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COURT OF APPEALS DECISION DATED AND RELEASED June 8, 1995 |
NOTICE |
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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. 94-1426-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
FELIPE M. BENITEZ,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for La Crosse County: JOHN J. PERLICH, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
DYKMAN, J. Felipe M. Benitez appeals from a judgment
convicting him of eight counts of sexual assault of a child as a repeater, and
from an order denying his postconviction motion. He asserts that he was denied his constitutional right to
effective assistance of counsel, that three trial court evidentiary rulings
were reversible error, and that he should be given a new trial in the interest
of justice.
We conclude that
counsel's representation, though in some respects deficient, did not prejudice
Benitez. We also conclude that the
trial court did not erroneously exercise its discretion as to its challenged
discretionary rulings and that Benitez is not entitled to a new trial in the
interest of justice. Accordingly, we
affirm.
BACKGROUND
Benitez met Sandy in
1985. After they became lovers, Benitez
would sometimes stay overnight at Sandy's residence. Sandy was the mother of twin girls, Amy and Andrea, born in
October of 1976. Amy testified that
between the fall of 1987 and the spring of 1989, when she was eleven and twelve
years old, Benitez sexually assaulted her on more than fifty occasions. Some of these assaults took place in the
home while the family was present, although Amy did not tell anyone about them
at the time. Andrea testified that
Benitez sexually assaulted her once in the spring of 1989. Neither of the twins told anyone about the
assaults until 1991, when Amy told a friend.
Amy ultimately told a social worker about the assaults, and Andrea also
revealed the assault against her. In
1993, Benitez was charged with the assaults against Amy and Andrea.
COMPETENCY OF TRIAL COUNSEL
At
trial, counsel for Benitez did not object to hearsay testimony from two of Amy
and Andrea's friends, from a social worker and from Sandy. Nor did he object to testimony from three
social workers who testified as to conversations they had with Amy and
Andrea. At the postconviction hearing,
Benitez's counsel testified that he did not object to the hearsay testimony
because he and Benitez had concluded that the more testimony that came in, the
less believable the twins' story became.
For example, counsel did not object to testimony that Benitez sexually
assaulted Amy immediately outside her mother's open bedroom door while
Sandy was sleeping. Though the
sexual assaults were numerous and occurred when the whole family was at home,
both twins testified that neither one knew of the other's involvement with
Benitez. Counsel felt that by letting
in evidence of numerous incidents happening without anyone else's knowledge, he
would be able to argue that Amy was lying.
However, counsel testified that he never considered that this tactic
would waive any error in admitting the evidence should Benitez be convicted and
appeal.
Strickland v. Washington, 466
U.S. 668 (1984), sets out the federal test for ineffective assistance of
counsel under the Sixth Amendment to the United States Constitution. This is a two-pronged test. Counsel's performance must be deficient
and the deficient performance must prejudice the defendant. Id. at 687. Both the performance and the prejudice
prongs are mixed questions of fact and law.
Id. at 698. We
will not reverse a trial court's findings of fact unless they are clearly
erroneous. Section 805.17(2), Stats.
If the facts have been established, whether counsel's representation was
deficient and, if it was, whether it was prejudicial are questions of law which
we review de novo. State v.
Pitsch, 124 Wis.2d 628, 634, 369 N.W.2d 711, 715 (1985).
Counsel is presumed to
have acted properly. The defendant must
show that his counsel's acts were serious mistakes which could not have been
undertaken in the exercise of objectively reasonable professional judgment,
deferentially considering all the circumstances from counsel's
perspective. Strickland,
466 U.S. at 687-91.
Benitez asserts that his
trial counsel was ineffective because he failed to object on hearsay grounds to
testimony by two of the twins' school friends, by Sandy and by a police
detective, that in 1991, Amy told them that Benitez had sexually assaulted
her. At the postconviction hearing,
counsel testified that he made no objection because he had objected to this
kind of evidence many times in the past and he did not "believe that [he]
ever came close once to succeeding in that argument." However, he admitted that he never
considered that his failure to object would waive the issue on appeal.
The State asserts that
had trial counsel objected to the testimony, the objection would have been
overruled because a prior consistent statement is not hearsay. See § 908.01(4)(a)2, Stats.[1] The State argues that the prior consistent
statement need not predate the alleged recent fabrication to be admissible
under this statute. It also contends
that the "rule of completeness" found in State v. Sharp,
180 Wis.2d 640, 653-57, 511 N.W.2d 316, 322-24 (Ct. App. 1993), permits the
admission of this evidence.
We have repeatedly stated:
The
allegation must be that the fabrication is recent or based upon an improper
influence or motive. This requirement
exists because the prior consistent statements must predate the alleged recent
fabrication or improper influence or motive before they have probative value.
