2018 WI 34

SUPREME COURT OF WISCONSIN

CASE NO.: 2014AP2561

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

David McAlister, Sr.,

 Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS 

(no cite)

OPINION FILED: April 17, 2018

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: January 11, 2018

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Racine

JUDGE: Emily S. Mueller

JUSTICES:

CONCURRED: KELLY, J., concurs (opinion filed).

DISSENTED: A.W. BRADLEY, J., dissents, joined by 

ABRAHAMSON, J. (opinion filed).

NOT PARTICIPATING: 

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs 

filed by Robert R. Henak, Ellen Henak, and Henak Law Office,

S.C., Milwaukee. There was an oral argument by Robert R. Henak.

For the plaintiff-respondent, there was a brief filed by

Scott E. Rosenow, assistant attorney general, and Brad D. 

Schimel, attorney general. There was an oral argument by Scott 

E. Rosenow.
2018 WI 34

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2014AP2561

(L.C. No. 2005CF0324)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

David McAlister, Sr.,

 Defendant-Appellant-Petitioner

FILED

APR 17, 2018

Sheila T. Reiff

Clerk of Supreme Court

REVIEW of a decision of the court of appeals. Affirmed. 

¶1 PATIENCE DRAKE ROGGENSACK, C.J. In January 2007, a 

jury convicted David McAlister, Sr. ("McAlister") of attempted 

armed robbery (threat of force), armed robbery (threat of force) 

and possession of a firearm by a felon for crimes that occurred 

in late 2004. At trial, the State presented testimony from 

Nathan Jefferson ("Jefferson") and Alphonso Waters ("Waters"). 

They testified that McAlister was their accomplice in the 

robberies. 

¶2 In 2014, McAlister filed the Wis. Stat. § 974.06 

motion for a new trial that is now before us. He alleged that 

he had newly discovered evidence represented by the affidavits 
No. 2014AP2561

2

of three men who allege that Jefferson and Waters lied when they 

testified that McAlister was involved in the crimes for which he 

was convicted. The circuit court1 denied McAlister's motion 

without an evidentiary hearing, and the court of appeals 

affirmed.2

¶3 Our review focuses on whether McAlister has provided 

newly discovered evidence that is sufficient to require the 

circuit court to hold an evidentiary hearing. In so doing, we 

consider whether the affidavits McAlister submitted in support 

of his motion meet the requirements necessary to qualify as 

newly discovered evidence. We specifically examine whether the 

affidavits were cumulative evidence and whether they were 

uncorroborated evidence for which corroboration should be 

required. 

¶4 We conclude that the affidavits were merely cumulative 

evidence because they were additional evidence of the same 

general character as was subject to proof at trial, i.e., that 

Jefferson and Waters lied when they implicated McAlister in 

order to achieve favorable plea bargains for themselves. We 

also conclude that the affidavits were insufficient to require 

the circuit court to hold a hearing on McAlister's motion for a 

new trial because they were supported by neither newly 

discovered corroborating evidence or circumstantial guarantees 

 

1 The Honorable Emily S. Mueller of Racine County presided.

2 State v. McAlister, No. 2014AP2561, unpublished order 

(Wis. Ct. App. Aug. 10, 2016).
No. 2014AP2561

3

of trustworthiness. Therefore, the circuit court did not 

erroneously exercise its discretion when it denied McAlister's 

motion for a new trial without an evidentiary hearing. State v. 

Avery, 2013 WI 13, ¶22, 345 Wis. 2d 407, 826 N.W.2d 60. 

Accordingly, we affirm the court of appeals' affirmance of the 

circuit court.

I. BACKGROUND

¶5 The two crimes of which McAlister was convicted 

occurred in December 2004 in the City of Racine. On December 

21, Nathan Jefferson and Monique McAlister ("Monique") attempted 

an armed robbery of the Catholic Community Credit Union (the

"Credit Union").

3 When the Credit Union's security alarms began 

to ring, Jefferson and Monique ran from the scene without any 

money. On December 28, Waters, Jefferson and Monique committed 

an armed robbery at Wisconsin Auto Title Loan ("Title Loan"). 

¶6 Police arrested Waters and Jefferson separately in 

March 2005 for robberies unrelated to the December 2004 

robberies. Waters was questioned by Racine Police Investigator 

William Warmington regarding an armed robbery that occurred at 

an Open Pantry. Waters initially denied any knowledge or 

involvement, but after being confronted with video footage that 

Warmington indicated matched the description of one of the 

offenders, Waters admitted that he had been involved. Waters 

 

3 Monique McAlister is the defendant David McAlister's 

niece. She also is referred to as Monic McAlister in the 

record.
No. 2014AP2561

4

told Warmington that McAlister had planned the robbery at Title 

Loan and served as the getaway driver. Waters described in 

detail the location of and the interior of McAlister's home, 

including where the gun used in the Title Loan robbery could be 

found. 

¶7 Upon his arrest, Jefferson told police that McAlister 

had planned each of the December robberies, served as the 

getaway driver and provided the gun he carried at the Credit 

Union. Based on the information obtained from Waters and 

Jefferson, police obtained a search warrant for McAlister's 

residence, where they found a .22-caliber handgun. McAlister, 

who is a convicted felon, was arrested.

¶8 At McAlister's trial, Waters testified on behalf of 

the State. He testified that shortly before December 28, 2004, 

McAlister had driven Waters to Title Loan, where he instructed 

Waters how to conduct the robbery. On December 28, McAlister 

picked up Waters in a gray Hyundai, a picture of which was 

received as Exhibit 4 and then picked up Monique and Jefferson. 

¶9 After testifying that the gun the police took from 

McAlister's house, which had been marked as Exhibit 11, was 

"very familiar," Waters described the robbery itself. On crossexamination, defense counsel repeatedly attacked Waters' 

credibility. Defense counsel hammered on Waters' history of 

lying to police, calling attention to Waters' initial statements 

to police after his March 2005 arrest. 

Q. You denied that you robbed the Open Pantry?
No. 2014AP2561

5

A. Yes.

Q. You told them: No, I didn't. I had no 

involvement with that?

A. Yes.

Q. Then they told you that they had video of 

the robbery?

A. Yes.

Q. And that they believed you were the guy that 

did it?

A. Right.

. . . .

Q. You knew then that the detectives had solid 

evidence establishing that you had committed an armed 

robbery?

A. Yes.

Q. At that point in time, you asked the 

detectives: What am I looking at?

A. Right.

Q. And by that you meant, how much prison time 

am I going to get for having done this armed robbery?

A. Yeah.

Q. Then you asked them, quote, what can I tell 

you to help me, right?

A. If I -- yeah. If I did, instinct I did 

because I knew that I was in trouble. I didn't know, 

you know, what was really going on. So you know, 

yeah, I was looking for help.

. . . .

Q. You are willing to lie to keep yourself out 

of jail?
No. 2014AP2561

6

A. Well, out of instinct because I've -- I've 

been arrested so many times, 13 times, and when they -

- when I seen that I was in trouble, of course, yes. 

I -- I didn't want to be in trouble. I was trying to 

talk my way out of it, yes.

. . . .

Q. Now, the whole reason that you started to 

ask them about what you could do to help yourself and 

will they give me a break if I tell something, is you 

wanted to make a deal, right?

