2014 WI 59

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP46-CR 

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Jimothy A. Jenkins,

 Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 346 Wis. 2d 280, 827 N.W.2d 929

(Ct. App. 2013 – Unpublished)

OPINION FILED: July 11, 2014

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 8, 2014

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Milwaukee

JUDGE: Carl Ashley

JUSTICES:

CONCURRED: CROOKS, J., concurs. (Opinion filed.) 

DISSENTED: ZIEGLER, GABLEMAN, JJ., dissent. Opinion filed. 

NOT PARTICIPATING: 

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs 

by Joseph E. Redding, West Allis, and oral argument by Joseph E. 

Redding.

For the plaintiff-respondent, the cause was argued by Aaron 

O’Neill, assistant attorney general, with whom on the brief was 

J.B. Van Hollen, attorney general. 
2014 WI 59

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP46-CR

(L.C. No. 2007CF1225)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Jimothy A. Jenkins,

 Defendant-Appellant-Petitioner.

FILED

JUL 11, 2014

Diane M. Fremgen

Clerk of Supreme Court

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

remanded. 

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

A. Jenkins, seeks review of an unpublished decision of the court 

of appeals affirming a judgment and order of the Circuit Court 

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

 

1 State v. Jenkins, No. 2012AP46-CR, unpublished slip op. 

(Wis. Ct. App. Jan. 15, 2013).

The Honorable Carl Ashley entered the judgment of 

conviction and imposed sentence. The Honorable Rebecca F. 

Dallet entered the order denying Jenkins' postconviction motion.
No. 2012AP46-CR 

2

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

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

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

§§ 940.01(1)(a), 939.05, and 939.63 (2007-08);

2 one count of 

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

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

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

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

¶3 After trial, the defendant brought a postconviction 

motion seeking a new trial on the grounds that he had 

ineffective assistance of trial counsel and that a new trial was 

required in the interest of justice.3 

¶4 After an evidentiary Machner4 hearing, the circuit 

court denied the defendant's postconviction motion seeking a new 

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

 

2 All subsequent references to the Wisconsin Statutes are to 

the 2007-08 version unless otherwise indicated.

3 Wisconsin Stat. § 805.15(1) reads as follows:

(1) Motion. A party may move to set aside a verdict 

and for a new trial because of errors in the trial, or 

because the verdict is contrary to law or to the 

weight of evidence, or because of excessive or 

inadequate damages, or because of newly-discovered 

evidence, or in the interest of justice. Motions 

under this subsection may be heard as prescribed in s. 

807.13. Orders granting a new trial on grounds other 

than in the interest of justice, need not include a 

finding that granting a new trial is also in the 

interest of justice.

4 State v. Machner, 101 Wis. 2d 79, 303 N.W.2d 633 (1981).
No. 2012AP46-CR 

3

ineffective and that a new trial was not required in the 

interest of justice. The court of appeals affirmed the circuit 

court.

¶5 The defendant raises two issues on review. 

¶6 First, did the defendant receive ineffective 

assistance of trial counsel when defense trial counsel failed to 

present testimony at trial of potentially exculpatory witnesses, 

namely an eyewitness other than the State's witness and 

witnesses with evidence that another person committed the 

homicide for which the defendant was convicted? 

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

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

appeals' discretionary reversal authority pursuant to Wis. Stat. 

§ 752.35?5 

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

counsel was ineffective for failing to call the eyewitness Cera 

 

5 Wisconsin Stat. § 752.35, governing discretionary reversal 

by the court of appeals, reads as follows: 

Discretionary reversal. In an appeal to the court of 

appeals, if it appears from the record that the real 

controversy has not been fully tried, or that it is 

probable that justice has for any reason miscarried, 

the court may reverse the judgment or order appealed 

from, regardless of whether the proper motion or 

objection appears in the record and may direct the 

entry of the proper judgment or remit the case to the 

trial court for entry of the proper judgment or for a 

new trial, and direct the making of such amendments in 

the pleadings and the adoption of such procedure in 

that court, not inconsistent with statutes or rules, 

as are necessary to accomplish the ends of justice.
No. 2012AP46-CR 

4

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

the circumstances in the instant case, that the defendant has 

demonstrated both prongs of the test for ineffective assistance 

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

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

meet the standard of objective reasonableness, and prejudice 

against the defendant that resulted from the trial counsel's 

deficient performance. 

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

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

trial.6

I

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

purposes of this appeal.

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

Anthony Weaver were traveling ran out of gas near 2100 North 

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

45th Street. 

¶12 After leaving the car, the two men met two young 

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

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

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

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

 

6 We need not and do not address whether defense trial 

counsel was ineffective in any other respects, and we do not 

address whether the court of appeals erred in failing to 

exercise its discretionary reversal authority to order a new 

trial in the interest of justice.
No. 2012AP46-CR 

5

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

killing Weaver. The shooter then reentered the vehicle and the 

vehicle drove away.

¶13 Immediately after the shooting, police officers talked 

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

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

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

wearing a hood.

¶14 The next morning, March 24, 2007, Kimber was reinterviewed by the police and shown a photo array, which 

included the defendant. Kimber identified the defendant as the 

shooter. Kimber had known the defendant for at least three 

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

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

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

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

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

Jones was also shown a photo array, which included the 

defendant. She did not select the defendant from the array. In 

a statement attached to the defendant's postconviction motion, 

Jones attests that she also gave a statement that the defendant 

was definitely not the shooter and that she had seen the 

defendant across the street minutes after the shooting occurred. 

The police report does not include these two statements.

¶16 The defendant was arrested and charged. While 

awaiting trial, the defendant shared a jail pod with Corey Moore 

and Christopher Blunt. According to statements and affidavits 
No. 2012AP46-CR 

6

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

recognized the defendant and admitted that he [Blunt] had 

committed the shooting. Moore stated that he overheard this 

conversation. 