State
v. Mainiero, 189 Wis.2d 80, 103, 525 N.W.2d 304, 313 (Ct. App.
1994) (quoting State v. Peters, 166 Wis.2d 168, 177, 479 N.W.2d
198, 201 (Ct. App. 1991)).
And, the United States
Supreme Court has recently concluded that under Fed. R. Evid. 801(d)(1)(B):
Our holding is confined to the requirements for
admission under Rule 801(d)(1)(B). The
Rule permits the introduction of a declarant's consistent out-of-court
statements to rebut a charge of recent fabrication or improper influence or
motive only when those statements were made before the charged recent
fabrication or improper influence or motive.
Tome
v. United States, 513 U.S. ___, ___, 115 S. Ct. 696, 705 (1995). Rule 801(d)(1)(B) is identical to
§ 908.01(4)(a)2, Stats. The rulings of federal courts can be
persuasive on the interpretation of the Wisconsin Rules of Evidence. State v. Schindler, 146 Wis.2d
47, 54, 429 N.W.2d 110, 113 (Ct. App. 1988).
We conclude that Mainiero,
the reasoning of Tome, and the statement in Peters,
166 Wis.2d at 177, 479 N.W.2d at 201, that "the prior consistent
statements must predate the alleged recent fabrication or improper influence or
motive before they have probative value" lead to our rejection of the
State's assertion that statements made after the recent fabrication or improper
influence or motive are admissible under § 908.01(4)(a)2, Stats.
And Mainiero also holds that the "rule of
completeness" exception to § 908.01(4)(a)2 is inapplicable where, as
here, no partial or incomplete statement was introduced. Mainiero, 189 Wis.2d at 103
n.6, 525 N.W.2d at 313.
We conclude that trial
counsel's failure to object to the admission of prior consistent statements
constituted deficient performance. Peters
was decided nineteen months before the Benitez trial. Counsel's explanation that he did not object
to the prior consistent statements on hearsay grounds was that he had done so
unsuccessfully in previous cases, and he did not believe that he would be
successful in this case. But counsel
did not consider that by failing to object, he would waive the issue on
appeal. Though we can sympathize with
counsel's contention that he did not want to tilt at windmills,[2]
the only way to test what one believes to be trial court error is to
object. Had counsel done so, citing Peters,
the trial court might have sustained his objection. If the trial court overruled his objection, the issue would have
been preserved for appeal.
But was trial counsel's
deficient performance prejudicial? The
test for prejudice 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 conclude that
Benitez's trial counsel's deficient performance was not prejudicial. The trial court noted:
To
put it very bluntly, but still somewhat delicately, Mr. Benitez was not a very
good witness in his own defense....
[Defense
counsel] is right when he talks about one of the girls being a much better
witness than the other one. She
was. She was an excellent witness.
I
remember thinking to myself after we took—after her testimony was over, taking
one of our breaks and thinking that was enough to convict him. All the rest of it was just basically so
much fluff.
It boiled down to you either believed that
girl, and her testimony was so credible about events, about places, about
things that she remembered, things that would just not be consistent at all if
she was making it up.
We agree with the trial
court. A paper record shows an
articulate sixteen-year-old with a remarkable sense of continuity in her
testimony. And that record shows
Benitez as being the less-than-consistent witness the court described. We also note that Benitez's version of the
facts suffered from a logical non sequitur. He testified that the twins made-up their stories of sexual
assault because they wanted him out of the house so that their parents could
reconcile. But he admitted that he stopped
seeing the family in the fall of 1990, at least as far as the twins knew, and
that the allegations of sexual assault were not made until about a year
later. He also admitted that the twins'
mother discovered him in their bedroom while they were asleep, although he
testified that he was attempting to retrieve some of his compact discs.
We conclude that trial
counsel's deficient performance was not prejudicial because it did not deprive
Benitez of a trial whose result is reliable.
The trial court noted that the real question for the jury was whether it
accepted the twins' testimony, and rejected Benitez's testimony. That question was decided by what the jury
heard and saw when the twins and Benitez testified. That other witnesses testified that the twins made similar
statements to them did not change the outcome of the trial. The twins were either telling the truth on
several occasions, or they were lying on several occasions. The jury's verdict would have been the same
with or without counsel's deficient performance.
EVIDENTIARY RULINGS
Benitez asserts that the
trial court made three erroneous and prejudicial evidentiary rulings which
require that we remand for a new trial.
First, he argues that the trial court erred by refusing to permit him to
cross-examine the twins about their juvenile court status. Next, he asserts that the trial court erred
by refusing to allow him to play answering machine tapes which would impeach
Amy's testimony that she was fearful of Benitez. Finally, he contends that the trial court erred by allowing
testimony that the twins were truthful and that the sexual assaults had
occurred.
