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COURT OF APPEALS DECISION DATED AND RELEASED April
11, 1996 |
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
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No. 94-2513-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
STEPHEN
R. HART,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Wood
County: EDWARD F. ZAPPEN, JR., Judge. Affirmed.
Before
Eich, C.J., Dykman and Vergeront, JJ.
PER
CURIAM. Stephen R. Hart appeals from a
judgment convicting him of one count of first-degree sexual assault of a child,
contrary to § 948.02(1), Stats.,
and from an order denying his postconviction motion. Hart raises four issues on appeal: (1) a new
trial should be ordered based upon either ineffective assistance of trial
counsel, failure to grant a mistrial, or in the interest of justice because a
witness commented on the credibility of the victim's claims; (2) the trial
court improperly excluded expert testimony that Hart suffered from sleep apnea
thereby preventing him from presenting a defense; (3) records of the
victim's counselor contain evidence relevant to his defense; and (4) his
counsel was ineffective by waiving his right to individually poll the
jury. We conclude that: (1) Hart is not entitled to a new trial
based upon ineffective assistance of counsel, failure to grant a mistrial, or
in the interest of justice; (2) the sleep apnea evidence was properly
excluded; (3) the records contain no relevant evidence; and (4) counsel's
performance was not deficient. We
affirm.
BACKGROUND
In
September 1992, Stephen R. Hart had been living with his girlfriend, Sheri, and
her three children, including the victim, W., aged four, for about three
years. Hart and Sheri were engaged to
be married the following month.
On
September 19, Hart had been drinking with Sheri in the late afternoon and into
the evening. Hart and Sheri returned
home at about 8:30. When they got home,
Hart vomited outside of their back door.
Hart then went into the bedroom and went to bed.
Sheri
went into another room and talked with the baby-sitter. Sheri put W. in bed with Hart and drove the
baby-sitter home. Hart was awake when
Sheri put W. in bed with him. Sheri was
out of the home for about five to ten minutes.
When Sheri returned, she sat in the kitchen making wedding
invitations. W. came into the kitchen
and asked Sheri for a drink and then told Sheri that Hart had "lick[ed]
her dooper." Sheri understood this
word as a reference to W.'s vaginal area.
Sheri
became angry and went into the bedroom and ordered Hart to leave the home. Hart immediately woke up. Hart, angry, fought with Sheri and started
destroying property. Sheri grabbed W.
and her two other children and ran to her parent's home about one hundred yards
away. Once there, the police were called.
Hart
was charged with one count of first-degree sexual assault of a child. After a two-day jury trial, Hart was
convicted of that charge and sentenced to a ten-year prison term. The trial court also denied Hart's
postconviction motion for relief in which it found that trial counsel's
performance was deficient but not prejudicial.
Hart appeals. Additional facts
will be set forth as needed.
IMPROPER WITNESS
TESTIMONY
Hart argues that a new
trial is warranted because a witness improperly commented on W.'s
credibility. According to Hart, he was
denied the effective assistance of counsel guaranteed by the Sixth Amendment to
the United States Constitution because trial counsel elicited this improper
testimony. Hart also argues that the
trial court should have granted his request for a mistrial and that we should
exercise our discretionary power under § 752.35, Stats., and order a new trial because the real controversy
was not fully tried.
The
trial turned on the issue of credibility; the jury either believed W. or
Hart. After W. testified that she
rubbed Hart's back and then Hart "licked her dooper," Wood County
Sheriff's Department Investigator Thomas Reichert, who interviewed W. on the
night of the assault, stated during cross-examination that W.'s statement was
"extremely credible." Instead
of asking the court to strike the nonresponsive answer, defense counsel pursued
the issue and asked Reichert what he meant by extremely credible. In response, Reichert explained that W. had
maintained an extremely consistent story and that her testimony was "the
strength of this case."[1]
After
Reichert testified, the jury was excused for the day. The trial court then asked defense counsel if he had a tactical
reason for eliciting testimony from Reichert as to W.'s credibility. Counsel stated that he did not and requested
a mistrial. The court denied the
request and counsel asked for a curative instruction. The court indicated that it might give the instruction, but the
following morning, when presented with counsel's proffered instruction
directing the jury to disregard that part of Reichert's testimony discussing
W.'s credibility, the court determined that it would be more appropriate to
give an instruction at the end of the trial, before jury deliberations.
Later
that same day, defense counsel, during cross-examination, asked another
witness, a social worker who had interviewed W., if she had "ma[d]e any
judgment at the time as to the plausibility of what you were being told
...." The trial court immediately
interrupted counsel and instructed the jury that it was the sole judge of the
credibility of the witnesses and that it should disregard any testimony
of any witness insofar as the witness purported to judge the credibility
of another witness. The court stated
that witnesses were not permitted to testify as to another witness's
credibility because that was left for the jury's determination. Additionally, at the end of the trial,
before jury deliberations, the court again instructed the jury that it was not
to consider any testimony by any witness passing on the credibility of another
witness and that the jury should assess witness credibility. In either case, the court did not
specifically refer to the testimony of any particular witness.