¶17 The defendant brought the conversation with Blunt to 

his attorney's attention. Defense trial counsel then informed 

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

Defense trial counsel did not further interview Blunt or Moore.

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

the shooter was the only evidence that directly tied the 

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

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

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

photo array, Kimber identified the defendant. Kimber 

additionally testified that there was a history of disputes 

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

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

 

7 The State and the defendant each called witnesses to 

testify at trial. For example, the State called various police 

officers who responded to the crime scene and conducted 

interviews and photo arrays. The State also called a witness 

who allegedly told police that he had seen the defendant hold a 

firearm similar to the one used in the shooting and a witness 

who allegedly told police that she was in the defendant's 

alleged alibi location and did not see the defendant. None of 

these witnesses introduced evidence that directly connected the 

defendant to the shooting.

8 Police officers testified that at the scene of the 

shooting Kimber said he did not know who shot him.
No. 2012AP46-CR 

7

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

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

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

shooting. 

¶20 McFadden testified that the defendant was asleep and 

that he woke the defendant when the shots were fired. On crossexamination, McFadden also testified that immediately following 

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

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

around 2 p.m. that afternoon. 

¶21 The State and the defendant stipulated that Kimber had 

five adult convictions and four juvenile adjudications, that the 

defendant had two prior juvenile adjudications, and that 

McFadden had one adult conviction and three juvenile 

adjudications. 

¶22 The jury convicted the defendant of the crimes 

charged.

¶23 The defendant moved for a new trial in a 

postconviction motion based upon both (1) ineffective assistance 

of counsel for failing to investigate, subpoena, and present 

witnesses who would have supported the proposition that the 

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

Attached to the postconviction motion were signed statements by 

Jones and Moore obtained by the defendant's postconviction 

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

conversation with Blunt.
No. 2012AP46-CR 

8

¶24 The circuit court granted a Machner evidentiary 

hearing.

¶25 At the Machner hearing, the parties stipulated that 

Moore and Blunt would have testified similarly to the statements 

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

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

admitting to the shooting of Kimber and Weaver. The 

investigator's report about Blunt indicates that Blunt denied 

making those statements and denied knowing the defendant.

¶26 At the Machner hearing, defense trial counsel 

testified that his notes regarding individual witnesses had been 

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

twofold——attacking the credibility of the victim eyewitness, 

Kimber, and providing an alibi for the defendant.

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

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

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

not specifically recall whether he had met or 

interviewed Jones;

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

witness;

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

would have fit with the theory of the case;

• He would have read police reports detailing Jones's 

testimony;

• He could not recall discussing the photo array with 

Jones; and
No. 2012AP46-CR 

9

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

photo array with the relevant police officer.

¶28 At the hearing, Jones testified that:

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

• She told officers that the shooter had a smooth baby 

face, which the defendant does not have;

• She told the officers that the defendant was not the 

shooter;

• She knew the defendant from the neighborhood;

• She spoke with defense trial counsel on multiple 

occasions but was not contacted afterwards or 

subpoenaed to be called as a witness; and

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

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

hood up.

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

a witness, defense trial counsel testified as follows:

• He never talked to Blunt;

• He believed that Moore would have been "credible";

• He requested that the prosecutor interview Moore;

• He could not recall whether he or his investigator 

ever talked to Moore; and

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

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

both with regard to ineffective assistance of counsel and the 

interest of justice.
No. 2012AP46-CR 

10

¶31 The circuit court reasoned that trial counsel was not 

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

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

probability that the result of the proceeding would have been 

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

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

under hearsay rules.10

 

9 The circuit court stated its reasoning at the Machner

hearing as follows:

And the reasons that I think that the defense 

can't meet that burden [of prejudice] is because I 

think there are just way too many inconsistencies with 

Miss Jones' statements and I think all of what she 

testified to is frankly she just did not come across 

as a credible witness. I'm going to go through those 

specifics that show that I don't believe that she was 

credible and I think that the jury would have had 

difficulty with some of these statements as well.

. . . .

So I just think that given the contradictions in 

her testimony, I don't find her credible. I think she 

would have been impeached on the stand with all these 

statements and her descriptions kept changing. And I 

think that based on that, even if she had testified, 

there is not a reasonable probability that the result 

of the proceeding would have been different.

10 The circuit court stated its reasoning at the Machner

hearing as follows: 

I just think in terms of a hearsay analysis at that 

point, that those statements just would not have come 

in in that way. We'd have an alleged statement 

overheard by someone who isn't available, essentially 

not testifying, not being made available by his 

attorney. . . . And then to try to get in what he 

supposedly heard someone else say who also is saying 

he didn't say it, it really is so attenuated. I just 
No. 2012AP46-CR 

11

¶32 The circuit court also decided for the same reasons 

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

¶33 The court of appeals affirmed the circuit court order 

denying the motion for a new trial for ineffective assistance of 

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

of justice. 

II

¶34 Criminal defendants are guaranteed the right to 

effective counsel by the United States and Wisconsin 

Constitutions.11 The benchmark for judging any claim of 

ineffective assistance of counsel is whether counsel's conduct 

so undermined the proper functioning of the adversarial process 

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

result.12 

¶35 Whether a defendant received ineffective assistance of 

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

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

 

don't think that there is that reliability of which 

hearsay statements are based on so as to allow that to 

come in in that fashion.

