State v. Andre D. Stackhouse

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.
February 11, 2020
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. 2018AP819-CR Cir. Ct. No. 2014CF932

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANDRE D. STACKHOUSE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Outagamie County: VINCENT R. BISKUPIC, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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).

¶1 PER CURIAM. Andre Stackhouse, who was captured on video
stabbing an individual in a nightclub in front of a police officer, was convicted after
No. 2018AP819-CR

a jury trial of attempted first-degree intentional homicide and aggravated battery,
both with a penalty enhancer for the use of a dangerous weapon during the
commission of the offense. He seeks a new trial based on over a dozen claims of
ineffective assistance of counsel. We conclude that none of the claims are
meritorious and affirm.

BACKGROUND

¶2 Following two attorney changes (neither of which were requested by
Stackhouse), the Office of the State Public Defender appointed attorney Rodman
Streicher to represent Stackhouse in connection with the charges in this case. The
appointment was effective March 24, 2015. On June 4, 2015, Stackhouse notified
the circuit court of his intent to pursue a self-defense jury instruction. A three-day
jury trial commenced on June 23, 2015, at the conclusion of which the jury found
Stackhouse guilty of both offenses.

¶3 The victim, James, did not testify at trial.1 The State presented
evidence that two groups consisting of many familial-related individuals had
traveled from Green Bay, on two different party buses, to the Antro Nightclub in
Appleton. James was celebrating his wedding anniversary on one of the buses; Don,
James’s brother, was celebrating his birthday on the other bus. The brothers were
not on speaking terms at the time the two groups arrived at Antro, and Don was seen
arguing with Jonathan Moore, a member of James’s group, while at the club.

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2017-18), we use
pseudonyms to identify the victim and his immediate family members.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.

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¶4 A physical altercation occurred between the brothers, and after James
walked away from the fight, Stackhouse was overheard telling Moore “I’m going to
knock this nigga out,” referring to Don. Club security eventually required
Stackhouse, Moore and two other members of James’s group, Jimmy Flemming and
David Atterberry, to leave the club. They all left through the front door but then
went around the block and re-entered the club through its back door.

¶5 When they returned to the club, Stackhouse, Moore and Flemming
“rushed” Don near a dance floor and began fighting with him. Rachel, who is Don
and James’s sister, testified she saw Stackhouse fidgeting near his pocket during the
altercation and thought he might have had a firearm. Don was punched and went to
his knees, at which point James intervened and defended his brother. Stackhouse,
who was captured on surveillance video wielding a knife earlier in the evening, was
witnessed standing over Don with the knife drawn.

¶6 James then intervened to protect Don, and Flemming, Moore and
Stackhouse began beating James. Video footage from Antro’s security system was
introduced into evidence at trial. The video depicted Stackhouse kicking Don while
Don was on the ground. James then intervened to protect Don and was pushed by
Moore. Stackhouse swung a fist at James’s face, and James then punched him.
Stackhouse and James separated briefly, and then Stackhouse lunged at James in a
stabbing motion and pointed at him in a gun-like fashion before James was knocked
to the ground out of the camera’s view. The video depicted Stackhouse kicking in
James’s direction, as well as making repeated stabbing motions with a pointed
object in his hand in the direction in which James fell. Don then intervened and
punched Stackhouse in the mouth.

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¶7 A law enforcement officer witnessed Stackhouse’s knife attack on
James. Jay Steinke, a lieutenant with the Appleton Police Department, testified he
had responded to a complaint regarding the initial incident, following which
Stackhouse and others were asked to leave Antro. After speaking with security
personnel in the front of the club, Steinke went around the block in the same path
that Stackhouse and the others had taken. Steinke heard another officer radio that
the fight had resumed inside Antro, and he entered through the back door of the
club.

