State v. Martell A. Green

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.
May 9, 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. 2022AP151-CR Cir. Ct. No. 2019CF21

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARTELL A. GREEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Forest County: LEON D. STENZ, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Martell A. Green appeals from a judgment
convicting him, following a jury trial, of possession with intent to deliver more
No. 2022AP151-CR

than three but not more than ten grams of heroin; possession with intent to deliver
more than fifteen but not more than forty grams of cocaine; and possession of drug
paraphernalia, each as a party to the crime and as a repeater. He also appeals from
the circuit court’s order denying his postconviction motion for a new trial. Green
appeals on several bases, including: (1) the court’s denial of his severance motion;
(2) the State’s failure to comply with its discovery obligations; (3) the State’s
failure to correct false witness testimony; and (4) multiple claims of ineffective
assistance of counsel. We reject all Green’s claims and affirm.

BACKGROUND

¶2 The State charged Green, Keotis Hamilton, and Devon Bell in a joint
criminal complaint. It alleged that on January 8, 2019, Detective Sergeants
Thomas Robinson and Anthony Crum,1 with the Forest County Sheriff’s Office,
conducted a traffic stop on a vehicle driven by Green in which Hamilton and Bell
were passengers. The detectives stopped the vehicle after observing that Green
was not wearing his seatbelt. After performing a records check on all three men,
officers learned that Hamilton had an outstanding arrest warrant. A search of the
vehicle revealed a small scale that tested positive for cocaine as well as a “torn
baggie.”

¶3 The men were all arrested. At the jail, officers located both heroin
and cocaine hidden inside Hamilton’s rectum. No contraband was found on Green
during a search. Green told law enforcement that he was offered $200 to drive

1
As the State notes, the record contains two different spellings of Detective Sergeant
Anthony Crum’s name: Krum and Crum. We, like the State, will use the spelling of Crum that is
used in the criminal complaint.

2
No. 2022AP151-CR

Bell and Hamilton to Forest County but that he otherwise had no knowledge of
any drugs in the vehicle.

¶4 The State charged all three with possession with intent to deliver
heroin, possession with intent to deliver cocaine, and possession of drug
paraphernalia, each as a party to the crime and as a repeater. Pretrial, Green’s
defense counsel2 filed several requests to sever the cases for trial.3 Each time, the
court denied Green’s request, finding that the charges were “intrinsically
intertwined” and that Green had failed to establish substantial prejudice.
Furthermore, the court observed that any testimony from Hamilton regarding who
owned the drugs would not be exculpatory, as Green was charged as a party to the
crime. The court concluded that it had not been presented with any persuasive
argument that the codefendants’ trial defenses were antagonistic to one another.

¶5 The morning of trial, Hamilton entered guilty pleas. At that time,
Green renewed his severance motion, arguing “inconsistent” and “antagonistic”
defenses between Bell and himself. While noting that it believed that Green had
previously sought severance from only Hamilton and not Bell, the circuit court
denied the motion, maintaining that severance was not appropriate, as both Green
and Bell planned to argue that Hamilton had the drugs without their knowledge
and without implicating each other.

2
For ease of reading, we will refer to Green’s trial attorney as “defense counsel” and
Green’s postconviction attorney as “postconviction counsel.”
3
The State also filed a motion to sever, stating that it intended to use statements made by
Hamilton against Green and Bell. See WIS. STAT. § 971.12(3) (2021-22). Later, however, the
State withdrew its motion because the prosecutor had decided not to use Hamilton’s statements.
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

3
No. 2022AP151-CR

¶6 At trial, the State presented testimony from Hamilton that he, Green,
and Bell drove from Milwaukee to Forest County to sell heroin and cocaine.
Hamilton explained that his role was to “introduce people” to Green and Bell so
they could purchase the drugs from Green and Bell because he “was familiar with
the area,” and, in exchange, Hamilton would receive half the money they made.
According to Hamilton, Green and Bell already had the cocaine in the vehicle
when they picked him up, and then the three of them obtained the heroin from a
home in Milwaukee. Hamilton testified that when law enforcement executed the
stop on their vehicle, Bell threw the drugs at him in the backseat where he had
been sleeping, and he “picked them up and stuffed them up my butt, rear end.”

¶7 Shavonn Tuckwab also testified for the State. According to
Tuckwab, the men arrived at her home in Forest County around 4:00 a.m.
Tuckwab testified that she did not know the men before they arrived, but she let
them in and showed them to a bedroom where she then saw all three men
packaging cocaine and heroin into small bags.4 She testified that Green gave her
heroin and crack cocaine.5 Later that morning, the men left Tuckwab’s home and
were then stopped by law enforcement. Tuckwab admitted that she was a heroin
addict, that she had recently relapsed, and that she was suffering drug withdrawal
symptoms during her testimony.

¶8 Green’s defense at trial was that the State could not meet its burden
to prove that Green knew that Hamilton had drugs. Both defense counsel and

4
Hamilton testified that only Green and Bell were packaging the drugs.
5
Although Tuckwab testified at trial that Green gave her the drugs, she initially had told
law enforcement that Hamilton gave her the drugs.

4
No. 2022AP151-CR

Bell’s attorney sought to undermine Hamilton’s and Tuckwab’s credibility by
highlighting the agreements they had made with the State in exchange for their
testimony. In closing, defense counsel suggested Hamilton was framing Green to
lessen his own responsibility. He also claimed that Tuckwab’s story did not make
sense and that she and Hamilton actually knew each other before the incident.

¶9 The jury found Green guilty of all three charges. The next day, the
circuit court sentenced Green to concurrent sentences totaling twenty-six years.

