State v. Prince Dashun Key

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 2, 2021
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. 2019AP618 Cir. Ct. No. 2004CF1372

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PRINCE DASHUN KEY,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Milwaukee County:
DAVID L. BOROWSKI, Judge. Affirmed in part; reversed in part and cause
remanded with directions.

Before Blanchard, 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. 2019AP618

¶1 PER CURIAM. Prince Dashun Key appeals the orders of the
Milwaukee County Circuit Court denying, without a hearing, his motion for a new
trial filed pursuant to WIS. STAT. § 974.06 (2017-18)1 and his motion for
reconsideration.

¶2 We conclude that Key’s motion for a new trial based on his argument
that he received ineffective assistance of counsel is procedurally barred; therefore,
we affirm that part of the circuit court’s orders denying Key’s motion without a
hearing. However, we conclude that the circuit court improperly assessed the
credibility of the affidavits Key submitted in support of his claim of newly
discovered evidence without a hearing. Therefore, we reverse that part of the circuit
court’s orders and remand for an evidentiary hearing on Key’s claim of newly
discovered evidence.

BACKGROUND

¶3 Key was convicted of first-degree intentional homicide of Larry Vann
on July 22, 2004, following a four-day jury trial. In a decision addressing Key’s
direct appeal, we described the shooting incident as follows:

This case arises from the shooting death of Larry
Vann on March 5, 2004, following an argument in a
sandwich shop. The argument was between the group Vann
was with, including his cousin Deangelo Vann, and Key and
occurred after someone cut in line in front of the woman Key
was with. Witnesses testified that during the argument, Key
brandished a gun, and after the argument, Key left the shop
and got into a car. The car exited the parking lot and drove
past where Vann was standing after he had exited the shop.
Key leaned out of the passenger side of a car and shot at
Vann as the car drove by, at which point Deangelo fired at

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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the car as it drove away. Key presented a different version
of events, admitting that he brandished a gun in the sandwich
shop but testifying that as he was leaving in the car,
Deangelo shot at the car, and Key fired his gun only in self-
defense as his car was driving away.

State v. Key, No. 2005AP1667-CR, unpublished op. and order at 1-2 (WI App
May 25, 2006) (footnote omitted).

¶4 Police recovered a total of eight nine-millimeter casings from the
scene of the shooting. Four casings were located in front of the sandwich shop, and
four casings were located just down the road from the sandwich shop. The evidence
also included a nine-millimeter bullet that was recovered from Vann, and a bullet
recovered from a bystander who was shot in the leg as he drove past the sandwich
shop. However, the police were never able to recover either firearm.

¶5 The State called an expert witness at the trial to testify regarding the
examination of the casings and the bullets recovered at the scene. The State’s expert
testified that, after examining the markings on the casings, he was able to determine
to a reasonable degree of scientific certainty that two guns, each of which fired four
shots, where involved in the shooting.

¶6 As to the first set of four casings located in front of the sandwich shop
where Vann was located after the shooting, the State’s expert testified that the
markings on the casings were consistent with markings made by a nine-millimeter
semiautomatic pistol manufactured by Smith & Wesson. The State’s expert also
testified that the bullet recovered from Vann also exhibited markings consistent with
those, which would be left by a nine-millimeter semiautomatic pistol manufactured
by Smith & Wesson. As to the second set of four casings located farther down the
road from the sandwich shop, the State’s expert was unable to identify the brand of
firearm associated with the casings from the markings on the casings. The State’s

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expert was likewise unable to connect the bullet recovered from the bystander to a
specific brand of firearm. The State’s expert was not asked and did not offer an
opinion regarding who or which gun was fired first. Trial counsel for Key did not
call an expert witness to rebut the testimony of the State’s expert witness.

¶7 Postconviction counsel filed a direct appeal and argued that there was
insufficient evidence to support Key’s conviction. This court affirmed the
conviction in a summary disposition dated May 25, 2006, and our supreme court
denied Key’s petition for review on August 31, 2006.

¶8 On October 26, 2007, three years after his conviction, Key filed a
pro se motion for postconviction relief pursuant to WIS. STAT. § 974.06, in which
he argued that he received ineffective assistance of both trial and postconviction
counsel. The circuit court denied his motion, and Key appealed. Counsel hired to
handle Key’s appeal of his first § 974.06 motion moved to have the appeal
voluntarily dismissed after determining that there was additional information that
needed to be brought to the circuit court’s attention, and the motion was granted,
resulting in the dismissal of Key’s appeal on September 29, 2008.

