State v. Kayle Alan Fleischauer

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.
August 5, 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. 2022AP2037-CR Cir. Ct. No. 2018CF255

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KAYLE ALAN FLEISCHAUER,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for St. Croix County:
SCOTT R. NEEDHAM, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, 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. Kayle Fleischauer appeals an order denying his
postconviction motion in which he challenged his conviction for second-degree
No. 2022AP2037-CR

reckless homicide. Fleischauer argues that he is entitled to a new trial on the
grounds of ineffective assistance of counsel and newly discovered evidence.
Fleischauer contends that his trial counsel was constitutionally ineffective by
failing to object to the admission of evidence that Fleischauer stored all the guns
he owned in his home, by failing to object to the State’s references to the language
on the shirt Fleischauer wore on the night of the shooting, and by failing to
investigate and discover the victim’s alleged “preexisting injuries.” He also
argues that the alleged fact of the victim’s “preexisting injuries” constitutes newly
discovered evidence.

¶2 We conclude that Fleischauer fails to show that his trial counsel
performed deficiently and that the victim’s “preexisting injuries” constituted
newly discovered evidence. Accordingly, we affirm.

BACKGROUND

¶3 On April 17, 2018, the State charged Fleischauer with first-degree
intentional homicide and possession of a firearm by an out-of-state felon.1
According to the criminal complaint, Fleischauer fatally shot his son, Carter,2 in
Fleischauer’s home on April 14, 2018. The matter proceeded to a jury trial in June
2019, at which Fleischauer was found guilty of second-degree reckless homicide.
The circuit court, however, granted Fleischauer a new trial in August 2019 due to

1
The circuit court granted Fleischauer’s motion to sever the felon-in-possession charge,
and it found Fleischauer guilty of that charge based on stipulated facts in an October 2019 bench
trial. The felon-in-possession charge is not at issue in this appeal, and we do not address it
further.
2
Although not required by WIS. STAT. RULE 809.86 (2023-24), we refer to the homicide
victim and his sister using pseudonyms in this opinion. All references to the Wisconsin Statutes
are to the 2023-24 version.

2
No. 2022AP2037-CR

juror misconduct. An amended Information subsequently charged Fleischauer
with second-degree reckless homicide, by use of a dangerous weapon.

¶4 A seven-day jury trial subsequently took place between February
and March 2020. The State’s theory was that after a night of heavy drinking,
Fleischauer and Carter got into a physical fight. Fleischauer walked to his
bedroom, grabbed a gun from his nightstand, walked back to the kitchen, shot
Carter, and then walked back toward his bedroom and dropped the gun in the
hallway. The defense’s theory was that after a night of heavy drinking,
Fleischauer and Carter wrestled and then went to bed. Upon being unable to sleep,
Carter returned to the kitchen, grabbed the gun on top of the refrigerator, and
accidentally shot himself while seated on a stool, believing the gun was not
loaded.

¶5 According to Carter’s sister, Sophie, she and Carter went to
Fleischauer’s home on April 13, 2018, to help Fleischauer plan a celebration of
life for his father (their grandfather), who had recently passed away. During the
evening, Sophie, Carter and Fleischauer consumed alcohol and talked about
several matters. At one point, Fleischauer repeatedly told Carter that he needed to
“man up” because of an argument that Sophie had with one of her male friends.

¶6 The three also talked about guns that evening. Specifically,
Fleischauer talked about the guns he already owned and the guns he had just
inherited from his father. Fleischauer stated that he had a gun on top of his
refrigerator “[i]n the event an Iraqi came in the house.” Sophie testified that
Fleischauer did not tell her or Carter the type of gun that was on the refrigerator
and that Fleischauer did not show them the gun. During the evening, Sophie took

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No. 2022AP2037-CR

photographs of herself, Carter and Fleischauer, with the last one taken at 1:18 a.m.
on April 14, 2018.