¶10 Postconviction, Green moved for a new trial or, in the alternative, a
new sentencing hearing. He claimed: (1) the circuit court erred by denying
severance; (2) the court erred by denying Green’s judicial substitution request;
(3) the State failed to comply with its discovery obligations under Brady v.
Maryland, 373 U.S. 83 (1963); (4) the court erred by admitting untimely disclosed
evidence; (5) the State engaged in misconduct by failing to correct false witness
testimony; (6) defense counsel provided ineffective assistance; and (7) Green’s
sentence was unduly harsh and excessive. The court held a Machner6 hearing on
the motion, wherein defense counsel and Crum testified. The court ultimately
denied Green’s motion for a new trial in an oral ruling and later by written order.7
Green appeals.

6
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
7
The circuit court granted Green’s request for resentencing, which is not before us in
this appeal.

5
No. 2022AP151-CR

DISCUSSION

¶11 On appeal, Green renews the majority of the claims contained in his
postconviction motion. For the reasons that follow, we deny each of his claims.8

I. Severance

¶12 First, Green argues that we should grant him a new trial because the
circuit court erred by denying his multiple requests to be tried separately from his
codefendants.9 WISCONSIN STAT. § 971.12(3) provides that a circuit court may
order separate trials where the defendants’ cases are initially joined if it appears
that a defendant would be prejudiced by a joint trial. “[T]he proper joinder of
criminal offenses is presumptively non-prejudicial.” State v. Prescott, 2012 WI
App 136, ¶13, 345 Wis. 2d 313, 825 N.W.2d 515. “In order to rebut that
presumption, the defendant must show substantial prejudice to his [or her]
defense; some prejudice is insufficient.” Id. Severance is also required when the
defendants intend to advance conflicting or antagonistic defenses or there would
be presented at the trial an entire line of evidence relevant to the liability of only
8
We note that Green has failed to comply with our Rules of Appellate Procedure.
See WIS. STAT. RULE 809.19(1). The argument section of Green’s brief-in-chief contains only
rare citations to the record on appeal. See RULE 809.19(1)(e). Green’s reply brief contains none.
See RULE 809.19(1)(e), (4)(b). In fact, as we will explain below, we are unable to properly
review some of Green’s arguments based on his failure to support his position with citations to
the record. We have no duty to scour the record to review arguments unaccompanied by
adequate record citations. See Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App.
1990). As a high-volume, appellate court, we are entitled to expect briefing by an attorney that
follows the basic Rules of Appellate Procedure. We caution Green’s postconviction counsel that
future violations of the Rules of Appellate Procedure may result in sanctions. See WIS. STAT.
RULE 809.83(2).
9
Green does not appear to argue that the initial joinder of the cases for all three
codefendants was improper. See WIS. STAT. § 971.12(2); State v. Hoffman, 106 Wis. 2d 185,
208, 316 N.W.2d 143 (Ct. App. 1982) (“The joinder statute is to be construed broadly in favor of
initial joinder.”).

6
No. 2022AP151-CR

one defendant. State v. Shears, 68 Wis. 2d 217, 234-35, 229 N.W.2d 103 (1975).
We review a circuit court’s severance decision for an erroneous exercise of
discretion. State v. Bettinger, 100 Wis. 2d 691, 696, 303 N.W.2d 585 (1981).

¶13 On appeal, Green generally claims that he “struggle[d] … presenting
his defense” at trial because some of Hamilton’s statements that he wished to
present “exculpate” Green but “inculpate” Bell. According to Green, his defense
at trial was that “he wasn’t a part of the conspiracy formed by Bell and Hamilton
and that those two executed the crimes in question.” Thus, Green asserts that the
men had antagonistic defenses.10

¶14 We conclude that the circuit court did not erroneously exercise its
discretion by denying Green’s multiple severance motions. On appeal, Green
renews his arguments that the court should have granted severance from Hamilton.
In general, Green argues that his defense was antagonistic to Hamilton’s defense
because Hamilton had the drugs, and Green planned to argue that he had no
knowledge of any illegal activity. However, once Hamilton entered his pleas, that
issue became moot and could not serve as a continuing basis to sever Green’s case
for trial before the circuit court or as a basis to grant a new trial on appeal.

¶15 As to Green’s arguments regarding severance from Bell, Green
asserts that he was denied the benefit of “various statements made by Hamilton,”

10
Postconviction counsel confirmed before the circuit court that Green’s motion for a
new trial with respect to severance was based on antagonistic defenses, rather than substantial
prejudice to Green’s defense.

7
No. 2022AP151-CR

which are “exculpatory to Green.”11 Defense counsel addressed the potential of
using these statements before the circuit court, and Bell’s counsel suggested that if
defense counsel intended to use them, the statements would need to be redacted to
protect his client. According to Green, “if redacted, Green would lose any benefit
[as] the evidence would no longer support Green’s defense,” and while the
statements ultimately were not used, “had the codefendants[’] cases been severed
for trial, those statements would have been used and would have impacted the
outcome.”

¶16 Defense counsel made this same argument before the circuit court on
the first day of trial. Defense counsel explained to the court that Green’s defense
was “[p]otentially” that Hamilton and Bell “did it all,” but he then clarified that
“[m]y defense [is that] my client had no knowledge of this,” which the court noted
was “[e]xactly the same defense” as Bell’s. When another severance discussion
occurred the next day, defense counsel stated that he “might use” Hamilton’s

11
On appeal, Green does not identify which of Hamilton’s statements he wished to
present at trial; instead, he directs us to review defense counsel’s arguments before the circuit
court during the trial, citing to 315 pages of the appellate record, of which only a portion involves
the parties’ arguments. Even our review of the Machner hearing suggests that the circuit court
was unsure about which of Hamilton’s statements were at issue.

It appears, however, that the issue was narrowed to two statements: (1) a handwritten,
unsigned note purportedly from Hamilton to Green dated June 2, 2019—referred to by the parties
as a “kite note” because these types of notes are “pieces of paper that have been slung back and
forth between jail cells”; and (2) a written statement given to law enforcement on a “voluntary
statement form,” dated June 4, 2019, from “Hamilton making reference that Martell Green did
not know about the drugs but that … Devon Bell did.” While the kite note was provided as an
attachment to Green’s postconviction motion and entered into the record at the Machner hearing,
it does not appear, based on our review and Green’s failure to cite the record, that Hamilton’s
June 4, 2019 statement was included in the record on appeal. It is Green’s responsibility to
ensure that the record on appeal is complete, and any missing material is presumed to support the
circuit court’s ruling. See Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27, 496 N.W.2d 226
(Ct. App. 1993).

