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COURT OF APPEALS
DECISION
DATED AND FILED
November 23, 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 WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Edward D. Anderson,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: richard
j. sankovitz, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Edward Anderson, pro se, appeals from an order denying
his Wis. Stat. § 974.06
(2007-08)
motion. Anderson contends the circuit court
erroneously exercised its discretion in denying the motion without a
hearing. We agree with the circuit
court’s decision and affirm the order.
BACKGROUND
¶2 In 2003, Anderson
was convicted on two counts of third-degree sexual assault following a court
trial. The primary evidence against him
was the victim’s videotaped statement. He
was sentenced to a total of eight years’ initial confinement and eight years’
extended supervision. Following an unsuccessful
postconviction motion, Anderson
appealed. In that appeal, Anderson claimed: his constitutional speedy trial right was
violated; he was denied the right to present a defense when the court denied
his motion to introduce the child victim’s prior sexual conduct; and the court
imposed an unduly harsh sentence. We
rejected the speedy trial claim, but we remanded to the circuit court for a
determination of whether evidence of the victim’s prior behavior was admissible
under State v. Pulizzano, 155 Wis. 2d 633, 651, 456 N.W.2d 325
(1990). See State v.
Anderson, No. 2004AP2607-CR, unpublished slip op. ¶¶20, 30 (WI App
Sept. 27, 2005) (Anderson I).
¶3 Anderson
had assaulted his four-year-old victim by placing his mouth on her vagina, and
by placing his penis in her anus. Anderson’s mother claimed
that she had, while babysitting the victim, observed the girl licking or
sucking the crotch area of a Barbie doll.
Anderson thus claimed this evidence
showed the victim had an alternative source for her sexual knowledge other than
Anderson’s
assault.
¶4 Under Pulizzano, in order for evidence of
the doll incident to be admissible, Anderson had to show that: (1) the prior incident his mother claimed to
have observed “clearly occurred”; (2) the incident “closely resembled” the
facts of the present case; (3) the prior act was relevant to a material issue;
(4) evidence of the act was necessary; and (5) the probative value of the
evidence outweighed the prejudicial value.
Id., 155 Wis. 2d at
656. Following a hearing on remand, the
circuit court concluded that Anderson
had not satisfied the Pulizzano criteria. The matter returned to this court and we
affirmed. See State v.
Anderson, No. 2004AP2607-CR, unpublished slip op. (WI App Nov. 6, 2007)
(Anderson
II). We also affirmed Anderson’s sentence,
rejecting his claim that it was unduly harsh.
¶5 In October 2008, Anderson
filed a pro se postconviction motion,
raising five issues. First, he claimed
that the State committed a discovery violation by failing to disclose that his
victim received “a large back-pack filled with toys and arts-supplies” in
purported exchange for her making a videotaped statement that constituted the
key evidence against Anderson. Second, Anderson
alleged that the State violated his right to a prompt disposition under Wis. Stat. § 971.11, the Intrastate
Detainer Act, and violated his constitutional right to a speedy trial. Third, he claimed that the failure of some of
his attorneys to properly investigate witnesses with allegedly relevant
testimony about the victim’s post-assault behavior constituted ineffective
assistance. Fourth, Anderson alleged that remand counsel was
ineffective because he failed to present testimony of fifteen other witnesses
at the hearing. Fifth, Anderson claimed that remand counsel was ineffective
because counsel failed to object to the State’s suborning of perjury.
¶6 The circuit court determined Anderson’s motion was brought under Wis. Stat. § 974.06 and State
ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App.
1996), and rejected the motion. It ruled
that remand counsel was not ineffective because none of the witnesses had any relevant
evidence to explain how the victim would have precocious awareness of sodomy;
therefore, Anderson
suffered no prejudice from counsel’s failure to call these witnesses. The court rejected the speedy trial claim because
it had been previously decided, and concluded all other issues were barred
because they had not previously been raised.
See Wis. Stat. § 974.06(4); State v. Escalona-Naranjo,
185 Wis. 2d
168, 185, 517 N.W.2d 157 (1994). Anderson appeals.
DISCUSSION
I. The State’s Alleged Discovery
Violation.
