State v. Craig Felix Lathon

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.
July 21, 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 Nos.
2019AP36 Cir. Ct. Nos. 1991CF911917A
1991CF913878
2019AP37
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CRAIG FELIX LATHON,

DEFENDANT-APPELLANT.

APPEALS from an order of the circuit court for Milwaukee County:
DAVID L. BOROWSKI, Judge. Affirmed.

Before Brash, P.J., Blanchard and Dugan, 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).
Nos. 2019AP36
2019AP37

¶1 PER CURIAM. Craig Lathon was convicted of three counts of
first-degree intentional homicide based on jury verdicts in 1992. He appeals an
order denying his WIS. STAT. § 974.06 (2017-18) postconviction motion for a new
trial.1 The postconviction motion is based on purported newly discovered
evidence which he contends shows that he was convicted based on the perjured
trial testimony of three witnesses who conspired to frame him. He further argues
that based on purported newly discovered evidence, the State failed to disclose
exculpatory evidence to the defense before trial in violation of Brady v. Maryland,
373 U.S. 83 (1963). He also argues that the trial court erred in not granting an
evidentiary hearing on his motion. We reject Lathon’s arguments related to the
alleged conspiracy to frame him based on controlling propositions in State v.
McAlister, 2018 WI 34, 380 Wis. 2d 684, 911 N.W.2d 77. We reject his Brady-
based argument because, even assuming such a failure to disclose, we conclude
that he fails to show that he has evidence of the materiality required to sustain a
Brady claim. Accordingly, we affirm.

BACKGROUND

¶2 In 1991, the State filed two criminal complaints against Lathon,
which were consolidated into one case and tried together. The complaints charged
Lathon with the intentional, fatal shootings of three men on three occasions at
three different Milwaukee locations: Michael White on April 19, 1991; Craig
Burnett on May 13, 1991; and O.C. Brown on May 28, 1991.

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

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¶3 We now summarize evidence as to each homicide that was presented
at the jury trial before the Honorable John J. DiMotto. This includes testimony by
the three witnesses called by the State at trial who Lathon contends conspired to
frame him: Johnnie Winston, Mose Cullins, and Steven Younker.

Michael White

¶4 Randall Burczyk and John Zrinsky both testified that the following
occurred on the night of April 19, 1991. Burczyk and Zrinsky were watching TV
with White in White’s basement residence when an African American male came
to the door, and called out for “Mike.” White met the male at the door. Burczyk
and Zrinsky both identified Lathon in court as the male who appeared at the door.2
Lathon and White engaged in a struggle, Lathon told White to lie down, and White
swore at Lathon. Lathon fired a gun at White.

¶5 A detective testified that Burczyk gave a similar account on the night
of White’s shooting. The detective testified that Burczyk told him that Burczyk
“got a short look at the black male” who shot White and described him as “20 to
21 years of age, about five foot six to seven, dark complected and wearing dark
clothes,” but also told the detective that Burczyk “didn’t get a good look at his
face, and that he would not be able to identify” the shooter.

2
Both Burczyk and Zrinsky failed to identify Lathon as White’s shooter in a line-up held
on October 21, 1991. Both men testified that it was only after they saw Lathon’s image on
television that they realized that he was the shooter. However, Burczyk also testified at trial that
the men in the line-up all wore “baseball caps … pulled down pretty far over their eyes,” while
the man who shot White was wearing a hat that “was tilted kind of back towards the side.”

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¶6 Steven Younker testified to the following.3 On the night of April 19,
1991, Younker was with Lathon and Mose Cullins, both of whom he was already
acquainted with. Lathon and Cullins talked about buying marijuana. The three
men drove in one vehicle to the area of White’s residence on or near 54th Street.
Lathon and Cullins got out of the vehicle, for the purpose (as far as Younker
knew) of buying marijuana. But shortly thereafter, Lathon and Cullins came back
to the vehicle “in a rush.” Lathon drove away “real fast,” and ignored a stop sign
at high speed, before stopping the vehicle and getting out. After Lathon left, a
“shaky” Cullins, who appeared to be in shock, told Younker that Younker should
not tell anyone, but Lathon had “just shot this white boy” in the left area of his
chest.

¶7 A police detective testified that Younker gave essentially the same
account to the detective during an interview in September 1991.

