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COURT OF APPEALS DECISION DATED AND FILED October 23, 2012 Diane M. Fremgen 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. |
Cir. Ct. No. 1999CF3969 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Dwight D. Campbell, Defendant-Appellant. |
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APPEAL from an order of the circuit court for Milwaukee County: dennis r. cimpl, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Dwight D. Campbell appeals an order denying his motion seeking a new
trial under Wis. Stat. § 974.06. He contends that he has newly-discovered
evidence. He also contends that he
should be granted a new trial in the interest of justice. We reject his contentions and affirm the
order denying postconviction relief.
I.
¶2 The
State charged Campbell with first-degree reckless homicide by use of a
dangerous weapon and as a party to a crime after Johnnie Humphrey was shot and
killed in July 1999. At Campbell’s trial
in 2000, many of the witnesses presented by the State had either a familial
connection or a friendship with Elmer Jones. Campbell’s theory of defense was that Jones,
who did not testify, manipulated the State’s evidence in ways that Campbell
could not precisely identify. The jury
rejected Campbell’s theory and found him guilty. The circuit court imposed a forty-five-year
sentence. He pursued a direct appeal,
and this court summarily affirmed. See State
v. Campbell, No. 2001AP2321-CR, unpublished slip op. (WI App Sept. 24,
2002).
¶3 In
2010, Campbell launched the proceedings underlying this appeal by filing a
postconviction motion and supporting affidavits pursuant to Wis. Stat. § 974.06. He alleged that he had newly-discovered
evidence that he was framed by Jones, and the circuit court conducted a hearing
to consider the claim.
¶4 Armond
Pride, Antwiane Sago, and Travis Ranson each testified that he was incarcerated
at Waupun Correctional Institution at the same time as Jones. Pride and Sago each testified that Jones made
statements about how he manipulated the witnesses who testified against
Campbell at his homicide trial. Ranson
testified that Jones said “he was the reason why Dwight Campbell is here [in
prison].”
¶5 Campbell
testified on his own behalf. He told the
circuit court that he was formerly a member of the Gangster Disciples, a street
gang, and that Jones belonged to a rival gang.
According to Campbell, Jones was selling drugs in Campbell’s
neighborhood in 1999, viewed Campbell as a competitor, and wanted him out of
the area. He suggested that these
considerations motivated Jones to manufacture the evidence offered against
Campbell at his homicide trial. Campbell
testified that when he and Jones were both later imprisoned in Waupun
Correctional Institution, they had a conversation during which Jones said “he
didn’t know that they were going to lock [Campbell] up and basically throw away
the key.” Jones then offered to help
secure Campbell’s release. Campbell went
on to describe learning from Pride, Sago, and Ranson that Jones had admitted
manipulating the testimony presented at Campbell’s homicide trial, and Campbell
further described the mechanics of seeking affidavits from the witnesses and
getting a lawyer.
¶6 Jones
also testified. He told the circuit
court that he was present when his uncle, Humphrey, was shot, but Jones did not
testify about what he saw at that time. He
denied trying to influence the testimony of the witnesses at Campbell’s trial,
and he denied the conversations described by Pride, Sago, and Ranson. Jones acknowledged discussing Humphrey’s homicide
with Campbell while the two men were both incarcerated. According to Jones, however, the conversation
involved Campbell apologizing for the homicide and offering to pay Jones to say
either that Campbell did not commit the crime or that Jones did not see
Campbell commit it.
¶7 At
the conclusion of the evidentiary hearing, the circuit court determined that “the
alleged new evidence” did not earn Campbell a new trial because “there is
absolutely no way” that the new evidence would probably result in a different
jury verdict. Campbell appeals.
II.
¶8 The
decision to grant or deny a motion for a new trial based on newly-discovered
evidence rests in the circuit court’s sound discretion. State v. Plude, 2008 WI 58, ¶31, 310
Wis. 2d 28, 47, 750 N.W.2d 42, 52. Such
motions, however, “‘are entertained with great caution.’” State v. Morse, 2005 WI App 223,
¶14, 287 Wis. 2d 369, 377, 706 N.W.2d 152, 156 (citation omitted). To get a new trial based on
newly-discovered evidence, a defendant must prevail in a multi-pronged
inquiry. See State v. Love, 2005 WI 116, ¶¶43–44, 284 Wis. 2d 111, 133–134,
700 N.W.2d 62, 73–74.
[A] defendant must first prove by clear and convincing evidence that “(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative.”
If the defendant makes this showing, then “the circuit court must determine whether a reasonable probability exists that a different result would be reached in a trial.” The reasonable probability determination does not have to be established by clear and convincing evidence, as it contains its own burden of proof. A reasonable probability of a different outcome exists if “there is a reasonable probability that a jury, looking at both the [old evidence] and the [new evidence], would have a reasonable doubt as to the defendant's guilt.”
