions." Pico,
382 Wis. 2d 273, ¶22.
See also Felton,
110 Wis. 2d at 502-03.
¶37 Counsel's deficient performance prejudices a criminal
defendant when "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
16
No. 2020AP1362-CR
probability sufficient to undermine confidence in the outcome."
Pitsch, 124 Wis. 2d at 642 (quoting Strickland,
466 U.S. at
669).
1. Third-Party Perpetrator Defense
¶38 We begin by reviewing whether trial counsel was
deficient in choosing a "reasonable doubt" trial strategy over a
"third-party perpetrator" defense strategy. Before we proceed
to the merits of Mull's argument, we first review the boundaries
and requirements of a third-party perpetrator defense.
¶39 Due process requires the government to bear the burden
of proving an accused's guilt beyond a reasonable doubt in order
to convict. In re Winship, 397 U.S. 358, 364 (1970). While an
accused is not obligated to present a defense, the United States
and Wisconsin Constitutions provide a criminal defendant the due
process right to "present a theory of defense to the jury."
State v. Wilson,
2015 WI 48, ¶3,
362 Wis. 2d 193,
864 N.W.2d 52.
An accused may present a theory of defense that another party
committed the crime for which an accused stands trial. Such a
defense, however, must be grounded in admissible evidence.
Accordingly, an accused's right to present a defense does not
encompass the right to present irrelevant evidence. State v.
Scheidell,
227 Wis. 2d 285, 294,
595 N.W.2d 661 (1999).
¶40 When dealing with stakes as high as a defendant's
liberty, third-party perpetrator evidence walks a bit of a
tightrope. On the one hand, evidence of another's guilt is
17
No. 2020AP1362-CR
always relevant to an accused's innocence;13 on the other hand, a
trial should avoid "undue diversion . . . by injecting a
collateral issue, and in avoiding unsupported jury speculation
regarding the guilt of other suspects."14 Id. at 303. "It is
this tension between the defendant's rights and the relevancy
requirement that the court of appeals addressed in Denny."
Wilson,
362 Wis. 2d 193, ¶48 (referencing State v. Denny,
120
Wis. 2d 614, 622,
357 N.W.2d 12 (Ct. App. 1984)); see also
Wilson,
362 Wis. 2d 193, ¶102 (Ziegler, J., concurring). There,
the court adopted the "legitimate tendency" test to guide the
admissibility of third-party perpetrator evidence in Wisconsin.
Denny,
120 Wis. 2d at 623-24.15
¶41 Denny established a three-prong test to ensure a
defendant's proffered evidence does not change the proceedings
"into a trial of collateral issues." Denny, 120 Wis. 2d at 624.
13Wisconsin Stat. § 904.01 defines "[r]elevant evidence" as
"evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the
evidence."
14See also Wis. Stat. § 904.03, which states in pertinent
part, "[R]elevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the
jury . . . ."
15Although we ratified the Denny "legitimate tendency" test
in State v. Knapp, and reaffirmed it in State v. Wilson, third-party perpetrator evidence is commonly known as "Denny
evidence," used to present a "Denny defense." State v. Knapp,
2003 WI 121, ¶¶175-183,
265 Wis. 2d 278,
666 N.W.2d 881 vacated
on other grounds,
542 U.S. 952 (2004); State v. Wilson,
2015 WI
48, ¶52,
362 Wis. 2d 193,
864 N.W.2d 52.
18
No. 2020AP1362-CR
To be admissible, the proponent of the evidence must demonstrate
that there is "a 'legitimate tendency' that the third person
could have committed the crime" by establishing the third person
had the motive, opportunity, and a direct connection to the
crime charged. Id. at 623, 624.16
¶42 We have never addressed whether a criminal defendant
may present a Denny defense implicating more than one
alternative suspect. Assuming, without deciding, that a
criminal defendant may present a third-party perpetrator defense
that implicates multiple alternative suspects, we turn to Mull's
argument before us.17 Mull's postconviction counsel argues trial
See generally id, ¶¶62-72, for a detailed discussion of
16
each requirement necessary to establishing "legitimate
tendency."
We have reviewed decisions from other jurisdictions where
17
arguments regarding multiple alternative suspects were
permitted.
Often, a defendant was unable to present evidence regarding
multiple alternative perpetrators merely because his proffered
third-person perpetrator evidence did not pass the respective
jurisdictional test for admissibility, not because of a per se
rule prohibiting as much. See generally Andrews v. United
States, 179 A.3d 279, 294-95, 296 (D.C. Cir. 2018) (defendant
argued counsel was ineffective for not presenting third-party
perpetrator defense regarding two alternative suspects;
appellate court reviewed admissibility as to both and ultimately
determined the evidence did not survive the jurisdiction's test
for either person); United States v. Moore,
590 F. Supp. 3d 177,
181-82 (D.D.C. 2022) (same); People v. Elmarr,
351 P.3d 431,
¶¶5, 13 (Colo. 2015) (defendant proffered evidence of six
alternative suspects in wife's homicide, which the circuit court
held inadmissible; the court of appeals concluded that evidence
of alternative suspects one and six were admissible);
Commonwealth v. Rodriguez,
174 A.3d 1130, 1146 (Pa. Super. Ct.
2017) (accused's attempts to proffer evidence of two known
alternative suspects deemed inadmissible because it did not meet
19
No. 2020AP1362-CR
counsel was deficient for failing to present a Denny defense
that implicated one or more alternative suspects. While we
appreciate that is counsel's argument, what we review, however,
is whether trial counsel's strategy to present a reasonable
doubt defense was objectively reasonable.