11 U.S. Const. Amends. VI and XIV; Wis. Const. art. I, § 7.

12 State v. Domke, 2011 WI 95, ¶34, 337 Wis. 2d 268, 805 

N.W.2d 364 (citing State v. Trawitzki, 2001 WI 77, ¶39, 244 

Wis. 2d 523, 628 N.W.2d 801 (quoting Strickland v. Washington,

466 U.S. 668, 686 (1984))).

13 State v. Carter, 2010 WI 40, ¶21, 324 Wis. 2d 640, 782 

N.W.2d 695 (quoting Strickland, 466 U.S. at 687).
No. 2012AP46-CR 

12

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

deficient performance prejudiced the defendant.14 

¶36 When reviewing whether counsel performed deficiently, 

the Strickland standard requires that the defendant show that 

his counsel's representation fell below an objective standard of 

reasonableness considering all the circumstances.15 A court is 

highly deferential to the reasonableness of counsel's 

performance. A court must make every effort to reconstruct the 

circumstances of counsel's challenged conduct, to evaluate the 

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

the distorting effects of hindsight.16 Strategic decisions made 

after less than complete investigation of law and facts may 

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

should not second guess the strategic decisions of counsel with 

the benefit of hindsight, it should also not construct strategic 

defense which counsel does not offer."18

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

defendant must also show prejudice by demonstrating that there 

 

14 Domke, 337 Wis. 2d 268, ¶33 (citing Strickland, 466 U.S. 

at 687).

15 Carter, 324 Wis. 2d 640, ¶22.

16 Id.

17 Id., ¶23.

18 Harris v. Reed, 894 F.2d 871, 878 (7th Cir. 1990) 

(concluding that trial counsel was deficient for failing to 

offer a strategic reason for not calling potentially exculpatory 

witnesses).
No. 2012AP46-CR 

13

is a reasonable probability that the errors "had an adverse 

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

context of ineffective assistance of counsel is whether "there 

is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome."20 The 

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

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

whose result is reliable."

21

 A defendant fails to demonstrate 

prejudice if it appears beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained.22 

¶38 Whether a defendant received ineffective assistance of 

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

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

circumstances of the case and the counsel's conduct and 

 

19 State v. Burton, 2013 WI 61, ¶49, 349 Wis. 2d 1, 832 

N.W.2d 611 (quoting Strickland, 466 U.S. at 693). See also Wis. 

Stat. § 805.18 (harmless error rule, made applicable to criminal 

proceedings by § 972.11(1)).

20 Burton, 349 Wis. 2d 1, ¶49 (quoting Strickland, 466 U.S. 

at 693).

21 Strickland, 466 U.S. at 687.

22 State v. Weed, 2003 WI 85, ¶2, 263 Wis. 2d 434, 666 

N.W.2d 485 (quoting State v. Harvey, 2002 WI 93, ¶44, 254 

Wis. 2d 442, 647 N.W.2d 189).

23 Domke, 337 Wis. 2d 268, ¶33.
No. 2012AP46-CR 

14

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

performance satisfies the standard for ineffective assistance of 

counsel is a question of law which we determine independently of 

the circuit court and court of appeals, benefiting from their 

analysis.25

¶39 We turn to the arguments relating to defense trial 

counsel's ineffective assistance of counsel. 

III

¶40 We first address whether defense trial counsel's 

representation fell below the objective standard of reasonably 

effective assistance.26 

¶41 Failure to call a potential witness may constitute 

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

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

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

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

the family relationship, constitutes deficient performance."27 

See also Goodman v. Bertrand, 467 F.3d 1022, 1030 (7th Cir. 

2006) (the testimony of witnesses who would corroborate the 

 

24 State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 

N.W.2d 305.

25 State v. Neumann, 2013 WI 58, ¶141 n.87, 348 Wis. 2d 455, 

832 N.W.2d 560; Domke, 337 Wis. 2d 268, ¶33 (citing Thiel).

26 Domke, 337 Wis. 2d 268, ¶36.

27 Toliver v. Pollard, 688 F.3d 853, 862 (7th Cir. 2012) 

(quoting Goodman v. Bertrand, 467 F.3d 1022, 1033 (7th Cir. 

2006)).
No. 2012AP46-CR 

15

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

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

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

failure to call witnesses who would have brought in evidence 

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

¶42 Defense trial counsel's deficient performance is clear 

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

eyewitness and could testify about the shooting. He knew her 

statements would contradict or impeach the eyewitness upon whom 

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

Jones had not identified the defendant on the night of the 

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

photo array. 

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

professed trial strategy of discrediting and impeaching the 

State's witness.

¶44 Similarly, Jones's eyewitness testimony would 

corroborate the defendant's version of events and support 

defense trial counsel's professed alibi defense. Jones would 

have testified that she saw the defendant across the street 

immediately after the shooting. 

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

always necessarily constitute deficient performance. The 

failure to call a witness may have been a reasonable trial 

strategy. 
No. 2012AP46-CR 

16

¶46 The record is devoid of any reasonable trial strategy 

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

witness at trial. 

¶47 At the Machner hearing, defense trial counsel could 

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

Indeed, defense trial counsel could not even recall having met 

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

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

reasonable trial strategy. 

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

trial counsel's representation fell below the objective standard 

of reasonably effective assistance.

IV

¶49 As noted above, once deficient performance is 

established, the defendant must demonstrate that the deficient 

performance was prejudicial. To demonstrate prejudice, the 

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

there was a reasonable probability of a different result.

¶50 Our prejudice analysis is necessarily fact-dependent. 

Whether counsel's deficient performance satisfies the prejudice 

prong of Strickland depends upon the totality of the 

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

determined that because of inconsistencies in Jones's statements 

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

postconviction motion papers, and the Machner hearing testimony, 

 

28 Thiel, 264 Wis. 2d 571, ¶62.
No. 2012AP46-CR 

17

the defendant did not demonstrate a reasonable probability that 

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

different.29 We disagree with these courts.

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

we hold that the defendant sufficiently demonstrated a 

reasonable probability that a different result would have 

occurred but for the failure to call Jones.

