State v. Nigel J. Smith

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.
April 4, 2023
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. 2021AP1598-CR Cir. Ct. No. 2017CF2257

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NIGEL J. SMITH,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: CYNTHIA MAE DAVIS and JEFFREY A. WAGNER,
Judges. Affirmed.

Before Donald, P.J., 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. 2021AP1598-CR

¶1 PER CURIAM. Nigel J. Smith appeals from a judgment convicting
him of leaving or storing a loaded firearm near a child and possessing a firearm as
a felon, both as a party to a crime and as a repeater, and an order denying his
postconviction motion without a hearing.1 On appeal, Smith contends that he is
entitled to an evidentiary hearing based on newly-discovered evidence. In
addition, Smith contends that his trial attorney was ineffective for failing to
impeach and properly cross-examine one of the State’s witnesses. As discussed
below, we reject Smith’s arguments and conclude that the circuit court properly
denied Smith’s motion without an evidentiary hearing. We therefore affirm.

BACKGROUND

¶2 On September 30, 2016, Smith’s nephew, four-year old S.S., shot
himself in the head. Nigeria Smith, S.S.’s mother and Smith’s twin sister, found
S.S. on the floor of Smith’s bedroom. On a chair near S.S.’s body was a silver
revolver. Nigeria’s friend, Elaysha Jackson, told police that approximately a
month prior, she had seen the gun in the bedroom where S.S. was found.

¶3 On the same date of S.S.’s death, police brought Nigeria in for
questioning. At first Nigeria told police that she had never seen the firearm before
and she did not allow firearms in her home. She then told the police that the last
time she saw a firearm in the home was in May of that year. That firearm was
black and did not belong to Smith. Later, Nigeria told police that Smith was
trying to get a gun, or that he possibly had a gun since his release from jail. She

1
The Honorable Cynthia Mae Davis presided over Smith’s jury trial. The Honorable
Jeffrey A. Wagner decided Smith’s postconviction motion. We refer to Judge Davis as the trial
court and Judge Wagner as the circuit court.

2
No. 2021AP1598-CR

said that Smith kept a gun underneath his bed, but she did not know if it was
loaded. She said that she had last seen the gun two months ago and thought it
might be the same gun S.S. found. The interview was then stopped.

¶4 Nigeria was placed in an interview room and read her Miranda
rights.2 Nigeria told police that Smith had a firearm when he was released from
jail and that it was the same firearm that S.S. had found. Nigeria also said she
heard Smith on the phone trying to obtain some bullets because he was going to a
party and needed the bullets for protection.

¶5 Smith was charged in Milwaukee County Circuit Court Case
No. 2017CF2257 with leaving a loaded firearm near a child and possessing a
firearm as a felon, both as a repeater. An amended information added the party to
a crime modifier to both counts. Smith was later charged in a separate case,
Milwaukee County Circuit Court Case No. 2017CF4561, with two counts of
felony intimidation of a witness based on calls he made from jail in an attempt to
dissuade Nigeria and Jackson from coming to court. The trial court granted the
State’s motion to join the two cases for trial.

¶6 At trial, the State called multiple witnesses, including Nigeria,
Jackson, Detective Michael Washington, DNA analyst Pamela Taylor, and
Detective Jeremiah Jacks.

¶7 Nigeria testified that she discovered S.S.’s body in the bedroom
Smith slept in. According to Nigeria, their brother, Trelonnie Smith, also slept in
that bedroom sometimes, but did not keep his belongings in that room. Nigeria

2
See Miranda v. Arizona, 384 U.S. 436 (1966).

3
No. 2021AP1598-CR

testified that she had seen the same silver and brown firearm she saw near S.S.’s
body one time before in Smith’s hand at a “get together.” Nigeria further testified
that she heard Smith having a conversation on the phone asking someone where he
could get bullets, but she did not recall when that conversation took place.

¶8 In addition, Nigeria testified that after the shooting, Smith lived in
Chicago, and then Iowa until his arrest. After Smith’s arrest, he called her from
the jail and asked her if she was coming to court. Smith stated during the call that
if Nigeria and Jackson did not come to court, he would beat the case. Nigeria then
volunteered to call Jackson to see if she was coming to court. Nigeria testified that
Smith wanted her and Jackson to help him by not coming to court to make sure he
could come home. However, Smith did not directly ask her not to show up.
Nigeria admitted that she did not show up for the original trial date.3

¶9 Jackson testified that a month before S.S.’s death, she saw a silver
gun in the bedroom where S.S. died. She stated that the gun had been in a drawer
and “wasn’t concealed,” although she acknowledged that she may have originally
told police that the gun was in a shoebox under the bed. Jackson denied telling the
police that she confronted Smith directly about the gun and that Smith had made a
comment about the gun having no bullets in it.