¶8 Mose Cullins testified to the following.4 On the night of April 19,
1991, he went with Younker and Lathon (with whom he had been friends since the
age of nine) to a house on 53rd and Hampton because a man owed Lathon money.
Lathon asked Cullins to come with him and for Younker to stay in the car, which
is what happened. The door was open at the residence and Lathon entered, in

3
The jury learned that Younker had five prior convictions, that at the time of Lathon’s
trial Younker faced a maximum of 20 years’ confinement on an armed robbery conviction, and
that the prosecutor in Lathon’s case had told Younker that he would inform Younker’s sentencing
judge of his cooperation in testifying at Lathon’s trial.
4
The jury learned that, as of the time of Lathon’s trial, Cullins had reached the following
agreements with the prosecutor: Cullins would be charged in the Brown homicide and the State
would recommend a sentence of fourteen years, and Cullins could yet be charged in the White
homicide.

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order to collect on a debt as far as Cullins was aware. Looking down from just
outside the residence, Cullins saw Lathon walk down stairs to where several
people were on a couch watching TV. Lathon pulled “a nine[-]millimeter [gun]
out of his waistband and point[ed] it towards” the people watching TV. A white
man tried to get the gun from Lathon, but Lathon shot the man. Lathon and
Cullins then ran back to the car where Younker was waiting. Lathon drove away
“real reckless and fast.” After Lathon got out of the car, Cullins told Younker that
he had seen Lathon shoot a man in the chest.

¶9 Cullins further testified that the next day, Lathon “bragg[ed]” to
Cullins “that he had some more homicides under his belt[,] meaning that he [had]
killed more people.”

¶10 Johnnie Winston testified to the following.5 At one point on the
same night that White was fatally shot, Winston was with Lathon and Cullins.
Lathon told Winston to “watch the news,” because Lathon had shot in the chest a
man who lived on 54th Street, using a nine-millimeter gun, when the man resisted
a robbery by Lathon. At that point, Winston had seen Lathon carry a nine-
millimeter gun on a daily basis. Lathon told Winston that he had believed that the
man he shot was keeping $10,000 in his residence, but that Lathon did not take
any money from the man.

5
The jury at Lathon’s trial learned that Winston had four convictions. Winston testified
that he had reached no agreements with the prosecution, although he was serving time for escape
and had “a pistol case” pending. As referenced below, Lathon’s postconviction counsel now
avers that Winston would now contradict his trial testimony that Lathon made incriminating
admissions.

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Craig Burnett

¶11 Jeannette Ollie testified to the following. At approximately
2:30 a.m. on May 13, 1991, Ollie and Burnett, who were engaged, pulled into the
garage of their residence on 33rd Street. Two men displaying guns confronted
them from either side of the car and announced “a BOS robbery,” which Ollie
understood to mean a robbery by gang members. At gunpoint, the men forced
Ollie and Burnett into their residence. One robber stayed with Ollie in the living
room and the other, whom Ollie identified as Lathon, went with Burnett into a
bedroom. Ollie heard a gunshot, Lathon and the other man ran out of the
residence. Ollie found Burnett in the bedroom, having been shot in the head by
Lathon.6

¶12 Ollie testified as follows about what she said was one of several
pieces of jewelry that the robbers took from Burnett. Burnett and Ollie had both
had similar necklaces featuring the shape of an anchor. The prosecutor asked the
jury to compare Ollie’s anchor necklace with an anchor necklace that Lathon was
photographed wearing, on the theory that Lathon was wearing Burnett’s
companion anchor necklace that had been taken in the robbery. Ollie testified that
Lathon’s necklace in the photograph appeared to be the one taken from Burnett in
the robbery, although on cross examination she qualified this to say that it was at
least similar to the one Burnett had.

6
Ollie acknowledged in her trial testimony that during the police investigation she had
been unable to identify Lathon in a police line-up. However, she testified that, when he was in
the line-up, Lathon was wearing a cap that covered so much of his face that it did not “really
reveal his features,” and that “there is no doubt in my mind that” the photo of Lathon showed the
man who shot Burnett, whom she testified she had a chance to observe on the night of the
shooting.

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¶13 Winston testified to the following. Lathon swore to Winston in mid-
May 1991 that he had shot a man named Burnett in the head. Lathon said that this
occurred after Lathon “told [Burnett] to give him the money” and Burnett had
reached for a gun. At around this same time, Winston saw Lathon wearing a
necklace with an anchor and Lathon explained that he had gotten it from Burnett.

¶14 Cullins testified that, on a date that is unclear from the transcript,
Lathon told Cullins that Lathon had shot a man in the head on 33rd Street, under
circumstances that generally align with aspects of the shooting of Craig Burnett as
summarized above.

O.C. Brown

¶15 Brian Brown testified to the following. On May 28, 1991, he was at
the residence of his father, O.C. Brown, and in the presence of his father, when
Cullins pulled a car into the driveway. Cullins got out of the car, pointed a gun at
the two Browns, and made a threat. O.C. Brown engaged in a physical struggle
with Cullins. Cullins called out for a man who was standing in the driveway to
shoot O.C. Brown. The man standing in the driveway shot O.C. Brown in the
back.