¶7 After 1:21 a.m., Sophie went to bed downstairs while Carter and
Fleischauer remained upstairs. Sophie later awoke to the sound of movement and
yelling upstairs. She heard Carter yell, “I would never hit my father,” after which
she yelled to Carter to come to bed. Sophie then heard an “extremely loud” noise,
and she ran upstairs. When she reached the top of the stairs, Sophie found Carter
in the kitchen, lying on his back by himself and bleeding from his head.

¶8 Shortly thereafter, Fleischauer emerged from the hallway that led
from the kitchen to his bedroom. Sophie then called 911. Upon arriving, law
enforcement located a gun on the floor of the hallway that led into the kitchen,
approximately 10 to 15 feet away from Carter’s body. The gun was a Taurus
nine-millimeter semiautomatic handgun. An officer moved the gun to the kitchen
and placed it on top of the refrigerator for safety reasons. When he placed the gun
on the refrigerator, he noticed there was also a “BB or pellet-style gun” on top of
the refrigerator.

¶9 The medical examiner concluded that Carter’s cause of death was a
gunshot wound to the forehead. The fatal shot was fired by the Taurus handgun
that law enforcement found in the hallway. Carter also had several injuries on his
face and body, including petechiae,3 bruises, abrasions, contusions and cuts. He
also had a skull fracture that occurred around the same time as those injuries and

3
According to the medical examiner, “petechiae” are “little tiny bruises” that appear as
“tiny red freckles.”

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No. 2022AP2037-CR

prior to the gunshot wound. Fleischauer, on the other hand, only had a swollen
right hand and a mark on his back.

¶10 The medical examiner further determined that Carter’s death was a
homicide. The Taurus handgun was determined to have been fired from a distance
of five to nine inches from Carter’s forehead. On the other hand, Fleischauer’s
expert, also a medical examiner, testified that Carter’s death was an accident. He
also stated that Carter’s injuries could have occurred “seconds, minutes, or hours
before his death. Some of them conceivably up to a day.” He further stated that
while all of Carter’s injuries could have occurred at the same time, there was “no
medical basis to say that they did occur at the same time.”

¶11 Law enforcement found the Taurus handgun’s holster and magazine
in Fleischauer’s nightstand in his bedroom. Pursuant to a search warrant, law
enforcement subsequently found several other guns in Fleischauer’s bedroom and
in other parts of Fleischauer’s home.

¶12 Law enforcement also found the black shirt that Carter wore earlier
on the night of the shooting. The shirt had tears and holes along the neckline and
on the side. Carter was the source of blood found on the shirt. Law enforcement
also recovered a gray shirt that Fleischauer wore that night, which had “You’re
killing me, Smalls” written on the front. Carter’s blood and DNA were on the
shirt.

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No. 2022AP2037-CR

¶13 The jury found Fleischauer guilty of second-degree reckless
homicide.4 The circuit court subsequently imposed consecutive sentences totaling
22 years of initial confinement followed by 15 years of extended supervision.

¶14 Fleischauer moved for postconviction relief, seeking a new trial on
the grounds of ineffective assistance of counsel and newly discovered evidence.
Fleischauer argued that his trial counsel was ineffective by failing to object to the
admission of evidence that he stored all the guns that he owned as inadmissible
other-acts and habit evidence, by failing to object to the prosecutor’s reference to
the language “You’re killing me, Smalls” in his closing argument, and by failing
to investigate and discover Carter’s “preexisting injuries” from the day before the
shooting. Fleischauer also argued that the fact of Carter’s “preexisting injuries”
constituted newly discovered evidence.

¶15 The circuit court held a Machner5 hearing, at which Fleischauer’s
trial counsel testified. Following the hearing, the court issued a written decision
denying Fleischauer’s motion. The court concluded that trial counsel was not
ineffective and that Fleischauer’s newly discovered evidence claim was meritless.
Fleischauer appeals. Additional facts will be provided below.

