State v. Anthony Terrell Smith

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.
September 3, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP344 Cir. Ct. No. 2018CF2184

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTHONY TERRELL SMITH,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MICHELLE A. HAVAS, Judge. Affirmed.

Before White, C.J., Donald, and Geenen, 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).
No. 2024AP344

¶1 PER CURIAM. Anthony Terrell Smith, pro se, appeals an order
denying his WIS. STAT. § 974.06 (2023-24)1 motion without a hearing on the
grounds that his claims are procedurally barred. We affirm.

BACKGROUND

¶2 In September 2019, following a bench trial in which Smith
represented himself, Smith was convicted of eight drug and firearm-related
felonies. The circuit court2 imposed a global sentence of ten years of initial
confinement followed by seven years of extended supervision.

¶3 After his conviction, Smith was appointed postconviction counsel,
but he successfully moved to discharge that attorney. Smith then filed a pro se
postconviction motion in January 2022 under WIS. STAT. RULE 809.30. As
relevant to this appeal, he argued that the State committed a Brady3 violation by
not timely producing body camera video taken during the execution of a search
warrant.

¶4 Two search warrants were executed during the investigation into
Smith’s drug activities—the first in 2016 at a residence linked to Smith and the
second in 2017 at a different residence linked to Smith. The searches of both
residences yielded large amounts of drugs, cash, and several firearms. At a

1
Although Smith’s postconviction motions were filed while the 2021-22 version of the
Wisconsin Statutes was in effect, the relevant statutory language has not changed, and thus all
references to the Wisconsin Statutes are to the 2023-24 version.
2
Smith’s trial and postconviction proceedings were before several different judges; we
refer to them all generally as the circuit court.
3
See Brady v. Maryland, 373 U.S. 83 (1963).

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pretrial conference, the State advised the circuit court that the Milwaukee Police
Department (MPD) had confirmed there was no body camera footage from either
of the searches. However, on the first day of trial, the State informed the court
that a supplemental review by an officer who had greater access to the body
camera system had uncovered video from the 2017 search. The court ordered a
recess so that Smith could view the video. After the recess, and before testimony
had begun, the court confirmed that Smith had viewed the video.

¶5 During the trial, Smith cross-examined an MPD officer about
whether there was body camera footage from the search warrant executed in 2016.
The officer stated that was a “time of transition” in the department, where some
officers had body cameras while others did not. The officer testified that he was
not aware that any of the officers who executed the 2016 search warrant had worn
body cameras.

¶6 Smith argued in his first postconviction motion that a Brady
violation had occurred with regard to the 2017 video because it was not provided
to him until the first day of trial. That argument was rejected by the circuit court.
The court found that Smith had forfeited this claim by “proceeding to trial without
further objections” regarding the video. The court further stated that Smith failed
to develop an argument as to how this had affected the outcome of the trial. Smith
appealed, and this court affirmed. See State v. Smith, 2022AP347-CR,
unpublished op. and order (WI App Nov. 22, 2022).

¶7 Within days of this court’s decision, Smith filed the WIS. STAT.
§ 974.06 motion underlying this appeal. In that motion, Smith again argued that a
Brady violation had occurred, claiming that he had procured body camera video
from the 2016 search, as well as additional video from the 2017 search, through

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open records requests. He sought an evidentiary hearing “in order to show the
court the videos he received” as a result of those open records requests. He further
asserted that a new trial was warranted based on this newly discovered evidence.

¶8 The circuit court denied the motion as procedurally barred. The
court found that the Brady claim was previously litigated, and further, that Smith
did not provide a sufficient reason for failing to raise the claim regarding the 2016
video in his first postconviction motion. Additionally, the court found that
Smith’s Brady claim failed on the merits because he did not explain how having
the 2016 video would have affected the outcome of the trial. The court also
determined that Smith had not met the criteria for establishing newly discovered
evidence. This appeal follows.

DISCUSSION

¶9 We conclude that Smith’s claims fail because they are procedurally
barred and insufficiently pled. First, Smith previously asserted a Brady claim
specifically regarding the 2017 search video in his first postconviction motion
brought in January 2022 under WIS. STAT. RULE 809.30. To the extent his current
claims are an extension of that previous claim, they may not be relitigated. See
State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991).

¶10 Furthermore, to the extent that Smith’s claim regarding the 2016
video is a separate Brady claim, Smith fails to present a sufficient reason for
failing to raise it in his first postconviction motion. In a motion brought under
WIS. STAT. § 974.06, a defendant must demonstrate that there is a “sufficient
reason” that the claims in that motion were not raised in a prior motion or direct
appeal. State v. Escalona-Naranjo, 185 Wis. 2d 168, 185-86, 517 N.W.2d 157
(1994). Whether a § 974.06 motion alleges a sufficient reason “for failing to bring

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available claims earlier” is a question of law that we review de novo. State v.
Romero-Georgana, 2014 WI 83, ¶30, 360 Wis. 2d 522, 849 N.W.2d 668.

