State v. Khalil E. Buckley

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 24, 2025
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. 2024AP976-CR Cir. Ct. No. 2020CF1344

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KHALIL E. BUCKLEY,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Racine County: ROBERT S. REPISCHAK, Judge. Affirmed.

Before Gundrum, Grogan, and Lazar, 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. 2024AP976-CR

¶1 PER CURIAM. Khalil E. Buckley appeals from a judgment
convicting him, after a jury trial, of first-degree intentional homicide with use of a
dangerous weapon and two counts of felony bail jumping. He also appeals from
the circuit court order denying his postconviction motion for a new trial. Buckley
advances several claims of ineffective assistance of trial counsel and further
argues that the evidence presented at trial was insufficient to support the jury’s
guilty verdicts. We reject Buckley’s arguments and affirm.

BACKGROUND

¶2 The parties do not dispute the following facts. The State charged
Buckley in the 2020 shooting death of Marcus Caldwell in Racine after several
witnesses placed Buckley at the scene with a Glock firearm immediately
preceding the shooting, and reported that Buckley had fled the state immediately
following the shooting.

¶3 Before the trial, the circuit court held a Ludwig1 hearing to
determine whether there were any outstanding plea offers. At the hearing,
Buckley’s trial counsel informed the court of the defense agreement with the State
that if Buckley entered a plea to the homicide count as charged, the State would
move to dismiss and read in the felony bail jumping counts and Buckley’s other
pending felony cases. In exchange for his plea, the State would “recommend a
term of life imprisonment without the possibility of release to extended
supervision[,]” while the “[d]efense [would be] free to argue.” After confirming
with counsel that he had discussed the terms of the offer with Buckley, the court

1
State v. Ludwig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985).

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conducted a colloquy with Buckley to ensure that he understood the terms and was
freely rejecting the plea offer. Buckley stated that he understood the agreement,
he had discussed it with trial counsel, and Buckley had “told [counsel he] didn’t
want to take it.” The case proceeded to a jury trial.

¶4 At the trial, the State presented testimony from Morgan,2 who has a
child with the deceased victim, Caldwell. Morgan testified that she had met
Buckley through Snapchat and he had come from Missouri to stay in Racine with
Morgan. Morgan did not want Caldwell to know that Buckley was visiting her
because he might become jealous and start a fight. On the day of the shooting,
Caldwell came to Morgan’s apartment unannounced and found Buckley there
alone. Later that afternoon, by phone, Caldwell had an argument with Morgan
about Buckley.

¶5 Morgan testified that just before the shooting, Buckley came into
Morgan’s apartment, went briefly into the bedroom where he was keeping his
belongings, and then headed back outside. When Morgan asked Buckley what he
was doing and where he was going, he answered, “Don’t fucking worry about it.”
Morgan testified she heard a gunshot less than ten seconds after Buckley left her
apartment. Morgan went outside and found Caldwell dead on the ground in the
dark; she never saw Buckley again, and he never returned to Morgan’s apartment
for his belongings.

¶6 The State presented testimony from several other witnesses,
including from a neighbor, Carrie, who saw Buckley and Caldwell arguing outside

2
We use pseudonyms to refer to all the testifying citizen witnesses.

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just before the shooting. Carrie said as Caldwell was about to walk away from the
argument, she heard Caldwell exclaim, “Oh shit, bro, bro” and then heard a
gunshot. Carrie ran outside, found Caldwell lying on his side, and started CPR.

¶7 The State also presented testimony from law enforcement officers
who located a spent .40 caliber Smith and Wesson bullet casing on the grass near
where Caldwell was shot. Officers found an open gun case for a Glock G .22
Gen 4 handgun that uses .40 caliber Smith and Wesson ammunition among
Buckley’s unclaimed belongings. Officers also found a receipt indicating that
Buckley had purchased two boxes of .40 caliber ammunition at Dunham’s Sports
in Racine just days before the shooting.

