COURT OF APPEALS DECISION DATED AND FILED October 5, 2010 A.
John Voelker Acting 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 |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Gilbert Perez,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Gilbert Perez appeals a judgment convicting him of repeated sexual assault of a child and an order denying his motion for postconviction relief. Perez argues he was denied the effective assistance of counsel. We disagree and affirm.
BACKGROUND
¶2 On January 21, 2008, Taylor S., the seven-year-old daughter
of Perez’s fiancée, told school social worker Michael Bauer that Perez had sexually
assaulted her. Later that day, in a
videotaped interview with social worker Melissa Tell and Green Bay Police Officer
Rod DuBois,
¶3 At the police station later that afternoon, DuBois questioned
Perez for three-and-a-half hours in an attempt to elicit a confession. DuBois began by reading Perez his Miranda[1]
rights, which Perez waived. He then
asked a number of background questions about Perez’s work, his health, and his
relationships with
¶4 DuBois then told Perez that
¶5 DuBois eventually told Perez that
¶6 During the interrogation, DuBois also told Perez that a
sexual assault nursing assistant had examined
¶7 Throughout the interrogation, DuBois also made a number of statements about the benefits of admitting guilt:
If you’re man enough to admit that you made a mistake and tell me what you did, I’m going to respect you for that. I’m going to punish you because you need to be punished, but I’m still going to respect you …. On the other hand, and I use this with my own kids as an example, when they lie to me, game on. If you’re not man enough to admit when you make a mistake when everybody makes mistakes, now you’re going to get punished because we have a credibility problem.
….
Now you have a judge that you got to answer to that’s going to treat you like his son. Does he treat you to punish you because you pissed him off because you lied, or does he treat you that, you know what, you made a mistake like everybody else because people make mistakes?
….
Now, I have to write a police report and that police report is either going to say you maintain even in spite of all this evidence that he didn’t do anything, here he is, judge, hammer him. Or it’s going to say when we talked, he admitted that he made a mistake that there’s these issues going on in his life and that he’s sorry, doesn’t know why he did it or he does know why he did it.
¶8 Despite DuBois’ attempts to elicit a confession, Perez
repeatedly denied he had sexually assaulted
¶9 At the end of the interrogation, DuBois prepared a written
statement that Perez signed. The
statement said that Perez did not know if he was blocking out the sexual
assault, that he could not remember sexually assaulting
¶10 At trial, the State argued Perez’s statements were “very close to just being straight out admissions that he did it.” According to the State, throughout the interrogation Perez’s story changed from complete denial to “admitting to what he can admit to without admitting to the crime.” The prosecutor told the jury, “If he’s innocent, the pressure will have no effect. The plan is going to [be to] say, ‘No, it’s not me. I didn’t do it. I don’t care what you have. I didn’t do it.’ I think we know from life experience.”
¶11 The jury convicted Perez of repeated sexual assault of a child. The trial court sentenced Perez to ten years’ incarceration and five years’ extended supervision. Perez moved for postconviction relief, alleging he was denied effective assistance of counsel. The trial court denied the motion following an evidentiary hearing, and Perez appeals.
DISCUSSION
¶12 Perez argues his trial counsel was deficient in four ways: (1) failing to seek suppression of Perez’s incriminating statements on the ground they were not made voluntarily; (2) failing to present expert testimony regarding the extent to which the interrogation tactics DuBois used produce false confessions and regarding the interview techniques used with Taylor; (3) failing to seek exclusion of Perez’s statements that he grabbed Taylor’s neck, caused her to develop blisters on her fingers, and punched her; and (4) failing to introduce evidence that Taylor had seen Perez and his fiancée engaging in sexual intercourse.
¶13 A defendant claiming ineffective assistance of counsel must prove
both that counsel’s performance was deficient and that counsel’s errors were
prejudicial. Strickland v.
¶14 To demonstrate deficient performance, a defendant must show
specific acts or omissions of counsel that were “outside the wide range of
professionally competent assistance.”
¶15 To demonstrate prejudice, a defendant must show that the
alleged defect in counsel’s performance actually had an adverse effect on the
defense.
¶16 Whether counsel’s actions constitute ineffective assistance is
a mixed question of law and fact. State
v. Reed, 2002 WI App 209, ¶16, 256
I. Failure to seek suppression
of Perez’s incriminating statements
¶17 Perez claims his trial counsel was deficient in failing to seek
suppression of his incriminating statements to DuBois on the ground they were
involuntary. The trial court rejected
this claim on the basis that Perez’s statements were voluntary and a motion to
suppress therefore would have failed. Forgoing
a suppression motion is not ineffective assistance if the motion would not have
succeeded.