¶43 We begin with the circuit court's factual findings
regarding Mull's trial counsel. The circuit court found trial
counsel credible and accepted his testimony at the Machner
hearing. The court also found that Mull was involved in the
decision to pursue the reasonable doubt defense, and that
preparing a Denny motion would have been difficult due to
challenges in locating or interviewing individuals.
¶44 Regarding a Denny defense that Smyth was the shooter,
the circuit court found "it was difficult to locate witnesses
who would have supported the defense." The court found that
Keshawna Wright, who identified Smyth as the shooter, had become
uncooperative with authorities a few weeks after the shooting,
and that the State showed numerous unsuccessful attempts to
subpoena her.
¶45 Mull's postconviction counsel argued a Denny defense
implicating Bankhead could be premised on Jalyn Lynch's
statement to police. Lynch identified Bankhead as standing
outside the door telling another individual to shoot through it.
jurisdictional test of admissibility); State v. Grega, 721 A.2d
445, 456 (Vt. 1998) (same, for two alternative suspects); Grady
v. State,
197 P.3d 722 (Wyo. 2008) (same, for three of four
alternative suspects).
20
No. 2020AP1362-CR
The circuit court found "the only inference to be drawn from
that is [Bankhead] is yelling that to somebody else," and was
not the shooter.
¶46 Regarding a Denny defense that Tyler Harris was the
shooter, the circuit court made two findings. First, that Smyth
did not testify during Mull's trial that Tyler Harris told Smyth
he "emptied his clip" because the State objected to the
statement as hearsay, which objection was sustained.18 Secondly,
the court noted Channel Howard identified Tyler Harris in a
photo array as "in possession of a gun at [the] party." Despite
Howard's identification of Tyler Harris by his nickname,
demonstrating she knew him, she did not identify him as the
shooter.
¶47 Our review of the record supports the circuit court's
findings related to a Denny defense implicating Smyth, Bankhead,
and/or Tyler Harris. Accordingly, because the circuit court's
findings are not clearly erroneous, we accept them. State v.
Tourville, 2016 WI 17, ¶16,
367 Wis. 2d 285,
876 N.W.2d 735.
¶48 After accepting the circuit court's factual findings
as not clearly erroneous, we independently determine whether
trial counsel's decision to present a reasonable doubt defense
Mull's postconviction counsel contends trial counsel
18
could have used Tyler Harris's statements at trial as admissible
statements of an unavailable declarant pursuant to Wis. Stat.
§ 908.045. We do not address this argument because we review
whether counsel's defense strategy was objectively reasonable,
not whether it was legally possible to present a different
defense.
21
No. 2020AP1362-CR
was objectively reasonable and therefore, not deficient. We
accordingly examine the record to assess whether trial counsel's
decision falls within the "objectively reasonable range" we
discussed in Pico, 382 Wis. 2d 273, ¶19. We do so "as if we
were encountering [the circumstances] just as trial counsel did,
making every effort to ensure our knowledge of the present does
not affect how we assess what was known to him at the time."
Id., ¶22. We agree with Mull's counsel's statement at oral
argument that we "have to look at counsel's reasoning process.
It is not sufficient to just take his explanations at face
value." In determining whether trial counsel's performance was
objectively reasonable, we do not rely on a "blanket policy of
deference." E.g., Coleman,
362 Wis. 2d 447, ¶20.
¶49 After reviewing the investigatory materials available
to trial counsel at the time he decided on Mull's defense, we
agree with trial counsel's summary at the Machner hearing:
[T]here was a lot of other people [] giving
conflicting statements as to who the shooter
was . . . other people with guns in the
party . . . other people who were shooting outside
after the incident.
Different people had identified other shooters,
[] there were different descriptions of outfits given
by various people.
. . . .
When you got multiple people with guns, multiple
people giving bad descriptions especially considering
a lot of them had been smoking marijuana or drinking,
it goes to their ability to perceive and
recall . . . .
22
No. 2020AP1362-CR
The record demonstrates Mull's representation was reassigned to
new trial counsel seven months after the shooting. Combining
all of those facts with the lapse of time since witnesses gave
strikingly inconsistent statements, we recognize the
circumstances trial counsel faced. Pico, 382 Wis. 2d 273, ¶19.
We conclude that trial counsel's trial strategy to cast doubt on
the State's case against Mull was not outside an objectively
reasonable range of performance. State v. Kimbrough,
2001 WI
App 138, ¶31,
246 Wis. 2d 648,
630 N.W.2d 752. That a different
trial strategy may look better in hindsight does not render a
reasonable strategy deficient performance. Felton,
110 Wis. 2d
at 502.
¶50 The court of appeals (Mull II) failed to review
whether trial counsel's decision to pursue a reasonable doubt
defense was objectively reasonable. Instead, it determined a
third-party perpetrator defense was preferable to the defense
trial counsel presented. The court of appeals stated:
[I]n pursuing the reasonable doubt defense, trial
counsel merely highlighted the discrepancies and
inconsistences in the witness accounts without
providing an alternative theory to explain those
discrepancies. A decision to present a third-party
perpetrator defense would have turned an argument that
the witnesses gave conflicting descriptions of what
Mull was wearing and what Mull was doing into a
defense that it was someone other than Mull who was
firing shots at the bedroom door.
