State v. Lawrence C. Paine

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.
March 16, 2021
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. 2019AP1677 Cir. Ct. No. 2004CF2380

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LAWRENCE C. PAINE

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed.

Before Brash, P.J., Donald and White, 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. Lawrence C. Paine appeals the circuit court order
denying his postconviction motion. Paine argues that he presents newly
No. 2019AP1677

discovered evidence that requires a new trial or evidentiary hearing. In the
alternative, Paine argues that postconviction counsel provided ineffective
assistance of counsel by not previously arguing that trial counsel was ineffective
on these grounds. Finally, Paine argues that the real controversy was not fully
tried; therefore, he requests this court grant him a new trial under WIS. STAT.
§ 752.35 (2019-20).1 We disagree, and accordingly, affirm the circuit court.

BACKGROUND

¶2 In July 2005, a jury found Paine guilty of two counts of first-degree
intentional homicide for the deaths of Janari Saddler and Aaron Harrington on
April 10, 2004, in Milwaukee, Wisconsin.2 Paine’s initial jury trial in February
2005 was declared a mistrial after the jury was found to be hopelessly deadlocked.
On retrial, Paine was convicted and the trial court sentenced Paine to two counts
of life in prison without eligibility for release on extended supervision.

¶3 Paine’s first motion for postconviction relief pursuant to WIS. STAT.
§ 974.06 alleging ineffective assistance of trial counsel was denied in October
2006. On appeal, we reversed and remanded for a Machner3 hearing. See State v.
Paine (Paine I), No. 2006AP2634-CR, unpublished slip op. (November 6, 2007).
After two days of hearings on the ineffective assistance of counsel claims in June

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Paine’s initial trial and retrial were each conducted by the Honorable David Hansher;
we refer to him as the trial court. Paine’s first postconviction motion was heard by the Honorable
Jeffrey A. Kremers. Paine’s 2008 Machner hearing and his current postconviction motion, which
underlies this appeal, were heard by the Honorable Jeffrey A. Wagner; we refer to him as the
circuit court.
3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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and July 2008, the circuit court denied Paine’s requested postconviction relief. On
appeal, we affirmed Paine’s judgment of conviction and the circuit court order
denying his claims considered in the Machner hearing. See State v. Paine (Paine
II), No. 2008AP2307-CR, unpublished slip. op. (November 24, 2009). We
recount the facts relevant to this appeal; however, additional facts are available in
our prior decisions.

¶4 Paine argued in his current motion for postconviction relief that
newly discovered evidence “supports his innocence, or at the very least,
ineffective assistance of counsel.” Paine asserted that (1) Ronald Q. Terry was
present at the scene of the double homicide, as shown in the State’s DNA report
presented at trial; (2) Terry was arrested six months after the double homicide in a
drug bust during which the police recovered a Ruger P85 firearm—that Paine later
had tested—which had rifling characteristics similar to the unrecovered weapon
used in the double homicide; and (3) after Terry’s arrest, he intimidated a neighbor
who was a potential trial witness for the double homicide. Paine argued that if this
evidence, which connects the double homicide to Terry, had been presented to the
jury, the jury may have had reasonable doubt about Paine’s guilt. We summarize
Paine’s newly discovered evidence below.

¶5 Paine’s first contention is that Terry’s DNA was found at the double
homicide crime scene. The State Crime Laboratory report analyzed the DNA
samples found at the crime scene and produced a report that was dated June 30,
2004. The report showed that Terry’s DNA was found at the crime scene on a
soda can, beer bottle, and a cigarette butt, but the sample of Paine’s DNA did not
match any of the crime scene samples.

