COURT OF
APPEALS DECISION DATED AND
RELEASED October
17, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 93-3253-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DONALD
L. LONG,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Dane
County: GEORGE NORTHRUP, Judge.
Affirmed.
Before
Eich, C.J., Dykman, P.J., and Vergeront, J.
DYKMAN,
P.J.[1] Donald
L. Long was convicted of first-degree intentional homicide as a
party-to-a-crime resulting from the death of his son, Wesley. The trial court denied his postconviction
motions, and he appeals.
We
previously considered some of the facts of this case in State v. Jackie
Long, No. 93-3235-CR, unpublished slip op. (Wis. Ct. App. Mar. 23,
1995). There, we affirmed the
conviction of Jackie Long, Donald Long's wife, of the same crime for which
Donald Long was convicted. Long argues
that we should reverse his conviction because: (1) the trial
court erroneously exercised its discretion by joining (or failing to sever)
Donald and Jackie Long's cases for trial; (2) the trial court improperly
admitted evidence of other bad acts; (3) the trial court failed to
instruct the jury as to the other bad acts evidence; (4) the
party-to-a-crime instruction was improper; (5) the information and the
party-to-a-crime instruction allowed the jury to convict under an invalid
theory of the law; and (6) he was denied effective assistance of
counsel. We reject these arguments and
therefore affirm the judgment and post-trial order.
We
take the facts from our opinion in State v. Jackie Long.
On January 2,
1992, Donald and Jackie Long called emergency medical technicians to their
residence in Mazomanie. On arrival, the
technicians found the Longs' infant son, Wesley, unresponsive, pulseless and
not breathing. Donald Long told the
technicians that he had been asleep on a sofa with Wesley on his stomach and
had accidentally fallen to the floor, possibly landing on top of the
child. He said that although Wesley
cried after the incident, he eventually calmed down and was put to bed. The medical personnel immediately took
Wesley to University Hospital in Madison where, despite efforts to resuscitate
him, he died.
An autopsy performed by Dr. Robert Huntington
on January 2 revealed that Wesley had multiple cranial and rib fractures (in
varying stages of healing) which Huntington considered to be inconsistent with
Donald Long's explanation of the child's injuries. Huntington confirmed to the police that, because of the number of
injuries and their relative stages of healing, he believed Wesley's death was a
homicide.
The Longs were
charged with first-degree intentional homicide, each as a party to the crime,
and the cases were consolidated for trial.
The jury found both guilty, and the trial court sentenced [Donald] Long
to life in prison with parole eligibility in thirty years and denied [his]
motions for postconviction relief.
Other facts will be discussed in the body of the opinion.
I. Improper
Joinder
The
trial court granted the prosecutor's motion to join Donald and Jackie Long's
cases for trial. Long complains that
this resulted in the jury hearing voluminous bad acts evidence pertaining only
to Jackie Long, prejudicing him. But he
did not object to the joinder on this basis until his postconviction hearing.
In
a pretrial letter to the court, Long objected to the State's joinder
motion. He argued that in a joint
trial, the defendants could only avoid a conviction by blaming each other for
their baby's death, and that § 971.12(3), Stats., required separate trials if either of two defendants
had given a statement implicating the other co-defendant. He repeated the first of these reasons at a
pretrial hearing on the State's motion.
To
be considered timely, objections must be made prior to the return of the jury
verdict. Wingad v. John Deere
& Co., 187 Wis.2d 441, 457, 523 N.W.2d 274, 281 (Ct. App.
1994). A party cannot wait until after
receiving an unfavorable verdict, then raise an objection or state different
grounds in the motions after verdict. Id.
at 458, 523 N.W.2d at 281. In Behning
v. Star Fireworks Mfg. Co., 57 Wis.2d 183, 187, 203 N.W.2d 655, 658
(1973), the court said:
We have uniformly
held that failure to make a timely objection precludes a party, as a matter of
right, to subsequently raise the point.
Ordinarily, it is necessary to make a timely objection, and again to
renew the objection on a motion for a new trial, to give the trial judge an
opportunity to correct a possible error.
Long's
brief asserts that "[i]n pre-trial motions, it became clear that a
substantial line of evidence relevant only to, and admissible only against
Jackie Long, would be introduced."
Had Long wanted to make the argument then that he now makes on appeal,
he could have done so. Had he done so,
the trial court could have addressed the objection. With information as to the nature and extent of the evidence
relevant only against Jackie Long, the trial court could have decided to sever
the two trials. Having not moved to
sever the two trials for the reason now asserted, Long has waived the issue of
whether the trial court erroneously exercised its discretion by refusing to
sever the trials because of evidence admitted solely against his wife.