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

testimony of one eyewitness, the victim Kimber. The defense 

offered no contradictory eyewitness testimony. No physical 

evidence directly tied the defendant to the shooting. 

¶53 In such a case, contradictory eyewitness testimony 

supporting the defendant would expose vulnerabilities at the 

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

about Jones and that she could contradict the prosecution's 

central eyewitness testimony, the excluded contradictory 

eyewitness would have contributed strongly to doubts regarding 

the prosecution's case. See United States ex rel. Hampton v. 

Leibach, 347 F.3d 219 (7th Cir. 2003) (concluding that failure 

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

prejudicial).

¶54 Jones's testimony also would have supported the 

defendant's own testimony that the defendant was in a 

 

29 State v. Jenkins, No. 2012AP46-CR, unpublished slip op.

¶¶15-17 (Wis. Ct. App. Jan. 15, 2013).
No. 2012AP46-CR 

18

neighboring house at the time of the shooting and came out 

afterwards. 

¶55 Although Jones's statements were not necessarily 

consistent over time, and her credibility could be challenged, 

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

more substantial credibility problems. 

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

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

same characterization could be applied to the statements of the 

prosecution witness, Kimber, whose memory of the shooting seemed 

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

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

The next morning, he affirmatively identified the defendant in a 

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

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

police report and an officer's testimony contradicted him.

¶57 The court of appeals noted that Jones was inconsistent 

in describing her involvement in a marijuana sale earlier in the 

evening. Yet Kimber was involved in the same transaction, with 

similarly inconsistent testimony.

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

credibility was not subject to attack by a prior criminal 

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

convictions or juvenile adjudications; his prior convictions may 

be used to attack his credibility.30 

 

30 See Wis. Stat. § 906.09; State v. Gary M.B., 2004 WI 33, 

¶21, 270 Wis. 2d 62, 676 N.W.2d 475.
No. 2012AP46-CR 

19

¶59 In the particular credibility contest in the present 

case, in which 

• both eyewitnesses had inconsistencies in their 

statements; 

• the prosecution eyewitness had an extensive criminal 

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

eyewitness had none; 

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

its eyewitness identification; and 

• no physical or other evidence directly tied the 

defendant to the crime; 

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

give testimony contradictory to that of the State's eyewitness 

had a reasonable probability of affecting the result of the 

case.

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

weakly supported by the record is more likely to have been 

affected by errors than one with overwhelming record support." 

Strickland, 466 U.S. at 696. 

¶61 Our conclusion that defense trial counsel's deficient 

performance in the instant case was prejudicial is supported by 

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

which the court granted relief because defense trial counsel's 

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

by excluding entirely the testimony that would have most 

supported the defendant's theory. The Washington court declared 

that the additional witnesses themselves had weaknesses and 
No. 2012AP46-CR 

20

potential inconsistencies, but "the mere fact that some negative 

evidence would have come in with the positive does not eliminate 

the prejudicial effect of leaving corroborative evidence 

unintroduced" and inconsistencies in the prosecution's own 

witnesses' testimony made it more likely that the additional 

corroboration of alibi witnesses would change the result of the 

case.

¶62 Wisconsin case law has similarly recognized that when 

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

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

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

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

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

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

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

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

some negative evidence would have come in with the positive does 

not eliminate the prejudicial effect of leaving corroborative 

evidence unintroduced." Cooks, 297 Wis. 2d 633, ¶63. 

¶64 In assessing the prejudice caused by the defense trial 

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

counsel's deficient performance, a circuit court may not 

substitute its judgment for that of the jury in assessing which 

testimony would be more or less credible.31

 

31 In contrast, in a Machner hearing, a circuit court may 

weigh the credibility of the witnesses, including trial counsel, 

in assessing the deficiency and reasonableness of the trial 

counsel's performance.
No. 2012AP46-CR 

21

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

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

concluded that defense counsel in that case was deficient in 

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

internal inconsistencies and credibility concerns regarding that 

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

prejudicial. The perceived weaknesses in the witness's 

testimony "would have been a factor for the jury to 

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

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

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

we conclude that defense trial counsel's performance was 

prejudicial to the defendant; there is a reasonable probability 

that the result of the proceeding would have been different had 

defense trial counsel called Jones to testify at trial.

* * * *

¶67 We conclude, under the totality of the circumstances 

in the instant case, that the defendant has demonstrated both 

prongs of the test for ineffective assistance of counsel as 

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

deficient performance that did not meet the standard of 

objective reasonableness, and prejudice against the defendant 

that resulted from the trial counsel's deficient performance. 

 

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

682 N.W.2d 12.
No. 2012AP46-CR 

22

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

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

trial.

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

reversed and the cause is remanded for a new trial.
No. 2012AP46-CR.npc

1

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

that the defendant was denied his constitutional right to 

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

failure to present the eyewitness testimony of Cera Jones at 

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

to provide guidance on an issue of central importance not fully 

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

circuit court properly scrutinized and weighed the credibility 

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

ineffective assistance of counsel test set forth in Strickland 

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

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

was both briefed and argued before us.

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

determining whether a defendant received ineffective assistance 

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

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

687). The first prong requires the defendant to show that trial 

counsel's performance was deficient. Id. The second prong 

requires the defendant to prove that trial counsel's deficient 

performance prejudiced the defense. Id. 

¶71 In discussing the issue of ineffective assistance, the 

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

the prejudice prong of the Strickland analysis, rather than on 

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

 

1 The record is clear that the circuit court made no 

findings of fact——credibility or otherwise——with respect to 

trial counsel's deficient performance.
No. 2012AP46-CR.npc

2

The circuit court ultimately concluded that trial counsel was 

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

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

to call Jones was deficient, such an unprofessional error did 

not prejudice the defendant because there was not a reasonable 

probability that Jones's testimony would have altered the 

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

credible witness. 