¶10 Detective Michael Washington testified that in the bedroom in which
S.S. was discovered, police found Smith’s library card, his Department of
Corrections identification card, his medical card, and a driver license’s
application. Washington also testified that the residence did not have a gun safe or

3
Jackson also did not show up for the original trial date either.

4
No. 2021AP1598-CR

a trigger lock to keep a firearm secure, and it appeared that the firearm was already
loaded when S.S. found it because a four-year-old would not be capable of fully
loading the gun.

¶11 DNA analyst Pamela Taylor testified that swabs from the gun
contained a mixture of two people’s DNA. Smith was excluded as a major
contributor. Taylor, however, testified that she was not able to determine if Smith
was a minor contributor because the minor contributor DNA was insufficient to
make comparisons.

¶12 In addition, Detective Jeremiah Jacks testified that the DNA profile
recovered from the trigger guard swab of the gun was entered in a database run by
the FBI and registered a hit to Trelonnie. Nonetheless, Detective Jacks testified
that it was common for family members to share guns, and it did not change the
course of the investigation.

¶13 Smith stipulated that he had previously been convicted of a felony.
Smith testified that he lived with Nigeria and slept there about three nights per
week. The other nights, Smith stayed at his girlfriend’s house. Smith testified that
he left things at Nigeria’s house because it was his official address with the
Department of Corrections and he needed to leave his belongings there in case his
probation officer did a home visit. Smith denied that the gun that killed S.S. was
his gun and denied knowing about the gun. Smith also explained that he left
Wisconsin after S.S.’s death because he was depressed and he mentally shut down,
not to avoid prosecution.

¶14 The jury found Smith guilty of all charges. Smith filed a
postconviction motion arguing that he was entitled to a new trial based on newly-
discovered evidence—a recantation from Nigeria. According to the motion,

5
No. 2021AP1598-CR

almost two years after Smith’s sentencing, Nigeria spoke to an investigator
employed by the Office of the State Public Defender. She said that she was not
interviewed by trial counsel prior to the trial, but she remembered talking to
Milwaukee detectives and telling them that she saw Smith with the gun before
S.S.’s death and that the firearm was probably Smith’s. Nigeria said she made this
statement to the detectives because they kept telling her that they knew the gun
belonged to Smith. They told her that if she did not tell them it was his gun she
was going to be in trouble for her son’s death and she feared that her daughter
would be taken away. Nigeria further stated that she lied to investigators when
she told them she had seen Smith with that specific gun; although she had seen
Smith with a gun in the past, it was not the gun she found next to her son’s body.
Nigeria also stated that she had not testified truthfully at trial.

¶15 In addition, the postconviction motion argued that Smith’s trial
counsel was ineffective for failing to impeach and properly cross-examine Nigeria
regarding statements she made to the police in which she denied knowing about
the gun and the fact that she had been arrested and faced the threat of prosecution.4

¶16 The circuit court denied the motion without an evidentiary hearing.
The court assumed, without deciding, that Smith satisfied the first four prongs of
the newly-discovered evidence test, but held that the alleged recantation did not
create a reasonable probability of a different result. See State v. Armstrong, 2005
WI 119, ¶161, 283 Wis. 2d 639, 700 N.W.2d 98. The court stated that Nigeria’s

4
Smith also contended that trial counsel was ineffective for failing to object to a
misstatement of the law during the State’s closing argument. Smith does not raise this issue on
appeal. Accordingly, we deem it abandoned and do not address is further. State v. Ledger, 175
Wis. 2d 116, 135, 499 N.W.2d 198 (Ct. App. 1993).

6
No. 2021AP1598-CR

recantation “does not recant that much.” Additionally, other evidence supported
Smith’s guilt including Jackson’s statements, evidence that Smith had left
Wisconsin shortly after the incident, and the recorded calls Smith made while in
custody. In regards to Smith’s ineffective assistance claim, the circuit court did
not address the deficient performance prong, but concluded that Smith could not
show prejudice.

¶17 This appeal follows.5 Additional relevant facts will be referenced
below.

DISCUSSION

¶18 On appeal, Smith contends that he is entitled to an evidentiary
hearing on his newly-discovered evidence claim and his ineffective assistance of
counsel claim.

