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COURT OF APPEALS DECISION DATED AND FILED January 10, 2002 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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Cir. Ct. No.
98-CF-1008 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of Wisconsin, Plaintiff-Respondent, v. Thomas G. Henkel, Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Dane County: Steven D. Ebert, Judge. Affirmed.
Before Dykman, Roggensack and Deininger, JJ.
¶1 PER CURIAM. Thomas Henkel appeals a judgment of conviction and an order denying his postconviction motion. He raises a number of issues, including ineffective assistance of counsel, whether the court should have granted a continuance, and whether the court erred by excluding evidence. We affirm.
¶2 Henkel was convicted of one count of first-degree sexual assault of a child under thirteen, contrary to Wis. Stat. § 948.02(1) (1999-2000).[1] The assault was alleged to have occurred in the victim’s residence, and was witnessed by the victim’s sister. In the interest of preserving the victim’s privacy, we will not otherwise describe the facts of the crime, except to the extent necessary to address the issues raised.
¶3 Henkel argues that his trial counsel was
ineffective by not offering to stipulate to certain elements of the crime, with
the intent of keeping out certain other acts evidence. See, e.g., State v. DeKeyser,
221 Wis. 2d 435, 585 N.W.2d 688 (Ct. App. 1998); State v. Veach,
2001 WI App 143, 246 Wis. 2d 395, 630 N.W.2d 256, review granted, 2001
WI 114, 246 Wis. 2d 171, 634 N.W.2d 318.
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 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 (1985).
¶4 We
conclude that counsel’s performance was not deficient on this point. The test for deficient performance is
whether counsel’s representation fell below “an objective standard of
reasonableness.” Strickland,
466 U.S. at 688. At the postconviction
hearing, Henkel’s trial counsel testified that he would have offered a
stipulation if he had thought of it, and that he had no strategic reason for
not doing so. However, because we are
applying an objective standard, we are not bound by counsel’s lack of a
strategic reason. We may still conclude
that an objectively reasonable attorney could have had a strategic
reason for taking the action in question, and that therefore counsel’s
performance was not deficient.
¶5 According
to Henkel’s argument on appeal, the stipulation in this case would have
included his admission that if touching did occur, it was for the purpose of
sexual gratification. His defense at
trial was based on his assertion that no touching occurred, and this was what
he testified to, and what his attorney argued in his opening statement. However, this defense was not fully
consistent with his own earlier statement to police, in which he admitted that
the touching might have happened, and if it did, it was accidental. Under these circumstances, counsel could
reasonably conclude that it would have been unwise to enter a stipulation that
would give up the opportunity for the jury to decide that any touching was
accidental.
¶6 Henkel’s
next argument is that the jury “never heard a considerable amount of relevant
and exculpatory evidence.” Henkel’s
brief is vague as to what legal theory this argument is based on, although he
makes a passing reference to due process.
We are not aware of any due process theory that allows reversal of a
conviction based simply on the fact that the jury did not hear relevant and
exculpatory evidence. Remarkably,
Henkel’s brief entirely fails to discuss why the jury did not hear this
evidence. However, in his
postconviction motion, he alleged that his trial counsel was ineffective by
failing to present this evidence. We
will address the issue on that basis.
¶7 Our
review of this issue is hampered by the fact that, at the postconviction
hearing, the circuit court did not allow Henkel to present the evidence that he
argues his counsel should have presented at trial. Henkel sought to have those witnesses testify at the postconviction
hearing, but the court allowed Henkel to present the testimony of only his
trial counsel. On appeal, Henkel has
not argued that the court erred by limiting the evidence in this manner, and
therefore we reach no decision on that point.
Thus, we are limited to a postconviction record consisting of Henkel’s
motion, his offer of proof on the testimony of the excluded witnesses, and the
actual testimony of his trial counsel.
Under these circumstances, we will address each claim by either
reviewing the testimony of trial counsel to see if it contains a sufficient
basis to deny the claim, or by reviewing the trial court’s decision as if the
motion were denied without a hearing, using the test set forth in State
v. Bentley, 201 Wis. 2d 303, 308-11, 548 N.W.2d 50 (1996).
¶8 Henkel
claimed that his trial counsel should have presented the testimony of two
friends of the victim’s mother. Trial
counsel testified that he didn’t call one of those witnesses because she was
“openly hostile” to the defense and counsel was afraid she might “dump on Tom
in some unexpected way.” He said that
he did not call the other friend because she told counsel she “wanted nothing
to do with the case,” and because he believed he could introduce some of the
same evidence through other witnesses.
