COURT OF APPEALS

DECISION

DATED AND FILED

March 31, 2022

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. 2021AP982-CR Cir. Ct. No. 2018CF446

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

DARRICK R. THOMPSON,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane

County: JOHN D. HYLAND, Judge. Affirmed.

Before Kloppenburg, Graham, and Nashold, 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. 2021AP982-CR

2

¶1 PER CURIAM. Darrick Thompson appeals a judgment of 

conviction for attempted first-degree intentional homicide and first-degree 

recklessly endangering safety, both as party to a crime, and an order that denied 

his postconviction motion for a new trial. He argues, among other things, that his 

trial counsel was ineffective for: (1) failing to conduct a cross-examination of one 

of Thompson’s co-defendants who entered a plea agreement with the State; and 

(2) failing to retain, consult with, and present the testimony of a forensic footwear 

impression expert to counter evidence presented by one of the State’s witnesses. 

For reasons explained below, we disagree and affirm.

BACKGROUND

¶2 This case arises out of a shooting that occurred near Braxton Place in 

downtown Madison on February 6, 2018. According to reports of the incident, the 

shooter approached a parked Crown Victoria on foot just before midnight and 

discharged a firearm toward the vehicle, injuring one of its occupants.

¶3 Based on video surveillance footage, law enforcement determined

that a Ford Taurus had followed the red Crown Victoria to its parking spot on the

night of the shooting, and further, that the Taurus was associated with a man 

named Roberto Sostre. Through additional investigation, law enforcement came 

to believe that Thompson, Sostre, and two other men, Jawaun Greer and Xavier 

Davis, were the occupants of the Taurus that night. In this opinion, we sometimes 

refer collectively to Sostre, Greer, and Davis as Thompson’s co-defendants.

The Charges and Trial

¶4 The State charged Thompson with one count of attempted firstdegree intentional homicide and one count of first-degree recklessly endangering 
No. 2021AP982-CR

3

safety, use of a dangerous weapon, and the State filed similar charges against

Thompson’s three co-defendants.

1

 Although the State charged Thompson and his 

co-defendants as party to a crime under WIS. STAT. § 939.05 (2019-20),2the 

State’s leading theory was that Thompson was the shooter.

¶5 The co-defendants’ trials were severed, and Thompson’s trial took 

place over five days. We focus our discussion on the testimony of Officer Thomas 

Parr and Thompson’s co-defendants.

¶6 Officer Parr is a crime scene investigator who investigated the scene 

of the shooting. He testified that it was snowing heavily that night, and he 

provided testimony about a “footprint impression” that officers found in the snow 

and linked to the shooter. Parr had produced a pretrial report about his

measurement of the impression and his estimate of the shooter’s shoe size, and at 

trial, Parr testified consistently with the statements in his pretrial report. Trial 

counsel objected to Parr’s testimony about the shooter’s shoe size, and he 

aggressively cross-examined Parr about his observations of the crime scene and 

the overall reliability of his conclusions. We discuss Parr’s testimony at length in 

the discussion section below.

 

1

 All three co-defendants were charged with attempted first-degree intentional homicide 

as party to a crime, and Greer and Davis were also charged with first-degree recklessly 

endangering safety as party to a crime.

2

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted. A defendant may be found guilty as party to a crime if the person directly committed the 

crime, aided or abetted the person who directly committed the crime, or was a member of a 

conspiracy to commit the crime. WIS. STAT. § 939.05. To convict, all jurors must be persuaded 

that the defendant is liable under one of these theories, but jurors are not required to unanimously 

agree on the theory of liability. See Holland v. State, 91 Wis. 2d 134, 143, 280 N.W.2d 288 

(1979).
No. 2021AP982-CR

4

¶7 All three co-defendants testified at trial pursuant to some

arrangement with or compulsion from the State. During the trial, Davis

unexpectedly entered into a plea agreement with the State pursuant to which he 

agreed to testify against Thompson. The State compelled Sostre and Greer to 

testify through a grant of use immunity.3

¶8 Davis was the first of the three co-defendants to testify. During 

direct examination, the State asked Davis about his status as a co-defendant and 

the plea that he had entered earlier that day:

[The Prosecutor:] Mr. Davis, were you a co-defendant in 

this case?

[Davis:] Yes, I was.

[The Prosecutor:] Did you enter a plea earlier today?

[Davis:] Yes, I did.

The State then asked Davis about his prior convictions, and Davis testified that he 

had been convicted of eleven crimes.

¶9 Davis testified about the events of February 6, 2018, as follows. He, 

Thompson, Sostre, and Greer gathered at Greer’s house that night. Davis did not 

see any guns present. The group left Greer’s house in the Taurus, with Davis 

driving. Davis did not remember if Thompson ever drove the Taurus that evening. 

The group encountered a red car in Fitchburg, but Davis did not recall the make,

 

3

 Once a witness is compelled to give an incriminating testimonial statement, that 

witness is entitled to a grant of immunity coextensive with the Fifth Amendment privilege against 

self-incrimination. See Kastigar v. United States, 406 U.S. 441, 446, 449 (1972). Such 

immunity is commonly referred to as “use immunity.” State ex rel. Douglas v. Hayes, 2015 WI 

App 87, ¶11, 365 Wis. 2d 497, 872 N.W.2d 152. Additionally, “derivative use immunity” 

prohibits the use of any evidence subsequently discovered by authorities through direct or indirect 

use of the compelled statement. Id.
No. 2021AP982-CR

5

model, or any details about that car. The next time Davis saw the red car, it was 

parked on West Washington Avenue. Davis made a U-turn and Thompson exited 

the Taurus. Davis then pulled into a parking lot at Braxton Place, where 

“Thompson reconnect[ed] with the car for a moment.” Upon moving the Taurus 

into another parking lot, Davis exited the Taurus, and, “at some point,” he heard 

gunfire. Davis saw Thompson approach the Taurus, Davis and Thompson got in, 

and Davis drove off. Davis did not hear Thompson say anything after they 

returned to the Taurus.