¶16 Isaac Briscoe testified to the following. On May 28, 1991, Briscoe
was in a car with Lathon and Cullins. Cullins stopped the car in a driveway and
started arguing with a man (Brian Brown) at the residence adjoining the driveway.
Cullins pulled out a gun and O.C. Brown started struggling with Cullins. Lathon
got out of the car with a nine-millimeter gun and moved toward Cullins and O.C.
Brown when there was a gunshot. Briscoe heard the gunshot after Lathon got out

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of the car and started to walk toward the struggling Cullins and O.C. Brown.7
Lathon, Briscoe, and Cullins then sped from the scene of the shooting.

Trial Results And Direct Appeal

¶17 The jury convicted Lathon on all three counts of first-degree
intentional homicide and he was sentenced to consecutive terms of life
imprisonment.

¶18 In November 1993, this court rejected issues that Lathon raised on
direct appeal and affirmed the judgment of conviction and an order denying his
request for postconviction relief.

Current WIS. STAT. § 974.06 Motion

¶19 In a WIS. STAT. § 974.06 motion filed in June 2017, Lathon
requested an evidentiary hearing based on the claim that newly discovered
evidence establishes that he was framed by Younker, Cullins, and Winston in the
shooting deaths of White and Burnett. Lathon supported this request with
affidavits we now summarize:8

 A 2003 affidavit of Corey Martin averred in part the following. When
Martin was an inmate in the House of Corrections “[b]ack in
7
Defense counsel conceded in closing argument that Lathon fatally shot O.C. Brown,
but took the position that the jury should find that it was an accidental shooting. This was based
on testimony from a detective that, in a May 1991 interview, Lathon said that while Cullins and
“the old man” (O.C. Brown) were fighting, Lathon’s gun was cocked and his gun went off when
the “dude” (Brian Brown) bumped Lathon’s arm.
8
We omit from this summary, and from further discussion in this opinion, reference to
Charles Hart, a potential witness mentioned in the postconviction motion. It is sufficient to
explain this omission that neither Lathon’s principal brief nor his reply brief contain a single
substantive reference to Hart.

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1991/1992,” Cullins, Winston, and [Younker] were also inmates.
Martin was present when the three men agreed to “lie on” Lathon at his
trial, and maintain “the story,” to help Cullins avoid a life sentence.

 A 2008 affidavit of Calvin Robinson averred in part the following.
When Robinson was an inmate in the Milwaukee County Jail “between
1991-1992,” Cullins and Winston were also inmates. Cullins and
Winston asked Robinson to falsely tell police that Lathon had admitted
to Robinson while in jail that Lathon had committed the White and
Burnett homicides. “Cullins & somebody else” had actually committed
the White and Burnett homicides, and they wanted to frame Lathon for
both of those homicides, since Lathon was already admitting that he had
shot Brown. But Robinson had “second thought[]s” about falsely
accusing Lathon, and ended up telling the prosecutor in Lathon’s case
that Cullins and Winston were trying “to place the 2 homicide charges
on Craig Lathon, so they could avoid going to prison.” But the
prosecutor never took Robinson up on his offer to testify at Lathon’s
trial that Cullins and Winston were trying to frame Lathon.

 A newly created affidavit of postconviction counsel averred in part the
following. At some unidentified time, counsel had spoken with Tronnie
Dismuke, who would testify to the following. Around 1991, Dismuke
was an inmate in the House of Corrections, along with Younker and
Winston. Younker told Dismuke that Cullins and Winston “got
[Younker] involved in putting a case on Craig Lathon.” After Dismuke
was released on bail, Winston told Dismuke that “[t]hey were putting
the crimes on Craig Lathon because he was not ‘one of us’ and because
the district attorney said that someone has to go down for it and they
decided it may as well be Lathon, as long as it was not one of them.”

Counsel further averred that in February 2015, Winston made
statements to counsel that included the following. Lathon never told
Winston that he had killed anyone and never told Winston “that he had
taken a piece of jewelry off of a dead guy,” meaning Burnett. “Winston
would have known if Lathon had killed anyone because [Winston and
Lathon] were always together.”

Counsel further averred that at unidentified times he had spoken with
Lathon’s mother who told him that the anchor necklace that the State
alleged Lathon was wearing after taking it from the dead or dying
Burnett was in fact a necklace that Lathon owned before Burnett was
killed.

