Background
In May 2021, Milwaukee police responded to a report of shots fired at a residence. An anonymous caller reported hearing one gunshot and observing a young child holding their ears. When officers conducted a welfare check, the resident said she heard a “pop” but indicated everything was fine. Later that day, during a traffic stop of a vehicle suspected in an armed robbery, police recovered a loaded silver revolver with a brown handle from Charlotte Hart, who was traveling with Davis.
Hart gave custodial statements indicating she and Davis had been at her aunt’s house with her two children. She said she heard a gunshot and discovered her daughter Jessica’s forehead bleeding. Davis initially told Hart that someone had driven by and shot into the vehicle. However, forensic interviews with the children revealed that the gun Davis was holding discharged, shattering the vehicle’s back window and grazing Jessica’s head with the bullet. Hart also told police that Davis placed the gun in her waistband when they were pulled over.
Davis was charged with being a felon in possession of a firearm and physical abuse of a child by recklessly causing bodily harm. The jury convicted him on both counts and acquitted him on a third count of second-degree recklessly endangering safety. Davis subsequently filed a postconviction motion raising claims of plain error and ineffective assistance of counsel.
The Court’s Holding
The court rejected Davis’s plain error claim regarding a prosecutor’s statement during closing arguments that “the presumption of innocence is gone” after the jury had heard all evidence. The court found this statement, made immediately after jury instructions on the presumption of innocence, was not fundamental error when understood in context. The prosecutor was arguing that the evidence presented by the State had overcome the presumption—a permissible litigation argument. Because jurors are presumed to follow instructions, the court found Davis failed to meet the threshold for plain error, and therefore his companion ineffective-assistance claim based on counsel’s failure to object also failed.
The court similarly rejected Davis’s ineffective-assistance claim regarding an alleged plea offer. Davis alleged that counsel told him the State offered two years of initial confinement and no extended supervision but advised him to reject it, claiming they would win at trial. The court found the claim insufficiently pled to warrant an evidentiary hearing. Davis had not shown he was prejudiced by counsel’s alleged failure to present the offer’s full terms because he had rejected the offer based on counsel’s opinion about trial prospects, not because of deficient presentation. Furthermore, the alleged sentence would have been illegal under Wisconsin law, which requires bifurcation of sentences into initial confinement and extended supervision—meaning no court would have accepted such a plea offer anyway.
Key Takeaways
- A prosecutor’s argument that presented evidence had overcome the presumption of innocence was not improper error, particularly when made immediately after jury instructions on that presumption.
- Trial counsel’s strategic assessment that the defendant would prevail at trial, though ultimately incorrect, is not per se deficient performance and cannot be judged by hindsight.
- An ineffective-assistance claim based on counsel’s handling of a plea offer requires the defendant to demonstrate both that counsel’s performance was deficient and that the defendant was prejudiced—merely alleging the offer was not fully explained is insufficient if the defendant rejected it for other reasons.
- Alleged plea offers containing illegal sentencing terms (such as no extended supervision when bifurcation is statutorily required) cannot form the basis for establishing prejudice in an ineffective-assistance claim.
Why It Matters
This decision reinforces important boundaries in criminal procedure. First, it clarifies that prosecutors retain latitude to argue that evidence has overcome the presumption of innocence during closing statements—a core part of advocacy—and that such arguments do not constitute error, particularly when occurring immediately after jury instructions on the relevant principle. This reflects the court’s deference to prosecutorial argument and confidence in jury comprehension.
Second, the decision sets a high bar for ineffective-assistance claims based on counsel’s advice regarding plea offers. Defendants must show not only that counsel’s explanation was incomplete, but also that they would likely have accepted the offer if fully informed. Where a defendant rejects an offer based on counsel’s optimistic trial assessment rather than dissatisfaction with the offer’s terms, the claim fails. Additionally, the court’s observation that an illegal plea offer provides no basis for prejudice—because no court could accept it—closes a potential avenue for appellate challenge. For practitioners, this signals that strategic trial assessments, even when wrong, do not expose counsel to constitutional liability absent clear deficiency and demonstrable prejudice.