8
No. 2022AP151-CR

statements, “depend[ing] on Mr. Hamilton’s testimony.” At that point, a long
discussion ensued between the court and the parties regarding counsels’ theory of
the case. Ultimately, after the discussion, the court summarized Green’s and
Bell’s defense as: “Hamilton is a liar.” Defense counsel and Bell’s counsel
concurred. Thus, it was clear to the court, based on the parties’ arguments, that
Green and Bell planned to present the defense that neither of them were aware
Hamilton had the drugs. Based on this record, the court’s finding that Green’s and
Bell’s defenses were not antagonistic was not clearly erroneous.

¶17 While Green claims on appeal that his defense at trial was that he
was not part of the conspiracy formed by Bell and Hamilton, we agree with the
State that this was not the defense he employed, nor was it the defense his counsel
stated to the circuit court that he planned to employ at trial. Instead, our review of
the record demonstrates that defense counsel argued that the State could not meet
its burden to prove that Green was involved in a criminal “group venture.”
Defense counsel’s discussions before the jury placed the blame entirely on
Hamilton, without suggesting that Bell was also in league with Hamilton—Bell’s
counsel did the same. Despite Green’s claims to the contrary, Green and Bell
were not “placed in a position where they needed to defend themselves against one
another.” To the extent that Green is arguing that his defense would have been to
blame Hamilton and Bell if severance had been granted, this is not the position he
took before the circuit court. As our supreme court has explained, “[b]road
assertions that the defenses of codefendants may conflict have been found
inadequate”; instead, the defendant must “allege antagonism with sufficient
specificity.” Haldane v. State, 85 Wis. 2d 182, 190, 270 N.W.2d 75 (1978),
abrogated on other grounds by State v. Salinas, 2016 WI 44, ¶30, 369 Wis. 2d 9,

9
No. 2022AP151-CR

879 N.W.2d 609. Thus, the court’s decision was not clearly erroneous based on
the theory of defense Green provided at the time.

¶18 Further, we agree with the State that Hamilton’s statement
implicating Bell would also have implicated Green because the men were charged
as a party to the crime.12 While we are unable to consider the contents of
Hamilton’s June 4, 2019 statement, as it is not in the record, Hamilton’s kite note
states, among other things, “Me an you locked in we both know that wasn’t [our]
shit.” The issue at trial was whether Green was guilty as a member of a
conspiracy or for aiding and abetting the crime, not whether the drugs belonged to
Green. Thus, Hamilton’s kite note does not exculpate Green because it does not
state that Green was not involved in a plan to sell the drugs. Accordingly, Green
cannot demonstrate that the circuit court erred in refusing to grant severance.13

II. Brady Violation

¶19 Green next argues that the State failed to provide Brady evidence
and that the circuit court erred by admitting evidence that the defense received on
the first day of trial. A defendant has a Fourteenth Amendment due process right
to disclosure of any favorable evidence in the State’s possession that is “material

12
WISCONSIN STAT. § 939.05(1) provides that “[w]hoever is concerned in the
commission of a crime is a principal and may be charged with and convicted of the commission
of the crime although the person did not directly commit it.” An individual may be found guilty
of committing the crime where he or she directly committed the crime, intentionally aided and
abetted the commission of the crime, or was a party to a conspiracy to commit the crime.
Sec. 939.05(2); see also WIS JI—CRIMINAL 402 (2005).
13
Green also argues that the circuit court erred by denying his request for judicial
substitution. On appeal, he requests that we reverse and remand for a new trial and that we honor
Green’s substitution request on remand. As we do not conclude that the court erred, there is no
need for remand; accordingly, we will not address this issue further.

10
No. 2022AP151-CR

either to guilt or to punishment,” see Brady, 373 U.S. at 87, including disclosure
of any evidence that may impeach one of the State’s witnesses, Giglio v. United
States, 405 U.S. 150, 154 (1972). “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.” State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922
N.W.2d 468. “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.’” Wayerski, 385 Wis. 2d 344, ¶36
(citation omitted). We review an alleged Brady violation claim under a mixed
standard of review: we accept the circuit court’s findings of fact unless clearly
erroneous, but we independently review whether a due process violation occurred.
Wayerski, 385 Wis. 2d 344, ¶35.

¶20 At first blush, Green’s arguments on this claim appear insufficiently
developed given that he asserts the State “failed to turn over information that may
or may not be exculpatory and could constitute a violation of Brady.” (Emphasis
added.) In particular, Green identifies downloads from Bell’s and Hamilton’s cell
phones that were in the possession of the State but were not made available to
defense counsel prior to trial despite a discovery demand. Green claims that
“[t]his evidence was obtained by [postconviction] counsel on December 8, 2020[,]
after an additional request to the District Attorney’s office was made.” Green
further asserts that “[t]he cell phone records do contain impeachment evidence that
directly contradicts the trial testimony of both Ms. Tuckwab and Mr. Hamilton”

11
No. 2022AP151-CR

and that if defense counsel had access to these records, he could have used them to
“undercut” the witnesses’ credibility at trial.14

¶21 Unfortunately, and as the State also acknowledges, Green fails
entirely to cite any portion of the appellate record to support his assertions about
the cell phone records. Without that information, we cannot confirm what
information the cell phone records may have contained. It is not our responsibility
to search the record to seek out evidence in support of a party’s argument.15
See Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App. 1990).

