COURT OF APPEALS
DECISION
DATED AND FILED
December 30, 2008
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Raynard R. Jackson,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: JEFFREY
A. KREMERS, Judge. Reversed
and cause remanded for further proceedings.
Before Fine, Kessler, JJ., and Daniel L. LaRocque, Reserve
Judge.
¶1 PER CURIAM. Raynard R. Jackson appeals
from a postconviction order summarily denying his motion for a new trial. The issue is whether Jackson alleged a prima facie claim of ineffective assistance of his original postconviction
counsel for failing to seek a new trial on the basis of newly discovered
evidence that the same group of police officers who apprehended him had engaged
in misconduct similar to that which formed the basis for his defense at trial. We conclude that the trial court erred in
summarily denying his postconviction motion.
We therefore reverse and remand the cause for an evidentiary hearing on Jackson’s postconviction
claims.
¶2 Milwaukee Police Officers Ala Awadallah, Paul Lough and
Thomas Dineen were on patrol when they saw Jackson and his co-defendant Morris
Rash outside the Guru Food Store. Jackson and Rash entered
the store. The squad car circled the
block and when it returned, the officers saw Jackson and Rash walking down the
street. When they saw the police, they
ran in opposite directions; both Jackson
and Rash were subject to outstanding warrants.
Lough chased Jackson;
Awadallah chased Rash. Lough testified
that while he was chasing Jackson,
he “saw him take his right hand and reach in the area of his right waistband
and kind of turn and then he discarded what appeared to be a black firearm,
semiautomatic pistol.” Lough testified
that he recovered a forty caliber Glock pistol while pursuing Jackson, and admitted that this was the same
type of gun issued to police officers. Jackson was ultimately
apprehended by Officer Keith Dodd. Lough
also testified that he placed the Glock he recovered in inventory; however, police
inventory reports indicate that it was actually Awadallah, not Lough, who
placed the Glock in inventory. The
pistol did not bear Jackson’s
fingerprints; it had not been reported as stolen. Jackson’s
defense was that he was framed by police.
¶3 A jury found Jackson
guilty of possessing a firearm as a felon, carrying a concealed weapon, and
resisting an officer, in violation of Wis.
Stat. §§ 941.29(2)(a) (amended Feb. 1, 2003), 941.23 (2003-04) and
946.41(1) (2003-04). For the possession
conviction, the trial court imposed a ten-year sentence, comprised of two five-year
periods of initial confinement and extended supervision. For the two remaining convictions, the trial
court imposed a nine-month consecutive sentence for each, both running
consecutive to each other and to the ten-year sentence. Original postconviction counsel
unsuccessfully pursued two issues, and the judgment and postconviction order
were affirmed on appeal. See State v. Jackson, No.
2005AP1580-CR, unpublished slip op., ¶1 (WI App Aug. 22, 2006).
¶4 While Jackson’s
original postconviction motion, pursuant to Wis.
Stat. Rule 809.30(2)(h) (2005-06), was pending, Awadallah was charged in
federal court with police misconduct, specifically for threatening to plant
evidence on a suspect. The federal misconduct charges against
Awadallah were prominently reported in the Milwaukee J. Sentinel, the largest newspaper in
the state, and the principal newspaper in the Milwaukee area. A Sentinel
article suggested that all prosecutions involving Awadallah, then a Milwaukee
City Police Officer, were in jeopardy. Jackson’s original postconviction counsel did not raise
this issue despite Awadallah’s involvement in Jackson’s prosecution. While Jackson’s appeal was pending, this
court released its decision in State v. Missouri, 2006 WI App 74,
291 Wis. 2d 466, 714 N.W.2d 595, granting a new trial because of the trial
court’s refusal to admit evidence of other acts involving police misconduct by
Awadallah, Lough and other officers who were also involved in apprehending
Jackson. Original postconviction counsel
never sought relief on the basis of Awadallah’s federal conviction or Missouri, involving similar police misconduct by
some of the same officers who were principally involved in apprehending Jackson.
¶5 Jackson
then filed the current postconviction motion, this pursuant to Wis. Stat. § 974.06, for a new
trial on the basis of ineffective assistance of original postconviction
counsel, newly discovered evidence, and in the interests of justice, on the
basis of similar police misconduct in Jackson’s case, involving these same
officers. The trial court summarily
denied the motion. Jackson appeals.
¶6 To demonstrate entitlement to a postconviction evidentiary
hearing, the defendant must meet the following criteria:
Whether a defendant’s postconviction motion alleges
sufficient facts to entitle the defendant to a hearing for the relief requested
is a mixed standard of review. First, we
determine whether the motion on its face alleges sufficient material facts
that, if true, would entitle the defendant to relief. This is a question of law that we review de
novo. [State v.] Bentley,
201 Wis. 2d
[303,] 309-10[, 548 N.W.2d 50 (1996)].
