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COURT OF APPEALS
DECISION
DATED AND FILED
May 7, 2009
David
R. Schanker
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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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT IV
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State of Wisconsin,
Plaintiff-Respondent,
v.
Wesley L. McKinney,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Wood County: Jon M.
Counsell, Judge. Affirmed.
Before Higginbotham, P.J., Lundsten and Bridge, JJ.
¶1 PER CURIAM. Wesley McKinney appeals a
judgment convicting him of repeated sexual assaults of the same child and an
order denying postconviction relief. He
contends that he was convicted of an offense that did not exist when he committed
it. He also contends that he received ineffective assistance from trial
counsel. We affirm.
¶2 The State charged McKinney
with violating Wis. Stat. § 948.025(1)(b)
(2003-04),
repeated sexual assaults of the same child, between June 2001 and September
2001. Section 948.025(1)(b)
provided that sexually assaulting the same child three or more times was a
class C felony if fewer than three of the assaults were first-degree sexual
assaults (committed while the child was less than thirteen). However, § 948.025(1)(b), did not exist at
the time McKinney
committed the offense. Its predecessor, Wis. Stat. § 948.025(1)
(1999-2000), provided that committing three or more sexual assaults of the same
child was a class B felony when the child was less than sixteen. Here, the victim was fifteen when the
assaults occurred.
¶3 At trial the victim testified to daily or almost daily sexual
encounters with McKinney between late June 2001
and the end of August 2001, all occurring in his room at a boarding house in Marshfield. A friend of hers, Tonya Kummers, testified that
she saw them beginning to have sex in McKinney’s room, and on occasion heard
them having sex from the room of her boyfriend, Dionsius Johnson, next
door. The victim’s mother testified that
she saw letters that McKinney
subsequently sent her daughter from prison, and that they contained “sexual
content.” She did not describe the
“sexual content” in any detail.
¶4 McKinney
testified that he never had sexual contact with the victim. He also presented evidence that he left Marshfield on or about July 19, 2001, relocated in Medford, and for the rest of the summer only returned to Marshfield occasionally
to visit his mother and never returned to the boarding house. In the course of presenting that defense the
jury heard that: he was on probation in the summer of 2001; the Department of
Corrections had placed him at the boarding house and was paying for his room;
he was on electronic monitoring; his probation agent put a probation hold on
him on July 18, 2001; he escaped from the officers sent to the boarding house
to arrest him later that day; and he then absconded, and remained at large
until his arrest on September 4, 2001.
The purpose of giving the jury this information was to establish that McKinney had considerable
motivation to stay away from the boarding house during a period when the victim
said she saw him there almost every day.
The jury also heard that he had eight prior convictions, adjusted poorly
to probation, and was sent to prison after his September arrest. McKinney
presented two alibi witnesses, the person he lived with, Michael Lehmann, and
his Medford girlfriend, Crystal Stockheimer, to
prove that he remained in Medford
after he absconded.
¶5 After his conviction, McKinney
filed a postconviction motion alleging several instances of ineffective
assistance from trial counsel. After
hearing testimony from counsel and other witnesses, the trial court denied the
motion, resulting in this appeal.
DEFECT IN THE CHARGE
¶6 McKinney
contends that the circuit court lacked subject matter jurisdiction, and his
conviction is therefore void, because the complaint and information charged him
with a crime that did not exist when he committed it. See State v. Briggs, 218 Wis. 2d 61, 68, 579 N.W.2d 783 (Ct.
App. 1998) (circuit court has no subject matter jurisdiction over a nonexistent
crime). However, the crime McKinney committed did exist in Wisconsin in 2001. The only difference between the charged
statute, Wis. Stat.
§ 948.025(1)(b), and the statute then in effect, Wis. Stat. § 948.025(1) (1999-2000), was the numbering
of the statute, and a reduction in McKinney’s
maximum sentence exposure. Because the
victim was older than twelve, the elements of the crime remained the same. Consequently, if there was a charging error,
it was harmless. See State v. Wachsmuth, 166 Wis. 2d
1014, 1027, 480 N.W.2d 842 (Ct. App. 1992) (where both offenses contain
identical elements, a charging error is harmless). Additionally, McKinney benefitted from the error by his
reduced exposure. The charging error
resulted in a sentence imposed for a class C felony, with a maximum penalty of forty
years in prison, when the court should have sentenced him for a class B felony,
with a sixty-year maximum. His argument
is therefore without merit.
TRIAL COUNSEL’S PERFORMANCE
¶7 To demonstrate ineffective assistance of counsel the
defendant must demonstrate that: (1) defense counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed to the defendant
by the Sixth Amendment; and (2) this deficient performance prejudiced the
defense so seriously as to deprive the defendant of a fair trial, a trial whose
result is reliable. Strickland v. Washington,
466 U.S.
668, 687 (1984).
¶8 The test for deficient performance is whether counsel had a
reasonable basis for the challenged acts or omissions. See State v.
