COURT OF APPEALS

DECISION

DATED AND FILED

October 29, 2019

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP1366-CR Cir. Ct. No. 2014CF2995

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARIO MOSE JONES, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for 

Milwaukee County: FREDERICK C. ROSA, Judge. Affirmed.

Before Kessler, Dugan and Fitzpatrick, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP1366-CR

2

¶1 PER CURIAM. Mario Jones appeals a judgment of conviction, 

following a jury trial, of two counts of first-degree recklessly endangering safety, 

and one count of being a felon in possession of a firearm. Jones also appeals the 

orders denying his postconviction motions.

BACKGROUND

¶2 On July 11, 2014, Jones was charged with one count of first-degree 

recklessly endangering safety and one count of being a felon in possession of a 

firearm. An amended information added a second count of first-degree recklessly 

endangering safety. According to the criminal complaint, on July 7, 2014, two 

victims—T.B. and S.G.—were shot in the area of 38th and Brown Streets in 

Milwaukee. T.B. did not identify Jones as the shooter, however; the complaint 

states that S.G. told Milwaukee police that he was walking along North 38th Street 

when a green Buick pulled up. A man S.G. knew as “Rio” exited the passenger 

side of the vehicle and began firing shots, striking S.G. in the abdomen. The 

complaint further states that S.G. later identified Jones in a photo array as the 

shooter.

¶3 The matter proceeded to trial where multiple witnesses testified. 

S.G. testified that he was shot on July 7, 2014, while walking down the street with 

some friends. S.G. stated that he remembered speaking with Milwaukee Police 

Detective Michael Slomczewski at a local hospital following the shooting, but told 

the jury that he remembered little about their conversation. The State asked S.G. 

numerous questions about S.G.’s conversation with Slomczewski, including: 

(1) whether S.G. recalled telling Slomczewski that a green Buick pulled up as he 

and his friends, including T.B., were walking; (2) whether S.G. recalled telling 

Slomczewski that Rio exited the passenger side of the Buick and started asking 
No. 2018AP1366-CR

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about a missing gun; (3) whether S.G. recalled telling Slomczewski that Rio 

followed S.G. and T.B. and began firing shots; (4) whether S.G. recalled telling 

Slomczewski that he knew Rio from the neighborhood; and (5) whether S.G. 

recalled telling Slomczewski that he would be able to identify Rio if shown a 

picture. S.G. claimed not to remember any of those details of his conversation 

with Slomczewski. S.G. further testified that he did not recall positively 

identifying Jones in a photo array, claiming that if he did so, it must have been in 

reaction to his pain. S.G. then denied that Jones shot him.

¶4 The State then called Slomczewski. Slomczewski testified that he 

interviewed S.G. the day after the shooting. Slomczewski stated that he 

interviewed S.G. at a local hospital, where S.G. seemed alert and communicated 

freely and voluntarily. S.G. told Slomczewski that on the day of the shooting, he 

and T.B. were at a corner store and went to a nearby yard to speak with an 

acquaintance, Shamic. Shamic appeared frustrated and said that he was searching 

for a gun. S.G. then saw Shamic on the phone “point[ing] at [S.G.] and [T.B.].” 

A green Buick pulled up shortly thereafter. S.G. recognized the driver of the car 

as “Twin,” and the passenger as Rio. Rio emerged from the car, asked where the 

gun was, and then began shooting at S.G. and T.B. as they walked away. S.G. said 

that he knew Rio from the neighborhood. Slomczewski told the jury that S.G. 

identified Jones’s picture in a photo array conducted at the hospital. Slomczewski

identified Jones as the person S.G. identified as Rio.

¶5 Multiple sidebars were held during Slomczewski’s testimony. 

Following Slomczewski’s testimony, and outside of the presence of the jury, the 

trial court discussed the sidebars. As relevant to this appeal, the court stated:

The first objection concerned when Detective Slomczewski 

started to describe what information was revealed to him by 
No. 2018AP1366-CR

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[S.G.]. The Defense made a hearsay objection. The State 

argued that under 908.01(4)(a) that the statement was ... a 

prior inconsistent statement of the declarant. We did hear 

[S.G.] state on the record when he testified that he either 

didn’t recall making statements or that he did not make 

those statements and so the court believed that those 

statements made to the detective were properly admissible 

under the basis cited by the State.

