Submitted on Briefs: oral argument: January 11, 2018
of a decision of the court of appeals. Affirmed.
of Appeal Circuit Court Racine county (L.C. No. 2005CF0324),
Emily S. Mueller, Judge
the defendant-appellant-petitioner, there were briefs filed
by Robert R. Henak, Ellen Henak, and Henak Law Office, S.C.,
Milwaukee. There was an oral argument by Robert R. Henak.
the plaintiff-respondent, there was a brief filed by Scott E.
Rosenow, assistant attorney general, and Brad D. Schimel,
attorney general. There was an oral argument by Scott E.
PATIENCE DRAKE ROGGENSACK, C.J.
In January 2 0 07, a jury convicted David McAlister, Sr.
("McAlister") of attempted armed robbery (threat of
force), armed robbery (threat of force) and possession of a
firearm by a felon for crimes that occurred in late 2004. At
trial, the State presented testimony from Nathan Jefferson
("Jefferson") and Alphonso Waters
("Waters"). They testified that McAlister was their
accomplice in the robberies.
In 2014, McAlister filed the Wis.Stat. § 974.06 motion
for a new trial that is now before us. He alleged that he had
newly discovered evidence represented by the affidavits of
three men who allege that Jefferson and Waters lied when they
testified that McAlister was involved in the crimes for which
he was convicted. The circuit court denied McAlister's
motion without an evidentiary hearing, and the court of
Our review focuses on whether McAlister has provided newly
discovered evidence that is sufficient to require the circuit
court to hold an evidentiary hearing. In so doing, we
consider whether the affidavits McAlister submitted in
support of his motion meet the requirements necessary to
qualify as newly discovered evidence. We specifically examine
whether the affidavits were cumulative evidence and whether
they were uncorroborated evidence for which corroboration
should be required.
We conclude that the affidavits were merely cumulative
evidence because they were additional evidence of the same
general character as was subject to proof at trial, i.e.,
that Jefferson and Waters lied when they implicated McAlister
in order to achieve favorable plea bargains for themselves.
We also conclude that the affidavits were insufficient to
require the circuit court to hold a hearing on
McAlister's motion for a new trial because they were
supported by neither newly discovered corroborating evidence
or circumstantial guarantees of trustworthiness. Therefore,
the circuit court did not erroneously exercise its discretion
when it denied McAlister's motion for a new trial without
an evidentiary hearing. State v. Avery, 2013 WI 13,
¶22, 345 Wis.2d 407, 826 N.W.2d 60');">826 N.W.2d 60. Accordingly, we
affirm the court of appeals' affirmance of the circuit
The two crimes of which McAlister was convicted occurred in
December 2004 in the City of Racine. On December 21, Nathan
Jefferson and Monique McAlister ("Monique")
attempted an armed robbery of the Catholic Community Credit
Union (the "Credit Union"). When the Credit Union's
security alarms began to ring, Jefferson and Monique ran from
the scene without any money. On December 28, Waters,
Jefferson and Monique committed an armed robbery at Wisconsin
Auto Title Loan ("Title Loan").
Police arrested Waters and Jefferson separately in March 2005
for robberies unrelated to the December 2004 robberies.
Waters was questioned by Racine Police Investigator William
Warmington regarding an armed robbery that occurred at an
Open Pantry. Waters initially denied any knowledge or
involvement, but after being confronted with video footage
that Warmington indicated matched the description of one of
the offenders, Waters admitted that he had been involved.
Waters told Warmington that McAlister had planned the robbery
at Title Loan and served as the getaway driver. Waters
described in detail the location of and the interior of
McAlister's home, including where the gun used in the
Title Loan robbery could be found.
Upon his arrest, Jefferson told police that McAlister had
planned each of the December robberies, served as the getaway
driver and provided the gun he carried at the Credit Union.
Based on the information obtained from Waters and Jefferson,
police obtained a search warrant for McAlister's
residence, where they found a .22-caliber handgun. McAlister,
who is a convicted felon, was arrested.
At McAlister's trial, Waters testified on behalf of the
State. He testified that shortly before December 28, 2004,
McAlister had driven Waters to Title Loan, where he
instructed Waters how to conduct the robbery. On December 28,
McAlister picked up Waters in a gray Hyundai, a picture of
which was received as Exhibit 4 and then picked up Monique
After testifying that the gun the police took from
McAlister's house, which had been marked as Exhibit 11,
was "very familiar, " Waters described the robbery
itself. On cross-examination, defense counsel repeatedly
attacked Waters' credibility. Defense counsel hammered on
Waters' history of lying to police, calling attention to
Waters' initial statements to police after his March 2005
Q. You denied that you robbed the Open Pantry?
Q. You told them: No, I didn't. I had no involvement with
Q. Then they told you that they had video of the robbery?
Q. And that they believed you were the guy that did it?
Q. You knew then that the detectives had solid evidence
establishing that you had committed an armed robbery?
Q. At that point in time, you asked the detectives: What am I
Q. And by that you meant, how much prison time am I going to
get for having done this armed robbery?
Q. Then you asked them, quote, what can I tell you to help
A. If I -- yeah. If I did, instinct I did because I knew that
I was in trouble. I didn't know, you know, what was
really going on. So you know, yeah, I was looking for help.
Q. You are willing to lie to keep yourself out of jail?
A. Well, out of instinct because I've -- I've been
arrested so many times, 13 times, and when they -- when I
seen that I was in trouble, of course, yes. I -- I didn't
want to be in trouble. I was trying to talk my way out of it,
Q. Now, the whole reason that you started to ask them about
what you could do to help yourself and will they give me a
break if I tell something, is you wanted to make a deal,
A. No. I knew that by being honest -- because I've dealt
with the court system for so long, I knew if I was being
honest, that things would be easier on me in the long run
because the more you lie, the more trouble you get into. So I
wanted to clear things up at that time.
Q. Now, you are aware that in November . . . November 10th,
of 2003, you came into contact with police at that point. It
was an Officer Stehlow who had asked you your name, and at
that point in time you told him your name was Steve Jordan,
A. I don't remember that. [Defense counsel refreshes
Q. Okay. Now that you've reviewed that, you recall that
in November of '03, you were confronted by this police
A. Yes. And I obstructed by telling him a different name,
Q. Now, on October 30th, of 1998, do you recall being again
confronted by the police and identifying yourself as Steve
Morris, with a date of birth 12/6 of ' 68?
[Defense counsel refreshes Waters' recollection].
A. I obstructed. I gave a false name.
Q. On July 19th, of 1998, do you recall having been
confronted by the police and identifying yourself as Marcus
L. Booker, date of birth 12/16 of '69?
A. Not that I recall.
[Defense counsel refreshes Waters' recollection].
Q. Okay. You agree with me that on this day you lied to the
police, gave them the name Marcus Booker, date of birth
Q. And again, the whole reason that you lied was to try to
keep yourself out of jail?
Q. That's something that you are willing to do?
A. At those moments, yes.
Q. But not at this moment?
A. Those were the past. This is the future.
Q. When did the future begin?
A. The day that I got arrested.
Q. So for the first time in your career, first time in your
adult life that you decided that things were going to be
different and now you're going to tell the truth, was
when you were arrested by ...