II. Bad Acts
Evidence
Long
asserts that the trial court erroneously exercised its discretion by permitting
a voluminous amount of bad acts evidence to be given to the jury. He particularly objects to evidence that
when he was twelve years old, he spanked two children for whom he was
babysitting, causing bruises. He argues
that the trial court failed to address the relevance of the bad acts evidence
and failed to balance the danger of unfair prejudice against the probative value of the evidence. See § 904.03, Stats.[2] But Long specifically agreed that the State
could admit much of this evidence. In a
written response to the State's motion for a ruling on its proposed
introduction of the bad acts evidence, Long conceded:
With regard to
evidence concerning the children named Scott, Amber, Anthony and Wesley, Donald
Long will not object to its introduction using Wis. Stats. 904.04(2) as a basis
for objection. He does reserve the
right to object to such evidence on other bases, such as relevance.
Relevant
evidence is defined in § 904.01, Stats.,
as "evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less
probable than it would be without the evidence."
Long
does not now directly argue that the bad acts evidence was admitted to prove
Long's character. And that is notable,
for even if the bad acts evidence was irrelevant, it could not be prejudicial
absent an assertion that it was introduced to show Long's character. But the significant problem with his present
complaint as to the relevance of the evidence and the trial court's asserted
failure to balance the danger of unfair prejudice of the evidence against its
probative value is that he did not object to the admission of the evidence when
it was introduced.
In
his reply brief, Long concedes that he did not object to the bad acts
evidence. He asserts that this is
because the trial court's decision to join his and his wife's cases affected
his strategy. He also argues that
because the trial court intended to allow bad acts evidence concerning a
battery Long committed when he was twelve years old, it would have permitted
the State to show any bad acts evidence it wished.
When
the trial court ruled on the State's motion to admit the bad acts evidence, it
told Long that its ruling was not final:
And
while I'm making a general ruling, as with any motion in limine, a lot of that
is going to be subject to how things progress at trial....
....
... I recognize
also that by ruling as I am on the, for lack of a better term, the Whitty
evidence, that there is a gray area there.
And that some of the individuals that may be called to testify on some
of the so-called Whitty evidence may be touching upon areas that
the State feels are subject to the motion in limine. And we'll have to deal with that, I guess, as that occurs.
In
Wingad v. John Deere, 187 Wis.2d 441, 457, 523 N.W.2d 274, 280
(Ct. App. 1994), the defendant objected at pretrial to evidence because it was
undated and unpublished. As here, the
objection that the evidence was irrelevant and that the probative value of the
evidence was outweighed by the danger of unfair prejudice was not made until
post-trial motions. We said:
A party cannot
wait until after receiving an unfavorable verdict, then raise an objection or
state different grounds in the motions after verdict. John Deere's objection to the learned treatises on relevancy
grounds in the motions after verdict was untimely because it prevented the
trial court from reviewing the relevancy of the evidence before it was
presented to the jury. Because John
Deere objected to the learned treatises on different grounds and did not object
or move to strike in a timely manner, its objection to the learned treatises
was waived.
Id. at 458, 523 N.W.2d at 281.
We
reject Long's proffered excuse that he did not object to the bad acts evidence
because the trial court's decision to join the cases affected his strategy and
because objection would probably be futile.
Long has failed to provide authority supporting these assertions or to
develop them. We conclude that Long has
waived any objections to the other acts evidence. See State v. Shaffer, 96 Wis.2d 531, 545-46, 292
N.W.2d 370, 378 (Ct. App. 1980).
III. Whitty and Cautionary Instructions
Citing
Wis J I—Criminal 275, Long
asserts that the trial court failed to describe each other act that the jury
could consider. The instruction
reads: "Specifically, evidence has
been received that the defendant (describe act). If you find that this conduct did occur
...." Long also complains that the
jury instructions did not limit the use of the bad acts evidence to the party
against whom it was introduced nor did the instruction link the act to the
issue or issues the jury was to decide.
Finally, Long argues that the trial court failed to give the jury Wis J I—Criminal 122. This instruction explains that the jury must
be satisfied that the evidence is sufficient as to each defendant before
it returns a guilty verdict as to both defendants.
Long
did not object to the instructions that were given, nor did he request other
instructions. In State v.