¶72 The circuit court erred in discrediting Jones's 

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

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

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

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

defendant attempting to establish prejudice for purposes of an 

ineffective assistance of counsel claim need only show a 

reasonable probability that, but for counsel's unprofessional 

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

State v. Thiel, 2003 WI 111, ¶20, 264 Wis. 2d 571, 665 N.W.2d 

305 (quoting Strickland, 466 U.S. at 694). As to the latter 

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

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

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

¶73 A proper application of the above legal principles to 

the facts of this case would require the circuit court to 

consider the following questions in assessing whether trial 

counsel's error in failing to call Jones prejudiced the 

defendant: (1) Was Jones's testimony within the realm of 
No. 2012AP46-CR.npc

3

believability in light of the totality of circumstances of the 

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

the defendant's theory of the case? 

¶74 Had the circuit court limited its inquiry to these 

questions, it would have correctly reserved questions as to the 

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

I.

¶75 A criminal defendant has a fundamental right to a 

trial by jury guaranteed by the Sixth Amendment to the United 

States Constitution and Article I, Section 7 of the Wisconsin 

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

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

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

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

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

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

instructs,

It is the duty of the jury to scrutinize and to weigh 

the testimony of witnesses and to determine the effect 

of the evidence as a whole. You are the sole judges of 

the credibility, that is, the believability of the 

witnesses and of the weight to be given to their 

testimony.

¶76 While under certain circumstances it is possible for a 

circuit court to determine that a witness's testimony is 

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

though there be glaring discrepancies in the testimony of a 

witness at trial, or between his [or her] trial testimony and 

his [or her] previous statements, that fact in itself does not 
No. 2012AP46-CR.npc

4

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

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

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

factfinder believes one version rather than another or chooses 

to disbelieve the witness altogether. Only a question of 

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

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

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

unusual either, and normally these are left for the factfinder 

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

that of the factfinder in this regard except where the evidence 

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

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

916 (1966). 

II.

¶77 The legal principle that it is normally the province 

of the jury to scrutinize and weigh the testimony of witnesses 

in criminal cases must apply when a circuit court is addressing 

the prejudice prong of a claim for ineffective assistance. See

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

context of ineffective assistance is entirely consistent with 

the test for determining prejudice set forth in Strickland. 

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

a reasonable probability that, but for counsel's unprofessional 

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

v. Domke, 2011 WI 95, ¶54, 337 Wis. 2d 268, 805 N.W.2d 364 

(quoting Strickland, 466 U.S. at 694). In the context of a 
No. 2012AP46-CR.npc

5

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

reasonable probability that, absent the errors, the factfinder 

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

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

probability is a probability sufficient to undermine confidence 

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

¶79 Importantly, in order to establish prejudice, a 

defendant need not show that counsel's unprofessional error more 

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

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

where a circuit court requires a defendant to convince the court 

as to the believability of an uncalled witness in order to 

establish prejudice, it not only ignores the role that a 

factfinder typically plays in determining the guilt or innocence 

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

defendant that was expressly considered and rejected by the 

United States Supreme Court in Strickland.

¶80 Unfortunately, we have not specifically addressed the 

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

the credibility of an uncalled witness for purposes of assessing 

the prejudice prong of a claim for ineffective assistance. The 

result is that we have produced opinions reflecting somewhat 

inconsistent views on the topic. 

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

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

case involving a claim of ineffective assistance based on trial 

counsel's failure to call a witness. Specifically, we agreed
No. 2012AP46-CR.npc

6

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

trial would not have been different had the testimony of the 

uncalled witness been presented at trial because the uncalled 

witness "could have been easily impeached by other inconsistent 

testimony." Id.

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

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

ineffective assistance based on trial counsel's failure to call 

certain witnesses, we concluded that the defendant had satisfied 

his burden of establishing prejudice notwithstanding the "the 

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

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

exculpatory confession that was the subject of the uncalled 

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

Guerard had not made an explicit credibility determination with 

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

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

the proper role of the jury to determine the weight and 

credibility to assign to the exculpatory confession at issue. 

Id.

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

decision to scrutinize and weigh the credibility of an uncalled 

witness for purposes of assessing prejudice in the context of 

ineffective assistance, Guerard provides the better approach. 

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

controlling legal principles in Wisconsin, whereas Vennemann's 

approach is not. Specifically, the court's discussion in 
No. 2012AP46-CR.npc

7

Vennemann does not appear to contemplate that: (1) the wellestablished rule in Wisconsin is that witness credibility 

determinations in criminal cases are generally reserved for the 

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

Strickland's prejudice prong does not require a defendant to 

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

produce a different result.3

¶84 That Guerard provides the better approach toward 

dealing with a circuit court's ability to make credibility 

determinations in assessing prejudice for purposes of an 

ineffective assistance claim is confirmed by the United States 

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

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

Appeals for the Sixth Circuit held that a state circuit court 

erred in discrediting the testimony of three potential witnesses 

when assessing whether trial counsel's failure to investigate 

those witnesses prejudiced the defense, in violation of the 

defendant's constitutional right to effective assistance of 

counsel. The Ramonez court refused to defer to the circuit 

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

of the witnesses, reasoning in pertinent part that "our 

 

2 See, e.g., State v. Friedrich, 135 Wis. 2d 1, 16, 398 

N.W.2d 763 (1987) ("The credibility of witnesses and the weight 

given to their testimony are matters left to the jury's 

judgment.").

