State v. Jovan T. Mull

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 1, 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. 2020AP1362-CR Cir. Ct. No. 2015CF2419

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOVAN T. MULL,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JONATHAN D. WATTS and JOSEPH R. WALL, Judges.
Reversed and cause remanded for further proceedings.

Before Donald, P.J., Dugan 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).
No. 2020AP1362-CR

¶1 PER CURIAM. Jovan T. Mull appeals from an order denying his
motion for a new trial following a remand for the postconviction court to hold a
Machner1 hearing on two of Mull’s claims that he received ineffective assistance
of counsel. Following the hearing, the postconviction court denied Mull’s claims
that his trial counsel was ineffective for failing to present a third-party perpetrator
defense and for failing to move to strike or move for a mistrial following hearsay
testimony from a witness alleging that Mull was bragging about shooting the
victim. For the reasons set forth below, we conclude that Mull received
ineffective assistance of counsel. Therefore, we reverse the order of the
postconviction court, and we remand this matter for a new trial.

BACKGROUND

¶2 Ericka Walker was shot and killed during a party at her house on
March 7, 2015. Witness accounts described that, just prior to the shooting, a fight
broke out between two partygoers, Davion Crumble and Vashawn Smyth,2 when
Crumble and Smyth bumped into each other. Then, in an effort to escape the
fight, Walker barricaded herself in her bedroom with Crumble and some others
who had been involved in the fight. The fight continued as people outside the
bedroom tried to get in, and people inside the bedroom threw items at the people
standing outside the door. Ultimately, while Walker and others were in the

1
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
2
The record reflects both a spelling of “Smith” and a spelling of “Smyth.” We use the
latter spelling because it was the spelling that Vashawn provided of his name during the trial.
Moreover, several of the individuals involved in this case were referred to using nicknames;
however, there are no disputes over which person is associated with which nickname, and we
refer to the individuals involved in this case by their legal names.

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No. 2020AP1362-CR

bedroom with the door closed, someone outside the bedroom fired multiple shots
through the closed door, hitting and killing Walker.

A. The Police Investigation

¶3 Several witnesses provided statements to the police about the
shooting, and Smyth testified at the subsequent trial that he was originally arrested
for the shooting. Smyth denied that he was the shooter, and he even denied that he
was armed that night. Instead he identified both Mull and Tyler Harris as having
guns that night. The police then turned their attention to Tyler Harris as a suspect
based on the information provided by Smyth. Eventually, the police also turned
their attention to Menjuan Bankhead as a suspect based on statements from
witnesses describing that Bankhead was standing by the bedroom door and
shouting “shoot into the door.” Ultimately, the investigation led to Mull’s arrest.

B. Mull’s Jury Trial

¶4 Mull was subsequently charged with first-degree reckless homicide
for Walker’s death. The matter proceeded to a four-day jury trial. The State
called multiple witnesses at trial, including witnesses from the party and
investigating officers. The defense did not call any witnesses, and Mull did not
testify.3 The jury found Mull guilty as charged.

3
The defense filed a witness list that was substantially similar to the witness list filed by
the State. During the trial, the defense indicated that it would not call any witnesses as a result of
being unable to locate them. The State, having had many of the same witnesses on its list, echoed
trial counsel’s statement saying that it was similarly unable to locate certain witnesses, but the
State did not provide the names of the witnesses that it was unable to locate.

3
No. 2020AP1362-CR

¶5 At the trial, witnesses from the party testified that there was one
shooter who fired multiple shots through the closed bedroom door. Smyth
testified that he went to the party that night with Bankhead and Casie James, and
he started fighting when Crumble bumped into him and someone pulled out a
taser.4 Smyth testified that the fight escalated into “a big brawl” between his
friends and Crumble’s friends. Smyth testified that the fight ended when Crumble
left the room, and he saw two people—Mull and Tyler Harris—with guns in the
living room.5 Smyth then testified that he saw Mull pointing a gun towards the
bedroom door just “[a]fter my people was fighting and everything.” Smyth said
he was near the bathroom and heard the shots fired, but he did not actually see
Mull fire any shots. He also described that Mull was wearing a blue hooded
sweatshirt that night and another partygoer, Sanchez Harris, was wearing a red
hoodie. He testified that he was wearing a black hooded sweatshirt, and he has
“tattoos everywhere, right arm, left arm, chest, neck,” with a half sleeve on his
right arm.6 Smyth also testified that he was originally arrested for the shooting.

