COURT OF APPEALS DECISION DATED AND FILED March 4, 2008 David R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
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. |
|
Appeal No. |
|
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT III |
|||
|
|
|||
|
|
|||
State of Plaintiff-Respondent, v. James Rozenski, Defendant-Appellant. |
||||
|
|
|||
APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. James Rozenski, pro se, appeals a judgment of conviction and an order denying his motion for postconviction relief. Rozenski was convicted following a jury trial of two counts of second-degree sexual assault, one count of false imprisonment, and one count of battery. He presents numerous issues on appeal related to ineffective assistance of counsel and prosecutorial misconduct.[1] We reject Rozenski’s arguments and affirm.
Background
¶2 Rozenski was charged with sexually assaulting R.D. in Wausau on February 22, 2002. R.D. told police that she and Rozenski had been dating for about a year but their relationship ended several weeks prior to the assault. R.D. stated they had a fight the night before New Year’s Eve, and she went out on New Year’s Eve with other friends, including Jeremy Z., whom she eventually began dating.
¶3 At trial, R.D. testified that she had agreed to take care of
Rozenski’s parents’ cats in
¶4 On the morning of the assault, R.D. fed the cats and then went to a hair appointment. Rozenski telephoned her when she was at the hair appointment and asked her to return to his parents’ house. R.D. agreed, and when she arrived, Rozenski wanted to know where she had been the night before. Rozenski also talked about working out their relationship but R.D. told him the relationship was over and he needed to move on.
¶5 Drehmel and Rozenski sat on the couch and Rozenski leaned over and grabbed her by the coat, pulling her over to him. Rozenski started to hug and kiss her. She pushed away and told him that his actions were not going to help their relationship. Rozenski released her and she moved back to the other end of the couch. Rozenski then grabbed her again, preventing her from moving away from him. She again told him his actions were not going to help their relationship, and he released her. Rozenski pulled her over a third time onto his lap, and tried to pull her jacket off.
¶6 Rozenski then pinned her down by forcefully holding her wrists while she attempted to push away. Rozenski took one hand and put it down her workout pants and inserted his finger into her vagina. He then picked her up and carried her into the bedroom where he used his hands to cross her wrists and pin her hands above her head while pulling down her pants. He then put his penis inside her, while she pushed and screamed at him to stop. Rozenski pulled her hair and became more aggressive until he ejaculated. Rozenski then started crying and saying, “I love you, I love you,” while hugging her. Rozenski also said, “You wouldn’t let me walk away from you once, and I’m not going to let you walk away from me….” Rozenski then let R.D. up but held onto her to prevent her from getting off the bed while continuing to say that he loved her.
¶7 Rozenski finally allowed R.D. to get up and get dressed. He said, “Just stop, I want to talk to you, you know, I love you. Let’s just talk about this. We can work things out.” While Rozenski was talking, R.D.’s cellular phone rang, and Rozenski demanded to know who was calling. A fight ensued over the phone and Rozenski eventually got the phone out of her pocket, trying to determine from the caller identification feature who telephoned. Rozenski kept asking, “Who’s calling? How do I find out who called?” They continued to struggle and the phone rang a second time. Rozenski grabbed it, and ran into another room, and said, “Oh, Jeremy.” R.D. then got up and screamed, “Jeremy, help me.” Rozenski turned to her and said, “You bitch,” then grabbed R.D. and took her into the bedroom a second time. While straddling her on the floor, he demanded to know who “Jeremy” was and took both hands and began to squeeze her neck. Rozenski said, “We’re going to be together forever.” He then stated, “You know how? I’m gonna kill you and I’m gonna kill myself because we’re going to be together forever.” Rozenski then stated that he was going to “bash your skull in.” R.D. then said to him, “In the name of the Lord, Jesus Christ, get off of me.” Rozenski replied, “Your God can’t save you now.”
¶8 Rozenski then sat up a little bit and he just kept staring at
R.D. Rozenski talked about taking her
back to
¶9 The defense theory at trial was essentially that R.D. was crying rape to hide the fact that she was simultaneously pursuing two relationships. The jury found Rozenski guilty of all counts. Rozenski subsequently filed a pro se postconviction motion, raising numerous claims of ineffective assistance of defense counsel, Bridget Boyle. Rozenski also alleged prosecutorial impropriety, among other things. After a Machner[2] hearing, the court concluded trial counsel’s performance was not deficient and Rozenski was not prejudiced. It also rejected Rozenski’s claims of prosecutorial misconduct. The court denied Rozenski’s motion for a new trial and Rozenski now appeals.