3 State v. Pitsch, 124 Wis. 2d 628, 641, 369 N.W.2d 711 

(1985) (explaining that, in establishing prejudice in the 

context of an ineffective assistance of counsel claim, a 

defendant need not demonstrate that counsel's deficient error 

more likely than not altered the outcome of the trial.).
No. 2012AP46-CR.npc

8

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

the credibility of witnesses in deciding a criminal defendant's 

guilt or innocence." Id.

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

and Ramonez in addressing the standard for a "reasonable 

probability of a different outcome" in a case involving the 

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

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

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

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

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

determined that the victim's recantation was less credible than 

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

defendant had failed to establish a reasonable probability of a 

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

¶86 On review, we concluded that the circuit court 

"employed the wrong legal standard when determining that there 

was not a reasonable probability of a different outcome." Id.

at 475-76. We explained that the proper standard asked whether 

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

the accusation and the recantation, would have a reasonable 

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

Accordingly, we were troubled by the circuit court's 

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

conclusion of "no reasonable probability of a different 
No. 2012AP46-CR.npc

9

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

at 474-75.4

¶87 Thus, while we have not specifically addressed the 

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

the credibility of an uncalled witness for purposes of assessing 

prejudice in the context of ineffective assistance, I believe 

that Guerard and Ramonez are instructive in that they advocate 

an approach that most clearly comports with controlling legal 

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

to resolve questions as to the credibility and significance of 

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

III.

¶88 Because there are instances in which a circuit court 

can properly determine that a witness's testimony is incredible 

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

a circuit court must always conclude that a defendant was 

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

witness at trial. Rather, the better approach is for a circuit 

court to consider the following questions when evaluating 

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

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

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

 

4 The McCallum concurrence suggested that, when faced with a 

recantation and an accusation, "[t]he circuit court does not 

determine which of the two statements is more credible; the 

circuit court is not to act as a thirteenth juror." State v. 

McCallum, 208 Wis. 2d 463, 490, 561 N.W.2d 707 (1997) 

(Abrahamson, C.J., concurring).
No. 2012AP46-CR.npc

10

uncalled witness's testimony materially beneficial to the 

defendant's theory of the case?

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

simply ask whether the uncalled witness's testimony has any 

indicia of credibility in light of the evidence presented at 

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

court may be troubled by inconsistencies in the uncalled 

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

existence of inconsistencies in a witness's testimony does not 

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

matter of law; rather, the existence of discrepancies ordinarily 

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

75 Wis. 2d at 232. 

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

simply consider whether the proposed testimony would be helpful 

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

believe the proposed testimony, it would likely have a 

reasonable doubt respecting the defendant's guilt.

IV.

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

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

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

testimony for the jury to resolve. 

 

5 This type of threshold inquiry pays tribute to the 

"reasonable probability" language of the test for determining 

prejudice set forth in Strickland v. Washington, 466 U.S. 668, 

694 (1984), while not imposing a more heightened burden upon the 

defendant than that contemplated by the United States Supreme 

Court in Strickland.
No. 2012AP46-CR.npc

11

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

was within the realm of believability in light of the totality 

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

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

the shooting was the eyewitness testimony of the victim, Toy 

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

to a credibility determination between Kimber and the defendant.

¶93 It is important to note that Kimber originally told 

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

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

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

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

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

of disputes between people living around North 45th Street, 

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

including the defendant. The record also indicates that Kimber 

had five adult convictions and four juvenile adjudications and 

that Kimber changed his story at trial with respect to his 

identification of the shooter on the night in question.

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

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

accounts, Jones appeared to be a neutral eyewitness to the 

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

someone who possessed a familial or romantic relationship with 

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

 

6 The circuit court never made an explicit finding that 

Jones's testimony was incredible as a matter of law. See

majority op., ¶31 n.9.
No. 2012AP46-CR.npc

12

inconsistencies in Jones's testimony should not have rendered 

her testimony unworthy of belief, particularly in light of 

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

had little evidence that directly linked the defendant to the 

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

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

answer.7

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

testimony was materially beneficial to the defendant's theory of 

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

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

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

clear that Jones's testimony would have helped undermine 

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

would have testified that she knew the defendant from the 

neighborhood and that the defendant was not the shooter. She 

would have further testified that she did not identify the 

defendant to police officers upon viewing a photo array and that 

she told police officers the shooter had a smooth baby face, a 

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

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

alibi defense: she would have testified that she saw the 

defendant across the street from the shooting minutes after the 

shooting occurred, which is consistent with the defendant's 

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

 

7 Indeed, the State conceded this point at oral argument.
No. 2012AP46-CR.npc

13

would likely have created a reasonable doubt respecting the 

defendant's guilt. 

V.

¶96 Because I agree that the defendant was denied his 

constitutional right to effective assistance of counsel, I join 

the majority opinion. However, I write separately to fully 

address the impropriety of the circuit court's decision to 

scrutinize and weigh Jones's testimony in assessing prejudice 

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

Because the general rule in Wisconsin is that witness 

credibility determinations in criminal cases are for the jury to 

decide, and because the test for establishing prejudice in the 

context of ineffective assistance does not require a defendant 

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

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

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

regarding prejudice should have been limited to the following 

questions: (1) was Jones's testimony within the realm of 

believability in light of the totality of circumstances of the 

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

the defendant's theory of the case? 

¶97 Had the circuit court limited its inquiry to the

aforementioned questions, it would have correctly reserved 

questions as to the credibility and significance of Jones's 

testimony for the jury.

¶98 For the reasons stated, I respectfully concur. 
No. 2012AP46-CR.npc

14
No. 2012AP46-CR.akz

1

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

respectfully dissent from the majority opinion. In my view, 

Jenkins did not receive ineffective assistance of counsel in the 

case at issue. Given the highly deferential standard and the 

presumption in favor of finding that counsel's performance was 

objectively reasonable, I conclude that counsel's performance 

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

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

that the result of the proceeding would have been different. 