14
According to Green, the cell phone records demonstrate the following:

(1) Both Bell and Hamilton were in contact with Dakota
Tuckwab, Ms. Tuckwab’s brother, prior to the Forest County trip
on January 8, 2019[;] (2) Hamilton had drug connections and
ongoing drug dealings in Forest County prior to January 8,
2019[;] (3) Hamilton was in contact with Ms. Tuckwab prior to
January 8, 2019[;] (4) Hamilton spoke with Ms. Tuckwab on
January 8, 2019[; and] (5) Hamilton was in contact with
Mr. Tuckwab following his arrest on January 8, 2019.

15
We note that the State asserts that Tuckwab’s and Hamilton’s cell phone records are at
issue, while Green states that Bell’s and Hamilton’s cell phone records are at issue. We are
unable to confirm which is correct.

The State also alleges in its response brief that Green “provided the [circuit] court with a
flash drive containing the cell phone logs from Tuckwab and Hamilton,” and it cites the Machner
hearing transcript in support of this statement. Our review of the Machner hearing transcript
suggests that a flash drive was entered into evidence, but there was no mention that the flash drive
contained the cell phone logs. Instead, postconviction counsel stated that the flash drive
contained a recorded interview of Tuckwab, which had also been transcribed for the court.

The State correctly notes that a photograph of a flash drive is in the appellate record;
however, the clerk of the circuit court did not provide the actual flash drive for our review.

(continued)

12
No. 2022AP151-CR

¶22 For its part, the State asserts that it “does not find any reference in
the record of prior contact between Hamilton and Tuckwab. Any possible contact
between Hamilton and Tuckwab’s brother does not demonstrate that Tuckwab
knew Hamilton. Green shows no evidence that Hamilton and Tuckwab knew each
other.” Further, Crum testified at the Machner hearing that he reviewed
Hamilton’s phone records, but he could not determine whether Hamilton and
Tuckwab knew each other before the date of the crime, although he did testify that
Hamilton knew Tuckwab’s brother. Crum explained that an individual labeled
“Shavonna” was in Hamilton’s phone (Tuckwab’s name is Shavonn), but Crum
stated he never found communication between Hamilton and Tuckwab.

¶23 Under the circumstances, we conclude that Green has failed to meet
his burden to prove that a Brady violation occurred. While it may be true that the
State inadvertently failed to provide defense counsel with the cell phone record
evidence, Green has provided no support for his claim that the evidence was
favorable—i.e., that it was either exculpatory or impeaching—or material. In
alleging that the evidence was material, Green argues that it could have been used
to cross-examine Tuckwab and Hamilton. Defense counsel did, however,
cross-examine Tuckwab about whether she knew the men and about the fact that
she supposedly let three strangers into her home at 4:00 a.m. Defense counsel
highlighted in closing argument the fact that Tuckwab’s story about letting the
men into her home in the middle of the night did not “make any sense.”

We entered an order on April 3, 2023, requesting the flash drive from the clerk of circuit
court to review whether the cell phone records were contained on the flash drive. After receiving
the flash drive, we were unable to conduct a review, as the flash drive had been corrupted.
Without access to the flash drive or any evidence in support of Green’s assertions about what was
contained in the cell phone records, we conclude that Green has failed to provide evidentiary
support for his Brady v. Maryland, 373 U.S. 83 (1963), claim on appeal.

13
No. 2022AP151-CR

Accordingly, Green has not demonstrated that “the nondisclosure ‘was so serious
that there is a reasonable probability that the suppressed evidence would have
produced a different verdict.’” See Wayerski, 385 Wis. 2d 344, ¶36 (citation
omitted).

¶24 As to the evidence that was untimely received on the day of trial, the
State notes that Green fails to explain exactly what evidence he believes the State
failed to turn over. We, like the State, will assume that Green is referring to video
recordings of Hamilton’s statements to law enforcement. The discussion between
the circuit court and the parties suggested that there were two recordings: one
from November 18, 2019, and one that had been made days before trial
(collectively, video recordings). Prior to trial, the State had provided defense
counsel a written summary of Hamilton’s interview from November 18, but the
prosecutor admitted that his office had moved locations and he “missed sending
out the disc.” On December 12, 2019, the prosecutor also disclosed “a new
report” to the defendants—that the prosecutor had also only just received—
generated after Hamilton made another statement, but the prosecutor noted that he
did not yet have the video recording of the statement.

¶25 Green received both video recordings on the morning of trial. At
that time, defense counsel argued the untimely disclosure of the video recordings
was “trial by surprise” and requested exclusion or a continuance. The circuit court
denied the motion, concluding that the information in the video recordings had, in
fact, been disclosed in advance of trial through the written reports. The court also
told the defendants, however, to watch the video recordings and make a motion if
the recordings contained anything that was not known to them. The court delayed
Hamilton’s testimony until after that review. Defense counsel later told the court

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No. 2022AP151-CR

that he had reviewed the video recordings and saw “nothing that would require
any kind of impeachment witnesses or subpoenas at this time.”

¶26 It is also unclear from Green’s briefing whether he is arguing a
violation of Brady or a violation of WIS. STAT. § 971.23(1), as he cites to both
without clarifying his argument on this allegedly untimely evidence. The State
argues this issue based on the Brady three-part test. In doing so, it aptly notes that
Green received the video recordings on the morning of trial; thus, the evidence
was not actually suppressed. “Brady does not require pretrial disclosure of
exculpatory evidence. Brady instead requires that the prosecution disclose
evidence to the defendant in time for its effective use.” State v. Harris, 2008 WI
15, ¶63, 307 Wis. 2d 555, 745 N.W.2d 397 (footnote omitted). Although Green
claims on appeal that this process constituted a “trial by ambush,” he does not
develop a claim that the evidence was not received in time for its effective use at
trial, especially given that defense counsel did not seek to use the evidence or
further object after his review. Green also has not demonstrated that the video
recordings were material, such that there was a reasonable probability the jury
would have acquitted him had the State disclosed the video recordings earlier.
See Wayerski, 385 Wis. 2d 344, ¶35. This Brady violation claim therefore fails.

