COURT OF APPEALS DECISION DATED AND FILED |
NOTICE |
March 12, 1998 |
This opinion is subject to further
editing. If published, the official version will appear in the bound volume
of the Official Reports. |
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin |
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. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT IV |
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State
of Wisconsin,
Plaintiff-Respondent, v. Marlon
Spears,
Defendant-Appellant. |
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APPEALS from a judgment and an order of the circuit court for Dane County: STUART A. SCHWARTZ, Judge. Affirmed.
Before Dykman, P.J., Roggensack and Deininger, JJ.
PER CURIAM. Marlon K. Spears appeals from a judgment of conviction and from an order denying his postconviction motion. The issue is whether his trial counsel was ineffective by failing to impeach the victim at trial by use of earlier, possibly inconsistent, testimony. We affirm.
Spears was charged with one count of sexual contact with a person under sixteen and one count of sexual intercourse with a person under sixteen, contrary to § 948.02(2), Stats. Both counts were alleged to have occurred with the same victim in the course of the same incident. The victim, Erin T., testified that Spears committed the charged acts on the porch of her residence. Spears testified that although he was on the porch with Erin at the time in question, no sexual activity occurred. Other witnesses also testified, but Erin and Spears were the only eyewitnesses presented. The jury acquitted Spears on the intercourse charge but convicted him on the contact charge.
The sexual contact charge was based on Erin’s allegation that Spears fondled her breast before commencing intercourse. Spears argues that his trial counsel was ineffective for not impeaching Erin at trial with her possibly inconsistent testimony from the preliminary examination.
To establish ineffective
assistance of counsel, a defendant must show that counsel’s performance was
deficient and that such performance prejudiced his defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). We need
not address both components of the analysis if defendant makes an inadequate
showing on one. Strickland,
466 U.S. at 697. To demonstrate
prejudice, the defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different. Id.
at 694. A reasonable probability is one
sufficient to undermine confidence in the outcome. Id. We
affirm the trial court’s findings of fact unless they are clearly erroneous,
but the determination of deficient performance and prejudice are questions of
law that we review without deference to the trial court. State v. Pitsch, 124 Wis.2d
628, 633-34, 369 N.W.2d 711, 714-15 (1985).
Specifically, Spears argues
that at trial Erin testified that he touched her under her clothing, while at
the preliminary hearing she testified that he did so over her clothing. He argues that by impeaching her with this
inconsistency, trial counsel could have bolstered his defense that Erin’s
testimony about the incident was false.
This impeachment would have been especially effective, he argues,
because the contact charge was supported only by a few lines of her testimony,
and because the jury apparently already had doubts about her credibility, as
demonstrated by its acquittal on the intercourse charge.
We focus on the prejudice
part of the analysis. We do not agree
that this additional impeachment would have assisted Spears’s defense enough to
be a prejudicial omission. While it may
be true that Spears’s trial counsel did not challenge Erin’s credibility
specifically to this count, he did challenge her credibility in various other
ways that tended to undermine her testimony as to both counts. Nor was Spears’s defense based solely on
attacking the victim’s credibility, since he testified himself that neither
event occurred.
We do not accept Spears’s
characterization of the contact charge as being supported by only a few lines
of Erin’s testimony. While her
description of that contact took only a few lines of transcript, substantial portions
of other trial testimony, by her and others, provided background or
circumstantial evidence which, if viewed as argued by the State, provided
support for both counts.
While Spears argues that the jury’s split verdict supports his
prejudice argument, it is difficult to be certain what significance to give to
that split. It may show that the jury
had doubts about Erin’s credibility, but it also suggests that the jury did not
believe Spears either, because if it did, it would have acquitted him on both
counts. We are not persuaded that the
additional impeachment might have led the jury to acquit on both counts.
Spears also argues that his
trial counsel was ineffective for failing to impeach Erin with her inability to
remember specifics of how he touched her, and in his cross-examination of
another witness. However, these issues
were not addressed in Spears’s postconviction motion or in his questioning of
trial counsel, and therefore he has waived them. See State v. Elm, 201 Wis.2d 452, 463, 549 N.W.2d
471, 476 (Ct. App. 1996).
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Rule 809.23(1)(b)5., Stats.