¶10 Trial counsel was offered the opportunity to cross-examine Davis, 

but counsel did not ask Davis any questions.

¶11 Sostre testified as follows. He, Thompson, Davis, and Greer were 

all members of the same gang. They met at Greer’s house the night of February 6, 

and Sostre “observed guns getting put away.” They left Greer’s house in a Taurus 

that belonged to Sostre’s girlfriend. At some point that night, they drove past a 

red car with tinted windows. Davis was driving, and someone in the Taurus said 

that the red car “might be the ops,” meaning a rival gang. Upon making a turn and 

spotting the red car again, Sostre knew something was going to happen because

“guns got to being cocked.” Sostre said, “It’s not going to happen, not in my car,” 

and he then felt a pistol going into his side, which he interpreted as a threat. 

Thompson got out of the Taurus, Davis parked, and Sostre heard gunshots. Davis 

moved the Taurus to another lot and also exited the Taurus, and then Thompson 

and Davis returned. Sostre saw a black gun in Thompson’s possession, and 

Thompson said that the gun had jammed. After they drove off, Sostre told 

Thompson, “It could have been kids in there. It could have been anybody in there. 

You don’t know who you shot.” Thompson responded that he did not care 
No. 2021AP982-CR

6

because it was “the opposition’s car.” Sostre also testified that he had previously

been convicted of eleven crimes.

¶12 On cross-examination, trial counsel questioned Sostre about the 

circumstances in which he gave a statement to the police. Counsel also pointed 

out contradictions between Sostre’s statement to the police and his trial testimony. 

For example, Sostre originally told the police that Thompson, rather than Davis, 

had been the driver that night. Counsel read various statements that Sostre made 

to police in an attempt to minimize his own role in the shooting, and Sostre 

acknowledged that he was trying to convince the police that he was an “innocent 

bystander” who was “forced to be present at gunpoint.” Counsel was able to show 

that Sostre had just been released after serving ten years in prison, and that he had 

to care for his son and his dying father. Counsel got Sostre to admit that, although

the charges against him had been dismissed, Sostre was “very worried” that the 

State could refile the charges. Counsel also cross-examined Sostre about 

statements that he allegedly made to three other individuals, in which Sostre 

allegedly told those individuals that he had been the shooter.

¶13 Prior to trial, Greer had been interviewed by Madison police officers

on two occasions. When the State called Greer as a witness at Thompson’s trial, 

he was initially uncooperative, claiming that he did not remember anything about 

the events of February 6 or any interviews he had with the police. After Greer 

provided testimony that was inconsistent with his prior statements to the police, 
No. 2021AP982-CR

7

the circuit court designated Greer as a hostile witness, and the State played 

portions of Greer’s two recorded interviews.

4

¶14 We set forth some of the more pertinent statements Greer provided 

in clips that were played to the jury. In his first interview, Greer initially refused 

to provide any information to the police. However, after speaking with his father, 

Greer broke down. He acknowledged that he had been present at the time of the 

shooting, but refused to provide the names of any other individual who was 

involved. Greer stated that he and three others were driving around that evening

and, at some point, they began to follow another car that looked like a police 

cruiser but was “red, maroon, purple, or black.” The guy who ended up being the 

shooter said “that’s that girl’s car,” and something about the license plates. When 

they were downtown, the shooter said “I’m fixing to get out right here, I’m fixing 

to do something.” The shooter got out, walked around, came back, and said, 

“Hold on, I’m fixing to come right back. Go back to the parking lot where you 

just got me.” The shooter walked off and “it was just hella gunshots.” The driver 

said, “I ain’t leaving him” and also got out of the car. The guy who owned the car 

hopped into the driver seat and Greer hopped in the passenger seat as if they were 

going to drive away, and then “everybody ran back to the car.” Greer saw a gun 

“at the end,” “after the shooting,” and the shooter said that “the gun broke.” The 

transcripts of the interviews reveal that Greer eventually identified the occupants 

 

4

 WISCONSIN STAT. § 972.09, pertaining to criminal actions, provides that, “[w]here 

testimony of a witness ... is inconsistent with a statement previously made by the witness, the 

witness may be regarded as a hostile witness and examined as an adverse witness, and the party 

producing the witness may impeach the witness by evidence of such prior contradictory 

statement.”
No. 2021AP982-CR

8

of the Taurus as himself, Thompson, Davis, and Sostre, and he identified 

Thompson as the shooter.5

¶15 On cross-examination, Thompson’s counsel questioned Greer about 

potential inconsistencies between his two interviews about where Thompson had 

been seated in the Taurus and whether someone other than Thompson had been 

the shooter. Counsel also asked Greer about an alleged conversation with another 

inmate in his cellblock, who later testified that Greer tried to get him to pass the 

message to Thompson that “I’m sorry about lying on you in this case.” Greer 

denied trying to pass that message. Finally, counsel got Greer to admit that he had 

his “own trial coming up” and was being prosecuted “by these very same 

[prosecutors],” that Greer “would like to look good in their eyes,” that Greer’s 

case was in front of the same judge who was presiding over Thompson’s trial, and 

that Greer “would like to look good to Judge Hyland for bail purposes, motion 

purposes,” and, if he were convicted, “for sentencing purposes.”