¶6 T.B. testified, telling the jury that on the day of the shooting, he was 

“kicking it” with his “brother” S.G. on the corner of 38th and Brown Streets and 

that S.G. was “arguing with some guys.” T.B. stated that he heard gunshots and 

was shot in the arm. T.B. admitted that he knew Jones as “Rio,” but denied that 

Jones was at the scene of the shooting. T.B. stated that he saw Twin and Rio in a 

green Buick on the day of the shooting, but not at the time of the shooting. T.B. 

admitted that he identified Jones in a photo array after the shooting, but told the 

jury that he did not know who shot him. T.B. told the jury that he only 

remembered telling the police that he was shot, but claimed not to remember 

telling the police anything about who shot him. T.B. also admitted that after the 

shooting he heard S.G.’s sister scream, “‘Rio shot my brothers.’”

¶7 Detective Marco Salaam testified that on July 21, 2014, he 

interviewed T.B. and showed T.B. a photo array. Salaam stated that T.B. 

identified Jones as the shooter in the photo array. T.B. told Salaam that Jones 

“arrived along with another person, and they were inside of a green Buick 

LeSabre.” T.B. told Salaam that Jones “exited the vehicle and approached him 

and his brother while they were on the porch and fired shots, and he and his 

brother were shot.” T.B. also told Salaam that Twin was with Jones.

¶8 Jones testified in his own defense, telling the jury that he personally 

knew neither S.G. nor T.B, but was familiar with both of them by name. Jones 

stated that he suspected S.G. and T.B. held grudges against him because of a past 
No. 2018AP1366-CR

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family dispute. Jones stated that he did not shoot either S.G. or T.B. and that he 

was in Rockford, Illinois on the day of the shooting. Jones testified that he went to 

Rockford before the fourth of July to visit his pregnant sister, who was close to 

giving birth. Jones stated that his sister gave birth on July 11, 2014, and that he 

was present for the birth. Jones told the jury that while in Rockford, he worked at 

his cousin’s funeral home and did not have a car at his disposal. Jones said that 

his mother and sister picked him and his then-girlfriend up in Milwaukee and 

drove them to Rockford. Jones said that he did not return to Milwaukee until 

July 16 or 17, 2014. Jones also admitted that his nickname is Rio. He testified 

that he did not know Twin personally and did not know someone named Shamic.

¶9 Lexi Ford, Jones’s former girlfriend, testified that she and Jones 

went to Rockford prior to the fourth of July. Ford stated that Jones’s sister picked 

them up in Milwaukee and that Ford stayed in Rockford for one week, but Jones 

stayed longer. Ford stated that they went to Rockford to visit Jones’s sister, who 

was about to give birth. Ford told the jury that she “believed” they were in 

Rockford on the day of the shooting. Ford also told the jury that she was robbed 

in July 2014. Ford was unsure of the date of the robbery, but suspected that it took 

place on July 23, 2014. Ford could not confirm whether she was in Rockford 

before or after the robbery.

¶10 The State called multiple rebuttal witnesses. Milwaukee Police

Officer Jason Daering testified that Ford called the Milwaukee Police Department 

on the night of July 23, 2014, to report an armed robbery. Ford told Daering that 

she had been robbed that day.

¶11 Detective Mary Schmitz testified that she spoke with Ford about 

Ford’s time in Rockford. Ford told Schmitz that she went to Rockford with Jones 
No. 2018AP1366-CR

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to visit Jones’s sister. Ford confirmed that she was robbed on July 23, 2014, and 

told Schmitz that she and Jones went to Rockford after the robbery. Ford also told 

Schmitz, however, that she and Jones went to Rockford in early July.