¶19 When a postconviction motion is denied without an evidentiary
hearing, we review de novo “whether the motion on its face alleges sufficient
material and non-conclusory facts that, if true, would entitle the defendant to
relief” and “whether the record conclusively demonstrates that the defendant is not
entitled to relief.” State v. Jackson, 2023 WI 3, ¶8, 405 Wis. 2d 458, 983 N.W.2d
608. “[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 has the discretion to

5
We note that this appeal only addresses Milwaukee County Circuit Court Case
No. 2017CF2257. A notice of appeal was also filed in Milwaukee County Circuit Court Case
No. 2017CF4561, and was consolidated with this appeal, but then was voluntarily dismissed. See
State v. Nigel J. Smith, No. 2021AP1599 (Nov. 16, 2021).

7
No. 2021AP1598-CR

grant or deny a hearing.” State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682
N.W.2d 433.

¶20 Below, we first address whether Smith is entitled to an evidentiary
hearing on his newly-discovered evidence claim. We then turn to Smith’s
ineffective assistance of counsel claim.

I. Newly-Discovered Evidence

¶21 To prevail on a newly-discovered evidence claim, a defendant must
show by clear and convincing evidence that: “(1) the evidence was discovered
after conviction; (2) the defendant was not negligent in seeking evidence; (3) the
evidence is material to an issue in the case; and (4) the evidence is not merely
cumulative.” State v. Love, 2005 WI 116, ¶43, 284 Wis. 2d 111, 700 N.W.2d 62
(citation omitted). If a defendant satisfies his burden on all four of these elements,
the circuit court must then determine “whether a reasonable probability exists that
a different result would be reached in a trial.” State v. Avery, 2013 WI 13, ¶25,
345 Wis. 2d 407, 826 N.W.2d 60 (citation omitted). “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.” Id.

¶22 When the newly-discovered evidence is a witness’s recantation, such
as in this case, the recantation “must be corroborated by other newly discovered
evidence.” State v. Ferguson, 2014 WI App 48, ¶25, 354 Wis. 2d 253, 847
N.W.2d 900 (emphasis and citation omitted). Corroboration exists when “(1)
there is a feasible motive for the initial false statement; and, (2) there are
circumstantial guarantees of the trustworthiness of the recantation.” Id. (citation
omitted).

8
No. 2021AP1598-CR

¶23 Here, the record conclusively demonstrates that Smith is not entitled
to relief. See Allen, 274 Wis. 2d 568, ¶9. Nigeria’s recantation is not
corroborated by other newly-discovered evidence of a feasible motive for the
initial false statement. See Ferguson, 354 Wis. 2d 253, ¶25.

¶24 In his postconviction motion, Smith contended that Nigeria’s motive
for lying was to avoid being blamed for S.S.’s death and losing custody of her
other child. Smith also noted that Nigeria was interviewed for an extended period
of time, during which she was subject to a blood draw which would have revealed
that “she had a substantial amount of delta-9-THC in her system[.]”

¶25 In support of his argument Smith points to State v. McCallum, 208
Wis. 2d 463, 561 N.W.2d 707 (1997). In response, the State contends that this
case is much more akin to State v. McAlister, 2018 WI 34, 380 Wis. 2d 684, 911
N.W.2d 77. We agree with the State.

¶26 In McCallum, McCallum moved to withdraw his plea to second-
degree sexual assault after the victim recanted. Id., 208 Wis. 2d at 468. The
victim, who was the daughter of McCallum’s girlfriend, explained that she made
up the assault so that she could get McCallum out of her mother’s life in hopes
that her mother and father would reconcile. Id. at 469-71. In addition, the victim
resented the fact that McCallum had taken the place of her father and had
disciplined her. Id. at 478. Our supreme court held that these motives satisfied
the newly-discovered evidence requirement “inasmuch as the motives for [the
victim’s] initial accusation were unknown until she revealed them when she
recanted.” Id.

¶27 In McAlister, two of McAlister’s co-defendants recanted their
statements against him. Id., 380 Wis. 2d 684, ¶¶1-2, 21-23. McAlister argued that

9
No. 2021AP1598-CR

their motive was to obtain favorable plea deals that would reduce their prison time.
See id., ¶¶4, 59. Our supreme court held that the evidence was not a newly-
discovered motive because the potential motive was known at the time of the trial.
Id., ¶59.