Schumacher, 144 Wis.2d 388, 409, 424 N.W.2d 672, 680 (1988), the
supreme court concluded that the court of appeals has no authority to directly
reach unobjected-to instructions.
However, we have discretionary authority under § 752.35, Stats., to consider waived issues. Vollmer v. Luety, 156 Wis.2d
1, 13, 456 N.W.2d 797, 803 (1990).
Citing
State v. Brooks, 124 Wis.2d 349, 354, 369 N.W.2d 183, 185-86 (Ct.
App. 1985), Long asks us to review the jury instructions because the error is
plain and affects his substantial rights.
Section 901.03(4), Stats.,
a supreme court rule, sets out the plain error rule: "Nothing in this rule precludes taking notice of plain
errors affecting substantial rights although they were not brought to the
attention of the judge." But Brooks
precedes Schumacher and Vollmer, and is a
court of appeals decision. It can
hardly affect the supreme court's discussion of § 805.13, Stats., in Schumacher and
Vollmer, in which the court said that we had no power to review
unobjected-to jury instructions. We
conclude that we do not have the power to review unobjected-to jury
instructions for plain error.
Long
also asks us to review these instructions, despite his waiver, because the
asserted errors in the instructions prevented the real controversy from being
tried. "Real controversy not
tried" is one of the two reasons that permit us to review errors under
§ 752.35, Stats., which
permits discretionary reversals by the court of appeals. If we reverse under § 752.35 because
the real controversy was not tried, we need not conclude that there is a
substantial probability of a different result at a second trial. State v. Grobstick, 200 Wis.2d
242, 254, 546 N.W.2d 187, 191 (Ct. App. 1996).
However, the real controversy in this case concerned the part Long
played in the death of his son. This
issue was the focus of the entire trial.
The State introduced much evidence to show that Wesley's death was not
accidental and that both of his parents either directly caused his death or
stood by when they could have acted to prevent the actions that eventually led
to the death. Both Long and his wife
introduced evidence which tended to show that each was not involved in the
death in any way. We are to exercise
our statutory power of discretionary reversal infrequently and
judiciously. State v. Ray,
166 Wis.2d 855, 874, 481 N.W.2d 288, 296 (Ct. App. 1992). Our review of the record does not convince
us that the real controversy was not tried.
The asserted defects in the jury instructions do not persuade us otherwise.
IV. Party-to-a-Crime Instruction
A.
Long
asserts that the trial court gave a party-to-a-crime instruction which was
pertinent only to a negligent homicide case.
Again, Long did not object to this instruction, and, as we have
explained, we may not directly review it.
But this instruction pertains to the entire controversy surrounding this
case. We therefore inquire into Long's
assertions pursuant to our power of discretionary reversal found in
§ 752.35, Stats.
The
part of the instruction to which Long now objects reads:
It is not
essential that the ultimate harm which resulted was unforeseen or intended by
the actor. It is sufficient that the
ultimate harm is one which a reasonable person would foresee as being
reasonably related to the acts of the defendant.
But
the language to which Long objects is only a small part of the court's
instructions on party-to-a-crime. The
instructions explain aiding and abetting liability and conspiracy liability. Taken as a whole, the instructions
accurately portray party-to-a-crime liability. We are to consider instructions
as a whole to determine whether the jury was misled. Savina v. Wisconsin Gas Co., 36 Wis.2d 694, 703,
154 N.W.2d 237, 241 (1967). Even the
section of which Long complains correctly states a portion of party-to-a-crime
liability. In State v. Cydzik,
60 Wis.2d 683, 697, 211 N.W.2d 421, 429 (1973), the court upheld the
defendant's conviction despite his assertion that he only set out with his
accomplice to rob a service station, not to murder the attendant. The fact that the defendant did not pull the
trigger was not relevant. The court
said: "But legal intent may be
inferred from conduct. One is presumed
to intend the natural and probable consequences of his act." Id. at 697, 211 N.W.2d at
429-30. The language to which Long
objects conveys this meaning. It does
not instruct the jury that negligent conduct may form the basis for a first-
degree intentional homicide conviction.
The party-to-a-crime instruction did not prevent the real controversy
from being tried.
B.