Discussion
I. Ineffective Assistance of Counsel
¶10 We apply a two-part test to ineffective assistance of counsel
claims. Strickland v. Washington,
466
¶11 To establish deficient performance, the defendant must
demonstrate specific acts or omissions of counsel that were “outside the wide
range of professionally competent assistance.”
Strickland, 466
¶12 The questions of performance and prejudice are mixed questions
of law and fact. Wheat, 256
¶13 Rozenski first argues Boyle was ineffective for failing to use
exculpatory evidence. In his brief to
this court, Rozenski catalogues evidence that he considers exculpatory and
supportive of his theory that he did not sexually assault R.D., but rather,
engaged in consensual sex as part of their ongoing romantic relationship. Rozenski fails to provide record citations
concerning much of this alleged evidence.
Assertions of fact not demonstrated to be part of the record will not be
considered.
¶14 Even considering this evidence, Rozenski’s argument fails. Most of this evidence consists of either
correspondence or gifts sent by R.D. to Rozenski prior to February 2002. Because R.D. testified at trial the couple
did not definitively break up until the first week of February, evidence that
she sent him correspondence and gifts prior to that date is irrelevant. Two other items concern a planned trip to
¶15 Another item involves a Valentine’s Day card purportedly sent
by R.D. to Rozenski shortly before Valentine’s Day 2002. The card is signed “R[],” but there was no
testimony verifying the handwriting was R.D.’s, the signature was authentic, or
that the card and envelope actually went together. The place to ascertain the authenticity and
provenance of evidence is in the trial court, not the court of appeals. See
Wurtz
v. Fleischman, 97
¶16 Moreover, Boyle testified at the Machner hearing that she did not think a Valentine’s Day card sent on February 11 would be inconsistent with R.D.’s testimony that the couple broke up ten or fifteen days before the assault. Rozenski never questioned Boyle any further about it. Rozenski has not raised a reasonable probability that the result of the trial would have been different had trial counsel used the Valentine Day’s card.
¶17 Rozenski next discusses telephone calls allegedly made between him
and R.D. during this period, but Rozenski again fails to provide citations to
the record on appeal and this evidence will therefore not be considered. See Wolf, 75
¶18 Rozenski next presents four areas in which he asserts Boyle was
ineffective for failing to obtain additional exculpatory evidence. First, Rozenski claims counsel did not “research,
obtain and present … telephone records.”
This portion of Rozenski’s argument is underdeveloped. Rozenski fails to explain how the evidence
would have helped his defense or how it was exculpatory. We will not consider underdeveloped
arguments. See M.C.I., Inc. v. Elbin,
146
¶19 Rozenski’s second area is that Boyle failed to subpoena someone
from R.D.’s place of employment. A
defendant claiming that trial counsel was ineffective for not calling certain
witnesses must identify them; must show, with specificity, what their testimony
would have been; and must demonstrate that their absence prejudiced the
defense.
¶20 The third area is that Boyle failed to impeach R.D. This argument is also underdeveloped and will not be considered. In lieu of argument, Rozenski cites two pages of his appendix. Rozenski does not explain what these pages represent nor does he explain which of the many sentences on these pages represent avenues of impeachment that Boyle failed to exploit. Rozenski further fails to explain how Boyle’s assistance in this regard was ineffective within the meaning of Strickland. It is not this court’s job to unearth relevant issues and resolve them.[3]
¶21 Rozenski’s fourth area concerns Boyle’s alleged failure to impeach
Jeremy Z. on the basis of a criminal history. However, Rozenski concedes that “technically”
Jeremy Z. had no prior criminal record.