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¶20 Lathon argued that these affidavits warrant an evidentiary hearing
because “newly discovered witnesses Corey Martin, Calvin Robinson, and
Tronnie Dismuke,” as well as the alleged Winston recantation, “confirm the fact
that Mose Cullins, Johnny Winston, and Steve Younker … admitted that Lathon in
fact was not involved in” the White and Burnett homicides. Lathon further argued
that the Robinson affidavit explains how the prosecutor “failed to disclose” the
fact that Robinson had revealed to the prosecutor a plan to frame an innocent man.

¶21 The State argued in response, in part, that Lathon’s postconviction
motion offered “evidence that only serves to impeach” witnesses and also lacked
independent corroboration. As to the alleged Brady violation, the State argued in
part that “the evidence was not material, i.e., the defendant was not prejudiced,”
even assuming the truth of the allegations and that the prosecution had not made a
disclosure.

¶22 In a written decision, the Honorable David L. Borowski denied the
motion for a new trial without holding an evidentiary hearing. Lathon appeals.
We explain below why we agree with each of the conclusions reached by the
circuit court, using reasoning on both issues that is similar to that expressed by the
circuit court in its decision.

DISCUSSION

¶23 Whether a postconviction motion alleges sufficient facts to entitle
the defendant to a hearing for the relief requested is subject to a mixed standard of
review. State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. We
begin by determining whether the motion alleges sufficient facts that, if true,
would entitle the defendant to relief. Id. This is a question of law that we review

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de novo. State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). If the
motion raises such facts, the circuit court must hold an evidentiary hearing. Id.
However, if the motion does not raise facts sufficient to entitle the defendant to
relief, “or presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief, the circuit court has the
discretion to grant or deny a hearing.” Allen, 274 Wis. 2d 568, ¶9. We review the
“court’s discretionary decisions under the deferential erroneous exercise of
discretion standard.” Id. In a WIS. STAT. § 974.06 motion, “the burden shifts to
the defendant who must show the need for a postconviction evidentiary hearing
with a clearly articulated justification.” McAlister, 380 Wis. 2d 684, ¶28 (citing
State v. Balliette, 2011 WI 79, ¶58, 336 Wis. 2d 358, 805 N.W.2d 334).

¶24 Both claims for relief here are based on purported newly discovered
evidence. Our supreme court summarized the applicable standards in McAlister:

If a judgment is to be set aside based on newly
discovered evidence, the defendant must provide sufficient
evidence to establish that defendant’s conviction is a
manifest injustice. To obtain an evidentiary hearing for
such an allegation, a defendant must show specific facts
that are sufficient by clear and convincing proof, when
considered in the context of the record as a whole, that:
(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.

If a defendant satisfies those four criteria, then “the
circuit court must determine whether a reasonable
probability exists that a different result would be reached in
a trial.” “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.”

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Id., ¶¶31-32 (citations omitted). The court in McAlister further explained that the
following test applies to recantation evidence, and that it also can be “a useful
framework” to use when considering the allegation of a third party that a witness
admitted committing perjury:

A claim of newly discovered evidence that is based
on recantation also requires corroboration of the recantation
with additional newly discovered evidence. As we have
explained, “[r]ecantations are inherently unreliable.”
Therefore, corroboration requires newly discovered
evidence that “(1) there is a feasible motive for the initial
false statement; and, (2) there are circumstantial guarantees
of the trustworthiness of the recantation.”

Id., ¶33 (footnote omitted, but content of footnote referenced) (citations omitted);
see also id., ¶56 (holding that the corroboration requirement applied to three
affidavits averring that two trial witnesses admitted to lying in giving inculpatory
testimony at trial).

I. ALLEGED CONSPIRACY TO FRAME LATHON

¶25 Lathon argues that he is entitled to an evidentiary hearing because, if
the averments in the affidavits of Martin, Robinson, and trial counsel (quoting
Dismuke and Winston) are credited, this would provide jurors at a new trial with a
reasonable basis to find that Lathon did not commit the White and Burnett
homicides “and that Winston, Younker, and Cullins had conspired for their own
purposes to conform their testimony and enlist others to falsely accuse Lathon.” 9
9
Lathon’s argument regarding the need for a new trial in the Brown homicide is largely
that Lathon’s accidental shooting theory would be easier for a jury to accept if jurors did not think
that he had fatally shot White and Burnett. However, as the State points out, the court
specifically instructed the jury not to allow its verdict on one charge to influence its verdicts on
the other charges and we presume the jurors follow instructions. Further, we reject Lathon’s
arguments regarding the White and Burnett homicides and, therefore, his theory about the
influence of those homicides on the Brown homicide has no starting point.

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However, when the State correctly points out that our supreme court in McAlister
rejected strikingly similar arguments based on generally similar facts by the
defendant, Lathon offers only weak attempts to distinguish McAlister, putting
aside his contention that McAlister was wrongly decided.10

¶26 We now summarize McAlister, then explain how it controls the first
issue and why we reject Lathon’s attempts to distinguish it.

