COURT OF APPEALS DECISION DATED AND RELEASED February 18, 1997 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0643-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Michael D. Sarnowski,
Jr.
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: VICTOR MANIAN, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Michael D. Sarnowski, Jr. appeals from a
judgment of conviction for physical abuse of a child and from an order denying
his motion for postconviction relief.
Sarnowski argues that the evidence was insufficient to support the
jury's guilty verdict. Sarnowski also
claims that he received ineffective assistance of counsel when his trial
counsel allegedly failed to:
(1) investigate and formulate a “proper theory of defense” by
presenting a more effective expert witness; and (2) call him as a witness
in his own defense. We reject
Sarnowski's arguments and, accordingly, we affirm.
I. BACKGROUND
On March 10, 1993,
Brittany B., while under the care and supervision of her uncle, Michael
Sarnowski, incurred injuries which left her with a perforated eardrum and
permanent hearing loss. Following an
investigation into the cause of Brittany's injuries, Sarnowski was charged with
physical abuse of a child, contrary to § 948.03(2)(c), Stats. After a
five-day trial, the jury convicted Sarnowski.
The court sentenced him to the maximum term of ten years'
imprisonment. Sarnowski then filed a
postconviction motion alleging that he received ineffective assistance of
counsel. After a Machner[1]
hearing, the trial court denied Sarnowski's motion concluding that Sarnowski's trial
counsel was not ineffective.
II. SUFFICIENCY OF THE EVIDENCE CLAIM
Sarnowski first argues
that the evidence was insufficient to support the jury's guilty verdict. We disagree.
The rules governing
appellate review of the sufficiency of evidence to support a conviction are
well-established.
[I]n
reviewing the sufficiency of the evidence to support a conviction, an appellate
court may not substitute its judgment for that of the trier of fact unless the
evidence, viewed most favorably to the state and the conviction, is so lacking
in probative value and force that no trier of fact, acting reasonably, could
have found guilt beyond a reasonable doubt.
If any possibility exists that the trier of fact could have drawn the
appropriate inferences from the evidence adduced at trial to find the requisite
guilt, an appellate court may not overturn a verdict even if it believes that
the trier of fact should not have found guilt based on the evidence before it.
State
v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990)
(citations omitted). We employ this
standard for reviewing a challenge to the sufficiency of the evidence
regardless of whether the evidence presented at trial was direct or
circumstantial. Id. at
503, 451 N.W.2d at 756. We will not
substitute our judgment for that of the trier of fact unless the fact-finder
relied on evidence that was “inherently or patently incredible—that kind of
evidence which conflicts with the laws of nature or with fully-established or
conceded facts.” State v.
Tarantino, 157 Wis.2d 199, 218, 458 N.W.2d 582, 590 (Ct. App. 1990).
The jury clearly had
sufficient evidence upon which to find Sarnowski guilty. Testimony established that Sarnowski was the
only person who had the opportunity to inflict injury on the child. The victim's mother, Sandra B., testified
that when she left the apartment at 5:45 p.m. on March 10, Brittany was
sleeping and nothing was wrong with her ear.
Robert Petrie, the first person to babysit for Brittany that evening,
testified that nothing was wrong with the child when he left her alone with
Sarnowski at 7:00 p.m. Minutes later,
however, something was terribly wrong with Brittany. Lisa Sarnowski, the defendant's wife, testified that when
Sarnowski returned to their apartment at approximately 7:15 p.m., Brittany was
crying inconsolably and had a green substance coming out of her ear. From this evidence, the jury could have
reasonably concluded that Brittany was injured while she was alone with
Sarnowski.
The jury also heard
testimony about a previous injury Brittany had suffered while in Sarnowski's
care. Sandra B. testified that when she
left Brittany alone with Sarnowski a few months earlier, she returned to find
her with a hand print and scratches on her face. Sarnowski subsequently admitted responsibility, but claimed the
injuries were accidental.
Sandra B. testified that
as a result of that first incident, she no longer trusted Sarnowski and refused
to leave Brittany alone with him.
Consequently, on the evening of March 10, 1993, Sandra B. specifically
requested that her aunt, Lisa Sarnowski, come downstairs and watch Brittany
after Robert Petrie departed. Michael
Sarnowski, however, volunteered to babysit that evening and even came
downstairs earlier than necessary to do so.
Thus the jury could have inferred that he was looking for another
opportunity to be alone with Brittany so he could hurt her.
