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[[COURTLISTENER_SUBOPINION {"id":"10575695","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 29, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP2125-CR Cir. Ct. No. 2012CF2560
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
KEVIN PITTMAN, JR.,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Brash, P.J., Kessler and Dugan, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2125-CR
¶1 PER CURIAM. Kevin Pittman, Jr., appeals a judgment convicting
him, following a jury trial, of felony murder as a party to a crime and possession
of a firearm by a felon. See WIS. STAT. §§ 940.03, 939.05, 941.29(2)(a) (2011-
12).1 He also appeals the circuit court’s order denying his postconviction motion.
Pittman argues that he is entitled to a new trial because trial counsel was
ineffective and because he has newly discovered evidence. We reject each
argument that Pittman makes on appeal and, accordingly, affirm the judgment and
order.
I. BACKGROUND
¶2 The criminal complaint alleged that police were dispatched in
response to an armed robbery/shooting complaint. Upon arriving at the reported
location, they observed Russell Setum in the middle of the street covered in blood.
Setum’s mother told police that an individual with a handgun approached Setum
as he got out of his vehicle. Setum went to his knees with his hands in the air.
The individual with the handgun ordered him to remove his jacket and shoes while
pointing the gun at Setum’s head. As this was happening, Setum’s mother was at
the back door of her home and was yelling, “don’t kill my baby!”
¶3 According to the complaint, at this point, Setum was face down on
the ground. The individual with the gun asked for the keys to Setum’s vehicle.
Setum told him they were in the truck. Again, Setum’s mother pleaded with the
individual not to kill Setum. Setum’s mother reported that the individual looked at
her and stated, “[s]orry mama” before shooting Setum. Setum’s mother told
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
No. 2018AP2125-CR
police that she began screaming and tried to open the back door to her home, at
which point, the individual with the gun started shooting at her. She felt one of the
shots hit her foot as she fled.
¶4 Police later found Setum’s vehicle in a different location, engulfed in
fire and stripped of its tires, rims, and other materials.
¶5 The State initially charged Pittman with conspiracy to commit armed
robbery as a party to a crime. That charge was later amended to one count of
felony murder as a party to a crime and one count of possession of a firearm by a
felon.
¶6 After a five-day trial, the jury convicted Pittman on both counts.
Trial testimony revealed that Pittman provided a gun to Robert Cameron so that
Cameron could use it to rob Setum. The robbery resulted in Setum’s death.
¶7 For the felony murder charge, the circuit court sentenced Pittman to
fifteen years of initial confinement and ten years of extended supervision. 2 For
being a felon in possession of a firearm, the circuit court imposed a consecutive
sentence of five years of initial confinement and five years of extended
supervision.
2
There appears to be an error in the judgment of conviction. Despite the circuit court’s
oral sentencing pronouncement, the written judgment of conviction indicates that Pittman was
sentenced on count one to fifteen years of initial confinement and five years of extended
supervision. See State v. Prihoda,
2000 WI 123, ¶29
,
239 Wis. 2d 244
,
618 N.W.2d 857
(“In
Wisconsin, an unambiguous oral pronouncement of sentence controls over a written judgment of
conviction.”). We direct the circuit court to correct this scrivener’s error in the judgment of
conviction upon remittitur. See id., ¶¶26-27.
3
No. 2018AP2125-CR
¶8 Pittman subsequently filed a postconviction motion seeking a new
trial on grounds that he had newly discovered evidence.3 He also argued that his
trial counsel was ineffective and, in the alternative, requested a Machner hearing.4
Following an evidentiary hearing where multiple witnesses testified, the circuit
court adopted the State’s findings of fact and conclusions of law and denied the
motion. Pittman appeals.
II. DISCUSSION
A. Trial counsel was not ineffective.
¶9 Pittman continues to argue that he received ineffective assistance
from trial counsel. “Wisconsin applies the two-part test described in Strickland
[v. Washington,
466 U.S. 668
(1984),] for evaluating claims of ineffective
assistance of counsel.” State v. Roberson,
2006 WI 80, ¶28
,
292 Wis. 2d 280
,
717
N.W.2d 111
. That test requires that a defendant show that his trial counsel’s
performance was deficient and that the deficiency prejudiced the defense.