¶16 The State presented a number of additional witnesses, including law 

enforcement officers who investigated the shooting and several witnesses who 

were near Braxton Place when the shooting took place. It presented surveillance 

footage of a man who might have been the shooter running by an apartment

building. And it presented Facebook messages indicating that someone posting 

from Thompson’s account was in the company of Davis, Sostre, and a third 

individual 45 minutes prior to the shooting, and then out of communication at the 

time the shooting took place. The defense presented the testimony of one of

 

5

 It is difficult to discern from the trial transcript which portions of the second interview 

were played to the jury, but the circuit court found that Greer identified Thompson as the shooter, 

and neither party disputes that finding on appeal.
No. 2021AP982-CR

9

Thompson’s friends, who testified that Sostre told her that Sostre was the shooter, 

and of the inmate at the jail who testified that Greer attempted to apologize to 

Thompson for lying about the case.

¶17 During closing arguments, the prosecutor referred to Parr’s trial 

testimony, as well as the testimony provided by the co-defendants. Thompson’s 

trial counsel argued that each of the co-defendants had presented self-serving 

testimony against Thompson to further their own self-interest, and that Sostre was 

the likely shooter. The jury convicted Thompson of both counts.

Postconviction Proceedings

¶18 Thompson moved for postconviction relief, arguing that he was 

entitled to a new trial because he received ineffective assistance of counsel. He

argued, among other things, that counsel was ineffective for not cross-examining

Davis about the benefits of his plea agreement with the State and for failing to 

retain a defense expert who could counter Parr’s testimony about the “footwear 

impression” he linked to the shooter. He also argued that the testimony of his new 

defense expert constituted newly discovered evidence warranting a new trial and 

that he was also entitled to a new trial in the interest of justice.

¶19 The circuit court held a Machner hearing.

6 At the hearing, 

Thompson presented the testimony of trial counsel, who testified about his 

performance at trial and his defense strategy. Thompson also presented the 

 

6

 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). A Machner

hearing is “[t]he evidentiary hearing to evaluate counsel’s effectiveness, which includes counsel’s 

testimony to explain his or her handling of the case.” State v. Balliette, 2011 WI 79, ¶31, 336 

Wis. 2d 358, 805 N.W.2d. 334.
No. 2021AP982-CR

10

testimony of William Bodziak, a forensic footwear expert who was retained by 

Thompson’s appellate counsel and disputed the reliability of Parr’s footprint

measurement and his estimate of the shooter’s shoe size. We expand on trial 

counsel’s testimony and Bodziak’s testimony as needed in the discussion section 

below.

¶20 After additional briefing, the circuit court issued a written decision 

denying Thompson’s postconviction motion. The court rejected Thompson’s 

claim that counsel was ineffective by failing to cross-examine Davis about his plea 

agreement with the State. It found that counsel made a strategic choice not to 

cross-examine Davis, and that counsel’s failure to cross-examine Davis did not 

prejudice Thompson’s defense. The court also determined that trial counsel’s 

failure to retain a footprint expert was not deficient or prejudicial. Finally, the 

court rejected Thompson’s claims of newly discovered evidence and that 

Thompson was entitled to a new trial in the interest of justice. Thompson appeals.

DISCUSSION

¶21 On appeal, Thompson maintains that trial counsel provided 

ineffective assistance by failing to cross-examine Davis to reveal the details of his 

plea agreement and by failing to retain, consult with, and present the testimony of 

a forensic footwear impression expert to attack Parr’s opinions and credibility. He 

also argues in the alternative that Bodziak’s expert opinion is newly discovered 

evidence, and that he is entitled to a new trial in the interest of justice. We address 

these arguments in turn.
No. 2021AP982-CR

11

I. Ineffective Assistance of Counsel

¶22 A criminal defendant is guaranteed the right to the assistance of 

counsel by the Wisconsin Constitution, see WIS. CONST. art. I, § 7, and the United 

States Constitution, see U.S. CONST. amend. VI. State v. Klessig, 211 Wis. 2d 

194, 201-02, 564 N.W.2d 716 (1997). “‘[T]he right to counsel is the right to the 

effective assistance of counsel.’” Strickland v. Washington, 466 U.S. 668, 686 

(1984) (emphasis added) (quoted source omitted). To prevail on a claim of 

ineffective assistance of counsel, a defendant has the burden to prove that trial 

counsel’s performance was deficient, and also, that the deficiency prejudiced the 

defendant. Id. at 687.

¶23 When evaluating whether trial counsel’s performance was deficient, 

we “apply[] a heavy measure of deference to counsel’s judgments,” id. at 690-91, 

making “every effort” to “evaluate the [representation] from counsel’s perspective 

at the time” and to “eliminate the distorting effects of hindsight,” id. at 689. 

Counsel enjoys a “strong presumption” that his conduct “falls within the wide 

range of reasonable professional assistance,” id., and counsel’s performance need

not be perfect, nor even very good, to be constitutionally adequate, State v. Thiel, 

2003 WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305. To demonstrate deficient 

performance, the defendant must show that his counsel’s representation “fell 

below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. 

That is, a defendant must show specific acts or omissions of counsel that were 

“outside the wide range of professionally competent assistance.” Id. at 690.