¶12 Detective Kenton Burtch told the jury that he interviewed Brandy 

Collins, the director of the funeral home where Jones claimed to work while in 

Rockford. Burtch testified that Collins initially denied being related to Jones, but 

ultimately admitted that Jones was her distant cousin. Collins told Burtch that 

Jones worked at the funeral home “sometime in the summer,” but did not give 

specific dates. Collins also told Burtch that she did not have records of Jones’s 

employment. Burtch said that toward the end of his interview with Collins, she 

“backed off the fact that he was working there at any given period of time, 

explaining that she would not tell us he was working there during this incident 

because she didn’t want to get herself involved in anything that would bring 

trouble or anything to herself.” Burtch also stated that he learned, while 

investigating an unrelated matter, that Jones and Shamic were “blood cousin[s].”

¶13 The jury convicted Jones of two counts of first-degree recklessly 

endangering safety and one count of being a felon in possession of a firearm. The 

trial court sentenced Jones to consecutive sentences totaling fourteen years of 

initial confinement and nine years of extended supervision.

Postconviction Proceedings

¶14 Jones filed a postconviction motion, arguing, as relevant to this 

appeal, that trial counsel was ineffective and that the trial court made an 

evidentiary error. Specifically, Jones argued that counsel was ineffective for 

failing to call Milwaukee Police Officer Erin Tischer as a witness. According to 

Jones, Tischer would have corroborated T.B.’s testimony, and contradicted 
No. 2018AP1366-CR

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Salaam’s testimony, about whether T.B. knew the identity of his shooter. Jones 

also argued that the trial court erred in admitting Slomczewski’s testimony over 

Jones’s hearsay objection. The postconviction court denied the motion.

¶15 In a second postconviction motion, Jones argued that trial counsel 

was ineffective for failing to subpoena, interview, or call to testify two alibi 

witnesses.1 Jones argued that two of his sisters—Sharneice Boyd and Antiwineice 

Jones—could have corroborated his alibi defense that he was in Rockford at the 

time of the shooting. Jones attached affidavits from both sisters, each of whom 

stated that Jones was in Rockford during the relevant time period. Jones also 

submitted an affidavit stating that he told trial counsel about his sisters’ potential 

testimony. The postconviction court again denied the motion, finding the 

affidavits inconsistent with each other and with trial testimony. This appeal 

follows.

DISCUSSION

¶16 On appeal Jones argues that: (1) trial counsel was “prejudicially 

ineffective” for failing to call Tischer to “rebut the claims of Detective Salaam”; 

(2) trial counsel was “prejudicially ineffective” for failing to “interview, subpoena, 

and call two alibi witnesses whose testimony would have supported [Jones’s] alibi 

defense”; and (3) the trial court erred in denying trial counsel’s motion to exclude 

Slomczewski’s testimony as hearsay. (Capitalization omitted.) We address each 

issue in turn.

 

1

 Jones filed a notice of appeal, but voluntarily dismissed the appeal in favor of filing a 

second postconviction motion.
No. 2018AP1366-CR

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I. Ineffective Assistance of Counsel

¶17 To prove ineffective assistance of counsel, a defendant must show 

both that counsel’s performance was deficient and that such performance 

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985). Performance is 

deficient if it falls outside the range of professionally competent representation, 

but we strongly presume that counsel acted reasonably within professional norms. 

Pitsch, 124 Wis. 2d at 636-37. To demonstrate prejudice, a defendant must show 

“there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. 

“[A]n ineffective assistance of counsel claim presents a mixed question of fact and 

law.” State v. Champlain, 2008 WI App 5, ¶19, 307 Wis. 2d 232, 744 N.W.2d 

889. We review a postconviction court’s findings of fact for clear error; whether 

defense counsel’s performance is constitutionally infirm is a question of law, 

which we review de novo. See id.

¶18 We agree with the postconviction court that Jones did not receive 

ineffective assistance of counsel. Assuming, without deciding, that trial counsel 

should have called Tischer to testify, Jones has not demonstrated that the result of 

his trial would have been different. Jones asserts that Tischer originally 

interviewed him on the date of the incident and, based on a police report, would 

have told the jury that T.B. said he did not see his shooter. The postconviction 

court rejected this argument, finding that T.B. was an “evasive” witness and 

lacked credibility. The court found Salaam to be a credible witness and 

determined that even if Tischer had testified, it would not have bolstered T.B.’s 
No. 2018AP1366-CR

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credibility. We are bound by the postconviction court’s credibility determinations. 