¶8 Steinke testified that after he entered, he saw the fight in front of him
on the dance floor and approached the scuffle. Stackhouse immediately caught
Steinke’s attention because he was “taking some humongous, wide, very vicious
strikes with his right hand” toward a person in front of him. Steinke further
elaborated that he noticed Stackhouse had a knife in his right hand and was swinging
in a “very vicious, wide-swinging manner” at the victim’s torso area. James
ultimately suffered multiple stab wounds and was severely injured in the knife
attack.

¶9 Steinke deployed his taser to subdue Stackhouse. Don was also tased
at approximately the same time as Stackhouse after refusing to comply with officers
at the scene. Stackhouse dropped the knife upon being tased, and Steinke recovered
it as soon as Stackhouse had been placed in handcuffs. James’s DNA was identified
in the blood found on the knife. Stackhouse was later arrested at the hospital, at
which time police discovered a knife sheath on the right side of his belt.

¶10 Stackhouse’s defense counsel framed the case as being “about
self-defense, pure and simple.” The defense theory was that what had been a fist
fight escalated when James, brandishing his own knife, had attempted to stab

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Stackhouse in the stomach, prompting Stackhouse to defend himself. The defense
highlighted portions of a cell phone video of the incident just before James was
stabbed, which the defense argued conclusively showed James making a stabbing
motion toward Stackhouse. Atterberry and another witness testified that they saw
James make a lunging motion at Stackhouse before Stackhouse retaliated, and
Atterberry testified he saw James was holding a knife during this motion.2 James’s
wife, Jennifer, testified that other people in the crowd had weapons, and the defense
also introduced evidence that James was heavily intoxicated and had a reputation
for being aggressive when he was drinking.

¶11 Stackhouse filed a postconviction motion for a new trial based on
ineffective assistance of counsel. Stackhouse raised sixteen alleged instances of
ineffective assistance, including that his trial counsel had failed to effectively
cross-examine certain of the State’s witnesses, had failed to call important witnesses
as part of the defense case, and had erroneously instructed Stackhouse not to testify.
In all, Stackhouse’s allegations were directed at the notion that others present at the
club had weapons, and they may have inflicted the wounds for which Stackhouse
was charged.

¶12 The circuit court held a Machner3 hearing on the motion, at which
Streicher testified that he had become certified to handle Class B felonies shortly
before Stackhouse’s trial and had once before handled a self-defense claim at trial.
Streicher testified that based on the strength of the State’s case, which included an

2
Atterberry, Stackhouse’s older brother, was the only witness to testify that he saw James
with a knife, and his testimony was impeached by a police detective who said that Atterberry never
mentioned anyone attacking Stackhouse or having a knife during an interview shortly after the
incident.
3
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2018AP819-CR

eyewitness to the attack and a video of the same, he felt the best strategy was to
address the evidence “head on” and argue that Stackhouse’s use of force was legally
justified.

¶13 The circuit court denied Stackhouse’s postconviction motion,
concluding there was “no evidence … including video or police reports showing
anyone attacking [James] either before or after Mr. Stackhouse was Tased by
Lieutenant Steinke.” Among other bases for rejecting Stackhouse’s various
arguments, the court determined that Streicher’s decision to pursue self-defense was
a deliberate trial strategy that was reasonably based upon the evidence in the parties’
possession. The court found that two significant witnesses, Flemming and Moore,
might have been helpful to Stackhouse but could not be located, consistent with
Stackhouse’s statement to Streicher that they would not be found if they did not
want to be. The court also noted that many of the statements Stackhouse claimed
should have been introduced at trial had significant hearsay problems that were not
likely to be overcome. The court’s decision also covered many other aspects of
Stackhouse’s motion, some of which the court noted had been only minimally
developed.

¶14 Stackhouse filed a notice of appeal, which we dismissed based upon
Stackhouse’s representation that he had discovered new evidence that he wished to
present to the circuit court. Stackhouse then filed a “second supplemental brief”
and accompanying motion to reconsider the denial of his postconviction motion.
Stackhouse primarily centered his renewed motion on the cell phone video that had
been played at trial, contending that a portion of the video showing “another man in
combat with the alleged victim” was never played for the jury. The circuit court
denied the renewed motion following additional evidentiary hearings, concluding

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Streicher was not deficient, nor was Stackhouse prejudiced by any alleged errors.
Stackhouse now appeals.

