COURT OF APPEALS

DECISION

DATED AND FILED

May 8, 2024

Samuel A. Christensen

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. 2022AP1139-CR Cir. Ct. No. 2018CF395

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

AZURE S. MURRAY,

 DEFENDANT-APPELLANT.

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

Walworth County: PHILLIP A. KOSS, Judge. Affirmed. 

Before Gundrum, P.J., Grogan and Lazar, 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. 2022AP1139-CR

2

¶1 PER CURIAM. Azure S. Murray appeals a judgment of conviction 

for robbery of a financial institution as a party to a crime, as well as an order 

denying her postconviction motion for a new trial. The jury concluded Murray 

was criminally liable for acting as the driver in a bank robbery perpetrated by 

Michael Brown. Murray argues her trial counsel was constitutionally ineffective 

for misadvising her about the possibility that the State would cross-examine her 

about a charged offense in another county if she testified. She also argues she 

received ineffective assistance of counsel as a result of her attorney’s failure to 

impeach Brown with the details of his criminal record and with the contents of 

recorded jail telephone calls. Finally, Murray contends newly discovered 

evidence—namely, the jail phone calls—warrants a new trial. We reject Murray’s 

arguments and affirm.

BACKGROUND

¶2 On June 19, 2018, at approximately 2:00 p.m., a man robbed the 

East Troy branch of Associated Bank. That man was undisputedly 

Michael Brown. Brown, who had a lengthy criminal history, was granted use 

immunity and testified on behalf of the State against Murray at her trial for her 

participation as a party to a crime. 

¶3 Specifically, Brown testified that Murray acted as the driver because 

she needed money to pay off some drug dealers. Though Brown was evasive 

when answering questions about who had formulated the robbery plan, he 

ultimately testified that Murray had shown him the location of the bank the day 

before the robbery. He added that she planned to enter the bank herself until 

Brown suggested that he do it. 
No. 2022AP1139-CR

3

¶4 Immediately upon the commencement of cross-examination, Brown 

was asked by defense counsel how many criminal convictions he had. The parties 

had earlier stipulated that Brown had nine. Brown responded that he did not know 

which offenses counsel was talking about. Thus began a back-and-forth between 

Brown and defense counsel wherein Brown variously responded that he “[hadn’t] 

been able to count” all his convictions, that he had a “very minor” record, and that 

he had “[a]pparently” been convicted in connection with this bank robbery. 

Defense counsel terminated this line of questioning by getting Brown to 

affirmatively admit that had been convicted of robbing the East Troy branch.

¶5 The State had other evidence of Murray’s involvement besides 

Brown’s testimony. Two witnesses saw a female in and around the suspected 

getaway vehicle in the minutes surrounding the robbery; one of them identified 

Murray at trial as the driver. The identifying witness also testified that Murray 

was transporting a male passenger, who left while Murray feigned car troubles. A 

few minutes later, the male came running back to the car, he jumped in the back 

seat and lay down, and the pair “took off” in the vehicle. 

¶6 Jacqueline Brown, Michael Brown’s mother, testified that Murray 

and Michael1 were living together at her residence in the months leading up to the 

robbery. Jacqueline also testified that at the time the robbery occurred, Michael

and Murray were absent from the residence and were using the suspected vehicle

(which belonged to Jacqueline’s aunt). The pair returned around 3:00 p.m. and 

hurriedly left in separate vehicles, with Murray driving the suspected robbery 

 

1

 References to Michael Brown will appear as both “Michael” and “Brown” in this 

opinion. Jacqueline Brown will be referred to by her first name.
No. 2022AP1139-CR

4

vehicle. Jacqueline never saw it again. Michael and Murray left the residence 

after that and did not return. Jacqueline testified she met with them twice at 

different locations while they were on the run from law enforcement.

¶7 Murray elected not to testify at trial, and a jury convicted her of the 

robbery as a party to a crime. 

¶8 After sentencing, Murray filed a postconviction motion seeking a 

new trial. As relevant here, Murray argued her trial attorney had incorrectly 

counseled her that, if she testified, she could be impeached with evidence of her 

involvement as the driver in an alleged Waukesha County burglary that occurred 

several months before the East Troy robbery. Murray alleged that her attorney 

failed to advise her that she could invoke her Fifth Amendment right against 

self-incrimination and refuse to answer questions about the events in Waukesha

County. 