¶9 On December 20, 2018, roughly ten years later, new counsel for Key
filed a second motion, which underlies this appeal, seeking a new trial pursuant to
WIS. STAT. § 974.06, in which Key argued that he received ineffective assistance of
trial and postconviction counsel and that newly discovered evidence in the form of
two affidavits from two of Key’s fellow inmates required a new trial.

¶10 As it relates to his claim for ineffective assistance of counsel, Key
argued that his trial counsel was ineffective for failing to hire an expert to rebut the
testimony of the State’s expert witness regarding the casings and the bullet. Key
asserts that the State’s expert testified that Key shot first based on a connection

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between the bullet from the victim and the casings in front of the sandwich shop,
which in turn “ruined” Key’s defense that Deangelo shot at him first and he shot
back at Deangelo in self-defense.

¶11 Key then argued that his postconviction counsel was ineffective for
failing to identify this argument and for, instead, challenging his conviction on the
basis of the sufficiency of the evidence. In support of his argument, Key asserted
that he could call an expert criminologist, Gregory Martin, to rebut the testimony
from the State’s expert regarding the bullet casings recovered from the scene. In
particular, in his report, Martin opined that the casings cannot be connected to any
particular firearm to a reasonable degree of scientific certainty in the absence of
testing using the firearm from which the rounds were fired. Therefore, according to
Martin, the casings here cannot be connected to a Smith & Wesson firearm because
no firearms were recovered for testing.

¶12 As it relates to the newly discovered evidence, Key argued that his
recent discovery of two fellow prisoners, Calvin Glover and Alexander McGee, who
allegedly witnessed the shooting, was newly discovered evidence warranting a new
trial. Key argued this newly discovered evidence warrants a new trial because the
evidence supports his claim that Deangelo shot at Key first and Key shot back in
self-defense.

¶13 The circuit court denied Key’s motion without a hearing. Key moved
for reconsideration, and the circuit court denied that motion as well. Key now
appeals and argues he is entitled to a new trial, or an evidentiary hearing, on the
basis that he received ineffective assistance of counsel and that he has newly
discovered evidence.

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DISCUSSION

¶14 A defendant is not automatically entitled to an evidentiary hearing on
a postconviction motion. “A hearing on a postconviction motion is required only
when the movant states sufficient material facts that, if true, would entitle the
defendant to relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682
N.W.2d 433. “[I]f the motion does not raise facts sufficient to entitle the movant to
relief, or presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief,” the circuit court may deny
a postconviction motion without a hearing. See id., ¶9. Whether a motion alleges
sufficient facts that, if true, would entitle the defendant to an evidentiary hearing
presents a question of law that we review de novo. See State v. Bentley, 201 Wis. 2d
303, 310, 548 N.W.2d 50 (1996). “[A] defendant should provide facts that allow
the reviewing court to meaningfully assess his or her claim.” Id. at 314. As stated
in Allen,

postconviction motions [should] … allege the five “w’s” and
one “h”; that is, who, what, where, when, why, and how. A
motion that alleges, within the four corners of the document
itself, the kind of material factual objectivity ... will
necessarily include sufficient material facts for reviewing
courts to meaningfully assess a defendant’s claim.

Id., 274 Wis. 2d 568, ¶23 (footnote omitted).

¶15 We conclude that the circuit court properly denied Key’s motion
based on his claim for ineffective assistance because his claim is procedurally
barred. However, we conclude that Key has alleged sufficient facts to entitle him
to a hearing to address his claim of newly discovered evidence because the circuit
court improperly based its decision on the credibility of the affidavits Key submitted
with his motion.

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I. Key’s claim of ineffective assistance of counsel is
procedurally barred

¶16 “After the time for appeal or postconviction remedy provided in WIS.
STAT. § 974.02 has expired, a prisoner in custody under sentence of a court may
bring a motion to vacate, set aside, or correct a sentence, utilizing the procedure set
out in WIS. STAT. § 974.06.” State v. Balliette, 2011 WI 79, ¶34, 336 Wis. 2d 358,
805 N.W.2d 334. “Section 974.06 provides a mechanism for correcting errors
when: (1) the sentence violated the United States or Wisconsin Constitution; (2) the
court lacked jurisdiction to impose the sentence; or (3) the sentence exceeded the
maximum or was ‘otherwise subject to collateral attack.’” State v. Romero-
Georgana, 2014 WI 83, ¶32, 360 Wis. 2d 522, 849 N.W.2d 668 (citation omitted).
“A claim that trial counsel provided ineffective assistance is a claim that the
defendant’s sentence was imposed in violation of the constitution.” Balliette, 336
Wis. 2d 358, ¶34.