¶6 Sanchez Harris testified that he rode with Mull to the party that night
and Mull told him that he was carrying a gun. Sanchez further described that Mull
was wearing a red Wisconsin Badgers sweatshirt that night, and he further testified
that the person he saw fire shots at the bedroom door was wearing a red hoodie
and “Rock Revival” pants. At other points in his testimony, Sanchez said that he

4
Smyth testified that he did not know the name of the person who bumped into him at
the party. However, it is clear from the witness accounts that the fight broke out between
Crumble and Smyth after the two bumped into each other.
5
Witness accounts place the bedroom as located off the living room.
6
Smyth was questioned at trial whether he had “a sleeve tattoo,” and Smyth responded
that he would consider the tattoo on his right arm to be “a half a sleeve.”

4
No. 2020AP1362-CR

did not actually see Mull fire any shots. Rather, he saw a person with dreads and a
red hoodie fire the shots, and he said that Mull “probably did it” based on what he
saw and Mull’s statement during the car ride home that Sanchez “better not say
anything.” He also described that Smyth and Bankhead were involved in the fight
that took place just prior to the shooting, and they were in the living room at the
time the shots were fired.

¶7 Alphonso Carter testified that after the fight broke up and Walker
pulled Crumble into the bedroom, “[i]t was like three dudes, and it was like one
dude, say, okay, like, ‘Shoot in there.’ It was two dudes who had a gun, but only
one dude shot.” Carter placed these three men in the living room just outside the
bedroom, and he testified that the shooter was the one wearing a white shirt and
blue jeans. He subsequently identified Mull during a photo array and during the
court proceedings as the one who fired shots at the door, but he admitted he only
had a side profile of the shooter.

¶8 Desmand Butler testified that a fight broke out between Crumble and
someone else that he did not know, and he described that the fight continued when
Crumble and others retreated to the bedroom and started throwing items out of the
bedroom. Then, Butler testified that he saw someone in the living room fire shots
at the bedroom door, and he remembered that the shooter had dreads and was
wearing a red Wisconsin Badgers sweatshirt. He also testified that he did not
know the person who fired the shots, but that he had subsequently identified Mull
as the shooter during a photo array conducted during the investigation. However,
after seeing Mull in the courtroom during the trial, he testified that he no longer
thought that Mull was the shooter because Mull had a different hairstyle, was a
different height, and had different body language than the person he saw fire the
shots that night.

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No. 2020AP1362-CR

¶9 Vachune Hubbard, an associate of Mull’s who was not at the party,
testified that Mull was the shooter and explained that he knew this because Mull
had told him during a phone conversation that he “got to shooting” when the fight
broke out.

¶10 Cheyenne Pugh, Walker’s former girlfriend, also testified to
information about the identity of the shooter that she received in the days after the
shooting. As Pugh testified at trial, she was not at the party and did not witness
the shooting. However, in the days following the shooting, she received
condolences from members of the community along with information indicating
that Smyth was the shooter and other information indicating that Mull was the
shooter. On cross-examination, trial counsel questioned Pugh further about where
she received this information, and in response to a question asking who Pugh
meant by “they,” Pugh responded in part by saying, “And also another lady was
telling me about him going—being in the hood bragging about it saying that he hit
a lick over there on 35th and he killed the stud bitch.”7

C. Postconviction Proceedings

¶11 Following his conviction, Mull filed a motion requesting a new trial
on the grounds that he received ineffective assistance of counsel and in the
interests of justice. As relevant here, he argued that trial counsel should have
presented a third-party perpetrator defense and argued that either Smyth, Tyler
Harris, or Bankhead was the shooter. Mull additionally argued that his trial
counsel should have called several witnesses from the party to support this

7
Pugh testified that a “stud” is “a female who dresses like a guy.”

6
No. 2020AP1362-CR

defense—including Keshawna Wright, Jalyn Lynch, Charles Cantrell, and Demon
Harris—who provided information during the investigation either inculpating one
of the other three suspects or exculpating Mull.8 In particular, Mull argued that
these witnesses placed either Smyth, Tyler Harris, or Bankhead outside the
bedroom door with a gun and wearing the red sweatshirt that many described the
shooter to be wearing. Mull also argued that one of the witnesses from trial, Pugh,
provided testimony that warranted a motion to strike or a motion for a mistrial,
and he contended that his trial counsel was ineffective for failing to take either
action. The postconviction court denied the motion without a hearing.9

¶12 On appeal, we reversed the order denying Mull’s motion and
remanded the matter for a Machner hearing on Mull’s claims of ineffective
assistance of counsel noted above. State v. Mull, No. 2018AP1349-CR,
unpublished slip op. ¶1 (WI App July 23, 2019).

