### 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2021AP982

- CR Cir. Ct. No. 2018CF446 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

S TATE OF W ISCONSIN , P LAINTIFF - R ESPONDENT ,

V . D ARRICK R. T HOMPSON , D EFENDANT - A PPELLANT .

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 W IS . S TAT . R ULE 809.23(3).No. 2021AP982

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2 ¶ 1 PER CURIAM. Darrick T hompson appeals a judgment of conviction for attem pted 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

. H e argues , among other things, that his
t ria l 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 re tain, consult with, and present the testimony of a forensic footwe ar impression expert to counter evidence presented by one of th e State’s witnesses

. For reasons explained below, we disagree and affirm.

BACKGROUND
¶ 2 T his case arises out of a sho o ting that occurred near Braxton Place in downtown Madison on February 6, 2018

. A ccording to r epor ts 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 Tauru s was associated with a man named Roberto Sostre

. Through additional investigation, law enforcement came to believe that T hompson, Sostre, and two other men , Jawaun Greer and Xavier Davis, were the occupants of the Taurus that night

. In th is opinion , we sometimes refer collectively to Sostre, Greer , and Davis as Thompson’s co
- defendant s
. The Charges and Trial
¶ 4 The State charged Thompson with one count of attempted first

degree intentional homicide and one count of first

- degree recklessly endangeringNo. 2021AP982

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3 safety , use of a dangerous weapon, and t he State filed similar charges against Thompson’s three co
- defendant s
. 1 Altho ugh th e State charged Thompson and his

co
- defendant s as party to a crime under W IS

. S TAT

. § 939.05 (2019

- 20), 2 the State’s leading theory was that Thomp son was the shooter

. ¶ 5 The co
- defendant s’ trials were severed, and Thompson’s trial took place over five days. W e focus our discussion on the testimony of Office r Thomas Parr and Thompson’ s co
- defendant s.
¶ 6 Officer Parr is a crime scene invest igator who investigated the scene of the shooting . He te stified that it was snowing heavily that night , and he provided testimony about a “footprint impression” that officer s found in the snow and linked to the shooter. Parr had produced a pretrial re port about his measurement of the impression and his estimat e of the shooter’s shoe size , and at trial, Parr testified consistently with the statemen ts in his pretrial report. Trial

coun sel 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
- defendant s 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 saf

ety as party to a crime.

2 All references to the Wi sconsin 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
co nsp ira cy to commit the crime. W IS

. S TAT

. § 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 1 34, 143, 280 N.W.2d 288 (1979).No. 2021AP982

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4 ¶ 7 A ll three co
- defendant s testified at trial pursuant to some arrangement with or compulsion from the State

. D uring the trial, Davis unexpectedly entered into a plea agree ment with the State pursuant to which he agreed to testify against Thompson. T he State compelled Sostre and Greer to testify through a grant of use immunity. 3
¶ 8 Davis was the first of the three co
- defendant s 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 P rosecutor : ] 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 co nvictions, and Davis testified that he had been convicted of eleven crim es
. ¶ 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 Da vis driving. Davis did not re member if Thompson ever drove the Taurus that evening.
T he 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. Uni ted States , 406 U.S. 441, 446, 449 (1972) . Such immunity is commonly referred to as “ u se immunity

. ” State ex rel. Douglas v. Hayes , 2015 WI App 87, ¶11, 365 Wis. 2d 497, 872 N.W.2d 152. Additionally, “d erivative use immunity” prohibits the use of any ev idence subsequently discovered by authorities through direct or indirect use of the compelled statement. Id.No. 2021AP982

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5 model , or any details about that car. The next time Davis saw the red car, it was parked on West Washington Avenue

. D avis 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 Taur us into another parking lot, Davis exited the Ta urus, and, “at some po int,” he heard gunfire. Davis saw Thompson approach the Taurus, Davis and Thompson g ot in, and Davis drove off. Davis did not hear Thompson s ay anything after they returned to the Taurus.
¶ 10 T rial counsel was offered the opportun ity to c ross
- 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 gu ns 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

r ed 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 a s 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

. Sos tre saw a black gun in Thomps on’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 careNo. 2021AP982

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6 becaus e 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. C ounsel also pointed out contradictions between Sostre’s statement to the police and his trial testimony.
For exam ple, 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 Stat e coul d 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 Gr eer as a witness at Thompson’s trial , he was initially un cooperative, 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

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7 t he circuit court designated Greer as a hostile witness , and the State played portions of Greer’s two rec orded interviews

