APPEAL
from a judgment and an order of the circuit court for
Before Brown, C.J., Neubauer, P.J., and Snyder, J.
¶1 PER CURIAM. David McAlister, Sr., appeals from a judgment convicting him of one count each of attempted armed robbery with threat of force as a party to a crime, possession of a firearm by a felon, and armed robbery with threat of force, and from an order denying his postconviction motion for a new trial. None of the issues McAlister raises persuades us. We affirm.
¶2 After a three-day trial, a jury found McAlister guilty of being involved in the robberies of a credit union and an auto title loan shop.[1] The bulk of the evidence tying him to the crimes came from two alleged accomplices, Alphonso Waters and Nathan Jefferson, to whom the State granted concessions in exchange for their testimony. The court sentenced McAlister to a total of twenty-five years’ initial confinement and nine years’ extended supervision.
¶3 Postconviction, McAlister moved for a new trial on grounds that the State did not fully disclose the terms of the agreement it struck with Waters and Jefferson and relied on Waters’ allegedly perjured testimony; the real controversy was not fully tried because the jury was not presented alibi and other exculpatory evidence; and he received ineffective assistance of counsel. The trial court denied the motion after a hearing. Additional facts will be supplied as needed.
¶4 On appeal, McAlister again argues that he did not receive a fair trial because the State failed to fully disclose the terms of the agreements by which it granted concessions to Waters and Jefferson in exchange for their testimony. He contends that simply disclosing the agreements was insufficient because they were not reduced to writing; the jury was not told that they were “performance based”; and their terms were not disclosed to him until after Waters testified.
¶5 When the State relies on accomplice testimony, the defendant’s right to a fair trial is protected as long as there is:
(1) full disclosure of the terms of the agreements struck with the witnesses; (2) the opportunity for full cross-examination of those witnesses concerning the agreements and the effect of those agreements on the testimony of the witnesses; and (3) instructions cautioning the jury to carefully evaluate the weight and credibility of the testimony of such witnesses who have been induced by agreements with the state to testify against the defendant.
State v. Nerison, 136
¶6 Waters testified at the end of the second day of trial. On cross-examination, he denied receiving consideration for his testimony and testified that “no one ever brought [him] anything about a deal.” The next day, the court read to the jury the parties’ joint stipulation as it pertained to Waters. The court informed the jury that the State agreed to reduce Waters’ maximum potential sentence by either dismissing or reducing some charges and to recommend less prison time, and that the terms of the agreement were conveyed to Waters before he testified.
¶7
¶8 The record does not bear out McAlister’s claims. The trial court found that the defense was
fully apprised of the terms of the agreement before trial. Defense counsel, Patrick Cafferty, confirmed
that fact at the postconviction motion hearing.
In addition, we know of no case law requiring such arrangements to be
written. As McAlister also cites no
legal authority for that proposition, we need consider it no further.
¶9 Likewise, the record does not support McAlister’s claim that the consideration was “performance based.” He cites CCAP notations indicating that plea offers were contingent upon Waters’ and Jefferson’s testimony, and speculates that the notations necessarily mean that the consideration hinged on the testimony’s value to the State. His conjecture is not proof of the substance of the parties’ agreement. Furthermore, cross-examination was vigorous. Waters’ denial of having made a deal was balanced, if not cured, by the stipulation the court read into the record. Finally, the court gave the jury appropriate cautionary instructions. The Nerison test was easily met.
¶10 McAlister next asserts that the State relied on Waters’ “perjured” testimony. He contends Waters falsely denied knowledge of a deal, and argues that the State knew the testimony was false and should have corrected it at the time instead of allowing the jury to “evaluate” it overnight and “develop an impression about the case.” We disagree.
¶11 Cafferty testified at the postconviction hearing that he
discussed Waters’ unexpected testimony with the assistant district attorney and
Waters’ attorney. The
¶12 McAlister has not shown, therefore, either that Waters’
testimony was perjured or that the State relied on it. It is possible the deal was not presented to
Waters, which could explain his attorney’s evasiveness. Also, the record does not reflect that the
State acted to capitalize on Waters’ denial.
