State v. Mickale Alonso Hicks

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.
January 27, 2022
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. 2020AP1577 Cir. Ct. No. 2015CF635

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICKALE ALONSO HICKS,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Rock County:
MICHAEL A. HAAKENSON, Judge. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Graham, 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. 2020AP1577

¶1 PER CURIAM. Mickale Alonso Hicks, pro se, appeals a circuit
court order denying his postconviction motion under WIS. STAT. § 974.06
(2019-20).1 Hicks argues that the court erred in rejecting his claims for ineffective
assistance of counsel and newly discovered evidence. We affirm.

Background

¶2 In 2015, Hicks was charged with felony murder based on allegations
that he was involved in an attempted armed robbery that resulted in the shooting
death of Joel Royster. The case proceeded to a jury trial.

¶3 During trial, the State maintained that Hicks had an individual
named Stefan Range set up a drug deal with Royster as a pretext to rob Royster,
and that Hicks drove Range and others to and from the crime scene in a green Jeep
Cherokee. The State relied on Range’s testimony and circumstantial evidence to
establish that Hicks orchestrated the drug deal and was the driver of the green
Jeep.

¶4 Range provided the following testimony. Range had purchased
marijuana from Royster previously and had hung out with Hicks on prior
occasions. On the day of the shooting, Hicks gave Range a phone to contact
Royster to purchase marijuana. Hicks then drove Range in a green Jeep to meet
up with Royster. Hicks’s brother and another individual Range did not know (the
“unidentified co-conspirator”) were also in the Jeep. At the scene, Range and the
unidentified co-conspirator entered the back seat of Royster’s vehicle, behind

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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Royster and Jordan Harrell, who was a passenger in Royster’s vehicle. The
unidentified co-conspirator pulled out a gun, and Royster and the unidentified co-
conspirator fought over the gun. Range heard a gunshot. He and the unidentified
co-conspirator then ran back to the green Jeep and fled the scene with Hicks
driving.

¶5 Harrell, who had been Royster’s passenger, provided the following
testimony. Harrell was Royster’s friend. Two individuals who Harrell did not
recognize entered the back seat of Royster’s vehicle, and one of them had a gun.
There was a struggle over the gun, and everyone got out of Royster’s vehicle. The
individual who had the gun hit Royster with the gun, which went off, and Royster
fell. Both individuals who had entered Royster’s vehicle then fled the scene.

¶6 There was testimony from other witnesses indicating that the
unidentified co-conspirator who had the gun and shot Royster might have been
someone named Eric Ulmer. Hicks did not testify.

¶7 The jury found Hicks guilty of the felony murder charge. The circuit
court sentenced Hicks to a thirty-year term of imprisonment.2

¶8 In 2020, Hicks filed his WIS. STAT. § 974.06 motion.3 He claimed
that trial counsel was ineffective and that there was newly discovered evidence.
Hicks based both claims on an affidavit from an eyewitness named Riley Taylor
who had not been called to testify at trial.

2
Hicks was also found guilty on a charge for attempt to possess THC.
3
We omit procedural history that is not relevant to our analysis.

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¶9 In his affidavit, Taylor averred that Eric Ulmer was involved in the
shooting, and he further averred that he had misinformed police about what he had
witnessed because Ulmer had threatened him. Taylor averred that he decided to
come forward with the truth because he wants justice for Royster, who was his
friend, and because he is emotionally drained from hiding the truth. Taylor
averred that, on the day of the shooting, he saw Range, Ulmer, Royster, and
Harrell exit Royster’s vehicle. Taylor averred that Range and Ulmer were fighting
with Royster, he heard a gunshot, and Royster fell to the ground. Taylor averred
that he then saw Range, Ulmer, and Harrell run and enter a vehicle in which
someone was waiting in the driver’s seat. Taylor averred that he knew the driver
was not Hicks because he knew Hicks and was familiar with Hicks’s look,
demeanor, and build. Taylor averred that the driver of the waiting vehicle was
someone he had never seen before, and that he never saw Hicks that day.

¶10 As noted above, the circuit court denied Hicks’s postconviction
motion. We reference additional facts as needed below.