Dr. Conley, an expert in
pediatric otorhinolaryngology, testified that Brittany suffered serious burns
that destroyed 95% of her right eardrum and caused a 50% hearing loss in her
right ear. Dr. Conley stated that
Brittany's injuries were caused by a caustic chemical poured directly into her
ear canal, not by an accident or an ear infection.
Additional evidence also
strongly suggested that Sarnowski poured a caustic chemical into Brittany's
ear. The investigation revealed that
the clothing Brittany was wearing the night she was injured was stained on the
neck and front areas by sulfuric acid with a pH of two. When the investigating officers searched the
victim's residence, they found no products containing sulfuric acid. Shortly after Brittany was injured, however,
her father found a bottle of drain cleaner on a shelf in Sarnowski's side of
the shared basement. Only a small
amount of the liquid was missing from the bottle; the drain cleaner contained
sulfuric acid.
Based on this evidence,
the jury, acting reasonably, could have concluded beyond a reasonable doubt
that Sarnowski intentionally caused great bodily harm to Brittany B. The evidence was sufficient.
III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Sarnowski next argues
that his trial counsel was ineffective.
To demonstrate ineffective assistance of counsel, a defendant must show
that counsel's performance was deficient and that the deficiency prejudiced the
defense. State v. Moffett,
147 Wis.2d 343, 352, 433 N.W.2d 572, 575 (1989). Whether counsel's performance was deficient and prejudicial are
questions of law, which we review de novo. State v. Johnson, 153 Wis.2d 121, 128, 449 N.W.2d
845, 848 (1990). We need not address
both the deficient performance and prejudice prongs if the defendant fails to
make a sufficient showing regarding one of them. Strickland v. Washington, 466 U.S. 668, 697
(1984). In deciding an
ineffective-assistance-of-counsel claim, the trial court “must judge the
reasonableness of counsel's challenged conduct on the facts of the particular
case, viewed as of the time of counsel's conduct.” Id. at 690.
At the postconviction hearing on the claim, the trial court is the
ultimate arbiter of the credibility of trial counsel and all other
witnesses. See Dejmal v. Merta,
95 Wis.2d 141, 152, 289 N.W.2d 813, 818 (1980). We will reverse a trial court's findings of fact only if they are
“clearly erroneous.” Pitsch
at 634, 369 N.W.2d at 714.
A. Investigation and Preparation for Trial
Sarnowski argues that
counsel failed to adequately investigate and formulate a “proper theory of
defense” for trial. He contends that
counsel was deficient for failing to locate an expert witness who could counter
the opinion of the State's medical expert.
Sarnowski also claims that counsel's performance was deficient because
counsel agreed “that the child was injured by the application of some acidic or
caustic substance to its ear.” Thus,
Sarnowski concludes, “trial counsel conceded the prosecution's theory of the
case, leaving the jury with no alternative but to find him guilty.”
Denying Sarnowski's
postconviction motion, the trial court found that defense counsel's
“performance ... was above an objective standard of reasonableness. Counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable, professional judgment
on the basis of the information that he had at the time and on the posture of
the case.” We agree.
According to his
testimony at the Machner hearing, counsel hired an investigator,
consulted with several medical experts, and regularly communicated with
Sarnowski. He also explained how and
why he selected the particular defense strategy. As the trial court stated in its findings:
[Defense counsel] testified ... that
their strategy was that this case was a caustic substance case[,] but the
defendant was not the one who did, [or] if [he] was, it ... was an accident.
....
[The]
defense was oriented around how that material got in the child's ear since the
defendant denied that he placed it there, and the focus was going to be that it
was probably the result of an accident somehow, particularly involving the
washcloth that might have been used to wipe the child's ear.
To bolster this theory
and to counter the opinion offered by the State's expert, defense counsel
called Dr. Thomas Schneider, Director of St. Mary's Hospital Burn Center. Dr. Schneider testified that although he agreed
that a caustic substance came in contact with Brittany's outer ear, he did not
believe that this substance was poured into her ear canal. Dr. Schneider testified that he believed an
infection caused the perforated eardrum.
At the postconviction
hearing, Sarnowski's appellate counsel called Dr. Frederick Horwitz who, like
Dr. Schneider, opined that the perforated eardrum was caused by an ear
infection. Dr. Horwitz's opinion
differed from Dr. Schneider's only in that he dismissed caustic chemicals as the
cause of the outer ear abrasions. Dr.
