COURT OF APPEALS

DECISION

DATED AND FILED

January 4, 2023

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. 2021AP1583-CR Cir. Ct. No. 2017CF5704

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT MAURICE BLACK, JR.,

DEFENDANT-APPELLANT.

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

Milwaukee County: JOSEPH R. WALL and GLENN H. YAMAHIRO, Judges. 

Affirmed. 

Before Donald, P.J., Dugan and White, 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). 

¶1 PER CURIAM. Robert Maurice Black, Jr. appeals a judgment of 

conviction for first-degree reckless homicide as a party to a crime, entered upon a 
No. 2021AP1583-CR

2

jury’s verdict. He further appeals the order denying his motion for postconviction 

relief. Black makes two primary arguments on appeal. First, he contends the 

evidence was insufficient to support his conviction. Second, he asserts that he 

received ineffective assistance of counsel in three ways: (1) his counsel failed to 

move to suppress his second statement to police, a statement made after he 

invoked his right to counsel; (2) his counsel failed to secure the attendance of two 

witnesses; and (3) his counsel provided ineffective representation at sentencing. 

We reject all of Black’s arguments, and accordingly, we affirm. 

BACKGROUND

¶2 This case arises out of the shooting death of R. Riggins on

December 4, 2017. According to the criminal complaint, Milwaukee Police 

Department (MPD) officers were dispatched to West Mineral Street in Milwaukee 

for reports of a shooting; Riggins was found in the rear yard of a property near his 

residence with apparent gunshot wounds. After canvassing the area, MPD 

retrieved video surveillance footage that captured the front and rear of Riggins’s 

residence. Through their investigation of Riggins’s phone records, they arrested 

and interviewed Black on December 7, 2017. Black was charged with first-degree 

reckless homicide as a party to a crime.
No. 2021AP1583-CR

3

¶3 The case proceeded, with Black ultimately being represented by at 

least four attorneys by the time of trial in February 2019.1 Relevant to this appeal, 

after filing a motion to withdraw, Black’s third attorney filed a notice of an alibi 

on August 15, 2018, claiming Black was at another address in Milwaukee with a 

person named L.P. at the time of the shooting. Black also filed several pro se

motions while represented, including a speedy trial demand; ultimately, the trial

court2 discussed Black’s concerns on the record in January 2019, but stated that 

the court could not consider pro se motions from represented defendants.3 On 

January 3, 2019, the trial court granted a continuance on the speedy trial because, 

although Black objected, his trial counsel informed the court he needed additional 

time to adequately prepare Black’s defense.

¶4 After an additional delay caused by the courthouse closing due to 

extreme weather, the trial began February 4, 2019. We now recite the facts that 

support the foundation of the State’s evidence. The State presented testimony 

from MPD officers, detectives, and analysts establishing a timeline for the events 

 

1

 In March 2018, Black’s appointed counsel from the State Public Defender’s (SPD)

Office moved to withdraw, at Black’s request, citing that Black lacked confidence in the first 

attorney. SPD appointed a second attorney as Black’s counsel in April 2018, but that attorney 

was then replaced by a third attorney as Black’s counsel (the reason for this change is not clear 

from the record). Black’s third attorney moved to withdraw on August 13, 2018, at Black’s 

request, citing Black’s complaint that counsel had not prepared a defense and then Black refused 

to discuss the case with his attorney. On August 31, 2018, the trial court granted the third 

attorney’s motion to withdraw, and agreed that counsel would be appointed again. Black’s fourth 

attorney was appointed in September 2018.

2

 The Honorable Joseph R. Wall heard Black’s case through trial and sentencing. We 

refer to Judge Wall as the trial court. The Honorable Glenn H. Yamahiro denied Black’s 

postconviction motion. We refer to Judge Yamahiro as the circuit court.

3

 Black filed pro se motions to dismiss in August 2018 and December 2018 and a pro se

motion for a speedy trial in October 2018. Black agreed to waive the speedy trial issue when the 

trial date was set five days beyond the ninety-day speedy trial deadline.
No. 2021AP1583-CR

4

and contact between Black and Riggins on December 3 and 4, 2017. The State 

established the retrieval and analysis of two sets of video surveillance 

footage: (1) from a pool hall where Black and Riggins went together on 

December 3, 2017, and (2) from the front and rear of the premises on West 

Mineral Street, where the State presented testimony that Riggins lived and was 

found with fatal gunshot wounds on December 4, 2017. The State also established 

through police testimony: (1) Black’s connection to Riggins through Riggins’s 

phone records, (2) Black’s arrest on December 7, 2017, (3) the first custodial 

interrogation on December 8, 2017, (4) the arrest of T.F., who accompanied Black 

and Riggins to the pool hall, and the impound of Black’s dark-colored Jeep SUV,

(5) the search of Black’s cell phone secured with his permission, (6) the analysis 

of Black’s and Riggins’s cell phone records, and (7) the attainment and analysis of 

Black’s cell carrier records, including mapping his cell site location information. 