On appeal, Henkel has not argued, and we have not noted, any basis to
conclude that these strategic choices were unreasonable. Therefore, this claim was properly denied.
¶9 Henkel
also claims that his trial counsel should have presented evidence about the
victim’s mother’s “illegitimate personal and financial motives” to obtain
Henkel’s conviction. We conclude that
this claim could properly be denied without a hearing. Although Henkel’s motion clearly alleged and
offered to prove various personal and financial reasons the mother might want
to convict Henkel, the motion does not offer any evidence connecting the
mother’s motivation directly to the victim’s allegation in this case. There is no allegation or evidence that the
mother suggested, induced, or otherwise caused the victim to create a false
allegation, even if the mother did have the motive to do so. In the absence of such allegation or
evidence, Henkel’s motion fails to allege either deficient performance or
prejudice.
¶10 Henkel
argues that his trial counsel should have presented certain evidence regarding
the victim’s uncle, whose testimony at trial supported the victim’s account of
another act by Henkel. According to
Henkel, his counsel should have brought out that the uncle did not come forward
with his observations until more than a year after Henkel was charged, and that
the uncle had long held ill will toward Henkel. We conclude that this claim could properly be denied without a
hearing. As the State suggests, even if
this information had been brought out, it appears likely there were reasonable
explanations for the delay. We also
think, as to both points, that it is unlikely this information would have
affected the outcome of the trial.
¶11 On
the morning of jury selection, the State informed Henkel’s counsel that the
victim had changed the alleged time of the offense, from the afternoon of a
certain date to the morning of that date.
Henkel’s counsel then requested a continuance. He argued that Henkel’s defense was based substantially on
information showing that Henkel had a minimal opportunity to commit the crime
during the afternoon. The court offered
to let the trial proceed into an extra day to allow more time for Henkel to
conduct additional investigation to develop the same exculpatory information as
to the morning of that date, but the court did not grant a continuance.
¶12 Henkel argues that the circuit court erred by denying his motion for a continuance. The State argues, and Henkel does not dispute, that the proper standard of review is found in State v. Fink, 195 Wis. 2d 330, 536 N.W.2d 401 (Ct. App. 1995). Fink requires: (1) actual surprise which could not have been foreseen; (2) where the surprise is caused by unexpected testimony, the party who sought the continuance must have made some showing that contradictory or impeaching evidence could probably be obtained within a reasonable time; and (3) the denial of the continuance must have been prejudicial to the party who sought it. Id. at 339-40. The State concedes that there was actual surprise in Henkel’s case.
¶13 We conclude that Henkel’s argument fails on
the second element. His counsel’s
argument to the court did not show that contradictory or impeaching evidence
could probably be obtained within a reasonable time beyond what the court
allowed. Counsel’s primary expressed
concern was with obtaining certain school times. Henkel argues that his
attorney attempted to explain to the court that he needed to investigate more
than this, because his entire prepared defense had to be abandoned and a new
one assembled. However, counsel’s
argument did not amount to a showing that evidence other than the school times
could have been obtained.
¶14 Henkel
argues that his trial counsel was ineffective by “placing all of Henkel’s eggs
into one basket,” thus leaving him without a defense when the State changed its
allegation on the day of trial.
Underneath Henkel’s egg-transport metaphor, his argument is essentially
that counsel was ineffective by not investigating alternative defense
strategies in anticipation of a change in the State’s factual allegation. This is not a sufficient allegation of
deficient performance. It would be impossible
for counsel to anticipate and prepare for every possible change of
circumstances that might occur. Henkel
has not offered any reason to think this particular change should have been
foreseen by counsel.
¶15 Henkel argues that the circuit court erroneously exercised its discretion by excluding evidence of the victim’s anxiety and depressive disorder, and her failure to take her medication for that disorder around the time she first reported the crime. The State moved before trial to exclude any such evidence. In response, Henkel’s theory of relevance was that the victim made up the accusation against him as a way to retaliate against his wife for the measures that she used while attempting to control the victim’s extreme behavior while unmedicated. The court ruled that the information about the victim’s disorder and failure to take medication were not relevant. On appeal, Henkel argues that such information would have been relevant because it would have made more probable the premise that the victim’s testimony may not be trustworthy due to psychological factors. Henkel’s argument has not demonstrated that the court erred.
¶16 Finally, Henkel argues that we should order a
new trial under Wis. Stat. § 752.35, our authority for discretionary
reversal. The standards for that
decision are well-established, and need not be repeated here. We are satisfied that the real controversy
was tried, and justice did not miscarry.
By the Court.—Judgment and
order affirmed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5.