Strickland,
466 U.S. at 687
. “A court need not address both components of this
inquiry if the defendant does not make a sufficient showing on one.” State v.
Smith,
2003 WI App 234, ¶15
,
268 Wis. 2d 138
,
671 N.W.2d 854
.
¶10 Our standard of review for ineffective assistance of counsel claims
presents “a mixed question of law and fact.” State v. Johnson,
153 Wis. 2d 121
,
3
Pittman additionally raised an issue in his postconviction motion related to the
reliability of cell tower evidence, which he has abandoned on appeal. See A.O. Smith Corp. v.
Allstate Ins. Cos.,
222 Wis. 2d 475, 493
,
588 N.W.2d 285
(Ct. App. 1998) (“[W]hen a party fails
to argue an issue in its main appeal brief, the appellate court may treat the issue as having been
abandoned, even though the issue was presented to the [circuit] court.”).
4
See State v. Machner,
92 Wis. 2d 797, 804
,
285 N.W.2d 905
(Ct. App. 1979).
4
No. 2018AP2125-CR
127,
449 N.W.2d 845
(1990). The findings of fact made by the circuit court, “‘the
underlying findings of what happened,’ will not be overturned unless clearly
erroneous.”
Id.
(citation omitted). However, “[t]he ultimate determination of
whether counsel’s performance was deficient and prejudicial to the defense are
questions of law which this court reviews independently.”
Id. at 128
.
¶11 “To prove constitutional deficiency, the defendant must establish
that counsel’s conduct falls below an objective standard of reasonableness.”
State v. Love,
2005 WI 116, ¶30
,
284 Wis. 2d 111
,
700 N.W.2d 62
. For this
assessment, we must make “every effort ... to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” State v. Carter,
2010 WI 40, ¶22
,
324 Wis. 2d 640
,
782 N.W.2d 695
(quoting Strickland,
466 U.S.
at 689
; ellipses in Carter). To prove prejudice, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland,
466
U.S. at 694
.
¶12 “Counsel’s decisions in choosing a trial strategy are to be given great
deference.” State v. Balliette,
2011 WI 79, ¶26
,
336 Wis. 2d 358
,
805 N.W.2d
334
. In fact, “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.”
Id.
(quoting
Strickland,
466 U.S. at 690
). Even if a decision of counsel is “made with less than
a thorough investigation,” it “may be sustained if reasonable, given the strong
presumption of effective assistance and deference to strategic decisions.”
Balliette,
336 Wis. 2d 358, ¶26
.
5
No. 2018AP2125-CR
¶13 Pittman argues that trial counsel was ineffective on four bases,
which we will address in turn. Because Pittman has not satisfied the deficient
performance prong as to any of these assertions, we do not discuss the prejudice
prong of the ineffective-assistance analysis. See Smith,
268 Wis. 2d 138, ¶15
.
(1) Cynthia Smith
¶14 Pittman first argues that trial counsel was ineffective for failing to
call Cynthia Smith as an alibi witness.5 We resolve this issue on the ground that
Pittman fails to show deficient performance because there was a strategic benefit
to not calling Cynthia. See United States v. Best,
426 F.3d 937, 945
(7th Cir.
2005) (recognizing that “[a] lawyer’s decision to call or not to call a witness is a
strategic decision generally not subject to review. The Constitution does not
oblige counsel to present each and every witness that is suggested to him”
(brackets in Best; citation omitted)).
¶15 At the evidentiary hearing, trial counsel, who the circuit court found
to be credible, testified that she did not call Cynthia as an alibi witness for a
number of reasons. Trial counsel explained that at the time of trial, Cynthia was
pregnant with Pittman’s child and, consequently, trial counsel had concerns that
the jury would not believe her. Additionally, trial counsel had concerns about
Cynthia’s credibility based on their conversations and her inability to corroborate
Cynthia’s claim about the existence of exculpatory security camera footage.