See State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶19, 257 Wis. 2d 

421, 651 N.W.2d 345. Accordingly, we conclude that trial counsel was not 

ineffective for failing to call Tischer as a witness.

¶19 Nor was counsel ineffective for failing to call Jones’s two sisters to 

support his alibi defense. Jones contends that his sisters could have provided a 

timeline of Jones’s whereabouts showing that Jones was in Rockford at the time of 

the shooting, and thus, could not have shot S.G. and T.B. The postconviction 

court disagreed, stating that “[a]n examination of [the] respective affidavits ... 

would have presented more credibility problems for [Jones].” The record supports 

the postconviction court’s determination.

¶20 Boyd’s affidavit states that she lives in Rockford and gave birth to a 

baby boy on July 10, 2014. The affidavit further states that Jones came to 

Rockford “alone” the week before the birth, and stayed in her home for two 

weeks. The affidavit further states that Jones “was picked up in Milwaukee by my 

mother.”

¶21 On the contrary, Antiwineice Jones’s affidavit states that she picked 

up both Jones and Ford in Milwaukee. The affidavit further states that Jones and 

Ford stayed at the family home while in Rockford.

¶22 As the postconviction court noted, the affidavits not only 

contradicted each other, but also contradicted multiple aspects of both Jones’s and 

Ford’s trial testimony. Jones testified that he and Ford drove to Rockford with his 

mother and sister, while Ford’s testimony makes no mention of Jones’s mother. 

Ford’s testimony also called into question the actual dates that she and Jones were 

in Rockford, as Ford could not definitively state whether they went to Rockford 
No. 2018AP1366-CR

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before or after the July 23, 2014 robbery. The record supports the postconviction 

court’s determination that “there is not a reasonable probability the jury would 

have reacted favorably to the mound of inconsistencies which the sisters’ 

additional testimony would have produced.” Accordingly, trial counsel was not 

ineffective for failing to call Jones’s sisters to corroborate his alibi defense.

II. Trial Court Error

¶23 Jones contends that the trial court erred in permitting the jury to hear 

Slomczewski’s hearsay testimony, namely, that S.G. told Slomczewski that Jones 

was the shooter. The trial court admitted Slomczewski’s testimony under the prior 

inconsistent statement exception to the hearsay rule. See WIS. STAT.

§ 908.01(4)(a)1.2 Jones argues that because S.G. testified that he could not recall 

identifying Jones as the shooter, the trial court was required to determine whether 

S.G.’s lack of memory was false, pursuant to State v. Lenarchick, 74 Wis. 2d 425, 

247 N.W.2d 80 (1976).3

¶24 We conclude that Jones misunderstands the holding of Lenarchick. 

Contrary to Jones’s argument, Lenarchick does not require a trial court finding 

that a witness’s lack of memory is in bad faith before admitting prior inconsistent 

statements. Rather, the case holds that when “a witness denies recollection of a 

prior statement, and where the trial court has reason to doubt the good faith of 

such denial, [it] may in [its] discretion declare such testimony inconsistent and 

 

2

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.

3

 The State contends that Jones did not preserve this issue for appellate review; however, 

for completeness, we address the merits of Jones’s argument.
No. 2018AP1366-CR

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permit the prior statement’s admission into evidence.” Lenarchick, 74 Wis. 2d at

436. The supreme court stated that “we should reverse only if we conclude that

‘apparent lapse of memory so affected ... [the] right to cross-examine as to make a 

critical difference in the application of the Confrontation Clause[.]” Id. at 444

(citation omitted). Jones fails to show that such a situation is present here.

¶25 S.G.’s alleged statements to Slomczewski revealed that S.G. made 

multiple statements inconsistent with his trial testimony. S.G. was subject to 

cross-examination about his claim that he did not remember his conversation with 

Slomczewski. Moreover, the postconviction court clarified that the trial court 

“implicitly found that [S.G.] was purposely not recalling a prior statement he had 

made to the detective, thereby making the detective’s testimony admissible to 

rebut his prior inconsistent statement.” The record supports this determination.

¶26 For the foregoing reasons, we affirm the judgment and the orders 

denying Jones’s postconviction motions.

By the Court.—Judgment and orders affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.