¶9 The postconviction motion also alleged that Murray’s trial counsel 

was constitutionally ineffective for failing to more thoroughly impeach Brown, 

including by eliciting testimony detailing his criminal history, his attempted 

escape from custody,2and contents of certain telephone calls Brown made while 

in jail. In the first set of recorded phone calls, made shortly after Brown was 

apprehended, he called Murray disparaging names and suggested that Murray 

could be useful to him because she had not yet made a statement to police. In the 

second set of phone calls, made during the trial, Brown appeared to admit he had 

perjured himself at trial when he feigned ignorance about meeting his mother after 

 

2

 Brown had apparently tried to flee from a squad car traveling on the interstate after he 

was arrested in connection with the robbery. 
No. 2022AP1139-CR

5

the robbery. Murray also argued that the calls constituted newly discovered 

evidence. 

¶10 The circuit court denied the motion for a new trial following a 

Machner3 hearing.

4

 First, the court concluded there was a significant possibility 

that it would have permitted Murray to be cross-examined using the Waukesha 

County case, either as a specific instance of untruthfulness or on other-acts 

grounds. As a result, the court determined that trial counsel’s advice that Murray 

could be impeached with those events was not deficient performance.

¶11 The court also concluded Murray’s trial counsel was not deficient in 

his cross-examination of Brown. The court found that Brown was a combative 

witness who portrayed himself as being unjustly persecuted because he had tried 

to help Murray. It remarked that “[y]ou couldn’t put it into words, without being 

there, how bad of a witness Mr. Brown was.” The court determined trial counsel’s 

cross-examination was effective because it established that Brown was not 

somebody to be liked or trusted without permitting Brown to derail the 

proceedings with his confrontational and evasive responses. 

¶12 Additionally, the circuit court rejected the specific allegations of 

ineffective assistance regarding Brown’s cross-examination. The court viewed 

further exploration of Brown’s prior convictions as fruitless, noting that Brown 

“probably wouldn’t have conceded” the fact or nature of the prior convictions, 

 

3

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

4

 Murray did prevail in part on her postconviction motion; based on the State’s 

concession, the circuit court concluded Murray received ineffective assistance of counsel at 

sentencing, where successor counsel (i.e., not her trial attorney) made an appearance on her 

behalf while intoxicated. 
No. 2022AP1139-CR

6

requiring defense counsel to belabor the trial with more arguing. Nor did the court 

conclude the facts of Brown’s escape attempt would have materially aided 

Murray’s defense. Finally, the court rejected Murray’s ineffective assistance 

claim based on Brown’s jail telephone calls, finding that Murray had not 

established prejudice arising from counsel’s failure to obtain the first set of 

recordings and that her counsel’s failure to obtain the second set of recordings 

during trial was not deficient performance.

¶13 The circuit court also rejected Murray’s newly discovered evidence 

claim. It first found the evidence of Brown’s perjury and witness tampering was 

cumulative, as there was “no hiding Mr. Brown’s character.” For the same reason, 

the court determined there was no reasonable probability of a different result had 

the evidence come in at trial. Murray now appeals.

DISCUSSION

¶14 On appeal, Murray renews her argument that she is entitled to a new 

trial because she received constitutionally ineffective assistance and by virtue of 

newly discovered evidence. For the reasons set forth below, we reject her 

ineffective assistance of counsel claims because her trial counsel did not perform 

deficiently in any of the ways Murray alleges. We also conclude her newly 

discovered evidence claim fails because Murray has not established a reasonable 

probability that she would have been acquitted had the evidence been admitted at 

trial.

I. Ineffective Assistance of Counsel

¶15 The Sixth Amendment guarantees a defendant the effective 

assistance of counsel. State v. Savage, 2020 WI 93, ¶27, 395 Wis. 2d 1, 951 
No. 2022AP1139-CR

7

N.W.2d 838. To prevail on an ineffective assistance claim, the defendant must 

show both that counsel’s performance was deficient and that the deficient 

performance prejudiced the defendant. Id., ¶25; see also Strickland v. 

Washington, 466 U.S. 668, 687 (1984). If the defendant fails to establish either 

prong, we need not address the other. Savage, 395 Wis. 2d 1, ¶25.