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¶6 Paine’s second contention is in regards to the similarities between
the unknown firearm used in the double homicide and a firearm recovered when
Terry was arrested. The State Crime Laboratory examiner determined that the
firearm used to commit the double homicide was a Sturm Ruger semiautomatic
pistol that took nine-millimeter Luger caliber ammunition and the rifling had “six
lands and grooves with a right-hand twist.” Approximately six months after the
double homicide, Milwaukee police conducted a drug bust during which Terry
was arrested. In addition to recovering quantities of controlled substances, the
police recovered a black Ruger P85 nine-millimeter Luger caliber firearm. In
November 2004, the State Crime Laboratory tested4 the recovered Ruger P85
firearm and compared it against six fired nine-millimeter Luger caliber cartridge
cases recovered in the double homicide and concluded that none of the evidence
collected at the double homicide had been fired from the recovered firearm. Paine
points out that the full report from the State Crime Laboratory was never released
to him.5

¶7 The recovered Ruger P85 was returned to its legal owner in March
2005. In June 2018, the legal owner allowed Paine to have bullets fired in the
recovered firearm tested by a forensics examiner. In the forensics report, the
examiner determined the bullets “were fired from a barrel rifled with six (6) lands
and grooves with a right twist.” The report included a list of over 130 models of

4
Because a firearm was not recovered from the double homicide, the State Crime
Laboratory report suggested “that any 9mm caliber firearm recovered concerning direct
investigative leads to this case” should be sent to the State Crime Laboratory for comparison with
the collected evidence.
5
The State refused to provide postconviction discovery of this report because it did not
meet the standard set forth in State v. O’Brien, 223 Wis. 2d 303, 321, 588 N.W.2d 8 (1999). We
offer no opinion on the State’s position with regards to Paine’s rights to postconviction discovery.

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nine-millimeter “Luger caliber firearms that exhibit general rifling characteristics
like those present on the” submitted bullets; the Ruger P85 was among the models
on the list.

¶8 Paine’s third connection is that after Terry was arrested in the drug
bust, Paine alleges Terry intimidated S.R., who lived downstairs from the house
where the double homicide took place and who told police she heard gunshots that
night. In February 2005, Milwaukee police served a subpoena on S.R. for the
purpose of serving as a witness in Paine’s first jury trial. When the police
explained their purpose to S.R., “she was immediately upset, crying and shaking
and indicated that she was fearing for her safety and was afraid to come to court.”
S.R. explained that after the drug bust in October 2004, she received a call from
jail from an individual identified as Q (whom the police identified as Terry) who
wanted to know what she witnessed during the double homicide. S.R. indicated
that she was intimidated by Terry, even if “he did not mention threats, she felt that
something could happen to her” if she cooperated with the police.

¶9 The February 2005 police report also included a statement from S.R.
that after Terry was released from jail, around Thanksgiving 2004, Terry
approached S.R. at her mother’s house and drove her to another house, where she
saw multiple individuals displaying weapons. Although none of the weapons were
pointed at her, S.R. was fearful and left the house. S.R. requested police
protection during her meeting with the police.6

6
Although S.R. appeared on both the State and Paine’s witness lists for the initial and
final trial, the record does not show that she was called to testify.

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¶10 Paine’s alternative argument was that to the extent that defense
counsel had an obligation to investigate and present the evidence that was
unknown to the jury, his postconviction counsel provided ineffective assistance by
not arguing trial counsel’s ineffectiveness in his earlier motion.

¶11 In June 2019, the circuit court issued a written decision denying
Paine’s current postconviction motion without a hearing, adopting the State’s brief
in total. This appeal follows. Additional facts are included in the opinion as
necessary.

STANDARD OF REVIEW

¶12 “Whether a defendant’s postconviction motion alleges sufficient
facts to entitle the defendant” to an evidentiary hearing is a mixed question of fact
and law. State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. If
the WIS. STAT. § 974.06 motion alleges facts that would entitle the defendant to
relief, “the circuit court has no discretion and must hold an evidentiary hearing.”
State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). “Whether a
motion alleges facts which, if true, would entitle a defendant to relief is a question
of law that we review de novo.” Id. (emphasis added).

¶13 The postconviction motion must specifically allege within its four
corners material facts answering the questions who, what, when, where, why, and
how the movant would successfully prove at an evidentiary hearing that he or she
is entitled to a new trial. Allen, 274 Wis. 2d 568, ¶23; see also State v. Love, 2005
WI 116, ¶27, 284 Wis. 2d 111, 700 N.W.2d 62. “[I]f the motion does not raise
facts sufficient to entitle the movant to relief, or presents only conclusory
allegations, or if the record conclusively demonstrates that the defendant is not
entitled to relief,” the trial court has discretion to deny a postconviction motion

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without a hearing. Allen, 274 Wis. 2d 568, ¶9. We review the circuit court’s
decision to deny an evidentiary hearing under the erroneous exercise of discretion
standard. See id.