Horwitz's opinion was based on his assumption that it would be impossible to
pour a caustic chemical into a child's ear without dripping it “all over” the
child. In offering this opinion,
however, Dr. Horwitz apparently was unaware that traces of sulfuric acid were
found on Brittany's clothing.
As the trial court
explained in denying Sarnowski's motion, Dr. Horwitz's postconviction hearing
testimony was not very different from Dr. Schneider's trial testimony. Both physicians believed the perforated eardrum
was caused by an ear infection, not by a chemical burn. Their opinions differed only on the cause of
the external ear injury.
Defense counsel is not
required to dilute a chosen defense by presenting alternative theories as
well. See Kain v. State, 48
Wis.2d 212, 221, 179 N.W.2d 777, 783 (1970).
The theory of defense selected by trial counsel need not be the one
which looks best either to appellate counsel or to the reviewing court. See State v. Felton,
110 Wis.2d 485, 501-02, 329 N.W.2d 161, 168 (1983). Defense counsel's performance is not measured by the success of
the defense strategy; the fact that the strategy did not work does not mean
counsel was ineffective for selecting it.
State v. Teynor, 141 Wis.2d 187, 212, 414 N.W.2d 76, 85
(Ct. App. 1987).
Here, counsel's failure
to find an expert to testify that Brittany's injuries were not caused by a
chemical substance was not deficient performance. In the first place, such testimony would have conflicted with Sarnowski's
chosen theory of defense. In the second
place, such testimony would not have been credible in light of the testimony of
three experts—the State's pediatric ear specialist, a dermatologist consulted
by the State's expert, and Sarnowski's own expert, Dr. Schneider—who all stated
that a caustic chemical was involved in injuring Brittany. Thus counsel's performance in locating
experts and selecting a defense strategy was not deficient.
B. Defendant's Right to Testify
Finally, Sarnowski
argues that counsel was ineffective because he did not call him to testify and,
further, that counsel's conduct denied him his constitutional right to
testify. Sarnowski points out that in
trial counsel's opening statement he promised the jury that Sarnowski would
testify. Thus, he claims,“the jury had
an expectation that [he] would testify and present his version of what
happened.” Denying Sarnowski's
postconviction motion, the trial court concluded that: (1) counsel reasonably advised his
client not to testify; and (2) Sarnowski knowingly and voluntarily waived
this right.[2]
A defendant's right to
testify is fundamental. State v.
Simpson, 185 Wis.2d 772, 778, 519 N.W.2d 662, 663 (Ct. App. 1994). We recognize, however, that a defendant may
waive the right to testify. Id.
at 778, 519 N.W.2d at 664. To determine
whether Sarnowski knowingly and voluntarily waived his right to testify, we
must consider the totality of the record.
Id. at 778-79, 519 N.W.2d at 664.
At the postconviction
hearing, Sarnowski's trial counsel testified:
Q:And at the time you gave the opening
statement, you anticipated that he would in fact testify. Is that correct?
A:Yes, I did.
Q:You indicated during the course of the
trial, ... that [Sarnowski] became very tense and at some point did not become
a candidate for taking the witness stand.
Is that correct?
A:He began to act in a strange manner,
... he was showing signs that if he got on the stand, that everything we talked
about would be out the window,...
....
Q:Did he concur in the decision not to
take the stand or was it his decision alone....
A:Well
I told him of my concerns ... I certainly didn't tell him that he couldn't testify
or that it was my decision and he had to go along with it or get a new lawyer
or something like that. He agreed, and
quite frankly, he was very compliant.
Counsel further
explained that he did not want Sarnowski to testify because he was afraid Sarnowski
would volunteer very damaging information.
Specifically, counsel knew that Sarnowski had conducted experiments on
laboratory rats—experiments in which he poured acid into laboratory rats' ears
to observe its effects. Counsel
justifiably feared that if the jury learned of these experiments, the result
would be devastating.
When Sarnowski testified
at the postconviction motion, he told the court that he had wanted to take the
stand at the trial but did not do so because his attorney advised against
it. He did not dispute, however, that
ultimately he agreed with counsel's advice.
Accordingly, we conclude that Sarnowski waived his right to testify.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] Again, we remind the trial court to engage in an on-the-record colloquy with a defendant regarding the right to testify. State v. Simpson, 185 Wis.2d 772, 779, 519 N.W.2d 662, 664 (Ct. App. 1994); see also State v. Wilson, 179 Wis.2d 660, 672 n.3, 508 N.W.2d 44, 48 n.3 (Ct. App. 1993), cert. denied, 115 S. Ct. 100 (1994).