¶16 To demonstrate deficient performance, the defendant must show that 

his or her attorney made errors so serious that the attorney was not functioning as 

the “counsel” guaranteed by the Sixth Amendment. Id., ¶28. We presume that 

counsel’s conduct fell within the wide range of reasonable professional assistance, 

and we will grant relief only upon a showing that counsel’s performance was 

objectively unreasonable under the circumstances. Id. Prejudice is demonstrated 

by showing a reasonable probability that, but for counsel’s unprofessional 

conduct, the result of the proceeding would have been different. Id., ¶32.

¶17 We review an ineffective assistance of counsel claim using a mixed 

standard of review. Id., ¶25. The circuit court’s factual findings, including those 

regarding trial counsel’s conduct and strategy, will not be overturned unless they 

are clearly erroneous, but we review de novo whether counsel’s conduct 

constitutes constitutionally ineffective assistance. Id.

A. Murray’s Fifth Amendment Right to Silence

¶18 Murray first argues she was misadvised concerning her decision 

whether to testify at her trial. She asserts trial counsel failed to inform her that she 

could not be cross-examined with the details of her pending charge in Waukesha 

County. Murray asserts that had she been correctly advised, she would have 

testified she did not know that Brown planned to rob the bank when she drove him 
No. 2022AP1139-CR

8

to the area, and she would have invoked her Fifth Amendment right against selfincrimination when asked about the Waukesha County case. 

¶19 “It is well established that a witness, in a single proceeding, may not 

testify voluntarily about a subject and then invoke the privilege against 

self-incrimination when questioned about the details.” Mitchell v. United States, 

526 U.S. 314, 321 (1999). The Fifth Amendment privilege is waived as to matters 

about which the witness testifies, and the scope of the waiver is coterminous with 

“the scope of relevant cross-examination.” Id.; see also Neely v. State, 97 Wis. 2d 

38, 47, 292 N.W.2d 859 (1980) (holding that a witness may be compelled to 

answer on matters reasonably related to the subject matter of the direct 

examination). 

¶20 At the heart of this issue is the parties’ disagreement about whether 

the alleged Waukesha County offense was “reasonably related to the subject 

matter” of direct examination—that is, the matter of Murray’s involvement in the 

East Troy robbery. The parties reach vastly different interpretations of Neely in 

this regard. Murray argues that—unlike her case—Neely did not really involve 

cross-examination regarding a collateral matter, given that the events the state 

desired to use “tended to show the defendant’s motive” for a subsequent homicide. 

Neely, 97 Wis. 2d at 42-43. The State, by contrast, argues the events that formed 

the basis for the cross-examination in Neely were wholly separate incidents from 

the homicide, and therefore Neely’s holding regarding the scope of the Fifth 

Amendment waiver controls and permitted the use of the alleged Waukesha 

County events here. 

¶21 Neely quoted extensively from Johnson v. United States, 318 U.S. 

189 (1943). Though neither party discusses Johnson, that case appears to 
No. 2022AP1139-CR

9

establish that collateral conduct—i.e., conduct for which the accused is not on 

trial—may be relevant to a prosecution such that the Fifth Amendment protections 

regarding that conduct are waived by the defendant’s decision to testify at trial. 

See id. at 195 (holding that the defendant’s receipt of illicit income in 1938 was 

relevant for purposes of the Fifth Amendment waiver in a tax prosecution for the 

three preceding years). 

¶22 Mitchell and Johnson provide a substantial legal basis for the advice 

trial counsel provided to Murray. After all, relevant cross-examination in 

Wisconsin can include questioning about other acts evidence pursuant to WIS.

STAT. § 904.04 (2021-22).

5

 Such evidence is admissible if it is: (1) offered for an 

acceptable purpose; (2) relevant; and (3) has probative value that is not 

substantially outweighed by various trial considerations. State v. Sullivan, 216 

Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998). 