¶27 To the extent Green is claiming a violation of WIS. STAT.
§ 971.23(1), we note that defense counsel made a statutory discovery demand for
evidence under § 971.23, which requires that the prosecutor disclose certain
material to the defendant within a reasonable time before trial. See § 971.23(1),
(1)(e). The statute also provides that “[t]he court shall exclude any witness not
listed or evidence not presented for inspection or copying required by this section,
unless good cause is shown for failure to comply” and that “[t]he court may in
appropriate cases grant the opposing party a recess or a continuance.”

15
No. 2022AP151-CR

Sec. 971.23(7m)(a). A decision based on a “failure to comply with discovery
requirements under [§] 971.23 is committed to the [circuit] court’s discretion, and
if there is a reasonable basis for the ruling, we do not disturb it.” See State v.
Gribble, 2001 WI App 227, ¶29, 248 Wis. 2d 409, 636 N.W.2d 488.

¶28 We conclude that the circuit court’s decision to deny a continuance
was not an erroneous exercise of discretion. First, the court found that the State
had, in fact, provided Hamilton’s “statements and written narrative” in advance of
trial. However, even if we assume, without deciding, that the State violated WIS.
STAT. § 971.23, we conclude that, based on this record, there was a reasonable
basis for the court’s decision to deny a continuance.16 Here, the video recordings
were not used at trial; defense counsel had received the written narratives of the
interviews in advance of trial, so he was aware of what the video recordings
contained; the court provided defense counsel the opportunity to review the video
recordings prior to Hamilton’s testimony to determine whether they contained
information that could be used for impeachment purposes or if other witnesses
might be necessary; and defense counsel, after reviewing the video recordings, did
not object. Further, “[a discovery] violation is harmless when there is no
‘reasonable possibility’ that the violation contributed to the conviction.” State v.
Rice, 2008 WI App 10, ¶19, 307 Wis. 2d 335, 743 N.W.2d 517 (2007) (citation

16
We are unclear if Green is also attempting to claim that the video recordings should
have been suppressed, see WIS. STAT. § 971.23(7m)(a), as he claims that “the [circuit] court erred
in admitting evidence that was untimely received by the defense on the day of trial.” (Formatting
altered.) However, he later admits that “[t]he State indicated there was nothing useful in the
interviews and they didn’t plan to use that information but that’s not what matters.” Based on our
review, none of the parties attempted to admit the video recordings at trial, so Green’s claim that
the court erred by admitting the evidence is a nonstarter. In any event, the circuit court
determined that the State had shown good cause for its failure to comply with § 971.23(1); thus,
the court was not required, pursuant to the statute, to suppress the evidence. See § 971.23(7m)(a).

16
No. 2022AP151-CR

omitted). Under the circumstances, the court concluded that Green was
“adequately protected” from prejudice. We agree.

III. Prosecutorial Misconduct

¶29 Green next argues that he is entitled to a new trial based on
prosecutorial misconduct. In certain rare situations, prosecutorial misconduct “can
rise to such a level that the defendant is denied his or her due process right to a fair
trial,” such as where the misconduct “poisons the entire atmosphere of the trial.”
State v. Lettice, 205 Wis. 2d 347, 352, 556 N.W.2d 376 (Ct. App. 1996) (citations
omitted). “The determination of whether prosecutorial misconduct occurred and
whether such conduct requires a new trial is within the [circuit] court’s
discretion.” Id. We will sustain the court’s decision if it “examined the relevant
facts, applied a proper standard of law, and used a rational process to reach a
conclusion that a reasonable judge could reach.” Id. (citation omitted).
“Reversing a criminal conviction on the basis of prosecutorial misconduct is a
‘drastic step’ that ‘should be approached with caution.’” Id. (citation omitted).

¶30 On appeal, Green claims that Tuckwab testified falsely about the
deal she was offered in exchange for her testimony and that the prosecutor
violated Green’s due process rights by failing to correct that testimony. The
State’s offer, which was entered into the record at trial, provided two options to
Tuckwab: (1) a wellness court diversion; and (2) a plea without wellness court.
The wellness court diversion option required Tuckwab to plead guilty to multiple
criminal charges and testify against four individuals; in exchange, she would
receive a deferred entry of judgment on two of the charges, three years’ probation
with multiple conditions, and she would be required to participate in Forest
County Wellness Court. If she satisfied all of the conditions, at the end of

17
No. 2022AP151-CR

thirty-six months, the State would move to dismiss each count with prejudice.
Option two did not require Tuckwab’s testimony, but it did require her to plead
guilty to multiple criminal charges where the parties would be free to argue the
amount of incarceration time at sentencing.

¶31 The circuit court did not err by failing to grant Green a new trial on
the basis of prosecutorial misconduct. While it is true that Tuckwab first testified
during defense counsel’s cross-examination that she was not receiving anything in
exchange for cooperating with the State, Tuckwab changed her testimony during
Bell’s counsel’s cross-examination to reflect that she was presented with a written
offer from the State for drug treatment in exchange for her testimony. She did so
prior to any redirect from the prosecution. At that point, Tuckwab’s testimony
was accurate—even if not the entire story, as she did not mention that she was
offered a deferred entry of judgment and possible dismissal of some of the
charges. Thus, there was no need for the prosecutor to correct any obviously false
testimony. Green takes issue with Tuckwab’s statement that she did not know if
the State’s deal was a “guarantee.” The State points out, however, that the
agreement was not signed by Tuckwab or her attorney.17 The circuit court found
that Tuckwab testified truthfully that there was no signed agreement in place at the
time of her testimony. The court thus concluded that the prosecutor had no duty to
correct Tuckwab’s testimony and that there was no misconduct. Based on the
record, the court’s findings were not clearly erroneous.