¶8 A friend of Buckley’s from Missouri, Laverne, testified that she
purchased a Glock handgun in Missouri and picked it up after a mandatory waiting
period two days before Buckley left for Racine. Laverne, who was prosecuted
federally for making a straw purchase of the Glock for her brother, testified that
Buckley is a friend of her brother’s so she let Buckley borrow the gun for what he
described as a “family issue.” Buckley took the gun with its case, and Laverne
never saw the gun again.

¶9 Officers testified that inside the gun case was an envelope with two
test-fired .40 caliber bullet casings that were included by the manufacturer to show
that the gun was tested and functioned properly. A State Crime Laboratory
firearms and toolmark expert testified at the trial that the two test-fired .40 caliber
casings found inside the gun case were fired from the same gun as the spent casing
found by police at the scene of the murder—a Glock G .22 Gen 4 handgun. The
casings inside the gun case matched the casing found at the scene.

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No. 2024AP976-CR

¶10 When the State rested, Buckley waived his right to testify at trial
after a thorough waiver colloquy with the circuit court. The parties made closing
arguments and, after the four-day trial, a jury found Buckley guilty of first-degree
intentional homicide with use of a dangerous weapon and two counts of felony
bail jumping. The court sentenced Buckley to life in prison without eligibility for
extended supervision.

¶11 Buckley filed a postconviction motion alleging ineffective assistance
of trial counsel on three grounds: (1) failure to properly advise Buckley of the
State’s pretrial plea offer; (2) failure to properly advise Buckley about his decision
whether to testify; and (3) failure to object to an allegedly improper comment on
Buckley’s decision not to testify in the State’s closing argument. The circuit court
held a Machner3 hearing at which both Buckley and his trial attorney testified.
The court denied the motion in a written decision after concluding that Buckley
failed to prove deficient performance in any respect. As critical to our analysis,
the court explicitly found Buckley’s attorney to be more credible than Buckley as
to the testimony on each of Buckley’s postconviction claims. Buckley appeals.

¶12 We include additional facts below as necessary to the discussion.

DISCUSSION

¶13 On appeal, Buckley raises the same three ineffective assistance of
counsel arguments as he did in his postconviction motion and claims they entitle
him to a new trial. Buckley also argues to this court that the evidence presented at

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

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No. 2024AP976-CR

his jury trial was insufficient to support the verdicts against him. We address each
of these arguments in turn below.4

I. Ineffective assistance of counsel

¶14 Buckley’s first set of arguments are based on his allegation that his
trial counsel was ineffective. He claims that his attorney failed to accurately
convey the plea offer and possible sentencing consequences to him; failed to
adequately advise him regarding his right to testify, resulting in an unknowing and
involuntary waiver of such right; and, finally, failed to object to allegedly
improper argument by the prosecutor.

¶15 “A claim of ineffective assistance of counsel is a mixed question of
fact and law.” State v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d
695. We will sustain the circuit court’s factual findings unless they are clearly
erroneous. State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 N.W.2d 305.
We independently review as a question of law whether counsel was ineffective.
Id., ¶24.

¶16 To prove ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the defendant was
prejudiced by counsel’s performance. Strickland v. Washington, 466 U.S. 668,
687 (1984). “Counsel’s conduct is constitutionally deficient if it falls below an
objective standard of reasonableness.” Thiel, 264 Wis. 2d 571, ¶19. To prove that

4
Although Buckley groups his appellate arguments into multiple issues, we conclude
that he makes two general categories of argument—one related to trial counsel’s performance and
the other to the sufficiency of the evidence. We address all of Buckley’s arguments within one or
both of these two frameworks.

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No. 2024AP976-CR

counsel’s deficient performance prejudiced his defense, “[t]he 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.”
Strickland, 466 U.S. at 694. In our analysis, we “may reverse the order of the two
tests or avoid the deficient performance analysis altogether if the defendant has
failed to show prejudice” from counsel’s performance. See State v. Johnson, 153
Wis. 2d 121, 128, 449 N.W.2d 845 (1990).