Rock, 92 Wis. 2d
554, 560, 285 N.W.2d 739 (1979).
Deficient performance and prejudice both present mixed questions of fact
and law. State v. Jeannie M.P.,
2005 WI App 183, ¶6, 286 Wis. 2d
721, 703 N.W.2d 694. We uphold the
circuit court’s factual findings unless clearly erroneous. State v. Thiel, 2003 WI 111, ¶21,
264 Wis. 2d
571, 665 N.W.2d 305. Whether counsel’s
performance is deficient or prejudicial is a question of law we review de novo.
Jeannie M.P., 286 Wis. 2d 721, ¶6.
¶9 McKinney presents the following claims of ineffective
performance by counsel, alleging that he: (1) failed to notice the
charging error; (2) failed to file a timely notice of alibi; (3) failed
to adequately question the prospective jurors during voir dire; (4) pursued
an ineffective strategy that caused the jury to hear highly prejudicial information
about McKinney; (5) failed to adequately question or cross-examine several
witnesses; (6) failed to locate and present an important alibi witness;
(7) called three defense witnesses who provided damaging testimony;
(8) did not object to the jury seeing prejudicial exhibits during
deliberations; (9) did not object to testimony from the victim’s mother;
and (10) failed to adequately consult with McKinney concerning a plea
bargain. We address each argument in
turn.
¶10 Claim (1). Failed to
notice the charging error. As we
have previously concluded the error was harmless. Counsel’s omission was therefore without
prejudice.
¶11 Claim (2). Failed to
file a timely notice of alibi. The
untimely notice did not prejudice McKinney
because, as he concedes, he was permitted to present his alibi defense at trial.
¶12 Claim (3). Failed to
adequately question the prospective jurors.
Four prospective jurors reported previous connections to sexual assault
cases, but all stated that they could decide this case on the evidence. Two of those prospective jurors subsequently
served on the jury that found McKinney
guilty. He contends that counsel should
have undertaken a full voir dire of these individuals rather than accepting
their assertions of non-bias. However, McKinney can only
speculate that the jurors’ prior experiences biased them. A meritorious claim that counsel performed
ineffectively during jury selection requires proof that the result was a biased
jury. See State v. Traylor, 170 Wis. 2d 393, 399-400, 489 N.W.2d 626
(Ct. App. 1992). Here, McKinney offers no such proof.
¶13 McKinney also contends that
counsel should have fully questioned a prospective juror further about the fact
that her brother-in-law was a Marshfield
police officer. She did not serve on the
jury selected for the trial, and McKinney
only speculates that counsel would have uncovered information justifying a
strike for cause, that would have allowed him to use a peremptory strike on
another juror. Furthermore, he only
speculates that the result of not having one extra strike was a biased
jury. As noted, proof of bias, not
speculation, was required.
¶14 Claim (4). Counsel
pursued an ineffective strategy. During
the trial, counsel brought out a number of unfavorable facts about McKinney, including his
criminal record, status as a probationer, poor performance on probation,
absconding from supervision, and subsequent capture and imprisonment. Counsel gave two reasons for doing so. First, counsel thought that being upfront
about things the jury would find out anyway would enhance McKinney’s credibility when he
testified. Second, counsel viewed much
of the information as helpful to the defense because it demonstrated McKinney’s
strong motivation to stay away from Marshfield and the boarding house, thus
supporting his claim that the victim was lying or mistaken about his frequent
presence there, with her, after July 18.
We measure counsel’s performance by an objective standard of
reasonableness as measured against prevailing professional norms. Strickland, 466 U.S. at 688. A reasonable attorney in the same
circumstances might have adopted the same strategy as counsel did here, for the
same reasons.
¶15 Claim (5). Failure to
adequately question or cross-examine witnesses. McKinney asserts that a hole in the post July
18 alibi defense was counsel’s failure to counter the possibility that he
returned from Medford to Marshfield every day or almost every day to continue
his sexual relationship with the victim.
In McKinney’s view, counsel should have
established more precisely the times the victim said their sexual contacts
occurred, and then shown through questioning of his two alibi witnesses that McKinney was in Medford
at those precise times. However, a reasonable
attorney could have determined that “closing the hole” in this manner would
have been unnecessary, because the testimony from Lehmann and Stockheimer, if
believed, sufficiently demonstrated the implausibility of daily trips back to Marshfield. Both testified to daily contact with McKinney, throughout the day, and Lehmann stated with
certainty that he would have known if and when McKinney
travelled to Marshfield. In any event, McKinney
cannot reasonably claim prejudice because the prosecutor never contended that McKinney frequently returned to Marshfield
from Medford to
meet the victim. In fact, in closing
arguments the prosecutor told the jury it should not even consider the question
because there was sufficient evidence of sexual contacts before July 19 to find
McKinney
guilty.