¶18 To determine whether a statement was voluntary, we weigh the
defendant’s personal characteristics against the pressures police imposed upon
the defendant. State v. Triggs, 2003 WI
App 91, ¶13, 264
¶19 Perez first argues his statements to DuBois were involuntary
because DuBois repeatedly lied to him about the existence of inculpatory
evidence. A misrepresentation by police,
while relevant to the voluntariness inquiry, does not by itself make a defendant’s
statement involuntary. State
v. Fehrenbach, 118
¶20 In
Of the numerous varieties of police trickery, however, a lie that relates to a suspect’s connection to the crime is the least likely to render a confession involuntary. Such misrepresentations, of course, may cause a suspect to confess, but causation alone does not constitute coercion; if it did, all confessions following interrogations would be involuntary because “it can almost always be said that the interrogation caused the confession.” Thus, the issue is not causation, but the degree of improper coercion .... Inflating evidence of [the defendant’s] guilt interfered little, if at all, with his “free and deliberate choice” of whether to confess, for it did not lead him to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime. In other words, the deception did not interject the type of extrinsic considerations that would overcome [the defendant’s] will by distorting an otherwise rational choice of whether to confess or remain silent.
¶21 In Triggs, we cited with approval
¶22 As in Triggs, the misrepresentations Perez complains of all go to the strength of the evidence against him. We therefore give little weight to these misrepresentations in analyzing whether Perez’s statements were voluntary under the totality of the circumstances.
¶23 Perez attempts to distinguish Triggs by suggesting that lying about DNA evidence is inherently different from lying about other evidence. The two cases Perez cites for this proposition do not support it.
¶24 In State v. Cayward, 552 So. 2d 971, 973-74 (Fla. Dist. Ct. App.
1989), the court upheld an order suppressing the defendant’s confession, not
because the police had lied about DNA evidence, but because they had fabricated
laboratory reports indicating that semen stains found on the victim’s underwear
came from the defendant. The key
distinction in Cayward was not that DNA evidence was involved. Rather, the court drew a line between “verbal
assertions,” which are permissible, and “manufactured documentation,” which is
not.
¶25 In State v. Phillips, 30 S.W.3d 372, 374 (
¶26 Perez also attempts to distinguish his case from Triggs on the basis that Triggs involved one lie, while DuBois told multiple lies. This argument is unpersuasive. All of DuBois’ misrepresentations involved the existence of inculpatory evidence, the type of deceit least likely to result in an involuntary confession. Thus, the fact that DuBois told several lies instead of one does not make a perceptible difference in our analysis. Accordingly, we give little weight to DuBois’ misrepresentations in analyzing whether Perez’s statements were voluntary.
¶27 Perez also argues his statements to DuBois were involuntary
because DuBois offered Perez significant inducements to confess. On multiple occasions during the
interrogation, DuBois made statements to Perez about the benefits of admitting
guilt. See supra, ¶7. However,
DuBois did not promise Perez leniency in exchange for his confession. “An officer telling a defendant that his
cooperation would be to his benefit is not coercive conduct, at least so long
as leniency is not promised. Similarly,
coercive conduct does not occur when … an officer, without promising leniency,
tells a defendant that if he or she does not cooperate the prosecutor will look
upon the case differently.” State
v. Deets, 187
¶28 The statements DuBois made are similar to those in State
v. Berggren, 2009 WI App 82, 320 Wis. 2d 209, 769 N.W.2d 110, which we
found were not improper or coercive. In Berggren,
a detective interrogating the defendant conveyed “the idea that if [the
defendant] confessed he would get treatment … and his confession would have a
large impact on the district attorney’s position.”
¶29 Because DuBois’ inducements to confess were not inherently improper, the only police conduct we must weigh against Perez’s personal characteristics is DuBois’ deception about inculpatory evidence. After conducting this balancing test, we conclude Perez’s statements were voluntary.
¶30 Perez cites his eleventh-grade education as a factor that makes
him particularly vulnerable to police pressure.
However, in In re Shawn B.N., 173
¶31 Perez also argues his lack of prior contact with police made
him vulnerable. Perez testified at the
postconviction hearing that he had never been interrogated before his encounter
with DuBois. However, on
cross-examination Perez admitted talking to police at his workplace on a prior
occasion when he was accused of punching
¶32 Perez next argues he was vulnerable to police pressure because he had quit smoking less than two weeks before the interrogation. However, Perez has not presented any evidence that nicotine withdrawal affected the voluntariness of his statements. At the postconviction hearing, Perez testified that his desire for a cigarette may have affected his stress level during the interrogation. He has never claimed, though, that his desire to smoke interfered with his ability to think clearly or to decide what to say to DuBois.