¶23 During postconviction proceedings, the circuit court determined that 

it would have permitted the State’s anticipated cross-examination as valid 

other-acts evidence to demonstrate Murray’s intent and counter her claim of 

mistake. We need not directly consider whether such a holding would have 

constituted an erroneous exercise of discretion—particularly since Murray does 

not make such an argument. Rather, the critical point for our purposes is 

this: there was a significant likelihood that Murray would have been validly 

 

5

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2022AP1139-CR

10

subject to cross-examination on the matter of the alleged Waukesha County 

offense, which is exactly what Murray’s counsel told her.6 

¶24 Murray appears to rely on Boyd v. United States, 142 U.S. 450 

(1892), which was cited in passing in Johnson for the proposition that “inquiry 

into a collateral crime unconnected with the offense charged” is prohibited. 

Johnson, 318 U.S. at 195. But Boyd was not a self-incrimination case. Instead, in 

Boyd the Supreme Court was concerned that the defendant was convicted of 

murder based on evidence that he was involved in a series of robberies that had 

nothing to do with the death. Boyd, 142 U.S. at 458. In this sense, Boyd does 

little more than echo Wisconsin’s general prohibition on propensity evidence—a 

prohibition the State could arguably have dodged, as set forth in the circuit court’s 

postconviction decision.

¶25 For the foregoing reasons, we conclude Murray has failed to 

demonstrate that her trial counsel was constitutionally ineffective by advising her 

that if she testified at trial, she could be impeached with questioning related to the 

alleged Waukesha County offense. 

B. Brown’s Cross-Examination

¶26 Murray also argues her trial counsel was constitutionally ineffective 

during Brown’s cross-examination. She contends that her attorney should have 

 

6

 Beyond that, Neely v. State, 97 Wis. 2d 38, 292 N.W.2d 859 (1980), explicitly declined 

to reach the issue of “whether a defendant who takes the stand waives his privilege to the full 

scope of cross-examination permissible under Wisconsin’s evidentiary rules,” contrasted with the 

narrow scope of cross-examination allowed in federal courts. Id. at 44-45. Accordingly, Murray 

has not established that the scope of the Fifth Amendment waiver is sufficiently settled such that 

her attorney had a duty to advise her that she could not be questioned about the Waukesha County 

case. See State v. Breitzman, 2017 WI 100, ¶49, 378 Wis. 2d 431, 904 N.W.2d 93. 
No. 2022AP1139-CR

11

engaged in detailed questioning regarding Brown’s prior convictions and his 

attempted escape from custody. She also argues her attorney should have 

impeached Brown by using the jail telephone call recordings. Among other 

things, Murray asserts that such questioning would have irreparably damaged 

Brown’s credibility by showing he committed perjury, as well as by 

“demonstrate[ing] to the jury that Brown was indeed controlling and manipulative, 

that Brown was either lying about or embellishing the supposed motive for the 

crime, and that Brown’s supposed concern for Murray was a ruse.” 

¶27 Murray has failed to establish deficient performance related to the 

failure to more thoroughly cross-examine Brown regarding his criminal history

and his escape attempt. Her trial counsel was aware of both matters.7 Consistent 

with the circuit court’s findings, counsel testified that Brown came off as evasive 

and manipulative in his testimony. Counsel believed he had achieved his goal of 

showing Brown’s negative qualities, specifically by getting Brown to admit that he 

had been convicted of the East Troy robbery, in which Brown had concealed his 

face and terrorized the female bank employees. Under the circumstances, we 

conclude this was reasonable trial strategy; at a minimum, it does not constitute an 

error “so serious that counsel was not functioning as the ‘counsel’ guaranteed ... 

by the Sixth Amendment.” See Strickland, 466 U.S. at 687. 

¶28 We further conclude Murray’s trial counsel did not perform 

deficiently by failing to obtain the recorded jail telephone calls. As an initial 

 

7

 Trial counsel also testified that he was under the impression from the circuit court’s 

prior rulings and statements that delving into these matters would not be allowed. Because we 

conclude trial counsel’s alternative rationale for not pursuing further questioning was reasonable 

trial strategy, we need not further address counsel’s belief in that respect. 
No. 2022AP1139-CR

12

matter, Murray’s brief appears to address deficient performance only as it pertains 

to the calls made in July 2018, soon after Brown was apprehended. Although 

counsel was generally aware that the jail recorded inmate calls, counsel testified 

he had no reason to suspect that any of Brown’s telephone calls would yield 

information relevant to Murray’s prosecution. 