A. The plea agreement and sentencing consequences

¶17 Buckley’s first assertion of ineffective assistance of trial counsel
involves counsel’s alleged failure to inform Buckley that the circuit court did not
have to accept the terms of the plea agreement and the court could impose a life
sentence with the possibility of release to extended supervision after serving as
little as twenty years, though no extended supervision was also a possibility.
Although a defendant’s failure to knowingly enter into or reject a plea may be
grounds to support a claim of ineffective assistance, see, e.g., Ludwig, 124 Wis. 2d
at 609-12, the circuit court’s explicit factual findings here preclude us from
concluding that trial counsel rendered ineffective assistance. See Thiel, 264
Wis. 2d 571, ¶21.

¶18 The circuit court found that its discussion with Buckley and his trial
counsel at the pretrial Ludwig hearing sufficiently established Buckley’s
understanding of what the State offered. Buckley understood that the State would
recommend life without extended supervision but he would be “free to argue” for
extended supervision. The court found credible trial counsel’s testimony that he
discussed the plea offer with Buckley and Buckley understood it. The court found

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No. 2024AP976-CR

not credible Buckley’s testimony that he did not understand the agreement allowed
him to argue for extended supervision. The court found that Buckley rejected the
plea offer because he was not willing to plead guilty to first-degree intentional
homicide. It concluded that Buckley failed to prove deficient performance or
prejudice.

¶19 Buckley has not effectively established, or even argued, that the
circuit court’s credibility findings are clearly erroneous, nor is there anything in
the Record that would lead us to so conclude. At the postconviction hearing,
Buckley’s trial counsel testified at length regarding the discussions he had about
the State’s plea offer with Buckley. Counsel testified that he discussed the plea
offer and Buckley understood it. The court found Buckley’s testimony that he did
not understand the agreement allowed him to argue for extended supervision was
not credible. Instead, the court found that Buckley rejected the plea offer because
he was not willing to plead guilty to first-degree intentional homicide, not because
he was unaware of the possibility for extended supervision if he pled to the charge.
While we rarely upset circuit courts’ credibility determinations, we will do so
when a credibility finding is clearly erroneous. Lessor v. Wangelin, 221 Wis. 2d
659, 665-66, 586 N.W.2d 1 (Ct. App. 1998) (citation omitted). Here, with ample
Record evidence as corroboration, the court’s finding that Buckley’s self-serving
testimony was not credible is not clearly erroneous.

B. Waiver of the right to testify and the lesser-included offense instruction

¶20 We next address Buckley’s argument that trial counsel was
ineffective in failing to properly advise Buckley regarding his right to testify,
resulting in an unknowing and involuntary waiver of such right. Buckley waived
the right to testify after a thorough waiver colloquy with the circuit court. Trial

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No. 2024AP976-CR

counsel testified at the Machner hearing that he and Buckley discussed various
defenses, sentencing arguments, and the decision whether to testify from the
beginning of his representation all the way through trial. Buckley’s father was
involved in the discussions. Trial counsel testified that Buckley’s father wanted
the defense to pursue a self-defense theory, but counsel did not believe they could
meet the threshold for a self-defense instruction. Counsel also testified to having
considered asking for a jury instruction on second-degree intentional homicide,
but that would require Buckley to testify. Counsel and Buckley settled on the
defense that the State could not prove Buckley was at the scene when Caldwell
was shot and could not disprove that someone else in the busy, unsecured
apartment could have stolen the gun and shot Caldwell.

¶21 Trial counsel further explained that he had been concerned that if
Buckley testified at the trial, it might open the door in the State’s rebuttal case to
other-acts evidence that Buckley twice possessed and once discharged a firearm in
a Racine residential area in the months preceding the murder. Buckley testified
that counsel advised him that his testimony claiming he shot Caldwell in
self-defense would be inconsistent with the defense that the State failed to prove
he shot Caldwell and it would hurt Buckley’s credibility. Buckley claimed he did
not realize that he could only get a lesser-included offense instruction if he
testified, but admitted that he and trial counsel had discussed whether to request a
lesser-included offense jury instruction.