¶24 When evaluating whether trial counsel’s performance prejudiced the 

defendant, we consider whether there is a “reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 
No. 2021AP982-CR

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different.” Id. at 694. Such a probability “exists when there is ‘a “substantial,” 

not just “conceivable,” likelihood of a different result.’” State v. Cooper, 2019 WI 

73, ¶29, 387 Wis. 2d 439, 929 N.W.2d 192 (quoted source omitted).

¶25 “Whether counsel’s actions constitute ineffective assistance presents 

a mixed question of law and fact.” State v. Tourville, 2016 WI 17, ¶16, 367 Wis. 

2d 285, 876 N.W.2d 735. We uphold the circuit court’s factual findings 

“‘concerning circumstances of the case and counsel’s conduct and strategy’” 

unless those findings are clearly erroneous. State v. Silva, 2003 WI App 191, ¶16, 

266 Wis. 2d 906, 670 N.W.2d 385 (quoted source omitted). Whether counsel’s 

performance was deficient and prejudicial are both questions of law that we 

review de novo. State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985).

A. Failure to Cross-Examine Davis

¶26 Thompson argues that trial counsel was ineffective by failing to 

cross-examine Davis to reveal the details of the plea agreement he reached with 

the State on the second day of Thompson’s trial. It is undisputed that the State had 

originally charged Davis with two counts—attempted first-degree intentional 

homicide and first-degree recklessly endangering safety. However, pursuant to the 

plea agreement, the State reduced the first count to first-degree reckless injury and 

dismissed the second count, and the State agreed to cap its sentencing 

recommendation at eight years of initial confinement. The sentencing 

recommendation cap was contingent upon Davis providing truthful testimony in 

Thompson’s case.

¶27 There is no question that evidence about Davis’s plea deal would 

have been admissible. Thompson argues that there was no strategic reason for not 

asking Davis about the favorable terms of his deal, and that it was deficient not to 
No. 2021AP982-CR

13

do so. Thompson contends that Davis was the most credible of the three codefendants, and that the failure to cross-examine Davis prejudiced Thompson’s 

defense.

¶28 We begin by addressing deficient performance. During the 

Machner hearing, trial counsel explained that he viewed the co-defendants’ 

testimony as his “biggest problem” to overcome at trial. Counsel’s strategy was to 

attack the co-defendants’ credibility, and to show that each had a motive to 

minimize his own responsibility for the shooting and curry favor with the State. 

However, counsel explained that the “No. 1 rule of cross-examination” is that you

should not “ask a question unless you know the answer.” Counsel stated that he 

had “violated that rule over [his] years of practice enough times to know it’s got 

its reasons for being the No. 1 rule.” Counsel further explained that Davis had 

been a surprise witness, that counsel “didn’t know what [Davis] was going to say,”

and that Davis “could have done more damage than I could have sought to avoid 

with lucky answers.”

¶29 The circuit court found that “[t]rial counsel made this decision [not 

to cross-examine] Davis without knowing how Davis would answer any questions, 

as well as knowing what the other co-defendants were going to say (or had said to 

the investigators).” Therefore, the court found, counsel had a strategic reason for 

declining to cross-examine Davis.

¶30 Although the circuit court described a sound strategic reason for trial 

counsel’s decision to not cross-examine Davis about his account of the shooting, 

that rationale does not explain counsel’s failure to ask more targeted questions 

about the terms of Davis’s plea agreement with the State. During the Machner

hearing, counsel did not dispute that he had received the terms of Davis’s plea 
No. 2021AP982-CR

14

agreement prior to Davis’s trial testimony. Counsel acknowledged that he was 

entitled to information about Davis’s plea in discovery, and that if he did not know 

the terms, he could have asked the prosecutor and the terms would have been 

provided.7

¶31 We nevertheless conclude that trial counsel’s performance was not 

deficient for the following three reasons. First, Davis provided the most vague 

and least incriminating testimony of the three co-defendants. Greer (through his 

recorded interviews and subsequent trial testimony) and Sostre (through his trial 

testimony) provided a substantial amount of incriminating testimony against 

Thompson. Indeed, the circuit court judge, who sat through the trial, said that 

Greer’s initial uncooperative testimony, his tearful video-recorded confession, and 

his subsequent change in demeanor on the witness stand “was especially 

compelling at trial.” By contrast, the account that Davis provided was quite 

limited—in fact, at no point did Davis state anything about a gun or identify

Thompson as the shooter. As such, we conclude that Davis’s testimony was only 

of marginal value to the State, in comparison with the testimony provided by 

Thompson’s other co-defendants.

¶32 Second, under the specific circumstances here, we agree with 

counsel’s assessment that cross-examining Davis about the concessions he 

received in exchange for his plea “could have done more damage than [counsel]

 

7

 The trial transcript suggests that counsel mistakenly thought that Davis had not been 

asked about entering a plea on direct examination. During the last day of trial when the 

prosecutor mentioned Davis’s plea agreement during closing, counsel objected and informed the

circuit court that he did not recall Davis testifying that he entered a plea to a specific charge in 

this case. Counsel stated: “[Davis’s plea] didn’t come in as far as I could tell and then ... [Davis 

didn’t say anything] about guns, comments about a plan, that is why I didn’t cross.”
No. 2021AP982-CR

15

could have sought to avoid with lucky answers.” For example, as counsel 

explained during the Machner hearing, he believed that it “would have caused 

more harm than good” if the jury learned that Davis felt that his conduct on the 

night of the shooting was “worth eight years’ initial confinement.” Additionally, 

the State would have been able to rehabilitate any harm done to Davis’s credibility

by eliciting the fact that the sentencing concessions he received were contingent 

upon Davis providing truthful testimony at trial. Therefore, there was a risk that 

any benefit of cross-examining Davis about concessions he received from the 

State would have been overshadowed by other testimony on this topic, which 

could have bolstered his credibility.

