State v. Jereme William Newton

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.
June 9, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP1983-CR Cir. Ct. No. 2020CF1784

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEREME WILLIAM NEWTON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Brown County: TAMMY JO HOCK, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, 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. Jereme Newton appeals from a judgment of
conviction, entered following a jury verdict, convicting him of several counts,
No. 2024AP1983-CR

including first-degree reckless homicide, as a party to a crime. He also appeals
from an order denying his motion for postconviction relief. On appeal, he raises
four ineffective assistance of counsel claims. For the following reasons, we
affirm.

BACKGROUND

¶2 The State charged Newton with one count of first-degree reckless
homicide, as a party to a crime, contrary to WIS. STAT. § 940.02(2)(a) (2023-24),1
one count of obstructing an officer, and four counts of bail jumping, all as a
repeater. The charges stemmed from allegations that an individual overdosed and
died after using heroin that Newton provided. According to the complaint, the
medical examiner concluded that the victim “died following an acute intoxication
due to the combined effects of heroin, methamphetamine, gabapentin, and
clonazepam.”

¶3 The case proceeded to a jury trial, where Newton was represented by
counsel. During the jury instruction conference, the circuit court and the parties
addressed the contents of the jury instruction for first-degree reckless homicide.2
The State requested that the court use an updated version of the pattern jury
instruction for WIS. STAT. § 940.02(2)(a) that was not yet available online but had
been approved by the Criminal Jury Instructions Committee. The State had not
previously shared the updated instruction with defense counsel or the court. The

1
All references to the Wisconsin Statutes are to the 2023-24 version.

Pertinent here, WIS. STAT. § 940.02(2)(a) provides that “[w]hoever causes the death of
2

another human being” is guilty of a Class B felony under the following circumstances: “By
manufacture, distribution or delivery” of a controlled substance, “if another human being uses the
controlled substance … and dies as a result of that use.”

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No. 2024AP1983-CR

updated jury instruction explains that the State must prove, inter alia, that the
victim “died as a result of the use of” the delivered controlled substance, which
“requires that the use of the controlled substance was a substantial factor in
causing the death.” See WIS JI—CRIMINAL 1021 (2024). The updated instruction
further states that a “substantial factor need not be the sole or primary factor
causing death” and that “[t]here may be more than one cause of death.” Id. The
former jury instruction for § 940.02(2)(a), which defense counsel urged the court
to use, did not expound on the meaning of “substantial factor.” See WIS JI—
CRIMINAL 1021 (2011).

¶4 Defense counsel objected to the use of the State’s proposed jury
instruction, arguing that the instruction was not published or otherwise available to
the public and that the theory of the defense up to that point of the trial was that “if
you take heroin out, the other substances still kill [the victim].” The circuit court
granted the State’s motion to use the updated jury instruction, explaining that the
modifications to the instruction were not based on new case law and was approved
by the Committee. Given the court’s ruling, defense counsel explained that she
was no longer going to call the defense’s expert witness, who would have testified
that there was not enough heroin in the victim’s body to be the sole cause of his
death. The jury found Newton guilty of all counts charged, including first-degree
reckless homicide.

¶5 Afterward, Newton filed a motion for postconviction relief, arguing
that his defense counsel provided constitutionally ineffective assistance in four
respects, including by not understanding the law surrounding first-degree reckless

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No. 2024AP1983-CR

homicide. The circuit court denied Newton’s postconviction motion following a
Machner3 hearing.

¶6 Newton now appeals.

DISCUSSION

¶7 On appeal, Newton renews the four ineffective assistance of counsel
claims from his postconviction motion. A criminal defendant has a constitutional
right to the effective assistance of counsel. State v. Breitzman, 2017 WI 100, ¶37,
378 Wis. 2d 431, 904 N.W.2d 93. “To demonstrate that counsel’s assistance was
ineffective, the defendant must establish that counsel’s performance was deficient
and that the deficient performance was prejudicial.” Id. “If the defendant fails to
satisfy either prong, we need not consider the other.” Id.

¶8 “To establish that counsel’s performance was deficient, the
defendant must show that it fell below ‘an objective standard of reasonableness.’”
Id., ¶38 (citation omitted). “To establish that deficient performance was
prejudicial, 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. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Id., ¶39 (citation omitted). “[A] defendant need not
prove the outcome would ‘more likely than not’ be different in order to establish
prejudice in ineffective assistance cases.” State v. Sholar, 2018 WI 53, ¶44, 381
Wis. 2d 560, 912 N.W.2d 89 (citation omitted).

