State v. Alexander T. McGee

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.
July 23, 2024
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. 2023AP844-CR Cir. Ct. No. 2013CF3029

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ALEXANDER T. MCGEE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DAVID L. BOROWSKI, Judge. Affirmed.

Before White, C.J., Geenen and Colón, 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).

¶1 PER CURIAM. Alexander T. McGee appeals the judgment, entered
pursuant to a jury’s verdict, convicting him of first-degree sexual assault with use
No. 2023AP844-CR

of a dangerous weapon and as an act of domestic abuse, burglary, and false
imprisonment. He also appeals from the circuit court’s order denying, without a
hearing, his motion for postconviction relief based on prosecutorial misconduct and
ineffective assistance of counsel. We affirm.

BACKGROUND

¶2 On July 3, 2013, the State charged McGee with first-degree sexual
assault with use of a dangerous weapon and as an act of domestic abuse, burglary,
and false imprisonment. The charges arose out of allegations that in late June 2013,
McGee broke into the house of his child’s mother, Tracy,1 and attacked her when
she returned home from work. According to the criminal complaint, McGee
repeatedly struck Tracy in the face, bound her mouth and hands with duct tape, and
threatened to kill her with a knife before sexually assaulting her.

¶3 McGee proceeded to trial. During voir dire, the State posed a series
of hypothetical scenarios and asked the jury questions about them, seemingly aimed
at determining what amount and types of evidence different jurors wanted before
they would conclude something had been proven beyond a reasonable doubt.
McGee did not object, and he did not move for a mistrial on the basis of the State’s
questioning.

¶4 Tracy testified that McGee was the father of one of her children, and
prior to the incident, they had a co-parenting, nonromantic relationship. She said
that when she got home from work on June 29, 2013, McGee was in her house

1
We use a pseudonym to refer to the victim in this case “to better protect the privacy and
dignity interest of crime victims.” WIS. STAT. RULE 809.86(1) (2021-22).

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

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without her permission hiding behind a couch. McGee jumped at Tracy, and a
struggle ensued. According to Tracy, McGee repeatedly hit her in the face before
sitting on her chest to restrain her. Armed with a knife and duct tape, McGee
repeatedly attempted to bind Tracy’s mouth and wrists, but she was able to keep
ripping the tape off. McGee eventually forced Tracy into an upstairs bedroom at
knifepoint and again restrained her by sitting on her chest while ripping off pieces
of duct tape and sticking them on the ceiling, which slanted over the bed. Tracy
eventually calmed McGee down, and he stopped restraining her. Sometime later,
with the knife beside him, McGee took off Tracy’s clothes, and he had mouth-to-
vagina intercourse and penis-to-vagina intercourse with her. Tracy did not want to
have sex with McGee, but she felt she had no choice in the matter, and “[she] just
didn’t want to die.” McGee fell asleep with his arm around Tracy, and every ten
minutes or so, she moved slightly further away from McGee until she was
eventually able to slide out from under him. Tracy then ran to a neighbor’s house,
and the neighbor called 911. The sexual assault nurse that examined Tracy the night
of the incident testified that although she could not determine the cause of Tracy’s
injuries, they were consistent with Tracy’s version of events.

¶5 McGee testified on his own behalf, claiming that he and Tracy had
plans at her house for when she got off work that “maybe” included sex, and while
he was at her house, she threatened him with a knife after discovering evidence of
McGee’s infidelity. According to McGee, Tracy swung the knife at him and he
struck her several times in self defense. McGee testified that Tracy then calmed
down, and they had consensual sex initiated by Tracy. McGee said that the next
morning, he woke up to Tracy holding a knife over him, and she told McGee that
she wanted to kill him after going through his phone and finding pictures and video
of him having sex with other women. Tracy allegedly led McGee downstairs at

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No. 2023AP844-CR

knifepoint, stating that if she could not have McGee, then nobody could. McGee
claims that he made a break for it, ran back upstairs, gathered some belongings, and
kicked out the upstairs window to escape.

