State v. Jackie Holloway, II

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 22, 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. 2019AP2218-CR Cir. Ct. No. 2015CF3983

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JACKIE HOLLOWAY, II,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: T. CHRISTOPHER DEE and MICHELLE ACKERMAN
HAVAS, Judges. Affirmed.

Before Brash, P.J., Dugan and Donald, 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. 2019AP2218-CR

¶1 PER CURIAM. Jackie Holloway, II appeals his judgment of
conviction for possession of a firearm by a felon, as well as the order denying his
postconviction motion. Holloway argues that he received ineffective assistance of
counsel because his trial counsel failed to introduce evidence that would serve to
impeach witnesses to a shooting. After a Machner1 hearing, the postconviction
court2 ruled that Holloway’s trial counsel did not perform deficiently and thus
rejected Holloway’s claim; the court did not address the prejudice prong of the
ineffective assistance of counsel analysis.

¶2 We conclude that we need not determine whether trial counsel’s
performance was deficient, because Holloway has not established that he was
prejudiced by that performance. We therefore affirm.

BACKGROUND

¶3 The charge against Holloway stems from a shooting that occurred in
July 2015. Milwaukee Police Officers were dispatched to a residence on South 5th
Place in Milwaukee, where they observed A.H. with a gunshot wound to his right
leg. One of the witnesses to the shooting—Johnnie Mayfield, who is a friend of
Holloway’s—told police that he had observed an argument take place between A.H.
and Holloway. Mayfield stated that during the argument, he saw Holloway produce
a small handgun and shoot A.H. A.H. also subsequently identified Holloway from
a photo array as the person who shot him.

1
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
2
Holloway’s postconviction motion was reviewed by the Honorable Michelle Ackerman
Havas; we refer to her as the postconviction court.

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No. 2019AP2218-CR

¶4 Additionally, the police found that Holloway had previously been
convicted of the felony offense of possession of an electric weapon. Holloway was
ultimately charged only with possession of a firearm by a felon, as a repeater, for
the shooting incident.

¶5 The matter proceeded to trial in November 2017.3 Mayfield testified
on behalf of the State. He stated that he and Holloway were “hang[ing] out” on the
street when they got into a verbal altercation with someone Mayfield knew as
“BooBoo.” A younger person, later identified as A.H., joined the argument, yelling
obscenities and threatening to shoot Holloway and Mayfield. The argument
escalated, at which time Mayfield testified that he saw Holloway pull a small gun
from his pocket and shoot A.H. in the leg. On cross-examination, Mayfield admitted
that he and Holloway had been sharing a bottle of vodka prior to the shooting.
Furthermore, Holloway’s trial counsel elicited testimony from Mayfield that he had
three prior criminal convictions.

¶6 A.H. also testified for the State. He stated that he was sixteen years
old at the time of the shooting, and that he had been riding his bike home from his
job at Chuck E. Cheese that night. A.H. testified that he no longer remembered the
details of the incident, but that he had not talked to or yelled at the person who shot
him prior to the shooting. He further stated that he had subsequently identified
Holloway from a photo lineup shown to him by police; he also identified Holloway
as the shooter in court during his testimony. On cross-examination, A.H. admitted
that he “did not see the actual physical pulling out of the gun and firing,” and that

3
Holloway’s jury trial was presided over by the Honorable T. Christopher Dee.

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No. 2019AP2218-CR

he had initially told police that he was running away from Holloway and Mayfield
just before he was shot.

¶7 The investigating police detective testified that the police recovered a
fired bullet from A.H.’s pants. They also recovered four bullet casings at the scene,
as well as a magazine from a handgun that was thrown into a recycling bin in the
area where A.H. had been shot. Police attempted to have the magazine tested for
DNA, but there was an insufficient amount of DNA present to allow for testing.

¶8 The jury convicted Holloway of the sole charge against him—
possession of a firearm by a felon. With the repeater enhancement, he was
sentenced to four years of initial confinement, followed by four years of extended
supervision.

¶9 Holloway filed a postconviction motion in January 2019. He argued
that his trial counsel was ineffective in failing to present evidence that “would have
effectively impeached the reliability and credibility” of Mayfield and A.H.
Specifically, Holloway asserted that counsel should have attacked inconsistencies
in A.H.’s testimony as compared to the police report, such as the fact that he had
told police that “both suspects”—Holloway and Mayfield—had shot at him.

¶10 With regard to Mayfield, Holloway contended that Mayfield’s three
prior convictions for armed robbery provided a motive for him to lie about who had
possessed the firearm when A.H. was shot, which should have been emphasized by
trial counsel. Holloway also pointed out that in his initial statement to police,
Mayfield stated that A.H. had shot himself. Mayfield later told police that he had
lied to protect Holloway.

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No. 2019AP2218-CR

¶11 Additionally, Holloway asserted that there was exculpatory evidence
that his trial counsel did not investigate. He alleged that there was another witness
to the shooting who told police that the shooter was holding the gun in his left hand;
Holloway is right-handed.

¶12 After a Machner hearing was held in September 2019, the
postconviction court found that Holloway’s trial counsel was not deficient in his
performance. During the hearing, counsel testified that he had not attacked A.H.’s
testimony because he was “a juvenile victim” that he did not want to “go after so
aggressively” in front of the jury. Counsel had further explained that attacking
A.H.’s testimony would have required calling additional police detectives, which he
believed could have potentially opened the door for testimony that would “end up
being much more damaging” to Holloway than what they had to gain from
impeaching A.H. on points of “varying importance[.]” The court found that these
were “appropriate strategic decision[s]” by counsel.