Further, the State established through the Milwaukee County Medical examiner 

that Riggins’s had sustained eight gunshot wounds, and that multiple gunshot 

wounds caused his death.

¶5 On the second day of the jury trial, the State played clips from the 

video surveillance footage at the pool hall. The detective who retrieved the 

footage testified that he saw on the video Riggins, a black woman, and a black 

man exit a dark-colored Jeep SUV in front of the pool hall and head inside 

together on December 3, 2017. He testified that the other man was wearing a 

jacket with distinctive sleeve patches. The video further showed Riggins, the 

other man, and a woman leaving the pool hall and re-entering the Jeep later in the 

evening. Riggins’s wife was called as a witness; she identified Riggins in the 

video footage from the pool hall. Another police detective identified the three 

people in the video as Riggins, Black—who had been described as the black man 
No. 2021AP1583-CR

5

or the other man in the earlier detective’s testimony, and T.F., the female friend of 

Black’s who accompanied them that night and who was described as the black 

woman in the earlier detective’s testimony. 

¶6 The State called another detective who discussed the content of the 

video surveillance footage from outside West Mineral Street as it was shown to 

the jury. The video footage showed a dark SUV stop on West Mineral Street near 

Riggins’s residence; a passenger, who appeared to have reflective shoes, exited the 

SUV at the front of the house. The SUV then appeared to drive in the alleyway 

behind the house. The detective reviewed another clip, this one capturing the rear 

yard and alley. From the video footage, the detective identified three men near the 

alley: a man wearing a hat and a jacket with distinctive sleeves who appears to 

talk into a cell phone; a man wearing a hoodie; and the man wearing reflective 

shoes who exited the dark SUV in the earlier video clip.

¶7 The detective testified that the video from the alley view appeared to 

show there was a “physical confrontation ... and then you see both the subject 

with the hoodie at one point have a firearm pointed towards the subject with the 

reflective shoes, and after the confrontation ... then you see the person with the 

distinctive jacket and hat display a firearm[.]” The detective interpreted the video 

to show the man in the jacket with distinctive sleeves point a “pistol ... at the 

person that is just off screen.” The detective stated that in the video, there were 

“flashes which would indicate that the gun is being fired and then they appear to 

run off to the west ... and ... the subject with the distinctive jacket comes back on 

the screen momentarily ... as if running backwards in the backyard.”

¶8 The State also reviewed Black’s custodial interrogation; relevant 

here, we note that the State only called a detective who conducted the first 
No. 2021AP1583-CR

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interview. The detective testified that Black stated that he and Riggins had 

worked together for about a month before Riggins’s death. Black told the 

detective that on the night of December 3, 2017, he met with Riggins and arranged 

to go out with him and a female friend, T.F. Riggins’s drove the trio in Black’s 

dark gray Jeep Liberty SUV because Riggins was more familiar with the area

where they were going—a pool hall on South 27th Street. Black told the detective 

that at some point in the evening, Riggins borrowed Black’s keys to the Jeep so he 

could retrieve something. Later, around 2:00 a.m. on December 4, 2017, Riggins 

drove Black and T.F. in the Jeep back to Riggins’s residence on West Mineral 

Street. After chatting in the car, Riggins exited and went inside and then Black 

dropped T.F. at her home and then stopped at a gas station near North 43rd Street 

and West Capitol Drive. Black then told the detective that he noticed that he was 

missing $80 that had been in his vehicle and he suspected Riggins of stealing it. 

Black then called Riggins to ask about it. Riggins denied having the money and 

Black decided to let it go after arguing with Riggins. Black then went to his home 

on West Capitol Drive.

¶9 Cell phones were also key to the investigation and the State’s 

evidence presentation. The State called another detective who testified that he 

forensically analyzed Black’s cell phone and found no calls in the call log at any 

time between Black’s phone and Riggins’s cell phone number. A different 

detective testified that Black’s cell phone records as obtained from the phone 

carrier showed multiple calls between Black’s phone number and Riggins’s phone 

number on December 3, 2017, as well as calls between 1:20 a.m. and 3:04 a.m. on 

December 4, 2017. An MPD officer testified that he analyzed cell communication 

records from Black’s cell carrier account. The officer testified that Black’s cell 
No. 2021AP1583-CR

7

phone records showed that his phone connected to cell phone towers in the area 

and at the time of Riggins’s shooting.