4
The question of whether Fleischauer committed the homicide with the use of a
dangerous weapon was not submitted to the jury but was instead submitted to the circuit court.
The court determined that Fleischauer committed second-degree reckless homicide with the use
of a dangerous weapon.
5
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

6
No. 2022AP2037-CR

DISCUSSION

¶16 On appeal, Fleischauer raises the same arguments that he did in his
postconviction motion regarding ineffective assistance of counsel and newly
discovered evidence. An ineffective assistance of counsel claim presents a mixed
question of fact and law. State v. Alexander, 2015 WI 6, ¶15, 360 Wis. 2d 292,
858 N.W.2d 662. The circuit court’s factual findings regarding trial counsel’s
conduct and strategy will be upheld unless they are clearly erroneous. State v.
Gutierrez, 2020 WI 52, ¶19, 391 Wis. 2d 799, 943 N.W.2d 870. Whether
counsel’s performance was deficient and whether the defendant was prejudiced by
that deficient performance are questions of law that we review independently.
Alexander, 360 Wis. 2d 292, ¶15.

¶17 A circuit court’s decision to deny a motion for a new trial on the
ground of newly discovered evidence is a discretionary decision, which we review
for an erroneous exercise of discretion. State v. Avery, 2013 WI 13, ¶22, 345
Wis. 2d 407, 826 N.W.2d 60. However, whether there is a reasonable probability
that a jury would have had a reasonable doubt as to the defendant’s guilt is a
question of law that we review independently. State v. Plude, 2008 WI 58, ¶33,
310 Wis. 2d 28, 750 N.W.2d 42.

I. Ineffective Assistance of Trial Counsel

¶18 An ineffective assistance of counsel claim requires a defendant to
show both that his or her counsel’s performance was deficient and that the
deficient performance was prejudicial. State v. Balliette, 2011 WI 79, ¶21, 336
Wis. 2d 358, 805 N.W.2d 334. Counsel’s performance is deficient when his or her
representation falls below an objective standard of reasonableness considering all
the circumstances. Strickland v. Washington, 466 U.S. 668, 688 (1984). We

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No. 2022AP2037-CR

strongly presume that counsel’s conduct “falls within the wide range of reasonable
professional assistance,” id. at 689, and we give counsel’s decisions in choosing
trial strategy great deference, Balliette, 336 Wis. 2d 358, ¶26.

¶19 Counsel’s deficient performance is prejudicial if “there is 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 means “a probability sufficient to undermine confidence in
the outcome.” Id. The defendant “need not prove the outcome would ‘more likely
than not’ be different in order to establish prejudice.” State v. Sholar, 2018 WI
53, ¶44, 381 Wis. 2d 560, 912 N.W.2d 89 (citation omitted). “Our concern is
whether [counsel’s] error rendered the trial unfair and unreliable.” Id., ¶33. We
need not address both deficient performance and prejudice if the defendant fails to
make a sufficient showing on one of those elements. State v. Mayo, 2007 WI 78,
¶61, 301 Wis. 2d 642, 734 N.W.2d 115.

¶20 Fleischauer argues that his trial counsel was constitutionally
ineffective for three reasons. First, he contends that his trial counsel failed to
object to the admission of evidence that he stored all the guns that he owned in his
home as either insufficiently founded habit evidence or improper other-acts
evidence, resulting in the admission of improper character evidence. Second,
Fleischauer contends that his trial counsel failed to object to the prejudicial effect
of the prosecutor’s continued reference to the language “You’re killing me,
Smalls” on the shirt that Fleischauer wore on the night of the shooting. Third,
Fleischauer contends that his trial counsel failed to investigate and discover
Carter’s “preexisting injuries” from playing basketball on the day before he visited
Fleischauer.

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No. 2022AP2037-CR

¶21 As we explain below, Fleischauer fails to show that his trial counsel
performed deficiently in any of the ways he alleges. Thus, we need not address
the prejudice element. See id.

A. The Evidence of Other Guns in Fleischauer’s Home

¶22 Prior to trial, Fleischauer moved to prohibit the State from
presenting evidence of the other guns that law enforcement found in his home,
arguing that they were not relevant and that the evidence was being presented to
prejudice Fleischauer and confuse the issues. The State argued that it sought to
present the guns to show that the Taurus handgun was not on top of the
refrigerator because none of the other guns Fleischauer owned were in a place in
which they would be accessible to anyone walking into the house. The circuit
court reserved ruling on the issue, but it ordered the State not to show the guns at
trial until it made its ruling.