. 4
¶ 14 We se t forth some of the more pertinent statements Greer prov ided 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 a cknowledged 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 plat e s
. When they were downtown, t he shooter sai d “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 jus t hella gunshots.” The driver said, “I ain’ t leaving him ” and also got ou t 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 “everyb ody ran back to the c ar .” Greer saw a gun “at the end, ” “after the shooting,” and the shooter said that “the gun broke.” T he
t ranscript s of the interview s reveal that Greer eventually identified the occupants

4 W ISCONSIN S TAT

. § 972.09 , p ertaining to criminal actions, provides that, “[w] here testimony of a witness

... is inconsistent with a statement pre viously 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

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8 of the Tau rus as himself, Thompso n, D avis, and Sostre, and he iden tified Thompson as the shooter. 5
¶ 15 On cross

- examination, Thompson’s counsel questioned Greer about potential inconsisten cies between his two interviews about where Thompson had been seated in the Taurus and whether someone other than T hompson had been the shooter. Counsel also asked Greer about an alleged c onversa tion 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 .” G reer 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 fr ont 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 se ntencing purposes.”
¶ 16 T he State presented a numb er of additiona l witnesses, including law enforcement officers who investigated the shooting and several witnesses who were near Braxton Place when th e shooting took place. It presented surveillance footage of a man who might have been the shooter running by a n apartment building. And it presented Facebook messages indicating that someone p osting from Thompson’s account was in the company of Davis, Sostre, and a third individual 4 5 minutes prior to the shooting , and then out of communication at the time the shooting took place. The defe nse 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 a ppeal.No. 2021AP982

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9 Thompson ’s friends , w ho 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 argument s, the prosecutor referred to Parr’s trial testimony, as well as the testimony provided by the co
- defendant s. Thompson’s

t rial counsel argued tha t each of the co
- defendant s had presented self

- serv ing 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 m oved for postconviction relief, arguing that he was entitled to a new trial because he received i neffective assistance of coun s el

. He argued , among other things, that counsel was ineffective for not cross

- examining Davi s about the benefits of hi s plea agreement with the State and for failing to

re ta in 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 warrant ing a new trial and that he was also entitled to a new t rial 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 inc ludes counsel’ s testimony to explain his or her handling of the case.” State v. Balliette , 2011 WI 79, ¶31, 33 6 Wis. 2d 358, 805 N.W.2d. 334.No. 2021AP982

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10 testimony of William Bodziak , a forensic footwear expert who was retained b y Thompson’s appellate counsel and disputed the reliability of Parr’s footprint

measu rement and his estimate of the shooter’s shoe size. W e expand on tr ial 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 ple a 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
pre judice Tho mpson’s defense. The court also determined that tria l counsel’s failure to retain a footprint expert was not deficient or prejudicial. Finally, t he
court rejected Thompson’s claim s of newly discovered evidence and that Thompson was entitled to a new tria l 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 fore nsic footwear impression expert to attack Parr’s op inions and credibility. He also argues in the alternative that Bodziak’s expert opinion is newly discovered evide nce, and that he is entitled to a new trial in the interest of justice

. We address these arguments in turn.No. 2021AP982

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11 I. Ineffective Assistance of Counsel
¶ 22 A criminal defendant is guaranteed the right to the assistance of counsel by the Wisconsin Constitution, see W IS

. C ONST

. art

. I, § 7, and the United States Constitution, see U.S. C ONST

. 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 defe ndant. Id. at 687.
¶ 23 When evaluating whether trial counsel’s performance was deficient, we “apply[] a heavy measure of deference to counsel’s judgment s ,” 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 objecti ve 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 beenNo. 2021AP982

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12 different.” Id. at 694. Such a probability “e xists 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 th e 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 q uestions of law that we review de novo. State v. Pitsch , 124 Wis. 2d 62 8, 634, 369 N.W.2d 711 (1985).

A
. Failure to Cross

- Examine Davis
¶ 26 Thompson argues that trial counsel was ineffective by fail ing 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

- degre e recklessly endangerin g safety. However, pu rsu ant 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

recomme ndation at eight years of initial confinement. T he sent encing recommendation cap was contingent upon Davis providing truthful testimony in Thompson’s case.
¶ 27 There is no question that evidence about Davis’s ple a deal would have been admissibl e. 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 toNo. 2021AP982