17
Green argues that the document does include the prosecutor’s electronic signature.
However, the terms of the agreement specifically provide that “[a]cceptance of this offer must be
demonstrated by completion of this document. Completion means that this document is signed
by the defendant (and his/her attorney), the completed original being filed with the Clerk of Court
and a copy with the District Attorney prior to the first scheduled pre-trial date.” (Formatting
altered.)

18
No. 2022AP151-CR

¶32 In support of his position that the prosecution improperly failed to
correct Tuckwab’s testimony, Green relies on Napue v. Illinois, 360 U.S. 264
(1959), asserting that Napue “presents a nearly identical scenario to the one here.”
In that case, the State agreed to recommend a reduced sentence against a
codefendant if he testified against Napue, but that agreement was not disclosed
before trial. Id. at 266. Napue alleged that the codefendant had falsely testified
that he had not received any promise of consideration in return for his testimony.
Id. at 267. The United States Supreme Court agreed and determined that the State
had violated Napue’s due process rights, as the “false testimony used by the State
in securing the conviction of [Napue] may have had an effect on the outcome of
the trial.” Id. at 272.

¶33 Napue is distinguishable. Unlike Napue, Green was aware that
Tuckwab had been offered a plea agreement in exchange for her testimony.
Further, Tuckwab’s false testimony—that she did not receive any consideration
from the State for her testimony—was corrected on cross-examination during the
trial, rather than being discovered later. Under these circumstances, the holding in
Napue does not require reversal.

¶34 Finally, to the extent that Tuckwab did misrepresent the State’s
proposed offer in her testimony and the State subsequently failed to correct it, we
conclude that error was harmless. See Lettice, 205 Wis. 2d at 352. It was
abundantly clear to the jury that Tuckwab had been offered a deal in exchange for
her testimony against Green and Bell. Despite the fact that the deal was not signed
and despite the fact that the jury did not know the specific terms of the offer, the
jury knew that Tuckwab had been presented some benefit, which satisfied the
purpose of impeaching her testimony. Thus, notwithstanding the alleged

19
No. 2022AP151-CR

prosecutorial misconduct and in light of the entire record of the case, the same
result would have been reached by the jury on the facts presented.

IV. Ineffective Assistance of Counsel

¶35 Green next raises seven ineffective assistance of counsel claims.
Green asserts that defense counsel: (1) failed to introduce the jail kite note;
(2) failed to request severance during the trial; (3) failed to object to prejudicial
other-acts evidence; (4) failed to effectively impeach Tuckwab; (5) failed to
effectively impeach Hamilton; (6) failed to object to the State’s closing argument;
and (7) that the cumulative effect of defense counsel’s errors prejudiced Green.

¶36 To demonstrate constitutionally ineffective assistance of counsel,
Green must establish both that defense counsel performed deficiently and that the
deficient performance prejudiced his defense. See Strickland v. Washington, 466
U.S. 668, 687 (1984). Whether Green has been denied constitutionally effective
assistance of counsel is a mixed question of law and fact. See State v. Savage,
2020 WI 93, ¶25, 395 Wis. 2d 1, 951 N.W.2d 838. We will not overturn a circuit
court’s findings of fact unless those findings are clearly erroneous. Id. We review
de novo whether Green established that defense counsel performed deficiently and
that defense counsel’s deficient performance prejudiced Green’s defense. See id.

¶37 To demonstrate deficient performance, Green “must show that his
counsel’s representation ‘fell below an objective standard of reasonableness’
considering all the circumstances.” See State v. Shata, 2015 WI 74, ¶56, 364
Wis. 2d 63, 868 N.W.2d 93 (citations omitted). To establish prejudice, Green
“must show that there is a reasonable probability that, but for counsel’s
professional errors, the result of the proceeding would have been different.”
See Savage, 395 Wis. 2d 1, ¶32 (citation omitted). “In other words, we examine

20
No. 2022AP151-CR

whether there is ‘a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.’” State v. Sholar, 2018 WI
53, ¶33, 381 Wis. 2d 560, 912 N.W.2d 89 (citation omitted). However, Green
“need not prove the outcome would ‘more likely than not’ be different in order to
establish prejudice.” See id., ¶44 (citation omitted). “A court need not address
both components of this inquiry if the defendant does not make a sufficient
showing on one.” State v. Smith, 2003 WI App 234, ¶15, 268 Wis. 2d 138, 671
N.W.2d 854.

a. Jail Kite Note

¶38 First, Green claims that defense counsel provided constitutionally
ineffective assistance by failing to introduce the unsigned, jail kite note allegedly
written by Hamilton. See supra ¶15 n.11, ¶18. At the Machner hearing, defense
counsel testified that he had “concern[s]” with using this kite note because he was
not sure that Hamilton actually wrote the note, and he was unsure how Hamilton
would respond on the witness stand and “didn’t want a surprise on the stand in
front of the [j]ury.” He was also concerned that the kite note would “open the
door” to the fact that Green was in jail.

¶39 Based on this testimony, the circuit court found that defense
counsel’s decision not to use the note was a “reasonable” and “legitimate”
strategic decision under the circumstances. We agree with the court’s conclusion
in that regard. See Strickland, 466 U.S. at 690-91 (observing that counsel’s
decisions based on a reasonably sound strategy, without the benefit of hindsight,
are “virtually unchallengeable”). Further, as noted previously, Green was charged
as a party to the crime; thus, a note stating that the drugs did not belong to Green
was not exculpatory. This claim fails on the deficient performance prong.

21
No. 2022AP151-CR

b. Severance

¶40 Green next argues that defense counsel should have moved for
severance during the trial. According to Green, Bell’s counsel elicited
inconsistent testimony about where the drugs were located in the vehicle. Crum
testified that Hamilton first stated that he found the drugs on the floor of the
vehicle under the driver’s seat, and then Hamilton later alleged that Bell tossed the
drugs at him. Green argues that the former testimony “directly implicates Green
by placing the physical evidence in close proximity of the driver of the vehicle
(Green)” and was “meant to implicate Green and exculpate Bell.” Thus, he
claims, defense counsel “had a duty to object, request severance, and request a
mistrial.”