¶33 Finally, trial counsel found a less risky way to attack Davis’s 

credibility by suggesting that Davis falsely implicated Thompson in an effort to 

further his own self-interest. We agree with the circuit court that “[t]rial counsel 

presented an attack on Davis as proficiently as his attack on Greer and Sostre.” In 

his closing argument, trial counsel discussed at length the trial evidence suggesting 

that Sostre’s and Greer’s accounts were motivated by self-interest, and explicitly 

linked Davis’s trial testimony to the same self-serving motivations. Specifically, 

counsel argued:

What do you have? You’ve got these three guys 

and, you know, you have an instruction on how to evaluate 

their credibility, which you’re capable of doing already. 

.... Whether the witness has an interest or lack of interest 

in the result of this trial. Do you think Davis, Greer and 

Sostre have no interest in this matter? Here they are, two 

of them are still—well, let me just do it individual-byindividual. Greer is still pending for trial with a plea of not 

guilty, not just as a co-defendant in this case, but some 

other gun case....

Mr. Davis, you know, you know, did he admit to 

any wrongdoing [during his trial testimony]? No. He pled 

apparently—he’s got 11 priors and he pled guilty, including 
No. 2021AP982-CR

16

the one to that day. And you listen to him testify. What 

did he plead guilty to? Why would he plead guilty to 

anything from this day if all he did was being in a car and 

drive it and not see a gun, not hear a gun, hear it pop but, 

you know, he did [not] see a guy come back with a gun. 

He didn’t hear any discussion ahead of time someone is 

going to be shot. He didn’t see any business about a gun 

afterwards or getting rid of a gun. If you listen to his 

testimony describing what he did in that car on that date, 

why would he have pled guilty to anything? I mean, he’s 

like Greer, trying to exonerate himself, make himself look 

good in front of Judge Hyland and in front of the detective 

and in front of the prosecutors, and of course he would do 

that. That’s self-interest.

And Mr. Sostre, the fourth defendant in this case 

who isn’t pending for trial because his charges were 

dropped right away, could still be filed again, but what did 

he admit to on the stand in terms of his own wrongdoing? 

It was the same thing, wasn’t it? He was just trying to 

blame everything on Darrick Thompson and give the State 

of Wisconsin whatever they wanted in order to please them, 

in order to look good for them, in order to look good to this 

judge, although his case wouldn’t be in this court. Mr. 

Sostre could be in a lot of trouble.

¶34 Therefore, contrary to Thompson’s argument, the transcript shows 

that trial counsel attacked Davis’s credibility and portrayed his testimony as selfserving through counsel’s closing arguments. As the circuit court explained, “[it] 

could not imagine how, if at all, [counsel’s closing argument] could have been 

improved by the ability to specify that Davis plead to a specific lesser charge or 

had a sentencing cap of [eight] years made available to him.” As a result, we 

disagree that counsel allowed the jury to believe that Davis had taken full 

responsibility for his role in the events without receiving any benefit.

¶35 For these reasons, we conclude that Thompson fails to show that 

trial counsel’s omission was “outside the range of professionally competent 

assistance” or that counsel’s performance “fell below an objective standard of 

reasonableness.” Strickland, 466 U.S. at 690, 688. This conclusion defeats his 
No. 2021AP982-CR

17

ineffective assistance of counsel claim on this issue. See id. at 697 (providing that 

we need not address both deficiency and prejudice if the defendant fails to make a 

sufficient showing on either one).

B. Failure to Counter Parr’s Testimony with an Expert

¶36 We now turn to Thompson’s argument about Parr’s testimony, 

which attempted to link the “footprint impression” at the crime scene to 

Thompson’s shoe size. Thompson argues that William Bodziak’s testimony 

during the Machner hearing shows that Parr’s shoe size estimate was based on 

unreliable junk science. He contends that counsel should have retained a footprint 

impression expert like Bodziak, who could have assisted counsel in excluding 

Parr’s estimate altogether or, alternatively, could have aided counsel in his efforts 

to attack Parr’s credibility and opinions at trial.

¶37 We begin by providing additional background about Parr’s pretrial 

report, his testimony at trial, how the prosecution used his testimony during 

closing arguments, and Bodziak’s testimony at the Machner hearing.

¶38 Parr produced a report that was provided to trial counsel in pretrial 

discovery. In this report, Parr outlined his training and experience cataloging 

footwear evidence and making footwear comparisons. He stated that he had been

unable to find any “discernable outsole design” in the impressions at the scene 

because the impressions were “filling up with recent snowfall,” which obscured

any tread pattern. However, Parr measured the impression that the shooter’s foot 

made at the top of the snow, which provided an “overall length” of 320 

millimeters. Based on that measurement, he estimated the shoe size to be between 

a US men’s size 11 and 13. The report also states that the boots Thompson had 
No. 2021AP982-CR

18

been wearing when he was arrested were size 11.5 and 320 millimeters in length, 

and were the “same overall length as the impressions found at the scene.”

¶39 Trial counsel filed a pretrial motion in limine regarding expert 

testimony. Although counsel did not specifically discuss Parr’s report, counsel

requested an order preventing the State from attempting “to present ‘expert’

testimony by police officers or others” without first establishing the witness’s 

qualifications and the reliability of the witness’s opinions. The circuit court 

granted the motion in limine.