¶29 Importantly, we afford trial counsel’s representation the presumption 

of constitutional adequacy. State v. Breitzman, 2017 WI 100, ¶65, 378 Wis. 2d 

431, 904 N.W.2d 93. Though Brown’s credibility was an important issue in the 

case, Murray does not allege that her trial counsel failed to undertake any 

independent investigation of the State’s key witness. See State v. Thiel, 2003 WI 

111, ¶50, 264 Wis. 2d 571, 665 N.W.2d 305. Rather, Murray contends it was 

deficient performance not to specifically seek out one particular piece of possible 

evidence: jail telephone recordings. Implicitly, Murray considers it imperative 

that her trial attorney should have taken the time to file an open records request 

and then listen to any and all of the disclosed recordings to ascertain whether there 

was something that might have aided her defense.

¶30 We are unpersuaded that Strickland requires an attorney to engage 

in such a needle-in-a-haystack endeavor, particularly given that there were many 

avenues trial counsel could have used to impeach Brown. Murray’s trial counsel 

acknowledged during his Machner hearing testimony that it was always possible 

different lines of investigation would yield relevant information, but he noted that 

there is “only so much time in a day.” Counsel testified that the time necessary to 

obtain, review, and design a theory of admissibility for telephone calls was time 

that would be unavailable to otherwise prepare Murray’s case. In our view, our 

obligations to avoid the “distorting effects of hindsight, to reconstruct the 

circumstances of counsel’s challenged conduct, and to evaluate the conduct from 
No. 2022AP1139-CR

13

counsel’s perspective at the time” requires us to reject Murray’s claim.8 See 

Strickland, 466 U.S. at 689.

II. Newly Discovered Evidence

¶31 Murray also argues the jail telephone calls constitute newly 

discovered evidence warranting a new trial. To set aside a judgment of 

conviction, the newly discovered evidence must demonstrate that a manifest 

injustice occurred. State v. Watkins, 2021 WI App 37, ¶42, 398 Wis. 2d 558, 961 

N.W.2d 884. A defendant must first establish that the evidence qualifies as newly 

discovered evidence; then, the circuit court must determine whether there is a 

reasonable probability of a different result—that is, whether the jury would have 

had a reasonable doubt about the defendant’s guilt if it had heard the evidence. Id. 

We review the circuit court’s decision on a newly discovered evidence claim for 

an erroneous exercise of discretion. Id., ¶44. However, whether a reasonable 

probability of a different trial result exists is reviewed de novo. Id.

¶32 Even assuming the telephone calls otherwise met the four-part test 

for newly discovered evidence, the evidence would not have created a reasonable 

probability of a different outcome. See id., ¶43. Brown was a questionable 

prosecution witness who, despite directly committing the robbery, continually 

downplayed his own involvement and complained of being treated unfairly by the 

justice system. Among his more absurd testimony was his differentiating between 

“terrifying” and “scaring” the bank tellers—he acknowledged doing the latter but 

 

8

 Even if Murray’s trial counsel’s performance could be characterized as deficient for 

failing to obtain the July 2018 recordings, we would alternatively conclude she has failed to 

establish prejudice given their contents and the trial record. 
No. 2022AP1139-CR

14

resisted the former characterization—and his claim that he had been “pretty 

polite” during the robbery. Despite his evasive answers, it was clear Brown had a 

considerable criminal history. He also acknowledged that he had used multiple 

fake identities to avoid apprehension and that, once arrested, he had attempted to 

bargain his way out of trouble. 

¶33 In short, there was ample evidence that cast doubt on Brown’s 

veracity. Even without the recordings, it was likely the jury had a negative 

impression of Brown and regarded as nonsense his denials of meeting his mother 

and his claim that he was motivated by a genuine concern for Murray’s 

well-being. In this respect, we emphasize the circuit court’s repeated observations 

that Brown’s credibility was impugned by his own conduct during the trial. 

Moreover, because Jacqueline testified that Murray was with Brown during the 

post-robbery meetings, bolstering Jacqueline’s credibility would not necessarily 

have aided Murray’s trial defense, insofar as it would have cast doubt on the 

defense’s attempts to distance Murray from Brown and to emphasize her lack of 

knowledge about Brown’s plan to commit a robbery.

By the Court.—Judgment and order affirmed.

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

RULE 809.23(1)(b)5.