Mull II, No. 2020AP1362-CR, ¶38. However, the court of appeals
did not "make 'every effort . . . to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
23
No. 2020AP1362-CR
counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.'" Breitzman, 378 Wis. 2d
431, ¶65 (quoting State v. Domke,
2011 WI 95, ¶36,
337 Wis. 2d
268,
805 N.W.2d 364). Trial counsel was not obligated to make
sense of the State's case or to "explain the discrepancies" in
the State's evidence against Mull.19
¶51 Rather, we review whether trial counsel's reasonable
doubt defense strategy was objectively reasonable based on the
totality of circumstances at the time counsel made the defense
decision. Brietzman, 378 Wis. 2d 431, ¶65. We conclude that
drawing attention to discrepancies in the State's case through
vigorous cross-examination of witnesses who appeared was an
objectively reasonable trial strategy under the circumstances
trial counsel faced.
¶52 Mull also argues trial counsel's investigation into
witness statements was insufficient, and therefore deficient.
"In assessing the reasonableness of an attorney's investigation
[] a court must consider not only the quantum of evidence
already known to counsel, but also whether the known evidence
would lead a reasonable attorney to investigate further."
Wiggins v. Smith, 539 U.S. 510, 527 (2003). Trial counsel
reviewed more than 140 pages of witness statements provided to
See Wis. JI——Criminal 140 ("Defendants are not required
19
to prove their innocence . . . . The burden of establishing
every fact necessary to constitute guilt is upon the
State . . . . If [the jury] can reconcile the evidence upon any
reasonable hypothesis consistent with the defendant's innocence,
[the jury] should do so and return a verdict of not guilty.").
24
No. 2020AP1362-CR
investigators, and the statements varied significantly. An
attorney's decision to refrain from investigating inconsistent
witness statements further may be reasonable if he believed the
statements differed enough to cast reasonable doubt on the
State's case against his client. Given the facts of this case,
trial counsel's decision to refrain from expending resources on
further investigation compared to preparing a reasonable doubt
defense was objectively reasonable.
¶53 Because Mull's trial attorney did not perform
deficiently, we need not address whether trial counsel's
performance prejudiced Mull at his trial. Pico, 382 Wis. 2d
273, ¶20 ("The court need not address [the prejudice] prong if
the petitioner fails to satisfy the [deficient performance]
prong.").
2. Pugh's Testimony
¶54 The State appeals the court of appeals' (Mull II)
determination that trial counsel was ineffective in handling
Pugh's testimony. Specifically, the court of appeals (Mull I)
stated Mull was entitled to a Machner hearing on the allegation
"that trial counsel was ineffective for failing to move to
strike or for a mistrial following Cheyenne Pugh's statement on
cross-examination to the effect that Mull had bragged about
shooting [Ms. Walker]." Mull I, No. 2018AP1349-CR, ¶49. That
is what the Machner hearing addressed, what the circuit court
reviewed in determining that Mull received effective assistance,
and what we must review on appeal.
25
No. 2020AP1362-CR
¶55 Mull asks us to conclude that his attorney's failure
to address Pugh's statement that she received a message stating
Mull bragged about killing the "stud bitch" was "objectively
unreasonable" as a matter of law. Mull argues it casts him as
confessing, boasting about killing, and using a disparaging term
to describe the victim.
¶56 We begin our review with the circuit court's order on
Mull's postconviction motion; we accept the court's factual
findings as true, unless clearly erroneous, and we independently
decide whether the facts amount to ineffective assistance of
counsel. Kimbrough, 246 Wis. 2d 648, ¶27. We do so because a
trial court is "free to accept or reject all or any portion of
defense counsel's testimony as it deemed credible." Id., ¶29.
Factual findings include "the circumstances of the case and the
counsel's conduct and strategy." State v. Jenkins,
2014 WI 59,
¶38,
355 Wis. 2d 180,
848 N.W.2d 786.
¶57 The circuit court found trial counsel to be credible
based on his testimony and the record as a whole. The circuit
court also made two factual findings regarding trial counsel's
strategy: (1) that his strategy was to discredit Pugh and to
attack the foundation of the electronic messages; and (2) that
trial counsel did not want to draw the jury's attention to
Pugh's statement. See id., ¶38 (stating "counsel's conduct and
strategy" are findings of fact). We do not reverse these
findings because they are not clearly erroneous after our review
of the record. Kimbrough, 246 Wis. 2d 648, ¶27.
26
No. 2020AP1362-CR
¶58 In light of those findings, we independently review
whether counsel's decision to discredit Pugh via cross-
examination and whether electing not to object or move to strike
were outside the "wide range of reasonable professional
assistance." Pico, 382 Wis. 2d 273, ¶19 (quoting Strickland,
466 U.S. at 689). We recognize:
There are [] 'countless ways to provide effective
assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client
in the same way.' Rare are the situations in which
the 'wide latitude counsel must have in making
tactical decisions' will be limited to any one
technique or approach.
Harrington v. Richter, 562 U.S. 86, 106 (2011) (internal
citations omitted). We must make "every effort to reconstruct
the circumstances of counsel's challenged conduct, to evaluate
the conduct from counsel's perspective and at the time."
Jenkins,
355 Wis. 2d 180, ¶36. We next turn to the record to
determine the circumstances trial counsel faced.
¶59 On direct examination, the prosecution attempted to
introduce screenshots of messages between witness Cheyenne Pugh
and a person she knew only online by the name of Sack Casher.
Defense counsel objected for lack of foundation. He was
overruled. Pugh testified she did not really know who Sack
Casher was. Shortly after, Pugh read a message from that same
unknown sender while testifying. Trial counsel objected to the
statement as hearsay and was overruled. The prosecutor asserted
the statement was offered to "explain further [officers']
investigation," and the court instructed the jury the statement
27
No. 2020AP1362-CR
was offered to demonstrate "merely that there's a statement that
this witness received." The court further explored trial
counsel's initial objection based on foundation, and overruled
it again. In overruling trial counsel's objection, the court
told trial counsel he could "cross-examine regarding the
source." Not long after, trial counsel maintained his objection
based on foundation to admitting documentation of Pugh's
conversation with Casher. He was overruled again. Pugh
testified Kia Wade sent her a photo, "[a]nd after [Wade] sent me
the picture, she told – she wrote comments that he was in the
hood bragging about it." The prosecutor clarified whether that
was "all just rumor," to which Pugh replied "yes."
