State v. Jimmy D. McDaniel

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.
July 15, 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. 2020AP950-CR Cir. Ct. No. 2016CF72

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JIMMY D. MCDANIEL,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Crawford County: LYNN M. RIDER, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, 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. Jimmy McDaniel was convicted, after a jury trial
in the Crawford County Circuit Court, of first-degree reckless homicide and
No. 2020AP950-CR

strangulation of Linda Kline. McDaniel appeals the circuit court’s rulings
concerning: an evidentiary objection at trial; the circuit court’s denial of his
request for postconviction discovery; and the circuit court’s denial of his
postconviction motion for a new trial based on the purported ineffective assistance
of his trial counsel. For the following reasons, we affirm the rulings of the circuit
court.

BACKGROUND

¶2 The State charged McDaniel with first-degree reckless homicide in
violation of WIS. STAT. § 940.02(1) (2019-20)1, and strangulation in violation of
WIS. STAT. § 940.235(1). The following is pertinent evidence adduced at the trial
of this matter.

¶3 McDaniel and Kline were in a romantic relationship and, as of early
October 2016, lived with Kline’s sister, Michelle Little, and her husband, Holly
Little. McDaniel and Kline shared a bedroom in the Littles’ basement.

¶4 In the early morning of October 6, 2016, Prairie du Chien Police
Officer Berg was dispatched to the Little residence. Behind the house, Berg saw a
man kneeling, but not moving, with his back toward Berg. When the officer
turned on his flashlight, the man (whom Berg later identified as McDaniel) began
to perform what may have been chest compressions on a woman’s body. As Berg

1
McDaniel was charged, and the trial of this matter took place, when the 2015-16
statutes were in effect. However, those statutes which form a basis for the charges, and the
Wisconsin Rules of Evidence mentioned later in this opinion, relevant to this appeal are
materially unchanged from the 2015-2016 statutes to the current 2019-20 version. Thus, all
subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP950-CR

approached, he saw that the woman he later identified as Kline was “blue and
black in the face” and also noted that the woman was “cold to the touch.”

¶5 At the scene, McDaniel provided to law enforcement information
about events of October 5, 2016, and we now summarize McDaniel’s relevant
statements. At approximately 8:00 p.m., Kline complained of pain and McDaniel
brought Kline an Oxycodone pill.2 Kline then told McDaniel that she was going
to return to the yard of the house to continue work the two had done earlier in the
day. McDaniel told Kline that he was going to bed and went to their room where
he played a game on his phone. About ten to fifteen minutes later, McDaniel left
the bedroom. Thinking that Kline had gone outside, McDaniel yelled for her on
the patio but received no response. McDaniel returned to the house and checked
the garage for Kline. Not finding her there, McDaniel went to the back yard and
saw Kline’s body hanging from a post with a cord around her neck. McDaniel
“untied the knot” on the cord and “took her down.”

¶6 Lieutenant Investigator Fradette from the Crawford County Sheriff’s
Department arrived on the scene after Officer Berg. Fradette saw Kline lying near
an approximately six-foot-high four-by-four post, which was topped by a two-by-
two crosspiece. Two bird feeders, a flowerpot, and an extension cord hung from
the post. Based on his observations, Fradette came to the conclusion at that time
that the post could not support the weight of an adult woman such as Kline. Holly

2
Kline was injured in an ATV accident months before her death and was undergoing
treatment and experiencing pain from that accident at the time of her death.

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No. 2020AP950-CR

Little testified that the post was rotten, weathered, old, and split before the night of
Kline’s death.3

¶7 Doctor Michael Stier, a professor of pathology at the University of
Wisconsin Medical School, conducted an autopsy on Kline. Stier testified
extensively at trial regarding the autopsy and its results, and his pertinent
testimony is summarized here. Stier began the autopsy believing that Kline had
hanged herself. However, in Stier’s view, the autopsy revealed instead that Kline
died of manual strangulation; Stier found no signs of hanging.