DISCUSSION

¶15 Both the state and federal constitutions guarantee a criminal defendant
the right to the effective assistance of counsel. State v. Breitzman, 2017 WI 100,
¶37, 378 Wis. 2d 431, 904 N.W.2d 93. To demonstrate that counsel’s assistance
was ineffective, the defendant must show that counsel performed deficiently and
that the deficient performance was prejudicial. Id. (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). To demonstrate deficient performance,
the defendant must show that counsel’s representation was objectively unreasonable
under the circumstances. Strickland, 466 U.S. at 687. Prejudice requires the
defendant to show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Breitzman, 378 Wis. 2d 431, ¶39. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. (citing State v. Thiel, 2003
WI 111, ¶20, 264 Wis. 2d 571, 665 N.W.2d 305).

¶16 Whether a defendant was denied the effective assistance of counsel is
a mixed question of fact and law. Id., ¶37. “The factual circumstances of the case
and trial counsel’s conduct and strategy are findings of fact, which will not be
overturned unless clearly erroneous; whether counsel’s conduct constitutes
ineffective assistance is a question of law, which we review de novo.” Id. If a
defendant fails to satisfy either prong of the ineffective assistance inquiry, we need
not consider the other. Id.

¶17 Our review in this case has been significantly hindered by the lack of
a coherent organizational structure and developed arguments in Stackhouse’s briefs.

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No. 2018AP819-CR

For example, the brief-in-chief’s first section4 spans twenty-three pages and,
according to its title, concerns only trial counsel’s failure to subpoena or otherwise
attempt to obtain the testimony of certain allegedly “necessary parties.” Yet this
section includes not only allegations concerning missing witnesses; Stackhouse also
raises within it challenges to his trial counsel’s performance regarding the
presentation of the cell phone evidence, alleged failure to introduce medical records,
and alleged failures during cross-examination of witnesses who did testify.
Moreover, Stackhouse jumps from topic to topic without any apparent transition,
and his brief intersperses in these materials quotations from other cases without any
apparent context. While we have done our best to distill Stackhouse’s central
arguments from his chaotic briefing (as categorized below), any fault for our failure
to address any particular argument Stackhouse wished to have raised is due to the
briefing on appeal. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct.
App. 1992) (observing that we may decline to review issues that are undeveloped
or inadequately briefed).

I. Trial counsel’s self-defense theory was reasonable.

¶18 Stackhouse first argues, in essence, that his trial counsel’s theory of
defense was unreasonable. He asserts the theory of self-defense was contradicted
by the video evidence. This argument is also linked to his assertions that other
necessary witnesses were not called or were inadequately cross-examined regarding
the presence of other weapons at the scene and the nature of James’s injuries. The
premise of Stackhouse’s argument is that counsel should have pursued a defense

First in sequence, at least. Stackhouse’s brief includes two sections labeled with the
4

Roman numeral “I.,” and its table of contents does not subdivide the forty-page argument section.

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No. 2018AP819-CR

that others, not Stackhouse, caused the significant stabbing injuries James suffered
in the attack.

¶19 We easily reject this argument. As Streicher acknowledged at the
Machner hearing, the State’s evidence implicating Stackhouse in the stabbing of
James was quite compelling. Stackhouse was captured on video making repeated
stabbing motions in the victim’s direction, and a police officer saw Stackhouse
commit the stabbing. The officer immediately tased Stackhouse to stop the attack
and then picked up the knife Stackhouse had used, which blade contained James’s
DNA on it. Streicher testified he considered other defenses, including that someone
other than Stackhouse had committed the attack, but, in light of the foregoing, found
them unpersuasive and unlikely to win the day with a jury.