¶17 “All grounds for relief” available to a defendant under WIS. STAT.
§ 974.06(1) must be raised in the “original, supplemental or amended motion.” WIS.
STAT. § 974.06(4). If a defendant filed a previous motion under WIS. STAT.
§ 974.02, a direct appeal, or a previous motion under § 974.06, “the defendant is
barred from making a claim that could have been raised previously unless he shows
a sufficient reason for not making the claim earlier.” Romero-Georgana, 360
Wis. 2d 522, ¶35; see also State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82,
517 N.W.2d 157 (1994) (“[I]f the defendant’s grounds for relief have been finally
adjudicated, waived or not raised in a prior postconviction motion, they may not
become the basis for a [§] 974.06 motion.”).

¶18 “Whether a defendant’s appeal is procedurally barred is a question of
law that we review de novo.” State ex rel. Washington v. State, 2012 WI App 74,

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No. 2019AP618

¶27, 343 Wis. 2d 434, 819 N.W.2d 305. Similarly, “[w]hether a WIS. STAT.
§ 974.06 motion alleges a sufficient reason for failing to bring available claims
earlier is a question of law subject to de novo review.” Romero-Georgana, 360
Wis. 2d 522, ¶30.

¶19 Before filing the WIS. STAT. § 974.06 motion that we address on
appeal, Key’s postconviction counsel filed a direct appeal challenging the
sufficiency of the evidence and Key filed his first § 974.06 motion pro se, alleging
that both his trial and postconviction counsel were ineffective. His current claims
of ineffective assistance of trial and postconviction counsel are, therefore, barred
unless Key has a sufficient reason for not raising this claim in either his direct appeal
or his first § 974.06 motion. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

¶20 Key argues that his pro se status in his first WIS. STAT. § 974.06
motion is a sufficient reason for his failure to bring his current claims in his first
§ 974.06 motion. He reasons that, as a pro se defendant, he was not fully aware of
his legal arguments and he should not, in the interests of justice, be barred for his
failure to bring his claim in his first motion. Such an argument asks that we
conclude that Key’s self-representation was ineffective for his own failure to raise
his current argument earlier, but Key cannot argue that he himself was ineffective.
See Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (“[A] defendant who elects
to represent himself cannot thereafter complain that the quality of his own defense
amounted to a denial of ‘effective assistance of counsel.’”). We, therefore, conclude
that Key’s current claim of ineffective assistance of counsel is barred by his failure
to bring it in his first § 974.06 motion.

¶21 Even if Key’s claim was not barred for failing to raise it in his first
WIS. STAT. § 974.06 motion, he is nonetheless barred for failing to raise his claim

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on direct appeal. In an effort to surmount this bar, Key argues that the ineffective
assistance of postconviction counsel on his direct appeal is a sufficient reason for
his failure to bring his claim for ineffective assistance of trial counsel earlier and his
argument now is clearly stronger than the one that his postconviction counsel
brought.

¶22 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of
counsel.” Balliette, 336 Wis. 2d 358, ¶21. 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. “In some instances, ineffective assistance of
postconviction counsel may be a sufficient reason for failing to raise an available
claim in an earlier motion or on direct appeal.” Romero-Georgana, 360 Wis. 2d
522, ¶36. “An allegation that postconviction counsel failed to bring a claim that
should have been brought is an allegation that counsel’s performance was
constitutionally deficient, that it fell below the services required by an objective
standard of reasonableness under prevailing professional norms.” Id., ¶43. “[A]
defendant who alleges in a [WIS. STAT.] § 974.06 motion that his postconviction
counsel was ineffective for failing to bring certain viable claims must demonstrate
that the claims he wishes to bring are clearly stronger than the claims postconviction
counsel actually brought.” Id., ¶4.

¶23 In this case, Key argues that his trial counsel was ineffective for
failing to retain an expert and this argument is clearly stronger than the claim that
his postconviction counsel brought on direct appeal challenging the sufficiency of
the evidence. We disagree. Key’s argument that trial counsel was ineffective for
failing to retain an expert is meritless and, therefore, cannot be said to be clearly

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stronger than the argument that his postconviction counsel chose to bring on direct
appeal challenging the sufficiency of the evidence to support his conviction. See
State v. Ziebart, 2003 WI App 258, ¶15, 268 Wis. 2d 468, 673 N.W.2d 369 (“[T]o
establish that postconviction or appellate counsel was ineffective, a defendant bears
the burden of proving that trial counsel’s performance was deficient and
prejudicial.”).