¶13 At the subsequent Machner hearing, trial counsel testified regarding
his decision not to pursue a third-party perpetrator defense that either Smyth, Tyler
Harris, or Bankhead was the shooter. Trial counsel testified that it was a strategic
decision he made based on the difficulty he had in preparing the defense. He
explained:

8
Trial counsel’s failure to present a third-party perpetrator defense and trial counsel’s
failure to present the named witnesses were argued as separate claims of ineffective assistance of
counsel in the postconviction motion. However, as we noted in our previous decision, “we
consider his ineffective assistance allegation as to a third-party perpetrator defense to embrace his
allegation as to these five witnesses.” State v. Mull, No. 2018AP349-CR, unpublished slip op.
¶5 n.5 (WI App July 23, 2019).
9
The Honorable Jonathan D. Watts presided over the trial and entered the judgment of
conviction. The Honorable Jeffrey A. Conen entered the original order denying Mull’s
postconviction motion. The Honorable Joseph R. Wall presided over the Machner hearing and
the order issued following the hearing.

7
No. 2020AP1362-CR

[P]art of the problem was the chance to interview some of
these people. Especially some of the other people, it was
difficult to locate using an investigator.

We had attempted to interview other people; but
specifically in this case, a lot of people had aliases and
other names that usually don’t come up in the phone book.

….

And trying to get—locate some of these people was
very difficult to the best of my memory.

However, trial counsel was unable to recall specific names of those witnesses he
tried to locate. He further stated that even the State had trouble locating these
same witnesses:

But as the [S]tate even had them on their witness
list, it was discussed that neither my investigator nor the
[S]tate could locate these people at the time of trial.

And, therefore, we also couldn’t locate them prior
to trial. So to properly put together this Denny motion
would have been very difficult because I couldn’t locate
certain individuals.

¶14 As it specifically related to presenting a defense that Smyth was the
shooter, trial counsel was questioned why he could not present the defense based
on further questioning of Smyth during the trial. Trial counsel explained:

There was a lot of credibility issues if I recall based
upon this. As I said, trying to put together the
investigation, that trying to obtain statements from certain
individuals was very hard.

Going with a reasonable doubt defense in this
situation given the inability to reach certain people seemed
to be a choice of defense.

Thus, trial counsel testified that he did not pursue a third-party perpetrator defense
given the difficulties he encountered in putting such a defense together. Instead,
trial counsel decided to present “a reasonable doubt defense.” Trial counsel

8
No. 2020AP1362-CR

described this defense as testing the credibility of the witnesses because “there was
a lot of other people there giving conflicting statements as to who the shooter
was.” As trial counsel explained, “There were other people with guns in the party.
There were other people who were shooting outside after the incident. Different
people had identified other shooters, that there were different descriptions of
outfits given by various people.”

¶15 On the matter of Pugh’s testimony, trial counsel testified at the
hearing that he did not move to strike Pugh’s testimony or move for a mistrial
because

[i]t was more attempting to attack the whole foundation of
where this statement came from, the credibility of the
witness, that we didn’t have these text messages or, you
know, where did these come from that this victim—this
witness because of a relationship with the victim had
motive to lie.

Trial counsel also explained that, in context, Pugh’s testimony referring to Walker
as a “stud bitch” was not as offensive as it appeared because that was Walker’s
nickname. Trial counsel testified:

Because under the circumstances, I felt there was better
ways to attack it and sometimes to raise—given all the
other cast of characters that was in this trial, there was a lot
of other unique twists and turns that if we brought too
much attention to it versus just going to attacking the
credibility and the motive of this witness it would bring too
much attention to the jury.

¶16 The postconviction court denied Mull’s motion following the
hearing. Mull has again appealed the denial of his postconviction motion
requesting a new trial.