DISCUSSION

¶14 Paine argues this court has multiple grounds upon which to grant
him postconviction relief. First, he argues that he proffers newly discovered
evidence that was not presented to the jury and that entitles him to a new trial or,
at minimum, an evidentiary hearing. Second, Paine argues that, in the alternative,
postconviction counsel rendered ineffective assistance of counsel by not arguing
trial counsel’s ineffectiveness on these grounds in the previous motion. Finally,
Paine argues that the controversy has not been fully tried; therefore, we should
grant him a new trial in the interest of justice. All of these arguments, however,
fail to show that Paine is entitled to postconviction relief.7

I. Newly discovered evidence

¶15 Paine argues that the jury did not hear evidence that (1) Terry’s
DNA was found at the crime scene while Paine’s was not found; (2) a firearm
found in October 2004 when Terry was arrested in a drug bust matched the
characteristics of the firearm implicated in the double homicide; and (3) a witness
reported to the police that she was intimidated by Terry over her potential

7
Paine separately argues that based on his newly discovered evidence claims and his
ineffective assistance of counsel claims he has alleged sufficient material facts to be entitled to an
evidentiary hearing under State v. Allen, 2004 WI 106, ¶¶9, 23, 274 Wis. 2d 568, 682 N.W.2d
433. As this is contained in the general framework for review of WIS. STAT. § 974.06
postconviction motions, we decline to address this separately and instead consider it within his
requests for relief.

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No. 2019AP1677

testimony about the double homicide. Paine asserts this evidence satisfies the
newly discovered evidence standard. We disagree.

¶16 “In order to set aside a judgment of conviction based on
newly[]discovered evidence, the newly[]discovered evidence must be sufficient to
establish that a defendant’s conviction was a ‘manifest injustice.’” State v. Plude,
2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42 (citation omitted). A
postconviction motion must establish by clear and convincing evidence
that: “(1) the evidence was discovered after conviction; (2) the defendant was not
negligent in seeking evidence; (3) the evidence is material to an issue in the case;
and (4) the evidence is not merely cumulative.” Love, 284 Wis. 2d 111, ¶43
(citation omitted). If these factors are proven, the trial court must then determine
“‘whether a reasonable probability exists that a different result would be reached
in a trial.’” Id., ¶44 (citation omitted). We review the circuit court’s decision to
grant or deny a motion for a new trial based on newly discovered evidence under
the erroneous exercise of discretion standard. See Plude, 310 Wis. 2d 28, ¶31.

¶17 When we examine Paine’s claims, two of them do not satisfy the
first prong of the newly discovered evidence standard because the evidence was
not discovered after conviction. The State Crime Laboratory report that showed
that Terry’s DNA was found at the crime scene and Paine’s was not found there
was dated June 30, 2004. The police report about allegations that Terry
intimidated S.R. was dated February 6, 2005. That means the information in these
reports existed and was known prior to Paine’s trial in June 2005. Because neither
satisfy the first prong, we have no need to analyze the other prongs of the newly
discovered evidence standard and we conclude that this evidence does not
constitute newly discovered evidence.

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¶18 Paine’s other proffered evidence is the independent forensics report
on the firearm recovered during Terry’s arrest (the 2018 Report). Although the
firearm was found in October 2004, analyzed by the State Crime Laboratory in
November 2004, and returned to its legal owner in March 2005, Paine did not have
the firearm analyzed until June 2018. The delay in creating the report
demonstrates Paine’s failure to satisfy the second prong, showing that he was not
negligent in seeking this evidence prior to trial.