10
Lathon bases numerous arguments on the premise that State v. McAlister, 2018 WI 34,
380 Wis. 2d 684, 911 N.W.2d 77, was wrongly decided. We limit our discussion of these various
arguments to this footnote.

Lathon accurately acknowledges that, because our “supreme court is the only state court
with the power to overrule, modify or withdraw language from a previous supreme court case,”
Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997), this court is bound by McAlister,
if we conclude, as we do, that it cannot be distinguished.

At the same time, Lathon argues that “McAlister’s analysis conflicts with long-standing
and still-controlling (i.e., unreversed) authority” that predates McAlister. Lathon contends that
the facts in McAlister represented a “perfect storm” of deficits for the defense “that led the
McAlister [c]ourt to forgo settled law and substitute its own credibility findings for that of a jury,
or even a judge at an evidentiary hearing.”

Lathon also suggests that the “long-standing rule that where supreme court decisions
appear to be inconsistent, or in conflict, we follow the court’s most recent pronouncement,” see
Kramer v. Board of Educ. of Sch. Dist. of Menomonie Area, 2001 WI App 244, ¶20, 248
Wis. 2d 333, 635 N.W.2d 857, is not consistent with Cook. For these reasons, Lathon contends,
we should ask our supreme court to certify this appeal and, if certification is rejected, note that
McAlister “conflicts with controlling law.” We are not persuaded that anything of value would
be gained by certification. The majority of the court in McAlister made clear, broad statements,
rejecting alternative points made by the concurring justice and the two dissenting justices. See
McAlister, ¶¶65-73 (Kelly, J., concurring); ¶¶74-102 (A.W. Bradley and Abrahamson, JJ.,
dissenting). Lathon has the opportunity to petition our supreme court for review of this opinion.
If the court decided to grant such a petition, it could consider his criticisms of McAlister.

Further, we reject as thoroughly undeveloped whatever argument Lathon intends to make
by briefly referencing the notion of a novel “federal due process right to reversal on newly
discovered evidence grounds.”

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A. McAlister

¶27 McAlister was charged with multiple armed robbery-related crimes.
Id., ¶1. At his jury trial, the State called Jefferson and Waters to testify that
McAlister “was their accomplice in the robberies,” and in the course of cross
examination the defense attempted to impeach both Jefferson and Waters based on
favorable deals they had with the prosecution. Id., ¶¶1, 10-11, 16.

¶28 In a WIS. STAT. § 974.06 motion for a new trial, McAlister alleged
that he had newly discovered evidence in the form of affidavits of three men:
(1) McPherson averred that, before McAlister’s trial, while McPherson and Waters
were incarcerated together, Waters told McPherson that he had lied to police about
McAlister’s involvement in the armed robberies and that he had written to
Jefferson, instructing him what to tell police; (2) Prince averred that, starting
before and ending after McAlister’s trial, while he and Jefferson were incarcerated
together, Jefferson told him that Waters had told Jefferson “exactly what to say
regarding their pending charges,” that McAlister “was never involved in any of the
robberies they committed,” and that Waters had “instructed him to lie” in order to
win them shorter sentences; and (3) Shannon averred that, before McAlister’s trial,
he was incarcerated with Jefferson, who told Shannon that Jefferson and Waters
were the only two people involved in one of the robberies that McAlister was
charged with, but that Jefferson had struck a plea deal to testify against someone
who had not been involved in the robbery. Id., ¶¶2, 22-24.

¶29 The circuit court denied the motion for a new trial without holding
an evidentiary hearing. Id., ¶2. Our supreme court affirmed, concluding that the
affidavits of McPherson, Prince, and Shannon “were merely cumulative evidence
because they were additional evidence of the same general character as was

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subject to proof at trial, i.e., that Jefferson and Waters lied when they implicated
McAlister in order to achieve favorable plea bargains for themselves.” Id., ¶4.
The court further determined that “the affidavits were insufficient to require the
circuit court to hold a hearing on McAlister’s motion for a new trial because they
were supported by neither newly discovered corroborating evidence or
circumstantial guarantees of trustworthiness,” in part because the affidavits were
created years after the events they purported to describe. Id., ¶¶4, 52.