Lastly, trial counsel was concerned about allegations that Cynthia had attempted to
5
To avoid confusion, we refer to Cynthia Smith as Cynthia and we refer to Nicholas
Smith, who is discussed later in this opinion, as Nicholas.
6
No. 2018AP2125-CR
influence the testimony of one of the State’s witnesses, Laquita Benson.6 Trial
counsel explained that if the jury thought that Cynthia had tried to get Benson to
lie for the defense, it would negatively impact the jury’s view of Cynthia’s
testimony.
¶16 Cynthia, who the trial court found was not credible, explained at the
evidentiary hearing that she was prepared to testify as an alibi witness. Cynthia
said that she was with Pittman the entire night of the crime. Pittman, who the
circuit court found was not credible, likewise testified that he was with Cynthia the
night of the crime and said that trial counsel told him Cynthia would be called as
an alibi witness. Pittman said that he did not agree with trial counsel’s subsequent
decision not to call Cynthia as an alibi witness at trial.
¶17 Pittman challenges trial counsel’s reason for not calling Cynthia to
testify due to her alleged interaction with Benson. Pittman asserts that Benson had
already testified at the point in the trial when Cynthia would have been called.
The issue, however, was not one of timing. Instead, the issue was whether the jury
would find Cynthia’s testimony credible after hearing that she may have attempted
to influence Benson’s testimony. Trial counsel’s conclusion that strategically it
was a bad idea to call Cynthia as a witness for this reason—when considered with
the other credibility concerns Cynthia presented—was reasonable.
¶18 Relying on Tolivar v. Pollard,
688 F.3d 853
(7th Cir. 2012), Pittman
also argues that Cynthia’s testimony would have impeached the testimony of
Nicholas Smith, who was a key witness for the State. The State submits that
6
Benson testified at trial that she sold a phone with the number 870-3320 to Pittman.
Benson also testified that Cynthia had contacted her and told her to deny having done so.
7
No. 2018AP2125-CR
Pittman’s reliance on Tolivar is misplaced and the holding in that case does not
apply to the circumstances presented. Pittman does not refute this in his reply and,
therefore, concedes this facet of his argument. See Charolais Breeding Ranches,
Ltd. v. FPC Secs. Corp.,
90 Wis. 2d 97, 109
,
279 N.W.2d 493
(Ct. App. 1979)
(stating that failure to refute an argument constitutes a concession).
¶19 Pittman failed to show deficient performance on this basis where
trial counsel decided that the dangers of calling Cynthia outweighed the possible
benefits. This determination fell “within the wide range of reasonable professional
assistance.” See Strickland,
466 U.S. at 689
.
(2) Security camera footage
¶20 Next, Pittman argues that trial counsel was ineffective for not calling
the apartment manager for Cynthia’s apartment building to testify that she viewed
a video showing that Pittman’s car entered the garage prior to the offense and did
not leave until the next day, after the shooting. He further contends that trial
counsel was ineffective for not securing the video.
¶21 At the evidentiary hearing, Cynthia testified that the apartment
manager told her that the video showed that Pittman’s car entered the apartment
garage before the crime occurred and left the garage after. Cynthia said that she
tried to pick up the tape but was told it would only be provided to an attorney. She
told trial counsel to get the tape but testified that trial counsel never did so.
Cynthia acknowledged that she had never viewed the video herself.
¶22 Pittman similarly testified that he told trial counsel to get the tape
but she never did so.
8
No. 2018AP2125-CR
¶23 The circuit court found that trial counsel “attempted to verify the
existence of this video, and was not able to verify that any surveillance video ever
existed that supported [Cynthia]’s claims.” The circuit court additionally found
that trial counsel spoke to the apartment manager who “denied the existence of
such corroborating video and further denied having ever viewed the videos.”
(Bolding omitted.) The circuit court noted that Pittman “has never presented any
evidence to support the existence of this video footage, other than [Cynthia].”
(Bolding omitted.) The circuit court found that Cynthia, however, had never seen
the alleged video and “was not credible during her [evidentiary hearing]
testimony.” (Bolding omitted.)
¶24 Pittman has not established that the video ever existed. See State v.