¶20 Rather, Streicher testified he believed the best strategy was to address
the video evidence “head on” and attempt to establish that Stackhouse’s plain use
of force was justified. Streicher was able to support a self-defense theory with two
witnesses who testified that James made a lunging motion at Stackhouse
immediately before he was stabbed. Atterberry testified he saw a knife in James’s
hand at the time, and trial counsel was able to marshal the cell phone video in
support of Stackhouse’s self-defense claim. Streicher successfully obtained a self-
defense instruction based upon Stackhouse’s statements to a police officer that he
was trying to defend himself.

¶21 Counsel’s decisions in choosing a trial strategy are given great
deference. Breitzman, 378 Wis. 2d 431, ¶38. Here, counsel’s decision to pursue
self-defense in an effort to obtain an acquittal is the quintessential definition of a
strategic choice. Given the available evidence, Streicher’s decision to pursue that

9
No. 2018AP819-CR

defense over other defenses he viewed as less compelling was quite reasonable.
Accordingly, Stackhouse’s trial counsel did not perform deficiently in this respect.

¶22 Stackhouse makes various arguments suggesting that an alternate
theory of defense would have been more appropriate. For example, he argues that
evidence that others had knives “establishes the possibility that the wounds in
question were not all caused” by Stackhouse.5 Inconsistently, he also appears to
argue his trial counsel should have pursued a defense more in line with Stackhouse’s
initial statements to police—namely, that he was uninvolved in the stabbing and was
handed the knife by someone just before he was tased.

¶23 Having considered all of Stackhouse’s postconviction allegations, as
well as the evidence available to his trial counsel at the time, the alternate theories

5
This argument appears to be based on a belief that specific wounds James suffered as
part of the stabbing attack were associated with specific charges. More specifically, at the Machner
hearing, postconviction counsel’s questioning revealed his belief that a stab wound that caused a
perforated colon was the basis for the attempted homicide charge, while a stab wound to the
chest/armpit area was the basis for the aggravated battery charge.

This notion of apportioning the wounds was not necessarily the way the case was presented
to the jury, nor did the charges require this level of specificity. Stackhouse was charged with
attempted first-degree intentional homicide, which required the State to prove that he had the intent
to kill and that his conduct would have caused James’s death but for the intervention of another
person or some extraneous factor. See WIS. STAT. §§ 939.32(3); 940.01. Contrary to Stackhouse’s
postconviction theory, the jury could have reasonably concluded that Stackhouse was guilty of this
offense because he would have continued stabbing James had he not been tased by Steinke.
Moreover, any of the more severe stab wounds could have established Stackhouse’s liability for
aggravated battery under WIS. STAT. § 940.19(5).

In short, from a legal standpoint, the underlying premise of Stackhouse’s postconviction
motion is deeply flawed. Stackhouse’s postconviction theory is that he was merely one participant
in the stabbing; he does not appear to argue that he was wholly uninvolved in James’s stabbing.
Given his undisputed role in the stabbing and the manner in which it was stopped, the State merely
had to show that Stackhouse had, as to the homicide charge, formed the intent to kill and had, as to
the battery charge, caused great bodily harm. Thus, evidence of other knives present at the scene
or of others participating in the knife attack would not have had the absolving effect postconviction
counsel hopes it would.

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No. 2018AP819-CR

Stackhouse now prefers seem far less compelling than the self-defense theory
actually pursued.6 As we address in more detail below, Streicher reasonably
concluded that the video evidence showing Stackhouse stabbing the victim
significantly hindered any argument that Stackhouse did not commit the stabbing.
Moreover, Streicher testified during the Machner hearing that he did not believe the
jury would find Stackhouse’s statements to police credible, as Stackhouse’s
assertion that he was handed the knife after the stabbing was inconsistent with the
stabbing motions seen on the surveillance video. Streicher testified he believed it
would have hurt Stackhouse’s case to argue in the alternative that he did not commit
the stabbing, but that if he did, it was in self-defense. And, at the Machner hearing,
Stackhouse testified he could not remember anyone around him making any
stabbing motions at or near the time he was stabbing James.

