COURT OF APPEALS DECISION DATED AND FILED May 17, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Jimmie Johnson, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Jimmie Johnson appeals from an order denying his motion for a new trial based on newly-discovered evidence. Because Johnson does not demonstrate that the evidence he relies on would raise a reasonable doubt about his guilt, we affirm.
BACKGROUND
¶2 In 2001, a jury found
Johnson guilty of two counts of first-degree reckless homicide as a party to a
crime, three counts of first-degree recklessly endangering safety as a party to
a crime, and one count of possessing a firearm as a felon. The charges all arose from a shooting
incident in
¶3 In 2009, Johnson filed the postconviction motion underlying this appeal. He alleged that newly-discovered evidence warrants a new trial. In support, Johnson submitted the statement of Andre Hill. Hill first contacted Johnson in 2008 while Hill was incarcerated, and Hill gave a statement to Johnson’s investigator during that same year. Hill asserted in his statement to the investigator that he was outside the Cream City Tavern in September or October of 2000 when he heard gun shots and saw Kevin Smith holding a gun. Hill claimed that he drove Smith from the scene, and Smith admitted that he “shot into a crowd.” Hill further reported hearing Smith brag on approximately thirty occasions about committing the homicides at the tavern.
¶4 Hill’s statement included a description of Hill’s relationship with Smith. Hill stated that the two men were formerly close friends. Hill, however, now believes that Smith is the confidential informant whose disclosures to the police led to Hill’s arrest for narcotics offenses. Hill is presently serving a sixteen-year prison sentence for those offenses, and he no longer has any contact with Smith.
¶5 The circuit court entered a decision and order without a hearing denying Johnson’s motion for a new trial. Johnson appeals.
DISCUSSION
¶6 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.
(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.’”
¶7 On appeal, as in the circuit court, the State concedes that
Johnson has proved the first four criteria necessary to obtain a new
trial. The State maintains, however, that
Hill’s statement would not raise a reasonable doubt at trial about Johnson’s
guilt. Our review is de novo.
¶8 We begin by considering the evidence of Johnson’s guilt presented by the State at trial. First, the State presented Johnson’s confession. In that confession, Johnson admitted shooting into a crowd gathered at the Cream City Tavern. He described the clothing that he wore at the time: a gray hooded sweatshirt, black jeans, and a brown baseball cap. He admitted a motive for the crimes: people at the tavern were laughing at him because a woman bumped into him and gave him a bloody nose, so he fired into the crowd to retaliate for the ridicule.
¶9 Numerous witnesses corroborated Johnson’s confession. Shyrell Caldwell testified that he owned the
Cream City Tavern and that he knew Johnson by name. According to
¶10 Vicko
¶11 Terry Farmer, another tavern employee, saw people in front of the tavern teasing a man wearing a gray shirt, jeans, and a tan hat. Farmer saw that the man was bleeding, and Farmer heard the man say, “I should get something started.” Shortly thereafter, Farmer heard gunshots. After the shooting stopped, Farmer saw the man in the gray shirt standing up while everyone else was on the ground or fleeing, and Farmer heard the man say, “[t]here’s something started now.”
¶12 Timothy Williams, one of the victims, told the jury that he and Johnson first met in middle school. Williams saw Johnson bleeding in front of the tavern, and Williams spoke briefly to Johnson at that time. When Williams turned away from Johnson, Williams was shot in the back of the leg.
¶13 The State also presented the testimony of Clinton Harrison, a
¶14 We turn to an examination of Hill’s statement, the only evidence that Johnson offered to support his motion for a new trial. Hill claimed that he saw Smith, not Johnson, outside of the Cream City Tavern on the night of the homicides and that Smith had a gun. Hill additionally claimed that he heard Smith confess to the homicides on multiple occasions. Our review discloses that Hill did not claim that he saw Smith fire the gun. Further, Hill’s statement posited no motive for the shooting, but rather reflected that Hill “was upset that [Smith] shot people and shot them for no reason.” Additionally, Hill’s statement suggests that Hill has a basis for harboring hostility towards Smith, because Hill believes that he is serving a substantial prison sentence due to Smith’s actions.
¶15 The circuit court properly exercised its discretion when it
rejected Johnson’s claim for a new trial.
A circuit court may deny a postconviction motion without a hearing if
the record conclusively demonstrates that the defendant is not entitled to
relief.
By
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2009-10).