Smith,
207 Wis. 2d 258, 273
,
558 N.W.2d 379
(1997) (“The defendant has the
burden of proof on both [the deficient performance and the prejudice]
components.”). Without establishing this, his challenge to trial counsel’s
representation rests on speculation, which is insufficient to support a claim of
deficient performance. See State v. Leighton,
2000 WI App 156, ¶38
,
237 Wis. 2d
709
,
616 N.W.2d 126
(explaining that “[a] defendant must base a challenge to
counsel’s representation on more than speculation”).
(3) Advising Pittman not to testify
¶25 Pittman also argues that trial counsel was ineffective for advising
him not to testify on his own behalf at trial. He claims that trial counsel’s reasons
for doing so, namely his prior convictions and the lack of corroborating evidence
for his alibi, were inadequate. He asserts that Nicholas also had prior convictions.
As for the lack of video support, he argues that “most alibi witnesses testify
without a video to back them [up].” Pittman further contends that while he was in
9
No. 2018AP2125-CR
jail awaiting trial, individuals tried to sell him the gun that was involved in the
crime. He claims that if he had testified about this, it would have rebutted
Nicholas’s testimony that Pittman brought a gun with him prior to the crime.
¶26 Trial counsel testified at the evidentiary hearing that she did not have
Pittman testify because he had six prior convictions and because of his connection
to a phone number that related to the crime. That phone number accessed cell
towers near the crime, and when he was arrested, Pittman provided the phone
number to the police. According to trial counsel, Pittman could not give her an
explanation as to why he provided that number, which she believed was
strategically problematic in terms of his credibility. Additionally, trial counsel
was concerned that if Pittman testified that he was with Cynthia when the crime
occurred, the jury would expect her to call Cynthia, which she did not want to do
based on the credibility concerns identified above.
¶27 By making this strategic decision, the jury never learned that Pittman
had prior convictions, which could have prompted it to conclude that he had a
character for untruthfulness and, therefore, was not being truthful in his testimony.
Moreover, it was a reasonable strategy for trial counsel to attack the credibility of
the State’s other evidence instead of presenting evidence that she thought the jury
would not find credible. Again, this determination fell “within the wide range of
reasonable professional assistance.” See Strickland,
466 U.S. at 689
.
(4) Hearsay
¶28 The State argued at trial that Pittman and others conspired to assist
Cameron in the armed robbery that resulted in Setum’s death. Pittman submits
that trial counsel was ineffective for not objecting to Nicholas’s testimony that
Cameron told Pittman to meet them with a gun because they were going to rob
10
No. 2018AP2125-CR
Setum. According to Pittman, Nicholas’s testimony “was clearly hearsay” to
which trial counsel should have objected, and it was not admissible as a statement
by a co-conspirator. Pittman contends that this was the only evidence that was
presented that he conspired to commit the armed robbery.
¶29 The testimony at issue is the following:
[State] Okay. So [Pittman] gets into your car, he
hands [Cameron] a gun. Did you know why
he was walking into your car with a gun at
that point?
[Nicholas] Yes.
[State] And what was the reason?
[Nicholas] [Cameron] must have talked to [Pittman]
and they talked about it. He wanted to get
[Setum] so [Pittman] met us over there on
12th and Walnut, and I followed them to
21st. He hopped in with us with the gun
because there wasn’t no gun in the car.
[Cameron] had the gun at the time.
The State clarified:
[State] So just so we are clear now. Thomas Cage
is out. He is drunk. He is out with his girl.
When you stated that you knew the point—
When you stated that you testified that you
knew the reason why [Pittman] was bringing
a gun is because [Cameron] had called him
and they wanted to rob [Setum] or basically
to commit a robbery of Russell Setum, how
did you know that?
[Nicholas] [Cameron] told me.
¶30 When questioned about the testimony at the evidentiary hearing, trial
counsel explained she believed it fell under an exception to the hearsay rule
because it was a statement by a co-conspirator.
