Ineffective Assistance of Counsel

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Bobby Joe Johnson, Jr.

Case No.: 2018AP803-CR

Officials: Lundsten, P.J., Blanchard and Fitzpatrick, JJ.

Focus: Ineffective Assistance of Counsel

Bobby Joe Johnson, Jr., appeals a judgment of conviction and an order denying postconviction relief entered by the Milwaukee County Circuit Court. Shots were fired into a residence, killing Whitney Rhodes. At trial, the State presented testimony from several witnesses, including Johnson’s brother, Atoary Harrington, all of whom testified that Harrington and Johnson were both armed and present at the scene of the shooting. Johnson was convicted of second-degree reckless homicide by use of a dangerous weapon as a party to the crime, and possession of a firearm by a felon.

Johnson filed a postconviction motion and requested a new trial for two reasons. First, Johnson alleged that he had newly discovered evidence in the form of a sworn statement by Harrington in which he recanted his trial testimony and claimed that he, rather than Johnson, fired the shots that killed Rhodes. Second, Johnson alleged that his trial counsel was ineffective because he failed to investigate, and call to testify at trial, persons who claim that they saw Johnson at the scene but that he did not have a firearm, and that they heard Harrington make statements incriminating himself regarding the shooting. The circuit court denied the motion without an evidentiary hearing, and Johnson appeals.

We conclude that Johnson has failed to provide newly discovered evidence to corroborate Harrington’s recantation, and the circuit court properly denied the request for an evidentiary hearing on that claim. We also conclude that Johnson has failed to provide sufficient facts to entitle him to an evidentiary hearing on his ineffective assistance of trial counsel claim. We therefore affirm the judgment of conviction and order of the circuit court.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.