3
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2024AP1983-CR

¶9 “Whether a defendant was denied effective assistance of counsel is a
mixed question of law and fact.” Breitzman, 378 Wis. 2d 431, ¶37. “The factual
circumstances of the case and trial counsel’s conduct and strategy are findings of
fact, which will not be overturned unless clearly erroneous; whether counsel’s
conduct constitutes ineffective assistance is a question of law, which we review de
novo.” Id. We may affirm the circuit court’s denial of each of Newton’s
ineffective assistance of counsel claims on different grounds than those relied on
by the court. See State v. Earl, 2009 WI App 99, ¶18 n.8, 320 Wis. 2d 639, 770
N.W.2d 755. “[W]hen we affirm on other grounds, we need not discuss our
disagreement with the [circuit] court’s chosen grounds of reliance.” Id.

I. First-degree reckless homicide jury instruction

¶10 Newton first contends that his defense counsel was constitutionally
ineffective by crafting a defense to the first-degree reckless homicide charge
“without the knowledge of how the jury would be instructed as to what”
constituted a “substantial factor.” Newton claims that defense counsel essentially
relied on the “wrong definition of ‘substantial factor’” in preparing for trial by
overlooking the Committee’s comment in the previous jury instruction for
first-degree reckless homicide, and, more specifically, the case law cited therein,
establishing that a “substantial factor” need not be the sole or primary factor
causing death and that there may be more than one cause of death.

¶11 Newton further argues that he was prejudiced by defense counsel’s
error because she “argued throughout the case … that there may have been other
drugs and/or a combination of other drugs provided by more than one person that
would have caused the death of the victim,” and, therefore, “Newton’s alleged

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No. 2024AP1983-CR

contribution was not a ‘substantial factor’ (i.e., enough of a cause by itself and not
the leading cause).”

¶12 At the Machner hearing, defense counsel testified that “[o]ur
strategy going into trial was Mr. Newton did not give … [the victim] any heroin.”
Defense counsel explained that “even if the jury did not believe” this theory,
counsel expected to argue in the alternative that Newton provided “a small
amount” of heroin compared to the “many things” that the victim had in his
system that could have “jointly produce[d]” his death.

¶13 As to this latter theory, defense counsel agreed that the actual
definition of substantial factor, as outlined in the current jury instruction, the
previous jury instruction, and established case law, “undermined what [she was]
presenting at trial.” Defense counsel further agreed that after the circuit court
overruled her objection to the new jury instruction, she was forced to “rethink” her
trial strategy on the second theory of defense by, for example, not calling the
expert to testify. However, defense counsel also agreed that she was aware of the
case law on this topic and that she had “hoped” the circuit court “wouldn’t give
that instruction or that expanded definition of substantial factor.” The court
credited defense counsel’s Machner hearing testimony and concluded that counsel
did not perform deficiently because she shifted her trial strategy after the court’s
ruling.

¶14 We conclude that Newton has failed to demonstrate that he was
prejudiced by his defense counsel’s potentially deficient performance with respect
to the jury instruction. To begin, Newton does not allege that the updated jury
instruction changed the standard of proof rather than clarifying the existing
standard under WIS. STAT. § 940.02(2) in a manner consistent with existing case

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No. 2024AP1983-CR

law. More importantly, Newton does not explain, let alone prove, how defense
counsel’s prior knowledge of the updated language would have helped his defense
or how counsel’s alleged lack of knowledge of the updated language affected the
outcome of the proceedings. We agree with the State that while the updated jury
instruction “language undercut the usefulness of Newton’s expert, there is nothing
to suggest that prior knowledge of that language would have saved Newton’s
backup defense or his expert’s testimony.”

¶15 Newton contends that the second theory of defense was “viable” and
that defense counsel’s potential deficient performance prevented the defense from
being successfully pursued. However, Newton does not explain how that defense
was viable, which is particularly problematic given defense counsel’s statements
to the circuit court at trial. In particular, defense counsel informed the court that
the defense’s expert would testify that any heroin in the victim’s system would
have been a “substantial factor” in causing the decedent’s death in conjunction
with the other substances.

¶16 Additionally, Newton largely ignores defense counsel’s Machner
hearing testimony that the first theory of defense at trial was that Newton did not
deliver any heroin to the victim, either personally or as a party to the crime. He
fails to explain how the updated jury instruction affected this theory of defense,
and we see nothing in the record to support a conclusion that there is a reasonable
probability that, but for counsel’s potential deficient performance, the result of the
proceeding would have been different.