¶41 Green does not meet his burden to establish constitutionally
ineffective assistance of counsel. Whether the drugs were on the floor of the
vehicle or whether Bell threw the drugs at Hamilton, both Hamilton’s statements
sought to avoid responsibility for the drugs and place the blame on Green and/or
Bell. As the State explained, the testimony did not exonerate one man while
implicating another; it implicated both men because they were charged as a party
to the crime. We agree that the testimony did not render Green’s and Bell’s
defenses antagonistic; thus, there was no basis for the circuit court to grant a
motion to sever. See State v. Jacobsen, 2014 WI App 13, ¶49, 352 Wis. 2d 409,
842 N.W.2d 365 (2013) (“An attorney does not perform deficiently by failing to
make a losing argument.”). This claim fails on the deficient performance prong.

c. Tuckwab’s Testimony

¶42 Next, Green claims that defense counsel provided constitutionally
ineffective assistance by failing to object to prejudicial other-acts evidence that

22
No. 2022AP151-CR

Green solicited oral sex from Tuckwab. At trial, Tuckwab testified that while she
was in her bedroom ingesting the drugs that Green had given her, Green knocked
on her door and made a hand gesture that Tuckwab interpreted as Green asking her
for oral sex. After she refused, Green allegedly stated that he had heroin
(presumably that he would give to her in exchange for oral sex), and she refused
again. Tuckwab testified that this exchange made her upset, and she cried. Green
asserts that defense counsel should have objected to this testimony because it
“allowed the jury to see Green in negative light,” and he faults the circuit court for
not engaging in a Sullivan18 analysis to determine if the evidence was properly
admitted.

¶43 On appeal, the State argues that the evidence was not other-acts
evidence but was more appropriately described as panorama evidence. See State
v. Dukes, 2007 WI App 175, ¶28, 303 Wis. 2d 208, 736 N.W.2d 515. The State
further disputes Green’s characterization of the evidence as a request for Tuckwab
to engage in prostitution, such that Green’s request could be characterized as a
crime or a bad act, rather than just a request for a “consensual sexual encounter.”
In its oral ruling, the circuit court similarly questioned whether the evidence was
“technically other[-]acts evidence.”

¶44 We conclude that regardless of whether the evidence was properly
considered other-acts evidence, Green failed to meet his burden to prove
prejudice. Green’s alleged request represented a minor portion of Tuckwab’s
overall extensive testimony in support of the State’s theory that the three men
were working together to sell drugs, in conjunction with the other evidence

18
State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).

23
No. 2022AP151-CR

presented at trial. Therefore, we conclude that there is no reasonable probability
that a jury would have acquitted Green absent Tuckwab’s testimony regarding
Green’s request. See Savage, 395 Wis. 2d 1, ¶32. This claim fails on the
prejudice prong.

d. Impeachment of Tuckwab

¶45 Next, Green asserts that defense counsel ineffectively
cross-examined Tuckwab. First, Green again references Tuckwab’s statements
regarding the proposed plea agreement with the State. Green’s argument focuses
on defense counsel’s cross-examination of Tuckwab, but both defense counsel and
Bell’s counsel cross-examined her. Under the circumstances, we agree with the
State’s assertion that we must consider Tuckwab’s cross-examination “as a whole
and not simply the portion where [defense counsel] asked questions,” as “[i]t
would have been inefficient for the two attorneys to ask the same questions.” As
previously addressed, when defense counsel cross-examined Tuckwab, she stated
that she had received nothing from the State in exchange for her testimony, but she
later amended her response upon questioning by Bell’s counsel. Thus, the jury
heard general information pertaining to a proposed agreement between Tuckwab
and the State.

¶46 To the extent Green is now claiming that defense counsel should
have done more to correct Tuckwab’s testimony, defense counsel testified at the
Machner hearing that Bell’s counsel had taken the position of being more
“aggressive” in his cross-examination of Tuckwab. Defense counsel also
explained that he wanted to avoid appearing to “attack[] this poor little girl”
because it “turns off a [j]ury, turns them against you.” Thus, there was a strategic
reason for defense counsel’s failure to press Tuckwab about the State’s offer more

24
No. 2022AP151-CR

vigorously on cross-examination. Further, our “scrutiny of counsel’s performance
[is] highly deferential,” and counsel must only be “adequate,” not perfect.
See Strickland, 466 U.S. at 689-90; State v. Williquette, 180 Wis. 2d 589, 605,
510 N.W.2d 708 (Ct. App. 1993), aff’d, 190 Wis. 2d 677, 526 N.W.2d 144 (1995).
Accordingly, Green cannot show deficient performance.

¶47 Second, Green argues that defense counsel was ineffective for
failing to impeach Tuckwab with prior communications with Hamilton. As noted
above, however, Green either cannot or does not point to any evidence in the
appellate record suggesting that Tuckwab previously communicated with
Hamilton. See supra ¶21 & n.15. At trial, Tuckwab stated she did not know the
men before they came to her home that day. Green points to a pretrial interview
between Crum and Tuckwab where Crum lied to induce Tuckwab to admit that
she knew Hamilton. Our review of the interview, however, suggests that Tuckwab
never admitted in the interview to previously communicating with any of the men,
despite Crum’s deceit. Again, postconviction, Crum testified that he never found
evidence of any communication between Hamilton and Tuckwab. Thus, defense
counsel could not have impeached Tuckwab’s testimony with evidence that he did
not have. This claim fails on the deficient performance prong.

e. Impeachment of Hamilton

¶48 Green also argues that defense counsel ineffectively cross-examined
Hamilton. Green asserts that defense counsel should have impeached Hamilton by
eliciting the specific details of his plea agreement with the State, which called for,
among other things, a joint recommendation of five years’ initial confinement
followed by five years’ extended supervision when he was originally facing 98.5
years’ imprisonment. Under the circumstances, Green claims “[i]t was ludicrous

25
No. 2022AP151-CR

for the State to suggest that Mr. Hamilton’s plea agreement was simply
Mr. Hamilton taking responsibility and that he was ‘not escaping anything.’”
Green further asserts that without proper cross-examination on the specific terms
of the deal, the jury was unable to weigh those factors when assessing Hamilton’s
credibility, motive, and bias.