A. No. I knew that by being honest -- because 

I've dealt with the court system for so long, I knew 

if I was being honest, that things would be easier on 

me in the long run because the more you lie, the more 

trouble you get into. So I wanted to clear things up 

at that time.

. . . .

Q. Now, you are aware that in 

November . . . November 10th, of 2003, you came into 

contact with police at that point. It was an Officer 

Stehlow who had asked you your name, and at that point 

in time you told him your name was Steve Jordan, 

correct?

A. I don't remember that.

[Defense counsel refreshes Waters' recollection].

Q. Okay. Now that you've reviewed that, you 

recall that in November of '03, you were confronted by 

this police officer?

A. Yes. And I obstructed by telling him a 

different name, yes. 

. . . .

Q. Now, on October 30th, of 1998, do you recall 

being again confronted by the police and identifying 

yourself as Steve Morris, with a date of birth 12/6 of 

'68?

[Defense counsel refreshes Waters' recollection].
No. 2014AP2561

7

A. I obstructed. I gave a false name.

. . . .

Q. On July 19th, of 1998, do you recall having 

been confronted by the police and identifying yourself 

as Marcus L. Booker, date of birth 12/16 of '69?

A. Not that I recall.

[Defense counsel refreshes Waters' recollection].

Q. Okay. You agree with me that on this day 

you lied to the police, gave them the name Marcus 

Booker, date of birth 11/18/69?

A. Yes.

Q. And again, the whole reason that you lied 

was to try to keep yourself out of jail?

A. Yes.

Q. That's something that you are willing to do?

A. At those moments, yes.

Q. But not at this moment?

A. Those were the past. This is the future.

Q. When did the future begin?

A. The day that I got arrested.

Q. So for the first time in your career, first 

time in your adult life that you decided that things 

were going to be different and now you're going to 

tell the truth, was when you were arrested by 

Investigator Warmington and Investigator Diener?

A. Yes. 

¶10 On re-cross, defense counsel suggested that because 

Waters now faced 154 years total incarceration, he had a very 

big incentive to implicate McAlister. Waters denied that he had 

any knowledge of a deal.
No. 2014AP2561

8

Q. You understand that because you've agreed to 

testify here today, that what the prosecutor is going 

to do is he's somehow going to reduce your exposure?

A. No. I didn't know any of that.

Q. You were unaware that your lawyer had cut 

this deal with the prosecutor?

A. No, no. I never -- no one ever brought me 

anything about a deal to me, no.

Q. Your lawyer, who is sitting right there, 

your position is he has never discussed with you the 

fact that you have an agreement with the DA?

A. No.

¶11 The following day, however, the court read this

stipulation to the jury:

The State of Wisconsin by Assistant District 

Attorney James Newlun and defendant David McAlister 

personally and by attorney Patrick K. Cafferty hereby 

agree that the following is true. One, the District 

Attorney's office has agreed that it would reduce the 

maximum sentence Alphonso Waters faces by either 

dismissing some of his charges or reducing the 

seriousness of the charges.

Two, the District Attorney's office has agreed to 

recommend that Alphonso Waters should serve less 

prison time than it would have recommended if Alphonso 

Waters had not testified in the trial of David 

McAlister.

And three, Assistant District Attorney James 

Newlun conveyed the terms of this agreement to 

Alphonso Waters through his attorney Douglas Pachucki 

sometime prior to Waters testifying on January 23rd, 

2007.

¶12 Jefferson also testified on behalf of the State. 

During his questioning by the assistant district attorney, 
No. 2014AP2561

9

Jefferson admitted that he had a plea bargain with the State and 

the terms of that bargain. 

¶13 Jefferson admitted that he and Monique attempted to 

rob the Credit Union. He said that McAlister had driven them to 

and from the Credit Union in a four-door gray Hyundai, a picture 

of which was received as Exhibit 5. He said that McAlister 

provided the .22 semiautomatic handgun that he carried, which he 

identified as Exhibit 11. 

¶14 Jefferson also testified about the Title Loan armed 

robbery. Jefferson stated that on that day, in the same 

vehicle, McAlister drove Jefferson, Waters and Monique to Title 

Loan to commit the robbery. After the robbery, McAlister drove 

the four of them back to his apartment, which Jefferson 

described consistently with Waters' earlier description given to 

police. 

¶15 When questioned by police, Jefferson stated that he 

had originally lied, but later told the truth about the two 

robberies. Jefferson testified that at the time of his arrest 

he was aware that Waters had also been arrested because 

McAlister had told him as much. McAlister had told Jefferson, 

"Don't say nothing about the robberies; and if I did, that he'll 

make my life a living hell." 

¶16 On cross-examination, defense counsel stressed that 

the effect of the plea agreement between Jefferson and the State 

was that Jefferson's imprisonment exposure was reduced from 60-

plus years to 20 years. As he did with Waters, defense counsel 
No. 2014AP2561

10

drew attention to Jefferson's past lies to police to avoid going 

to jail. 

¶17 At the conclusion of testimony, the circuit court read 

the following jury instructions regarding witnesses' testimony:

It is the duty of the jury to scrutinize and to 

weigh the testimony of witnesses and to determine the 

effect of the evidence as a whole. You are the sole 

judges of the credibility, that is the believability, 

of the witnesses and of the weight to be given to 

their testimony. In determining the credibility of 

each witness and the weight you give to the testimony 

of each witness, consider these factors.

Whether the witness has an interest or lack of 

interest in the result of this trial; the witness's 

conduct, appearance and demeanor on the witness stand; 

the clearness or lack of clearness of the witness's 

recollections; the opportunity the witness had for 

observing and for knowing the matters that the witness 

testified about; the reasonableness of the witness's 

testimony; the apparent intelligence of the witness; 

bias or prejudice, if any, that has been shown; 

possible motives for falsifying testimony; and all 

other facts and circumstances during the trial which 

tend either to support or to discredit the testimony.

. . . .

You have heard testimony from Alphonso Waters and 

Nathan Jefferson who stated that they were involved in 

the crimes charged against the defendant. You should 

consider this testimony with caution and great care, 

giving to it the weight that you believe it is 

entitled to receive. You should not base a verdict of 

guilty upon it alone unless after consideration of all 

the evidence, you are satisfied beyond a reasonable 

doubt that the defendant is guilty.

You have heard testimony from the two witnesses 

Alphonso Waters and Nathan Jefferson who have received 

consideration for their testimony. These witnesses, 

like any other witness, may be prosecuted for 

testifying falsely. You should consider whether 

receiving consideration affected the testimony and 
No. 2014AP2561

11

give the testimony the weight that you believe it is 

entitled to receive. 

¶18 Following deliberations, McAlister was found guilty of 

attempted armed robbery with use of force in violation of Wis. 

Stat. § 943.32(2), armed robbery with threat of force in 

violation of § 943.32(2) and possession of a firearm by a felon 

in violation of Wis. Stat. § 941.29(2). 