¶19 The 2018 Report is evidence based on the original for which Paine
has developed a new appreciation of its importance. The creation of this report
refocused Paine’s attention on the original crime lab report. “‘Newly discovered
evidence’ does not include a new appreciation of the importance of evidence
previously known but not used.” State v. Bembenek, 140 Wis. 2d 248, 256, 409
N.W.2d 432 (Ct. App. 1987) (citations omitted). We determine de novo whether
postconviction evidence presented by a defendant is excluded from consideration
as newly discovered evidence based on an assessment “only of the nature of the
proffered item, and not of the facts surrounding its discovery, the defendant’s
diligence, or the item’s materiality to issues in the case.” State v. Fosnow, 2001
WI App 2, ¶12, 240 Wis. 2d 699, 624 N.W.2d 883. Here, the 2018 Report on the
recovered firearm was based on facts known and evidence available prior to
Paine’s trial and conviction. The report shows that the recovered firearm has a
similar rifling pattern to the casings and bullets recovered from the double
homicide. We conclude that this report states a new opinion about existing
evidence and therefore, is newly appreciated evidence and does not satisfy the
newly discovered evidence standard. Therefore, none of Paine’s assertions are

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No. 2019AP1677

newly discovered evidence.8 Accordingly, the circuit court did not erroneously
exercise its discretion when it denied Paine a new trial based on newly discovered
evidence.

¶20 On Paine’s request for an evidentiary hearing on the same facts,
Paine alleges that he has proffered sufficient material facts to satisfy the “who,
what, when, where, why, and how” tests required for postconviction relief. See
Allen, 274 Wis. 2d 568, ¶23. Our review of the record does not support Paine’s
argument. Paine presents no facts that put the recovered firearm directly in
Terry’s possession. The 2018 Report shows only that the rifling characteristics are
similar—similarities shared by over 130 different firearm models. Paine alleges
that Terry intimidated S.R. because he was afraid that the recovered firearm would
connect him to the double homicide; however, there are insufficient facts in the
record to support Paine’s theory about Terry’s motivations. We conclude that the
circuit court appropriately exercised its discretion to deny Paine’s claims without
an evidentiary hearing because the facts he proffers are conclusory and
insufficiently material.

¶21 Paine asserts that with his proffered newly discovered evidence, he
could show that Terry had a “legitimate tendency” to have committed the crime
and Paine could raise a third-party perpetrator defense under State v. Denny, 120
Wis. 2d 614, 623, 357 N.W.2d 12 (Ct. App. 1984). We decline to consider this
issue on procedural grounds because Paine has not raised this argument until this

8
Additionally, we note that Paine renews his arguments that his alibi is bolstered by
additional claims of newly-discovered evidence regarding issues raised at trial. However, Paine
fails to develop a legal argument or provide legal authority for the information he imparts. We
decline to review inadequately briefed arguments and arguments made without legal authority.
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

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No. 2019AP1677

appeal. “[A] party seeking reversal may not advance arguments on appeal which
were not presented to the trial court.” State v. Rogers, 196 Wis. 2d 817, 826, 539
N.W.2d 897 (Ct. App. 1995). Therefore, we do not address this claim.

II. Ineffective assistance of counsel

¶22 Paine argues that appellate counsel provided ineffective assistance
by failing to argue that trial counsel was ineffective. However, he fails to address
the procedural framework of successive WIS. STAT. § 974.06 motions. A criminal
defendant must raise all available claims in the “original, supplemental, or
amended motion” for relief. See § 974.06(4); State v. Escalona-Naranjo, 185
Wis. 2d 168, 181, 517 N.W.2d 157 (1994). Serial postconviction proceedings are
procedurally barred unless the defendant offers a sufficient reason why the claims
presented in the latter proceedings were not previously raised in a prior
postconviction motion or appeal. See State v. Romero-Georgana, 2014 WI 83,
¶35, 360 Wis. 2d 522, 849 N.W.2d 668. Whether a person has alleged a sufficient
reason to avoid the procedural bar imposed by § 974.06 is a question of law that
we review de novo. See State v. Kletzien, 2011 WI App 22, ¶16, 331 Wis. 2d 640,
794 N.W.2d 920.