¶10 Another significant fact was the distinctive jacket that appeared in 

both sets of surveillance video. The State called another detective, who testified 

that on December 11, 2017, he went to Black’s girlfriend’s house on West Capitol 

Drive to attempt to locate the jacket worn by a subject in the video footage. The 

girlfriend consented to the search; in a second floor closet, a jacket with distinctive 

patches on the sleeves that resembled the jacket in the videos was recovered. The 

detective then showed the recovered jacket in court. The State called the first 

detective again, who reviewed another segment of the surveillance video footage 

from the house on West Mineral Street, which showed the “subject standing near 

the tree with a distinctive jacket.” Further, the subject in the video made a phone 

call.

¶11 On the third day of trial, trial counsel informed the trial court that 

attempts had been unsuccessful to serve two witnesses with subpoenas to testify. 

Trial counsel informed the court that Black was unhappy with the unsuccessful 

service and wanted trial counsel off the case. The court refused to remove trial 

counsel. The two witnesses were L.P., the sister of Black’s girlfriend and the 

person named in his notice of alibi, and C.N., who was interviewed by police on 

the night of the shooting and reported seeing a Hispanic man involved in the 

shooting that night.

¶12 Black chose not to testify, and after deliberations, the jury returned a 

guilty verdict. The court entered the judgment of conviction. Upon the court 

asking if there was a request for a presentencing investigation, the State did not 

ask for one and trial counsel did not think one was needed.
No. 2021AP1583-CR

8

¶13 In April 2019, trial counsel moved to withdraw because he and 

Black had become “antagonistic” and Black filed an OLR complaint against trial 

counsel.4 The court granted the motion to withdraw. Sentencing was adjourned 

pending new counsel being appointed.

¶14 Black, with his fifth attorney, appeared at the sentencing hearing on 

June 26, 2019. Black’s attorney moved to withdraw, stating that communication 

had broken down with Black, who had been under the assumption that the attorney 

would file postconviction motions, when his appointment was for sentencing. 

However, Black told the court, “I’m ready to proceed. I’m not going to continue 

with this.” After a short off-the-record discussion between sentencing counsel and 

Black, the sentencing hearing continued.

¶15 At the sentencing hearing, four members of Riggins’s family 

addressed the court, expressing how good a person Riggins was, how much they 

missed him, and how they wanted heavy penalties for Black. The State stated that 

Black’s maximum exposure for the charged count of first-degree reckless 

homicide as a party to a crime was forty years of initial confinement and twenty 

years of extended supervision. The prosecutor stated that it did not consider Black 

to be the “worst offender,” but the jury found him guilty of killing Riggins as a 

party to the crime. The State recommended twenty-five years of initial 

confinement and seven years of extended supervision. Black’s sentencing counsel 

proffered information about Black’s regular employment and his care for his three 

daughters. Black spoke to the court, stating that he was sympathetic to Riggins’s 

 

4

 The Office of Lawyer Regulation (OLR) is the division of the Wisconsin Supreme 

Court that receives and responds to inquiries and grievances relating to attorney misconduct, 

conducts investigations, and prosecutes violations of ethics rules. See SCR 21.01 (2021).
No. 2021AP1583-CR

9

family, but he was not the person who killed Riggins. After reviewing its 

sentencing goals and the seriousness of the offense, the court imposed a term of 

twenty-five years of initial confinement and seven years of extended supervision.

¶16 In May 2021, Black filed a motion for postconviction relief under 

WIS. STAT. RULE 809.30 (2019-20).

5

 In September 2021, the circuit court denied 

his motion, without a hearing. Black now appeals. 

DISCUSSION

¶17 On appeal, Black raises four issues that he argues requires a new 

trial or an evidentiary hearing. First, we will address Black’s argument that the 

State’s evidence was “wholly circumstantial” and insufficient for a jury to find 

him guilty beyond a reasonable doubt. Second, we will address Black’s three 

ineffective assistance of counsel claims. 

I. Sufficiency of the evidence

¶18 Black argues that the State did not present sufficient evidence for the 

jury to have found him guilty beyond a reasonable doubt of the charged crime. 

“The question of whether the evidence was sufficient to sustain a verdict of guilt 

in a criminal prosecution is a question of law,” which we review independently. 

State v. Smith, 2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410. We “will 

uphold the conviction if there is any reasonable hypothesis that supports it.” Id.