¶19 In May 2008, McAlister moved for a new trial, arguing 

that (1) the State failed to provide full disclosure of the 

terms of agreements struck between the State and Waters and 

Jefferson; (2) the jury was not informed that Waters' and 

Jefferson's plea offers were "performance based" or otherwise 

contingent on their value to the State; (3) the State failed to 

correct Waters' alleged perjury; (4) the real controversy was 

not fully tried because the jury did not hear testimony from 

alibi and other witnesses; and (5) McAlister had received 

ineffective assistance of counsel because defense counsel failed 

to introduce alibi and exculpatory evidence. His motion was 

denied following an evidentiary hearing on October 23, 2008. 

¶20 On May 19, 2014, McAlister filed the motion for 

postconviction relief under Wis. Stat. § 974.06 that is now 

before us, claiming that he had newly discovered evidence. In 

support of his motion, McAlister submitted affidavits of three 

men who claimed that Jefferson and Waters admitted prior to 

trial that they intended to falsely accuse McAlister of 

involvement in crimes in order to reduce their own punishment. 
No. 2014AP2561

12

¶21 Wendell McPherson ("McPherson") swore that in March 

2006, while he and Waters were incarcerated at Dodge 

Correctional Institution, Waters told McPherson that "he lied 

and told the police that, David McCallister [sic] planned these 

armed robberies, [and] also said he lied and told police that 

David McCallister [sic] gave him the gun to use and [] drove the 

get away car." Waters also allegedly told McPherson that while 

he was in Racine County Jail, he wrote Jefferson explaining what 

to say to police. The attestation of McPherson's affidavit 

occurred March 22, 2013, seven years after the alleged 

conversations with Waters took place.

¶22 Corey Prince ("Prince") swore that between January 4, 

2006 and May 25, 2007, while he and Jefferson were in the Racine 

County Jail, Jefferson told him that his co-defendant, Alphonso 

"Bird" Waters, had instructed him on exactly what to say 

regarding their pending charges. Jefferson allegedly told 

Prince that "the older man was never involved in any of the 

robberies they committed[, and] 'Bird' instructed him to lie so 

that they could receive a shorter sentence." Prince said that 

in 2012 he met McAlister at the Waupun Correctional Institution. 

Prince said he overheard McAlister talking about his case, and 

how two men named "Nate" and "Bird" had framed him. Prince then 

approached McAlister and told McAlister what he knew. Prince's 

affidavit was attested to on August 8, 2012, between five and 

one-half and six years after the alleged conversation with 

Jefferson took place.
No. 2014AP2561

13

¶23 Antonio Shannon ("Shannon") swore that on December 28, 

2004, he and a woman were sitting in his car across from Title 

Loan. They saw a hooded man running towards them, followed by 

police sirens. Two years later, Shannon was housed in the 

Racine County Jail with Jefferson. Jefferson told Shannon of 

his involvement in the Title Loan robbery. Shannon said that 

Jefferson told him that he and a man named "Bird" were the only 

two people involved in the robbery, but that he had an "out," 

which was a plea deal if he testified against "someone he said 

was not involved in the robbery." The attestation was signed on 

September 25, 2013, seven years after the alleged conversation

took place. 

¶24 McAlister argued, pro se, that he was entitled to a 

new trial as a matter of due process. The circuit court denied 

McAlister's motion without an evidentiary hearing. The court of 

appeals affirmed. We granted review, appointed counsel for 

McAlister, and now affirm the court of appeals.

II. DISCUSSION

A. Standard of Review

¶25 The issue in this case is whether McAlister's Wis. 

Stat. § 974.06 motion for a new trial is sufficient to entitle 

him to an evidentiary hearing based on a newly discovered 

evidence claim. To decide that question, "[f]irst, we determine 

whether the motion on its face alleges sufficient facts that, if 

true, would entitle the defendant to relief." State v. Allen, 

2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. We review 
No. 2014AP2561

14

this question of law, independently, based on the specific 

factual allegations made and the record as a whole. State v. 

Bentley, 201 Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996). 

¶26 Second, "if the motion does not raise facts sufficient 

to entitle the movant to relief, or presents only conclusory 

allegations, or if the record conclusively demonstrates that the 

defendant is not entitled to relief," the decision to grant or 

deny a hearing is within the circuit court's discretion. Allen, 

274 Wis. 2d 568, ¶9. "A circuit court erroneously exercises its 

discretion when it applies an incorrect legal standard to newlydiscovered evidence." State v. Plude, 2008 WI 58, ¶31, 310 

Wis. 2d 28, 750 N.W.2d 42 (citing State v. McCallum, 208 Wis. 2d 

463, 474, 561 N.W.2d 707 (1997)). 

B. General Principles

1. Perjury concerns

¶27 The gravamen of McAlister's argument is that Waters 

and Jefferson perjured themselves at his trial when they 

testified that he was involved in armed robberies. At the 

outset, we emphasize that "the crime of perjury erodes the 

integrity of our judicial system." State v. Canon, 2001 WI 11, 

¶9, 241 Wis. 2d 164, 622 N.W.2d 270. Its effect is profound 

whether the perjury is in trial testimony or in affidavits 

submitted to the court. This is so because "[i]t is fundamental 

to the American system of jurisprudence that a witness testify 

truthfully. Without truthful testimony, it is nigh onto 

impossible to achieve the primary goal of our judicial system, 
No. 2014AP2561

15

justice." State v. Rivest, 106 Wis. 2d 406, 416-17, 316 

N.W.2d 395 (1982); see also United States v. Mandujano, 425 U.S. 

564, 576 (1976) ("Perjured testimony is an obvious and flagrant 

affront to the basic concepts of judicial proceedings. 

Effective restraints against this type of egregious offense are 

therefore imperative.").

¶28 However, whether to grant a hearing on a Wis. Stat. 

§ 974.06 motion for a new trial based on newly discovered 

evidence that claims to uncover perjured trial testimony 

requires careful examination of the movant's specific factual 

allegations in the context of the record as a whole. Zillmer v. 

State, 39 Wis. 2d 607, 612-13, 159 N.W.2d 669 (1968). 

Furthermore, in a § 974.06 motion, the burden shifts to the 

defendant who must show the need for a postconviction 

evidentiary hearing with a clearly articulated justification. 

State v. Balliette, 2011 WI 79, ¶58, 336 Wis. 2d 358, 805 N.W.2d 

334. 

2. Postconviction motions

¶29 "After the time for appeal or postconviction remedy 

provided in Wis. Stat. § 974.02 has expired, a prisoner in 

custody under sentence of a court may bring a motion to vacate, 

set aside, or correct a sentence, utilizing the procedure set 

out in Wis. Stat. 974.06." Id., ¶34 (citing State v. Allen, 

2010 WI 89, ¶22, 328 Wis. 2d 1, 786 N.W.2d 124). Under 

§ 974.06(1), a prisoner may make such a motion where he or she 

is claiming that: (1) his sentence was imposed in violation of 
No. 2014AP2561

16

the constitution; (2) the court imposing the sentence was 

without jurisdiction; (3) the sentence was in excess of the 

maximum; or (4) the sentence is otherwise subject to collateral 

attack. Id.

¶30 McAlister argues that his motion is a matter of due 

process. The State, however, argues that claims of actual 

innocence based on newly discovered evidence do not fall into 

any of the permissible categories under Wis. Stat. § 974.06. 