¶49 We conclude that Green has failed to show that defense counsel’s
alleged deficient performance prejudiced him. During defense counsel’s
cross-examination, Hamilton testified that he had received a deal in exchange for
testifying, which included some counts being dismissed but read in. Hamilton also
testified that he was “hoping for a favorable sentence recommendation from the
State.” Green fails to explain how additional specific details regarding the
agreement would have led to a different result at trial. It was clear to the jury that
Hamilton was receiving a benefit as a result of his testimony; that alone would
have caused the jury to question his credibility.19 This claim fails on the prejudice
prong.

f. State’s Closing Argument

¶50 Green next asserts that defense counsel should have objected during
the State’s closing argument. Green claims, without citation to the record, that the
prosecutor “argued that Ms. Tuckwab and Mr. Hamilton would have no motive to
testify against Green and Bell. He argued that Mr. Hamilton and Ms. Tuckwab
had never communicated. He stated that Mr. Hamilton and Ms. Tuckwab received

19
Green also claims that defense counsel was ineffective for failing to impeach Hamilton
with his prior communications with Tuckwab, but, again, there is no evidence that Tuckwab and
Hamilton communicated before the date in question; thus, defense counsel did not perform
deficiently by failing to impeach Hamilton with those communications.

26
No. 2022AP151-CR

no material benefit from their testimony.” According to Green, these
“mischaracterizations” created “an entirely untrue and unfair picture of both the
law and the facts.”

¶51 As the State notes, because Green has not provided record citations
in support of this claim, we are unable to review which of the prosecutor’s specific
statements he finds objectionable. We could deny Green’s claim on this basis
alone. See Alswager v. Roundy’s Inc., 2005 WI App 3, ¶15, 278 Wis. 2d 598, 692
N.W.2d 333 (2004).

¶52 Regardless, Green’s arguments on this point are also undeveloped,
as he does not explain how the prosecutor’s statements were either untrue based
on the evidence or objectionable under the law. The prosecutor did ask the jury
“what reason” Hamilton and Tuckwab would have to lie, but it was in reference to
the fact that they did not have an “interest in the outcome of the trial” such that it
mattered “[w]hether someone is found guilty, or not” for them to receive the
benefit of their deals. Further, the prosecutor did state that Hamilton and Tuckwab
had not communicated, but as noted repeatedly above, Green has failed to cite any
evidence showing that this statement was not true. Additionally, while the
prosecutor did mention that Tuckwab had nothing to gain, it was in the context of
a much broader discussion about her status as an addict who had relapsed:

Now, I also talked to you a little bit about your
knowledge and understanding of alcoholics or addicts and
how they relapse. It doesn’t mean that people who are
alcoholics or addicts are bad people. They don’t always get
everything right but they are still honest. You need to
decide how much to belie[ve] how honest Ms. Tuckwab is.
What does she have to gain from it? I submit to you
nothing.

27
No. 2022AP151-CR

The prosecutor was also clear in his closing that Tuckwab had a deal requiring her
to testify in the case.

¶53 Given our review, we agree with the State that there was no obvious
basis for an objection. “During closing arguments, a prosecutor is entitled to
‘comment on the evidence, detail the evidence, argue from it to a conclusion, and
state that the evidence convinces him or her and should convince the jurors.’”
State v. Miller, 2012 WI App 68, ¶20, 341 Wis. 2d 737, 816 N.W.2d 331 (citation
omitted). Additionally, “a prosecutor is permitted to comment on the credibility of
witnesses as long as that comment is based on evidence presented.” Id. (citation
omitted). The prosecutor did just that during his closing. Therefore, we conclude
that defense counsel did not perform deficiently by failing to object to the
prosecutor’s statements.20 See Jacobsen, 352 Wis. 2d 409, ¶49. This claim fails
on the deficient performance prong.

g. Cumulative Prejudice

¶54 Finally, Green argues that defense counsel’s cumulative
performance fell below reasonable professional standards and that the cumulative
effect of defense counsel’s errors prejudiced Green. We disagree. As our
supreme court explained in State v. Thiel, 2003 WI 111, ¶61, 264 Wis. 2d 571,

20
To the extent that defense counsel should have objected to something in the
prosecutor’s closing argument, we note that immediately prior to closing arguments, the circuit
court told the jury: “[Consider] carefully the closing arguments of attorneys. Their arguments
and conclusions and opinions are not evidence. Draw your own conclusion from the evidence
and decide upon your verdict according to the evidence and the instructions given to you.”
See WIS JI—CRIMINAL 160 (2000). “These instructions, which we presume the jurors followed,
alleviate the likelihood that jurors placed any significant weight on the prosecutor’s comments
other than the weight that came from their own independent examination of the evidence.”
See State v. Miller, 2012 WI App 68, ¶22, 341 Wis. 2d 737, 816 N.W.2d 331 (footnote omitted).

28
No. 2022AP151-CR

665 N.W.2d 305, “a convicted defendant may not simply present a laundry list of
mistakes by counsel and expect to be awarded a new trial. A criminal defense
attorney’s performance is not expected to be flawless. The Sixth Amendment
does not demand perfection.” Even when considering all of Green’s claims, see
id., ¶62, which we have already rejected as noted above, Green fails to show
ineffective assistance, see Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752
(1976) (“We have found each of [the defendant’s] arguments to be without
substance. Adding them together adds nothing. Zero plus zero equals zero.”). In
other words, Green has failed to establish cumulative prejudice based on defense
counsel’s alleged errors.

By the Court.—Judgment and order affirmed.

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

29