¶24 Key argues that his trial counsel was ineffective for failing to retain
an expert to rebut testimony from the State’s expert that Key fired first, but contrary
to Key’s characterization of the testimony, the State’s expert never actually testified
that Key fired first. Rather, the expert testified that he examined the casings left at
the scene of the shooting and was able to determine that the marks on the casings
found in front of the sandwich shop had characteristics similar to those made by
nine-millimeter caliber semiautomatic pistols manufactured by Smith & Wesson.
He then testified that the markings on the bullet recovered from Vann also had
characteristics that were similar to those made by nine-millimeter caliber
semiautomatic pistols manufactured by Smith & Wesson. At most, this testimony
connected the bullet from the victim to the casings directly in front of the sandwich
shop. Further, in his postconviction motion, Key stated that Martin “could not say
who may have fired the first shot.” We cannot conclude that Key’s trial counsel
performed deficiently for failing to retain an expert who could rebut an opinion that
does not exist.

¶25 We similarly cannot conclude that Key was prejudiced by the lack of
an expert to opine that the casings and the bullet cannot be matched to any brand of
firearm to any reasonable degree of scientific certainty. Prejudice occurs when the
attorney’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

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758, 769, 596 N.W.2d 749 (1999). “Stated differently, relief may be granted only
where there ‘is a probability sufficient to undermine confidence in the outcome,’
i.e., there is a ‘substantial, not just conceivable, likelihood of a different result.’”
State v. Starks, 2013 WI 69, ¶55, 349 Wis. 2d 274, 833 N.W.2d
146 (quoting Cullen v. Pinholster, 563 U.S. 170, 189 (2011)), abrogated on other
grounds by State ex rel. Warren v. Meisner, 2020 WI 55, 392 Wis. 2d 1, 944
N.W.2d 588.

¶26 Assuming any error on trial counsel’s part, we cannot conclude that
our confidence in the outcome is undermined by Key’s proffered expert testimony.
The expert testimony that Key now offers does not directly contradict the testimony
of the State’s expert. As noted, the State’s expert did not offer an opinion regarding
which gun was fired first, nor that Key fired first. Further, Key’s expert does not
offer an opinion regarding which gun was fired first, nor that Key did not fire first.
Key’s expert also does not offer an opinion that would change the facts that
Deangelo and his girlfriend testified that Key fired shots first, that Key testified on
his own behalf that Deangelo fired shots first, and that the jury chose to believe the
testimony from Deangelo and his girlfriend that Key fired shots first. The jury, at
trial, heard from the witnesses to the shooting to both the theory that Key fired first
and that Deangelo fired first. Therefore, we cannot conclude that there is a
likelihood of a different result from a new trial given the amount and nature of
witness testimony from which the jury could reasonably have rejected Key’s
testimony that he only fired back at Deangelo in self-defense.

¶27 Because we conclude that trial counsel was not ineffective, we must
necessarily conclude that postconviction counsel was not ineffective for failing to
raise the argument that Key now makes. See Ziebart, 268 Wis. 2d 468, ¶15 (“[T]o
establish that postconviction or appellate counsel was ineffective, a defendant bears

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the burden of proving that trial counsel’s performance was deficient and
prejudicial.”). Accordingly, Key’s argument that he raises now is not clearly
stronger than the one actually raised by postconviction counsel on direct appeal and
Key’s claim for ineffective assistance of trial and postconviction counsel is
procedurally barred.

II. The circuit court erred by assessing the credibility of Key’s
newly discovered evidence without an evidentiary hearing

¶28 The decision to grant a motion for a new trial based on newly
discovered evidence is committed to the circuit court’s discretion. State v. Avery,
2013 WI 13, ¶22, 345 Wis. 2d 407, 826 N.W.2d 60. We review the circuit court’s
determination for an erroneous exercise of discretion. See id. A circuit court
erroneously exercises its discretion when it applies an incorrect legal standard to
newly discovered evidence. See State v. McCallum, 208 Wis. 2d 463, 474, 561
N.W.2d 707 (1997). Furthermore, we do not set aside the circuit court’s finding of
fact unless clearly erroneous. See WIS. STAT. § 805.17(2) (made applicable to
criminal proceedings by WIS. STAT. § 972.11(1)).

¶29 To be entitled to a new trial based on newly discovered evidence “a
defendant must prove: ‘(1) the evidence was discovered after conviction; (2) the
defendant was not negligent in seeking the evidence; (3) the evidence is material to
an issue in the case; and (4) the evidence is not merely cumulative.’” State v. Plude,
2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42 (citation omitted). “If the
defendant is able to prove all four of these criteria, then it must be determined
whether a reasonable probability exists that had the jury heard the
newly[]discovered evidence, it would have had a reasonable doubt as to the
defendant’s guilt.” Id.

