May 1, 2018 – The affidavits of three men who said two witnesses lied when they testified that David McAlister was involved in an armed robbery were not enough to grant McAlister’s request for a new trial, the Wisconsin Supreme Court has ruled.

In State v. McAlister, 2018 WI 34 (April 17, 2018), the supreme court ruled (5-2) ruled that McAlister could not get a new trial because the affidavits were “merely cumulative evidence” of the “same general character as was subject to proof at trial.”

McAlister was convicted in 2004 after two accomplices implicated him in two armed robberies. They said McAlister planned the robberies and served as the getaway driver. Police executed a search warrant and found a .22 caliber pistol in McAlister’s home.

At trial, the state presented testimony from two witnesses, Nathan Jefferson and Alphonso Waters, who said McAlister was behind an attempted armed robbery and an armed robbery in Racine. They said McAlister used them to carry out the robberies.

Defense counsel drilled into Waters to suggest he lied to save himself from a lengthy prison sentence, and noted the reduced sentence Waters was likely to receive in exchange for his cooperation. Jefferson, also a state witness, noted that he entered a plea bargain with the state before telling the jury McAlister supplied the gun.

At the conclusion of the testimony, the court read the jury instructions and noted that it must judge the credibility of the witnesses in reaching its conclusion. The jury convicted McAlister on three counts, including armed robbery. Four years later, McAlister moved for a new trial. He made various challenges, including new evidence.

That is, McAlister submitted affidavits from three jailhouse witnesses who said Waters admitted he lied about McAlister to reduce his sentence, and Jefferson said that Waters told him exactly what to say while the charges were pending and before trial.

McAlister argued his case pro se, asserting he was entitled to a new trial on due process grounds. But the supreme court concluded that McAlister raised nothing new.

Majority Rules

McAlister raised the affidavits as new evidence that Waters and Jefferson perjured themselves. But the majority noted that it was McAlister’s burden to show the “need for a postconviction evidentiary hearing with a clearly articulated justification.”

McAlister needed to show the evidence was discovered after conviction, he was not negligent in seeking it the first time, it is material, and it is not “merely cumulative.”

The majority ruled that McAlister satisfied the first three requirements, but not the last.

“We have long held that newly discovered evidence that is merely cumulative is not grounds for a new trial,” Chief Justice Patience Roggensack wrote for the majority. “Where the credibility of the prosecution witness was tested at trial, evidence that again attacks the credibility of that witness is cumulative.”

The chief justice noted that the three affidavits “were of the same general character and drawn to the same point” as the testimony at trial: whether Jefferson and Waters lied about McAlister to help themselves. The jury considered that question.

“The jury heard it all before,” Chief Justice Roggensack wrote. “McAlister did not satisfy the fourth requirement necessary to qualify as newly discovered evidence.”

The majority also ruled that the trial court was not required to hold a hearing on McAlister’s motion for a new trial because the affidavits were not supported by “newly discovered corroborating evidence or circumstantial guarantees of trustworthiness.”

Concurrence and Dissent

Justice Daniel Kelly wrote a concurring opinion. He agreed with the majority’s result but said the majority should have applied a different test to cumulative evidence:

“If the trier of fact were to believe the new evidence, would he necessarily conclude the disputed fact has been established? If so, then the new evidence cannot possibly be cumulative because it is capable of producing a result the old evidence did not.”

Under this test, the evidence was not cumulative, Justice Kelly concluded. “Nevertheless, I agree with the court’s conclusion that this evidence requires corroboration before Mr. McAlister is entitled to an evidentiary hearing.”

Justice Ann Walsh Bradley dissented, joined by Justice Shirley Abrahamson, concluding that McAlister was entitled, at least, to an evidentiary hearing.

“What if McAlister’s claim are true? What if his witnesses are credible? We will never know because the majority has short-circuited the process and there will be no hearing,” Justice A.W. Bradley wrote.