¶24 Finally, we note that the mere existence of another possible defense
does not, ipso facto, establish that the defense actually pursued was not the result of
reasoned trial strategy. Most of Stackhouse’s postconviction claims are related to
the alternate defenses he believes his trial counsel should have pursued. We address
Stackhouse’s claims more specifically below, but most of them suffer from the
defect that his belief as to what trial counsel should have presented was simply not
relevant to the self-defense theory actually pursued, which was itself reasonable.

II. Trial counsel was not deficient for failing to call as trial witnesses any of the
individuals Stackhouse now asserts were necessary.

A. Jimmy Flemming and Jonathan Moore

¶25 Stackhouse’s brief devotes a significant amount of attention to the
absence of Jimmy Flemming and Jonathan Moore at trial, both of whom were
6
The circuit court, too, recognized that Streicher had very narrow options given the
evidence, and self-defense was likely the best option at trial.

11
No. 2018AP819-CR

involved in the fight on Stackhouse’s side. Streicher testified he wanted to call both
men at trial, but his investigator could not locate them. Prior to trial, Stackhouse
told Streicher that if Flemming and Moore did not want to be found, they would not
be found, and, moreover, that they had left Wisconsin. Nonetheless, Stackhouse
argues that Streicher should have applied for material witness warrants to secure
their participation in the trial.

¶26 We conclude Stackhouse’s trial counsel did not perform deficiently as
a result of his failure to obtain the testimony of Flemming and Moore. Even if
Streicher had acquired material witness warrants, it would still have been necessary
to locate those individuals—something Stackhouse himself had told Streicher was
highly unlikely to occur. Moreover, given that Stackhouse said Flemming and
Moore had probably left the state, their extradition would be required to secure their
presence at Stackhouse’s trial. See WIS. STAT. § 976.02(3). The time necessary to
locate and/or extradite Flemming and Moore could have delayed the trial, and
Stackhouse had filed a speedy trial demand.

¶27 Furthermore, Stackhouse has failed to demonstrate any prejudice
arising from Flemming and Moore’s absence. Neither of them testified at the
Machner hearing, and Stackhouse did not make an offer of proof as to the content
of their anticipated testimony. As a result, it remains possible their testimony would
have suggested, if not established, that Stackhouse committed the stabbing, and that
he did so alone. Put another way, Stackhouse has not demonstrated prejudice
because he has not shown a reasonable probability that the result of the proceeding
would have been different if Flemming and Moore had been called to testify.

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No. 2018AP819-CR

B. James, the victim

¶28 Stackhouse next challenges his trial counsel’s failure to name James
as a trial witness. He appears to argue James would have testified that his sister
Rachel had told him that Stackhouse, Flemming and Moore were all involved in the
stabbing, because he made a similar statement to police officers when interviewed
at the hospital. During the hospital interview, however, James told officers he did
not realize he had been stabbed and did not remember the stabbing. It therefore
appears that James’s testimony would not have added anything to the defense case.

¶29 Indeed, presenting James’s statements risked undercutting the entire
self-defense claim. Assuming James would have been allowed to testify that he was
told multiple people had attacked him—which is a significant assumption, given the
rule against hearsay7—this testimony would likely have only diminished the need
for, or reasonableness of, Stackhouse’s purportedly defensive use of force. When
asked at the Machner hearing about subpoenaing the victim, Streicher testified he
thought not having the victim’s testimony weakened the State’s case and would
cause the jury to question the State’s version of events. We conclude counsel did
not perform deficiently by failing to subpoena James, nor has Stackhouse
established that the absence of his testimony was prejudicial.

C. Shantel Jamison and Felicia Felton

¶30 Stackhouse next asserts his trial counsel should have subpoenaed
Shantel Jamison and Felicia Felton. He argues Jamison could have testified that

7
“Hearsay” is a “statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” WIS. STAT.
§ 908.01(3). Hearsay is generally inadmissible at trial unless admitted pursuant to a recognized
exception. See WIS. STAT. § 908.02.