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¶30 “A reasonable probability of a different result exists if there is a
reasonable probability that a jury, looking at both the old and the new evidence,
would have a reasonable doubt as to the defendant’s guilt.” Avery, 345 Wis. 2d 407,
¶25. “A court reviewing the newly discovered evidence should consider whether a
jury would find that the evidence ‘had a sufficient impact on other evidence
presented at trial that a jury would have a reasonable doubt as to the defendant’s
guilt.’” Id. (citation omitted). “This latter determination is a question of law.”
Plude, 310 Wis. 2d 28, ¶33.

¶31 Key argues that the affidavits from Glover and McGee constitute
newly discovered evidence entitling him to a new trial or, in the alternative, to an
evidentiary hearing. We conclude that Key has alleged sufficient facts in his motion
that, when taken as true, entitle him to a hearing on his claim of newly discovered
evidence and that the circuit court improperly assessed the credibility of the
affidavits from Glover and McGee without a hearing.

¶32 In its decision and order denying Key’s motion for a new trial, the
circuit court found it to be “truly an amazing coincidence” that Key would find “two
buddies in prison together” who would be able to provide affidavits of just the right
facts that Key needed to support his version of events. The circuit court went on to
find that the affidavits were “untrustworthy for more than one reason (for starters,
they were signed twelve years after the shooting).” Thus, the circuit court found
that “[t]here is not a reasonable probability that a jury who was not persuaded by
the defendant’s version of events would believe two persons who wafted out of the
prison library twelve years later following a discussion with the defendant about the
crime.” The circuit court stated, “The two affidavits shake the foundations of
credibility to the breaking point.”

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¶33 However, at this stage of the proceedings, the question before us is
whether Key has alleged sufficient facts which, if true, entitle him to relief. Whether
the affidavits submitted by Key are credible “is not relevant for our purposes here,”
because whether Key is entitled to an evidentiary hearing on his motion must be
decided based on the premise that the allegations in the affidavits “must be accepted
as true.” See State v. Love, 2005 WI 116, ¶54, 284 Wis. 2d 111, 700 N.W.2d 62.
“[T]he court is not to base its decision solely on the credibility of the newly
discovered evidence, unless it finds the new evidence to be incredible.” Avery, 345
Wis. 2d 407, ¶25. The circuit court here, though, based its entire decision on the
credibility of the affidavits from Glover and McGee and found the affidavits to be
incredible. Given that a similar affidavit years after a defendant’s conviction was
considered sufficient for a hearing, Love, 284 Wis. 2d 111, ¶55, the circuit court is
not permitted to deny an evidentiary hearing on the ground that the affidavits here
are incredible. Moreover, “[t]he general rule is that credibility determinations are
resolved by live testimony.” Id., ¶42. We see no reason why this general rule should
not apply here.

¶34 In his affidavit, Glover avers that he was at the sandwich shop around
1:40 a.m. in the summer of 2004 when he saw a “commotion.” He further avers
that he “saw this dude shoot 2-3 times towards a car” that was traveling west on
North Avenue towards Teutonia. He avers that he “then saw someone in the car
return fire.” McGee provides a similar affidavit in which he avers that he witnessed
a shooting at a sandwich shop around 1:40 a.m. in 2004. He avers that he “saw a
dude in front of the [sandwich] shop begin to open fire toward the car that went past
the [sandwich] shop.” He further avers that he “then saw someone in the car that
rode past return fire toward the [sandwich] shop.” Taking these affidavits as true,

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as we must, we conclude that Key has satisfied the requirements to warrant a hearing
on his claim of newly discovered evidence.

¶35 The State argues that, in light of the overwhelming evidence presented
at trial that Key was the first person to shoot, the affidavits do not result in a
reasonable probability of a different result. While that may ultimately be the case
depending on the results of an evidentiary hearing, the circuit court failed to weigh
the old and new evidence to make this determination and instead based its decision
solely on its perception of the credibility of the affidavits. “That is not the
appropriate standard.” McCallum, 208 Wis. 2d at 474. We, accordingly, remand
for a hearing to address Key’s newly discovered evidence.

CONCLUSION

¶36 We conclude that Key’s argument regarding ineffective assistance of
counsel is procedurally barred and we, therefore, affirm that part of the circuit
court’s decision denying Key’s motion without a hearing. However, we conclude
that the circuit court improperly assessed the credibility of the affidavits that Key
submitted with his motion. We, therefore, reverse that part of the circuit court’s
decision denying Key’s motion without a hearing and remand for the circuit court
to conduct a hearing on Key’s newly discovered evidence.

By the Court.—Orders affirmed in part; reversed in part and cause
remanded with directions.

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

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