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State v. McAlister

Supreme Court of Wisconsin

April 17, 2018

State of Wisconsin, Plaintiff-Respondent,
David McAlister, Sr., Defendant-Appellant-Petitioner

          Submitted on Briefs: oral argument: January 11, 2018

         REVIEW of a decision of the court of appeals. Affirmed.

          Source of Appeal Circuit Court Racine county (L.C. No. 2005CF0324), Emily S. Mueller, Judge

          For 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.

          For 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. Rosenow.


         ¶1 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.

         ¶2 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[1] denied McAlister's motion without an evidentiary hearing, and the court of appeals affirmed.[2]

         ¶3 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.

         ¶4 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 court.

         I. BACKGROUND

         ¶5 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").[3] 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").

         ¶6 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.

         ¶7 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.

         ¶8 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 and Jefferson.

         ¶9 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 arrest.

Q. You denied that you robbed the Open Pantry?
A. Yes.
Q. You told them: No, I didn't. I had no involvement with that?
A. Yes.
Q. Then they told you that they had video of the robbery?
A. Yes.
Q. And that they believed you were the guy that did it?
A. Right.
Q. You knew then that the detectives had solid evidence establishing that you had committed an armed robbery?
A. Yes.
Q. At that point in time, you asked the detectives: What am I looking at?
A. Right.
Q. And by that you meant, how much prison time am I going to get for having done this armed robbery?
A. Yeah.
Q. Then you asked them, quote, what can I tell you to help me, right?
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, yes.
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, right?
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, correct?
A. I don't remember that. [Defense counsel refreshes Waters' recollection].
Q. Okay. Now that you've reviewed that, you recall that in November of '03, you were confronted by this police officer?
A. Yes. And I obstructed by telling him a different name, yes.
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 11/18/69?
A. Yes.
Q. And again, the whole reason that you lied was to try to keep yourself out of jail?
A. Yes.
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 ...

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