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13 do so. Thompson contends that Davis was the most credible of the three co
defendant s, and that the failure to c ross
- examine Davis pr ejudiced Thompson’s defense.
¶ 28 We begin by addressing deficient performance. During the Machner hearing, trial counsel explained that he viewed the co
- defendant s’ testimony as his “biggest problem” to overcome at tri al. Counsel’s strategy was to

at tack the co
- defendant s’ credibility , and to show that each had a motive to minimize his own responsibility for the shooting and curr y favor with the State. However, counsel explained that the “ No. 1 rule of cross

- examinati on ” is that you should not “as k a question unless you know the answer

. ” C ounsel 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 sough t 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
- defendant s were going to say (or had said to the investigators)

. ” Therefore, the cou rt found, counsel had a strategic re ason for declining to cro ss
- examine Davis.
¶ 30 Although the circuit court described a sound strategic reason for trial counsel’s decision to not cross

- examine Da vis 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, c ounsel did not dispute that he had received the terms of Davis’s pleaNo. 2021AP982

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14 agreement prior to Davis’s trial testimony. Counsel ackn owledged t hat 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
- defendant s . Greer (through his recorded i nterviews and subsequent trial testimony ) and Sostre (through his trial testimony) provided a substantial amount of incriminating testimony against Thompson. Indeed, t he 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
- defendant s
. ¶ 32 Second, under the specific circumstances here, we agree with counsel’s as sessment that cross

- examining Davis about the concessions he received in exchange for his plea “co uld have done more damage than [counsel]

7 T he trial transcript suggests that counsel mistakenly thought that Davis had not been asked about entering a plea on direct examination. D uring the last day of trial when the prosecutor mentioned Davis’ s plea agreement d uring 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 w hy I didn’t cross.”No. 2021AP982

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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 rehabilit ate 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, the re was a risk that
any benefit of cross

- examining Davis about conces sions he received from the State would have been overshadowed by other testimony on this topic, which

c ould have bolstered his credibil i t y.
¶ 33 Finally , trial counsel found a less risky way to attack Davis’s credibility by suggesting that D avis falsely implicated Thompson in a n 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 motivatio ns . Specifically, counsel argued : What do you have? You’ ve got these three guys

and, you know, you have an instruction on how to evalua te their credibility, which you’ re capable of doing already.

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

- by

individual. Greer is still pending for trial with a plea of not guilty, not just as a co
- defendant in this case, but some other g un ca se.

... 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, includingNo. 2021AP982

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16 the one to that day. And you listen to him testify. What did he plead guilty to? W hy 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 t o 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 f

or 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 t r ying 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 b e in a lot of trouble.
¶ 34 Therefore , c ontrary to Thompson’s argument , the transcript shows that trial counsel attacked Davis’s credibility and portrayed his testimony as self

serving 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 eve nts 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 6 90, 6 88. T his conclusion defeats hisNo. 2021AP982

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17 ineffective assistance of counsel claim on this issue

. See id. at 697 (providing that

w e need not add ress both deficiency and prejudice if the defendant fails to make a

s ufficient showing on either one).

B
. Failure to Counter P arr’s Testimony with an Expert
¶ 36 We now turn to Thompson’s argument about Pa rr’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 d uring the Machner hearing shows that Parr’s shoe size estimate was based on unreliable junk science . He contends that coun sel 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 provid ing additional background about Parr’s pretrial report, his testimony at trial , how the prosecut ion used his testimony during closing arguments, and Bodziak’s testimony at the Machner hearing.
¶ 38 Parr produced a report that was p rovided to trial counsel in pre trial discovery. In t his 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 tr ead pattern

. However, Parr measure d the impression that the shooter’s foot made at the top of the snow, which provided an “ ov erall length ” of 320 millimeters

. Based on that measurement, he estimate d the shoe size to be between

a US m en’s size 11 and 13. The report also st ates that the boots Thompson hadNo. 2021AP982

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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 T rial 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 a ttempting “ to present ‘expert’ testimo ny 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 t estified at trial as follows. He arrived at the scene about thirty minutes a fter the shooting and, a mong 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 foo twear 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 certa in things.” He ex plained 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 an d length of gait. That will not lead to any evidence by this officer regarding height ....” T rial counsel objected to Parr presenting any testimony about shoe size, but the court found that Parr was able toNo. 2021AP982

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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 T he State continued its direct examination, and Parr testified as follows

. He was trained in ide ntifying 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 determ ine anything about the tread ware of the footprints in qu estion 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 a n L

shaped measuring tool at the top of the snow

. Using this m ethod, Parr determined that the impression “w as 320 millimeters in o verall length, ” and the prose cutor showed the jury a grainy and indistinct photograph that Parr took of this

measu rement.
¶ 43 T he State then asked how that measurement wou ld correspond to shoe sizes