Ibid. (first set of brackets added, citations and footnote omitted). New evidence that fails to satisfy any of the five criteria is not sufficient to warrant a new trial. State v. Kaster, 148 Wis. 2d 789, 801, 436 N.W.2d 891, 896 (Ct. App. 1989).
¶9 The circuit court
concluded, and the parties do not dispute, that the testimony from Pride, Sago,
and Ranson satisfied the first four criteria for Campbell to obtain a new trial
on the ground of newly-discovered evidence.
The determinative question is whether the proposed new evidence would
have created a reasonable doubt in the jurors’ minds. This component of the analysis presents a
question of law. Plude, 2008 WI 58, ¶33,
310 Wis. 2d at 49, 750 N.W.2d at 53.
We consider questions of law de
novo. State v. Ploeckelman,
2007 WI App 31, ¶8, 299 Wis. 2d 251, 258, 729 N.W.2d 784, 788. We defer, however, to the underlying
credibility assessments of the circuit court “because of its superior
opportunity to observe the demeanor of witnesses and to gauge the
persuasiveness of their testimony.” See State v. Carnemolla, 229
Wis. 2d 648, 661, 600 N.W.2d 236, 242 (Ct. App. 1999).
¶10 Here,
the circuit court found that Pride, Sago, and Ranson had “credibility problems,”
and that Campbell himself “was incredible when he talks about ... no longer
being a Gangster Disciple, being a neutral now, but yet he still has the tattoo
and everything else.” The circuit court
then concluded that the jury would not have reached a different result had the
jury heard the evidence Campbell presented at the postconviction hearing.
¶11 Evidence
that is incredible would not raise a reasonable doubt in the minds of
jurors. See State v. McCallum, 208 Wis. 2d 463, 475, 561 N.W.2d 707,
711 (1997). Therefore, a new trial is
not warranted unless the defendant satisfies the circuit court that a jury could
believe the newly-discovered evidence on which he or she relies. See
State
v. Kivioja, 225 Wis. 2d 271, 298, 592 N.W.2d 220, 233 (1999). A circuit court finding that new evidence is
not credible “is sufficient to conclude that it is not reasonably probable that
a different result would be reached at a new trial.” State v. Terrance J.W., 202
Wis. 2d 496, 501, 550 N.W.2d 445, 447 (Ct. App. 1996).
¶12 Campbell
challenges the circuit court’s order denying relief because, he says, the circuit
court did not expressly deem Pride, Sago, and Ranson “incredible” or state that
their testimony was “unworthy of belief.”
Campbell emphasizes that to secure a new trial based on newly-discovered
evidence he is not required to offer evidence that is more credible than the
State’s original evidence. See McCallum, 208 Wis. 2d at
474–475, 561 N.W.2d at 711. A jury that
hears evidence less credible than the original evidence may nonetheless have a
reasonable doubt about the defendant’s guilt.
See ibid. Relying on this principle, he
contends that the circuit court erred by denying him the opportunity to present
his evidence to a jury. We are not
persuaded.
¶13 We
do not require the circuit court to use magic words when it assesses
credibility. Rather, we review the circuit
court’s credibility assessments by examining the totality of the circuit
court’s remarks. See Kivioja, 225 Wis. 2d at 297–298, 592 N.W.2d at 233. Thus, in Kivioja, the supreme court explained: “we find that the circuit court’s discussion
that [the witness]’s statements show so many marked inconsistencies that his ‘reliability
and credibility is seriously challenged’ to be a finding that the recantation
is incredible as a matter of law.” See ibid. Similarly, a circuit court’s “written
finding that ‘a reasonable jury would not believe the recanting statement of
[the witness]’ is also a finding that the recantation is incredible as a matter
of law.” Id. at 298, 592 N.W.2d at
233.
¶14 Here,
the circuit court made extensive findings bearing on the credibility of the
witnesses that Campbell offered. The
circuit court noted that Pride had known Campbell for many years, that Pride
was “like an adopted son” to Campbell’s mother, and that Pride dated Campbell’s
sister and received money from her. The
circuit court noted that Sago was Campbell’s cellmate, that Sago testified that
he lied to Jones to gain his confidence, and that Sago did not cooperate with
the detective who asked to speak with him about his proposed testimony despite
a sworn statement in his affidavit that he was “willing to cooperate with the
authorities in this matter.” The circuit
court determined that Ranson was Campbell’s “fellow gang member” who knew
Campbell “from the streets,” and that Ranson had no independent recollection of
some of the allegations he swore to in his affidavit, including that Jones
admitted coaching witnesses and telling them what to say. The circuit court also noted that neither
Pride nor Ranson was able to identify Jones when shown his photograph.[1]
¶15 After
reviewing the testimony of Pride, Sago, and Ranson, the circuit court
determined: “[w]ith the credibility problems
of these three witnesses, there is absolutely no way that the jury would have
changed its mind.” This determination,
in context, is a finding that the witnesses were incredible as a matter of
law. See
ibid.