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

in the interest of justice.1

I. ANALYSIS

¶100 "Whether a convicted defendant received ineffective 

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

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

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

the defendant must prove that counsel's performance was 

deficient. Second, if counsel's performance was deficient, the 

defendant must prove that the deficiency prejudiced the 

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

Strickland test" to succeed on a claim of ineffective assistance 

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

the case at issue.

A. Deficient Performance

 

1 The majority opinion does not address whether Jenkins is 

entitled to a new trial in the interest of justice because it 

concludes that a new trial is warranted on grounds of 

ineffective assistance of counsel.
No. 2012AP46-CR.akz

2

¶101 "To demonstrate deficient performance, the defendant 

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

objective standard of reasonableness' considering all the 

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

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

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

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

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

within the wide range of reasonable professional assistance.'" 

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

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

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

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

¶102 This presumption of constitutional adequacy extends to 

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

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

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

a thorough investigation may be sustained if reasonable, given 

the strong presumption of effective assistance and deference to 

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

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

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

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

to reconstruct the circumstances of counsel's challenged 

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

at the time.'" Carter, 324 Wis. 2d 640, ¶22 (quoting 

Strickland, 466 U.S. at 688).
No. 2012AP46-CR.akz

3

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

performance in the case at issue was not deficient. The 

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

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

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

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

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

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

that counsel concluded that these witnesses were not worth 

calling. In fact, presenting these witnesses might have 

detracted from the defense that counsel was putting forward. 

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

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

term is defined for purposes of ineffective assistance of 

counsel.

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

present evidence that Jenkins could not have been the shooter 

because he was across the street at a "trap" house at the time 

of the shooting.3 In support of this strategy, counsel called 

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

Jenkins was socializing with the night of the shooting, as 

 

2 The majority opinion rests its conclusion of deficient 

performance solely on counsel's decision not to call Jones. As 

a result, the majority opinion does not address counsel's 

decision not to call Blunt and Moore. Majority op., ¶9, n.6. 

Because I conclude that counsel did not perform deficiently, I 

address all the potential witnesses.

3 The record reflects that a "trap" house is a place for 

young people to "hang out . . . smoke weed [and] drink."
No. 2012AP46-CR.akz

4

witnesses. Both Jenkins and McFadden testified that Jenkins was 

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

the majority opinion correctly notes, the prosecution had only 

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

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

and four juvenile adjudications, in its attempt to tie Jenkins 

to the shooting. Id., ¶21.

¶105 At the time counsel was developing Jenkins' defense 

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

statements to police in the days following the shooting. 

According to the police reports, Jones indicated that she did 

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

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

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

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

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

her. Further, Jones initially concealed from police that she 

had been involved in a drug deal just prior to the shooting, but 

subsequently gave several different accounts of that drug deal. 

Jones' inconsistent and less than exculpatory statements provide 

a reasonable explanation for why counsel would not have believed 

that Jones would assist in Jenkins' defense.

¶106 Given that these were the facts available to counsel 

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

her testimony would not necessarily have bolstered Jenkins' 

defense.
No. 2012AP46-CR.akz

5

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

Machner hearing, wherein Jones first claimed that she had also 

told police that Jenkins was definitely not the shooter. The 

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

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

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

on, something that ordinarily does not occur with eyewitnesses. 

The circuit court detailed why Jones would be impeached and how 

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

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

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

the Machner hearing, "there are way too many inconsistencies 

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

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

¶108 The majority opinion fails to properly defer to the 

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

exclude the circuit court's articulated assessments of 

credibility and demeanor, unless they are clearly erroneous." 

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

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

the witnesses and it determined that Jones' testimony is 

relegated to having questionable value, at best. Under these 

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

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

exculpatory testimony. Not calling a drug dealing witness, who 

gave several inconsistent and impeachment-worthy statements to 

police, does not rise to the requisite level of deficient 
No. 2012AP46-CR.akz

6

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

the majority supplants the circuit court's credibility 

determinations with its own credibility assessments. Typically, 

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

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

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

¶23).

¶109 The majority also does not respect the presumption due 

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

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

witness. The majority concludes that counsel should have known 

that the jury would have believed her inconsistent, impeachable 

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

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

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

previous inconsistent statements and her involvement in a drug 

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

for the jury to believe Jones' testimony the jury would have to 

determine that the police lied and that they failed to include 

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

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

known about Jones' exculpatory testimony, counsel's performance 

in not calling Jones still was not necessarily deficient. 

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

reasoned strategy.

 

4 Other significant Brady implications may also arise given 

the assumptions made by the majority. See Brady v. Maryland, 

373 U.S. 83, 87 (1963).
No. 2012AP46-CR.akz

7

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

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

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

opposite rings true. In building his trial strategy, counsel 

testified at the Machner hearing that he "definitely" 

interviewed Jones as a possible witness, though he could not 

remember precisely how many times he spoke with her or the 

substance of those conversations. Jones herself testified at 

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

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

further reflects Jones' only known statements at the time of 

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

postconviction motion that Jones was revealed as a potentially 

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

interview Jones, he likely concluded that she was either not 

exculpatory or not credible. Indeed, at least two other 

potentially exculpatory witnesses besides McFadden were present 

at trial, but counsel chose not to call these witnesses because 

he concluded that they lacked credibility. The presumption due 

to counsel is virtually nonexistent in the majority opinion.

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

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

exculpatory testimony is at the Machner hearing. The Machner

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

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

his file in a flood, it is speculative to assume that Jones' 

testimony at a trial some 30 months previous would have matched 
No. 2012AP46-CR.akz

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her statement at the Machner hearing. Again, the only 

information in the police reports, which were created around the 

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

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

deference to the circuit court, no credible evidence in this 

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

Jones' potentially exculpatory testimony. If the majority were 

to couple the deference due to the circuit court with the 

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

that counsel was deficient. 