The State raises an interesting issue given the facts presented; 

however, we do not decide this issue because the State did not 

present it to the circuit court, to the court of appeals or in 

its response to the petition for review. Accordingly, we deem 

the issue forfeited. See State v. Hendricks, 2018 WI 15, ¶32, 

379 Wis. 2d 549, 906 N.W.2d 666.

3. Newly discovered evidence

¶31 If a judgment is to be set aside based on newly 

discovered evidence, the defendant must provide sufficient 

evidence to establish that defendant's conviction is a manifest 

injustice. Plude, 310 Wis. 2d 28, ¶32. To obtain an 

evidentiary hearing for such an allegation, a defendant must 

show specific facts that are sufficient by clear and convincing 

proof, when considered in the context of the record as a whole, 

that: (1) the evidence was discovered after conviction; (2) the 

defendant was not negligent in seeking the evidence; (3) the 

evidence is material to an issue in the case; and (4) the 

evidence is not merely cumulative. Avery, 345 Wis. 2d 407, ¶25; 
No. 2014AP2561

17

State v. Love, 2005 WI 116, ¶43, 284 Wis. 2d 111, 700 N.W.2d 62 

(citing State v. Armstrong, 2005 WI 119, ¶161, 283 Wis. 2d 639, 

700 N.W.2d 98); see also State v. Machner, 92 Wis. 2d 797, 805-

06, 285 N.W.2d 905 (1979); McCallum, 208 Wis. 2d at 473. 

¶32 If a defendant satisfies those four criteria, then 

"the circuit court must determine whether a reasonable 

probability exists that a different result would be reached in a 

trial." Avery, 345 Wis. 2d 407, ¶25 (citing McCallum, 208 

Wis. 2d at 473). "A reasonable probability of a different 

result exists if there is a reasonable probability that a jury, 

looking at both the old and the new evidence, would have a 

reasonable doubt as to the defendant's guilt." Id. (citing 

Love, 284 Wis. 2d 111, ¶44). 

¶33 A claim of newly discovered evidence4 that is based on 

recantation also requires corroboration of the recantation with 

additional newly discovered evidence. McCallum, 208 Wis. 2d at 

476. As we have explained, "[r]ecantations are inherently 

unreliable." Id. (citing Dunlavy v. Dairyland Mut. Ins. Co., 21 

Wis. 2d 105, 114, 124 N.W.2d 73 (1963)). Therefore, 

corroboration requires newly discovered evidence that "(1) there 

is a feasible motive for the initial false statement; and, 

(2) there are circumstantial guarantees of the trustworthiness 

of the recantation." Id. at 478; see also Zillmer, 39 Wis. 2d 

 

4 Although as we explain below, the evidence at issue does 

not fully meet the definition of recantation evidence, a 

corroboration analysis does provide a useful framework for 

discussing the evidence presented. 
No. 2014AP2561

18

at 616 (concluding that "a new trial may be based upon an 

admission of perjury if the facts in the affidavit are 

corroborated by other newly discovered evidence"). 

C. Application

1. Cumulative

¶34 It is clear that McAlister has satisfied the first 

three requirements necessary to secure an evidentiary hearing 

based on newly discovered evidence.5 However, whether the 

affidavits satisfy the fourth requirement necessary to qualify 

as newly discovered evidence is unclear; i.e., whether the 

affidavits are cumulative of trial evidence that attacked 

Jefferson's and Waters' credibility. 

¶35 The court of appeals concluded that the affidavits 

submitted by McAlister were "merely an attempt to retry the 

credibility of Waters and Jefferson, whose credibility was wellaired at trial." State v. McAlister, No. 2014AP2561, 

unpublished order (Wis. Ct. App. Aug. 10, 2016). 

¶36 McAlister asks us to ignore the court of appeals' 

decision and recognize that the State has conceded that 

McAlister met the first four requirements of his newly 

 

5 The first three requirements are: (1) the evidence 

contained in the written affidavits was not discovered until 

after McAlister's conviction; (2) McAlister was not negligent in 

failing to seek this evidence; and (3) the affidavits are 

material to whether McAlister participated in the armed 

robberies. State v. Avery, 2013 WI 13, ¶25, 345 Wis. 2d 407, 

826 N.W.2d 60. 
No. 2014AP2561

19

discovered evidence claim.6 However, whether alleged newly 

discovered evidence is cumulative forms part of our legal 

determination of whether a jury considering the old and new 

evidence would have a reasonable doubt as to McAlister's guilt. 

Avery, 345 Wis. 2d 407, ¶25. We are not required to accept the 

State's concession. State v. Gomaz, 141 Wis. 2d 302, 307-08, 

414 N.W.2d 626 (1987). Accordingly, we do not.7

¶37 We have long held that newly discovered evidence that 

is merely cumulative is not grounds for a new trial. Lock v. 

State, 31 Wis. 2d 110, 116, 142 N.W.2d 183 (1966). Newly 

discovered evidence is cumulative where it tends to address "a 

fact established by existing evidence." State v. Thiel, 2003 WI 

111, ¶78, 264 Wis. 2d 571, 665 N.W.2d 305 (citing Washington v. 

Smith, 219 F.3d 620 (7th Cir. 2000)); see also Wilson v. Plank, 

41 Wis. 94, 98 (1876) (stating that newly discovered evidence in 

the form of witness testimony is merely cumulative where it 

"tends to prove propositions of fact which were litigated at 

trial"). 

¶38 Notwithstanding the above principles applicable to 

evaluating newly discovered evidence, defining when such 

 

6 "The State concedes that McAlister has met the first four 

requirements [for newly discovered evidence]." State's Br., 18 

n.5.

7 We are always disappointed when counsel concedes a 

difficult issue, as counsel for the State has done here. The 

sorting out of difficult legal questions is where we most need 

counsel's thoughtful assistance. 
No. 2014AP2561

20

evidence is cumulative is difficult because the definition of 

cumulative evidence turns to some degree on how the trial issue 

is described. For further guidance, we look to federal courts, 

who also evaluate when newly discovered evidence is cumulative. 

See 33 Fed. R. Crim. P. 

¶39 In regard to motions for a new trial based on newly 

discovered evidence, the United States Supreme Court has long 

concluded that newly discovered evidence that is cumulative will 

not support a motion for a new trial. The Court has defined 

cumulative evidence as, "additional evidence of the same general 

character, to some fact or point, which was subject of proof 

before." Southard v. Russell, 57 U.S. 547, 554 (1853). 

Recantation testimony is often termed cumulative because it 

"serves merely to impeach cumulative evidence rather than to 

undermine confidence in the accuracy of the conviction." 

Dobbert v. Wainwright, 468 U.S. 1231, 1234 (1984). Where the 

credibility of a prosecution witness was tested at trial, 

evidence that again attacks the credibility of that witness is 

cumulative. United States v. Champion, 813 F.2d 1154, 1171 

(11th Cir. 1987) (concluding that evidence bearing on the 

credibility of a witness impeached at trial is cumulative). 