II. Leading questions

¶17 Newton next argues that his defense counsel was constitutionally
ineffective by failing to object to the State’s use of leading questions during its

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No. 2024AP1983-CR

direct examination of multiple witnesses, including two county investigators, a
detective, and the medical examiner.

¶18 Defense counsel’s Machner hearing testimony on this issue was
limited to testimony about her general practice when handling an opposing party’s
leading questions at a jury trial. Defense counsel testified that she sometimes
objects to leading questions but that it depends on the situation. After defense
counsel testified about her usual strategy related to challenging leading questions,
Newton dropped the line of questioning altogether. Notably, Newton did not
question defense counsel about any specific instances at trial when she failed to
object or her reasoning for not objecting.

¶19 The State contends that Newton failed to sufficiently make a record
on this issue at the Machner hearing. Newton does not respond to this argument
on appeal, and we therefore deem it conceded. See United Coop. v. Frontier FS
Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (stating that an
appellant’s failure to address an argument made in the respondent’s brief may be
taken as a concession).

¶20 Even if Newton had responded, we agree with the State that Newton
failed to sufficiently preserve this particular ineffective assistance of counsel
claim. “[I]t is a prerequisite to a claim of ineffective representation on appeal to
preserve the testimony of trial counsel. We cannot otherwise determine whether
trial counsel’s actions were the result of incompetence or deliberate trial
strategies.” State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App.
1979).

¶21 Because defense counsel’s testimony with respect to handling
opposing parties’ leading questions at a jury trial only touched on her general

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No. 2024AP1983-CR

strategy, we conclude that counsel’s Machner hearing testimony is insufficient for
this court to determine whether her decisions, or lack thereof, not to object to
leading questions at this trial were the result of incompetence or a deliberate trial
strategy. Therefore, given the foregoing and the “strong presumption that trial
counsel’s conduct ‘falls within the wide range of reasonable professional
assistance,’” see Breitzman, 378 Wis. 2d 431, ¶38 (citation omitted), we decline to
conclude that defense counsel performed deficiently by failing to object to some of
the State’s leading questions, see Machner, 92 Wis. 2d at 804 (declining “to find
that the manner in which counsel defended the appellant was of such a nature as to
cause us to find him incompetent” because “the record [was] devoid of any
testimony from defendant’s trial counsel regarding his conduct in the defense of
his client”).

III. Pretrial motions

¶22 Next, Newton asserts that his defense counsel was constitutionally
ineffective by failing to file an other-acts motion to introduce evidence from the
victim’s fiancée that Rene Puente “supplied drugs to the deceased in the past
without the involvement and participation of Newton.”

¶23 At trial, defense counsel asked the victim’s fiancée on
cross-examination if she made a statement to law enforcement during its
investigation that she knew “the son of a bitch who probably gave” the drugs to
the victim. The victim’s fiancée confirmed she had made that statement to law
enforcement, and she testified that she was referring to Puente. The State objected
when defense counsel attempted to elicit testimony from the victim’s fiancée
regarding whether Puente had “supplied drugs to [the victim] in the past” and why
she had informed law enforcement that Puente was “probably” the person who

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No. 2024AP1983-CR

gave the victim the drugs. During a sidebar, defense counsel acknowledged that
her questions attempted to elicit “prior bad acts,” and she informed the circuit
court that it would not happen again.

¶24 At the Machner hearing, the victim’s fiancée testified that although
she had never witnessed Puente giving heroin to the victim, she knew that Puente
had supplied the victim with heroin approximately six months before his death
because the victim told her that Puente had given him the drugs. The victim’s
fiancée further stated that she saw text “messages on [the victim’s] phone”
approximately six months before his overdose, wherein Puente and the victim had
a “back and forth.” The circuit court determined that the victim’s fiancée’s
testimony would not have been admissible at trial because it was hearsay and
propensity evidence.

¶25 We conclude that Newton has failed to demonstrate a reasonable
probability that, but for defense counsel’s failure to file an other-acts motion, the
result of the proceeding would have been different. More specifically, even if the
victim’s fiancée’s testimony concerning Puente’s prior drug dealing to the victim
was admissible, there is not a reasonable probability that the result of the
proceeding would have been different had the jury heard that testimony. The jury
was well aware that Puente was involved with obtaining the heroin from Newton
for the victim, as the State’s theory of the case was that Puente was the
“middler”—that is, the person who set up the transaction in exchange for money
and heroin for personal use—and that Newton was the “supplier” of the heroin.