 

5

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

noted.
No. 2021AP1583-CR

10

¶19 “The burden of proof is upon the [S]tate to prove every essential 

element of the crime charged beyond reasonable doubt.” Bautista v. State, 53 

Wis. 2d 218, 223, 191 N.W.2d 725 (1971). “It is well established that a finding of 

guilt may rest upon evidence that is entirely circumstantial[.]” State v. Poellinger, 

153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). “The credibility of the witnesses 

and the weight of the evidence is for the trier of fact.” Bautista, 53 Wis. 2d at 

223. “Although the trier of fact must be convinced that the evidence presented at 

trial is sufficiently strong to exclude every reasonable hypothesis of the 

defendant’s innocence in order to find guilt beyond a reasonable doubt,” on 

appeal, the reviewing court may not substitute its “judgment for that of the trier of 

fact unless the evidence, viewed most favorably to the [S]tate and the conviction, 

is so lacking in probative value and force that no trier of fact, acting reasonably, 

could have found guilt beyond a reasonable doubt.”. See Poellinger, 153 Wis. 2d 

at 503, 507. “If more than one inference can be drawn from the evidence, we must 

adopt the inference that supports the conviction.” State v. Long, 2009 WI 36, ¶19, 

317 Wis. 2d 92, 765 N.W.2d 557. 

¶20 To prove first-degree reckless homicide as a party to a crime, the 

State must prove three elements: first, that Black “or a person he intentionally 

aided and abetted caused the death of []Riggins”; second, that Black “or a person 

he intentionally aided and abetted caused the death by criminally reckless 

conduct”; and third, that “the circumstances of [Black’s] conduct or the conduct of 

the person he intentionally aided and abetted showed utter disregard for human 

life.” See WIS. STAT. §§ 940.02(1); 939.05. The jury was instructed on those 

elements as well as Wisconsin law on liability “as a party to a crime,” which 

requires that Black did so by “either directly committing” first-degree reckless 
No. 2021AP1583-CR

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homicide or “by intentionally aiding and abetting the person who directly 

committed it.” See § 939.05. 

¶21 Our examination of the record supports that the State presented 

evidence sufficient for the jury to find this charge was proven beyond a reasonable 

doubt.6 The State established a motive for Black’s actions—his suspicion that 

Riggins stole $80 from his vehicle. The video surveillance footage obtained from 

the pool hall showed Black, Riggins, and T.F. arriving together and leaving 

together in a dark-colored Jeep. The video surveillance footage from outside 

Riggins’s West Mineral Street premises showed three men, each with distinctive 

clothing that was pointed out to the jury. Although there was no video of one of 

the men being shot, there were flashes that indicated firing off-screen and the man 

with the distinctive jacket running away. The shooting occurred where Riggins 

was found with multiple gunshot wounds. The video surveillance footage from 

both locations showed a man in a jacket with distinctive sleeves—a jacket that was 

found in a search from the residence Black shared with his girlfriend and 

presented in court. The jury could reasonably form conclusions about whether the 

jacket presented in court was the same jacket shown in both videos.

¶22 The cell phone carrier records showed calls between Black and 

Riggins, including a call near the estimated time of the shooting. Black’s call log 

record on his phone did not show those calls, which creates an inference that 

Black deleted the calls, the jury could reasonably infer that Black was conscious of 

 

6

 We interpret Black to challenge that the State failed to prove beyond a reasonable 

doubt his identity as the person who directly committed the shooting or intentionally aided and 

abetted the person who did, in other words, the first element. We do not interpret Black to 

specifically challenge that the State’s evidence failed to show reckless conduct or utter disregard 

for human life, the second and third elements. 
No. 2021AP1583-CR

12

his guilt. The cell carrier records also mapped Black’s phone to physically be near 

the site of the shooting. 

¶23 Although Black argues that even when all of the circumstantial

evidence is considered together, there was insufficient evidence to support the 

jury’s finding that Black directly fired a gun at Riggins in either the front or back 

yard, or that Black had intentionally aided an abetted the person who did shoot 

Riggins. We disagree. Based on the evidence in the record, the jury could 

reasonably infer that Black went to Riggins’s residence with an unknown third 

person in a dark Jeep-like SUV because he believed that Riggins’s stole money 

from his car hours earlier, that Black and the other person confronted Riggins 

outside, and that Black or the other person shot Riggins causing his death. When 

reviewing the evidence, we consider it in the light most favorable to the 

conviction, and we conclude that there is sufficient evidence to support the jury’s 

verdict. See Poellinger, 153 Wis. 2d at 501. Accordingly, Black’s postconviction 

claim fails.