11
No. 2018AP2125-CR
¶31 Pursuant to WIS. STAT. § 908.01(4)(b)5., “[a] statement by a
co[-]conspirator of a party during the course and in furtherance of the conspiracy”
is not hearsay. Pittman does not argue that Cameron’s statement to Nicholas was
not made in furtherance of a conspiracy. Instead, he argues that Cameron’s
statement to Nicholas was inadmissible hearsay and cannot be bootstrapped as a
statement of a co-conspirator without other evidence of the conspiracy.
¶32 In State v. Dorcey,
103 Wis. 2d 152, 157-58
,
307 N.W.2d 612
(1981), our supreme court forbade the use of a co-conspirator’s hearsay statement
unless it has first been independently established that a conspiracy exists, because
to hold otherwise would be to allow incompetent hearsay evidence to “lift itself by
its own bootstraps to the level of competent evidence.” (Citation omitted.)
Dorcey relied upon Glasser v. United States,
315 U.S. 60
(1942). However, the
United States Supreme Court overturned Glasser in Bourjaily v. United States,
483 U.S. 171
(1987). In State v. Whitaker,
167 Wis. 2d 247
,
481 N.W.2d 649
(Ct.
App. 1992), we explained that “[WIS. STAT. § ] 901.04(1) … vitiates Dorcey’s
adoption of the Glasser rule. We thus … hold that [§] 901.04(1) permits an out-
of-court declaration by a party’s alleged co-conspirator to be considered by the
[circuit] court in determining whether there was a conspiracy.” Whitaker,
167
Wis. 2d at 262
.
¶33 Given that Dorcey’s anti-bootstrapping rule was superseded by
statute, it was reasonable for trial counsel to think that Cameron’s statement was
not hearsay because it was a statement of a co-conspirator in furtherance of the
conspiracy. See State v. Weber,
174 Wis. 2d 98, 115
,
496 N.W.2d 762
(Ct. App.
1993) (emphasizing “that the test for effective assistance of counsel is not the legal
correctness of counsel’s judgments, but rather the reasonableness of counsel’s
12
No. 2018AP2125-CR
judgments under the facts of the particular case viewed as of the time of counsel’s
conduct”).
¶34 Moreover, as the State highlights, even if the anti-bootstrapping rule
was still in effect, Cameron’s out-of-court statement was not the only evidence
that Pittman was part of a conspiracy to rob Setum. See Whitaker,
167 Wis. 2d at
262
(“A statement by a co-conspirator is in furtherance of the conspiracy if it
reassures and keeps the other participants cohesive in their illegal endeavor, or
apprises them of developments.”).7 Nicholas testified: (1) Cameron said to
Nicholas that he wanted to “get” Setum, meaning rob Setum of his truck or rims;
(2) Pittman got into Nicholas’s car and handed a gun to Cameron; (3) Nicholas
stopped his car by Setum’s truck; (4) Setum got into his truck and drove away;
(5) Nicholas’s car stopped at a red light, so Pittman called Anthony “Peewee”
Perkins, who was also following Setum’s truck, to see where the truck had gone;
(6) Cameron spoke to someone over the phone and learned where Setum was
likely headed; (7) Nicholas dropped off Cameron in that location, and Cameron
still had the gun from Pittman; (8) Nicholas drove to a gas station, saw Setum
there, and talked to him; (9) Pittman remained in Nicholas’s car at the gas station
and talked to Perkins and Cameron on the phone; (10) Setum left the gas station;
(11) Nicholas and Pittman drove to Setum’s house; and (12) Cameron shot Setum
outside of Setum’s house.
7
Pittman submits that there was no other evidence showing that he knew the gun
Nicholas said he provided would be used in an armed robbery. There was no requirement for
corroboration of that specific facet of Cameron’s statement. Rather, “[t]he requisite ‘conspiracy’
under [WIS. STAT. §] 908.01(4)(b)(5) … is concerted action[.]” See State v. Whitaker,
167
Wis. 2d 247, 262
,
481 N.W.2d 649
(Ct. App. 1992).
13
No. 2018AP2125-CR
¶35 We are not persuaded by Pittman’s contention that this list of events
“show no more participation of Pittman than if Nicholas Smith picked up a
hitchhiker.” Instead, this evidence connected Pittman to the conspiracy to rob
Setum. It was reasonable for trial counsel to think that Cameron’s out-of-court
statement was admissible even if the anti-bootstrapping rule had been in effect.8
B. Pittman has not satisfied the requirements for newly discovered
evidence.