¶60 While cross-examining Pugh, trial counsel asked Pugh a
series of questions about the origin of the photos she received
implicating Smyth and Mull. Trial counsel elicited that Pugh
did not know the person who sent her Smyth's photo. Pugh
testified about the likely meaning of one of Casher's messages,
"I guess [Smyth] and the young gentlemen . . . had an
altercation. And I guess [Casher] was trying to say after that
fight that's when I guess he shot through the door but he didn't
know that it was Erika."
¶61 These are the circumstances trial counsel faced, and
what we must review relevant to his decisions regarding cross-
examination of Pugh. Pico, 382 Wis. 2d 273, ¶22. The jury
already heard the statement that "he was in the hood bragging
about it" was a rumor. Pugh's statement came out while trial
counsel probed why a mysterious sender she knew only online
28
No. 2020AP1362-CR
blocked her immediately after providing accusatory information.
This is consistent with his trial strategy to attack the
foundation of Pugh's information. Trial counsel had already
objected and been overruled three times during Pugh's
testimony——four if we consider the court's return to trial
counsel's initial objection.
¶62 We recognize this is a close call. Applying the
"strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance," we cannot say that
counsel's strategy not to move to strike or move for a mistrial
was objectively unreasonable under the circumstances he faced.
Id., ¶19 (quoting Strickland,
466 U.S. at 689). Accordingly,
trial counsel's performance was not deficient. Even those
decisions that appear "unwise in hindsight, will not constitute
ineffective assistance of counsel so long as they are
'reasonably founded on the facts and law under the circumstances
existing at the time the decision was made.'" State v. Smith,
2016 WI App 8, ¶14,
366 Wis. 2d 613,
874 N.W.2d 610.
¶63 Although Mull accurately argues that discrediting a
witness and moving to strike "otherwise inflammatory and
prejudicial material" are not "mutually exclusive" strategies,
that is not what we review. Rather, we review whether counsel's
defense strategies were deficient as a matter of law and
prejudicial to the defendant. Strickland, 466 U.S. at 693.
Mull must demonstrate that trial counsel's decision to refrain
from moving to strike or for a mistrial was either irrational or
based on caprice in order to overcome the strong presumption
29
No. 2020AP1362-CR
that his trial counsel's strategy was reasonable. Breitzman,
378 Wis. 2d 431, ¶65. Mull has not done so.
¶64 Because we conclude trial counsel did not perform
deficiently, we do not review prejudice to Mull. We conclude
Mull had the necessary assistance to justify reliance on the
jury's verdict. Strickland, 466 U.S. at 692.
C. The Interest of Justice
¶65 In postconviction motions, Mull raised the interest of
justice as a basis for a new trial. The court of appeals did
not consider this issue, but both the State and Mull ask us to
review his request.
¶66 An appellate court grants a new trial "(1) whenever
the real controversy has not been fully tried; or (2) whenever
it is probable that justice has for any reason miscarried."
State v. Hicks, 202 Wis. 2d 150, 159-60,
549 N.W.2d 435 (1996).
¶67 Under the first scenario, we have said the real
controversy has not been fully tried in two situations. First,
when "the jury was erroneously not given the opportunity to hear
important testimony that bore on an important issue of the
case." State v. Henley, 2010 WI 97, ¶81,
328 Wis. 2d 544,
787
N.W.2d 350. Second, when "the jury had before it evidence not
properly admitted which so clouded a crucial issue that it may
be fairly said that the real controversy was not fully tried."20
State v. Cameron,
2016 WI App 54, ¶31,
370 Wis. 2d 661, 885
20 Mull does not argue that the circuit court had improperly
admitted evidence that clouded a crucial issue.
30
No. 2020AP1362-CR
N.W.2d 611. Under this first category of cases, an appellate
court need not make a determination that the "outcome would be
different on retrial." Vollmer v. Luety, 156 Wis. 2d 1, 19,
456
N.W.2d 797 (1990).
¶68 By contrast, when a claim is made of "a miscarriage of
justice," an appellate court must conclude that there is a
"substantial probability of a different result on retrial,"
before granting a new trial. Id.; Henley, 328 Wis. 2d 544, ¶81;
State v. Zdzieblowski,
2014 WI App 130, ¶24,
359 Wis. 2d 102,
857 N.W.2d 622. We address each issue in turn.
¶69 Mull argues the real controversy was not fully tried
because "[i]mportant evidence was left out of the trial." Mull
identifies four categories of evidence that the jury was not
given the opportunity to weigh. First, evidence connecting
Smyth and his friends to the shooting, and second, evidence
directly implicating Smyth or one of his friends. These two
categories of evidence amount to third-party perpetrator
evidence, which merely repackage Mull's ineffective assistance
of counsel claims. We will not address these points further, as
we addressed them above. See State v. Goetsch, 186 Wis. 2d 1,
23,
519 N.W.2d 634 (1994) (Arguments for a new trial in the
interest of justice may fail if they simply rehash rejected
arguments regarding the ineffective assistance of counsel.).