¶40 Parr testified at trial as follows. He arrived at the scene about thirty 

minutes after the shooting and, among other things, he investigated and 

photographed a trail of footprints in the snow that officers believed were linked to 

the shooter. Parr placed an emergency blanket across the top of one of these 

impressions in an attempt “to save whatever evidence we could with the footwear 

impression.”

¶41 At that point, trial counsel asked for a sidebar. Counsel predicted 

that the State would attempt to present Parr as an “expert witness [to] provide 

opinions on certain things.” He explained that the State had not designated Parr as 

an expert witness, and he asked the circuit court to preclude Parr from “giving

[expert] opinions about the height of the suspect and about the shoe size of the 

suspect.” In response, the prosecutor asserted that Parr would testify regarding the 

“facts of the case” without “making an expert opinion.” The prosecutor indicated 

that Parr “will testify only to those measurements that he made and what that 

corresponds to regarding shoe size and length of gait. That will not lead to any 

evidence by this officer regarding height ....” Trial counsel objected to Parr 

presenting any testimony about shoe size, but the court found that Parr was able to 
No. 2021AP982-CR

19

offer limited testimony on that topic if he could “lay a foundation for the resource 

that he’s using as far as an accepted reference for shoe manufacturers [and] shoe 

sizes ....” The court explained: “A shoe size, I can see that being within the 

parameters of his training and experience and his detection and investigation of 

crime scenes,” but Parr would not be allowed to “give[] expert opinion about how 

this print matches a certain shoe.”

¶42 The State continued its direct examination, and Parr testified as 

follows. He was trained in identifying footwear treads and determining the overall 

length and size of a footprint. “The tread ware is kind of like a fingerprint” 

because each shoe has imperfections, but Parr was unable to determine anything 

about the tread ware of the footprints in question due to the heavy snow and wind

that night. The only thing that Parr was able to determine was “an overall length 

of the apparent suspect footwear itself,” which he measured by placing an Lshaped measuring tool at the top of the snow. Using this method, Parr determined 

that the impression “was 320 millimeters in overall length,” and the prosecutor 

showed the jury a grainy and indistinct photograph that Parr took of this 

measurement.

¶43 The State then asked how that measurement would correspond to 

shoe sizes. Trial counsel objected on the grounds of lack of foundation. Parr 

provided some of his training and research, and then stated that it was “a rough 

approximation ... in terms of you can’t go half sizes and stuff of that nature.” He 

also explained that some shoes and boots run smaller or larger, and again 

emphasized that “it’s a rough approximation.... It’s not a given science as to what 

you’re looking at.” Counsel again objected to Parr’s testimony about shoe size, 

but the circuit court overruled counsel’s objections, stating that Parr “has testified 

to a source of information, and in the end a determination based on size and 
No. 2021AP982-CR

20

accepted reference points as to size of shoes and boots.” The court then 

emphasized that “it is all an approximation, which counsel can delve into on crossexamination.” Parr then testified that 320 millimeters length corresponded with a 

size 11 to 13 shoe.

¶44 Parr then moved on to his measurement of the distance between 

footprints to determine the shooter’s running gait. Parr measured the gait as 50-55 

inches. The prosecutor asked: “[A]re you able to say anything about this 

individual based on his gait?” Parr testified: “The only thing I could say for 

certain, .... I’m 6 [foot] 3 [inches] tall, and my running gait is approximately 55 

inches. So I found this, and I later found another gait distance which was around 

55 inches, which led me to believe the suspect was around six foot tall.”

8 Trial 

counsel immediately objected and moved to strike this testimony. The circuit 

court determined that Parr’s testimony had “gone too far,” and it struck the 

testimony and instructed the jury to disregard it.9

¶45 On cross-examination, trial counsel returned to the topic of the

quality of the footwear impressions. He asked: “I think you already testified on 

direct examination that the quality of these impressions was far too poor for you to 

 

8

 Parr had not been present during the sidebar when the prosecutor indicated that Parr 

would not be offering an opinion about the suspect’s height, and apparently, no one instructed 

Parr that he should not offer testimony on that topic. We note that the criminal complaint states

that Sostre and Davis are each 5 foot 7 inches tall, Greer is 6 foot tall, and Thompson is 6 foot 2 

inches tall.

9

 During the postconviction proceedings, neither party challenged the circuit court’s 

determination to sustain the objection, strike the testimony, and instruct the jury to disregard it. 

On a related note, we observe that, the following day of trial, the jury heard another police officer 

estimate the height of the shooter, which the court also told the jury to disregard. Although

Thompson challenged the adequacy of the instruction in the postconviction proceedings before 

the circuit court, he does not develop an argument to that effect on appeal.
No. 2021AP982-CR

21

be able to make any comparisons with a standard, a shoe sample; is that right?” 

Parr replied, “Yes, sir.”

¶46 During closing arguments, the State referred to Parr’s length and 

shoe size testimony. The prosecutor argued:

You heard from Investigator Parr that he actually 

tried to preserve one of those prints. You heard that he has 

experience looking at treads, but that the weather 

conditions weren’t such that he could do that.

You heard that he did give an estimate as to shoe 

size for a print that he believed to be the suspect that 

matched up with that track across the building that matched 

up with the video of the person running pas[t] in the video 

that you see and that that shoe was between a Size 11 and a 

Size 13. He told you he couldn’t get half sizes, he couldn’t 

do that, but he could say 11 to 13. And then you heard 

from the boots that Mr. Thompson was found in, that they 

were size eleven-and-a-half.