¶40 Here, McAlister submitted a 2012 affidavit from Prince 

about statements he claims that Jefferson made to Prince prior 

to May 25, 2007; a 2013 affidavit from Shannon in which Shannon 

relates what he says that Jefferson told him in 2006; and a 2013 

affidavit from McPherson about statements he claims to have 
No. 2014AP2561

21

heard Waters make in 2006. Each affiant swears that, at some 

point prior to McAlister's January 2007 trial, Jefferson or 

Waters admitted their plan to perjure themselves at trial to 

secure a plea bargain that would provide less imprisonment for 

crimes to which they pled. 

¶41 Jefferson testified to the attempted armed robbery of 

the Credit Union, which he said that McAlister planned. 

Jefferson said that he and McAlister's niece, Monique, 

participated in that attempted robbery. He testified that 

McAlister drove him and Monique to the Credit Union in a fourdoor gray Hyundai. He said that McAlister instructed him to 

carry a .22 semiautomatic handgun, which McAlister provided. 

¶42 Jefferson also described the armed robbery of Title 

Loan, in which he, Waters and Monique participated. Jefferson 

said that McAlister again drove the participants to the scene of 

the robbery in a gray Hyundai. Jefferson testified that Waters 

carried the same gun that McAlister had provided to him for the 

attempted robbery of the Credit Union. After the Title Loan 

robbery, Jefferson described going to McAlister's house, which 

was a two-family house where McAlister had the upper floor 

apartment. 

¶43 Jefferson testified that he was offered 

"consideration" from the district attorney's office for 

providing truthful testimony about the robberies. Jefferson 

confirmed that he had been charged with an armed robbery and an 

attempted armed robbery. He said that if he pled to attempted 
No. 2014AP2561

22

armed robbery and testified at trial, the armed robbery would be 

read-in, the sentence enhancers would be dismissed and the State 

would recommend less prison time. Jefferson further explained 

that before he had a plea offer he had relayed the same 

information about the robberies and McAlister's involvement to 

police. He had asked them for consideration for his testimony 

and the officers said they could not do that. 

¶44 On cross-examination, Jefferson acknowledged that the 

effect of his plea agreement was to reduce his exposure for 

imprisonment from a potential maximum of 60 years to a potential 

maximum of 20 years. He also acknowledged that the district 

attorney would recommend less prison time because he cooperated. 

Jefferson said that he was on probation or extended supervision 

when he committed the crimes, and that he cooperated with the 

officers because he was concerned about his probation getting 

revoked and he thought that they might help him.

¶45 Before the jury, both the prosecutor and McAlister's 

attorney repeatedly probed Jefferson's credibility and fully 

laid out the terms of the plea agreement that Jefferson believed 

he had been offered for testifying against McAlister. The jury 

had to consider whether Jefferson had testified truthfully, or 

whether his testimony was in response to the State's offer of a 

lower sentence on his convictions if he testified against 

McAlister. 

¶46 Both Prince's and Shannon's affidavits assert that 

McAlister was not involved in armed robberies with Jefferson, 
No. 2014AP2561

23

and that Jefferson framed him to get a plea bargain that would 

yield a favorable sentencing recommendation. These allegations 

are of the same general character, and to the same point for 

which testimony was elicited at trial, i.e., whether Jefferson's 

testimony that McAlister was involved in the armed robberies was 

truthful or whether he testified falsely to get a favorable plea 

bargain. 

¶47 Moving on to McPherson's affidavit, it focuses on 

Waters' testimony and asserts that Waters lied about McAlister's 

involvement in the armed robberies to get a favorable plea 

bargain. As with Jefferson, Waters was questioned repeatedly 

about the specifics of McAlister's involvement, from getting 

picked up in McAlister's gray Hyundai, to picking up Jefferson 

and Monique, to providing the .22 semiautomatic gun that Waters 

carried. 

¶48 McAlister's attorney questioned Waters about his 

repeated lying to authorities on many occasions, in regard to 

other matters as well as in regard to armed robberies. He 

attempted to show that Waters did not have a character for 

truthfulness, but rather, lied whenever it suited his purposes. 

He also elicited Waters' agreement that he talked to police 

officers and was testifying against McAlister with the hope of 

receiving a lesser sentence for the crimes to which he pled. 

¶49 Waters acknowledged that he faced substantial 

imprisonment for the crimes to which he pled and that he hoped 

his testimony at McAlister's trial would help him. Once again, 
No. 2014AP2561

24

the statements attributed to Waters in McPherson's affidavit are 

additional statements of the same general character and to the 

same point that was subject to proof at trial: Waters is a 

repetitive liar; his testimony that McAlister was involved in 

the robbery is not believable. The jury heard it all before. 

The McPherson affidavit is cumulative because it was drawn to 

the same point, i.e., that Waters' testimony was given in 

exchange for a lesser sentence for his own crimes. This is the 

same evidence that was presented to the jury. 

¶50 Accordingly, given the testimony at trial, the three 

affidavits were of the same general character and drawn to the 

same point, Jefferson and Waters lied about McAlister to benefit 

themselves; therefore, the affidavits are cumulative. McAlister 

did not satisfy the fourth requirement necessary to qualify as 

newly discovered evidence.

¶51 Our conclusion that the affidavits of McPherson, 

Prince and Shannon are merely cumulative evidence of the same 

general character and drawn to the same point for which proof 

was provided at trial, i.e., that Jefferson and Waters lied to 

benefit themselves, is sufficient to affirm the court of 

appeals. See Avery, 345 Wis. 2d 407, ¶25. However, because the 

second issue is argued as a recantation issue, which has been 

uniquely framed and fully briefed, we continue. 

2. Corroboration

¶52 The affidavits of McPherson, Prince and Shannon, all 

of which were attested to years after McAlister's trial, aver 
No. 2014AP2561

25

that Jefferson and Waters said that they intended to lie at 

McAlister's trial.8 Jefferson and Waters allegedly said that 

they were going to implicate McAlister in robberies in which he 

did not participate so that they could take advantage of plea 

bargains regarding robberies in which Jefferson and Waters 

admitted participation. 

¶53 In the usual presentation, a recantation occurs when a 

witness formally or publically withdraws or renounces prior 

statements or testimony. Black's Law Dictionary 1382 (9th ed. 

2009). However, it is argued here that the affidavits presented 

after McAlister's trial contain recantation testimony, even 

though the witnesses' statements allegedly were made before they 

testified at trial. 

¶54 The evidence here differs from classic recantation 

testimony in the temporal sense described above and also because 

there was no formal or public renunciation of Jefferson's or 

Waters' testimony. Instead, the statements allegedly were made 

while Jefferson and Waters were incarcerated with one or more of 

the affiants, who relayed the statements. There is no writing 

signed by either Jefferson or Waters. 

¶55 However, the affidavits bear a similarity to 

recantation evidence in that they use what is claimed to be 

Jefferson's and Waters' own words to allege they lied at trial. 

Stated otherwise, as with classic recantation, the witnesses' 

 

8 McPherson alleges to have spoken with Waters; Prince and 

Shannon allege to have spoken with Jefferson.
No. 2014AP2561

26

statements are presented after the witnesses' trial testimony 

and attack the veracity of the witnesses' own testimony. 

¶56 When testimony that is classic recantation testimony 

is presented as newly discovered evidence, we require that the 

alleged recantation "be corroborated by other newly discovered 

evidence." McCallum, 208 Wis. 2d at 476. "Corroboration is 

required because recantation is inherently unreliable; the 

recanting witness is admitting he or she lied under oath. 