¶70 Mull next asserts the jury erroneously was not given
the opportunity to hear "other evidence tending to exonerate
Mr. Mull," but the evidence he identifies focuses on four
witnesses discussed earlier. Keshawna Wright and Elicia Burrows
31
No. 2020AP1362-CR
could not be located. While it is true that Charles Cantrell
did not identify Mull in a photo array, he also told
investigators he "only heard the gun shots but didn't see the
shooter." Lastly, Jalyn Lynch's statement to officers that he
"didn't remember seeing [Mull] at the party," was based on a
"single [Facebook] photo," that police had obtained from Pugh
and showed Lynch.
¶71 Finally, Mull argues the jury erroneously was denied
the opportunity to hear "evidence tending to call into question
Smyth's credibility and believability." We disagree. The jury
heard that Smyth's answers were often noncommittal and that
Smyth became "agitated with this shit" referring to the
prosecutor's and defense counsel's questioning. The jury also
heard that Smyth and his friends had been involved in the fight,
Smyth was inside the house at the time shots were fired, Smyth
"[thought]" he had seen Tyler Harris with a gun in the living
room, Smyth had a prior criminal record, had been on probation,
was right-handed, and was originally arrested for Ms. Walker's
homicide. The jury heard other witnesses discuss the initial
stages of the investigation, which focused on Smyth. While Mull
now identifies other ways Smyth's credibility could have been
attacked while testifying, the jury had ample opportunity to
weigh Smyth's credibility and believability. Lastly, we note
that whether Smyth was a credible or believable witness was not
the "real controversy" of the trial we must review when
considering whether to grant a new trial. Avery, 345 Wis. 2d
407, ¶39.
32
No. 2020AP1362-CR
¶72 Rather, the real controversy of the trial was whether
Mull was the person who shot through the door and killed
Ms. Walker. During closing argument the prosecutor stated, "The
big question is identity. . . . Is Mr. Mull the shooter or is
the wrong person on trial?" Mull's attorney reiterated "the
State is right, this is an issue of identification."
¶73 The jury had the opportunity to hear and consider a
plethora of expected and unanticipated evidence over the course
of the four-day trial. Butler recanted his identification of
Mull as the shooter while on the stand. Hubbard, the person to
whom Mull reportedly said, "I shot through the door," stated
that a detective "basically like bribed me here" to testify.
Witnesses testified about the shooter's clothing, which was not
consistent with what witnesses claimed Mull wore that evening.
Detectives testified regarding the photo array process and that
they did not attempt to "conduct a photo array of the people who
had guns" as identified by Smyth.
¶74 The jury was given the opportunity to hear evidence
that bore on the central issue of the case before the jury——
whether Mull was the shooter or an innocent man. Henley, 328
Wis. 2d 544, ¶81. That was the real controversy.21 Based on the
Contrary to what may have seemed desirable to Mull, the
21
prosecutor could not charge four people with Ms. Walker's death
and put them on trial together for the jury to determine who was
the shooter. Other jurisdictions have rightfully failed to
condone "[t]his gladiator-style trial." People v. Gutierrez,
499 P.3d 367, ¶40 (Colo. App. 2021). "Under our system society
carries the burden of proving its charge against the
accused . . . . It must establish its case . . . by evidence
independently secured through skillful investigation . . . ."
33
No. 2020AP1362-CR
evidence presented at trial, we conclude that Mull has "not
demonstrated this is an exceptional case requiring our
discretionary grant of a new trial because we are satisfied that
the real controversy has been fully tried." Cameron, 370
Wis. 2d 661, ¶32.
¶75 Mull asks for a new trial on the grounds that his
first trial resulted in a miscarriage of justice. However,
Mull's lone paragraph in his brief does little to convince us
that a substantial probability of a different outcome awaits him
in a new trial. Henley, 328 Wis. 2d 544, ¶81. Instead, Mull
rehashes his prior arguments: that the jury did not hear
"important evidence to the determination of [Mull's] guilt," and
that Mull lacked a meaningful defense. We have already
addressed these arguments. Mull also argues that Pugh's hearsay
testimony was improperly admitted. Without deciding the issue,
we note that even if we assume Pugh's testimony were improperly
admitted, it would not warrant the extraordinary remedy Mull
seeks. Accordingly, we decline to exercise our exceptional
power to grant a new trial in the interest of justice.
Armstrong,
283 Wis. 2d 639, ¶114.
III. CONCLUSION
¶76 We conclude that Mull's counsel at trial did not
perform deficiently. Because we make this determination, we
need not assess whether counsel's performance prejudiced the
Watts v. State of Ind., 338 U.S. 49, 54 (1949). Our system
demands "[t]he requirement of specific charges, their proof
beyond a reasonable doubt . . . ."
Id.
34
No. 2020AP1362-CR
defense. Lastly, we decline Mull's request to grant him a new
trial in the interest of justice because the controversy was
fully tried below and it is not probable that justice has
miscarried for any reason. Accordingly, we reverse the court of
appeals.
By the Court.—The decision of the court of appeals is
reversed.
35
No. 2020AP1362-CR.rfd
¶77 REBECCA FRANK DALLET, J. (dissenting). When we
evaluate whether an attorney's performance was constitutionally
ineffective, we must defer to trial counsel's objectively
reasonable strategic decisions. See State v. Breitzman, 2017 WI
100, ¶65,
378 Wis. 2d 431,
904 N.W.2d 93. But for that
deference to apply, counsel's decisions must be the result of
reasoned strategic judgment rather than a
mere "post hoc rationalization" for counsel's conduct. Wiggins
v. Smith,
539 U.S. 510, 526 (2003).
¶78 In this case, Jovan Mull alleges two "strategic"
decisions made by counsel at his first-degree reckless homicide
trial were ineffective: (1) Relying on a run-of-the-mill
reasonable doubt defense when a far more compelling third-party
perpetrator (Denny1) defense was possible based on the ample
evidence that someone other than Mull committed the crime; and
(2) not challenging the admission of Mull's alleged hearsay
confession and then eliciting further details about it.