¶8 Stier stated that, when a person dies from hanging, the body is
marked by a ligature furrow. Kline’s body lacked any such mark. Stier also
explained that, in hangings, a body will not have petechiae.4 But, Kline had
petechiae all over her face. He also testified that Kline’s body was riddled with
contusions, which reflected that she had suffered from extensive blunt trauma.
According to Stier, Kline suffered from a “cut and dry, clear-cut manual
strangulation” and there was “zero component of hanging.” He described how
Kline’s body showed signs that she fought back against her attacker, including
bruising on her arms.

¶9 McDaniel presented testimony at trial from a different pathologist,
Dr. Carl Wigren, who testified that, in his opinion, there were indications of

3
Michelle Little died shortly before the trial in this matter began.
4
“Petechia” is defined in the Oxford English Dictionary online as: “A small, flat, red or
purple spot caused by bleeding into the skin or other organ.” Petechia, OXFORD ENGLISH
DICTIONARY, https://www.oed.com/view/Entry/141816 (last visited July 9, 2021). “Petechiae” is
the plural form. Id.

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Kline’s suicide by hanging. Further, according to Wigren, petechiae may be
present on a body when there is a hanging.

¶10 The jury found McDaniel guilty of first-degree reckless homicide
and strangulation.

¶11 McDaniel requested postconviction relief in the form of
postconviction discovery and a new trial based on the purported ineffective
assistance of his trial counsel. The circuit court denied McDaniel’s request for
postconviction discovery and concluded that McDaniel’s trial counsel was not
ineffective. McDaniel appeals.

¶12 Other material facts will be discussed later in this opinion.

DISCUSSION

¶13 McDaniel raises three principal issues in this appeal. First, he argues
that the circuit court erred in not excluding a portion of the testimony from Kline’s
mother. Second, McDaniel argues that the circuit court erred in denying his
request for postconviction discovery. Third, McDaniel alleges that his trial
counsel was constitutionally ineffective in not objecting to or moving to strike
evidence, and in not making pre-trial discovery requests identical to his
postconviction discovery requests. We address each issue in turn.

I. Circuit Court’s Evidentiary Ruling.

¶14 McDaniel argues that the circuit court erred in overruling his
objection to testimony elicited on direct examination by the State from Colleen
Munz, Kline’s mother.

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¶15 A circuit court’s decision to admit or exclude evidence is reviewed
as a matter of the circuit court’s discretion. Weborg v. Jenny, 2012 WI 67, ¶41,
341 Wis. 2d 668, 816 N.W.2d 191. This court “will sustain an evidentiary ruling
if it finds that the circuit court examined the relevant facts; applied a proper
standard of law; and using a demonstrative rational process, reached a conclusion
that a reasonable judge could reach.” State v. Sullivan, 216 Wis. 2d 768, 780-81,
576 N.W.2d 30 (1998).

¶16 As background, we note that, when Munz received the news that
Kline had died, she went to the Littles’ home. When Munz arrived, she saw
McDaniel sitting in the house with a deputy. The State asked the following
question at trial, and the transcript reflects only the following:

[Prosecutor]: When you first got there, did you see
Michelle [(Munz’s daughter)]?

[Munz]: When I first got there, I didn’t see
Michelle, but – I didn’t know that [McDaniel] was back in
town, and so I seen him sitting in there, and I yelled at him.
I said, “You finally – It took you three times, but you
finally killed her.”

[Trial Counsel for McDaniel]: I’ll object to all of
this. This is irrelevant and highly prejudicial. I don’t see
the relevance of this testimony.

[Munz]: I said that myself.

THE COURT: Why don’t [counsel] approach?

(Whereupon, a sidebar was taken off the record and
outside the hearing ability of the Jury.)

THE COURT: I’ll overrule that objection and
allow [the prosecutor] to continue.

Immediately thereafter, in response to the next question from the prosecutor,
Munz repeated what she testified was her statement to McDaniel, quoted above.

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No. 2020AP950-CR

Munz also testified that, after McDaniel heard that statement that night, McDaniel
jumped up and “came after” Munz, and a deputy restrained McDaniel.