Discussion

¶11 We turn first to Hicks’s claim for ineffective assistance of counsel.
We review such claims under the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). The defendant must show both that counsel’s
performance was deficient and that the defendant was prejudiced by the deficient
performance. Id. at 687. We need not address both prongs of the Strickland test
if the defendant fails to make a sufficient showing on one. See id. at 697.
“Whether counsel’s performance satisfies the constitutional standard for
ineffective assistance of counsel is a question of law which we review de novo.”
State v. Wright, 2003 WI App 252, ¶30, 268 Wis. 2d 694, 673 N.W.2d 386.

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¶12 Hicks argues that trial counsel was ineffective by failing to call
Taylor to testify at trial. He argues that with Taylor’s testimony that he was not
the driver for corroboration, Hicks would have testified too, and his defense would
have been much stronger.

¶13 We conclude that Hicks fails to satisfy the deficient performance
prong of the Strickland test. To establish deficient performance, the defendant
must show that “counsel’s representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. Here, Hicks provides no basis to
conclude that counsel knew or should have known at the time of trial that Taylor
had misinformed police or had been threatened by Ulmer. Neither Taylor’s
affidavit nor Hicks’s arguments indicate that Taylor disclosed the information in
his affidavit to anyone prior to 2019. Hicks asserts that the information “was
never heard by investigators or trial counsel.” Absent any basis to conclude that
counsel knew or should have known the information in Taylor’s affidavit,
counsel’s failure to call Taylor as a witness was not objectively unreasonable.

¶14 We turn to Hicks’s newly discovered evidence claim. When moving
for a new trial based on newly discovered evidence, a defendant must prove:
“‘(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.’” State v. Plude, 2008 WI
58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42 (quoted source omitted). “If the
defendant is able to prove all four of these criteria, then it must be determined
whether a reasonable probability exists that had the jury heard the newly-
discovered evidence, it would have had a reasonable doubt as to the defendant’s
guilt.” Id.

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¶15 We assume without deciding that Hicks has satisfied each of the first
four prongs of the newly discovered evidence test. Even so, Hicks fails to
persuade us that there is a reasonable probability that a jury hearing the new
evidence would have a reasonable doubt as to his guilt.4

¶16 The question is whether “‘there is a reasonable probability that a
jury, looking at both the [old evidence] and the [new evidence], would have a
reasonable doubt.’” State v. Love, 2005 WI 116, ¶44, 284 Wis. 2d 111, 700
N.W.2d 62 (quoted source omitted). Hicks argues that there is a reasonable
probability that the jury would have a reasonable doubt as to his guilt because
Taylor’s testimony would establish that Hicks was not the driver of the green Jeep

4
The applicable standard of review has been characterized in different ways in the case
law. Some cases state that the reasonable probability determination is a question of law we
review de novo. See, e.g., State v. Plude, 2008 WI 58, ¶33, 310 Wis. 2d 28, 750 N.W.2d 42.
Other cases indicate that we review this determination for an erroneous exercise of discretion by
the circuit court. See State v. Avery, 2013 WI 13, ¶32, 345 Wis. 2d 407, 826 N.W.2d 60 (“When
weighing the new evidence against the evidence presented at trial, we cannot say that the circuit
court erroneously exercised its discretion when it concluded that the photogrammetry evidence
would not create a reasonable doubt in the minds of the jury.” (emphasis omitted)); State v.
Edmunds, 2008 WI App 33, ¶16, 308 Wis. 2d 374, 746 N.W.2d 590 (appearing to apply a
discretionary standard of review to the circuit court’s determination that “there was not a
reasonable probability a new result would be reached with a new trial”).

This apparent inconsistency in the case law is not limited to the cases we cite. Almost
twenty-five years ago, in a concurrence in State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707
(1997), then-Chief Justice Abrahamson wrote: “The cases reveal that although the supreme court
repeats the erroneous exercise of discretion standard of review, it often appears to have reviewed
the trial courts’ decisions independently, determining anew whether there exists a reasonable
probability of a different result.” See id. at 485 n.5 (Abrahamson, C.J., concurring).