¶79 I reluctantly agree with the majority that, in light
of the circuit court's factual findings, counsel's decision to
pursue a reasonable doubt defense was objectively reasonable.
See majority op., ¶51. The same cannot be said, however, of
counsel's decisions regarding Mull's alleged hearsay confession.
Because I conclude that counsel's performance on that score was
deficient and prejudicial, I respectfully dissent.
See State v. Denny, 120 Wis. 2d 614,
357 N.W.2d 12 (Ct.
1
App. 1984) (setting forth various requirements for defendants
who assert that a third party is responsible for the alleged
crime).
1
No. 2020AP1362-CR.rfd
I
¶80 Mull, Vashawn Smyth,2 Menjuan Bankhead, and Tyler
Harris all attended a party at Ericka Walker's house. A huge
brawl erupted after Smyth and another partygoer, Davion Crumble
bumped into each other. Walker attempted to intervene and
pulled Crumble into a bedroom adjacent to the main living room.
Someone then fired through the bedroom door, killing Walker.
¶81 More than twenty-five partygoers gave the police
conflicting statements about what happened. They described
anywhere between two and eight people standing near the bedroom
door at the time of the shooting. And their descriptions of the
shooter varied widely. Witnesses described the shooter as
wearing a red sweatshirt, a blue sweatshirt, a red and black
hoodie, or a white t-shirt with blue jeans. Various eyewitness
accounts place Smyth, Bankhead, and Harris in front of the door
to the bedroom, two of them armed, with Bankhead shouting
"[s]hoot through that motherfucker." The police initially
focused their attention on Smyth, who one witness identified as
the shooter with "absolute[] certain[ty]." But after Walker's
former girlfriend, Cheyenne Pugh, showed police Facebook
messages which said that Mull was the shooter, they turned their
attention to him. The State eventually charged Mull with first-
degree reckless homicide.
2The record contains numerous alternate spellings for the
names of those involved. Both the majority and I use the
spellings used at trial for those who testified and the
spellings that appear most commonly in the record for those that
did not. See majority op., ¶7 n.3.
2
No. 2020AP1362-CR.rfd
¶82 Given the inconsistent eyewitness accounts and strong
evidence pointing to multiple other possible shooters,3 any
reasonable trial counsel should have at least considered
mounting a third-party perpetrator defense. See Denny, 120
Wis. 2d at 624 (requiring evidence demonstrating a third party's
motive, opportunity, and direct connection to the crime in order
to assert such a defense). After all, when it's available, a
third-party perpetrator defense is much more compelling than
attacking the sufficiency of the State's evidence through a mere
reasonable doubt defense. That is because a third-party
perpetrator defense seeks affirmatively to disprove the
defendant's guilt, and therefore answers the question left open
by any reasonable doubt defense: if not the defendant, then who
committed the crime? Indeed, research shows that "jurors tend
to base decisions on the presentation of a persuasive story, the
strength of which is judged in part on the completeness of key
story elements."4 Thus, all else being equal, it's better to
point to a third-party who had the motive, opportunity and a
direct connection to the crime than simply to poke holes in the
State's case.
3 The majority assumes without deciding that a third-party
perpetrator defense can point to "multiple alternative
suspects," rather than just one. Majority op., ¶42. I see no
reason why Mull or any other defendant asserting a third-party
perpetrator defense should be limited to just one alternative
suspect if, as here, multiple people are directly connected to
the crime and had both the motive and opportunity to commit it.
See Denny, 120 Wis. 2d at 624.
4 David S. Schwartz and Chelsey B. Metcalf, Disfavored
Treatment of Third-Party Guilt Evidence, 2016 Wis. L. Rev. 337,
341 (2016).
3
No. 2020AP1362-CR.rfd
¶83 Yet Mull's attorney mounted a reasonable doubt defense
at trial anyway. He did not call any witnesses, and instead
relied on cross-examination of the State's witnesses in an
attempt to establish reasonable doubt that Mull was the shooter.
That effort failed, and Mull was convicted.
¶84 Mull filed a post-conviction motion alleging that his
trial counsel was ineffective for failing to assert a third-
party perpetrator defense. At the Machner5 hearing, counsel
testified that although he considered it, he did not pursue a
third-party perpetrator defense "because it was difficult to
locate witnesses who would support that defense." There are
good reasons, however, to doubt whether counsel or his
investigator made any effort whatsoever to reach key witnesses
who would have supported a third-party perpetrator defense.
When pressed for specifics, counsel's refrain was that he didn't
remember or didn't have his files. For example, counsel
couldn't remember whether he tried to locate Keshawna Wright,
who identified Smyth——not Mull——as the shooter in a police photo
array with "absolute[] certain[ty]." Similarly, counsel
couldn't recall any specific efforts he made to locate Jalyn
Lynch, who saw Bankhead holding a handgun while trying to get
into the bedroom, and heard him yell "shoot, shoot." And
despite his suggestion that his investigator might know more, as
it turns out, she didn't have a file or notes either. Nor did
she remember anything about any witnesses in the case or even if
she tried to contact or interview anyone.
5 State v. Machner, 92 Wis. 2d 797,
285 N.W.2d 905 (Ct. App.
1979).