¶26 For example, the State presented evidence that the victim contacted
Puente seeking heroin the day before the overdose, that Puente had been in contact
with Newton several times on the day of the overdose, and that Puente had

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No. 2024AP1983-CR

contacted Newton for unnamed drugs just three days before the overdose.
Furthermore, the State presented video surveillance footage from the hotel where
the victim overdosed showing Puente and Newton together in the hallway outside
of the victim’s hotel room, and phone records demonstrated that Puente was in
contact with the victim immediately before Puente and Newton arrived at the
hotel. In addition, a detective testified that Puente informed him that he “may
have used heroin” “upon visiting the hotel” the night the victim died. The jury
also heard that Puente was charged separately for his involvement in the victim’s
death and that he had received immunity in exchange for his testimony at
Newton’s trial. This evidence, in conjunction with the victim’s fiancée’s
testimony that she believed Puente had sold the heroin to the victim, clearly
demonstrated to the jury that Puente was involved in distributing heroin to the
victim without admission of the other-acts evidence at issue.

¶27 In addition, even if the victim’s fiancée had testified that Puente sold
heroin to the victim in the past, the State’s evidence against Newton
overwhelmingly demonstrated that he was the supplier of the heroin that caused
the victim’s death. Again, the State presented evidence that Newton entered the
victim’s hotel room just prior to his death. Moreover, the jury heard evidence that
law enforcement located heroin in Newton’s residence and that Newton admitted
that the heroin located in his residence was his, that he intended to sell some of
that heroin, and that he had sold heroin in the past. Phone records also
demonstrated that Puente had contacted Newton three days before the overdose to
obtain unnamed drugs and that the two had also been in contact several times on
the day of the overdose. While there was no documented communication between
Newton and the victim, a detective testified that it is “very common” for a drug
supplier to distance himself or herself from the drug purchaser. Moreover, Puente

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No. 2024AP1983-CR

confirmed that the victim did not appear to be under the influence of any drugs
when he and Newton met him at his hotel room, but he later received a voice
message from the victim wherein he “sounded like he was under the influence.”

¶28 The following day, law enforcement found the victim deceased in
his hotel, and the State presented evidence from a medical examiner that the
victim died “following an acute intoxication due to the combined effects of heroin,
methamphetamine, gabapentin, and clonazepam.” The medical examiner further
stated that the amount of heroin in the victim could have, by itself, caused the
victim’s death. Given the State’s strong case against Newton, and the admitted
evidence showing that Puente was involved with Newton in providing the victim
heroin, there is not a reasonable probability that the result of Newton’s trial would
have been different if the jury had learned that Puente had sold drugs to the victim
in the past.

IV. Weight of the drug

¶29 Lastly, Newton contends that his defense counsel was
constitutionally ineffective by failing to elicit testimony concerning the amount of
heroin found at the crime scene. Puente testified at trial that he reached out to
Newton to obtain heroin after receiving a message from the victim stating that he
wanted to purchase a “50-piece” of heroin. Puente stated that a 50-piece is “[a]
couple tenths,” “[t]wo tenths,” of heroin. Puente further stated that he and Newton
met at a gas station and then traveled to the victim’s location at a hotel. According
to Puente, the victim gave Newton $50 and received the 50-piece of heroin from
Newton. Puente stated that the victim gave Puente a “[s]mall amount of heroin”
(approximately “half of a tenth” or “half a point”) and $15 for setting up the

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No. 2024AP1983-CR

transaction. Afterward, Puente and Newton left the hotel, and Puente later learned
that the victim had died.

¶30 Although an admitted Wisconsin State Crime Laboratory report
stated that the lab received 0.213 +/- .003 grams from law enforcement for testing,
defense counsel did not elicit testimony regarding this fact. Despite this omission,
defense counsel stated during her closing argument that there was a discrepancy
between the weight of the heroin that Puente testified that Newton delivered and
the amount of heroin found at the crime scene. Specifically, defense counsel
argued that the reported .213 grams “was more than was supposedly given in the
first place, let alone [the victim] using enough to overdose on. There was no way
that the heroin could have been a substantial factor in his death.”

¶31 During deliberations, the jury asked several questions pertaining to
the weight of the heroin found at the crime scene and whether there was a lab
report verifying the amount of heroin that defense counsel referenced during her
closing argument. The circuit court did not permit the jury to see the crime lab
report because no witness testified as to the weight of the heroin found at the
crime scene or received by the lab. The parties agreed that the jury could “still ask
for a lab report later,” and the court instructed the jury that “[a]rguments of
counsel are not evidence.” The jury did not make another request for the lab
report.4

4
Newton argues that the jury did request to see the “NMS lab report.” However, as the
State notes, the parties agreed at trial that this request was in reference to the victim’s toxicology
report, and the record supports that consensus.