Either the original testimony or the recantation is false." 

Gehin v. Wis. Grp. Ins. Bd., 2005 WI 16, ¶98, 278 Wis. 2d 111, 

692 N.W.2d 572. We conclude that no less should be required as 

we assess the affidavits presented in the case before us. 

¶57 As explained above, when newly discovered evidence is 

based on recantation, the defendant must satisfy an additional 

proof. "[N]ewly discovered recantation evidence must be 

corroborated by other newly discovered evidence." McCallum, 208 

Wis. 2d at 476. "[T]he degree and extent of the corroboration 

required varies from case to case based on its individual 

circumstances." Id. at 477; see, e.g., Rohl v. State, 64 

Wis. 2d 443, 453, 219 N.W.2d 385 (1974) (citing Zillmer, 39 

Wis. 2d at 616).

¶58 Corroboration requires newly discovered evidence of 

both: (1) a feasible motive for the initial false statement; 

and (2) circumstantial guarantees of the trustworthiness of the 

recantation. McCallum, 208 Wis. 2d at 477-78.
No. 2014AP2561

27

¶59 Here, McAlister has failed both corroboration 

requirements. First, he has failed to present newly discovered 

motives for Jefferson's and Waters' initial testimony, which he 

claims is false. Jefferson and Waters clearly wanted to obtain 

plea bargains that would reduce their imprisonment time, but 

this motive was fully explored at trial and is not newly 

discovered. 

¶60 Second, McAlister has not provided newly discovered 

evidence to support circumstantial guarantees of trustworthiness 

of the affiants or of the alleged statements. To the contrary, 

the length of time that passed between McAlister's trial and the 

submission of the affidavits cuts against concluding that the 

affidavits are trustworthy. Herrera v. Collins, 506 U.S. 390, 

417 (1993) (concluding that "[n]o satisfactory explanation has 

been given as to why the affiants waited until the 11th 

hour . . . to make their statements."). Here, McPherson, Prince 

and Shannon waited between five and one-half and seven years 

after Jefferson and Waters allegedly said that they were going 

to commit perjury. No newly discovered evidence supports this 

delay.

¶61 Furthermore, as the Seventh Circuit has noted, 

recantations made while in jail are "highly suspicious." United 

States v. Walker, 25 F.3d 540, 549 (7th Cir. 1994). Here, 

Jefferson and Waters were incarcerated when they allegedly said 

they were going to frame McAlister. Also of interest, all three 

affiants were incarcerated, and two, McPherson and Shannon, had 
No. 2014AP2561

28

been sentenced to life without the possibility of parole. 

Accordingly, they could face no actual, additional incarceration 

if found guilty of perjury for the affidavits they signed. And 

finally, none of the affidavits mentions Monique, McAlister's 

niece, and Shannon's affidavit affirmatively asserts that 

Jefferson told him that he and Waters were the only participants 

in the robberies. However, trial testimony clearly shows 

Monique's active participation in the robberies. 

¶62 McAlister argues that despite the lack of newly 

discovered evidence supporting circumstantial guarantees of 

trustworthiness, the three affidavits satisfy an alternative 

means of showing corroboration. Specifically, McAlister argues 

that the three affidavits corroborate each other because they 

agree as to the basic facts: (1) McAlister was not involved in 

the charged robberies; and (2) Jefferson and Waters nonetheless 

sought to frame him for those robberies to reduce the 

consequences of their own misconduct. We are not persuaded. 

The three partially-overlapping affidavits do not fulfill the 

standards set forth in McCallum and all suffer from the same 

lack of a newly discovered evidence of motive for Jefferson and 

Waters to lie, as well as the same deficits in regard to 

trustworthiness. 

¶63 Accordingly, we conclude that the alleged statements 

of Jefferson and Waters that attempt to withdraw the 

truthfulness of their testimony at McAlister's trial have not 

been corroborated. Therefore, the circuit court had sound 
No. 2014AP2561

29

reasons to exercise its discretion and to deny McAlister's 

motion for a new trial without an evidentiary hearing. Avery, 

345 Wis. 2d 407, ¶22. 

III. CONCLUSION

¶64 We conclude that the affidavits were merely cumulative 

evidence because they were additional evidence of the same 

general character as was subject to proof at trial, i.e., 

Jefferson and Waters lied when they implicated McAlister in 

order to achieve favorable plea bargains for themselves. We 

also conclude that the affidavits were insufficient to require 

the circuit court to hold a hearing on McAlister's motion for a 

new trial because they were supported by neither newly 

discovered corroborating evidence or circumstantial guarantees 

of trustworthiness. Therefore, the circuit court did not 

erroneously exercise its discretion when it denied McAlister's 

motion for a new trial without an evidentiary hearing. 

Accordingly, we affirm the court of appeals' affirmance of the 

circuit court.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2014AP2561.dk

1

¶65 DANIEL KELLY, J. (concurring). I join the court's 

opinion except for its conclusion that the evidence offered by 

Mr. McAlister is cumulative. I agree with the court's 

observation that "defining when such evidence is cumulative is 

difficult," majority op., ¶38, but a fairly straightforward test 

can establish that the evidence here cannot be so characterized.

¶66 The point of evidence is to give the trier of fact the 

raw material upon which to exercise his judgment in deciding 

whether a particular fact is true. We presume he will act in 

good faith, and will conclude that a fact is true if presented 

with sufficient credible evidence. It's easy enough to say that 

anything beyond this quantum is cumulative. The tricky part is 

determining whether new evidence is cumulative when the fact 

finder has already determined the old evidence was insufficient 

to establish the contested fact.

¶67 There is, however, a test that can unmistakably 

identify new evidence as non-cumulative, and we should have 

applied it here. It is this: If the trier of fact were to 

believe the new evidence, would he necessarily conclude the 

disputed fact has been established? If so, then the new 

evidence cannot possibly be cumulative because it is capable of 

producing a result the old evidence did not. I suspect it will 

be a rare piece of information that will satisfy this criterion, 

in which case other "cumulativeness" tests may be employed. But 

evidence that does meet this standard definitively answers the 

cumulativeness question.
No. 2014AP2561.dk

2

¶68 Mr. McAlister has presented such information here. At 

trial, he introduced evidence suggesting that Messrs. Jefferson 

and Waters had a strong motivation to falsely accuse him of 

involvement in the crimes. The jurors could have believed this 

evidence——that is, they could believe the witnesses had good 

reason to lie——and nonetheless conclude that, upon the event, 

they told the truth. The result of the trial suggests this is, 

in fact, what they did.

¶69 Mr. McAlister's new evidence is not of the same 

nature. The affidavits he now presents claim that Messrs. 

Jefferson and Waters admitted they made up a story about Mr. 

McAlister's involvement in the crimes. If the jurors were to 

credit this new evidence, they could not simultaneously believe 

that Messrs. Jefferson and Waters' trial testimony was truthful. 

That is to say, the new evidence is capable of producing a 

result the old evidence did not. Therefore, it cannot be 

cumulative.