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No. 2020AP1362-CR

DISCUSSION

¶17 On appeal, Mull argues that the postconviction court erroneously
denied his motion because he received ineffective assistance of counsel. Mull
additionally argues that the interests of justice require that he be granted a new
trial. We conclude that Mull received ineffective assistance of counsel.
Consequently, we do not address Mull’s claim regarding the interests of justice.
See State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (stating that
appellate courts should resolve appeals “on the narrowest possible grounds”).

I. Ineffective Assistance of Counsel

¶18 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of
counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334.
A defendant must show two elements to establish that his or her counsel’s
assistance was constitutionally ineffective: (1) counsel’s performance was
deficient; and (2) the deficient performance resulted in prejudice to the defense.
Id.

¶19 “To demonstrate deficient performance, the defendant must show
that his counsel’s representation ‘fell below an objective standard of
reasonableness’ considering all the circumstances.” State v. Carter, 2010 WI 40,
¶22, 324 Wis. 2d 640, 782 N.W.2d 695 (citation omitted). Prejudice occurs when
counsel’s error is of such magnitude that there is a “reasonable probability” that
but for the error the outcome would have been different. State v. Erickson, 227
Wis. 2d 758, 769, 596 N.W.2d 749 (1999). “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ That requires a

10
No. 2020AP1362-CR

‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen v.
Pinholster, 563 U.S. 170, 189 (2011) (citations omitted).

¶20 “An ineffective assistance of counsel claim presents a mixed
question of fact and law.” State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914
N.W.2d 95. “We will not reverse the circuit court’s findings of fact unless they
are clearly erroneous.” Id. “We independently review, as a matter of law,
whether those facts demonstrate ineffective assistance of counsel.” Id.

A. Failure to Present a Third-Party Perpetrator Defense

¶21 Mull first argues that he received ineffective assistance of counsel
because his trial counsel failed to present a third-party perpetrator defense. In
particular, Mull argues that his trial counsel should have presented a defense that
either Smyth, Tyler Harris, or Bankhead was the shooter and his trial counsel
should have presented the testimony of several additional witnesses to support this
defense. We agree, and we conclude that trial counsel was ineffective for failing
to present a third-party perpetrator defense.

¶22 When a defendant is seeking “to present evidence that a third party
committed the crime for which the defendant is being tried, the defendant must
show ‘a legitimate tendency’ that the third party committed the crime; in other
words, that the third party had motive, opportunity, and a direct connection to the
crime.” State v. Wilson, 2015 WI 48, ¶3, 362 Wis. 2d 193, 864 N.W.2d 52
(quoting State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984)). All
three factors must be present, and “the fact that a person with a motive to commit
the crime is present at the crime scene is not enough to satisfy both ‘opportunity’
and ‘direct connection.’” Id., ¶54. Moreover, “presence does not necessarily

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No. 2020AP1362-CR

create either motive or direct connection; and presence does not necessarily move
the defendant’s theory beyond speculation[.]” Id., ¶55.

¶23 Mull argues that evidence that his trial counsel failed to present at
trial would have satisfied this standard. Specifically, Mull argues that his trial
counsel should have presented evidence that shows that Smyth, Tyler Harris, and
Bankhead all had motive, opportunity, and a direct connection to the shooting. As
nearly all the witnesses at trial and in the investigation establish, Smyth and
Bankhead were involved in the fight that immediately preceded the shooting, and
several witnesses place both Smyth and Bankhead in front of the bedroom door
wearing items of clothing similar to what the shooter is described to have worn.
Several witnesses also indicate that there was a third man in this group, and
statements taken by the police during the investigation—including those given by
Smyth, Bankhead, and Tyler Harris—indicate that Tyler was with Smyth and
Bankhead that night.

¶24 Thus, Mull contends that if anyone had a motive, opportunity, and
direct connection to the shooting, it would have been Smyth and his two friends,
and if anyone fit the description of the three men standing outside the bedroom
door that night, it was Smyth, Bankhead, and Tyler Harris. In other words, the
evidence Mull identifies meets the standard for a third-party perpetrator defense.
The fight provided the “plausible reason to commit the crime,” and the statements
show that all three men were involved in the fight and were in the living room
with guns provides a “practical possibility” that they committed the crime and
“take[s] it beyond mere speculation.” See Wilson, 362 Wis. 2d 193, ¶¶57-59.