II. Ineffective assistance of counsel

¶24 Black’s second set of claims are based on his allegation that his 

counsel was ineffective.7 His first claim is that his attorney should have moved to 

suppress his second statement to the police in his custodial interrogation on 

 

7

 Black had several attorneys represent him. It is not entirely clear from the record 

whether Black’s first claim arises out of his third attorney’s conduct, who represented him during 

pretrial motions, or his fourth attorney, who represented him at trial. We do not distinguish 

between the attorneys because our analysis is the same.
No. 2021AP1583-CR

13

December 8, 2017.8 Second, he contends that trial counsel failed to secure two 

witnesses vital to his defense. Third, he argues that sentencing counsel was 

ineffective at sentencing.

¶25 “A claim of ineffective assistance of counsel is a mixed question of 

fact and law.” State v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 

695. We will sustain the circuit court’s factual findings unless they are clearly 

erroneous. State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 N.W.2d 305. 

We independently review as a question of law whether counsel was ineffective. 

Id., ¶24.

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

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

prejudiced by counsel’s performance. Strickland v. Washington, 466 U.S. 668, 

687 (1984). “Counsel’s conduct is constitutionally deficient if it falls below an 

objective standard of reasonableness.” Thiel, 264 Wis. 2d 571, ¶19. To prove that 

counsel’s deficient performance prejudiced his defense, “[t]he defendant must 

show that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” 

Strickland, 466 U.S. at 694. In our analysis, we “may reverse the order of the two 

tests or avoid the deficient performance analysis altogether if the defendant has 

 

8

 We note here that Black argues that the police violated his Fifth Amendment right to 

counsel when it continued a second custodial interrogation after he invoked his right to counsel. 

He contends that his second statement to police should be suppressed. However, Black did not 

move to suppress the statement; therefore, this claim must be addressed through the rubric of 

ineffective assistance of counsel. See State v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 683 

N.W.2d 31.
No. 2021AP1583-CR

14

failed to show prejudice” from counsel’s performance. See State v. Johnson, 153 

Wis. 2d 121, 128, 449 N.W.2d 845 (1990).

A. Failing to move to suppress Black’s second statement to police

¶27 Black argues that he invoked his Fifth Amendment right to counsel 

during the second custodial interrogation with MPD detectives; however, the 

detectives did not stop questioning him. When a subject of a custodial interview 

makes an “unequivocal, unambiguous invocation of the right to counsel,” State v. 

Edler, 2013 WI 73, ¶32, 350 Wis. 2d 1, 833 N.W.2d 564, then the accused “is not 

subject to further interrogation by the authorities until counsel has been made 

available to him, unless the accused himself initiates further communication, 

exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 

484-85 (1981); see also Miranda v. Arizona, 384 U.S. 436, 479 (1966). 

Therefore, Black contends his second statement should be suppressed and that 

defense counsel was ineffective for failing to move to suppress that statement. 

¶28 We begin with the record: In Black’s second custodial interrogation, 

he was again advised of his Miranda rights, but chose to talk to two MPD 

detectives. The record reflects that Black raised the idea of needing a lawyer 

multiple times. Early in the conversation Black asked one of the detectives if he 

should have a lawyer, to which the detective replied, “No.” Later in the 

conversation, Black said, “I know time is very important, but ... I’m not going to 

sit here and be an asshole. ‘Well, I need a lawyer.’” Then, when the detectives 

discussed the types of homicide charges possible, one detective stated, “This is the 

opportunity to explain that things didn’t go as planned: that this wasn’t a planned 

thing; that he wasn’t supposed to die.” Black expressed, “But these are things that 

I don’t understand, and I definitely would need a lawyer for that.” The detective 
No. 2021AP1583-CR

15

replied, “Okay.” The interview continued, and Black again stated, “I didn’t want 

to come here and be like, ‘Yeah, I need a lawyer.’ You know what I’m saying?” 

Finally, Black stated, “I don’t know what he wants me to tell him.... If I would 

say anything else, I will have to have a lawyer.” When Black’s statements were 

discussed with regard to any evidentiary concerns at hearings in December 2018 

and January 2019, Black’s attorney dismissed any concerns and did not file a 

suppression motion about Black’s statements.

¶29 Although Black argues that his attorney was ineffective for failing to 

file a suppression motion on the second statement, the State contends that his 

arguments fail because he suffered no prejudice because the jury did not hear any 

evidence arising out of the second interview. Black argues that the second 

statement placed him in contact with Riggins, established a motive for the 

shooting, and gave the police the location to retrieve the black jacket with 

distinctive sleeves. However, the record reflects that the State introduced Black’s 

contact with Riggins and the motive for the theft through testimony from the 

detective who conducted his first custodial interview. The State did not call as a 

witness either detective who conducted the second interview. Because the jury did 

not hear the disputed evidence, trial counsel’s failure to move to suppress Black’s 

second interview statement could not and did not prejudice his defense. 