¶17 Prior to considering McDaniel’s arguments, we discuss aspects of
the record that are pertinent to our analysis. The State asserts, and McDaniel
correctly agrees, that there is no transcript of the sidebar discussion the circuit
court had with counsel regarding McDaniel’s objection to Munz’s testimony. The
State contends that it was McDaniel’s responsibility to ensure that there is a record
of the circuit court’s discussion with counsel during the sidebar in order to
preserve the objection for review on appeal. According to the State, because
McDaniel did not do so, this court must assume that the lack of a transcript
supports the circuit court’s exercise of discretion in ruling on that objection. See
State v. Provo, 2004 WI App 97, ¶19, 272 Wis. 2d 837, 681 N.W.2d 272 (“It is the
appellant’s responsibility to ensure completion of the appellate record and ‘when
an appellate record is incomplete in connection with an issue raised by the
appellant, we must assume that the missing material supports the trial court’s
ruling.’”) (citation omitted).

¶18 Further, McDaniel asserts that the circuit court “did not articulate [its
reasoning regarding the ruling on McDaniel’s objection] at … the post[]conviction
motion hearing.” However, to the extent the parties assert that we have no insight
into the circuit court’s reasoning in making its evidentiary ruling, that is incorrect.
The circuit court explained its reasoning, at least in part, at the postconviction
hearing:

Now, [trial counsel for McDaniel] did … object to
that testimony [(of Munz described above)] on the grounds
of relevancy and undue prejudice ….

I think had … Ms. Munz [said at] the trial [in] an
outburst [that McDaniel] had tried to [kill Kline] three

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No. 2020AP950-CR

times, … certainly that would not have been admissible
testimony and would have been appropriate to strike….
[B]ut I think it was within the context of the whole scene at
the home, after police were called, family is called,
Mr. McDaniel is questioned, and I believe that the reaction
of both Ms. Munz and Mr. McDaniel to the investigation
[and] the situation was relevant, and so I did allow that
evidence to come in.

As we will discuss shortly, the circuit court’s postconviction hearing statements
about its reasoning are not a substitute for a record of the sidebar. But, the circuit
court’s remarks are germane to our analysis. With that in mind, we next discuss
McDaniel’s arguments.

¶19 First, McDaniel argues that the testimony by Munz in dispute had
“probative value” that was “low,” and that probative value was “outweighed by
the danger of undue prejudice to McDaniel.”5 The bases for this argument given
by McDaniel are, without any further explanation from him, that Munz’s
testimony “helped establish an atmosphere of unfairness about the trial,”
“appealed to the jury’s passions,” and “undermined the integrity of the fact finding
process.”

¶20 We begin our discussion of McDaniel’s argument by considering
that there is no record of the statements of counsel during the sidebar at trial at
which that objection to the Munz statement was considered. As discussed, we are
to assume that missing statements made during the sidebar support the circuit
court’s exercise of discretion. See Provo, 272 Wis. 2d 837, ¶19. We have
summarized above pertinent comments of the court at the postconviction hearing.

5
We observe that McDaniel’s argument misstates the standard enunciated in WIS. STAT.
§ 904.03. “[E]vidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice.” Sec. 904.03 (emphasis added).

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No. 2020AP950-CR

From the circuit court’s comments, two reasonable assumptions can be made
about what was said by the State at the sidebar. First, the State informed the
circuit court that Munz’s statement to McDaniel was relevant because it gave
context to McDaniel’s aggressive reaction to Munz, which caused a deputy to
restrain McDaniel as he moved toward her. Second, the State informed the court
that the aggressive reaction from McDaniel toward Munz would be the subject of
the State’s next question to Munz. With those reasonable assumptions, the circuit
court did not erroneously exercise its discretion in determining that the testimony
from Munz was relevant and admissible.