¶13 With regard to Mayfield’s testimony, the postconviction court pointed
out that trial counsel had learned that Mayfield was going to testify just before he
took the stand. Thus, although the court noted that counsel could have been “a little
bit more artful in going after Mr. Mayfield’s testimony,” he did not know what had
“made [Mayfield] go from not coming to coming” and thus there was “a real risk in
what Mr. Mayfield was going to say” on the stand. Based on those circumstances,
the court found that to be a reasonable strategic decision as well.

¶14 With regard to the witness who reportedly saw the gun in the shooter’s
left hand, the postconviction court noted that this was “a quick eyewitness report”
that was not necessarily exculpatory, as people can shift items from one hand to

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No. 2019AP2218-CR

another. Thus, the court found it reasonable that counsel had not sought out this
witness because she would have been “tangential at best[.]”4

¶15 In short, in denying Holloway’s motion, the postconviction court
found that trial counsel’s decisions were “appropriate” and “within professional
norms,” and thus did not constitute deficient performance. The court further stated
that counsel’s performance did not cause it to “call the reliability of this result into
question,” although the court did not specifically address the prejudice prong of the
ineffective assistance test. This appeal follows.

DISCUSSION

¶16 As alluded to above, our analysis of an ineffective assistance of
counsel claim involves the familiar two-pronged test: the defendant must show that
his trial counsel’s performance was deficient and that the deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). “To prove
constitutional deficiency, the defendant must establish that counsel’s conduct falls
below an objective standard of reasonableness.” State v. Love, 2005 WI 116, ¶30,
284 Wis. 2d 111, 700 N.W.2d 62. “To prove constitutional 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. (citations and one set of quotation marks omitted).

¶17 The court “need not address both components of this inquiry if the
defendant does not make a sufficient showing on one.” State v. Smith, 2003 WI

4
Holloway did not include this argument in his appellate brief; we therefore deem it to be
abandoned, and will not address it on appeal. See Cosio v. Medical Coll. of Wis., Inc., 139 Wis.
2d 241, 242-43, 407 N.W.2d 302 (Ct. App. 1987).

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No. 2019AP2218-CR

App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854. “The ultimate determination of
whether counsel’s performance was deficient and prejudicial to the defense are
questions of law which this court reviews independently.” State v. Johnson, 153
Wis. 2d 121, 128, 449 N.W.2d 845 (1990).

¶18 As previously noted, the postconviction court found that Holloway’s
trial counsel was not deficient, without addressing the prejudice prong of the
Strickland test. However, in our review of the record, we conclude that we need
not analyze whether trial counsel’s performance was deficient because Holloway
has failed to demonstrate that he was prejudiced by any possible errors of trial
counsel. See id., 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.”); see also State v. Thames, 2005 WI App 101,
¶10, 281 Wis. 2d 772, 700 N.W.2d 285 (“[W]e will affirm the [postconviction] court
if the court reached the correct result, even if we employ different reasoning[.]”).

¶19 The crux of Holloway’s argument is that trial counsel did not
sufficiently call into question the credibility of either A.H. or Mayfield. Holloway
points out that A.H. claimed to have very little memory of the incident. Holloway
also focuses on the inconsistencies between A.H.’s testimony and the statements he
gave to police, such as whether both Holloway and Mayfield had guns that night,
and whether A.H. was running away from them when he was shot and thus unable
to see who shot him. With regard to Mayfield, he suggests that Mayfield had a
motive to lie about who had the gun since he was also a convicted felon, and was
on extended supervision at the time of the incident.

¶20 However, regardless of A.H.’s exact position when he was shot, and
his memory issues at trial, he never wavered in his identification of Holloway as the

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No. 2019AP2218-CR

shooter. In fact, he identified Holloway in a photo array presented to him by police
over a month later, as well as identifying him in court as the shooter. Additionally,
the jury heard—in testimony that was elicited by trial counsel in his cross-
examination of A.H.—that A.H. was running away from Holloway and Mayfield
when he was shot. It was thus the jury’s responsibility to determine whether A.H.’s
version of events and his memory lapses affected his credibility. See State v. Sharp,
180 Wis. 2d 640, 659, 511 N.W.2d 316 (Ct. App. 1993).

¶21 Furthermore, in one of A.H.’s statements to police that was taken prior
to his viewing the photo array, he described the two subjects from the incident, with
Subject #2 being the person who shot him. He described Subject #1—not the
shooter—as “chubby”; then, during his trial testimony, he again described the
person with the shooter as “chubby,” shortly before pointing out Holloway as the
shooter. Thus, that police statement by A.H. describing the men involved in the
incident—in particular, which one was not the shooter—was in fact consistent with
his trial testimony.

¶22 Additionally, the jury heard that Mayfield had three prior convictions;
again, it was up to the jury to determine whether that affected Mayfield’s credibility.
See id. More importantly, Holloway was charged only with being a felon in
possession of a firearm in this case, not with the shooting of A.H. Therefore,
whether Mayfield also had a gun that night was immaterial to proving the charge
against Holloway.

¶23 In sum, based on the evidence, we conclude that any purported errors
by trial counsel were not sufficient to undermine our confidence in the outcome.
See Love, 284 Wis. 2d 111, ¶30. Therefore, Holloway has failed to prove he
suffered prejudice as a result of any errors by trial counsel, and his ineffective

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No. 2019AP2218-CR

assistance claim fails. See Smith, 268 Wis. 2d 138, ¶15. Accordingly, we affirm
his judgment of conviction as well as the order denying his postconviction motion.

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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