Long
argues that the party-to-a-crime instructions, coupled with the information,
permitted the jury to convict him if it found that he had injured Wesley,
whether or not the injury led to Wesley's death. Long did not object to the instruction, and we therefore cannot
directly consider his assertion. Schumacher,
144 Wis.2d at 409, 424 N.W.2d at 680.
We have already considered the instructions on party-to-a-crime and have
concluded that they did not prevent the real controversy from being tried. Adding the information to the instructions
makes no difference. The information
alleged only that Long, as a party-to-a-crime, caused the death of Wesley. There was no real dispute that Wesley died
as a result of one or two skull fractures, not as a result of other injuries he
had received. We will not exercise our
§ 752.35, Stats., power of
discretionary reversal.
Long
also contends that the jury instructions allowed his conviction if his
participation amounted only to knowledge of his wife's acts which caused
Wesley's death. Long's failure to
object to the instructions prevents us from directly addressing this
assertion. Schumacher,
144 Wis.2d at 409, 424 N.W.2d at 680.
However, we will consider his contention under our § 752.35, Stats., power of discretionary
review. We do so because Long is
arguing that Wisconsin law does not permit "omission liability" for
first-degree intentional homicide. Though
this would not usually be raised by an attack on jury instructions, if Long is
correct, the real controversy would not have been tried.
Long
argues that State v. Rundle, 176 Wis.2d 985, 500 N.W.2d 916
(1993), prohibits "omission liability" in child abuse cases. Before addressing this assertion, we will
consider State v. Williquette, 125 Wis.2d 86, 370 N.W.2d 282 (Ct.
App. 1985), aff'd, 129 Wis.2d 239, 385 N.W.2d 145 (1986). We said:
Here, Williquette
allegedly knew that her husband repeatedly abused their children, yet she did
nothing to prevent future occurrences.
If she had been present at the time of the abuse, therefore, the state
could prosecute her for aiding and abetting.
Her knowing failure to intervene would reasonably indicate an intent to
assist the perpetrator. Similarly,
Williquette allowed the abuse to continue when she failed to intervene, despite
knowledge of a pattern of abuse in her absence. Inaction in this situation supports an inference of an intent to
assist the crime.
Id. at 91, 370 N.W.2d at 285.
The
supreme court affirmed Williquette, but on a different theory. Justice Bablitch would have affirmed on a
theory of aiding and abetting. State v. Williquette, 129 Wis.2d
239, 262, 385 N.W.2d 145, 155 (1986) (Bablitch, J., concurring). The majority, however, did not reach this
issue. Id. at 243 n.2,
385 N.W.2d at 147. Our decision as to
aiding and abetting is therefore precedential on the aiding and abetting issue.
We
return to Rundle. Long
asserts that Rundle, which addressed the recently revised child
abuse statute, § 948.03, Stats.,
prohibits charging "omission liability" under the aider and abettor
statute, § 939.05(2), Stats. But this reading of Rundle is
too expansive.
Effective
July 1, 1989, the legislature adopted a new child abuse statute, § 948.03,
Stats. Section 948.03(2) prohibits intentional causation of bodily
harm to a child, § 948.03(3) prohibits reckless causation of bodily harm
to a child, and § 949.03(4) prohibits failing to act to prevent bodily
harm to a child, or "omission liability." In Rundle, the State charged Kurt Rundle with
aiding and abetting his wife in intentionally and recklessly causing bodily
harm to a child, contrary to § 948.03(2) and (3). 176 Wis.2d at 987-88, 500 N.W.2d at 916-17. The State was thus attempting to convict
Rundle of violating § 949.03(2) and (3), but was doing so by using
§ 939.05(2), Stats., the
omnibus aiding and abetting statute.
The
supreme court did not permit this use of § 939.05(2), Stats.
It reasoned that because the legislature had adopted a version of
"omission liability" in § 948.03(4), Stats., which required that the State prove some conduct,
either verbal or overt, it made no sense
to make § 948.03(4) surplusage by permitting the State to use the
omnibus aiding and abetting statute to avoid having to prove this element of
the crimes. Rundle, 196
Wis.2d at 1003-04, 500 N.W.2d at 923.
The
supreme court found persuasive the "package" concept of
§ 948.03, Stats. It found the legislative history of this
statute helpful. It noted that
"[i]n sec. 948.03(4) the legislature has specified which omissions to act
are unlawful." Rundle,
176 Wis.2d at 1003, 500 N.W.2d at 923.
But that reasoning, while convincing as to the interpretation of
§ 948.03(4), does not transfer to the question before us, which is whether
the omnibus aiding and abetting statute is applicable when the charge is not
intentionally or recklessly causing harm to a child, but first-degree
intentional homicide, where the victim is a child.