¶11 Smith states in his WIS. STAT. § 974.06 motion that the reason he did
not previously raise this claim was that he did not receive the “new video evidence
or the body cam in time to present it.” He attached copies of the open records
requests that he made to the MPD, which are dated March 15, 2022, and August 1,
2022. However, Smith provides no explanation as to why he waited to make the
open records requests until after he had filed his first postconviction motion in
January 2022, rather than seeking the videos sooner. As such, Smith’s explanation
does not establish a sufficient reason for failing to raise these claims in his first
postconviction motion. See Romero-Georgana, 360 Wis. 2d 522, ¶30.

¶12 Furthermore, Smith has not pled sufficient facts to establish his
Brady claim. The circuit court is required to hold an evidentiary hearing only if
the defendant has alleged “sufficient material facts that, if true, would entitle the
defendant to relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682
N.W.2d 433. Generally, a motion that alleges “the five ‘w’s’ and one ‘h’; that is,
who, what, where, when, why, and how,” will contain sufficient material facts to
meet this standard. Id., ¶23. This is a question of law that this court reviews de
novo. Id., ¶9.

¶13 In his WIS. STAT. § 974.06 motion, Smith does not explain how the
videos he obtained would affect his case. There are three components required to
establish a Brady violation: “(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

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evidence must be material.” State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d
344, 922 N.W.2d 468.

¶14 Smith alleges in his WIS. STAT. § 974.06 motion that the video
evidence is exculpatory and material to his case, but he does not explain how the
videos meet these requirements. Rather, he simply asserts that the videos show
people who were at the residences during the searches that he could have called as
witnesses at his trial. “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). Smith fails to explain how testimony from
these witnesses would have affected the outcome of his trial. Merely obtaining the
videos is not sufficient to undermine confidence in the verdict. See id.

¶15 In the same vein, Smith also fails to establish that the videos he
obtained through his open records requests are newly discovered evidence. A
successive postconviction motion alleging newly discovered evidence may
proceed in some cases. See State v. Edmunds, 2008 WI App 33, ¶9, 308 Wis. 2d
374, 746 N.W.2d 590. However, it “must show sufficient objective material
factual assertions that, if true, would warrant the movant to relief.” State v. Love,
2005 WI 116, ¶50, 284 Wis. 2d 111, 700 N.W.2d 62. This allows the reviewing
court to “meaningfully assess” the claim. Id., ¶47.

¶16 To establish a newly discovered evidence claim, a defendant must
first show that: “(1) the evidence was discovered after conviction; (2) the
defendant was not negligent in seeking the evidence; (3) the evidence is material
to an issue in the case; and (4) the evidence is not merely cumulative.” State v.
Plude, 2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42 (citation omitted). If the

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defendant establishes these four criteria, the circuit court must then determine
“whether a reasonable probability exists that had the jury heard the
newly[]discovered evidence, it would have had a reasonable doubt as to the
defendant’s guilt.” Id. “If the newly discovered evidence fails to satisfy any one
of these five requirements, it is not sufficient to warrant a new trial.” State v.
Eckert, 203 Wis. 2d 497, 516, 553 N.W.2d 539 (Ct. App. 1996).

¶17 As previously noted, Smith has not explained why he did not make
his open records request prior to filing his first postconviction motion. As such, he
has not demonstrated that he was not negligent in seeking the evidence. See
Plude, 310 Wis. 2d 28, ¶32. Furthermore, as discussed, Smith does not explain
how the videos are material to an issue in his case. Therefore, he has not alleged
sufficient facts to meet the criteria for newly discovered evidence. See id.

¶18 As a result, Smith is not entitled to an evidentiary hearing for either
his Brady claim or his newly discovered evidence claim. See Allen, 274 Wis. 2d
568, ¶14; Love, 284 Wis. 2d 111, ¶56.

¶19 Finally, Smith again argues, as he did in his first postconviction
motion, that he is entitled to a new trial in the interest of justice. Pursuant to WIS.
STAT. § 752.35, this court may grant a new trial in the interest of justice when the
real controversy has not been fully tried or when it is probable that justice has
miscarried. “[R]eversals under [§] 752.35 are rare and reserved for exceptional
cases.” State v. Kucharski, 2015 WI 64, ¶41, 363 Wis. 2d 658, 866 N.W.2d 697.

¶20 As in his first postconviction motion, Smith merely cites the
standard for relief set forth in WIS. STAT. § 752.35, without developing any
argument to show that this is the rare case warranting relief under the statute.

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Therefore, we again reject that claim. See State v. Pettit, 171 Wis. 2d 627, 647,
492 N.W.2d 633 (Ct. App. 1992).

CONCLUSION

¶21 “Successive motions and appeals, which all could have been brought
at the same time, run counter to the design and purpose” of WIS. STAT. § 974.06.
Escalona-Naranjo, 185 Wis. 2d at 185. Smith’s claims raised in his § 974.06
motion are an extension of the Brady claim he raised in his first postconviction
motion, and he fails to provide a sufficient reason for failing to raise his current
claims in his first postconviction motion. Therefore, Smith’s claims are
procedurally barred. See Witkowski, 163 Wis. 2d at 990; Escalona-Naranjo, 185
Wis. 2d at 173. Moreover, they are insufficiently pled to warrant an evidentiary
hearing. See Allen, 274 Wis. 2d 568, ¶14; Love, 284 Wis. 2d 111, ¶50.
Accordingly, we affirm the circuit court’s order denying his § 974.06 motion.

By the Court.—Order affirmed.

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

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