¶33 Perez also argues his failure to receive an insulin shot or food during the interrogation made him vulnerable to police pressure. Perez testified at the postconviction hearing that when he does not take his insulin shot at the appropriate time he experiences “mood swings” and feels “kinda woozy.” However, Perez admitted under cross-examination that his lack of insulin did not affect his ability to think clearly during the interrogation. Perez’s trial counsel testified Perez never told her he had asked DuBois for food and never indicated he had been disoriented during the interrogation. The record is devoid of evidence that Perez’s diabetes adversely affected his ability to withstand police pressure.
¶34 Finally, Perez argues he was vulnerable to police pressure because he is a conflict-averse person. The only evidence of this is Perez’s fiancée’s testimony that he reacts to stressful situations by attempting to avoid conflict. We do not believe this testimony demonstrates a particular susceptibility to police stratagems.
¶35 The personal characteristics Perez claims made him vulnerable to police pressure should be viewed in light of the fact that he was thirty-four years old, was given Miranda warnings and said he understood them, and had recent experience being questioned by police. After balancing Perez’s personal characteristics against the police tactic of lying about the existence of inculpatory evidence, we conclude Perez’s statements were voluntary. Because a motion to suppress on voluntariness grounds would have failed, Perez’s trial counsel was not ineffective for failing to make such a motion.
II. Failure to present expert testimony
¶36 Perez next claims his trial counsel was ineffective because she
failed to present expert testimony that the interrogation techniques DuBois used
can induce false confessions. However, State
v. Van Buren, 2008 WI App 26, 307
¶37 Van Buren argued his trial attorney was ineffective for failing
to present testimony from a false-confession expert.
The issue is not whether the evidence could have come
in, but whether Van Buren’s counsel, by not offering it, fell below an
objective standard of reasonableness as measured against prevailing
professional norms. Even if Van Buren is
correct and false-confession expert testimony should be admitted, the published
and unpublished cases contain only one instance of its introduction at a trial
in
¶38 Perez also argues his trial counsel was ineffective for failing
to introduce expert testimony concerning the techniques Tell and DuBois used to
interview
III. Failure to seek exclusion
of Perez’s statements that he grabbed
¶39 Perez argues his trial counsel should have moved to exclude his
statements that he: (1) picked Taylor up by the neck; (2) made
Taylor clean a wall, causing her to develop blisters; and (3) punched
¶40 At trial, Bauer testified
I didn’t squeeze her. I just went like that, you know, so she would look at me because she kept putting her head down. I didn’t do it to hurt her.
….
I didn’t grab her hard. I went like that, you know, to get her attention because she kept yelling … I started crying, and I wasn’t hurting her. I wasn’t hurting anyone …. I was trying to get her controlled because she kept running back and forth.
¶41 At the postconviction hearing, Perez’s trial counsel testified
she understood the incident as Perez putting his palm “basically underneath the
chin and just kind of getting [
¶42 A similar analysis applies to the wall-scrubbing incident. Bauer testified, “[
¶43 Perez’s statements provided an alternate, innocent explanation
for the blisters on
¶44 Perez also argues his trial counsel should have moved for
exclusion of his statements that he previously punched or hit
¶45 However, a motion to exclude these statements would have
failed. At trial, the defense argued
that DuBois used deceit and other interrogation tactics to convince Perez he
could have sexually assaulted
IV.
Failure to present evidence that
¶46 Perez argues his trial counsel should have presented evidence
that
¶47 At the postconviction hearing, Perez’s trial counsel testified
she “didn’t see the similarities” between
¶48 Furthermore, while counsel initially stated she had no
strategic reason for failing to introduce this evidence, she later indicated it
would have been at odds with other evidence that Perez’s diabetes affected his
ability to perform sexually. Counsel
believed evidence that Perez and his fiancée engaged in sexual intercourse
“would cloud the issue” of his sexual functioning and she “wanted to steer
clear of that.” Counsel’s strategic decision
not to introduce this evidence fell within “the wide range of professionally
competent assistance,” see Strickland, 466
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Miranda
v.
[2] In
Claim 3 of his postconviction motion, Perez argued his attorney was ineffective
for failing to move for exclusion of all evidence that Perez had picked Taylor
up by the neck, made her clean the wall, and punched her. On appeal, Perez has significantly narrowed
this claim, challenging only counsel’s failure to object to “statements made by
Perez during the interrogation.”
Consistent with this framing of the issue, Perez’s brief cites solely to
statements he made to DuBois during the interrogation. Perez has therefore abandoned his trial court
claims that counsel was ineffective for failing to object to statements