¶16 McKinney also contends that
counsel did not adequately cross-examine Kummer about seeing McKinney and the victim “beginning to have
sex.” He contends that counsel should
have asked her what she meant by that term, and pinned her down as to when she
saw this. However, a reasonable counsel
might have decided to avoid those questions because Kummer might have answered
them in a way highly prejudicial to McKinney. Kummer did not testify at the postconviction
hearing and it is only speculation that further cross-examination of her would
have benefitted McKinney.
¶17 Claim (6). Failed to
present Dionsius Johnson as a witness.
As noted, Johnson was McKinney’s next
room neighbor in the Marshfield
boarding house where the sexual contact occurred. He testified at the postconviction hearing
that he was very close to both McKinney and the
victim and never saw her enter McKinney’s
room alone. He also testified that one
could not hear noises coming from McKinney’s
room, such as Kummer testified to hearing.
He added that he never heard McKinney
having sex. He testified that Kummer was
untruthful, as was the victim.
¶18 In McKinney’s
view, counsel’s failure to call Johnson as a witness was an unreasonable
decision. In our view, a reasonable
attorney could have chosen not to call Johnson because his testimony harmed McKinney in one important
aspect. Notes were found in McKinney’s room after he absconded
with phone numbers of the victim, Kummer, and one other female. The note with Kummer’s number also stated “I
know you think I am hot.” The defense
offered the theory that Johnson wrote the notes when he came to McKinney’s room to use
the phone, as he supposedly did frequently because he did not have his own
phone. Johnson would have testified,
however, that he could not recall using McKinney’s
phone. Additionally, the fact that he
did not hear noises from McKinney’s
room was not particularly exculpatory and did not necessarily impeach Kummer,
because Johnson was hard of hearing, and frequently watched television with the
set turned up loud.
¶19 Claim (7). Counsel
called witnesses who gave damaging testimony. Counsel called a probation agent and two
police officers as witnesses. McKinney contends that their testimony prejudiced McKinney because they
described his failed probation and subsequent attempts to evade arrest. In doing so, they offered testimony that
supported the defense theory that McKinney
had compelling reasons to avoid the boarding house after July 18. We have already determined that bringing out
information about McKinney’s
problems on probation was a reasonable defense strategy, and using these
witnesses in support of it was also reasonable.
¶20 Claim (8). Counsel
did not object to the jury’s viewing prejudicial exhibits. The exhibits in question were a letter to McKinney from Stockheimer
in which she refers to sexual encounters with him and expresses her love for
him, and his revocation report prepared by the Department of Corrections. According to McKinney,
granting the jury’s request to see these exhibits gave undue emphasis to
evidence that damaged Stockheimer’s credibility, and painted McKinney in a bad light as a repeat probation
violator. A reasonable attorney might
not have objected to either exhibit. The
letter from Stockheimer emphasized the seriousness of their affair, thus making
it less likely that he was travelling to Marshfield
to have sex with a child at the same time.
The probation report contained no reference to any sexual misconduct,
and provided support for the main defense claim that McKinney would have reason not to return to
the boarding house. Arguably, viewing
the exhibits helped rather than prejudiced McKinney.
Additionally, even if the exhibits benefitted the State rather than McKinney, he has not
demonstrated prejudice from the jury examining them because there is nothing to
indicate that the court would have granted a motion to deny the jury’s
request.
¶21 Claim (9). Counsel
failed to object to testimony from the victim’s mother. The mother testified to letters McKinney wrote to the
victim from prison that contained sexual content. McKinney
contends that counsel should have objected on the grounds of relevance, because
the letters were sent three years after the assaults took place. Nevertheless, the letters remained highly
relevant to whether McKinney
and the victim had a prior sexual relationship.
Counsel had no basis to object and cannot be faulted for failing to make
a pointless objection.
¶22 In the alternative, McKinney
contends that counsel should have cross examined the witness to elicit more
detail about the letters. McKinney can only
speculate that the answers counsel received to further questions would have
helped him rather than harmed him. He
cannot fault counsel for reasonably choosing to avoid risk of the latter.
¶23 Claim (10). Counsel
failed to adequately consult with McKinney. Counsel indicated that at some point he
discussed a possible plea bargain with the prosecutor. McKinney
contends that counsel performed ineffectively because he failed to tell McKinney about the
potential offer. Even if counsel
neglected his duty, McKinney
has not met his burden of demonstrating prejudice. There is no evidence of what the prosecutor
was willing to offer, or whether the prosecutor ever made a formal offer, or
whether McKinney
would have accepted any offer. The only
testimony on the latter question was counsel’s unrefuted recollection that McKinney wanted to go to
trial “from day one.”
¶24 Finally, as an alternative to his other claims, McKinney asks this court
to order a new trial in the interest of justice. He contends that the cumulative effect of
counsel’s errors prevented a full and fair trial of the real controversy. Because we conclude that in all cases either
counsel performed effectively, or McKinney
failed to demonstrate prejudice where counsel did not, we deny his request for
a new trial. The issue of his guilt or
innocence was fully tried.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.