What
the legislature intended as to prosecutions for harming a child does not tell
us the legislative intent in first-degree intentional homicide prosecutions
where the victim is a child. We are
therefore back to our decision in Williquette, which arose when
the trial court granted Williquette's motion to dismiss the information. Williquette, 125 Wis.2d at 87,
370 N.W.2d at 283. There, we held that
it was sufficient to show that Williquette allegedly knew that her husband had
repeatedly abused their children, yet did nothing to prevent future occurrences. Id. at 91, 370 N.W.2d at
285. That is what the State proved
here. The information and instructions
of which Long complains therefore did not prevent the real controversy from
being tried. He is not entitled to
discretionary relief under § 752.35, Stats.
V. Ineffective
Assistance of Counsel
Long
cites four instances where he believes that trial counsel was constitutionally
ineffective, requiring that he be given a new trial. The tests for ineffective assistance of counsel were given in Strickland
v. Washington, 466 U.S. 668 (1984), and used in State v. Pitsch,
124 Wis.2d 628, 369 N.W.2d 711 (1985).
Constitutional ineffective assistance of counsel requires that trial
counsel's performance be deficient, prejudicing the defendant. Pitsch, 124 Wis.2d at 633, 369
N.W.2d at 714. We review the trial
court's findings of fact deferentially and may not set them aside unless they
are clearly erroneous.
Section 805.17(2), Stats. Whether
counsel's performance was deficient and whether, if deficient, the deficiency
was prejudicial are questions of law, which we decide de novo. Pitch, 124 Wis.2d at 634, 369
N.W.2d at 715. Counsel is strongly
presumed to have rendered adequate assistance, and the acts complained of must,
to be ineffective, be outside the wide range of professionally competent
assistance. Id. at 637,
369 N.W.2d at 716. The ultimate test is
whether counsel's errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687. We need not undertake the deficient performance analysis if the
defendant has failed to show prejudice.
State v. Wirts, 176 Wis.2d 174, 180, 500 N.W.2d 317, 318
(Ct. App. 1993).
Long
first objects to his trial counsel's failure to object to the bad acts evidence
involving other injuries to and neglect of the Long children. The trial court made findings as to this
assertion:
[Defense counsel] did not object to most of the Whitty
evidence once it was admissible, because he believed it helped his
client. He testified that he in fact
needed a lot of the Whitty evidence to point the finger at the
co-defendant. He did not object to
testimony regarding Donald battering Jackie because he felt it showed that
Jackie, in anger, took it out on Amber, thereby again pointing the finger at
Jackie. [Defense counsel] testified
that while he could have objected to some isolated pieces of evidence, they
were damaging to Donald only if the jury believed Donald was not telling the
truth. His strategy was to show that
Jackie was not credible and that Donald was open, straightforward and truthful.
These
findings are not clearly erroneous. Our
review shows that Long could not realistically show that Wesley died from
causes other than trauma. His only hope
for acquittal was to convince the jury either that someone else caused the
trauma and that he was not aware of the trauma or that the trauma was the
result of accident. The latter was
effectively removed as a defense by the State's medical witnesses. It is reasonable, therefore, that trial counsel
adopted a theory which shifted the blame to Long's wife. Most of the bad acts evidence pertained to
her. And once the trial court had ruled
that much of the bad acts evidence was admissible, counsel had to consider
whether continued objections, though they were necessary to preserve appellate
review, were worth the possible ill effect this might have on the jury. We conclude that trial counsel was not
ineffective for failing to object to the bad acts evidence.
Long
next asserts that trial counsel was ineffective for failing to request
cautionary instructions as to the bad acts evidence. He cites no authority for this position. Assuming that Long is correct and that counsel
should have requested a limiting instruction, we conclude that this failure was
not prejudicial. For instance, the jury
heard evidence that Long's wife told an emergency medical technician on the
night of Wesley's death that she had struck Wesley so hard she thought she
"slapped his head right off."
No jury could believe that this evidence pertained to Donald Long. In essence, Wis J I—Criminal 222 tells a jury that evidence received
as to one defendant may only be used against that defendant. This principle is commonly known. A suggestion that the opposite was true
would be met with incredulity. If Long
was in a position where he could have prevented the abuse of his children by
his wife, then the evidence was properly admitted as to him. If he was not, no jury would use it to
convict him. We conclude that if trial
counsel was ineffective for failing to request Wis J I—Criminal 222, that ineffectiveness was not
prejudicial.