. T rial counsel objected on the ground s of lack of foundation. Parr provided som e 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 tha t “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 t he circu it court overrule d counsel’s objections, stating that Parr “ has testified to a source of information, and in the end a determination based on size andNo. 2021AP982

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20 accepted reference points as to size of shoes and boots.” The court then emphasized that “ it is all an a pproximation, which counsel can delve into on cross

examination. ” 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 deter mine the shooter’s running gait. Parr measured the gait as 50

- 55 inches. T he prosecutor asked : “[A]re you able to say anything about thi s 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 T rial counsel immediately objec ted and moved to strike this testimony

. T he 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 r eturned to the to pic 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 inst ructed Parr that he should not offer testimony on that topic. We note that the criminal complaint state s 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 proceedi ngs, 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, w e observe that, the following day of trial , the jury heard another police officer
es timate 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

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21 be able to make any comparisons with a standard, a s hoe sample; is that right ?” Parr replie d, “Yes, sir.”
¶ 46 During closing argument s, 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 acros s 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 h e could say 11 to 13. And then you heard from the boots that Mr. Thompson was found in, that th ey were size eleven

- and

- a
- half.

The S tate again returned to Parr’s shoe size t estimony during its rebuttal

. The prosecutor arg ued 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

. Gre er, 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 W illiam Bo dziak to attack Parr’s length and shoe size testimony. According to Bodziak, it was not possible to determine whether the footwear impression Parr measured accuratelyNo. 2021AP982

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22 represented the actual dimensions of the shoe that mad e 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 measurement s that Investigat or 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 perfo rmance 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 gr ound 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 bo th 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 manuf acturer’s samples.No. 2021AP982

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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, h ad tria l counsel offered Bodziak’s testimony in an attempt to exclude Parr ’s measurements and shoe size comparison al together , the c ourt “ 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 admiss ibility 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

. ”
A ddition ally , once Parr’s testimony veered into inadmissible opinion regarding the suspect’s height, counsel immediately objected and moved to strike that testimony.No. 2021AP982

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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 i ssue with this proposition, and we agree that, und er certain circumstances, an attorney’s failure

to re ta in an expert to evaluate the methods and credibili ty 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 al so 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 exper t 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. W ith the benefit of hindsight, it is easy to say that it would have been better for counsel to have obtained a defense expert to furt her attack and counter Parr

. However, defendants are not entitled to perfect representation , Thiel , 264 Wis. 2d 571, ¶1 9 , 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 6 28, 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 exper t to preclude Parr’s testimony about the shooter’s height, we reject it. That testimony was properly stricken by the circuit court

.No. 2021AP982

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25 57 Wis. 2d 543, 556

- 57, 205 N.W.2d 1 (1973)

. H ere, we cannot conclud e that trial counsel’s attack o n 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 reason ableness.” Strickland , 466 U.S. at 690, 688. The refore, 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 prejudice d the defense. Thompson argues that the State used Parr’s length and shoe size testimony to “corroborate problematic testimony” from Thomp son’s co
- defendant s , 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 j ury could no t have put too much stock in Parr’s length and shoe siz e comparison testimony

. Consistent with Parr’s admission that the footprint impression was of “ very poor ” quality, the photograph shown to the jury conf irm s that the so

- called footprint im pression was filled with snow and barely discernable

. Under the circumstances, i t 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 challengedNo. 2021AP982

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26 the admission of Parr’s length and shoe size testimony or presented the testimony of an expert like Bo d ziak to fu rther 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

I I. Alternative Arguments
¶ 55 Before concluding, we briefly a ddress and reject two alternative arguments tha t 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, Bo d ziak’s testimony is newly discovered evidence and entitles him to a ne w 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 c harged as party to a crime under W IS

. S TAT

. § 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 Thomp son 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 Thomps on might hav e 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

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27 cumulative, and that the defendant was not negligent in seeking th e evidence, and further, a reasonable probability that a different res ult would be reached in a trial if a jury was presented with the new evidence along with the trial evidence)

. F or reasons similar to those stated above in ¶ 5 3 , we conclude that there is no reasonable probability of a different result had the jury be en presented with Bodziak ’s testimony. As a result, we reject Thompson ’s n ewly discovered evidence claim.
¶ 57 Second , Thompson asks us to order a new trial in the inte rest of justice pursuant to W IS

. S TAT

. § 752.35

. He argues that, regardless of whether trial counsel was constitutionally ineffective, counsel’s omissions resulted in the real controver sy 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 a ffirmed

. This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5

.