The
¶13 McAlister next argues that the real controversy was not fully tried because the jury did not hear testimony from alibi and exculpatory witnesses. He contends Lakecha Turner would have testified that they were Christmas shopping for three days over the time the credit union robbery occurred, and Janice Gillard, his aunt, would have testified that he was with her at a car dealership when the title loan shop robbery occurred, based on testimony they gave at his revocation hearing, well before the trial. He also contends that his niece, Monique McAlister, would have been an exculpatory witness because even her presence would have further discredited Waters’ and Jefferson’s testimony. Waters and Jefferson claim she took part in the two robberies. McAlister notes that she never was charged, however. Further, McAlister describes Monique as a five-foot-nine, heavyset, dark-skinned African-American, while robbery victims described the woman accomplice as slim, light-skinned, perhaps Hispanic, and about five feet tall.
¶14 We may order a new trial in the interest of justice if we
conclude that the real controversy was not fully tried. State v. Von Loh, 157
¶15 This is not such a case.
The revocation hearing predated McAlister’s trial by over a year and his
postconviction motion hearing by three years.
He did not produce Turner or Gillard at the postconviction hearing or
even offer affidavits from them.
Accordingly, there is no testimony as to what they would have said or that
they would be available and willing to testify should McAlister be granted a
new trial, depriving the trial court of any opportunity to assess their
credibility. This is insufficient.
¶16 As to Monique, whether or not she actually was involved in the heists was not central to McAlister’s case. Waters had testified that McAlister called him “[b]asically whenever I got off work” with robberies already planned “and we’d go from there.” Conceivably, the jury could have thought Waters, an admitted crack cocaine addict, misremembered which robbery Monique was involved in. Her participation does not go to whether the real controversy—McAlister’s participation—was fully tried. In addition, the jury heard varying descriptions of Monique, which defense counsel emphasized in closing arguments, so it cannot be said that evidence was withheld from the jury.
¶17 McAlister also asserts that defense counsel’s failure to
present these witnesses at trial constitutes ineffective assistance. We again disagree. To establish ineffective assistance,
McAlister must show that trial counsel’s representation was deficient and that
the deficiency prejudiced him.
¶18 Cafferty testified why he opted not to call Turner, Gillard or
Monique. He grew “extremely cautious”
about McAlister’s alibi witnesses after learning that some may have lied at the
revocation hearing. Turner’s criminal
history included multiple fraud-type felonies and, currently incarcerated, she
would have appeared in prison garb. He
also thought the Christmas shopping alibi was “really lame” and that Gillard’s
alibi was too limited. Finally, he found
Monique “very nervous [and] difficult to keep on track” due to her concern
about being implicated in the robberies. She struck him as a “very high-risk witness” since
he already had numerous ways to discredit Waters’ and Jefferson’s testimony. Not calling the alibi witnesses McAlister
wanted in lieu of other more reliable fact witnesses was a reasonable trial
strategy. We will not second-guess
counsel’s exercise of professional judgment after weighing the
alternatives. State v. Felton, 110
¶19 McAlister next argues that the evidence was insufficient to
convict him. Evidence is insufficient to
support a conviction only if, when viewed most favorably to the State, the
evidence “is so insufficient in probative value and force that it can be said
as a matter of law that no trier of fact, acting reasonably, could have found
guilt beyond a reasonable doubt.” State
v. Booker, 2006 WI 79, ¶22, 292
¶20 Waters and Jefferson testified that McAlister planned the
robberies and provided the gun and a car.
Waters testified that the car was either a gray Hyundai or Honda;
¶21 Credibility determinations and the weight of the evidence are
for the trier of fact. State
v. Poellinger, 153
¶22 The last issue is whether the trial court erred in refusing to give
the falsus in uno instruction,
¶23 McAlister requested the instruction on the basis that Waters’
and Jefferson’s testimony was willfully untrue. Besides Waters asserting he had no deal with
the State, McAlister also notes the pair testified that they were not
aggressive or violent, whereas the victims testified that the robbers kicked
and shoved them and pulled their hair. The
court declined the request and instead gave instructions on witness credibility,
accomplice testimony and testimony of witnesses granted concessions. See
¶24 How roughly Waters and Jefferson treated the robbery victims is
not a material point. We accord “much
weight” to the trial court’s determination that it was for the jury to resolve
inconsistencies and determine witness credibility, rather than a necessary
basis for a falsus in uno
instruction. See Robinson, 145
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] It acquitted him of a grocery store robbery.
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless noted.
[3] WIS JI—CRIMINAL 305 provides:
If you become satisfied from the evidence that any witness has willfully testified falsely as to any material fact, you may disregard all the testimony of the witness which is not supported by other credible evidence in the case.