¶22 The circuit court found trial counsel’s testimony credible and
Buckley’s testimony not credible as to the issues of Buckley’s decision to waive
his right to testify and decision not to pursue a self-defense theory at trial.
Buckley testified that counsel advised him that his testimony claiming that he shot
Caldwell in self-defense would be inconsistent with the defense that the State

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No. 2024AP976-CR

failed to prove he shot Caldwell. Both counsel and Buckley thought it would hurt
Buckley’s credibility to testify at trial that Buckley had actually shot Caldwell, but
in self-defense. Buckley claimed postconviction that he did not realize that he
could only get a lesser-included offense instruction if he testified at trial, but later
admitted that he and counsel had discussed whether to request a lesser-included
offense instruction at trial.

¶23 Buckley has provided no basis to overturn the circuit court’s explicit
credibility determinations. Therefore, for the same reasons that Buckley’s first
ineffective assistance of counsel claim failed, so does his second claim. Buckley
also has failed to establish that the court’s findings as to this claim are clearly
erroneous.

C. Failure to object during closing argument and alleged commentary on
failure to testify

¶24 We turn now to Buckley’s argument that his trial counsel was
ineffective in failing to object to an allegedly improper closing argument made by
the prosecutor. An attorney’s performance may be deficient if the attorney could
have prevented the admission of evidence by making a timely objection but failed
to do so. State v. Domke, 2011 WI 95, ¶46, 337 Wis. 2d 268, 805 N.W.2d 364.
However, an attorney’s failure to make an objection that would have been
properly overruled by the circuit court is not deficient performance. See State v.
Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769 N.W.2d 110. This is
because attorneys are generally not required to advance losing arguments. State v.
Cameron, 2016 WI App 54, ¶27, 370 Wis. 2d 661, 885 N.W.2d 611 (“It is not
deficient performance for counsel not to make a pointless objection.”). Therefore,
in considering whether trial counsel’s failure to object to the statements and

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No. 2024AP976-CR

arguments on this topic was deficient performance, we consider whether the
challenged arguments were permissible as a matter of law.

¶25 In his rebuttal closing argument to the jury, the prosecutor stated:
“Folks, there was no dispute as to who was present when [Caldwell] was shot and
killed and fell to the ground on the front yard of 1231 Yout Street.” The
prosecutor then listed those witnesses who were nearby when Caldwell was shot.
Buckley insists that counsel should have objected because this was supposedly a
comment on his decision not to testify, but Buckley fails to explain how that is so.

¶26 We briefly pause to note that Buckley misquotes the jury trial
transcripts in making this argument. He first states that the prosecutor
“commented that ‘there is no disputed’ [sic] who shot Marcus Caldwell.” Our
independent review of the Record shows that this is not accurate; the accurate
quote is presented in the paragraph above this. Buckley also asserts, without
citation to the Record, that “The prosecutor argued that the jury heard no evidence
disputing its account of the homicide in this case and that there was absolutely no
evidence disputing its witnesses and their account of what occurred.” The Record
also belies this claim.

¶27 Contrary to Buckley’s argument, the prosecutor never argued that
the testimony of the State’s witnesses was “uncontroverted.” The prosecutor
argued the opposite: the State’s witnesses corroborated each other and refuted the
defense theory that some stranger appeared and shot Caldwell with the stolen gun.
As the circuit court aptly observed, arguing that evidence is “uncontroverted” is
not the same as arguing that evidence is “corroborated.” Buckley has failed to
identify any error related to the prosecutor’s closing arguments.