¶6 The jury convicted McGee on all counts, and the circuit court imposed
a combined sentence of fifteen years of initial confinement followed by seven years
of extended supervision. McGee filed a postconviction motion arguing that the
State’s hypothetical scenarios during voir dire constituted prosecutorial misconduct
entitling him to a new trial, and that his trial counsel was ineffective for failing to
(1) object to the State’s hypothetical scenarios and (2) investigate a witness that
would have corroborated Tracy’s alleged motive to fabricate her testimony as
retribution for McGee’s infidelity. The circuit court denied McGee’s motion
without a hearing.

¶7 McGee appeals. Additional relevant facts are discussed below.

DISCUSSION

I. McGee’s prosecutorial misconduct claim does not constitute plain
error.

¶8 McGee first argues that the State committed prosecutorial misconduct
when it posed a series of hypothetical scenarios to the jury impermissibly affecting
how it would deliberate and weigh different types of evidence, and that this
misconduct constitutes plain error entitling him to a new trial.2

2
Because McGee did not object to the State’s voir dire questioning, which is the basis of
his prosecutorial misconduct claim, he has forfeited direct review of the claim, and we analyze it
only for plain error or ineffective assistance of counsel. State v. Mercado, 2021 WI 2, ¶37, 395
Wis. 2d 296, 953 N.W.2d 337.

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¶9 “Prosecutorial misconduct ‘can rise to such a level that the defendant
is denied his or her due process right to a fair trial.’” State v. Lettice, 205 Wis. 2d
347, 352, 556 N.W.2d 376 (Ct. App. 1996) (citation omitted). However, reversing
a conviction on the basis of prosecutorial misconduct is a “drastic step” that is
reserved for cases where the misconduct “poison[ed] the entire atmosphere of the
trial[.]” Id. (citation omitted). Reversal is not warranted if the State “can
demonstrate beyond a reasonable doubt that the error was harmless[.]” Id.

¶10 A court does not remedy errors under the plain error doctrine unless
they are “obvious and substantial[,]” and “‘so fundamental that a new trial or other
relief must be granted even though the action was not objected to at the time.’”
State v. Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77 (citation
omitted). Courts reverse based on plain error “sparingly,” id., because it is “reserved
for cases where there is the likelihood that the erroneous introduction of evidence
has denied a defendant a basic constitutional right[,]” State v. Sonnenberg, 117
Wis. 2d 159, 178, 344 N.W.2d 95 (1984). Whether a plain error violated a
defendant’s right to due process is a question of law that we review independently.
State v. Bell, 2018 WI 28, ¶8, 380 Wis. 2d 616, 909 N.W.2d 750.

¶11 During voir dire, the State’s prosecutor, Erin Karshen, used several
hypothetical scenarios in an apparent attempt to ascertain what types of evidence
the jurors would want before they would conclude something had been proven
beyond a reasonable doubt. As is relevant here and without reproducing the entire
exchange, Karshen detailed her commute to work that morning, spoke about her
family make-up, discussed the health of her pets, and asked whether the jurors
would, essentially, accept her hypothetical testimony as evidence, or if they would
want some type of corroborating evidence to support her statements. After some of
the jurors expressed that they would prefer corroborating evidence, the court

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No. 2023AP844-CR

interrupted to clarify the point Karshen was trying to make about witness testimony.
The court instructed the jury, “Testimony from witnesses is evidence .... [Y]ou can
either believe that [testimony] or not believe that [testimony] based on a lot of
things, a lot of factors, credibility, other evidence, jury instructions that I’m going
to give you, but testimony is evidence.”