¶25 One of the first witnesses Mull identifies as being a person trial
counsel should have called is Keshawna Wright. During the investigation, Wright

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No. 2020AP1362-CR

provided a statement to the police that she saw the shooter, and she described the
shooter as a black male with “short black afro hair, wearing a red and black hoodie
sweat shirt,” which fits Smyth’s own description of what he testified he wore that
night to the party. Wright also connected the fight directly to the shooting and
Smyth when she described that the fight started when Crumble bumped into the
shooter, words were exchanged, and the two began to fight. During a subsequent
photo array, Wright also identified Smyth as the shooter and said she was “certain,
absolutely certain, positive” about her identification.

¶26 As Mull contends, this witness alone would have provided a third-
party perpetrator defense because Wright’s statement demonstrates that Smyth had
motive, opportunity, and a direct connection to the shooting. Based on Wright’s
testimony, Smyth was involved in the fight that immediately preceded the
shooting, and Smyth was fighting opposite the individuals that retreated to the
bedroom. Wright’s testimony also placed Smyth at the bedroom door when the
shots were fired, and she even identified Smyth as the shooter with absolute
certainty. Nevertheless, Mull provides several other pieces of information in
addition to Wright’s statement that were uncovered during the investigation that
could have been presented to mount a third-party perpetrator defense.

¶27 In addition to Wright, Demon Harris identified that there were two
males at the party who were both wearing red shirts and claiming to have guns.
He also stated that he saw three men trying to enter the bedroom. He described
that one of these men was part of the fight and was wearing a black shirt and black

13
No. 2020AP1362-CR

jeans, and another man was wearing a red long-sleeve shirt and black jeans.10
Dejuan Harris provided a statement saying that he attempted to break up the fight
by removing Crumble to the bedroom, but Crumble tried to throw things from the
bedroom at the people he was fighting with and who were standing outside the
door.11 Based on the descriptions of the clothing provided, these statements would
place Smyth and Bankhead at the bedroom door at the time of the shooting. Also,
as further described below, Tyler Harris was identified as being with Smyth and
Bankhead that night; therefore, a reasonable inference from these statements is
that it was Smyth, Bankhead, and Tyler Harris trying to enter the bedroom when
the shots were fired.

¶28 Further, Loretta Collins provided a statement to a similar effect, in
which she described that one of the men in the fight threw things out of the
bedroom at the men standing at the door. Collins then said she saw one of the men
standing outside the bedroom door fire shots into the door. She described the
shooter as having dreads and wearing a black hooded sweatshirt, which is again
similar to how Smyth described the clothing he wore that night and places him at
the bedroom door.

10
James stated that Smyth was wearing a black hooded sweatshirt and dark jeans that
night and Bankhead was wearing a red hooded sweatshirt with a Wisconsin Badgers logo. Smyth
further testified that he had a black shirt on that night, and Bankhead provided a statement to
police during the investigation that he was wearing a Wisconsin Badgers sweatshirt. Crumble
also provided a statement that the person who bumped into him and that he fought with (Smyth)
was wearing a black shirt.
11
Crumble also provided a statement to police stating that one of the people in the room
threw a bottle out the door and he swung the handle of a broomstick at the people standing
outside the door.

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No. 2020AP1362-CR

¶29 Charles Cantrell also provided a statement indicating that he saw the
shooter, and he described the shooter as wearing a red hoodie and black pants
earlier in the night. He further stated that, at the time of the shooting, the shooter
was no longer wearing the red hoodie, and Cantrell noticed that the shooter’s arm
was fully tattooed. Smyth described himself as having “tattoos everywhere, right
arm, left arm, chest, neck,” with a half sleeve on his right arm. Furthermore,
Bankhead described in his statement that he was wearing a red hooded sweatshirt
earlier in the night that was removed during the fight. Thus, Cantrell’s statement
also places Smyth and Bankhead at the bedroom door at the time the shots were
fired, and indicates that either one could have been the shooter.

¶30 Even further, Jalyn Lynch placed Bankhead outside the bedroom
door when she provided a statement to police wherein she described that
Bankhead was armed and standing outside the bedroom door at the time of the
shooting yelling, “Shoot through that motherfucker.”12

¶31 Bankhead also provided a statement that he and Smyth were fighting
at the party. Bankhead described that one of the people he was fighting with tased
him, and Bankhead was injured again when he hit his head on the kitchen cabinet
during the fight.13 He also stated that he was wearing a red Wisconsin Badgers
sweatshirt to the party that night, and Smyth was wearing Rock Revival pants.