¶70 Nevertheless, I agree with the court's conclusion that 

this evidence requires corroboration before Mr. McAlister is 

entitled to an evidentiary hearing on his request for a new 

trial. This new information is in the nature of "recantation"

evidence (for which we have always required corroboration), even 

though it presents as a pre-existing decision to commit perjury 

rather than a post hoc confession. The justification for 

requiring corroboration is the same——the inherent unreliability 

of what often looks like a grown-up version of Kipling's "justso" stories.
No. 2014AP2561.dk

3

¶71 There is one other aspect of the court's opinion that 

bears comment. The court took the State to task for conceding 

that Mr. McAlister's new evidence is not cumulative: "We are 

always disappointed when counsel concedes a difficult issue, as 

counsel for the State has done here." Id., ¶36 n.7. I 

disagree.

¶72 One of the distinguishing characteristics of an 

accomplished and wise advocate is knowing when to concede a 

point. And, having come to the realization that a previouslydefended position is not actually defensible, it takes courage 

and humility to say so. This is the type of candor we should be 

encouraging, not condemning. Just because the court 

(mistakenly, in my view) disagrees with the State's position 

does not mean the State conceded for some reason other than its 

professional, good faith assessment of the issue's merits. And 

yet the court's rebuke implies that very thing. However, 

institutional litigators (like the State) should make certain 

that a concession truly is the result of a good faith assessment 

of the issue's merits, and not an attempt to steer the court 

away from issues it would prefer not to address.

¶73 I respectfully concur.
No. 2014AP2561-CR.awb

1

¶74 ANN WALSH BRADLEY, J. (dissenting). A jury found 

David McAlister guilty of several crimes. Now, with sworn 

affidavits in hand, he asserts that he has newly discovered 

evidence that his accomplices planned in advance to lie on the 

stand during his trial to falsely implicate him. The majority 

denies him an evidentiary hearing on his claim that he "was not, 

in fact, involved in the offenses for which he was 

convicted . . . ."

¶75 The issue in this case is not whether McAlister's 

conviction should be vacated, or whether he should receive a new 

trial. It is merely whether he should be afforded the 

opportunity for an evidentiary hearing on his postconviction 

motion.

¶76 Our system of law has always operated under the theory

that it is better for ten guilty people to go free than one 

innocent to languish in prison. See State v. Dubose, 2005 WI 

126, ¶51 n.1, 285 Wis. 2d 143, 699 N.W.2d 582 (Butler, J., 

concurring); Furman v. Georgia, 408 U.S. 238, 367 n.158 (1972) 

(Marshall, J., concurring) (quoting William O. Douglas, Foreward 

to Jerome Frank & Barbara Frank, Not Guilty 11-12 (1957)); see 

also In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., 

concurring). Yet, the majority opinion strays from this 

premise, favoring finality. What if McAlister's claims are 

true? What if his witnesses are credible? We will never know 

because the majority has short-circuited the process and there 

will be no hearing.
No. 2014AP2561-CR.awb

2

¶77 Not only does the majority misstep by favoring 

finality over a search for the truth, it also stumbles in three 

significant ways. First, by refusing to accept the facts 

alleged as true for purposes of determining whether McAlister is 

entitled to an evidentiary hearing, the majority deviates from 

our established case law. See State v. Balliette, 2011 WI 79, 

¶18, 336 Wis. 2d 358, 805 N.W.2d 334; State v. Love, 2005 WI 

116, ¶¶54-55, 284 Wis. 2d 111, 700 N.W.2d 62. Second, it errs 

in determining that the new evidence is cumulative of that 

already presented. Third, it attempts to fit a square peg into 

a round hole by creating a false equivalency between recantation 

evidence and the alleged newly discovered evidence at issue 

here. I address each in turn.

I

¶78 This case revolves around McAlister's claim that his 

accomplices lied on the stand during his trial. With his 

postconviction motion, McAlister presented to the circuit court 

the affidavits of three prison inmates——Wendell McPherson, Corey 

Prince, and Antonio Shannon.

¶79 Each of the three inmates averred that he had contact 

with one of McAlister's accomplices, Alphonso Waters or Nathan 

Jefferson, prior to McAlister's trial. Most significantly, the 

affidavits indicate that Waters and Jefferson stated that they 

planned to lie in an effort to implicate McAlister.
No. 2014AP2561-CR.awb

3

A

¶80 The majority errs first by failing to adhere to 

precedent. It denies McAlister a hearing when the facts, 

accepted as true, indicate that McAlister is entitled to relief.

¶81 The question before us is whether McAlister is 

entitled to an evidentiary hearing, giving him the opportunity 

to establish that a reasonable probability exists that a 

different result would be reached at trial. At this stage of 

the proceedings, we must accept the facts alleged in McAlister's 

motion as true. See Love, 284 Wis. 2d 111, ¶54. For our 

purposes, it is not relevant whether the alleged newly 

discovered evidence is admissible or whether it is credible. 

Id.

¶82 A court is not to base its decision solely on the 

credibility of the newly discovered evidence, unless it finds 

the new evidence to be incredible as a matter of law. State v. 

Avery, 2013 WI 13, ¶25, 345 Wis. 2d 407, 826 N.W.2d 60. 

Testimony is incredible as a matter of law or patently 

incredible if it is in conflict with the uniform course of 

nature or with fully established or conceded facts. State v. 

Vollbrecht, 2012 WI App 90, ¶28 n.18, 344 Wis. 2d 69, 820 

N.W.2d 443 (citation omitted).

¶83 Love, 284 Wis. 2d 111, presents facts very similar to 

those here. In Love, the defendant was convicted of armed 

robbery and subsequently filed a motion for a new trial based on 

newly discovered evidence. Id., ¶¶19, 21. "Love included an 

affidavit from Christopher Hawley, who claimed to have met 
No. 2014AP2561-CR.awb

4

another inmate, Floyd Lindell Smith, Jr., while at Green Bay 

Correctional Institution. Hawley averred that Smith admitted to 

robbing [the victim] and shared in-depth details regarding the 

incident." Id., ¶21. The circuit court denied the motion 

without an evidentiary hearing. Id., ¶23.

¶84 This court remanded for an evidentiary hearing. Id., 

¶56. Like this case, Love turned on the reasonable probability 

prong of the newly discovered evidence test. Id., ¶¶52-53. The 

Love court accepted the facts as alleged in Love's 

postconviction motion as true for purposes of its analysis:

Love's postconviction motion indicates that Hawley 

would testify that Love was not the assailant. Hawley 

will testify that Smith (or if Love can get Smith to 

testify, then it would be Smith's testimony that he) 

committed this crime. Whether that testimony is 

ultimately admissible is not relevant for our purposes 

here. Whether that testimony is credible is not 

relevant for our purposes here. It must be accepted 

as true.

Id., ¶54 (emphasis added).

¶85 Accepting Love's alleged facts as true, the court 

determined that Love was entitled to an evidentiary hearing. It 

explained:

If it is true, then the evidence against Love amounts 

to [the victim's] identification against another's 

assertion that Smith committed the crime. Thus, 

viewing the new evidence, particularly in light of the 

identification discrepancies, there is a reasonable 

probability that a jury, looking at both, would have a 

reasonable doubt as to Love's guilt.

Id., ¶55.