He nevertheless insists that a “documented prior instance of
untruthfulness” exists. This is
illustrated in Rozenski’s brief by a reference to an alleged Marathon County
Sheriff’s narrative report from the year 2000 concerning an underage drinking
and driving incident in which Jeremy Z. was a passenger. Rozenski also claims Jeremy Z. could have been
impeached “with evidence of the benefits he received in exchange for his
testimony, i.e., bench warrants were cleared on two separate occasions….” Rozenski provides no citations to the record
to support these assertions other than a citation to his appendix and a citation
to a
¶22 Rozenski next argues Boyle was ineffective for failing to hire a medical expert. Several hours after the rape, R.D. went to a hospital emergency room. R.D. complained about abdominal pain but the emergency room doctor detected no abdominal tenderness upon examination. R.D. also had no vaginal discharge, bleeding or trace of injury to the pelvic area. The doctor testified to performing over a hundred emergency room sexual assault examinations and stated, “I have seen rape victims that have had no [cervical motion] tenderness and some that have had a lot more tenderness. There is a lot of variability, depending on circumstances.” The doctor found no obvious trauma on the rest of R.D.’s body, but nevertheless testified unequivocally that the lack of physical evidence did not mean that R.D. had not been sexually assaulted.
¶23 Rozenski argues that Boyle “at a minimum, should have attempted
to retain an expert witness to testify to the implausibility of Ms. R.D.’s
claims and, thus, the State’s entire case.”
Rozenski’s theory is that R.D.’s description of a brutal sexual assault
is implausible in light of the absence of physical injury. However, Rozenski has not identified any
expert who would testify on his behalf, nor how such an expert would testify if
called. Complaints of uncalled witnesses
are not favored because such allegations are largely speculative.
¶24 Moreover, Boyle testified at the Machner hearing essentially
that because the absence of physical injuries neither proves nor disproves a
sexual assault, Boyle decided not to call an expert witness. Boyle’s decision not to call an expert for
this issue was a reasoned strategic choice and therefore “virtually
unchallengeable.”
¶25 Rozenski next argues Boyle was ineffective in four respects for failing to object to the prosecutor’s closing argument. Rozenski asserts the prosecutor made the following four types of improper remarks: (1) vouching for witnesses; (2) claiming facts not in evidence; (3) expressing her opinion of Rozenski’s guilt and credibility; and (4) making inflammatory remarks. Boyle did not object on these grounds, and was therefore ineffective in Rozenski’s view.
¶26 First, the prosecutor did not vouch for R.D. Most of the comments were merely descriptive
of R.D.’s demeanor, such as “sweetheart” and “compassionate.” The use of the word “God-fearing,” while
perhaps overdramatic, was based upon R.D.’s testimony about her religious
beliefs. Moreover, the prosecutor’s
argument that R.D. was truthful was an unobjectionable argument in a case
involving conflicting testimony. “Urging
the jury to believe the government’s witnesses’ testimony did ‘not constitute a
vouching for the credibility of the witnesses….’” See State v. Johnson, 153
¶27 Even if it could be assumed any remarks were improper, Rozenski
suffered no prejudice. The jury was
instructed that closing arguments are not evidence and also that the jury is
the sole judge of credibility. The jury
is presumed to follow the court’s instructions and Rozenski provides no reason
to believe that it did not do so in this case.
¶28 Rozenski’s argument that the prosecutor’s closing argument referred to facts not in evidence also fails. All of the excerpts cited by Rozenski as facts not in evidence are either supported as a matter of fact by trial testimony, addressed in some fashion by Boyle or the court, or fell short of argument requiring an objection from defense counsel. There was no deficient performance or prejudice in this regard.
¶29 Similarly, the specific statements alleged by Rozenski to be opinions
of Rozenski’s guilt and credibility have been addressed or are
unobjectionable. See Johnson, 153
¶30 Rozenski’s fourth objection to the closing arguments concerns
the following allegedly inflammatory remarks:
(1) Rozenski “worked at a big
¶31 Rozenski next argues Boyle’s failure to object to R.D.’s statement being sent to the jury room was ineffective assistance. Rozenski’s argument is based in part upon the improper premise that the statement was not received in evidence. Rozenski also asserts the trial court erred by giving R.D.’s statement to the jury without balancing it with a copy of Rozenski’s statement.[5]
¶32 The decision whether to send evidence to the jury room is a
matter of trial court discretion.