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No. 2024AP976-CR

¶28 A conviction is not to be reversed unless the prosecutor’s argument
“so infected the trial with unfairness as to make the resulting conviction a denial of
due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation
omitted); State v. Burns, 2011 WI 22, ¶49, 332 Wis. 2d 730, 798 N.W.2d 166.
Counsel is allowed considerable latitude in closing arguments, with discretion
given to the circuit court in determining the propriety of the argument. State v.
Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979). A “prosecutor may
comment on the evidence, detail the evidence, argue from it to a conclusion and
state that the evidence convinces him [or her] and should convince the jurors.” Id.
(internal quotation marks omitted).

¶29 The prosecutor’s brief remarks here were not inappropriate or
objectionable. They did not infect the trial with unfairness. They did not
reference Buckley’s decision not to testify. They did not propose to the jury that
Buckley’s decision demonstrates his guilt. They were “a fair response” to the
defense argument that the State failed to prove him guilty beyond a reasonable
doubt because it did not eliminate the possibility that an unidentified stranger
could have stolen the gun and shot Caldwell. See State v. Jaimes, 2006 WI App
93, ¶21, 292 Wis. 2d 656, 715 N.W.2d 669. The circuit court properly held that
there was no reason for counsel to object because the argument was not improper.
Counsel was not ineffective for failing to make a fruitless objection. Berggren,
320 Wis. 2d 209, ¶21.

II. Sufficiency of the evidence

¶30 Buckley argues that the State did not present sufficient evidence for
the jury to have found him guilty beyond a reasonable doubt of the charged crime.
“The question of whether the evidence was sufficient to sustain a verdict of guilt

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No. 2024AP976-CR

in a criminal prosecution is a question of law,” which we review independently.
State v. Smith, 2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410. We “will
uphold the conviction if there is any reasonable hypothesis that supports it.” Id.

¶31 “The burden of proof is upon the [S]tate to prove every essential
element of the crime charged beyond reasonable doubt.” Bautista v. State, 53
Wis. 2d 218, 223, 191 N.W.2d 725 (1971). “It is well established that a finding of
guilt may rest upon evidence that is entirely circumstantial[.]” State v. Poellinger,
153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). “The credibility of the witnesses
and the weight of the evidence is for the trier of fact.” Bautista, 53 Wis. 2d at
223. “Although the trier of fact must be convinced that the evidence presented at
trial is sufficiently strong to exclude every reasonable hypothesis of the
defendant’s innocence in order to find guilt beyond a reasonable doubt,” on
appeal, the reviewing court may not substitute its “judgment for that of the trier of
fact unless the evidence, viewed most favorably to the [S]tate and the conviction,
is so lacking in probative value and force that no trier of fact, acting reasonably,
could have found guilt beyond a reasonable doubt.” See Poellinger, 153 Wis. 2d
at 503, 507. “If more than one inference can be drawn from the evidence, we must
adopt the inference that supports the conviction.” State v. Long, 2009 WI 36, ¶19,
317 Wis. 2d 92, 765 N.W.2d 557.

¶32 We conclude the evidence, when viewed most favorably to the State
and the conviction, was sufficient for a rational jury to find Buckley guilty of the
first-degree intentional homicide of Caldwell. In the Background section above,
we set forth the facts as established by multiple witnesses who testified at trial and
described the physical evidence, including the empty gun box, the ammunition, the
shell casings, and more. These facts need not be recited again here. To
summarize, the defense tried to point the finger toward an unknown shooter, but

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No. 2024AP976-CR

the evidence in support of Buckley’s guilt was overwhelming. In light of the
evidence presented at trial, Buckley has failed to persuade us that no reasonable
jury could have found him guilty of the charges. See Poellinger, 153 Wis. 2d at
503, 507.

CONCLUSION

¶33 For all the reasons above, we conclude that Buckley has failed to
establish ineffective assistance of trial counsel. Buckley also has not persuaded us
that the evidence presented at his jury trial was insufficient to support his
convictions. Buckley is not entitled to a new trial.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2023-24).

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