The State again returned to Parr’s shoe size testimony during its rebuttal. The 

prosecutor argued that Thompson’s clothing was important “because of the shoe 

size, eleven-and-a-half, matching the shoe size between 11 and 13 of the physical 

evidence found at the scene.” He argued that, although trial counsel had attempted 

to portray the prosecution as “hanging our hats on just the three individuals, 

Mr. Greer, Mr. Davis and Mr. Sostre[,] [t]hat’s why we have physical evidence so 

that we can corroborate statements made by eye witnesses.”

¶47 As mentioned above, Thompson filed a postconviction motion 

arguing that trial counsel should have retained an expert like William Bodziak to 

attack Parr’s length and shoe size testimony. According to Bodziak, it was not 

possible to determine whether the footwear impression Parr measured accurately 
No. 2021AP982-CR

22

represented the actual dimensions of the shoe that made the footprint due to the 

weather conditions that night.

10

 Bodziak was asked whether a certified forensic 

footwear examiner could “draw any valid or reliable conclusions about the person 

creating a footwear impression from the measurements that Investigator Parr 

made,” and Bodziak responded, “No. And I will add that in over 45 years of 

making these comparisons, I’m not aware of a single case where conclusions were 

reached and accepted in court by a certified footwear examiner.”

¶48 Thompson argues that, with assistance from an expert like Bodziak, 

trial counsel could have proven that Parr’s length and shoe size testimony was 

wholly unreliable. It is true that Bodziak’s testimony and report demonstrated 

significant problems with Parr’s testimony on this point, and we are troubled by 

the suggestion in the State’s closing argument that Parr “match[ed]” the 

impression to Thompson’s shoe size, which “corroborat[ed]” the co-defendants’

testimony. Nevertheless, for reasons we now explain, we conclude that Thompson 

has not met his heavy burden to show that trial counsel’s failure to retain an expert 

constituted deficient performance or prejudiced his defense.

 

10

 Bodziak opined that Parr’s conclusion about the suspect’s shoe size was unreliable for 

multiple reasons. First, walking or running in snow does not leave an accurate impression of shoe 

size because the heel breaks the snow before hitting the ground and the toe drags some of the 

snow away. Accordingly, the size of a footwear impression in the snow may be “a lot different 

than the total heel-to-toe measurement of the shoe that made it.” Second, Parr’s method of 

measuring was inaccurate, based both upon the placement of the measure (according to Bodziak, 

a person would need to excavate the impression and place the measure at the same plane rather 

than on the top of the snow) and the absence of any outer tread marks from which to gauge the 

size of the impression. Third, there is not real standardization among shoe sizes, and the physical 

impression of an outsole varies significantly with the brand and style of footwear. According to 

Bodziak, the only way to “accurately and reliably” determine the shoe size of an impression is 

first to determine the footwear’s brand name through tread patterns and then compare it to 

manufacturer’s samples.
No. 2021AP982-CR

23

¶49 We begin with deficiency. An attorney’s performance may be 

deficient if the attorney could have prevented the admission of evidence by 

making a timely objection but failed to do so. State v. Domke, 2011 WI 95, ¶46, 

337 Wis. 2d 268, 805 N.W.2d 364. However, an attorney’s failure to make an 

objection that would have been properly overruled by the court is not deficient 

performance. State v. Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769 

N.W.2d 110. Here, the circuit court found that, had trial counsel offered 

Bodziak’s testimony in an attempt to exclude Parr’s measurements and shoe size 

comparison altogether, the court “would likely have held that the difference in 

method goes to weight, and that placing a ruler next to an impression provides 

evidence that can be challenged as to weight, but not rendered inadmissible.” 

Circuit courts have wide latitude with regard to evidentiary decisions, and we 

cannot say that the court’s post-trial determination about admissibility was clearly 

erroneous.

¶50 Therefore, the best trial counsel could have hoped to do with expert 

assistance is to further undermine Parr’s conclusions. Yet, counsel significantly 

undermined Parr’s conclusions without the assistance of an expert—he objected to 

Parr’s testimony, which drew out Parr’s admissions that the impression was of “far 

too poor” quality to make a comparison, that his method was “not a given 

science,” and that his conclusion about shoe size was “a rough approximation.”

Additionally, once Parr’s testimony veered into inadmissible opinion regarding the 

suspect’s height, counsel immediately objected and moved to strike that testimony. 
No. 2021AP982-CR

24

This led to a favorable result by the circuit court, and the jury was instructed 

accordingly.11

¶51 Thompson relies on a single quote from Thiel, which states that 

“‘counsel has a duty to make reasonable investigations or to make a reasonable 

decision that makes particular investigations unnecessary.’” Thiel, 264 Wis. 2d 

571, ¶40 (emphasis omitted) (quoted source omitted). We take no issue with this 

proposition, and we agree that, under certain circumstances, an attorney’s failure

to retain an expert to evaluate the methods and credibility of an opposing witness 

may constitute deficient performance. At the same time, however, whether to 

retain an expert and present expert witness testimony are generally considered to 

be discretionary decisions to be made by trial counsel. See State v. Wood, 2010 

WI 17, ¶¶71-74, 323 Wis. 2d 321, 780 N.W.2d 63; see also State v. Wright, 2003 

WI App 252, ¶35, 268 Wis. 2d 694, 673 N.W.2d 386 (counsel not deficient for 

failing to call eyewitness identification expert and instead directly challenging the 

credibility of the witnesses).