¶23 When the issue arose at trial, the State characterized the evidence as
that of Fleischauer’s regular habit and practice of storing guns, in order to show
that the Taurus handgun used to shoot Carter was also stored and not sitting on top
of the refrigerator. The circuit court allowed the State to present the guns but
ruled that it could show only photographs of the guns instead of the guns
themselves. Using photographs, the State introduced evidence of the other guns
found in Fleischauer’s bedroom and the office across from the bedroom.

¶24 At the Machner hearing, trial counsel testified that he did not recall
any testimony relating to Fleischauer’s habit of storing his guns, but he did not
believe that the evidence was habit evidence. Rather, counsel believed that
evidence of the other guns was “inextricably intertwined with the case”—i.e.,
panorama evidence. Counsel further testified that the evidence that Fleischauer

9
No. 2022AP2037-CR

stored all the guns he owned was part of both the State’s and the defense’s case
theories. Specifically, counsel testified that Fleischauer lived in an area where it
was “not unusual to have a pistol someplace … in case there’s a break-in. And
that’s … what he told his kids that night, I have a pistol on the refrigerator.” He
also noted that the guns were part of the State’s case to show that the Taurus
handgun was not sitting on top of the refrigerator.

¶25 Fleischauer argues that there was no foundation to establish a habit
because there was no evidence presented that Fleischauer was the one who stored
the weapons in his home or that it would have been his habit to do so.
Specifically, Fleischauer contends that there was no testimony “attributing the
location and condition of the weapons as [Fleischauer’s] exclusive doing.” For
this reason, Fleischauer asserts that evidence that he stored all his guns in his
home was inadmissible character evidence and offered to show that Fleischauer
“is the sort of person who carries deadly weapons.” Because trial counsel knew
that the evidence was not habit evidence, Fleischauer argues that his trial counsel
was deficient in failing to object to the admission of that evidence, that counsel’s
belief that the evidence was panorama evidence is “unpersuasive and
unsupported,” and that counsel offered no strategic reason for not objecting to the
admission of the evidence.

¶26 Evidence must be relevant to be admissible. See WIS. STAT.
§ 904.02. Evidence is relevant when it tends “to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” WIS. STAT. § 904.01. Relevant
evidence may be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
WIS. STAT. § 904.03. Habit evidence, “whether corroborated or not and regardless

10
No. 2022AP2037-CR

of the presence of eyewitnesses, is relevant to prove that the conduct of the
person … on a particular occasion was in conformity with the habit.” WIS. STAT.
§ 904.06(1).

¶27 With certain exceptions, character evidence is generally inadmissible
to show that “the person acted in conformity therewith on a particular occasion.”
WIS. STAT. § 904.04. One exception to this rule is other-acts evidence, which is
allowed for certain purposes provided in the statute. See § 904.04(2); see also
State v. Dukes, 2007 WI App 175, ¶28, 303 Wis. 2d 208, 736 N.W.2d 515.
Evidence, however, is not other-acts evidence “if it is part of the panorama of
evidence needed to completely describe the crime that occurred and is thereby
inextricably intertwined with the crime.” Dukes, 303 Wis. 2d 208, ¶28.

¶28 Here, trial counsel did not perform deficiently by failing to object to
evidence that Fleischauer stored all the guns he owned in his home as improper
character evidence. The evidence was part of the “panorama of evidence” because
it bolstered both the State’s and the defense’s case theories, and it provided
context for the shooting. For the State, the evidence tended to show that
Fleischauer stored the Taurus handgun in the nightstand in his bedroom, where
law enforcement found the gun’s holster and magazine, and supported its theory
that Fleischauer walked to his bedroom to remove the Taurus handgun from its
holster in his nightstand. It further refuted the defense theory that the gun was
already located on top of the refrigerator. For the defense, the evidence tended to
show that Fleischauer owned several guns, much like other people in the area, and
that he kept one of them on top of the refrigerator for protection, as he informed
his children that night.