B. McAlister Controls

¶30 Under circumstances highly similar to those presented here, the
court in McAlister held that the content of the McPherson, Prince, and Shannon
affidavits was “merely cumulative” of proof at trial under the fourth prong of the
general newly discovered evidence test, and also that the content of the affidavits
lacked the requirement of corroboration required for newly discovered evidence
that is based on a recantation. Id., ¶¶31-63. The facts in the two cases, of course,
do not align perfectly. We are also mindful of the court’s cautions in McAlister
that “whether to grant a hearing on a WIS. STAT. § 974.06 motion for a new trial
based on newly discovered evidence that claims to uncover perjured trial
testimony requires careful examination of the movant’s specific factual allegations
in the context of the record as a whole,” and also that the “‘degree and extent of
the corroboration required [for newly discovered evidence based on recantation]
varies from case to case based on its individual circumstances.’” Id., ¶¶28, 57
(quoted source omitted). However, having made a careful examination of the
allegations presented by Lathon and the individual circumstances of this case, we
conclude that each of his arguments must be rejected under the reasoning in

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McAlister and for this reason he has failed to meet his burden to show the need for
a hearing.

¶31 We could affirm based on either the “merely cumulative” prong or
the lack of corroboration alone, but like the court in McAlister we address both,
given how directly applicable the discussion is in McAlister.

Cumulative

¶32 The court in McAlister stated the following as a general rule:
“Where the credibility of a prosecution witness was tested at trial, evidence that
again attacks the credibility of that witness is cumulative.” Id., ¶39. Using this
general rule as a guide, the court concluded that the newly discovered witnesses,
who alleged a pretrial plan by Jefferson and Waters to “lie about McAlister” at his
trial “to benefit themselves,” met the definition of cumulative evidence:
“additional evidence of the same general character, to some fact or point, which
was subject of proof before.” Id., ¶39-51 (citation omitted). It is the same here.
Lathon relies on newly discovered witnesses Martin, Robinson, and Dismuke,
along with the allegedly recanting Winston, to allege a pretrial plan by Winston,
Cullins, and Younker to lie about Lathon at his trial to benefit themselves and each
other.

¶33 Moreover, in a similar manner to what occurred in cross
examinations at trial in McAlister, the defense at Lathon’s trial probed the
credibility of Winston, Cullins, and Younker, inviting the jury to question whether
they were telling the truth or instead lying about Lathon to help themselves. See
id., ¶¶43-49. In one illustrative example, defense counsel asked Younker,
regarding his expectation of a favorable statement from the prosecutor to a

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sentencing court who could give Younker a sentence of up to twenty years’
confinement: “And would it be safe to say, Mr. Younker, that you would do
anything to get any kind of consideration?”

¶34 In attempting to distinguish McAlister on the merely cumulative
topic, Lathon argues that the newly discovered potential testimony of Martin,
Robinson, and Dismuke, and the recantation of Winston, would be admissible to
show prior inconsistent statements of Winston, Cullins, and Younker. Lathon’s
argument continues, “McAlister did not address or decide whether the cooperating
witnesses’ prior [in]consistent statements would have been cumulative if offered
as substantive evidence of McAlister’s innocence.” However, Lathon simply tries
to place a new label (“substantive evidence”) on a proposition directly rejected in
McAlister, when the court stated that the substance of the newly discovered
evidence offered by McAlister was “of the same general character and drawn to
the same point” as the impeachment that occurred at trial. See id., ¶50. The
additional label “substantive evidence” adds nothing, under the controlling
reasoning in McAlister.

¶35 Lathon is wrong if he intends to argue that the alleged newly
discovered revelation in McAlister lacked an equivalent feature to the alleged
newly discovered revelation here that Winston, Cullins, and Younker expressed
the belief that Lathon was innocent of the White and Burnett homicides. As the
summary above shows, the court in McAlister operated from the premise that
McPherson, Prince, and Shannon believed McAlister to be innocent. See id.,
¶¶21-23.

¶36 Lathon also argues that the newly discovered evidence here would
reveal that Winston, Cullins, and Younker were “coconspirators” who actively

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worked together and discussed a scheme to commit perjury to help not only
themselves individually but to help each other, giving them an “additional
motive.” But this “additional motive,” an active conspiracy-to-perjure, was also
allegedly afoot in McAlister. For example Prince averred that Jefferson had
reported that Waters told Jefferson “exactly what to say regarding their pending
charges,” so that they could receive shorter sentences. See id., ¶22. Lathon fails
to identify anything about differences between the two cases regarding the alleged
plans to commit perjury that could matter under the controlling reasoning in
McAlister.

Lack Of Corroboration

¶37 The court in McAlister noted that the affidavits submitted in support
of the motion in that case were not “classic recantation testimony” because the
three affiants relayed what trial witnesses Jefferson and Waters allegedly had told
them about plans to lie in trial testimony, as opposed to being sworn post-verdict
admissions to perjury by Jefferson and Waters themselves. Id., ¶¶52-54.
Nevertheless, the court determined that the affidavits represented the functional
equivalent of recantations and, therefore, had to meet the corroboration
requirement that is imposed because recantations are inherently unreliable. Id.,
¶¶55-56. Applying the two corroboration requirements—newly discovered
evidence of a feasible motive for the initial false statement and circumstantial
guarantees of trustworthiness of the recantation—the court concluded that
McAlister failed both. Id., ¶¶57-62.