¶12 Although WIS. STAT. § 805.08(1) prohibits examination of a jury
“based upon hypothetical questions[,]” we are asked to determine whether
Karshen’s violation of the statute constituted prosecutorial misconduct that so
“poison[ed] the entire atmosphere of the trial,” Lettice, 205 Wis. 2d at 352, that we
should take the “drastic step” of reversing McGee’s convictions, State v. Ruiz, 118
Wis. 2d 177, 202, 347 N.W.2d 352 (1984). We agree with the circuit court that
while the prosecutor’s questioning “went too far afield,” it did not “so infect[] the
trial with unfairness as to make the resulting conviction a denial of due process.”
State v. Neuser, 191 Wis. 2d 131, 136, 528 N.W.2d 49 (Ct. App. 1995) (citations
omitted). The court interrupted the prosecutor to clarify the point she was trying to
make about witness testimony qualifying as evidence, and the jury was instructed
after selection and at the conclusion of the trial regarding burden of proof, the
meaning of “reasonable doubt,” what qualifies as evidence and what does not, the
meaning of circumstantial evidence, how to consider the credibility of witnesses,
and that the remarks and comments of attorneys are not evidence. Jurors are
presumed to have followed the jury instructions. State v. LaCount, 2008 WI 59,
¶23, 310 Wis. 2d 85, 750 N.W.2d 780.

¶13 In light of the court’s clarification during the voir dire questioning, its
later instructions, and the presumption that jurors follow those instructions, we agree
with the circuit court that McGee has not demonstrated that the prosecutor’s voir
dire questioning constituted an error “‘so fundamental that a new trial or other relief

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No. 2023AP844-CR

must be granted even though the action was not objected to at the time.’”
Jorgensen, 310 Wis. 2d 138, ¶21 (citation omitted).

II. Trial counsel was not ineffective.

¶14 McGee also argues on appeal that his trial counsel was ineffective in
several ways. In rejecting McGee’s ineffective assistance challenges without a
hearing, the circuit court applied the two-pronged test for deficient performance and
prejudice established in Strickland v. Washington, 466 U.S. 668, 687 (1984).
“When a circuit court summarily denies a postconviction motion alleging
ineffective assistance of counsel without holding a Machner[3] hearing, the issue for
the court of appeals ... is whether the defendant’s motion alleged sufficient facts
entitling [the defendant] to a hearing.” State v. Sholar, 2018 WI 53, ¶51, 381 Wis.
2d 560, 912 N.W.2d 89. However, even if the motion alleges specific facts, “an
evidentiary hearing is not mandatory if a defendant’s motion presents only
conclusory allegations or if the record as a whole conclusively demonstrates that the
defendant is not entitled to relief.” State v. Ruffin, 2022 WI 34, ¶38, 401 Wis. 2d
619, 974 N.W.2d 432.

¶15 To establish deficient performance, the motion must specifically
allege more than that counsel’s performance was “imperfect or less than ideal.”
State v. Balliette, 2011 WI 79, ¶22, 336 Wis. 2d 358, 805 N.W.2d 334. There is a
strong presumption that counsel performed reasonably, and the question is “whether
the attorney’s performance was reasonably effective considering all the
circumstances.” Id., ¶¶22, 25-28.

3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2023AP844-CR

¶16 The motion must also allege prejudice, i.e., “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. In order to
satisfy this prong, the defendant must allege more than “that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693. “[R]ank
speculation” is insufficient. State v. Erickson, 227 Wis. 2d 758, 774, 596 N.W.2d
749 (1999).

¶17 Whether a postconviction motion is sufficient on its face to require an
evidentiary hearing and whether the record conclusively demonstrates that the
defendant is not entitled to relief are both questions of law that we review
independently of the circuit court, while benefiting from its analysis. Ruffin, 401
Wis. 2d 619, ¶27; Balliette, 336 Wis. 2d 358, ¶18.

a. Trial counsel was not ineffective for failing to object to the State’s
hypothetical scenarios during voir dire.

¶18 McGee argues that trial counsel should have objected to the State’s
series of hypothetical scenarios during voir dire. For the same reasons that we
conclude the State’s voir dire questioning did not constitute plain error, we
determine that the record conclusively demonstrates that McGee was not prejudiced
by counsel’s performance.