¶30 Beyond the issue of Black failing to show prejudice from the second 

interview, the State argues that Black’s claim about giving the location of the 

jacket is misleading. Black does not provide a citation to where in the record he 

told police about the location of the jacket. The police report on the second 

interview reflects that Black told police he was wearing a black jacket “with 

patches on the sleeves” on the night of the incident, but there is no point in which 

Black tells the police where to find the jacket. Further, the police reports reflect 
No. 2021AP1583-CR

16

that after Black’s second interview, the police attempted to search for the jacket at 

two locations on different days, December 9 and 11, 2017. The police came up 

empty on December 9, 2017, at the first location, but did eventually find the jacket 

at a second location on December 11, 2017. Only the second search was raised in 

police testimony during trial. If Black had truly informed the police of the jacket’s 

location, logically there would not have been an unsuccessful attempt to recover 

the jacket. Therefore, the record reflects that it is a reasonable inference that 

Black’s statement was not the source of the jacket’s location.

¶31 Even if we assume without deciding that Black made an 

unambiguous request for counsel during the second interview, Black’s claim fails. 

See State v. Jennings, 2002 WI 44, ¶27, 252 Wis. 2d 228, 647 N.W.2d 142 

(explaining that “clear and unequivocal requests for counsel during custodial 

interrogation” require the police to stop questioning a subject). Black has not 

made a showing of prejudice. His two specific complaints are contradicted by the 

record. Black has not shown that the State presented his second statement or 

relied upon it, in fact Black concedes that the State did not directly present his 

second statement. Black has not shown that the second statement to police should 

undermine confidence in the verdict. Having failed to make a showing on the 

prejudice prong of Strickland, we decline to review the deficiency argument. We 

conclude that Black’s first claim for ineffective assistance of counsel fails.9

 

9

 The circuit court determined that Black’s references to a lawyer during the second 

custodial interview did not constitute “an actual unambiguous and unequivocal invocation of a 

right to counsel.” Under that view, the circuit court concluded that defense counsel’s decision not 

to file a suppression motion was neither deficient nor prejudicial.
No. 2021AP1583-CR

17

¶32 Accordingly, we conclude that the record conclusively demonstrates 

that Black is not entitled to relief; therefore, the circuit court acted within its 

discretion when it denied his postconviction claim without a hearing. “A hearing 

on a postconviction motion is required only when the movant states sufficient 

material facts that, if true, would entitle the defendant to relief.” State v. Allen, 

2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433. “However, if the motion 

does not raise facts sufficient to entitle the defendant to relief, or if it presents only 

conclusory allegations, or if the record conclusively demonstrates that the 

defendant is not entitled to relief, the circuit court has the discretion to grant or 

deny a hearing.” State v. Ruffin, 2022 WI 34, ¶35, 401 Wis. 2d 619, 974 N.W.2d 

432. 

B. Failing to call two witnesses

¶33 Black argues that trial counsel was ineffective for failing to secure 

the presence of two witnesses, C.N. and L.P. Black argues that C.N.’s and L.P.’s 

statements to police showed each woman would have been an important witness in 

Black’s defense.

¶34 First, we consider C.N. and turn to the police reports that contain her 

statement to the police. The report reflects that C.N. told police she was smoking 

in her bedroom window at approximately 3:03 a.m. “when she heard three 

gunshots.” C.N. stated she was also able to see West Mineral Street “and saw the 

muzzle flash of a handgun.” C.N. “stated she observed a Hispanic male, 20-29 

years old, 150 lbs, slim build, 5’5”-5’6” tall wearing a black hooded sweatshirt 

with the hood up and black pants running westbound on the north sidewalk[.]” 

She then stated she looked out another window and observed the subject “running 

northbound” and then “eastbound in the alley.” C.N. “stated she then heard five 
No. 2021AP1583-CR

18

more gunshots coming from the rear alley near her house.” C.N. did not see any 

other subjects. In Black’s postconviction motion, he asserted that a private 

investigator engaged by the defense spoke with C.N. on August 17, 2018, and she 

clarified that the man may have been Hispanic, not that he was definitely 

Hispanic. Black’s argument here arises out of a potential alibi because he is a 

black man, not Hispanic, and in any case he did not fit the description of the 

shooter given by C.N. 

¶35 The circuit court concluded that C.N. was not an actual eyewitness 

to Riggins’s death and that Black was charged as a party to the crime. The State 

presented evidence of a third person at the location of the shooting. Therefore, the 

circuit court concluded that Black’s defense was not prejudiced by the failure to 

produce C.N. On appeal, Black argues that the circuit court’s conclusion 

interfered with the jury’s role as the arbiter of credibility and fact finder. He 

argues the jury should have determined whether C.N.’s account of the shooting 

raised reasonable doubt of Black’s guilt. 