¶28 Here, as in McAlister, Nigeria’s alleged motives were known at the
time of the trial. The defense knew that Nigeria had been arrested and the police
initially considered her a suspect. The defense also knew that Nigeria told police
she had smoked half of a blunt prior to S.S.’s death, and agreed to have her blood
drawn. In addition, trial counsel specifically argued in closing that Nigeria was
motivated to blame Smith because she did not want to be blamed for S.S.’s death
and she was afraid of losing her other child. Trial counsel stated:

[the State] raised a point, why might Nigeria had made up
this story. I think Nigel Smith answered that question
when he was on the stand. This is a woman that lost her
child, she’s hysterical, what she must have gone through
was horrible. Horrible. I can’t even imagine, and that’s
real. But what I do know is that she was afraid she was
going to be held negligent. Were they going to take her
other child from her? I don’t know. And I don’t want to
face that, but it is a possible motive. [The State] said there
was no motive, but it’s a possible motive.

Thus, Nigeria’s motives for blaming Smith were known prior to trial and do not
constitute newly-discovered evidence.6 See Ferguson, 354 Wis. 2d 253, ¶25.

6
We note that the State also argues that Nigeria’s recantation was not corroborated by
other newly-discovered evidence showing circumstantial guarantees of trustworthiness, and her
recantation does not create a reasonable probability of a different result. Given that we conclude
that Nigeria’s motives were known prior to trial and do not constitute newly-discovered evidence,
we do not address the State’s other arguments. See State v. Blalock, 150 Wis. 2d 688, 703, 442
N.W.2d 514 (Ct. App. 1989) (“[C]ases should be decided on the narrowest possible ground[.]”).

10
No. 2021AP1598-CR

¶29 Therefore, the record conclusively shows that Smith is not entitled to
relief based on newly-discovered evidence, and the circuit court properly denied
Smith’s claim without an evidentiary hearing. See Allen, 274 Wis. 2d 568, ¶9.

II. Ineffective Assistance of Counsel

¶30 When evaluating an ineffective assistance of counsel claim, we
apply the well-established test in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a defendant must show both that counsel performed deficiently,
and that the deficiency was prejudicial. Id. at 687. To prove deficient
performance, the defendant must show that specific acts or omissions of counsel
“were outside the wide range of professionally competent assistance.” See id. at
690. To prove prejudice, “[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.” Id. at 694. If a defendant fails to make an
adequate showing as to one prong of the test, we need not address the other. Id. at
697.

¶31 In his postconviction motion, Smith contended that trial counsel
performed deficiently when she failed to impeach Nigeria using her prior
statements denying that she had previously seen the gun. Smith also asserted that
trial counsel should have asked Nigeria about her arrest and the fact that she faced
the threat of prosecution.

¶32 The State responds that the majority of the information that Smith
claims should have been introduced was, in fact, introduced at trial. According to
the State, the fact that trial counsel did not cross-examine Nigeria as thoroughly as
he would have liked comes nowhere near the level of an error “so serious that

11
No. 2021AP1598-CR

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id., at 687. We agree with the State.

¶33 To start, during direct examination, Nigeria admitted that she
initially told police that she had not seen the gun that S.S. used to shoot himself
before. Subsequently, during cross-examination, trial counsel also asked Nigeria
about her initial denial: The exchange was as follows:

Trial counsel: Okay. From what I understand, when you
first talked to police, you had said—on September 30th—
you had said that you had never seen that gun before,
correct?

Nigeria: Correct.

In addition, Detective Shelondia Tarver testified that Nigeria initially told police
that she had never seen the gun before.

¶34 The jury also knew that Nigeria had been arrested in this case.
Detective Tarver testified that the police first did a voluntary interview with
Nigeria. During the voluntary interview, Nigeria was arrested, and the police then
conducted a Mirandized interview of her. The State also played a portion of
Nigeria’s custodial interview. In addition, Nigeria admitted that she was brought
to the Milwaukee County District Attorney’s Office for a charging conference.
Based on this evidence, as stated above, trial counsel argued in closing that
Nigeria was motivated to blame Smith because she was afraid of being blamed for
S.S.’s death and she did not want her other child taken from her.

¶35 Therefore, we conclude that the record conclusively shows that
Smith cannot prove deficient performance. Accordingly, the circuit court properly
denied Smith’s ineffective assistance of counsel claim without an evidentiary
hearing. See Jackson, 405 Wis. 2d 458, ¶8.

12
No. 2021AP1598-CR

CONCLUSION

¶36 In sum, we reject Smith’s arguments that he is entitled to an
evidentiary hearing based on newly-discovered evidence or ineffective assistance
of counsel. Therefore, we affirm.

By the Court.—Judgment and order affirmed.

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

13