¶38 Applying the reasoning in McAlister, Lathon also fails both
corroboration requirements, as Lathon comes close to conceding by
acknowledging that the considerations that decided the corroboration issue in

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McAlister “are present here to some degree.” If the motive “to obtain plea
bargains that would reduce their imprisonment time” was “fully explored at trial
and is not newly discovered” in McAlister, see id., ¶59, then it was “fully explored
at trial and is not newly discovered” in this case. Lathon acknowledges that “the
fact that Cullins, Winston, and Younker each had motive to falsely accuse Lathon
to mitigate the consequences of his own wrongdoing.”

¶39 In addition and similarly, if the lengthy passage of time between
McAlister’s trial and the submission of the affidavits, as well as the fact that the
allegations of a framing were made in jail, rendered the affidavits in McAlister
lacking in circumstantial guarantees of trustworthiness, see id., ¶¶60-61, those
same facts in this case have the same significance. Indeed, here there were
extreme and unexplained delays not only between Lathon’s 1992 convictions and
the creation of the Martin and Robinson affidavits, but also between the creation
of the affidavits and the postconviction motion. Lathon makes an outlandish
comparison between the circumstances here and delayed reporting by sexual
assault victims.

¶40 Notably, the court in McAlister stated that it did not help McAlister
that the three newly discovered witnesses corroborated each other’s testimony.
See id., ¶62. Therefore, we are not permitted to count as an independent factor in
favor of corroboration that aspects of the new Martin, Robinson, Dismuke, and
Winston statements support each other.

¶41 Also significant here is the categorical statement in McAlister that
“recantations made while in jail are ‘highly suspicious.’” See id., ¶61 (quoted
source omitted). Following McAlister, we must reject Lathon’s argument that

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suspicion of jailhouse recantations arises only when there is a specific, identified
basis “to suspect coercion or influence.”

¶42 Lathon asserts that a distinguishing feature of this case from
McAlister is that here there was “direct evidence of the [S]tate’s witnesses’
conspiracy to defraud the [c]ourt and frame Lathon [in] the White and Burnett
homicides.” By “direct evidence,” Lathon apparently is referring to Martin’s
averment that he was physically present when Winston, Cullins, and Younker
conspired to falsely incriminate Lathon to help Cullins avoid a life sentence. But
Lathon fails to develop an argument that the nature of the alleged conspiracy to
frame McAlister differs in kind from the alleged conspiracy to frame Lathon,
including the shared factual features on points emphasized by the McAlister court
in addressing the corroboration requirement. Further, Lathon’s postconviction
allegations lack what one would normally call “direct evidence” in this context,
namely, allegations by witnesses that Lathon had alibis at the time of the
homicides or from someone present at the scene of a homicide to say he was not
present.

¶43 Lathon apparently intends to argue that there is sufficient
corroboration in the following: Lathon’s postconviction counsel averred that
Winston told counsel that Lathon never said to Winston that he had killed anyone,
that Lathon never told Winston “that he had taken a piece of jewelry off of a dead
guy,” and that Winston would have known if Lathon had murdered anyone.
Lathon fails to develop an argument that these statements represent circumstantial
guarantees of trustworthiness that outweigh the factors emphasized in McAlister.
Lathon makes numerous references to evidence regarding the anchor necklace that
the State at trial contended Lathon had stolen from Burnett, based in part on

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photographic evidence. It is sufficient to observe that Lathon fails to point to
significant newly discovered evidence that undermines the State’s theory
regarding the necklace. This is a jury issue that would be resolved at a new trial
based on the same basic dynamics that the jury was presented with at the 1992
trial.

¶44 Echoing his argument from the “merely cumulative” topic discussed
above—to the effect that the newly discovered evidence here would reveal an
active conspiracy by Winston, Cullins, and Younker—Lathon contends that it
corroborates his newly discovered evidence that the evidence reveals a motive of
each witness to help the other witnesses, not just to help themselves individually.
Again, however, this was also a feature of the alleged conspiracy-to-perjure in
McAlister. It does not add anything for Lathon to speak in terms of “acts of
collusion” and a “fraudulent scheme.” The same sort of scheme was at issue in
McAlister.