¶21 In addition, as pointed out by the State, it is McDaniel’s burden to
show that the danger of unfair prejudice is substantially outweighed by the
probative value of the evidence under WIS. STAT. § 904.03. See State v. Marinez,
2011 WI 12, ¶19, 331 Wis. 2d 568, 797 N.W.2d 399. McDaniel’s arguments
made in briefing in this court regarding the circuit court’s purported erroneous
exercise of discretion do not engage with the analysis from the circuit court about
why McDaniel’s objection to this testimony was overruled. Indeed, McDaniel
gives us no more than conclusory assertions about alleged prejudice and makes no
attempt to tie his argument to the facts of this case. For that reason alone, we can
reject McDaniel’s unsupported conclusions. See State v. Pettit, 171 Wis. 2d 627,
646-47, 492 N.W.2d 633 (Ct. App. 1992) (stating we need not address
insufficiently developed arguments). With that, we agree with the State that
McDaniel has failed to meet his burden to show that the circuit court’s exercise of
discretion in admitting this evidence was improper in light of the requirements of
§ 904.03.

¶22 Second, with little explanation as to his reasoning, McDaniel argues
that Munz’s testimony should have been excluded because it was lay opinion

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No. 2020AP950-CR

evidence under WIS. STAT. § 907.01 and “merely the uninformed opinion of a
relative.” However, there is no basis to conclude that the circuit court admitted the
testimony as lay opinion evidence. As noted in the circuit court’s remarks at the
postconviction hearing, what was relevant about Munz’s challenged trial
testimony was the context of what she testified were her statements to McDaniel
on the night of her daughter’s death, and his reaction to them, involving “the
whole scene at the home” that night. For those reasons, the circuit court did not
admit the testimony as lay opinion evidence under § 907.01, and McDaniel’s
argument fails.

¶23 In sum, we conclude that McDaniel has failed to show that the
circuit court’s evidentiary ruling was not a proper exercise of discretion. See
Sullivan, 216 Wis. 2d at 780-81.

II. McDaniel’s Postconviction Discovery Requests.

¶24 McDaniel argues that the circuit court erred in not granting his
request for postconviction discovery. We start our analysis by considering
governing principles and our standard of review.

A. Governing Principles and Standard of Review.

¶25 A defendant has a right to postconviction discovery “when the
sought-after evidence is relevant to an issue of consequence” and there is a
reasonable probability that, had the evidence been disclosed to the defense, “the
result of the proceeding would have been different.” State v. O’Brien, 223 Wis.
2d 303, ¶¶24-25, 588 N.W.2d 8 (1999). A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id., ¶24. The parties agree

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No. 2020AP950-CR

that our standard of review requires us to determine whether the ruling of the
circuit court is clearly erroneous. Id. at ¶26.

¶26 We next consider the circuit court’s rulings on each postconviction
discovery request from McDaniel.

B. Request for Tissue Slides.

¶27 McDaniel requested that the circuit court allow his pathology expert
who testified at trial, Dr. Wigren, to examine slides of tissue taken from Kline’s
body at the autopsy in an attempt to determine the age of bruising on Kline’s body
found during the autopsy. The circuit court denied the request based on its
determination that the age of any bruises on the decedent would not have made
any “difference to the jury” in determining any issue of consequence. The State
asserts that no tissue samples were taken from bruises on Kline’s body during the
autopsy and, as a result, the production of the slides would not make a difference
regarding the age of the bruises on Kline’s body at or around the time of her death.
In reply in this court, those factual assertions from the State are not mentioned or
rebutted by McDaniel. We could take that failure to attempt to rebut those factual
assertions as a concession by McDaniel that the production of the tissue slides
would not be relevant to an issue of consequence. See Charolais Breeding
Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App.
1979) (unrebutted arguments are deemed conceded).

¶28 As important, the record supports the State’s position. Dr. Stier
testified at trial that he took samples of tissue from Kline’s body and placed those
on slides to look for diseases that would be apparent only through microscopic
review. The trial testimony of Dr. Wigren shows that Wigren wanted the slides of

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No. 2020AP950-CR

tissue from Kline’s body to check for fat in Kline’s liver. Also, Dr. Wigren
testified that Stier never took a tissue sample of any bruise.

¶29 For those reasons, the circuit court properly exercised its discretion
in denying McDaniel’s request for postconviction discovery of the tissue slides
because McDaniel fails to show how the evidence requested could be relevant to
an issue of consequence in this action. See O’Brien, 223 Wis. 2d 303, ¶¶24-25.