¶36 Pittman reiterates his argument that he is entitled to a new trial
because of newly discovered evidence—a postconviction affidavit by his former
girlfriend, Lakeya Coleman, suggesting that 870-3320 was not Pittman’s phone
number at the time of the crime.9 This phone number accessed cell towers near
the crime, and when he was arrested, Pittman told police that it was his phone
number.
¶37 “The decision to grant or deny a motion for a new trial based on
newly discovered evidence is committed to the circuit court’s discretion.” State v.
Avery,
2013 WI 13, ¶22
,
345 Wis. 2d 407
,
826 N.W.2d 60
. “A circuit court
erroneously exercises its discretion when it applies an incorrect legal standard to
newly[]discovered evidence.” State v. Plude,
2008 WI 58, ¶31
,
310 Wis. 2d 28
,
750 N.W.2d 42
.
8
To the extent that Pittman also challenges Nicholas’s testimony on the basis that it was
a conclusion and a response to a leading question, his argument is undeveloped. As a result, we
will not consider it further. See State v. Pettit,
171 Wis. 2d 627, 646-47
,
492 N.W.2d 633
(Ct.
App. 1992).
9
Lakeya Coleman is identified as Lakeya Coleman-Hamilton at various points in the
record. For purposes of this decision, we refer to her as Lakeya Coleman.
14
No. 2018AP2125-CR
¶38 In order to warrant a new trial, newly discovered evidence must
meet the following requirements: “(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
(citations and one set of quotation
marks omitted). If the defendant establishes the first four requirements, then a
court determines, as a fifth requirement, “whether a reasonable probability exists
that a different result would be reached in a trial.”
Id.
(citation omitted). This
determination is a question of law. Plude,
310 Wis. 2d 28, ¶33
.
¶39 At Pittman’s trial, Benson testified that she sold Pittman a phone that
had the phone number 870-3320. Pittman submits that this was an important fact
at trial because the State produced records showing that that phone number called
Cameron’s phone and the phone was tracked to the crime scene.
¶40 At the evidentiary hearing, Coleman, who the trial court found was
not credible, testified that she was dating Pittman on the date of the crime and
when he called her, Pittman did not have the phone number 870-3320. Although
she initially denied it, during cross-examination, Coleman admitted that Benson
told her she gave Pittman a phone. The circuit court concluded that “the testimony
of Ms. Coleman is not ‘newly discovered evidence’ as it was known to the
defendant prior to both his trial and his conviction.”
¶41 Pittman relies on the fact that the affidavit post-dates his trial and
asserts that the knowledge that Coleman could provide exculpatory testimony
about the phone number came to him after the trial. On appeal, the State assumes
for the sake of argument that Pittman has satisfied the third and fourth
15
No. 2018AP2125-CR
requirements of the newly discovered evidence test. Therefore, only the first,
second, and fifth requirements are at issue.
¶42 We focus our attention on the fifth requirement. See State v. Eckert,
203 Wis. 2d 497, 516
,
553 N.W.2d 539
(Ct. App. 1996) (holding that a newly
discovered evidence claim fails unless it meets all of the requirements). The
circuit court found that Coleman “did not appear credible and testified contrary to
an earlier sworn affidavit filed in this case.” The circuit court additionally
described Coleman’s testimony as confusing. In light of these findings, there is no
reasonable probability of a different outcome on retrial. See State v. Carnemolla,
229 Wis. 2d 648, 661
,
600 N.W.2d 236
(Ct. App. 1999) (explaining that the circuit
court decides the credibility of the witnesses, and a finding of a reasonable
probability of a different outcome on retrial cannot be supported by testimony the
circuit court finds incredible). Accordingly, we affirm Pittman’s judgment of
conviction and the denial of his postconviction motion.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
16Case Information
- Court
- Wis. Ct. App.
- Decision Date
- October 29, 2019
- Status
- Precedential