¶23 Although Paine did not specifically address his reason to bring the
current postconviction motion within his motion as required, see Allen, 274
Wis. 2d 568, ¶23, we acknowledge that ineffective assistance of counsel may be a
sufficient reason to raise a successive postconviction motion. State v. Balliette,
2011 WI 79, ¶62, 336 Wis. 2d 358, 805 N.W.2d 334. To demonstrate that
appellate counsel was ineffective, a defendant must satisfy the familiar two-prong
test by showing that counsel performed deficiently and that the deficiency
prejudiced the defense. See id., ¶¶21, 63. When a defendant alleges that

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No. 2019AP1677

postconviction counsel was ineffective for failing to bring a claim that should have
been previously raised , proof of deficiency requires a showing that the claim not
raised was “clearly stronger” than the claims counsel actually raised. See
Romero-Georgana, 360 Wis. 2d 522, ¶¶43-46.9 We may consider either
deficiency or prejudice first, and if one is unproven, we need not address the other.
See Strickland v. Washington, 466 U.S. 668, 697 (1984).

¶24 Here, we need address only the deficiency prong of the ineffective
analysis. To satisfy that prong, Paine was required to show that his claims that
postconviction counsel’s failure to argue that trial counsel was ineffective for
failing to investigate connections between Terry, the recovered firearm, and the
double homicide were “clearly stronger” than postconviction counsel’s previous
claims that trial counsel was ineffective for failing to call two witnesses in Paine’s
defense. See id., ¶58; see also Allen, 274 Wis. 2d 568, ¶¶23, 27. We note that we
granted Paine a Machner hearing as a result of his first postconviction motion.
See Paine I, No. 2006AP2634-CR, ¶¶15-18.

¶25 Paine argued that the evidence connecting Terry to the double
homicide and the recovered firearm was clearly stronger because this information
had not been presented at all, unlike Paine’s alibi. Paine argued that trial counsel
was obligated to investigate Terry and the recovered firearm in more detail, which

9
Paine appears to challenge the requirement of the “clearly stronger” standard, stating
“[t]he Wisconsin Supreme Court has suggested an additional requirement to the deficiency
inquiry heretofore unrecognized by the United States Supreme Court.” We reject Paine’s
argument and note that established Wisconsin law on WIS. STAT. § 974.06 motions requires both
the “clearly stronger” standard and the “sufficient reason” to avoid a procedural bar. See State v.
Romero-Georgana, 2014 WI 83, ¶¶4-5, 360 Wis. 2d 522, 849 N.W.2d 668.

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No. 2019AP1677

meant trial counsel provided ineffective assistance, and postconviction counsel
compounded the ineffective assistance by not raising this issue previously.

¶26 We concluded above that Paine’s proffered newly discovered
evidence connecting Terry and the recovered firearm to the double homicide did
not entitle him to an evidentiary hearing or a new trial. In contrast, we granted
Paine a Machner hearing on his earlier postconviction motion on the presentation
of alibi witnesses. Therefore, we conclude that Paine’s new claims are not clearly
stronger than the claims presented in his previous postconviction motion.
Accordingly, Paine’s claim of ineffective assistance of counsel claim is
procedurally barred. See Escalona-Naranjo, 185 Wis. 2d at 186.

¶27 Because we conclude that Paine’s ineffective assistance of counsel
claims are procedurally barred, we do not address whether he has alleged
sufficient material facts to entitle him to an evidentiary hearing. See Allen, 274
Wis. 2d 568, ¶¶9, 23.

III. New trial in the interests of justice

¶28 We turn to Paine’s claim for a new trial in the interest of justice
pursuant to WIS. STAT. § 752.35. This court may order a new trial under that
statute when the real controversy has not been fully tried or when it is probable
that justice has miscarried. See id. “The power to grant a new trial in the interest
of justice is to be exercised ‘infrequently and judiciously.’” State v. Avery, 2013
WI 13, ¶38, 345 Wis. 2d 407, 826 N.W.2d 60 (citation omitted). We, however,
believe that the real controversy has been fully tried. Accordingly, we reject
Paine’s suggestion that this is the rare case requiring a new trial in the interest of
justice.

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CONCLUSION

¶29 Paine has failed to show that he is entitled to postconviction relief on
the basis of newly discovered evidence or ineffective assistance of counsel.
Therefore, we affirm the circuit court order denying him a new trial or evidentiary
hearing. Further, we decline Paine’s request for a new trial in the interest of
justice.

By the Court.—Order affirmed.

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

14