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No. 2018AP819-CR

there were three people involved in the fight against James, and Felton could have
testified that she heard from Jamison that Flemming was the one who stabbed
James. In addition to the hearsay issue surrounding Felton’s statement, neither of
these witnesses would have bolstered Stackhouse’s self-defense claim, which,
again, was itself a reasonable trial strategy. The trial evidence was consistent with
Jamison’s statement that more individuals than just Stackhouse were fighting with
James. As Streicher explained, Felton’s statement was not of much import to him
because only Stackhouse was captured on video stabbing James. We conclude
counsel was not deficient for failing to subpoena Jamison or Felton or to otherwise
introduce their statements. Additionally, because there was ample evidence at trial
that showed several individuals fighting against James, Stackhouse was not
prejudiced by the absence of Jamison’s testimony.

D. Don, the victim’s brother

¶31 Stackhouse argues Don was a necessary witness at trial. Stackhouse
apparently believes Don would have testified that he (Don) had a gun at Antro that
night and saw others with knives that looked different than the one Stackhouse was
seen wielding. Stackhouse argues the “presence of 3 additional knives and a Gun,
adds significant force to the the [sic] apprehension of the defendant as to the
likelihood of lethal or substantial force being used against him.”

¶32 Stackhouse significantly overemphasizes the importance of evidence
regarding other weapons. He does not provide any elaboration upon Don’s alleged
statement that others had knives, including whom he saw wielding them, and Don
did not testify at the Machner hearing. It is therefore plausible that, consistent with
the statements of others raised by Stackhouse in his postconviction motion, the
knives were possessed by individuals fighting on his side, thereby potentially

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No. 2018AP819-CR

undercutting his self-defense claim.8 Moreover, evidence that Don had a gun at
Antro would not have buttressed Stackhouse’s trial assertion that he was justified in
using lethal force against James. We conclude trial counsel was not deficient for
failing to subpoena Don, nor was Stackhouse prejudiced by the absence of his
anticipated testimony.

E. Eric Felton

¶33 According to Stackhouse, Eric Felton told police he “heard words”
that an individual whom Stackhouse believes was Flemming had stabbed James.
Stackhouse does not address the fact that anything Felton was told by another person
regarding who was responsible for the stabbing was hearsay. Because Stackhouse
has not demonstrated that the evidence would have been admitted at trial, he has
failed to show that counsel performed deficiently by failing to present it.

F. Stackhouse

¶34 Stackhouse argues that “[n]ot producing [him] to take the stand was
fatal to the defense of self-defense, as neither the victim nor the accused testified as
to what happened, the level of danger in the scenario, the people involved intent at
the time [sic] and much more.” As an initial matter, the choice of whether to testify
is the defendant’s, State v. Krancki, 2014 WI App 80, ¶10, 355 Wis. 2d 503, 851
N.W.2d 824, and here, Stackhouse engaged in a thorough colloquy with the circuit
court to ensure that he was aware of, and was validly waiving, that right.

¶35 In any event, Streicher was asked during the postconviction
proceedings about putting Stackhouse on the stand. He testified he “would have

8
As Streicher acknowledged during the Machner hearing, evidence about the presence of
other weapons in the crowd was introduced at trial.

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No. 2018AP819-CR

loved for Mr. Stackhouse to testify as to why he acted in self-defense and to what
he saw. He told us he did not remember any of the relevant events at the time.” He
later elaborated that Stackhouse did not remember seeing the victim making a
stabbing motion toward him, did not remember seeing a knife in the victim’s hand,
and did not remember feeling that his life was in danger. Streicher believed that
having Stackhouse testify that he could not remember any of the relevant events
would have been detrimental to the self-defense case, just as it would have been if
Stackhouse had testified consistent with his initial statement to police that he was
handed the knife just before he was tased.