Here, the parties do not address the apparent inconsistency in the case law, and we have
not undertaken an exhaustive review of the relevant cases. Rather, we will apply the de novo
standard, which could only benefit Hicks. Applying that standard, we conclude for the reasons
stated in the text that Hicks has not shown a reasonable probability that a jury hearing the new
evidence would have a reasonable doubt as to his guilt.

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No. 2020AP1577

Cherokee or otherwise present at the scene. There are several reasons why
Hicks’s argument does not persuade us.5

¶17 First, Taylor’s testimony would not change the considerable
evidence that implicated Hicks. We need not repeat all of that evidence here, but
we note that it included evidence closely connecting Hicks to the green Jeep
Cherokee. Witnesses had seen Hicks in a green Jeep Cherokee on previous
occasions. At least one of the witnesses saw Hicks driving the Jeep the night
before Royster was shot. Shortly after the shooting, the Jeep was driven through
toll booths toward Chicago, and several days later, when a Chicago police officer
stopped the Jeep, Hicks’s brother was driving it, with Hicks as the sole passenger.

¶18 Second, Hicks points to no evidence, old or new, that could explain
who else might have been driving the Jeep when Royster was shot. According to
Taylor’s affidavit, the driver was not Range, Ulmer, or Harrell, who all ran toward
the Jeep where the unidentified driver was “already in the driver seat waiting.”
Hicks apparently means to argue, based on the Taylor affidavit, that the driver was

5
We note that our reasons differ in some respects from those advanced by the State. The
State argues that, if Ulmer’s threat to Taylor caused Taylor to hide the truth until disclosing it in
2019, it was unlikely that Taylor would have testified at trial in 2015 to the information set forth
in his affidavit. The State also argues that, even if Taylor testified consistently with his affidavit,
his testimony would lack credibility because a jury would hear that he lied to police. Finally, the
State contends that, if Taylor testified consistently with his affidavit, his testimony would directly
contradict the defense theory at trial that Hicks was the driver but had no knowledge of any plan
to rob the victim.

As set forth in the text, we agree that a jury would reasonably question Taylor’s
credibility given Taylor’s admission that he misinformed the police about what he saw.
However, we do not agree with the State’s assertion that we should consider what Taylor’s
testimony would have been if he had testified at the time of trial; the proffered newly discovered
evidence consists of what Taylor would say if he testified now. The State fails to cite any
authority or develop an argument to support its assertion that Hicks’s newly discovered evidence
claim must fail because the newly proffered evidence contradicts the defense theory at trial.

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No. 2020AP1577

an individual who has never been previously referenced or identified. However,
the lack of an identifiable alternative suspect would leave a significant hole in
Hicks’s new defense.

¶19 Third, a jury would have additional reasons to question Taylor’s
averment that the driver was an unidentified person who was not Hicks. The jury
would hear that Taylor lied to the police. Additionally, Taylor’s affidavit appears
inconsistent with testimony that Taylor’s sister provided at trial. Taylor stated that
in his “original statements to detectives,” he “did not include that I actually knew
and seen who committed this offense.” However, Taylor’s sister testified, in
contrast, that Taylor told police shortly after the shooting that Ulmer was one of
the individuals who Taylor saw flee in a green Jeep. Further, Taylor’s statement
that Harrell fled in the same vehicle as Range and Ulmer makes little sense, at
least not without further explanation. Hicks does not explain why Harrell—who
was Royster’s friend and passenger—would have fled the scene in the green Jeep
with Range and Ulmer, who had just attacked Royster.

¶20 Fourth, at a new trial the prosecution could argue that even if Taylor
were now being truthful, he was mistaken as to what he thought he saw. Not only
was Taylor apparently mistaken as to Harrell but also he could have been mistaken
as to Hicks. Taylor was not especially close to the driver of the green Jeep—“no
more than fifty[]feet” accordingly to his affidavit—and his affidavit does not
provide further information establishing whether he was positioned so as to have a
clear view of the driver.

¶21 In sum, Hicks has not persuaded us that a jury considering both the
old and new evidence would have a reasonable doubt as to his guilt. Accordingly,
we reject Hicks’s newly discovered evidence claim.

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Conclusion

¶22 For the reasons explained above, we conclude that the circuit court
properly denied Hicks’s postconviction motion under WIS. STAT. § 974.06.

By the Court.—Order affirmed.

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

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