COURT OF APPEALS
DECISION
DATED AND FILED
February 2, 2010
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.
William C. Jackson,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Dane County: Paul
b. higginbotham and james l.
martin, Judges. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. William Jackson appeals a
judgment convicting him of five counts of sexually assaulting sixteen-year-old
Stephanie G. during a trip from Illinois to
her home in Sparta, Wisconsin.
He also appeals an order denying his postconviction motion in which he
alleged ineffective assistance of trial counsel. He contends his counsel was ineffective in
two respects: (1) counsel failed to call
Tiffany Gutierrez as a witness to establish that Stephanie initially denied any
sexual contact with Jackson; and (2) counsel
failed to effectively prepare Jackson to
testify, resulting in Jackson
using crude language during his testimony.
We reject these arguments and affirm the judgment and order.
¶2 The complaint charged Jackson
with seven counts of sexually assaulting Stephanie as he drove her home from Illinois and when they
stopped at a motel. Stephanie’s mother
became suspicious when Stephanie arrived home with Jackson much later than expected and in
different clothing. When she asked
Stephanie if any inappropriate sexual contact occurred, Stephanie initially
denied it. The next night, she told her
mother of the sexual assaults. A
physical examination revealed that Stephanie had bruising on her labia majora
and on her cervix. When questioned by
detectives, Jackson
admitted he touched Stephanie’s breasts and let her touch his penis while he
was driving. He eventually stopped and
got a motel room so he could “fool around” with Stephanie before taking her
home. He admitted kissing her vagina
area, touching her breast with his hand, touching her vagina with his hand and
sticking his finger in her vagina. She
also touched his bare penis. The jury
acquitted Jackson
of the two counts he denied to detectives, touching Stephanie’s vagina in the
car and having Stephanie perform oral sex on him in the motel.
¶3 To establish ineffective assistance of trial counsel, Jackson
must show deficient performance and prejudice.
Strickland v. Washington, 466 U.S. 668, 687
(1984). Jackson must overcome the presumption that
counsel’s challenged action might be considered sound trial strategy. Id.
at 689. Strategic choices made after
thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable. Id. at
691. The reasonableness of counsel’s
actions may be determined or substantially influenced by Jackson’s own statements or actions. Id. To establish prejudice, Jackson must establish a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the trial would have been different.
A reasonable probability is one that undermines our confidence in the
outcome. Id. at 694.
¶4 Counsel’s decision not to call Gutierrez to establish
Stephanie’s initial denial that a sexual assault occurred does not constitute
deficient performance for two reasons.
First, the trial court did not accept Jackson’s assertion that he informed his
trial counsel of Stephanie’s statement before trial. Counsel denied having any knowledge of the
statement. The trial court is the
arbiter of the witnesses’ credibility. State
v. Kimbrough, 2001 WI App 138, ¶29, 246 Wis. 2d 648, 630 N.W.2d 752. Counsel cannot be faulted for failing to
present evidence that Jackson
did not share with his attorney. Strickland,
466 U.S.
at 691. Second, counsel indicated he was
reluctant to call Gutierrez as a witness because she had told police Jackson
supplied Stephanie and her with alcohol on the afternoon of the sexual
assaults. That decision constitutes a
sound trial strategy that cannot be second-guessed on appeal. Id. at
690.
¶5 Jackson
also failed to establish prejudice from his counsel’s failure to call Gutierrez
as a witness. Stephanie testified that
she initially denied the sexual contact to her mother. Therefore, Gutierrez’s testimony would have
been cumulative. In addition, challenging Stephanie’s
credibility would not be likely to produce an acquittal on any of the five charges
for which Jackson
was convicted. The jury acquitted Jackson of the charges
that depended solely on Stephanie’s credibility. It convicted Jackson of the counts that he admitted to
detectives. The results of the physical
examination and Jackson’s
incriminatory statements led to the convictions regardless of Stephanie’s
credibility.
¶6 Jackson also failed to
establish deficient performance or prejudice from his counsel’s preparation of Jackson to testify. Although counsel admitted he did not go over
an exact list of questions, on several occasions he “pushed Mr. Jackson on
every weak point in the case” until he was confident that Jackson knew what was going on and was a
“believable, likeable, credible guy who doesn’t get real flustered.” He gave Jackson
general instructions like keeping his answers short, and if Jackson did not understand a question, to ask
for clarification. Counsel’s stated fear
that spending too much time preparing can make a witness more nervous and make
them a worse witness constitutes a reasonable trial strategy. In addition, the degree of preparation
appears to have been successful in that it resulted in acquittal of the charges
that Jackson
did not admit to detectives.
¶7 Jackson
identifies three statements made during his testimony that he contends
prejudiced the jury. He alleged
Stephanie was “hammered”; he answered questions with “hell, no”; and said
Stephanie was “yelling that her whore mother don’t love her, her dad don’t want
her.” Nothing in our review of the
record suggests that the jury was influenced by Jackson’s language. Counsel’s failure to rehearse Jackson’s testimony to
eliminate that type of language does not undermine our confidence in the
outcome.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5. (2007-08).