We first note that
Benitez's arguments are based on a misunderstanding of our standard of review
of a trial court's evidentiary rulings.
He couches his argument in terms of a de novo review: "The trial court committed reversible
error when it ...." Even when the
State argued that the three asserted errors were subject to a review for
erroneous exercise of discretion, Benitez did not take issue with that argument
in his reply brief. He could have
hardly done so. The admission of
evidence is generally within the discretion of the trial court. Pophal v. Siverhus, 168 Wis.2d
533, 546, 484 N.W.2d 555, 559 (Ct. App. 1992).
If the trial court examined the relevant facts, applied a proper
standard of law, and used a rational process to reach a rational result, we
will affirm. Id., 484
N.W.2d at 560. Only if the court relied
on an erroneous understanding of an evidentiary rule will we reverse. Id.
Benitez proposed to
introduce evidence that the twins were under formal supervision in the juvenile
court in May of 1993. From this, he
could then argue that because a condition of the dispositional order was that
the twins had to address the sexual abuse, they did so by falsely testifying
against him. The trial court reasoned
that this evidence was not relevant because the complaint against Benitez was
filed on May 7, 1993, and the juvenile court order was not filed until May 10,
1993. Thus, by the time the order with
the asserted coercive language was entered, the Benitez prosecution was already
underway, and the twins had already cooperated with the prosecutor. Additionally, the record shows that they had
complained to social workers about Benitez's sexual assaults nearly two years
before the complaint was filed.
Other than arguing that
he had a right to present his "defense" to a jury, Benitez does not
complain that the trial court failed to examine the relevant facts or did not
use a rational process to reach a rational result. He argues only that Davis v. Alaska, 415 U.S. 308
(1974), requires that a defendant be allowed to show that a prosecution witness
had been adjudicated a juvenile delinquent.
Davis held
only that an Alaska statute barring release of a juvenile record denied a
defendant his Sixth Amendment right to confront the witnesses against him. Id. at 320. That is not the case here. Benitez does not argue that Wisconsin law
prohibited the introduction of the evidence he sought. The trial court denied Benitez's request
because the evidence he sought to admit was not relevant, not because a statute
prohibited its release. Benitez has
therefore failed to show that the court used an incorrect standard of law. The test for a proper exercise of discretion
having been met, we affirm the trial court's decision that evidence of the
twins' juvenile adjudication was not relevant.
Next, Benitez argues
that the trial court erred by refusing to allow him to play answering machine
tapes showing that Amy was not fearful of him, contrary to her trial
testimony. Again, he erroneously uses a
de novo standard of review in his argument.
We do not agree that the
trial court refused to permit Benitez to play the tapes. The issue of the admissibility of the tapes
arose when Benitez's counsel stated:
But what I would like to do is I'm just going
to ask the Court to rule that it would allow me, if I wanted to, to play the
tape. But I want to—I'm not going to
make the decision right now. I'm going
to put my client on the stand, and then see whether or not at some point in
time if I choose to do so.
After some discussion
between Benitez's counsel, the prosecutor and the trial court, the court
replied:
Well,
to the extent that the [taped] conversations have some—
....
—
have some effect on the credibility of the witness, the witnesses, that is the
mother and the two daughters, the conversations are I guess—or the fact that
the conversations took place I guess is admissible.
What I would suggest, counsel, is it's my
understanding you're going to put the defendant on the stand. He can testify that they would call him,
that they would swear at him. Although
the fact that there's animosity there certainly is no secret and certainly is
not contested. I don't know if it's
going to be necessary to actually play the tapes.
After
further argument by Benitez's counsel, the court stated:
You can put your client on the stand. He can give his version. He can talk about the girls calling or the
mother asking him to come back. But
whether or not we have to play the tape, it seems to me that you don't really
need the tape other than to inflame some passions.
Finally,
just before terminating the discussion, the court stated:
Well,
the Court will withhold ruling on the actual admissibility of the tapes
depending on what gets opened up.
But as best as I can see right now, the
defendant can testify about the bias or prejudices that the witnesses who
testified against him have, and I will allow him to do so.
Benitez never attempted
to play the tapes or again asked the trial court to permit him to play the
tapes. He cannot claim that the court
prevented him from introducing evidence that he did not attempt to introduce. At most, the court said that it did not
believe the defendant needed to introduce the tapes. The court's last ruling on Benitez's counsel's request to admit
the tapes was to withhold making a ruling on their admissibility.
Rule 809.10(4), Stats., provides that an appeal brings
before this court all prior nonfinal judgments, orders and rulings adverse to
the appellant and favorable to the respondent.