¶16 As
to Campbell, the circuit court explicitly found him “incredible.” Campbell argues, however, that the circuit
court limited this finding to his testimony about terminating his gang
membership, and he states that the circuit court did not make an express
finding that the remainder of his testimony was “wholly outside the realm of
believability.” This contention is
unavailing. When the circuit court does
not make express findings, we assume that the circuit court made implicit
findings in a manner supporting its decision.
State v. Martwick, 2000 WI 5, ¶31, 231 Wis. 2d 801, 817,
604 N.W.2d 552, 559. Here, the circuit
court did not describe each self-serving component of Campbell’s testimony as
incredible, but that finding is implicit in the circuit court’s ruling. Additionally, and perhaps more importantly,
Campbell does not identify anything in his testimony that supports a claim for
a new trial in the absence of credible new evidence from Pride, Sago, and
Ranson.
¶17 The
circuit court determined that Campbell did not meet his burden of proof in this
case. The circuit court thoroughly
reviewed the evidence he offered and concluded:
“[w]hen you look at the reasonable probability[,] would it result in a
different trial [outcome] if we had known all of this? No way.
Absolutely no way.” The circuit
court’s findings and conclusion reflect its assessment that Campbell’s evidence
was incredible and thus would not raise a reasonable doubt in the minds of
jurors. See Kivioja, 225 Wis. 2d at 297–298, 592 N.W.2d at 233. Accordingly, Campbell did not show that he
had newly-discovered evidence warranting a new trial. See Love,
2005 WI 116, ¶¶43–44, 284 Wis. 2d at 133–134, 700 N.W.2d at 73–74.
¶18 Campbell
alternatively seeks a new trial in the interest of justice. This court has the discretionary power to
reverse a judgment when the real controversy was not fully tried or justice has
for any reason miscarried. Vollmer
v. Luety, 156 Wis. 2d 1, 17, 456 N.W.2d 797, 805 (1990). We exercise the power, however, in only the
most exceptional of cases. See id., 156 Wis. 2d at 11, 456
N.W.2d at 802. To get a new trial on
the ground that the real controversy was not fully tried, Campbell “must
convince us that the jury was precluded from considering ‘important testimony
that bore on an important issue’ or that certain evidence which was improperly
received ‘clouded a crucial issue’ in the case.” See State v. Darcy N.K., 218 Wis. 2d
640, 667, 581 N.W.2d 567, 579 (Ct. App. 1998) (citation omitted). To get a new trial on the ground that justice
has miscarried, Campbell “must convince us ‘there is a substantial degree of
probability that a new trial would produce a different result.’” See ibid.
(citations and one set of quotation marks omitted).
¶19 The
parties dispute whether this court may exercise the discretionary power to reverse
a judgment of conviction in the context of a collateral attack on that
conviction filed, as here, under Wis.
Stat. § 974.06. We need not
decide the question. Assuming that we
have the power in cases such as this one, Campbell has not demonstrated that his
case merits the extraordinary remedy he seeks.
¶20 Campbell
primarily contends that we should grant him a new trial in the interest of
justice because Jones acknowledged for the first time during his testimony at
the postconviction hearing that he was present when Humphrey was shot. In statements to police and investigators,
Jones did not previously make such an admission, but we do not agree that this
testimony constitutes a basis for granting Campbell a new trial. The jury heard evidence that Jones was
present at the scene of the homicide.[2] Campbell fails to demonstrate that the lack
of additional testimony from Jones on that point precluded the jury from
hearing important testimony about an important issue or that Jones’s own
testimony about his presence would create a substantial probability of a
different result at a new trial. See Darcy N.K., 218 Wis. 2d at 667,
581 N.W.2d at 579. Indeed, we note
Campbell’s position that Jones fabricated “virtually everything ... that came
out of [his] mouth in the run-up to the original trial and since.”
¶21 We
also reject the suggestion that we should reverse Campbell’s conviction because
the jury “did not hear important evidence” from Pride, Sago, and Ranson. We have already determined that the circuit
court properly denied a new trial upon a finding that the allegedly important
evidence from those witnesses is incredible.
Nothing persuades us that justice requires giving Campbell an
opportunity to present such evidence to a jury.
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.