12
We note that this is a statement similar to the one given by Carter during the trial in
which Carter testified that he saw three men, two of them armed, and one of them was yelling to
shoot through the door.
13
James provided a statement to police that Bankhead was bleeding badly after the fight,
that he smeared blood on the car, and made a comment about “[b]eating their ass.”

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No. 2020AP1362-CR

¶32 Additionally, Tyler Harris provided a statement to the police when
he was interviewed following his arrest in which he says that he went to the party
that night with Smyth, Bankhead, and James, and he was close by the shooter
when the shots were fired. Bankhead also provided information to the police that
Tyler Harris “hung around” Smyth that night, and Smyth told police during one of
his interviews that he considered Tyler a “family member” and that Tyler told him
that he had “emptied [his] clip” that night and needed to “stay low.” These
statements would then make Tyler Harris a plausible suspect as the third person
seen standing outside the bedroom door with Smyth and Bankhead and, therefore,
another possible shooter given that other witnesses indicated that Tyler Harris was
armed that night.

¶33 In short, there were a number of witnesses who were interviewed
during the police investigation who provided information that could have been
used to present a defense that Smyth, Bankhead, or Tyler Harris was the shooter
that night. As trial counsel testified at the Machner hearing, he did not present the
evidence identified by Mull because he had difficulty locating the witnesses
needed to support a defense that either of the three men was the shooter. He
further testified that he worked with an investigator, who was unable to locate the
witnesses, and the State, with its more abundant resources, was also unable to
locate these witnesses.

¶34 We are not persuaded by trial counsel’s testimony, and we conclude
that trial counsel’s performance was deficient for failing to pursue alternative
means of presenting this evidence. As Mull contends, trial counsel could have
expanded on testimony from witnesses, such as Smyth and Sanchez Harris, who
already testified at trial to present a third-party perpetrator defense; trial counsel
could have pursued other means of securing the witnesses for trial through a

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No. 2020AP1362-CR

subpoena or material witness warrant; and trial counsel could have sought
admission of the police statements given by these witnesses during the
investigation under WIS. STAT. § 908.045 (2019-20),14 if they truly could not be
found for trial and were, therefore, rendered unavailable.

¶35 The State argues that trial counsel’s performance was not deficient
because trial counsel chose to present a “reasonable doubt” defense after he
encountered difficulties in locating witnesses and trial counsel’s strategy choice is
“unassailable.” See State v. Breitzman, 2017 WI 100, ¶65, 378 Wis. 2d 431, 904
N.W.2d 93. As the State also contends, a third-party perpetrator defense was
“unavailable” because the witnesses could not be located, and the State
specifically points to its own unsuccessful efforts to locate Wright in support. It
also argues that trial counsel’s chosen strategy was reasonable because the
prosecution’s case was “relatively weak.” See Lema v. United States, 987 F.2d
48, 54 (1st Cir. 1993).

¶36 Initially, we note that in making this argument, the State fails to
refute Mull’s argument that trial counsel could have sought admission of the
witnesses’ statements taken during the investigation under WIS. STAT. § 908.045.
Thus, we consider the State to have conceded Mull’s argument on this point by
failing to refute it. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90
Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (holding that failing to refute an
argument constitutes a concession). Moreover, we further reject the State’s
argument because trial counsel’s strategic decision was objectively unreasonable

14
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP1362-CR

given that he could have pursued any of the alternatives that Mull identified in
order to present a third-party perpetrator defense. See State v. Kimbrough, 2001
WI App 138, ¶¶32-34, 246 Wis. 2d 648, 630 N.W.2d 752.

¶37 The State further argues that trial counsel’s strategy was reasonable
because the jury ultimately heard that Smyth, Bankhead, or Tyler Harris was
possibly the shooter as a result of the “reasonable doubt” strategy and, thus, there
is no appreciable difference between the trial strategy counsel chose and the third-
party perpetrator defense. However, such references to any of these three
individuals were opaque and minor in the overall context of the trial. Further, trial
counsel never explicitly argued to the jury that one of them was the shooter,
making these isolated references meaningless for purposes of the jury being able
to identify them as potential shooters. In fact, the prosecutor specifically said that
Smyth was not the shooter in opening statements, and with such a statement from
the prosecutor, it makes it difficult to say the jury would have been able to
understand any indirect references to another shooter.