¶7 Anderson
alleges the State failed to disclose, under Wis.
Stat. § 971.23, that it had “paid” his victim with toys and art
supplies for her videotaped statement.
Assuming without deciding that the State was obligated to disclose that
information, Anderson
argued that the State had committed a statutory violation, for which his remedy
should have been suppression. Although
the circuit court ruled this matter was procedurally barred because it had not
been previously raised, this claim is barred because Wis. Stat. § 974.06 claims are generally limited to
constitutional and jurisdiction issues. See Wis.
Stat. § 974.06(1); State ex rel. Panama v. Hepp, 2008 WI App
146, ¶19, 314 Wis. 2d 112, 758 N.W.2d 806.
The State’s alleged discovery violation does not fall within the scope
of a § 974.06 motion and was appropriately rejected by the circuit court.
II. The Speedy Trial/Intrastate Detainer
Issue.
¶8 In Anderson’s
first appeal, he claimed a violation of his constitutional speedy-trial
rights. See Anderson I,
unpublished slip op. at ¶8. We rejected
the claim. Id., ¶20. Anderson’s
current motion alleges a violation of Wis.
Stat. § 971.11. This alleged
statutory violation is also outside the scope of a Wis. Stat. § 974.06 motion. To the extent Anderson alleges a violation of his
constitutional right to a speedy trial, the matter was previously litigated and
cannot be revisited. See State v. Witkowski, 163 Wis. 2d 985, 990,
473 N.W.2d 512 (Ct. App. 1991).
III. Pre-remand Counsels’ Failures.
¶9 Anderson alleges that two of his prior trial attorneys,
before the remand, were ineffective for failing to find and interview witnesses
to testify about the victim’s non-fearful behavior towards Anderson, subsequent
to his assault. This issue is barred by Escalona-Naranjo. It is an issue that could have been raised
previously, in prior postconviction or appellate proceedings, and Anderson offers no
explanation for failing to raise it previously.
IV. Ineffectiveness of Remand Counsel.
¶10 Anderson
claims Attorney Scott Anderson was ineffective for failing to call fifteen
witnesses on remand. The circuit court
rejected this claim on its merits,
noting that the proposed testimony of these witnesses was largely irrelevant to
the two key questions on remand: Whether
the doll incident occurred, and whether it “closely resemble[d]” the alleged
assaults. See Pulizzano, 155 Wis. 2d at 651. In
addition, the court noted that even if the proposed testimony made it more
likely that the doll incident occurred, none of it was sufficient to establish
how the victim obtained an alternate source of knowledge about sodomy.
¶11 We agree with the circuit court’s analysis on the proposed
testimony; it was irrelevant. Because the
evidence was irrelevant, it was inadmissible.
Because it was inadmissible, Anderson
suffered no prejudice from counsel’s failure to pursue it. Because there was no prejudice, counsel was
not ineffective. See Strickland v. Washington, 466 U.S. 668, 697 (1984).
V. Perjured Testimony.
¶12 Anderson
also claimed Attorney Anderson was ineffective because he failed to object to
the victim’s mother’s “perjured” testimony.
On remand, the mother testified that she did not learn about the alleged
Barbie doll incident until trial.
Previously, the State had represented that the mother reported she may
have had a brief conversation with Anderson’s
mother about the victim and a Barbie doll in 1998 when the child was twelve to
twenty-four months old. The circuit
court implicitly decided this issue when rejecting the overriding claim that
Attorney Anderson was ineffective.
¶13 Perjury is a specific legal term. It requires a person “under oath or
affirmation” to orally make before a court or judge “a false material statement
which the person does not believe to be true[.]” See
Wis. Stat. § 946.31. The State made its representation in August
2002; the victim’s mother testified in April 2006. At best, Anderson shows that the victim’s mother’s remand
testimony was inconsistent with the State’s representation made four years
earlier. Highlighting an apparent
inconsistency does not establish perjury.
VI. “Real Controversy.”
¶14 Finally, Anderson
argues the real controversy was not fully tried, so he should receive a new trial. The real controversy of whether Anderson assaulted his
victim was, in fact, fully tried. A new
trial is not warranted, and the court properly rejected Anderson’s motion without a hearing.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.