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No. 2024AP1983-CR

¶32 According to Newton, he was prejudiced by defense counsel’s
failure to elicit testimony concerning the weight of heroin found at the crime scene
because that evidence raised a question as to how “more heroin end[ed] up at the
lab for testing than was actually, and allegedly, delivered in the first place.”
Newton contends that given the jury’s questions during deliberations, “[t]he
logical implication is that the jury had doubts concerning the testimony of Puente
as to what, if any, heroin was allegedly delivered by Newton.” Stated differently,
Newton argues that defense counsel’s failure prevented the jury from fully
considering that the “State’s star witness was lying to avoid the blame because
more heroin ended up at the lab for testing than was testified to by Puente as being
delivered by Newton.”

¶33 We again agree with the State that Newton has failed to demonstrate
a reasonable probability that the result of the proceeding would have been
different but for defense counsel’s failure to elicit testimony concerning the weight
of the heroin found at the crime scene.

¶34 While defense counsel’s closing argument highlighted a discrepancy
between Puente’s memory of how much heroin Newton sold the victim and how
much was recovered at the crime scene, this discrepancy was negligible and, as the
State argues, was “only relevant to the credibility of Puente’s estimation” of how
much heroin constituted a “50-piece.” The only heroin found at the crime scene
was located in a pill bottle wrapped in tinfoil, consistent with one delivery.
Furthermore, aside from the weight discrepancy stemming from Puente’s memory,
there was no evidence presented at trial suggesting that the victim had used heroin
other than that provided by Newton, either through Newton’s sale to him or from
the amount the victim then gave Puente for setting up the transaction.

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No. 2024AP1983-CR

¶35 The evidence presented was consistent with the State’s theory of the
case that Puente was the “middler”—who “set up [the] drug deal between” the
victim and Newton in exchange for money and a small amount of heroin—and
that Newton was the “supplier.” Indeed, Puente informed a detective that he “may
have used heroin” “upon visiting the hotel” the night the victim died. Puente’s
drug use with the victim on the night of the victim’s death was corroborated by the
surveillance footage, which showed that Puente remained in the hotel room with
the victim for a short time after Newton exited the room; by the voice message
wherein the victim described to Puente how he was feeling after taking the drugs;
and by the fact that law enforcement did not locate any drug paraphernalia in the
victim’s hotel room.

¶36 It was therefore reasonable for the jury to have concluded that
Newton provided the only heroin used by the victim and that there was not any
other heroin located in the hotel room, or used by the victim, other than that
provided by Newton. Any heroin Puente and the victim may have used after
Newton left the hotel room was either the heroin given by the victim to Puente as
compensation (using heroin purchased from Newton) or the remaining heroin sold
to the victim by Newton. Under these circumstances, the amount of heroin found
at the crime scene would be the same or similar to that which Puente testified the
victim purchased from Newton, and Newton would have been guilty of first-
degree reckless homicide, as a party to a crime, as the jury found.

¶37 The evidence at trial also supported the State’s theory that Newton,
not Puente, was the “supplier” of the heroin. Law enforcement located heroin in
Newton’s residence, Newton admitted that the heroin located in his residence was
his, admitted that he intended to sell some of that heroin, and admitted that he had
sold heroin in the past. The State also presented testimony from a witness who

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No. 2024AP1983-CR

stated that she overdosed on heroin provided by Newton just four years before the
victim’s death in this case.

¶38 The State’s theory was further corroborated by evidence that the
victim contacted Puente seeking a “50-piece” of heroin the day before the
overdose, that Puente had been in contact with Newton several times on the day of
the overdose, that Puente had contacted Newton for unnamed drugs just three days
before the overdose, that Puente and Newton arrived at the victim’s hotel room
together, and that Puente was in contact with the victim immediately before
Puente and Newton arrived at the hotel.

¶39 In other words, Puente’s memory as to how much heroin constituted
a “50-piece” had limited relevance to Newton’s guilt or innocence because the
State presented compelling evidence demonstrating that Newton supplied the only
heroin used by the victim and that no other individual supplied heroin to the victim
on the night of his death. Accordingly, the circuit court correctly observed that
“[w]hile Newton now wishes to frame the jury’s questions favorably in support of
his claims, the questions could just as easily have been the jury using the weight of
the recovered heroin to gauge Puente’s credibility.” Given the limited relevance
of the weight of the heroin at the crime scene, Newton cannot show that defense
counsel’s failure to elicit testimony as to that fact impacted the outcome of the trial
in any way.

By the Court.—Judgment and order affirmed.

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

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