¶36 To the extent Stackhouse claims it was necessary for him to testify in
order to establish his self-defense claim, this assertion is belied by the trial evidence.
Streicher successfully obtained a self-defense instruction without revealing
Stackhouse’s failure to recall the relevant events or exposing Stackhouse to cross-
examination by the prosecution. And given the previously mentioned limitations
regarding Stackhouse’s memory of the events, it is not clear what would have been
accomplished by having Stackhouse testify. We conclude there was neither
deficient performance nor prejudice with respect to trial counsel’s recommendation
that Stackhouse not testify.

III. There is no merit to any claim of ineffective assistance in the cross-examination
of witnesses.

A. Andrew Avant

¶37 Next, Stackhouse claims his trial counsel was ineffective in his cross-
examination of Andrew Avant, a bouncer at Antro who testified he did not see the
stabbing or the tasing occur. Stackhouse argues it should have been elicited that
Avant told police after the incident that the “[d]ude with the knife got away.” As
the circuit court recognized during the trial (outside of the jury’s presence), Avant

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No. 2018AP819-CR

had difficulty with his memory and, as a result, was not a very credible witness. In
any event, even if Stackhouse had been able to effectively cross-examine Avant
with his prior statement, it would not have supported Stackhouse’s self-defense
claim in light of all the other trial evidence. Accordingly, we conclude Stackhouse
has not demonstrated that any alleged failures by counsel in this regard were
prejudicial.

B. Jennifer, James’s wife

¶38 Stackhouse similarly asserts his trial counsel failed to effectively
examine Jennifer as part of the defense case, failed to “adequately investigate her
knowledge,” and failed to cross-examine the police investigator who took her
statement. At trial, Jennifer testified that prior to the stabbing, Rachel had started a
fight with Don, James and Stackhouse, during which Rachel had injured
Stackhouse’s hand with a pink pocket knife. Jennifer also made reference to hearing
of Don having a gun, which testimony was stricken as hearsay. It is unclear what
additional testimony Stackhouse now wishes his trial counsel had elicited that would
have supported his self-defense claim. Accordingly, we reject this argument as
undeveloped. See Pettit, 171 Wis. 2d at 646.

C. Doctor Kenneth Bruder, James’s surgeon

¶39 Stackhouse faults his trial counsel for failing to cross-examine
Dr. Bruder “as to the fatal nature of the wounds, the locations of the wounds or the
likelihood that all six wounds were consistent with the weapon published to the
jury.” We have previously addressed (and rejected) the notion that trial counsel was
ineffective for not pursuing a defense that others besides Stackhouse were
responsible for inflicting some of the injuries to James. Notably, Stackhouse has
not established that James’s treating physician, Bruder, would have testified that

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No. 2018AP819-CR

some of the wounds were caused by weapons other than Stackhouse’s knife had he
been so asked. His arguments in this regard are entirely conclusory and are
insufficient to demonstrate prejudice.

¶40 Stackhouse also argues that Bruder would have testified that James
was intoxicated at the time he was taken to the emergency room and was acting
aggressively. The basis for this claim is apparently a medical report noting that
James, as a patient, was a “very belligerent [and] agitated” person who was
“inebriated with a blood alcohol content of 0.215.” However, evidence of James’s
generally aggressive behavior and drunken state that night was introduced as part of
the defense case. Because the desired testimony was duplicative of evidence that
was presented during the trial, we cannot conclude to a reasonable probability that
additional cross-examination of Bruder along these lines would have made any
difference in the outcome of the trial.

D. Other witnesses

¶41 Stackhouse asserts his trial counsel performed deficiently by failing
to call officer Jackie Gleiss and by failing to effectively cross-examine Rachel. We
note officer Gleiss did testify at trial and was cross-examined by Streicher. It is
difficult to discern what Stackhouse believes Streicher should have presented with
respect to these witnesses, but he apparently believes his counsel did not do enough
to present evidence that other people had been involved in the fight with the victim
and that there were other weapons at the scene. Stackhouse’s argument in this
regard concerns hearsay statements, the admissibility of which Stackhouse makes
no effort to address. Moreover, the evidence Stackhouse apparently wishes to have
presented would have done nothing to enhance his self-defense case. Accordingly,

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No. 2018AP819-CR

we conclude Streicher did not perform deficiently with respect to those witnesses,
nor has Stackhouse demonstrated he was prejudiced by any arguable deficiency.