If the motion raises such facts, the [trial] court must hold an
evidentiary hearing. Id. at 310;
Nelson v. State, 54 Wis. 2d 489, 497, 195
N.W.2d 629 (1972). However, if the
motion does not raise facts sufficient to entitle the [defendant] to relief, or
presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief, the [trial] court
has the discretion to grant or deny a hearing.
Bentley, 201 Wis. 2d at 310-11; Nelson,
54 Wis. 2d
at 497-98.
State
v. Allen, 2004 WI 106, ¶9, 274 Wis.
2d 568, 682 N.W.2d 433.
¶7 In the current postconviction motion, Jackson alleged the reported incidents of misconduct
by this rogue group of police officers, including Awadallah, Lough, Dineen and
Dodd, all of whom were involved in his and Rash’s apprehensions. In his motion, Jackson explained how these allegations
constituted newly discovered evidence. To establish newly discovered evidence, the
defendant must clearly and convincingly show that:
(1)
the evidence was discovered after trial;
(2)
the defendant was not negligent in seeking evidence;
(3)
the evidence is material to an issue;
(4)
the evidence is not merely cumulative to the evidence
presented at trial; and
(5)
a reasonable probability exists of a different result
in a new trial.[]
State v. Coogan,
154 Wis. 2d
387, 394-95, 453 N.W.2d 186 (Ct. App. 1990) (footnote added). When the trial court judge who decides the
postconviction motion is a different judge than the judge who presided over the
trial, the postconviction allegations are entitled to a de novo assessment. See State v. Herfel, 49 Wis. 2d 513, 521, 182 N.W.2d 232 (1971).
¶8 We now consider Jackson’s
ineffective assistance claim against his original postconviction counsel for
failing to raise this newly discovered evidence. See State ex
rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App.
1996). To demonstrate entitlement to a Machner
hearing, in addition to meeting the Allen requisites, Jackson must also allege a
prima facie claim of ineffective assistance of counsel, showing that
postconviction counsel’s performance was deficient, and that this deficient
performance prejudiced the result of his postconviction motion. See Strickland v. Washington,
466 U.S.
668, 687 (1984). To establish deficient
performance, the defendant must show that counsel’s representation was below
objective standards of reasonableness. See State v. McMahon, 186 Wis. 2d 68, 80, 519
N.W.2d 621 (Ct. App. 1994). To establish
prejudice, the defendant must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland,
466 U.S.
at 694.
¶9 The trial court summarily denied the motion, focusing on its
determination that Jackson
had not shown a reasonable probability of a different outcome, a requisite of
both newly discovered evidence and ineffective assistance of counsel
claims. The trial court reasoned that
there was
absolutely no
evidence that Officer Lough “planted” the gun … nor can it be assumed by
any stretch of the imagination that Officer Awadallah had anything to do with
the gun that Jackson discarded at the time of the chase. Without a sufficient connection between
Officer Awadallah’s former misconduct and the gun that Lough himself retrieved
from the ground, there is no basis for a new trial. The court agrees with the State that none of
the evidence relating to Jackson
depended upon the credibility or testimony of Officer Awadallah as to what
occurred….
[T]here was simply no evidence connecting Awadallah
with Jackson. It was Lough who saw the gun drop and it was
Lough who recovered the gun within seconds of it dropping during his pursuit of
the defendant.[]
¶10 The trial court ignored Jackson’s allegations of misconduct
against Lough, Dineen, Dodd, and other members of this same group of rogue
officers that included Awadallah, who were accused of lying and planting
evidence on other suspects. It also erroneously
short-circuited the process
by presuming that
Lough testified truthfully, depriving Jackson
of the opportunity to cross-examine him and challenge his credibility. See Missouri, 291 Wis. 2d 466, ¶17. Moreover, as current postconviction/appellate
counsel here demonstrated, much of Jackson’s
defense depended on credibility determinations, which cannot now be
discounted. See id., ¶22. For purposes
of determining entitlement to an evidentiary hearing on a postconviction
motion, the trial court must accept as true the postconviction
allegations. See Bentley, 201 Wis. 2d at 309. The trial court failed to accept Jackson’s current
postconviction allegations about the inconsistencies in Lough’s testimony, and the
police and inventory reports, and the factual disputes regarding the degree of
involvement by Lough and Awadallah in his arrest and their claimed discovery of
the gun.
¶11 We first analyze the sufficiency of Jackson’s newly discovered evidence
allegations because they provide background and context to our ineffective
assistance analysis. Current
postconviction counsel alleged the date of the Sentinel article reporting the federal misconduct charges
against Awadallah that involved charges of planting evidence on a suspect, the
same defense Jackson
used at trial, the circulation of the Sentinel,
and its suggestion that all cases involving Awadallah were in
jeopardy. Current postconviction counsel
also alerted the trial court to the Missouri
decision involving Lough, Awadallah, Dineen, and others in this same group of
officers who worked together at that time, and had also apprehended Jackson and Rash. These allegations are sufficient to meet the
first two newly discovered evidence requisites, that the evidence was
discovered after trial, and that Jackson
was not negligent in discovering this evidence sooner.