¶38 Moreover, in pursuing the reasonable doubt defense, trial counsel
merely highlighted the discrepancies and inconsistencies in the witness accounts
without providing an alternative theory to explain those discrepancies. A decision
to present a third-party perpetrator defense would have turned an argument that the
witnesses gave conflicting descriptions of what Mull was wearing and what Mull
was doing into a defense that it was someone other than Mull who was firing shots
at the bedroom door. In fact, this was exactly how trial counsel presented the case
to the jury when he turned the discrepancies about what the shooter was wearing
into an issue of what was Mull wearing, while he was doing the shooting: “[W]e
know from the State that there’s only one shooter, but yet we’ve heard multiple

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No. 2020AP1362-CR

different versions of supposedly … my client being the shooter, but yet he’s
wearing all these different outfits.”

¶39 “‘[F]acts give meaning to other facts,’ and certain pieces of evidence
become significant only in the aggregate, upon the proffer of other evidence.”
Wilson, 362 Wis. 2d 193, ¶53 (citation omitted). Without the additional facts
Mull identifies now, the significance of any references to Smyth, Bankhead, or
Tyler Harris as the shooter were not clear for the jury and, therefore, we reject the
State’s argument that there was no appreciable difference between trial counsel’s
chosen strategy and a third-party perpetrator defense.

¶40 We also conclude that Mull was prejudiced by trial counsel’s
deficient performance. The State had multiple weaknesses in its case as a result of
the inconsistencies in the witness accounts.15 For example, Sanchez Harris
provided testimony that he saw the shooter and identified Mull as the shooter.
However, he then provided further testimony contradicting himself when he said
that he did not see the shots being fired. Butler also specifically recanted his
pretrial identification of Mull when he testified that Mull was not the same height
and did not have the same body language as the shooter Butler witnessed at the
party that night. Moreover, the testifying witnesses provided differing accounts of
what the shooter was wearing, and while multiple witnesses placed the shooter in a
red hoodie, Smyth testified that Mull was wearing a blue hooded sweatshirt. Had

15
We note that in one breath, the State argues the prosecution had a relatively weak case,
which made trial counsel’s chosen strategy a reasonable one, and in another breath, the State
argues that its case was strong enough that had the jury heard the additional evidence identified
by Mull, the outcome would have been the same. The State cannot have it both ways, and we
will not consider the State’s case relatively weak in order to defeat Mull’s argument on deficient
performance but then strong enough to defeat Mull’s argument on prejudice.

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No. 2020AP1362-CR

Mull been able to present additional evidence that Smyth, Bankhead, and Tyler
Harris were at the party together, involved in the fight, armed, and described as
wearing attire similar to that of the shooter, there is a reasonable probability that
the outcome would have been different. See Erickson, 227 Wis. 2d at 769.

¶41 As a result of trial counsel’s decision, Mull was denied the
opportunity to present evidence of the full picture to the jury in a way that
provided an explanation for those discrepancies to the jury. See State v. Domke,
2011 WI 95, ¶60 & n.11, 337 Wis. 2d 268, 805 N.W.2d 364. Had trial counsel
presented the additional evidence that Mull identifies, the jury would have been
presented with, for example, a witness account that placed Bankhead in the red
hoodie the shooter was seen wearing and in front of the bedroom door, another
witness account identifying Smyth as the shooter with absolute certainty, and
another account that Tyler Harris “emptied [his] clip” at the party. As it currently
stands, the jury was provided with a picture of Mull being the shooter while
witnesses disagreed on what Mull was wearing. Had it heard this additional
evidence, the jury would have been presented with other suspects to consider and
provided the full picture in which it might have been someone else standing in
front of that bedroom door.

¶42 It is the jury’s obligation to weigh and assess the credibility of the
evidence and resolve conflicts in the testimony when determining a defendant’s
guilt or innocence. See State v. Gomez, 179 Wis. 2d 400, 404, 507 N.W.2d 378
(Ct. App. 1993). Without the jury having knowledge of the evidence currently
identified by Mull and the ability to weigh and assess these additional witness
accounts, we cannot say with confidence that the jury was able to perform this
function. Consequently, we conclude that we cannot have confidence in the
outcome of the trial, and that Mull was prejudiced by the failure to present a third-

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No. 2020AP1362-CR

party perpetrator defense because there is a reasonable probability that had the jury
heard this evidence, the outcome of the trial would have been different.