4
No. 2020AP1362-CR.rfd
¶85 Despite counsel's inability to remember much, if
anything, about the efforts made to identify or locate witnesses
to support a third-party perpetrator defense, the circuit court
nevertheless "found him to be credible as to what he could
remember and the things that he said." Thus, the circuit court
"accept[ed] his testimony as it was stated at the [Machner]
hearing" that he decided to forego a third-party perpetrator
defense "in consultation with Mr. Mull and . . . based upon the
difficulty in locating and identifying witnesses."6 Accordingly,
the circuit court concluded that counsel's decision to pursue a
reasonable doubt defense was an objectively reasonable strategic
decision and denied Mull's post-conviction motion.
¶86 In reviewing a claim of ineffective assistance of
counsel we must accept the circuit court's findings of fact
unless they are clearly erroneous. State v. Pico, 2018 WI 66,
¶13,
382 Wis. 2d 273,
914 N.W.2d 95. And as credulous as the
circuit court's findings are, I cannot say they are clearly
erroneous. Because the circuit court found that counsel tried
and failed to locate witnesses to support a third-party
6Even if we accept trial counsel's assertion that his
decision to forego a third-party perpetrator defense was based
on the difficulty locating witnesses, it nevertheless appears
that counsel might have been able to assert such a defense with
respect to Smyth, who testified at trial. In order for that
defense to have been compelling, however, counsel would have
needed admissible evidence of Wright's statement to the police
that she was "absolutely certain" that Smyth was the shooter.
But as the circuit court concluded, counsel was unable to locate
Wright, and without her appearing at trial, the police report
containing her statement identifying Smyth would have been
inadmissible.
5
No. 2020AP1362-CR.rfd
perpetrator defense, counsel's decision to pursue a reasonable
doubt defense was objectively reasonable, and his performance in
that regard was therefore not deficient. See id., ¶19.
II
¶87 Counsel's decision to pursue a reasonable doubt
defense may have been within the bounds of reasonableness, but
the same cannot be said of his decisions regarding Mull's
alleged hearsay confession.7 In concluding otherwise, the
majority relies on an incomplete picture of the facts and
overemphasizes the presumption that counsel's actions were
reasonable.
¶88 The majority's analysis gets off on the wrong foot
with an attempt to "reconstruct the circumstances of counsel's
challenged conduct." Majority op., ¶58. It tries to show that
counsel's failure to object to Pugh's testimony about Mull's
7Mull's postconviction motion alleged that counsel was
ineffective because he "fail[ed] to object to impermissible and
unreliable hearsay testimony . . . that Mr. Mull was the shooter
[and] . . . continu[ed] to elicit hearsay testimony of this
nature during his cross-examination . . . without ever
moving . . . to have the offending answer stricken."
The circuit court denied that motion without a hearing.
Mull appealed and the court of appeals reversed in part,
concluding that Mull was entitled to a Machner hearing only on
his claims that counsel was ineffective for "failing to move to
strike or for a mistrial following hearsay testimony elicited on
cross-examination." State v. Mull, No. 2018AP1349-CR,
unpublished slip op., ¶1 (Wis. Ct. App. July 23, 2019). The
problem with the court of appeals' narrow framing is that the
failure to move to strike or for a mistrial is inseparable from
the rest of counsel's decisions regarding Mull's alleged hearsay
confession. Accordingly, I analyze all of those decisions
together.
6
No. 2020AP1362-CR.rfd
alleged hearsay confession was reasonable because "[t]rial
counsel had already objected and been overruled three times
during Pugh's testimony." Id., ¶61. The implication is that it
would have been futile for counsel to object again when Pugh
testified about an alleged hearsay confession by Mull. See id.,
¶59. Based on this retelling, the majority concludes that
counsel's strategy was objectively reasonable "under the
circumstances he faced." Id., ¶62.
¶89 But the "circumstances he faced" demonstrate just the
opposite. Read in full, the transcript instead shows that
counsel's prior objections were on substantially different
grounds to a different line of questioning about a different
exhibit that identified a different person as the shooter. At
trial, the State called Pugh, who did not attend the party, to
testify about Facebook messages she received from a person named
Sack Casher, regarding the identity of the shooter. Screenshots
of these messages appeared in exhibit 44. Counsel first
objected to exhibit 44 based on foundation, but the circuit
court did not rule immediately. When later given a chance to
elaborate, counsel questioned the screenshot's authenticity and
asked for the "http address" of the original message thread.
The circuit court then overruled this objection to exhibit 44's
foundation, noting that counsel could "cross-examine regarding
the source." Bizarrely, counsel's only hearsay objection was to
one of the screenshots in exhibit 44 in which Casher said that
Smyth——not Mull——was the shooter. That objection was overruled
on the grounds that the screenshot was not offered for the truth
7
No. 2020AP1362-CR.rfd
of the matter asserted but instead to show why the investigation
initially focused on Smyth. When exhibit 44 was eventually
offered into evidence, counsel reiterated his earlier objection
to the foundation and authenticity of the exhibit and was
overruled.
¶90 None of these objections related to exhibit 40, the
photo of Mull that Kia Wade——not Sack Casher——sent to Pugh. It
was in an exchange about that exhibit that Pugh first described
an alleged hearsay confession by Mull, stating that "after
[Wade] sent me the picture, she told –- she wrote comments that
[Mull] was in the hood bragging about [the shooting]." Counsel
made no objection to that testimony. In fact, counsel made no
objections at all to any of Pugh's testimony about Mull. Given
the full context, there is no reason to assume, as the majority
does, that it would have been futile for counsel to object to
Pugh's testimony about exhibit 40 because he "had already
objected and been overruled." Majority op., ¶61.
¶91 To establish deficient performance, a petitioner "must
show that 'counsel's representation fell below an objective
standard of reasonableness.'" Harrington v. Richter, 562 U.S.