Next,
Long asserts that trial counsel was ineffective because counsel accepted the
prosecution's theory of liability by his misstatements of law during closing
argument. This, he argues, led to
counsel's failure to request that the jury instructions and information be
limited so as to indicate that only Wesley's skull fractures could be used as a
basis for criminal liability. But, as
we have already concluded, there was no reasonable possibility that the jury
could have concluded that Wesley died as a result of injuries other than the
two skull fractures. If trial counsel
was ineffective for failing to contradict the prosecutor's theory of liability,
that failure could not have been prejudicial.
Long
argues that counsel was ineffective because he misstated the law to his
client's detriment. At one time, Long's
counsel told the jury: "It's not
just hindsight. It's that you knew at
the time a crime was being committed, to be guilty either as a principal or as
a party." This is a slightly
different way of arguing that State v. Rundle, 176 Wis.2d 985,
500 N.W.2d 916 (1993), does not permit party-to-a-crime liability in cases of
omission liability. In Williquette,
however, we held that knowledge and failure to act were sufficient to create
omission liability. There was no
dispute that Long failed to act to prevent his wife from fracturing Wesley's
skull. His defense was that he did not
know that his wife was battering Wesley.
Under this scenario, it is not ineffective to focus on the matter in
contention, which was Long's knowledge.
We conclude that Long's counsel was not ineffective for telling the jury
that Long could not be convicted if he did not know of his wife's crime.
Long's
last assertion of counsel's ineffectiveness is his failure to object to the
State's improper closing argument and misstatements of the law. Examples of the State's asserted improper
closing argument are misstating the testimony of a doctor, arguing that if Long
knew of any act causing injury to Wesley, he was guilty of first-degree
intentional homicide, and arguing that Long aided and assisted the commission
of crime by failing to take Wesley to the hospital or reporting his wife's
crime. Long's counsel also did not
object to the prosecutor's statements about Wesley's sister and negative
statements about the Long's child rearing misdeeds.
At
Long's post-trial motion hearing, his attorney testified that his strategy from
the time the trial court decided to admit much other acts testimony was to
convince the jury that Long did not know of his wife's abuse of Wesley. He said:
My thought process was this. I believed the law said that even if [Long]
knew, he'd still have to do something affirmative to help with the death of
that child before he was party to a crime.
Practically speaking, I thought if the jury believed he knew what was
happening to Wesley, they'd convict him anyway, whatever the law said. And there'd be no way of telling what the
jury had done, except their conviction.
and
My objection to [the bad acts evidence] was at
the beginning. And when it was decided
that the whole bag would be introduced, everything that happened in their lives
with regards to their children, then my choice was to object to each piece of
evidence as it was introduced and to object to the mention of each piece of evidence
after it was introduced.... And it seemed to me that that would not only
lengthen the trial by five or six weeks, it would also make the jury so unhappy
with me that I lost whatever chance I had to convince them.
and
So, we had time
deadlines or time lines showing when the damage arguably happened to all of
these children and that Donald wasn't around.
So, arguments concerning the damage to those children, if the jury
adopted our theory, weren't damaging at all.
If the jury didn't accept ours, I don't know that it mattered.
Under
defense counsel's theory, it did not matter that the State misstated a doctor's
testimony. Counsel noted that the jury
was going to hear of some very bad injuries that Wesley sustained and that the
only plausible defense was that Long was not there. Our decision in Williquette, that a parent who
knows of a spouse's child abuse and fails to intervene evinces an intent to aid
the perpetrator, left very little for Long to argue, except that he was not
present when the abuse occurred and did not know of it. That is what Long's counsel did.
We
have read the same testimony that the trial court heard. The trial court concluded:
There was a theory of defense carefully and consistently
followed, even if it meant not objecting at those times when the claimed
objectional evidence fit the theory of defense. He testified that he believed the jury would be more likely to
acquit Donald if they convicted Jackie and therefore sought to enhance that
approach.
We
also conclude that Long's counsel's representation was not deficient. With hindsight, we can hypothesize different
ways that counsel could have reacted to the State's case. But, given the "omission
liability" we approved in Williquette, Long had to convince
the jury that he did not know that his wife was injuring Wesley. That was what his attorney attempted to
do. The fact that the approach was
unsuccessful does not mean that counsel was ineffective. Long is not entitled to a new trial for want
of competent defense counsel.
By
the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.
[1] This case, originally taken under submission
by the court in November 1994, was reassigned to the author for opinion
preparation on August 28, 1996.
[2] Section 904.03, Stats., provides:
Although relevant,
evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.