¶86 The only material factual difference between this case 

and Love is the timing of the alleged statements——the affidavits
No. 2014AP2561-CR.awb

5

here relate to an admission of future perjury, while in Love the 

affidavit related to an alleged admission to a past crime. In 

both cases, the affiant was a fellow inmate. As in Love, I 

would accept the alleged facts as true.

¶87 In his postconviction motion, McAlister alleged that 

"[l]ong after McAlister's direct appeal and after he filed his 

petition for writ of habeas corpus, he learned that Corey 

Prince, Wendell McPherson and Antonio Shannon had information 

confirming that McAlister was not involved in any robberies and 

that the State's two key witnesses against him, Alphonso Waters 

and Nathan Jefferson had conspired to frame McAlister in order 

to obtain relief from their own sentences."

¶88 Instead of accepting McAlister's alleged facts as 

true, the circuit court here stated orally that the affidavits 

are "inherently not believable." In its written order, it 

likewise concluded that they "have limited credibility." The 

circuit court thus went well beyond its role at this stage of 

proceedings, engaging in a personal, subjective assessment of 

witness credibility rather than accepting the facts presented as 

true.

¶89 The majority turns a blind eye to the circuit court's 

error and again delves into the credibility of the affiants' 

statements. In its misguided search for "circumstantial 

guarantees of trustworthiness," the majority laments that "the 

length of time that passed between McAlister's trial and the 

submission of the affidavits cuts against concluding that the

affidavits are trustworthy." Majority op., ¶60. It further 
No. 2014AP2561-CR.awb

6

decries the "highly suspicious" nature of jailhouse statements 

made by those serving life sentences. Id., ¶61.

¶90 This inquiry goes beyond the court's role based on the 

procedural posture with which we are presented. Properly 

leaving a credibility determination for a later date, the 

court's only determination here should be whether the McPherson, 

Prince, and Shannon affidavits are incredible as a matter of 

law.

¶91 I conclude that they are not. The statements are not 

so outlandish as to be in conflict with the "uniform course of 

nature." See Vollbrecht, 344 Wis. 2d 69, ¶28 n.18. Without an 

evidentiary hearing we simply do not know if the affidavits are 

credible. Accordingly, I would accept the alleged facts as true 

and determine that McAlister should be afforded the opportunity 

for an evidentiary hearing.

B

¶92 The majority errs next by determining that the newly 

discovered evidence is merely cumulative of that already 

presented. It reaches this conclusion because "[t]he jury heard 

it all before." Majority op., ¶49. According to the majority, 

the alleged newly discovered evidence is "of the same general 

character and drawn to the same point for which proof was 

provided at trial, i.e., that Jefferson and Waters lied to 

benefit themselves[.]" Id., ¶51.

¶93 What was the "character" of the evidence offered? At 

trial, both Jefferson and Waters were cross examined regarding 

deals they made with the district attorney. See majority op., 
No. 2014AP2561-CR.awb

7

¶¶9-11, 16. In each case, the district attorney agreed to 

recommend less prison time in exchange for their testimony. 

Id., ¶¶11, 16. This evidence could certainly offer a motive for 

Waters and Jefferson to lie and implicate McAlister, but it says 

nothing about whether Waters and Jefferson in fact conspired to 

frame McAlister.

¶94 In contrast, the affidavits of Prince, McPherson, and 

Shannon, if true, offer direct evidence that Waters and 

Jefferson conspired to lie.1 Direct evidence that Jefferson and 

Waters planned to lie is of a different general character than 

the circumstantial evidence of their motive to lie that was 

presented at trial. As McAlister aptly states in his brief, 

"evidence that Jefferson and Waters in fact conspired to frame 

McAlister is not cumulative to evidence that they had a motive 

to do so."

C

¶95 The majority's third error lies in its attempt to fit 

a square peg into a round hole by creating a false equivalency 

between recantation evidence and the alleged newly discovered 

evidence in this case.

¶96 Recantations are inherently unreliable. State v. 

McCallum, 208 Wis. 2d 463, 476, 561 N.W.2d 707 (1997) (citing 

 

1 That there was no direct evidence of a conspiracy 

presented at trial was repeatedly highlighted by the prosecutor 

during closing argument. The State's closing argument was 

peppered with statements such as, "[t]here's no evidence they 

ever met and talked about it" and "there is no evidence they 

ever even talked." If true, the McPherson, Prince, and Shannon 

affidavits do provide such evidence.
No. 2014AP2561-CR.awb

8

Dunlavy v. Dairyland Mut. Ins. Co., 21 Wis. 2d 105, 114, 124 

N.W.2d 73 (1963)). "The recanting witness is admitting that he 

or she has lied under oath. Either the original sworn testimony 

or the sworn recantation testimony is false." McCallum, 208 

Wis. 2d at 476. This is the reason behind the corroboration 

requirement for recantation testimony. Gehin v. Wis. Group Ins. 

Bd., 2005 WI 16, ¶98, 278 Wis. 2d 111, 692 N.W.2d 572.

¶97 Contrary to the majority's assertion, the evidence at 

issue here is not akin to recantation evidence. The alleged 

"recantation" is not the product of the witnesses who are 

alleged to have lied on the stand, Jefferson and Waters. 

Rather, the alleged "recantation" statements are from three 

individuals who did not previously testify in this case. By 

definition, a recantation must consist of the witness

withdrawing or renouncing prior testimony. See McCallum, 208 

Wis. 2d at 476. Neither Waters nor Jefferson has submitted an 

affidavit recanting his trial testimony.

¶98 Consequently, the logic of the corroboration rule does 

not hold here. As we explained in McCallum, in the recantation 

situation "[t]he recanting witness is admitting that he or she 

has lied under oath. Either the original sworn testimony or the 

sworn recantation testimony is false." McCallum, 208 Wis. 2d at 

467. Here, the alleged "recantations" of Jefferson and Waters 

were not made under oath. There is no sworn "recantation" 

testimony from the "recanters." The "either/or" situation 

described in McCallum is not present here because Jefferson and 
No. 2014AP2561-CR.awb

9

Waters each made only one statement under oath——his trial 

testimony.

¶99 The statements at issue are better characterized as 

prior inconsistent statements rather than a "recantation." A 

prior inconsistent statement is not "inherently unreliable" as 

is a recantation. To the contrary, a prior inconsistent 

statement is reliable enough to constitute a non-hearsay 

statement. See Wis. Stat. § 908.01(4)(a)1. The majority's 

attempt to force the evidence here within the category of 

"recantation" evidence is simply unconvincing.

II

¶100 If a Wis. Stat. § 974.06 motion raises sufficient 

facts that, if true, show that the defendant is entitled to 

relief, the circuit court must hold an evidentiary hearing. 

Balliette, 336 Wis. 2d 358, ¶18. The sworn affidavits assert 

that witnesses lied and McAlister maintains he was not involved 

in the offense for which he was convicted. Accepting the facts 

as alleged in McAlister's motion as true, I conclude that 

McAlister has shown he is entitled to relief. I therefore would 

reverse the court of appeals and remand to the circuit court for 

an evidentiary hearing.

¶101 Accordingly, I respectfully dissent.

¶102 I am authorized to state that Justice SHIRLEY S. 

ABRAHAMSON joins this dissent.
No. 2014AP2561-CR.awb

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