¶42 Also undeveloped is Stackhouse’s assertion that his trial counsel
failed to effectively cross-examine officer Chue Thao, who assisted in investigating
the stabbing. Stackhouse argues Thao had unidentified information pertaining to
various witnesses, including Moore and Flemming. Without Stackhouse explaining
what information Thao could have presented, we have no basis for concluding trial
counsel performed deficiently to Stackhouse’s prejudice. This argument consists of
only conclusory statements and is wholly undeveloped. See Pettit, 171 Wis. 2d at
646.

¶43 Finally, Stackhouse claims his trial counsel should have cross-
examined police witnesses on their use of force that night and about their
apprehension of harm when intervening in the violent brawl at the club. He appears
to argue such testimony was necessary to present a viable self-defense claim. We
reject this argument because it was the reasonableness of Stackhouse’s use of force,
not the police officers’ use of force, that was at issue at trial. Moreover, testimony
from police officers on the scene regarding their concern for their safety had, at best,
minimal relevance to Stackhouse’s justification for his use of force during his
encounter with James. Again, trial counsel successfully procured a self-defense
instruction without this evidence. Accordingly, there is no basis to conclude
Streicher was deficient in his cross-examination of police witnesses.

IV. None of Stackhouse’s remaining arguments warrant a new trial based on
ineffective assistance of counsel.

¶44 Stackhouse’s remaining arguments are undeveloped and
unpersuasive. He argues in conclusory fashion that his trial counsel failed to

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No. 2018AP819-CR

“pursue, preserve, and present” evidence that Atterberry and Moore had “blood on
their person that was arguably attributed directly to the victim.” Given that these
two individuals were undisputedly engaged in a fight with the victim during which
the stabbing occurred, the significance of this evidence is not apparent, and
Stackhouse makes no effort to develop an argument that would warrant further
analysis. See Pettit, 171 Wis. 2d at 646.

¶45 Stackhouse also argues his trial counsel was deficient with respect to
his presentation of the cell phone video. One component of this argument is that
Streicher was deficient for not playing the final portion of the video, but it is not
clear from the trial record that the challenged portion of the video was not played.9
In any event, it is apparent that Stackhouse believes the video was significant
because it showed “multiple people were engaging Stackhouse and his group.” Yet
the fact that the fight involved individuals beyond just James and Stackhouse was
readily apparent based on the trial evidence. Stackhouse has not presented any
evidence to cast doubt upon his trial counsel’s conclusion that only Stackhouse was
captured on video making stabbing motions toward James.

¶46 Stackhouse’s final argument consists of his vague assertion that
Streicher was inexperienced and unprepared for trial. Stackhouse posits, in
conclusory fashion, that “[d]ue to [Streicher’s] inexperience and the short time
frame he was on the defense[,] there was not adequate time [for Streicher] to file
and pursue pre-trial motions.” Stackhouse fails to explain what pretrial motions he
desired counsel to have filed, or what effect they would have had on the trial. This

9
At trial, Streicher played the video and told the circuit court he would be playing the
video “from … 23 seconds until the end.” Witnesses during the postconviction proceedings were
asked repeatedly if they recalled how much of the video was played at trial, and none could recall
whether the video was played to the end.

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No. 2018AP819-CR

assertion is merely conclusory and does not establish that his attorney made an error
so serious that Stackhouse was effectively deprived of counsel—particularly in a
case in which the State had compelling evidence of guilt and trial counsel was
successful in obtaining a self-defense instruction. We reject this argument as
undeveloped.

¶47 In all, we conclude Stackhouse has not demonstrated that he is entitled
to a new trial on the basis that his trial counsel was ineffective. As to each of his
arguments (individually or in combination), he has not shown that his trial counsel
performed deficiently, that he was prejudiced by any alleged deficiency, or both.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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