86, 104 (2011) (quoting Strickland v. Washington,
466 U.S. 668,
688 (1984)). Once we take into account the important
distinction between counsel's objections to exhibit 44 and
Pugh's hearsay testimony regarding exhibit 40, counsel's
deficiencies become clear. Most obviously, counsel should have
objected to Pugh's inflammatory testimony about Mull's alleged
hearsay confession. And such an objection, had it been made,
8
No. 2020AP1362-CR.rfd
should have been sustained. That is because Pugh's statements
that Mull bragged about committing the homicide were
quintessential hearsay: Pugh was relaying an out-of-court
statement by Kia Wade for the truth of the matter asserted,
namely that Mull was bragging about killing Walker.8 See Wis.
Stat. § 908.01(3). Counsel then compounded that error by asking
Pugh during cross-examination for details about the alleged
confession. That led Pugh to reiterate and expand upon the
hearsay testimony, stating that "another lady was telling me
about [Mull] . . . being in the hood bragging about it saying
that he hit a lick over there on 35th and he killed the stud
bitch." Finally, rather than move to strike the alleged hearsay
confession, counsel appeared to give credence to it by asking
the witness what Mull would have meant by the term "stud bitch,"
which Pugh said was a reference to "a female who dresses like a
guy." For these reasons, counsel's actions in this regard did
not simply "deviate[] from best practices." Richter,
562 U.S.
at 105. Instead, they "amounted to incompetence under
'prevailing professional norms.'"
Id. (quoting Strickland,
466
U.S. at 690).
The circuit court ruled that the Facebook messages in
8
exhibit 44 pointing to Smyth as the shooter could not be used
for their truth but could be used to explain how the police
investigation unfolded. Whatever the merits of that ruling, the
same exception to the hearsay rule couldn't apply to Mull's
alleged confession as "the dangers of prejudice" clearly
outweigh its probative value. Jones v. Basinger, 635 F.3d 1030,
1046 (7th Cir. 2011); see also United States v. Benitez-Avila,
570 F.3d 364, 369 (1st Cir. 2009)("A prosecutor cannot justify
the receipt of prejudicial, inadmissible evidence simply by
calling it 'background' or 'context' evidence.").
9
No. 2020AP1362-CR.rfd
¶92 In reaching its contrary conclusion, the majority
treats the "strong presumption" that counsel's conduct was
reasonable as conclusive of the question before us. See
majority op., ¶62. But the strong presumption that "the
challenged action 'might be considered sound trial strategy'" is
not definitive. Strickland, 466 U.S. at 689 (quoting Michel v.
Louisiana,
350 U.S. 91, 101 (1955)). We must still analyze
counsel's actions and decide whether they were, in fact,
reasonable. See State v. Hicks,
195 Wis. 2d 620, 629,
536
N.W.2d 487 (Ct. App. 1995), aff'd,
202 Wis. 2d 150,
549 N.W.2d
435 (1996). The majority sets forth a lengthy account of what
happened at trial but engages in virtually no analysis of why
counsel's actions were not deficient.
¶93 At best, the majority falls back on counsel's supposed
strategic reasons for his actions: that he chose to discredit
Pugh's testimony through cross-examination and wanted to avoid
drawing attention to it by objecting. But these reasons don't
excuse his deficient performance either. For starters, defense
counsel's goal is always to discredit the State's witnesses.
But that cannot mean that an attorney can ignore obvious, highly
inflammatory hearsay because his "trial strategy" is to
discredit the witness later. In any event, objecting to Pugh's
testimony would have furthered, not undermined, his purported
strategy of discrediting her. And besides, counsel undermined
his own alleged strategic goal of diverting the jury's attention
away from these statements when he asked Pugh to elaborate on
the alleged confession during cross-examination and to define
10
No. 2020AP1362-CR.rfd
"stud bitch." Indeed, by doing so, counsel gave credence to the
alleged hearsay confession by treating it as if it actually
occurred. Accordingly, counsel's purported "strategic
decisions" appear to be nothing more than a "post hoc
rationalization" for his clearly deficient performance, thus
satisfying the first prong of Strickland. See Wiggins, 539 U.S.
at 526.
¶94 As for the second prong, I conclude that counsel's
deficient performance prejudiced Mull. Confessions are "the
most compelling possible evidence of guilt," Miranda v.
Arizona, 384 U.S. 436, 466 (1966), and have such a "profound
impact on the jury, . . . that we may justifiably doubt its
ability to put them out of mind even if told to do so." Arizona
v. Fulminante,
499 U.S. 279, 296 (1991). And as explained
previously, the admissible evidence of Mull's guilt was far from
overwhelming. There were numerous conflicting eyewitness
accounts, many of which pointed to other perpetrators. In that
context, inflammatory testimony that the defendant was bragging
about killing the "stud bitch" could easily have tipped the
balance. See Wiggins
539 U.S. at 534 ("In assessing prejudice,
we reweigh the evidence."); English v. Romanowski, 602 F.3d 714,
730 (6th Cir. 2010) (holding that "the lack of overwhelming
evidence of guilt, combined with the negative consequences of
defense counsel's [deficient performance], sufficiently creates
a reasonable probability that at least one juror would have
struck a different balance."). Accordingly, I conclude that
counsel's actions with regard to Mull's alleged hearsay
11
No. 2020AP1362-CR.rfd
confession "undermine confidence in the outcome," and were
therefore prejudicial. Strickland, 466 U.S. at 694.
¶95 Because Mull received ineffective assistance when his
counsel failed to challenge the admission of an alleged hearsay
confession and then elicited further details about it, I
respectfully dissent.
12
No. 2020AP1362-CR.rfd
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