C. Request for DNA Testing.

¶30 Second, McDaniel argues that the circuit court erred in denying his
request for DNA testing of the electrical cord that was found near Kline when law
enforcement arrived on the night of Kline’s death. McDaniel’s argument is based
on the assertion that, if Kline’s DNA is found near the knot in the cord, it would
help establish that she made the knot and committed suicide. The circuit court
denied the request and said:

So the Court finds that the burden is on the moving
party to show that the “Evidence is consequential to an
issue in this case, and had the evidence been discovered,
the result of the proceeding would have been different.”

The court also said:

Further, with regard to the cord that was alleged to
have been used as a ligature, it would make no sense to
bother to do DNA testing of that cord because had the
DNA of Jimmy McDaniel been present, or had the DNA of
Linda Kline been present, it doesn’t tell us anything. It
tells us they may have used that cord, but they both were
residing at that house. So it doesn’t make it any more
likely that Mr. McDaniel either did commit this offense or
did not commit this offense.

¶31 We conclude that McDaniel fails to show that the circuit court did
not properly exercise its discretion in denying this request. The court sufficiently

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No. 2020AP950-CR

articulated the applicable standards to apply to the request, was aware of the
material facts, and came to a conclusion a reasonable judge could make. The court
concluded that the likelihood of Kline’s DNA being detected on the cord was high
because it was in the same house Kline lived in. If Kline’s DNA was discovered
on the cord, that would not assist in answering whether her death was a suicide.
As a result, we agree with the circuit court’s determination that McDaniel has not
met his burden to show that, had the cord been tested for Kline’s DNA, the results
of the proceeding would have been different. See O’Brien, 223 Wis. 2d 303,
¶¶24-25.

¶32 In sum, we affirm the circuit court’s rulings denying McDaniel’s
requests for postconviction discovery.

III. Allegations of Ineffective Assistance of Counsel.

¶33 McDaniel alleges that his trial counsel was constitutionally
ineffective in not moving to strike evidence, not making certain evidentiary
objections, and not requesting pretrial discovery on the two subjects on which
McDaniel requested postconviction discovery. We start by reviewing governing
principles and our standard of review.

A. Governing Principles and Standard of Review.

¶34 Wisconsin applies a two-part test to evaluate a defendant’s claim
that his counsel was ineffective. State v. Roberson, 2006 WI 80, ¶28, 292 Wis. 2d
280, 717 N.W.2d 111. A defendant must establish both that counsel’s
performance was deficient, and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). If a defendant
fails to prove either prong, a court need not address the other. State v. Floyd, 2016

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No. 2020AP950-CR

WI App 64, ¶22, 371 Wis. 2d 404, 885 N.W.2d 156, aff’d, 2017 WI 78, 377 Wis.
2d 394, 898 N.W.2d 560.

¶35 In evaluating the prejudice component of Strickland, this court
determines whether the defendant has proven that his counsel’s errors “actually
had an adverse effect on the defense.” Strickland, 466 U.S. at 693. A defendant
cannot meet this burden by merely showing that the errors had “some conceivable
effect on the outcome”; rather, the defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 693-94. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

¶36 Appellate review of an ineffective assistance of counsel claim
presents a mixed question of fact and law. We will not disturb the circuit court’s
findings of fact unless those are clearly erroneous. The determination of whether
counsel’s performance falls below the constitutional minimum is a question of law
subject to our independent review. State v. Cooks, 2006 WI App 262, ¶34, 297
Wis. 2d 633, 726 N.W.2d 322.

B. Motions to Strike and Evidentiary Objection.

¶37 McDaniel argues that trial counsel’s representation was deficient
regarding Munz’s testimony, discussed above, that on the night of Kline’s death
Munz accused McDaniel of killing Kline. McDaniel notes in briefing in this court
that trial counsel properly objected the first time that Munz testified before the
jury to making this accusation. Nonetheless, McDaniel contends that trial
counsel’s performance was deficient because, the first time Munz testified to
making the accusation, trial counsel did not in addition move to strike Munz’s

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No. 2020AP950-CR

answer. In a similar vein, McDaniel argues that trial counsel was ineffective
because he did not object to Munz’s identical testimony a short time later.

