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COURT OF APPEALS
NOTICE
DECISION
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.
December 10, 2009
A party may file with the Supreme Court a
David R. Schanker                                                                                                                         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.
                                                                                                                                          Cir. Ct. No.   2005CF500
Appeal No.                                                                2008AP2336-CR
STATE OF WISCONSIN                                                                                                                        IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
VALCUE O. SMITH,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for Dane
County:   DANIEL R. MOESER, Judge.   Affirmed.
Before Dykman, P.J., Vergeront and Bridge, JJ.
¶1                                                                        PER  CURIAM.    Valcue  Smith  appeals  from  a  judgment  of
conviction and an order denying his postconviction motion.   We affirm.




No.   2008AP2336-CR
¶2                                                                                     Smith was convicted of armed robbery after a trial.   The circuit court
denied his postconviction motion.
¶3                                                                                     Smith first argues that the prosecutor made an improper argument
during her closing rebuttal argument.   The reference in this argument to “family
business” is to testimony by a witness who testified that Smith had invited her to
join the “family business,” meaning robberies.   The prosecutor argued:
[Defense  counsel]  says  this  idea  of  a  family
business  is  ludicrous.                                                               Andre  Smith  has                                                         14   prior
convictions.    The  defendant  has  five  prior  convictions.
There’s something going on.   Keep that in mind that when
they testify, you get to use those prior convictions on their
credibility.   It’s one of the things it tells you.   So remember
that.
¶4                                                                                     Smith   argues   that   this   passage   was   improper   because   the
prosecutor’s argument falsely implied that some of Smith’s convictions were for
robberies as part of the  “family business.”    He also argues that this comment
violated long-standing law barring the jury’s use of convictions for any purpose
other than weighing credibility.   He argues that we should grant relief on theories
of plain error, ineffective assistance of counsel, or in the interest of justice.
¶5                                                                                     The State responds that the prosecutor’s remark properly informed
the jury that convictions could be used for credibility.   We agree.   Although the
passage does not start out well, by the end of the paragraph the prosecutor had
rehabilitated the remark to a correct description of what the convictions could be
used for, and thus the jury would not have understood the argument to be as Smith
suggests.
¶6                                                                                     Smith next argues that his counsel was ineffective by not making
sufficient use of additional evidence to undermine the credibility of two witnesses
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No.   2008AP2336-CR
for the State.   We apply the familiar test of deficient performance and prejudice
found in Strickland v. Washington, 466 U.S. 668, 687 (1984).   Without attempting
to describe that additional evidence here, we are satisfied that counsel was not
ineffective.    Although Smith appears to argue that the State’s case was based
mainly on these two witnesses, we note that the evidence also showed that Smith’s
uncle gave a statement to police saying that he committed the robbery with Smith,
and that the uncle had pled no contest to the crime.   Although the uncle denied at
trial  that  Smith  was  his  accomplice,  he  said  he  could  not  recall  the  actual
accomplice.   We are satisfied that despite counsel’s not having used the additional
evidence to undermine the other two witnesses counsel was not ineffective.
¶7                                                                                         Smith next argues that he should be retried due to newly discovered
evidence.   He argues that the new evidence is the testimony at his postconviction
hearing by one of the two witnesses we discussed above.   At the postconviction
hearing, she testified that her trial testimony was caused by threats and coercion by
a police detective.   We conclude that this evidence does not satisfy the test for
newly discovered evidence.    See State v. Simplot,  180 Wis.  2d  383,  411,  509
N.W.2d  338  (Ct.  App.                                                                    1993).                                                                The  circuit  court  found  her  postconviction
testimony to  be  incredible,  and therefore  it  is not reasonably probable  that  a
different result would be reached at a new trial.
¶8                                                                                         Smith next argues that the State improperly withheld exculpatory
evidence from discovery.   He argues that the evidence in question is that a police
detective met with one of the State witnesses and obtained a handwriting sample.
Smith argues that this evidence is exculpatory because it can be inferred from it
that the  detective  considered the witness a  suspect in the robbery Smith  was
convicted  of,  or  in  other  robberies.    However,  Smith  does  not  explain  what
connection a handwriting sample would have to this particular robbery.   He does
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No.   2008AP2336-CR
not suggest that any note  or  other  handwriting was involved in  this robbery.
Therefore, it does not appear to be exculpatory.
¶9                                                                                        Finally, Smith argues that, for the several reasons described above,
we should reverse in the interest of justice under WIS. STAT. § 752.35 (2007-08).1
However, having rejected all of those arguments, we see no basis to conclude that
reversal is warranted on this ground.
By the Court.—Judgment and order affirmed.
                                                                                          This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                 (b)5.
1  All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.
4

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