¶33 Moreover, the court did not send the statement to the jury room on its own initiative, but in response to a request from the jury. Furthermore, R.D.’s statement was essentially no more than a repetition of the testimony she gave at trial. Finally, Boyle’s reason for consenting to the submission of the statement to the jury was a deliberate and reasonable trial strategy, which Rozenski himself endorsed. Boyle had brought to the court’s attention a passage in the statement indicating that R.D. had consensual sex with Jeremy Z. the night before the rape, “which is something that we weren’t obviously allowed to get into.” The prosecutor responded that it was not prejudicial to the defendant but rather more prejudicial to the State’s case, and in violation of the rape shield law. Nevertheless, the prosecutor did not ask for a mistrial. The court asked the defense if it would move for a mistrial, and Boyle responded: “No, I’m not, and I have discussed it with my client, and he does not want me to ask to move for a mistrial.” Rozenski cannot now complain about the choice Boyle made. See, e.g., State v. Oswald, 2000 WI App 3, ¶50, 232 Wis. 2d 103, 606 N.W.2d 238.
II. Prosecutorial Misconduct
¶34 Rozenski next asserts that prosecutorial misconduct warrants a
new trial. First, Rozenski claims “the
prosecutor willfully solicited hearsay testimony in order to produce a
conviction.” Rozenski does not specify
instances of solicited hearsay, but merely cites to his appendix in an attempt
to incorporate by reference a trial court brief. This he may not do.
¶35 Second, Rozenski asserts the prosecutor “repetitively expressed
her personal opinion to the credibility of the state’s witnesses ... [and] the
guilt of Rozenski.” He again cites to a
trial court brief. Rozenski also fails
to adequately develop the argument as he neither cites to specific examples of
alleged improprieties nor even identifies which witnesses he refers to. See State v. Jones, 2002 WI App 196, 257
¶36 Third, Rozenski contends the prosecutor “made material
misstatements of fact in summation.”
Rozenski again improperly cites to a trial court brief and fails to
develop the argument by adequately specifying what “misstatements of fact” he
is referring to. We will not consider
this argument. Flynn, 190
¶37 Rozenski next argues the State violated his due process right
because his conviction was based on perjured testimony, consisting of: (1)
statements by R.D. that she was no longer involved in a relationship with him
at the time of the rape; (2) testimony of R.D.’s parents concerning their
understanding of the state of the relationship; and (3) testimony of Jeremy Z.
that he heard R.D. screaming. Here,
Rozenski confuses perjured testimony with testimony that conflicted with his
own, but was believed by the jury.
¶38 Related to Rozenski’s perjury argument is his contention that the State violated his discovery rights pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Rozenski claims the State had access to, but failed to disclose, R.D.’s and her parents’ telephone records. According to Rozenski, these records were exculpatory because they would have “proven unequivocally” that he and R.D. spoke on the telephone every day “with no measurable decline during the February 7, 2002 through February 22, 2002 time period.”
¶39 Rozenski’s claims in this regard fail for three reasons. First, the State does not violate Brady
unless the evidence in question is in the “exclusive possession of the
State.” State v. Cole, 50
¶40 Second, the exculpatory nature of these records was not “so
clearly and obviously supportive of [Rozenski’s] claim of innocence” that the
State should have known to disclose them to the defense, even if we could
somehow assume the records were in the possession of the State.
¶41 Third, the telephone records were not material in the
constitutional sense. “The mere
possibility that an item of undisclosed information might have helped the
defense ... does not establish ‘materiality’ in the constitutional sense.” State v. Harris, 2004 WI 64, ¶16,
272
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Rozenski
presents twenty issues to this court with numerous sub-issues. However, he has not presented argument on
issues ten through twenty, “due to word count restrictions of
§ 809.19(8)(c).” Rozenski attempts
to incorporate by reference arguments contained in a memorandum filed in the
circuit court. Rozenski violates the
rules of appellate procedure and we will not consider those issues. We consider such “for-reasons-stated-elsewhere”
arguments to be inadequate and decline to consider them. See Calaway v. Brown County, 202
[2] State
v. Machner, 92
[3] In
his reply brief, Rozenski replies to only one of the State’s arguments
regarding the alleged ineffectiveness of Boyle for failing to obtain additional
exculpatory evidence: the failure to
impeach Jeremy Z. We consider
contentions regarding underdeveloped arguments on the other three areas in
which Rozenski claims Boyle was ineffective for failing to obtain additional
exculpatory evidence to be waived. See Reiman
Assocs., 102
[4] We note that Rozenski did not reply to the State’s arguments on Boyle’s alleged ineffectiveness for failing to object to the prosecutor’s closing arguments. As indicated above, the stated positions are deemed conceded.
[5] Rozenski
cites as authority two federal cases which are not binding on this court.