B. Failure to Move to Strike Pugh’s Testimony or Move
for a Mistrial

¶43 Mull next argues that he received ineffective assistance of counsel
because his trial counsel failed to move for a mistrial after eliciting testimony from
Pugh that Mull was “being in the hood bragging about it saying that he hit a lick
over there on 35th and he killed the stud bitch.” We again agree with Mull, and
we conclude that trial counsel was ineffective for failing to move to strike this
testimony and request a curative instruction in which the jury was told to disregard
Pugh’s statement.

¶44 Trial counsel testified at the Machner hearing that his overall trial
strategy was to avoid bringing attention to this testimony offered by Pugh and
discredit Pugh’s testimony through other means, such as by highlighting that Pugh
was not at the party, did not witness the shooting, and did not know many of the
individuals who were offering her information about the shooter’s identity.

¶45 We conclude that trial counsel’s explanation is insufficient and his
performance was deficient. First, a motion to strike is not inconsistent with trial
counsel’s stated trial strategy to discredit Pugh. Trial counsel could have both
objected to Pugh’s testimony that portrayed Mull as a remorseless killer who
harbored animus against the victim and also argued to the jury that Pugh was not a
credible witness because her testimony was based on hearsay. A stated strategy of
discrediting the witness does not preclude trial counsel from objecting to
statements portraying the defendant as bragging about killing the victim.

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No. 2020AP1362-CR

¶46 Second, trial counsel’s cross-examination of Pugh did not
accomplish his stated strategy. Trial counsel asked several open-ended questions
that elicited unresponsive, narrative answers from Pugh and invited her to make
prejudicial comments, such as the one challenged here. Such an approach was
“incautious and inconsistent with any rational trial strategy,” and was, therefore,
deficient. See Domke, 337 Wis. 2d 268, ¶49.

¶47 We further conclude that trial counsel’s deficient performance
prejudiced Mull. As with the prior analysis, when we take into account the
weaknesses in the State’s evidence presented at trial, there is a reasonable
probability of a different outcome had the jury been instructed to disregard Pugh’s
comment that Mull was “bragging” about killing the “stud bitch.” We conclude
that given the State’s weak case against Mull, having a witness testify to a
statement that Mull was bragging about the shooting and using a potentially
derogatory name for the victim, that Mull has shown that there is a reasonable
probability of a different outcome.

¶48 The State argues that trial counsel’s failure to move to strike or
move for a mistrial after Pugh’s testimony is not prejudicial because Pugh
explained that she did not know if the information was accurate, she did not know
who told her this information, and she also explained that “stud bitch” was not a
derogatory name in this context. We are not persuaded. Despite these contentions
by the State, the fact still remains that the jury heard this information without
explicitly being told it could not use it, and it resulted in the jury hearing a
statement that Mull was bragging about killing the victim, regardless of what she
was called. Thus, had the jury used this information in its deliberations, it would
have amounted to the jury having a confession by Mull conveyed in a manner in
which Mull is proud of what he did and lacked remorse for it. Had trial counsel

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No. 2020AP1362-CR

objected to Pugh’s testimony and moved for a curative instruction directing the
jury to disregard the testimony, the jury would not have considered the testimony
in its deliberations. See State v. Hurley, 2015 WI 35, ¶92, 361 Wis. 2d 529, 861
N.W.2d 174. Consequently, we conclude that there is a reasonable probability of
a different outcome if the jury had not heard this testimony from Pugh or was told
to disregard it.

CONCLUSION

¶49 In sum, we conclude that Mull received ineffective assistance of
counsel as a result of trial counsel’s failure to present a third-party perpetrator
defense and failure to move to strike and for a curative instruction in response to
Pugh’s testimony. As to both claims of ineffective assistance of counsel raised on
appeal, Mull has demonstrated both that trial counsel’s performance was deficient
and that he was prejudiced. Accordingly, we reverse the order of the
postconviction court denying Mull’s motion, and we remand this matter for a new
trial.

By the Court.—Judgment and order reversed and cause remanded
for further proceedings consistent with this decision.

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

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