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No. 2022AP2037-CR

¶29 Moreover, the evidence that Fleischauer stored all his guns provided
context for the shooting, as Sophie testified that she, Fleischauer and Carter
discussed guns on the night of the shooting. She also testified that Fleischauer
talked about owning several guns, inheriting guns from his deceased father, and
having “a gun” on top of the refrigerator. In addition, and contrary to
Fleischauer’s contention, Sophie’s testimony and the guns that law enforcement
found in Fleischauer’s home—including in his bedroom—are evidence that
Fleischauer, and no one else, was the one who stored the guns in his home.

¶30 Given that the evidence that Fleischauer stored all his guns in his
home impacted both the State’s and the defense’s case theories and provided
context for the offense, the evidence was inextricably intertwined with the case.
The evidence was therefore relevant panorama evidence and not improper
character evidence. Furthermore, counsel successfully reduced any prejudicial
effect of such evidence, to which he initially objected on that ground, by obtaining
a ruling that limited the State to showing the jury photographs of the guns rather
than the guns themselves. Given trial counsel’s accurate belief that evidence that
Fleischauer stored his guns in his home was panorama evidence, counsel’s
decision not to object to the admission of that evidence as insufficiently founded
habit evidence was reasonable and not deficient performance.6

6
Fleischauer also argues that his trial counsel failed to request a jury instruction on habit
evidence. He asserts that without the proper jury instruction, “jurors were unaware of their role in
deciding whether the evidence of the guns constituted Mr. Fleischauer’s habit” and “were left to
assume that the State’s unchecked characterization of the other guns as Mr. Fleischauer’s habit
was correct.” Counsel was not deficient by failing to request the instruction, given that the
evidence was panorama evidence and the purpose for which the State wished to use the evidence
was clear. No instruction was needed.

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No. 2022AP2037-CR

¶31 For the same reason, trial counsel was not deficient by failing to
object to the evidence as inadmissible other-acts evidence, as Fleischauer
contends. Fleischauer argues that counsel’s failure to object to the evidence
allowed the State “to portray Fleischauer as a gun-toting, careless individual,”
strengthening its theory that Fleischauer “was easily angered and even dangerous.”
As explained above, however, evidence that Fleischauer stored his guns in his
home was part of the panorama of evidence needed to describe the offense and
was inextricably intertwined with the offense because it impacted both the State’s
and the defense’s theories of what occurred on the night of the shooting and
provided context for what occurred that night. The evidence was not offered to
portray Fleischauer in a certain way. Moreover, Fleischauer never claimed that he
did not store the guns in the manner stated. In all, Fleischauer’s counsel did not
perform deficiently in this regard.

B. The Prosecutor’s Reference to “You’re killing me, Smalls”

¶32 Fleischauer next argues that his “trial counsel failed to object to the
prejudicial effect of the [prosecutor’s] continual reference to” the language
“You’re killing me, Smalls” on the shirt that Fleischauer wore on the night of the
shooting. Fleischauer contends that the prosecutor “consistently and
systematically elicit[ed] the statement[] on the shirt” and attributed the statement
to Fleischauer in the prosecutor’s opening statement, throughout trial testimony,
and during his closing argument. By doing so, Fleischauer asserts that the
prosecutor “arguably ascribe[d] a motive to kill upon Fleischauer as denoted by
[the] messaging upon his shirt.”

¶33 In their opening statements, both the prosecutor and defense counsel
referenced Fleischauer’s shirt. The prosecutor referenced the shirt and its

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No. 2022AP2037-CR

language when describing where it was found and stating that it had Carter’s blood
on it. Defense counsel stated that the language on the shirt was from a movie
about baseball and not from anything violent. During the trial, Sophie testified
that Fleischauer was wearing the shirt in the photograph that she took of him on
the night of the shooting and that he was wearing the same shirt in a photograph
that she had taken of Carter and Fleischauer when Carter had started college. The
State also presented Fleischauer’s and Carter’s shirts to the jury and showed it
photographs of Fleischauer’s shirt.

