Newly Discovered Evidence

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WI Supreme Court

Case Name: State of Wisconsin v. David McAlister, Sr.,

Case No.: 2018 WI 34

Focus: Newly Discovered Evidence

In January 2007, a jury convicted David McAlister, Sr. (“McAlister”) of attempted armed robbery (threat of force), armed robbery (threat of force) and possession of a firearm by a felon for crimes that occurred in late 2004. At trial, the State presented testimony from Nathan Jefferson (“Jefferson”) and Alphonso Waters (“Waters”). They testified that McAlister was their accomplice in the robberies.

In 2014, McAlister filed the Wis. Stat. § 974.06 motion for a new trial that is now before us. He alleged that he had newly discovered evidence represented by the affidavits of three men who allege that Jefferson and Waters lied when they testified that McAlister was involved in the crimes for which he was convicted. The circuit court denied McAlister’s motion without an evidentiary hearing, and the court of appeals affirmed.

Our review focuses on whether McAlister has provided newly discovered evidence that is sufficient to require the circuit court to hold an evidentiary hearing. In so doing, we consider whether the affidavits McAlister submitted in support of his motion meet the requirements necessary to qualify as newly discovered evidence. We specifically examine whether the affidavits were cumulative evidence and whether they were uncorroborated evidence for which corroboration should be required.

We conclude that the affidavits were merely cumulative evidence because they were additional evidence of the same general character as was 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. We also conclude 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. Therefore, the circuit court did not erroneously exercise its discretion when it denied McAlister’s motion for a new trial without an evidentiary hearing. State v. Avery, 2013 WI 13, ¶22, 345 Wis. 2d 407, 826 N.W.2d 60. Accordingly, we affirm the court of appeals’ affirmance of the circuit court.

Affirmed

Concur: KELLY, J., concurs (opinion filed)

Dissent: A.W. BRADLEY, J., dissents, joined by ABRAHAMSON, J. (opinion filed)

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.