¶36 The State argues that C.N.’s testimony would not have “helped,” in 

other words, having the jury hear C.N.’s testimony would not have resulted in a 

reasonable probability of a different outcome: she was not an eyewitness to the 

whole crime—she reported hearing more gunshots than she saw out of the 

window. C.N.’s testimony provided a limited snapshot of what transpired that 

night and it did not create reasonable doubt regarding Black’s involvement. The 

State did not allege that Black was the only person involved in Riggins’s death; 

rather, it charged him as a party to a crime. Based on the surveillance video 

footage presented, C.N.’s observation of a possibly Hispanic male with a gun does 

not undermine the evidence that Black participated in Riggins’s homicide. The 

video showed another man with a gun was present at the time of the shooting, and 
No. 2021AP1583-CR

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that man was wearing the same distinctive jacket that Black was identified as 

wearing at the pool hall in that video footage. Our examination of the record 

supports that there was no reasonable probability of a different outcome if the jury 

had heard C.N.’s testimony.

¶37 Turning to the second witness, L.P.’s statement to police arises out 

of a visit from an MPD detective to her home on Grant Street on December 9, 

2017, to interview L.P. and to search for the jacket with the distinctive sleeves. 

The police report stated that L.P. allowed the police inside, explained that she was 

Black’s girlfriend’s sister. She told police that “sometime in the middle of the 

night” in the early hours of December 4, 2017, she was awakened by a knock on 

the back door. She found Black alone at the back door knocking, even though he 

had a code to open the door. She allowed him inside the house and went back to 

bed. He was not there when she woke up and she did not know how long he was 

there.

¶38 The circuit court stated that failing to secure L.P. was not prejudicial 

because she could not provide an effective alibi for Black. By contrast, Black 

argues that his second attorney filed a notice of alibi in August 2018 that alleged 

L.P. could provide an alibi. Black argues that counsel has a duty to make 

reasonable investigations in the case; therefore, he asserts trial counsel was 

ineffective for failing to investigate L.P. and attempt to pinpoint the alibi. Similar 

to our considerations of C.N.’s possible testimony, L.P.’s possible testimony does 

not undermine our confidence in the verdict. Black has characterized L.P. as an 

alibi witness. “The word, ‘alibi,’ is merely a shorthand method of describing a 

defense based on the fact that the accused was elsewhere at the time the alleged 

incident took place.” State v. Brown, 2003 WI App 34, ¶13, 260 Wis. 2d 125, 659 

N.W.2d 110 (citation omitted). In Black’s notice of an alibi defense, he claimed 
No. 2021AP1583-CR

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that L.P. would testify that Black was with her at her home on Grant Street at the 

time of the shooting. The record of L.P.’s statement to police does not support this 

assertion. Further, Black told the police in his first custodial interview that he 

went to his West Capitol Drive residence and was sleeping there at the time of 

Riggins’s death. If L.P. testified that Black was with her at that time at another 

address, the police testimony would contradict that claim. The State contends that 

by any objective standard, L.P.’s testimony would have undermined Black’s 

credibility because it would have shown that he lied to police about his 

whereabouts when Riggins was killed. Therefore, there is no reasonable 

probability of a different outcome if the jury had heard L.P.’s testimony.

¶39 Our examination of the record supports the circuit court’s 

determination that the failure to produce either witness was not prejudicial. We 

conclude that Black has not adequately pleaded that there was a reasonable 

probability that the outcome of the trial would have been different if the jury had 

heard either woman’s testimony; therefore, we conclude that Black’s second claim 

of ineffective assistance of counsel fails. See Strickland, 466 U.S. at 694. Again, 

we also conclude that the circuit court acted within its discretion when it denied 

Black’s postconviction motion without a hearing. Black failed to allege sufficient 

material facts to support his motion, relying on conclusory allegations and 

speculation. See Allen, 274 Wis. 2d 568, ¶9. 

C. Failing to provide effective representation at sentencing

¶40 Black argues that he received ineffective assistance of counsel in 

three ways related to his sentencing: First, he argues trial counsel failed to request 

a presentence investigation (PSI) after judgment was entered and sentencing 

counsel did not request one before sentencing commenced, which prevented the 
No. 2021AP1583-CR

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trial court from learning mitigating factors to the case. Second, he alleged that his 

fifth attorney’s limited contact with Black before the sentencing hearing made him 

unprepared to effectively represent Black. Third, he asserts that sentencing 

counsel failed to obtain Black’s consent before making his sentencing 

recommendation.