¶34 In their closing statements, both the prosecutor and defense counsel
again referenced the shirt and its language. The prosecutor referred to both
Carter’s and Fleischauer’s shirts:

[Y]ou can see with your own eyes the blood on the front of
that shirt, the blood on the back of [Carter’s] shirt. It’s
torn, ripped, it’s torn up the side, torn around the collar.
[Carter] was in a fight. [Carter] lost.

Let’s see who won. You’re killing me, Smalls.
[Carter’s] blood. Not even [Fleischauer’s] own DNA on
his own shirt, and somehow no DNA means he didn’t shoot
[Carter]. Really? Really?… But other than those two
holes, no damage to that shirt, except [Carter’s] blood all
over it.

In response, defense counsel referred to the time that Fleischauer took Carter to
college: “He’s up there with his son, with his arms around him. With the same
shirt on. ‘You’re killing me, Smalls.’ What does it—right below, it says
‘Sandlot,’ which is a movie. So, shirt from a movie.”

¶35 At the Machner hearing, Fleischauer’s trial counsel recalled that the
prosecutor referenced the language on the shirt in his closing argument, but that
there was not a reference to the movie from which the language came during the
trial. As to why he did not object to the prosecutor’s reference to the language,

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No. 2022AP2037-CR

counsel explained: “[T]his T-shirt thing, I figured at least somebody on the jury
would realize where it came from. It’s not some act of violence, and would think
that [the prosecutor] was grasping for straws.” In concluding that counsel was not
ineffective for failing to object to the language, the circuit court found that counsel
made a strategic decision not to object because counsel thought the prosecutor
“looked silly making [the reference] and was grasping at straws.”

¶36 We agree. Trial counsel did not perform deficiently by failing to
object to the prosecutor’s reference to the language “You’re killing me, Smalls.”
“Counsel is allowed considerable latitude in closing arguments,” and the
prosecutor’s reference fell within that wide latitude. See State v. Bell, 2018 WI
28, ¶39, 380 Wis. 2d 616, 909 N.W.2d 750 (citation omitted). “A ‘prosecutor may
comment on the evidence, detail the evidence, argue from it to a conclusion and
state that the evidence convinces him [or her] and should convince the jurors.’”
Id. (citation omitted). A prosecutor’s comment is improper if the comment “so
infected the trial with unfairness as to make the resulting conviction a denial of
due process.” See id., ¶40 (citation omitted).

¶37 Here, the prosecutor pointed to the two shirts presented to the jury,
emphasized the difference between the shirts, and explained how he believed that
difference supported the State’s theory that Carter and Fleischauer were fighting
and not wrestling. As the State notes, the reference to the language on the shirt
was the prosecutor pointing out a “tragic irony”: Fleischauer “was wearing a shirt
that read, ‘You’re killing me, Smalls’ while pummeling his son and inflicting
significant injuries in a decidedly one-sided fight, leaving his deceased son’s blood
and DNA all over the shirt.” Trial counsel made a reasonable strategic decision
not to object and, rather, responded in his closing by reminding the jury that the

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No. 2022AP2037-CR

language on the shirt came from a movie and that Fleischauer wore the same shirt
on a less tragic occasion.

¶38 There was nothing improper about the prosecutor’s reference to the
language on the shirt, given that he was arguing that the jury should reach a certain
conclusion regarding that evidence. Fleischauer’s trial counsel made a reasonable
decision not to object and reasonably responded to the prosecutor’s argument.
Therefore, counsel did not perform deficiently.

C. The “Preexisting” Injuries

¶39 Fleischauer also argues that his trial counsel was ineffective by
failing to investigate and discover Carter’s “preexisting injuries.” At sentencing,
Carter’s mother mentioned that the night before Carter and Sophie visited
Fleischauer, Carter had played basketball for three hours and was sore. Given that
the timing of the injuries that Carter sustained prior to the gunshot wound “was
critical in accepting the State’s narrative of events,” Fleischauer contends that
Carter could have sustained those injuries when he played basketball the night
before he visited Fleischauer.

¶40 At the Machner hearing, trial counsel testified that he reviewed all
the discovery he received from the State and that, prior to the sentencing, there had
not been any reference to Carter’s soreness or injuries before the altercation.
Counsel also explained that he had a second medical examiner determine whether
the State’s medical examiner was accurate in saying that the skull fracture was not
a result of the gunshot wound. He believed it would have been relevant to
establish that Carter fractured his skull prior to visiting Fleischauer because the
fact that a skull fracture was identified hurt the defense.