¶112 Without presuming that counsel acted effectively, the 

majority nonetheless concludes that counsel was deficient. In 

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

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

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

heard the testimony and reviewed the matter at Jenkins' Machner

hearing.

¶113 Correctly, the majority does not opine that counsel's 

performance was deficient with respect to the other two 

allegedly exculpatory witnesses, Blunt and Moore. According to 

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

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

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

defendant was in jail. Jenkins argues that counsel is deficient 

because while they were in jail together, Blunt allegedly 

confessed to Jenkins that he was the true perpetrator of the 

shooting. Moore allegedly witnessed the confession.
No. 2012AP46-CR.akz

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¶114 Although Blunt later denied having confessed, Jenkins 

nonetheless argues that Moore's hearsay testimony regarding the 

confession could have come in under two hearsay exceptions. See

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

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

conclusion that Jenkins' trial counsel was not ineffective for 

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

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

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

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

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

witness he would have denied knowing Jenkins or anything about 

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

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

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

as a witness was not deficient performance.

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

Jenkins conceded that because Moore was in the postconviction 

phase of his own trial, Moore's attorney refused to allow him to 

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

concession reveals that Jenkins' counsel was not deficient in 

not calling Moore as witness. Such investigation weighs 

strongly in favor of constitutionally adequate performance. See

Carter, 324 Wis. 2d 640, ¶22.

¶118 Further, at the Machner hearing counsel articulated a 

reasonable strategic reason behind not putting the alleged 

confession into evidence: the confession testimony was not 
No. 2012AP46-CR.akz

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

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

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

reasonable determination related to trial strategy, and not 

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

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

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

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

realm of an independent professional judgment.").

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

the defense to build. Witnesses were not exactly cooperative 

with counsel. Counsel was forced to secure the assistance of 

Jenkins' sister to try and get witnesses to cooperate in 

Jenkins' defense. In requesting an adjournment just prior to 

trial, counsel averred that he had enormous problems in locating 

possible witnesses and securing their cooperation. Counsel's 

request for an adjournment was granted. Counsel further 

testified at the Machner hearing that possible witnesses 

regularly failed to show up for scheduled meetings, and that 

they regularly changed their stories from one meeting to the 

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

this speaks to counsel acting in a diligent and professional 

manner under very difficult circumstances. When a witness does 

not cooperate, it cannot always be said that counsel is 

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

witnesses who had given several contradictory statements. 

Counsel was not deficient for failing to call such witnesses.
No. 2012AP46-CR.akz

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

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

shooting. Jenkins had a witness who corroborated his testimony, 

and refuted the sole witness for the prosecution. Counsel 

described McFadden at the Machner hearing as "quite cooperative 

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

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

counsel a "multitude" of conflicting statements. Under these 

circumstances, why would counsel confuse the jury with 

cumulative witnesses who had made a number of different, 

possibly contradictory, perhaps nonexistent, statements over the 

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

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

deficient performance for counsel to decide not to call

cumulative, impeachable witnesses who might, in fact, undermine 

the client's case.

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

the skewed perspective that may result from hindsight, and it 

may not second-guess counsel's performance solely because the 

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

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

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

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

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

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

first prong is not satisfied.

B. Prejudice
No. 2012AP46-CR.akz

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

majority must also conclude that Jenkins was prejudiced to the 

requisite degree. To satisfy the prejudice prong, the defendant 

must essentially show a "reasonable probability" that the 

outcome at trial would have been different if counsel had called 

the witnesses. The majority rests its prejudice determination 

on Jones' testimony alone. It concludes that her testimony 

alone, albeit conflicting and contradictory, would have changed 

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

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

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

harmful and damaging. I respectfully disagree with the 

majority’s conclusion that Jones' testimony would have affected 

the outcome of the trial.

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

the defendant must demonstrate that his counsel's deficient 

performance was prejudicial to his defense." Carter, 324 

Wis. 2d 640, ¶37 (citing Strickland, 466 U.S. at 691–93). "It 

is not sufficient for the defendant to show that his counsel's 

errors 'had some conceivable effect on the outcome of the 

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

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

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

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

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

showing in the case at issue.
No. 2012AP46-CR.akz

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¶124 The defense strategy was to challenge the 

identification of Jenkins as the shooter and instead establish 

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

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

given the significant problems with her inconsistent statements 

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

have been persuasive to the jury.

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

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

their testimony would not have aided Jenkins' defense to the 

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

appeals and the circuit court concluded, "given all her 

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

reasonable probability that but for not calling her the result 

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

agree.

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

to call Blunt or Moore. As the circuit court properly 

concluded, Moore's testimony would have been inadmissible 

hearsay. Jenkins cannot have been prejudiced by counsel's 

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

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

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

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

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

the trial. As such, failing to call him did not prejudice 

Jenkins. Thus, the second prong is, likewise, not shown.
No. 2012AP46-CR.akz

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C. Discretionary Reversal

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

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

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

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

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

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

N.W.2d 227. 

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

assistance of counsel, relief is afforded to the defendant who 

proves that claim. The interest of justice analysis is not 

intended as a fallback position for a defendant who does not 

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

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

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

to vest this court with power of discretionary reversal to 

enable a defendant to present an alternative defense at a new 

trial merely because the defense presented at the first trial 

proved ineffective.'" State v. Neumann, 2013 WI 58, ¶146, 348 

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

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

¶129 Jenkins' assertion is that counsel was ineffective. 

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

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

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

relief for a defendant who cannot meet the burden of showing 

ineffective assistance of counsel.
No. 2012AP46-CR.akz

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¶130 For the foregoing reasons, I dissent.

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

GABLEMAN joins this dissent.
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