¶12 Current postconviction counsel alleged, with citations to the
trial transcript, that Jackson’s defense was essentially that Lough lied about
seeing him discard the gun as he was fleeing, and that that gun was
planted. Jackson’s prosecution depended on Lough’s
credibility. Lough’s involvement during
that same time period, individually and as part of the same group of rogue
officers who had engaged in the same type of misconduct on which Jackson’s
defense depended, and about which the jury had heard nothing, renders this
evidence both relevant and material.
“The bias or prejudice of a witness is not a collateral issue and
extrinsic evidence may be used to prove that a witness has a motive to testify
falsely.” State v. Williamson, 84 Wis. 2d 370, 383, 267
N.W.2d 337 (1978).
¶13 Jackson also explained that his defense relied on his assertion
that the police had lied and planted the gun, and that the previous misconduct
charges against these same officers were relevant and admissible as other acts
evidence to demonstrate a motive to lie, and a modus operandi of how they worked together, supporting one another
by lying, planting evidence, and acquiescing to each others’ misconduct, in an
ends-justifying-the-means approach to law enforcement. See Wis. Stat. § 904.04(2)(a); Missouri, 291 Wis. 2d 466, ¶¶15-25. As we explained in Missouri, “[t]his court cannot decide
[who] is telling the truth.” Id., 291 Wis. 2d 466, ¶25. Jackson has
specifically alleged sufficient, non-cumulative and independent evidence of
covert police action involving similar misconduct by these same officers; the
relevance and materiality of that conduct to Jackson’s defense entitle him to an
evidentiary hearing.
¶14 We next analyze Jackson’s
ineffective assistance claim, first whether Jackson has sufficiently alleged that
postconviction counsel was deficient for failing to pursue this newly
discovered evidence. In Jackson’s recent
postconviction motion, he alleged that “[d]uring closing arguments, [defense
counsel] pointed out several times that the Glock 22, .40 caliber, is a weapon
which is issued to police officers, strongly implying that the gun was
planted.” During closing argument,
defense counsel emphasized inconsistencies and “hole[s]” in the evidence to
support the misconduct defense. Current
postconviction counsel explained to the trial court that the jury reached its
verdict without evidence to support Jackson’s
defense of this same type of misconduct by these same officers. The allegations are sufficient to raise an
inference that original postconviction counsel should have known that the
perpetrators and misconduct reported in the Sentinel and
in Missouri
was sufficiently similar to that in Jackson’s case to have warranted
postconviction relief before Jackson’s case became final.
¶15 Current postconviction counsel alleged that two weeks after the
initial postconviction motion was filed, the Sentinel,
the primary newspaper in Wisconsin with a
weekday circulation of approximately 236,000 people, reported along with Milwaukee television
stations, that Awadallah had been charged with misconduct, which was similar to
that alleged in this case. Original postconviction
counsel did not supplement the original motion or include this new information
in the reply brief, which he filed approximately two months after this widely
disseminated news about Awadallah. At no
time prior to the final denial of Jackson’s
direct appeal, almost two years later, was this misconduct ever brought to the
court’s attention.
¶16 Current postconviction counsel filed a supplemental motion to
alert the trial court to information he discovered in the ultimately successful
postconviction motion in Missouri, a recent
decision on the same type of police misconduct as Jackson alleged. The conduct included many of the same
officers involved in Jackson’s
arrest, including Awadallah, Lough, Dodd and Dineen. Jackson has
alleged with the requisite specificity that original postconviction counsel was
deficient for failing to raise the publicly disclosed misconduct of the same
officers involved in Jackson’s
apprehension. That public disclosure
included a published decision from this court. Jackson’s
allegations are sufficient to entitle him to a Machner hearing.
¶17 Jackson
alleged the same type of misconduct and complicity by the same rogue officers
from other cases to bolster his attempted defense. See Missouri, 291 Wis. 2d 466, ¶¶2, 10. He also alleged that in the Missouri postconviction motion there
was evidence of misconduct by Dineen, and that Lough was part of the same group
of officers who, at minimum, acquiesced to each other’s misconduct. Jackson
emphasized inconsistencies in Lough’s testimony and the police reports about
the chain of custody and other issues involving the gun, including whether it
was planted. Jackson has alleged with the requisite
specificity a prima facie claim of
prejudice, namely, that it is reasonably probable that had counsel included
these allegations in his original postconviction motion, the result would have
been different. See Strickland, 466 U.S.
at 694.
¶18 We conclude that Jackson’s
postconviction allegations were sufficient for an evidentiary hearing. We therefore remand this matter for a Machner
hearing on Jackson’s
claims.
By the Court.—Order reversed and cause remanded for further
proceedings.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.