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No. 2022AP2037-CR

¶41 Trial counsel further testified that he would not have changed his
theory of defense if he had known Carter was sore from playing basketball
because “arguing that he was sore from a basketball game, which is entirely
different from the injuries that he had, the jury would probably think I was a little
off. I wouldn’t argue that. It would be an unreasonable argument, in my mind.”
Counsel also noted that “wrestling bruises are substantially different than being
sore from playing basketball,” adding that “you won’t fracture your skull in a
basketball game. And if you do, usually you go to the hospital. So, … I don’t see
where having him playing basketball the night before would be important.”
Counsel further noted that Carter did not have any visible injuries in the
photographs that Sophie took on the night of the shooting.

¶42 We conclude that trial counsel did not perform deficiently by failing
to investigate the purported “preexisting injuries” because there were no such
injuries and, accordingly, had counsel investigated, he would have discovered
them if they existed. As counsel put it, there is a substantial difference between
soreness from playing basketball and injuries sustained from a physical fight. In
reviewing discovery and consulting an expert, counsel found no evidence of
injuries to Carter prior to him arriving at Fleischauer’s home because there were
none to discover. To argue that Carter’s injuries could have resulted from playing
basketball is, as the circuit court put it, an unreasonable “leap of logic.”7

7
Fleischauer additionally argues that his trial counsel’s three alleged errors, taken
together, “support a reasonable inference of a differen[t] result.” Because Fleischauer has failed
to show his trial counsel performed deficiently on any of the grounds he alleges, we reject his
aggregate prejudice claim. See State v. Thiel, 2003 WI 111, ¶¶60-61, 264 Wis. 2d 571, 665
N.W.2d 305 (explaining that while a court “may aggregate the effects of multiple incidents of
deficient performance” when determining prejudice, a defendant “may not simply present a
laundry list of mistakes by counsel and expect to be awarded a new trial”).

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No. 2022AP2037-CR

II. Newly Discovered Evidence

¶43 Finally, Fleischauer argues that the fact that Carter was sore from
playing basketball the night before he visited Fleischauer is newly discovered
evidence that warrants a new trial. When moving for a new trial based on newly
discovered evidence, a defendant must show, by clear and convincing evidence,
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.” Avery, 345 Wis. 2d 407, ¶25
(citation omitted). If the defendant makes this showing, the circuit court must
determine whether there is a reasonable probability that a different outcome would
be reached at trial. Id. A reasonable probability of a different outcome “exists if
there is a reasonable probability that a jury, looking at both the old and the new
evidence, would have a reasonable doubt as to the defendant’s guilt.” Id.

¶44 Fleischauer contends that evidence that Carter was sore from playing
basketball was material because the State intended to prove that a fight occurred
between Carter and Fleischauer. Fleischauer asserts that Carter’s injuries thus “act
as circumstantial evidence that an altercation occurred” and that the timing of
those injuries is “equally material to the plausibility of the State’s narrative.”
Fleischauer concludes that any evidence that tends to establish that some, if not
all, of Carter’s injuries occurred before he arrived at Fleischauer’s house is
“necessarily material.”

¶45 As explained above, however, soreness from playing basketball is
substantially different from injuries sustained in a physical fight. The photographs
that Sophie took on the night of the shooting do not show Carter with any
noticeable injuries, and there was no testimony that Sophie, Carter and Fleischauer

18
No. 2022AP2037-CR

discussed any injuries to Carter that night. Given the extent of Carter’s injuries
following the shooting, which included a fractured skull, Fleischauer cannot show
that Carter’s soreness from playing basketball served as a reasonable explanation
for the injuries he sustained on the night of the shooting. Because Fleischauer
cannot show that Carter’s “preexisting injuries” were material to establishing
when the injuries occurred, those “injuries” did not constitute newly discovered
evidence.

By the Court.—Order affirmed.

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

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