II. ALLEGED BRADY VIOLATION

¶45 Lathon makes a brief argument that Robinson’s affidavit provided a
sufficient showing to entitle him to a hearing to show that the State failed to
disclose exculpatory evidence material to guilt. The State argues that, even
assuming that Robinson would testify credibly and consistently with his affidavit
and his alleged statements to the prosecutor were suppressed, Lathon has not
shown a reasonable probability that this disclosure would have produced different
verdicts. We agree with the State’s argument.

¶46 Our supreme court has explained that the following standard of
review and substantive legal standards apply to address Brady claims:

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[W]e independently review whether a due process violation
has occurred, but we accept the trial court’s findings of
historical fact unless clearly erroneous. A defendant has a
due process right to any favorable evidence “material either
to guilt or to punishment” that is in the State’s possession,
including any evidence which may impeach one of the
State’s witnesses. A Brady violation has three
components: (1) the evidence at issue must be favorable to
the accused, either because it is exculpatory or impeaching;
(2) the evidence must have been suppressed by the State,
either willfully or inadvertently; and (3) the evidence must
be material.

The materiality requirement of Brady is the same as
the prejudice prong of the … analysis [under Strickland v.
Washington, 466 U.S. 668 (1984)]. Evidence is not
material under Brady unless the nondisclosure “was so
serious that there is a reasonable probability that the
suppressed evidence would have produced a different
verdict.”

State v. Wayerski, 2019 WI 11, ¶¶35-36, 385 Wis. 2d 344, 922 N.W.2d 468
(citations omitted).

¶47 As summarized above, ewaccording to Robinson’s 2008 affidavit,
fellow jail inmates Cullins and Winston asked Robinson to falsely tell police that
Lathon had admitted to committing the White and Burnett homicides, even though
they informed Robinson that it was Cullins and an unidentified person who had
actually killed White and Burnett. After Robinson started to participate in the
perjury scheme and then had “second thoughts,” he told the prosecutor in Lathon’s
case about the request to have him make false accusations, but the prosecutor did
not take Robinson up on his offer to testify to the perjury scheme.

¶48 We assume purely for the sake of resolving this issue the truth of
Robinson’s averments. The State does not dispute that it did not disclose to the
defense that Robinson had told the prosecutor about an attempt to get Robinson to
commit perjury. Thus, we assume that Lathon has satisfied the first two Brady

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requirements: that the content of the affidavit was evidence favorable to Lathon
because it would be impeaching and that this favorable evidence was suppressed
by the State.

¶49 On the materiality issue, however, we are not persuaded that,
assuming that Robinson were to testify credibly and consistently with his affidavit,
it would have created a reasonable probability of a different result. As the State
points out, Robinson did not claim to have any direct knowledge about any of the
three homicides. Moreover, he purported to have learned 100 percent of what he
would testify to while confined in jail and while communicating with people
whom he would call perjurers. At most, it would have created additional reasons
for the jury to consider the testimony of Winston and Cullins with caution and
great care. But the jury already had ample reasons to do that. Further, as our
extensive summary above reveals, the State presented substantial direct evidence
incriminating Lathon beyond that provided by Winston and Cullins.11

¶50 Lathon refers to Winston, Cullins, and Younker as “the [S]tate’s
three main witnesses” on the White and Burnett homicides. That is, a necessary
element in Lathon’s argument is that the testimonies of Winston, Cullins, and
Younker were “critical” to the State’s case, without which the outcome would
probably have been different. But this inappropriately downplays the direct
identification testimony of two witnesses who testified that it was Lathon who shot

11
Lathon asks us to exercise our discretionary power to reverse his conviction and order
a new trial in the interest of justice under this court’s inherent authority or because “it appears
from the record that the real controversy has not been fully tried, or that it is probable that justice
has for any reason miscarried.” See WIS. STAT. § 752.35. However, so far as we can discern, this
request does not include any argument not already addressed and rejected for the reasons stated
above.

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White (Burczyk and Zrinsky) and one witnesses who testified that Lathon shot
Burnett (Ollie). It is true that the failure of Burczyk, Zrinsky, and Ollie to pick
Lathon out of the line-up gave the defense a reason to question these
identifications. But the witnesses also explained that their views of Lathon in the
line-ups were flawed, because too much of Lathon’s face was obscured by a hat.
Once they were able to see Lathon without obstruction, they confidently identified
him as the shooter. Moreover, stepping back, none of the newly discovered
evidence offered by Lathon purports to directly undermine the testimony of
Burczyk, Zrinsky, or Ollie, such as by suggesting a motive to testify falsely or an
admission by one of them to contrary facts.

CONCLUSION

¶51 For these reasons, we affirm the order denying Lathon’s WIS. STAT.
§ 974.06 motion.

By the Court.—Order affirmed.

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

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