¶41 Addressing Black’s first issue about the failure to request a PSI, we

note that Black has not cited any authority to support his argument that counsel is 

required to request a PSI or that a court is required to order one. See State v. 

Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments 

unsupported by references to legal authority will not be considered.”). In fact, 

WIS. STAT. § 972.15(1) states that “[a]fter a conviction the court may order a 

presentence investigation[.]” Thus the use of presentence investigations and 

reports is “encouraged” but “they are not necessarily required” under Wisconsin 

law. Sprang v. State, 63 Wis. 2d 679, 686, 218 N.W.2d 304 (1974).10 Black has 

failed to show that an attorney has a duty to request a PSI. See State v. Breitzman, 

2017 WI 100, ¶49, 378 Wis. 2d 431, 904 N.W.2d 93 (concluding that counsel does 

not perform deficiently unless an attorney failed to perform a clear duty under the 

law). Therefore, Black’s argument fails that counsel’s representation was 

ineffective for failing to request a PSI.

 

10

 Black argued that State v. Reinwand, 2019 WI 25, ¶¶47-48, 385 Wis. 2d 700, 924 

N.W.2d 184, supported his position that the failure to request a PSI was deficient performance. 

We caution appellate counsel that she mischaracterizes the legal holdings of that case. In 

Reinwand, the defendant argued that the failure to request a PSI was deficient, and the Reinwand

court did not affirm that conclusion. Instead, it concluded, “Assuming without deciding or 

implying that counsel’s performance at sentencing was deficient, we conclude that Reinwand was 

not prejudiced by counsel’s alleged errors.” Id., ¶47. 
No. 2021AP1583-CR

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¶42 Black’s second issue is a complaint that counsel did not meet with

Black for a sufficient time to adequately prepare for the sentencing hearing. His 

third issue is that counsel did not obtain Black’s consent for his sentencing 

recommendation strategy. We address and reject both of these arguments because 

Black’s own conduct was responsible for counsel’s failure to consult with him. 

“The reasonableness of counsel’s actions may be determined or substantially 

influenced by the defendant’s own statements or actions.” Strickland, 466 U.S. at 

691. The State contends that Black’s allegations ignore how Black’s own conduct 

limited any of his attorneys’ ability to effectively represent him. 

¶43 We return to the record. First, Black filed a grievance against his 

trial counsel before the first sentencing hearing, which precipitated an 

adjournment and appointment of new counsel. Second, when Black’s sentencing 

counsel attempted to prepare for the sentencing hearing instead of filing 

postconviction motions challenging the verdict, sentencing counsel reported to the 

court on the record that Black “became very angry” with counsel, did not want to 

discuss sentencing-related issues with his attorney, and ended the meeting. Third, 

when the trial court asked Black about counsel’s claim that communications broke 

down, Black told the court that he was “ready to proceed” with sentencing. 

Fourth, after the court gave counsel and Black twenty minutes to confer off-therecord, both Black and his counsel told the court that they were ready to proceed 

and Black told the court that he felt counsel and he had enough time to talk about 

the sentencing. 

¶44 The record reflects that sentencing counsel (and trial counsel before 

him) acted reasonably in representing Black with regard to sentencing. “If a 

defendant selects a course of action, that defendant will not be heard later to allege 

error or defects precipitated by such action. Such an election constitutes waiver or 
No. 2021AP1583-CR

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abandonment of the right to complain.” State v. Krancki, 2014 WI App 80, ¶11, 

355 Wis. 2d 503, 851 N.W.2d 824 (citation omitted). We conclude that Black has 

waived his right to complain. Black has not “overcome the strong presumption of 

reasonableness” of counsel’s strategy or demonstrated that counsel’s actions were 

“irrational or based on caprice.” See Breitzman, 378 Wis. 2d 431, ¶65. We 

conclude that Black’s final claim of ineffective assistance of counsel also fails. 

¶45 Finally, we again conclude that the circuit court acted within its 

discretion when it denied Black’s postconviction motion without a hearing. Black 

failed to allege sufficient material facts to support his motion, relying on 

conclusory allegations and speculation. See Allen, 274 Wis. 2d 568, ¶9. Further 

the record conclusively demonstrates that Black is not entitled to relief. See

Ruffin, 401 Wis. 2d 619, ¶35.

CONCLUSION

¶46 For the reasons stated above, we affirm Black’s judgment of 

conviction and the circuit court’s denial of his motion for postconviction relief. 

By the Court.—Judgment and order affirmed.

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

809.23(1)(b)5.