¶19 As we discussed above, the court interrupted the State during voir dire
to clarify the point the prosecutor was trying to make about witness testimony,
specifically instructing the jury, “Testimony from witnesses is evidence.... [Y]ou
can either believe [the testimony] or not believe [the testimony] based on a lot of
things, a lot of factors, credibility, other evidence, jury instructions that I’m going

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No. 2023AP844-CR

to give you, but testimony is evidence.” The jury was also instructed after selection
and at the conclusion of the trial on the burden of proof, the meaning of “reasonable
doubt,” what evidence is and what it is not, the meaning of circumstantial evidence,
how to consider the credibility of witnesses, and that the remarks and comments of
attorneys are not evidence. Jurors are presumed to have followed the jury
instructions. LaCount, 310 Wis. 2d 85, ¶23.

¶20 In light of the court’s clarification during the voir dire questioning, its
later instructions, and the presumption that jurors follow those instructions, the
record conclusively demonstrates that there is not a reasonable probability that the
result of the trial would have been different had trial counsel objected to the State’s
voir dire questioning. Strickland, 466 U.S. at 694. Therefore, we agree with the
circuit court that trial counsel was not ineffective for failing to object during voir
dire.

b. Trial counsel was not ineffective for failing to investigate a
corroborative witness.

¶21 McGee’s final argument on appeal is that trial counsel should have
investigated Jacqueline Evans, who allegedly would have testified that Tracy told
her that she was going to frame McGee due to his infidelity. McGee filed an
affidavit from Evans wherein she stated that Tracy called her from McGee’s cell
phone on the morning of the incident. Evans claimed that Tracy admitted to pulling
a knife on McGee after discovering pictures of McGee and Evans on McGee’s
phone, and that McGee head-butted Tracy in the nose to prevent her from stabbing
him. According to Evans, Tracy told her that she was going to “put something on
[McGee] that neither one of us will end up being with him.” Evans stated that she
tried to contact McGee’s attorney with this information, but nobody followed up

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No. 2023AP844-CR

with her. McGee argues that Evans’s testimony would have strongly supported
McGee’s trial testimony in a case that was otherwise a credibility contest.

¶22 We agree with the circuit court that McGee has not shown prejudice.
It correctly observed:

[Tracy] gave credible and compelling testimony that
[McGee] unlawfully entered her home, beat her in the face,
confined her without her consent and had non-consensual
sex with her under threat of the use of a dangerous weapon.
Her testimony was corroborated by the physical and
circumstantial evidence. In contrast, [McGee] offered
fantastical explanations for the evidence. [McGee] claimed
that he head-butted [Tracy] in the face in an act of self-
defense, leaving her with a broken nose and two black eyes,
and that what followed was a night of heavy passion, where
[Tracy], with one eye swollen shut and a nose she could not
breathe out of, performed oral sex on him before demanding
that [McGee] “make love to her like [he] never made love to
her before.” [McGee’s] description of the various sexual
positions he claims he got into with the severely battered
[Tracy] was over-the-top and in a word, bizarre. His claim
that he was then held at knifepoint for a second time by
[Tracy], still with her broken nose and one functioning eye,
was equally bizarre. And his testimony that the duct tape
was already hanging from the ceiling defies logic. All of this
testimony was capped off by [McGee’s] claim that while
making his rooftop escape to save his life, he paused to toss
the broken glass from the window behind him, and yet, he
did not report anything about this incident to the police.

There is no other reasonable conclusion to make
other than that [McGee] concocted this outlandish narrative
to explain away the obvious scene of a break-in and a violent
sexual assault. None of [McGee’s] postconviction claims
make his incredible tale any more believable, and therefore,
[McGee] has not shown that there is a reasonable probability
that but for counsel’s alleged errors, the result of the
proceeding would have been different.

¶23 Evans had no personal knowledge of the events, and her statements
that Tracy told her that she was going to “put something on” McGee do not strongly
corroborate McGee’s testimony regarding the details of the incident in light of the

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No. 2023AP844-CR

physical and circumstantial evidence. Accordingly, we agree with the circuit court
and the State that trial counsel was not ineffective for failing to follow up with
Evans.

CONCLUSION

¶24 We conclude that the circuit court properly denied without a hearing
McGee’s claims for postconviction relief based on prosecutorial misconduct and
ineffective assistance of counsel. We therefore affirm the judgment of conviction
and the order denying McGee’s postconviction motion.

By the Court.—Judgment and order affirmed.

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

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