¶52 As demonstrated above, this is not a case in which counsel passively 

sat back and did nothing to anticipate and counter Parr’s testimony. With the 

benefit of hindsight, it is easy to say that it would have been better for counsel to 

have obtained a defense expert to further attack and counter Parr. However,

defendants are not entitled to perfect representation, Thiel, 264 Wis. 2d 571, ¶19, 

and it is not our role to reconstruct the “ideal defense” on appeal, State v. Harper, 

 

11

 We presume that a jury properly follows the instructions given by the court. State v. 

Pitsch, 124 Wis. 2d 628, 645 n.8, 369 N.W.2d 711 (1985). As a result, to any extent that 

Thompson is basing his ineffective assistance of counsel claim on the proposition that counsel 

was deficient, in part, for failing to use an expert to preclude Parr’s testimony about the shooter’s 

height, we reject it. That testimony was properly stricken by the circuit court.
No. 2021AP982-CR

25

57 Wis. 2d 543, 556-57, 205 N.W.2d 1 (1973). Here, we cannot conclude that 

trial counsel’s attack on Parr’s credibility and conclusions without the assistance 

of an expert was “outside the range of professionally competent assistance” or that 

his performance “fell below an objective standard of reasonableness.” Strickland, 

466 U.S. at 690, 688. Therefore, we agree with the circuit court that Thompson

has not met his burden to show that his counsel’s performance was deficient.

¶53 We now briefly address prejudice and explain our conclusion that 

Thompson has likewise not met his heavy burden to show that the failure to retain 

an expert prejudiced the defense. Thompson argues that the State used Parr’s 

length and shoe size testimony to “corroborate problematic testimony” from 

Thompson’s co-defendants, and that there is a reasonable probability that the jury 

would have acquitted Thompson without that corroboration. Despite the State’s 

questionable reliance on the shoe size comparison in closing arguments, we are 

persuaded that the jury could not have put too much stock in Parr’s length and

shoe size comparison testimony. Consistent with Parr’s admission that the 

footprint impression was of “very poor” quality, the photograph shown to the jury

confirms that the so-called footprint impression was filled with snow and barely 

discernable. Under the circumstances, it is not reasonably probable that the jury

placed any significant weight on Parr’s testimony in determining guilt beyond a 

reasonable doubt. Therefore, we conclude that there is not a reasonable 

probability of a different result, even if trial counsel had successfully challenged
No. 2021AP982-CR

26

the admission of Parr’s length and shoe size testimony or presented the testimony 

of an expert like Bodziak to further undermine it.

12

 Strickland, 466 U.S. at 694.

¶54 For all of these reasons, we reject Thompson’s claims of ineffective 

assistance of counsel.

13

II. Alternative Arguments

¶55 Before concluding, we briefly address and reject two alternative

arguments that Thompson advances on appeal.

¶56 First, Thompson argues that, to the extent that trial counsel was not 

ineffective for failing to retain a footwear impression expert, Bodziak’s testimony 

is newly discovered evidence and entitles him to a new trial. See State v. Love, 

2005 WI 116, ¶¶43-44, 284 Wis. 2d 111, 700 N.W.2d 62 (to be entitled to a new 

trial, a defendant must prove that newly discovered evidence is new, material, not 

 

12

 The State presents an alternative counterargument, which we reject, to Thompson’s 

ineffective assistance of counsel claim. As the State explains, Thompson was charged as party to 

a crime under WIS. STAT. § 939.05 and, therefore, the State did not have to prove that Thompson 

was the shooter that evening. Accordingly, the State argues, “it doesn’t matter if Parr’s testimony 

suggested that the shooter wore the same size shoe as Thompson because Thompson was tried 

and convicted as [party to a crime]” and “the State didn’t have to prove that Thompson was the 

shooter.” We reject this argument because it disregards how this case was presented to the jury. 

As Thompson explains in his reply brief, the State took pains to argue that the footprint that 

belonged to the shooter was consistent with Thompson, and there was scant evidence that 

Thompson participated in the crime in any role other than the shooter. To the extent the State is 

merely observing that a jury could have convicted Thompson without finding that he was the 

shooter, the State is correct—but that hardly means that there would have been no purpose or 

value in challenging trial evidence suggesting that Thompson might have been the shooter that 

night.

13

 Thompson also argues that he was prejudiced by the cumulative effect of his trial

counsel’s alleged errors. Because we have concluded that counsel’s performance was not 

deficient, that ends our inquiry. See State v. Thiel, 2003 WI 111, ¶61, 264 Wis. 2d 571, 665 

N.W.2d 305 (“each act or omission must fall below an objective standard of reasonableness in 

order to be included in the calculus for prejudice”).
No. 2021AP982-CR

27

cumulative, and that the defendant was not negligent in seeking the evidence, and 

further, a reasonable probability that a different result would be reached in a trial if 

a jury was presented with the new evidence along with the trial evidence). For 

reasons similar to those stated above in ¶53, we conclude that there is no 

reasonable probability of a different result had the jury been presented with

Bodziak’s testimony. As a result, we reject Thompson’s newly discovered 

evidence claim.

¶57 Second, Thompson asks us to order a new trial in the interest of 

justice pursuant to WIS. STAT. § 752.35. He argues that, regardless of whether 

trial counsel was constitutionally ineffective, counsel’s omissions resulted in the 

real controversy not being tried. We disagree and decline to use our discretionary 

authority to order a new trial under the circumstances.

By the Court.—Judgment and order affirmed.

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

809.23(1)(b)5.