In Mutual Serv. Casualty Ins. Co. v. Koenigs, 110 Wis.2d
522, 526-27, 329 N.W.2d 157, 159 (1983), the court concluded that a party had
to be aggrieved by an order before filing an appeal. In Ford Motor Credit Co. v. Mills, 142 Wis.2d 215,
217-18, 418 N.W.2d 14, 15 (Ct. App. 1987), we concluded that to be aggrieved,
the person must be adversely affected in some appreciable manner. Benitez was not adversely and appreciably
aggrieved when the trial court withheld its ruling on Benitez's request that he
be permitted to play the tapes for the jury.
Accordingly, he cannot appeal this issue.
Furthermore, we have
listened to the tapes. Our independent
review of them supports a trial court decision to deny their admission in
evidence. All of the words on the
answering machine are spoken by Amy and her mother. But the tapes are not "40 minutes of vulgarity" as the
State asserts. In large part, the tapes
are complaints regarding Benitez's refusal to speak with them. "I know that you are there—why don't
you come to the telephone?" is a paraphrase of a common question on the
tapes. There is some vulgarity, but it
is not the theme of the tapes. The
claim that the tapes show that Amy was not frightened of Benitez stretches
believability. When Amy spoke to
the answering machine, she could be as brave as she liked because Benitez could
not harm her. We conclude that had the
court excluded the tapes, it would not have erroneously exercised its
discretion by doing so.
Benitez's final claim of
evidentiary error is that Wanda Schafer, an expert in family dynamics and
sexual abuse, was permitted to testify to the following:
1. "And I was asked to deal with the
sexual abuse that had been perpetuated upon them."
2. "I concluded
that there were definitely signs of abuse with these children."
3. "The red flags
were all there that they had indeed been abused."
But Benitez did not
object to any of these statements on the grounds now asserted on appeal. Trial court error to which no objection is
made is deemed waived. State v.
Smith, 170 Wis.2d 701, 717-18, 490 N.W.2d 40, 47 (Ct. App. 1992), cert.
denied, 113 S. Ct. 1860 (1993).
Benitez asserts that an objection that Schafer's testimony was
conclusory preserved the issue of whether Schafer's testimony was an opinion
that another witness was telling the truth, evidence held impermissible in State
v. Haseltine, 120 Wis.2d 92, 96, 352 N.W.2d 673, 676 (Ct. App.
1984). We disagree.
An objection must be
specific. Holmes v. State,
76 Wis.2d 259, 271, 251 N.W.2d 56, 62 (1977).
An objection that a witness has drawn a conclusion is by no means an
objection on Haseltine grounds.
Benitez adds in a footnote:
"In any event, allowing the expert to testify that she had
concluded that the twins `had indeed been abused' was plain error." This is the sort of argument we held to be
inadequate in State v. Shaffer, 96 Wis.2d 531, 545-46, 292 N.W.2d
370, 377-78 (1980). It is no more
adequate now. We follow Shaffer and
do not consider the issue further.
NEW TRIAL IN THE INTEREST OF JUSTICE
Benitez asks that we
grant him a new trial in the interest of justice. We are given the authority to grant such a request by
§ 752.35, Stats. We may grant a new trial if the real
controversy has not been fully tried or if we conclude that a new trial will
likely produce a different result. State
v. Von Loh, 157 Wis.2d 91, 102, 458 N.W.2d 556, 560 (Ct. App.
1990).
Benitez argues that
because of the asserted errors that we have previously discussed, he should be
given a new trial. We are not
convinced. According to Benitez, a new
trial without the prior consistent statements, the hearsay, the testimony by
Wanda Schafer, evidence of Amy's and Andrea's juvenile dispositional orders,
and the answering machine tapes would result in his being acquitted. But the trial court considered this argument
and concluded that the case boiled down to whether the jury believed the twins'
testimony. In the trial court's view,
Amy's testimony was, in effect, devastating.
Benitez was not a good witness, and his explanation for the twins'
accusations was weak. Insofar as a
paper record can support the court's observations, we agree. At a new trial, with the evidence as Benitez
would have it, the same conflict would occur.
We have no reason to believe that Amy would be a less devastating
witness or that Benitez would be any better.
Though a possibility exists that Benitez might be acquitted, we cannot
conclude that it is likely that he would be.
Benitez does not argue that the real controversy was not tried, so we do
not address that prong of § 752.35, Stats.
By the Court.—Judgment
and order affirmed.
Not recommended for
publication in the official reports.
[1] Section
908.01(4), Stats., provides:
A
statement is not hearsay if:
(a) The declarant testifies at the trial
or hearing and is subject to cross-examination concerning the statement, and
the statement is:
....
2. Consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive ....