State v. Jameil A. Garrett

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.
September 23, 2020
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. 2019AP852 Cir. Ct. No. 2014CF1022

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

JAMEIL A. GARRETT,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Kenosha County:
CHAD G. KERKMAN, Judge. Reversed and cause remanded with directions.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

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. 2019AP852

¶1 PER CURIAM. The State appeals an order granting Jameil Garrett
a new trial after two postconviction motions alleging ineffective assistance of trial
and postconviction counsel for not calling alibi witnesses. The State argues that
Garrett did not sufficiently prove that he was prejudiced. We agree and reverse
the order and remand with directions that Garrett’s conviction be reinstated.

¶2 After a violent incident on September 12, 2011, Garrett was charged
with aggravated battery with intent to cause great bodily harm, intimidation of a
victim with use or attempted use of force, criminal trespass to a dwelling, and
disorderly conduct. M.S.—the victim, with whom Garrett has a child—
Angelica Correa, Herman Jones, and Jones’ brother Gino were at M.S.’s
apartment that evening. According to the complaint, Garrett showed up at some
point, entered M.S.’s bedroom, saw Jones and M.S. sleeping in her bed, and
attacked M.S., beating her to the point of unconsciousness, leaving her with a
swollen face, black eyes, and a perforated eardrum. He later threatened her that, if
he was jailed, she “better be careful on the streets” as his family would come after
her.

¶3 At trial, M.S. testified that she was asleep when Garrett began
attacking her but that she knew it was him, as she recognized his voice. Correa
testified that she had gone into M.S.’s bedroom to get something and saw
Garrett—who had not been in the apartment earlier—enter; that she dropped her
phone and when she switched on a light to find it, she saw Garrett pull M.S. to the
floor and deliver “full-force,” closed-fist punches to M.S.’s face; that she “jumped
on top of [M.S.] to cover her”; and that she knew it was Garrett because she had
known him for several months. Victim-witness coordinator Brian Stuht testified
that, while he was meeting with M.S., Garrett phoned her. M.S. asked Garrett
why he had hurt her and, as her phone was on speaker, he heard Garrett say she

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should not have had another man in her bedroom. Two police officers and a
doctor and a physician’s assistant testified about the extent of M.S.’s injuries.

¶4 Garrett’s theory of defense was misidentification, arguing that he
was not the intruder and that Correa had testified that the room was dark. Jones
testified that he did not see the attack and never identified Garrett as the attacker.

¶5 The jury convicted Garrett on all four counts.

¶6 Garrett filed a postconviction motion under WIS. STAT. §§ 809.30
and 974.02 (2017-18)1 seeking a new trial. He claimed that trial counsel
Michael Barth, his fifth attorney, provided ineffective assistance through deficient
trial preparation, particularly by not investigating or calling alibi witnesses.
Garrett attached to his motion a six-name witness list filed by his second attorney
and asserted that three of them would have testified that he was at a birthday party
in Chicago the night M.S. was assaulted.

¶7 Barth was appointed in September 2014. At the ensuing Machner2
hearing, Barth testified that he received the case file from Garrett’s fourth
attorney; that, despite what he believed was a thorough review of the file, he did
not see the notice of alibi filed by the second attorney; and in their pretrial
conversations, he and Garrett did not discuss an alibi offense. Garrett testified that
he told his first four attorneys about his alibi witnesses and mentioned them to
Barth on the morning of the first day of trial, December 15, 2014. The State made
an offer of proof that Garrett’s third attorney, Aileen Henry, would testify that she

1
All references to the Wisconsin Statutes are to the 2017-18 version unless noted.
2
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2019AP852

investigated Garrett’s proposed alibi witnesses but did not find them credible so
did not plan to call them at trial. As Garrett refused to waive his attorney-client
privilege, she did not testify at the hearing.

¶8 The court denied the motion due to the State’s offer of proof and that
Garrett produced no alibi witnesses at the hearing. It said that even if Barth’s
failure to investigate alibi witnesses constituted deficient performance, it could not
find that there was a reasonable probability that the outcome of the trial would
have been different. It also found that to the extent Garrett’s testimony diverged
from Barth’s, Barth’s was the more credible.

¶9 Garrett appealed the denial of his motion. This court affirmed,
reasoning that Garrett “offer[ed] no showing of prejudice, i.e., any information
that would have been helpful to his cause had [Barth] performed a more diligent
‘investigation and preparation.’” State v. Garrett, No. 2017AP652-CR,
unpublished op. and order at 2-3 (WI App. Mar. 21, 2018).

¶10 Garrett then filed a postconviction motion under WIS. STAT.
§ 974.06, again seeking a new trial. He renewed his ineffectiveness claim against
Barth and also argued that Attorney Kerri Cleghorn, his counsel during his first
Machner hearing, likewise was ineffective for not presenting alibi witnesses.

¶11 A second Machner hearing was held. Two of Garrett’s proposed
alibi witnesses testified. His cousin, Willie Pitts, testified that Garrett was at the
birthday party on September 12, 2011. Martina Bell testified that she and her
children lived with Pitts in North Chicago and that Garrett was there the entire
night, staying until morning. Garrett testified that he was in North Chicago on
September 12 with Pitts, Bell, and other family members.

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No. 2019AP852

¶12 Cleghorn testified that she argued in the postconviction motion and
at the first hearing that Barth had provided ineffective assistance by not properly
investigating the case before trial and not talking to alibi witnesses; that she left
voice mail messages for the alibi witnesses, but none responded; that she may
have had the alibi witnesses’ mailing addresses but did not mail them any letters;
that it is difficult to rely on witnesses who are not forthcoming; and that at
Garrett’s revocation hearing the administrative law judge found the alibi witnesses
not credible.3 She testified that she thus made a strategic decision not to focus on
the alibi witnesses.

¶13 Kenosha Police Department Detective Kenneth Duffy testified that
he received a request in June 2012 to investigate the six alibi witnesses; had phone
numbers for most of the alibi witnesses but just one address; that only one,
Michael Boyd, whom Garrett had identified as being at the Pitts birthday party,
responded; that Boyd said he did not remember seeing Garrett on
September 12, 2011; that Boyd said he lived down the street from Pitts but
declined to give out Pitts’s address.

¶14 Attorney Aileen Henry testified that she found the alibi witness list
in the file from a previous attorney; that the investigator she engaged to contact
those witnesses mailed them letters seeking contact; that most of the witnesses
refused to meet with the investigator; that the investigator contacted Garrett’s
brother who agreed to meet with Henry to help her contact other alibi witnesses;
that he was unable to obtain their cooperation; and that the only witness Henry
was able to talk to was Bell, who said she did not want to be involved in the case.

3
Garrett was on probation at the time of M.S.’s attack.

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No. 2019AP852

¶15 The circuit court found Cleghorn’s performance deficient in regard
to investigating the alibi witnesses because, while she tried to contact them by
phone, she had mailing addresses but “didn’t bother to use them.” It also found
Barth deficient because, while he apparently did not learn of Garrett’s proposed
alibi witnesses until the morning of trial, he failed to seek a continuance to locate
them. The court made no credibility finding as to the alibi witnesses’ testimony.

¶16 Though the court found that both Barth and Cleghorn rendered
deficient performance, it said, “I don’t know” if the deficient performances
affected the outcome of the case. Nonetheless, it granted Garrett’s motion,
vacated his convictions, and ordered a new trial. The State appeals.

¶17 A defendant claiming ineffective assistance of counsel must prove
both that the lawyer’s representation was deficient and “that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). The deficiency and prejudice prongs may be addressed in either
order. Id. at 697. Thus, a court may decide ineffective assistance claims based on
prejudice without analyzing whether counsel’s performance was deficient. Id.

¶18 To demonstrate prejudice, 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. at 694. It is
not enough that a defendant shows the error conceivably could have influenced the
outcome. State v. Pitsch, 124 Wis. 2d 628, 641, 369 N.W.2d 711 (1985). He or
she “must affirmatively prove prejudice.” Id.

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¶19 Garrett argues that the trial court found that not only were trial and
postconviction counsel both ineffective,4 but that there was a substantial
probability of a different outcome had they made even minimal efforts to better
investigate. Accepting the circuit court’s conclusion that Barth’s and Cleghorn’s
investigation of the alibi witnesses was deficient, we turn to the prejudice prong.

¶20 We disagree with Garrett. First, the court did not find, contrary to
Garrett’s claim, that either counsel’s performance was prejudicial. In the first
Machner hearing, the court held that it could not find a reasonable probability that
the outcome of the trial would have been different but for Barth’s alleged deficient
performance. This court affirmed that ruling.

¶21 In the second Machner hearing, the one on review here, the court
found that both Barth and Cleghorn deficiently represented Garrett. Then asking
whether their deficient performance affected the outcome of the case, it answered
its own question: “I don’t know. But we’re going to find out because I am
granting the [new trial] motion and vacating the convictions.”

¶22 Second, as we said, a defendant must affirmatively prove prejudice.
Pitsch, 124 Wis. 2d at 641. The record as a whole demonstrates that Garrett
cannot prove prejudice. He has not shown that, even had Barth tried to contact the
claimed alibi witnesses and had Cleghorn tried harder to contact them that it
would have affected the outcome of the case. M.S. and Correa, both of whom
knew Garrett well, identified him with certainty as the assailant. The victim-
witness coordinator testified about the phone conversation between M.S. and

4
Garrett conflates “ineffective” with “deficient.” Counsel is not ineffective unless both
deficiency and prejudice are proved.

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No. 2019AP852

Garrett in which, when she asked why he hurt her, Garrett said she should not
have been in bed with another man. Further, had counsel more thoroughly
investigated, Garrett did not prove that the alibi witnesses even would have
testified at trial or at the first postconviction hearing. Indeed, Attorneys Henry and
Cleghorn and Detective Duffy either were unable to make contact with those
witnesses or found them unresponsive or uncooperative, even with the assistance
of Garrett’s brother. Garrett also did not allege with specificity what their
investigations would have revealed and how they would have altered the outcome
of the case. See State v. Leighton, 2000 WI App 156, ¶38, 237 Wis. 2d 709, 616
N.W.2d 126.

¶23 The court’s “I don’t know” underscores that Garrett did not satisfy
his burden of affirmatively proving that it is reasonably probable a more diligent
investigation would have resulted in a different outcome. We conclude that the
court erred in not holding him to his burden and in granting him a new trial. We
therefore reverse the order and remand with instructions to reinstate Garrett’s
conviction.

By the Court.—Order reversed and cause remanded with directions.

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

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