¶38 We reject McDaniel’s arguments because, as pointed out by the
State, an attorney does not perform deficiently for declining to make an objection
that would have failed. State v. Wheat, 2002 WI App 153, ¶14, 256 Wis. 2d 270,
647 N.W.2d 441. Here, McDaniel makes no attempt to explain why a motion to
strike testimony that has been admitted by the circuit court, over an objection,
would have any chance of success. Further, in light of the circuit court’s
reasoning for its evidentiary ruling expressed at the postconviction hearing and the
two reasonable assumptions about what the State informed the court during the
sidebar as discussed above, McDaniel makes no coherent argument why trial
counsel would have reasonably expected that the court would exclude the second
piece of testimony on this topic by Munz when shortly before the circuit court
allowed that same testimony. In those circumstances, the motion to strike and a
further objection would have been fruitless and, as a result, there is no deficient
performance on trial counsel’s part.

¶39 McDaniel separately argues that trial counsel was ineffective
because he did not object to testimony by Munz that McDaniel on appeal
categorizes as a statement that McDaniel “flirt[ed]” with Munz. More
specifically, Munz testified that, on Mother’s Day 2016, she met McDaniel for the
first time at a family dinner at a restaurant. At that time, McDaniel tried to kiss
Munz, but she told McDaniel, “No.” Kline was not present at that time because
she was in the hospital due to injuries she suffered from the ATV crash. Later that
same day, Michelle Little brought McDaniel to Munz’s home, and McDaniel
asked Munz if they were going to have a problem when Kline was released from
the hospital. When Munz asked McDaniel what he meant, McDaniel replied,

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No. 2020AP950-CR

according to Munz, “Well, fighting over me. I thought you’d have a black man by
now.” At that, Munz testified, she told Michelle Little to take McDaniel out of her
home and not to bring him back.

¶40 McDaniel argues that trial counsel should have objected to that
testimony. But, other than a generalized statement that this testimony “helped
establish an atmosphere of unfairness about the trial,” McDaniel gives no basis for
this court to conclude that McDaniel was prejudiced by trial counsel’s failure to
object. In the context of the testimony from Dr. Stier concerning strangulation as
the cause of Kline’s death, Stier’s testimony that Kline fought her attacker, and the
physical facts as observed by law enforcement that lead to the conclusion that the
post in the yard could not have supported Kline’s body, McDaniel has failed to
establish that the testimony from Munz alleging “flirting” by McDaniel leads to
the conclusion that such evidence made a difference to the result in this case. See
Strickland, 466 U.S. at 694.

¶41 McDaniel also argues that his trial counsel was ineffective for failing
to move to strike testimony elicited on cross-examination of Munz that her
daughter, Michelle, told her before Michelle’s death that McDaniel had threatened
Michelle. More particularly, Munz testified that, when Munz asked Michelle why
she had not told Munz about the ATV crash sooner, Munz “was told the reason
why she did not tell [her] is because [McDaniel] threatened [Michelle].” Again,
the only prejudice alleged by McDaniel is that counsel’s failure to have the
testimony stricken “helped established an atmosphere of unfairness about the
trial.” McDaniel’s burden to show prejudice from trial counsel’s purported
deficiency fails in this instance for the same reasons just discussed. McDaniel
gives us no basis to conclude that, in light of the strength of other incriminating
evidence, this testimony from Munz made a difference to the result.

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No. 2020AP950-CR

C. Pretrial Discovery Requests.

¶42 Finally, McDaniel argues that his trial counsel was ineffective for
not requesting pretrial the slides of tissue removed from Kline’s body during the
autopsy and not requesting DNA testing of the area of the cord near where the
knots were found. However, as already discussed, the slides of tissue and DNA
testing would not have made a difference to any consequential issue in this matter.
It then follows that there is no prejudice to McDaniel in his trial counsel not
requesting that discovery pretrial.

¶43 In sum, we affirm the circuit court’s ruling that McDaniel has not
established that his trial counsel was constitutionally ineffective.

CONCLUSION

¶44 For the foregoing reasons, we affirm the judgment of conviction and
the postconviction rulings of the circuit court.

By the Court.—Judgment and order affirmed.

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

17