Background
Jereme Newton was charged in Brown County with first-degree reckless homicide as a party to a crime, obstructing an officer, and four counts of bail jumping, all as a repeater. The charges arose from allegations that a victim fatally overdosed after using heroin Newton supplied. The medical examiner concluded the victim died from acute intoxication due to the combined effects of heroin, methamphetamine, gabapentin, and clonazepam. At trial, the State’s theory was that a middleman named Rene Puente arranged the transaction in exchange for money and a small quantity of heroin for personal use, while Newton was the supplier.
During the jury instruction conference, the State introduced an updated pattern jury instruction for Wis. Stat. § 940.02(2)(a) — approved by the Criminal Jury Instructions Committee but not yet publicly available — which clarified that the controlled substance need only be a “substantial factor” in causing death, not the sole or primary cause, and that there may be more than one cause of death. Defense counsel objected, arguing the instruction had not been shared in advance and that her defense strategy had been premised on arguing that other drugs, not the heroin Newton allegedly supplied, caused the death. The court allowed the updated instruction, after which defense counsel elected not to call her expert witness. The jury convicted Newton on all counts.
Newton filed a postconviction motion alleging constitutionally ineffective assistance of counsel on four grounds. The circuit court held a Machner hearing, credited defense counsel’s testimony, and denied relief. Newton appealed.
The Court’s Holding
The Court of Appeals affirmed the judgment of conviction and the order denying postconviction relief. On the jury instruction claim, the court found Newton failed to demonstrate prejudice: he did not show that defense counsel’s alleged lack of prior knowledge of the updated “substantial factor” language would have yielded a different outcome, particularly given that counsel’s primary theory — that Newton never delivered heroin at all — was unaffected by the instruction. On the leading-questions claim, the court held that Newton forfeited the issue by failing to develop an adequate Machner record; counsel was never questioned about her specific decisions at trial, making it impossible to distinguish incompetence from deliberate strategy.
On the failure to file an other-acts motion to introduce evidence that Puente had previously supplied the victim with heroin, the court found no prejudice because the jury was already well aware of Puente’s role as middleman, and the State’s evidence linking Newton to the fatal delivery was overwhelming. On the final claim — that counsel failed to elicit testimony about the weight of heroin recovered at the crime scene — the court again found no prejudice. Although the discrepancy between Puente’s estimate of what was delivered and the lab-reported weight was highlighted in closing argument, it bore only on Puente’s credibility as to quantity and did not undermine the State’s core case that Newton supplied the only heroin the victim used that night.
The court resolved all four claims on the prejudice prong without needing to definitively resolve whether counsel’s performance was deficient in each instance, applying the principle that failure on either Strickland prong is fatal to an ineffective-assistance claim.
Key Takeaways
- Wisconsin’s updated jury instruction for first-degree reckless homicide (WIS JI—CRIMINAL 1021 (2024)) expressly states that the delivered controlled substance need only be a “substantial factor” — not the sole or primary factor — in causing death, and that there may be more than one cause of death.
- An ineffective-assistance claim based on failure to object to leading questions requires a developed Machner record in which trial counsel is examined about the specific instances at issue; general testimony about counsel’s usual practice is insufficient to establish deficient performance.
- To demonstrate prejudice from counsel’s alleged errors, a defendant must affirmatively explain how the error affected the outcome — vague assertions that an alternative defense was “viable” will not suffice.
- Unpublished Wisconsin Court of Appeals per curiam opinions may not be cited as precedent except for the limited purposes set out in Wis. Stat. Rule 809.23(3).
Why It Matters
The decision illustrates how the updated Wisconsin pattern jury instruction for drug-delivery homicide forecloses “concurrent cause” defenses premised on the argument that other substances — rather than the defendant’s drugs — were the true cause of death. Defense attorneys handling these cases must now account from the outset for the “substantial factor” clarification and structure expert testimony and trial strategy accordingly, rather than waiting to see which instruction the court will use.
The case also reinforces the procedural rigor required to preserve ineffective-assistance claims in Wisconsin. Defendants who fail to pin down trial counsel’s specific reasoning at the Machner hearing — whether on objection decisions, pretrial motion choices, or evidentiary strategy — risk having those claims resolved against them based on the strong presumption that counsel acted within the range of reasonable professional assistance.