1. Ineffective
Assistance of Counsel
To
determine whether Hart received ineffective assistance of counsel in violation
of the Sixth Amendment to the United States Constitution, counsel's performance
must be deficient and the deficient performance must have prejudiced the
defendant. Strickland v.
Washington, 466 U.S. 668, 687 (1984).
These 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, however, 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. Johnson, 153 Wis.2d 121, 128, 449 N.W.2d 845, 848
(1990).
Whether
Hart's trial counsel's performance was deficient "requires a showing that
counsel made errors so serious that counsel was not functioning as the
`counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at
687. In other words, Hart must
demonstrate that the representation fell below an objective standard of
reasonableness as measured against prevailing professional norms. Id. at 688. In light of the wide range of reasonable
professional assistance, we review the acts of counsel deferentially and
presume counsel has acted properly. Id.
at 689.
Hart's
counsel elicited testimony from one witness, Reichert, that W. was being
truthful when she claimed that she was assaulted by Hart. This was improper testimony because the
credibility of a witness is left to the jury.
State v. Haseltine, 120 Wis.2d 92, 96, 352 N.W.2d 673, 676
(Ct. App. 1984). "No witness,
expert or otherwise, should be permitted to give an opinion that another
mentally and physically competent witness is telling the truth." Id. Thus, in Haseltine, we reversed a conviction when
an expert testified that there "was no doubt whatsoever" that the
complainant was an incest victim. Id. Further, in State v. Romero,
147 Wis.2d 264, 277-78, 432 N.W.2d 899, 904-05 (1988), the supreme court
reversed a conviction when a police officer testified that the victim "was
being totally truthful with us."
The supreme court determined that the credibility issue was
"clouded" by the admission of improper statements. Id. at 279, 432 N.W.2d at 905.
Counsel
asserted at the postconviction motion that his tactical reason for exploring
Reichert's explanation as to why he believed W. was a credible witness was that
the case turned on W.'s credibility and probing Reichert's opinion on this
issue would help Hart's case. Counsel
claimed that the best way of addressing this issue was to attack the improper
testimony directly.[2] This is rarely sound trial strategy. In State v. Felton, 110 Wis.2d
485, 502-03, 329 N.W.2d 161, 169 (1983), the court refused to sanction trial
counsel's strategy simply because it was denominated as such. The court stated:
[W]hen we look to a lawyer's conduct and measure it
against this court's standard to determine effectiveness, we cannot ratify a
lawyer's decision merely by labeling it, as did the trial court, "a matter
of choice and of trial strategy."
We must consider the law and the facts as they existed when trial
counsel's conduct occurred. Trial
counsel's decisions must be based upon facts and law upon which an ordinarily
prudent lawyer would have then relied.
We will in fact second-guess a lawyer if the initial guess is one that
demonstrates an irrational trial tactic or if it is the exercise of
professional authority based upon caprice rather than upon judgment.
Id.
The
trial court found that counsel's performance was deficient because counsel
should have never asked follow-up questions when Reichert commented that W. was
an extremely credible witness. A
reasonably prudent lawyer would know, or should know, that pursuing this line
of questioning will not succeed.
Counsel cannot assure that a witness will retreat from his or her
opinion. Indeed, counsel will usually
elicit further improper opinion testimony.
In this case, counsel should have moved to strike Reichert's answer as
unresponsive and requested a curative instruction. Counsel's explanation as to why he elicited statements passing on
the credibility of another witness was inadequate and his conduct falls below the
objective standard of norms of acceptable assistance. Consequently, we conclude that counsel's performance was
deficient.
Whether
Hart's trial counsel's deficient performance was prejudicial "requires
showing that 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. In other words, "[t]he defendant must
show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694. Our review, then, focuses on whether the
error causes us to believe that the outcome has been rendered unreliable. "In every case the court should be concerned
with whether, despite the strong presumption of reliability, the result of the
particular proceeding is unreliable because of a breakdown in the adversarial
process that our system counts on to produce just results." Id. at 696. In determining this issue, we look at the
totality of the circumstances and assume that the judge or jury acted in
accordance with the law. Id.
at 694-95.
Reichert's
improper testimony does not undermine our confidence in the outcome of this
case because the trial court instructed the jury on two separate occasions that
it must disregard such evidence. The
"possible prejudice to a defendant [caused by improper testimony] is
presumptively erased from the jury's collective mind when admonitory
instructions have been properly given by the court." Roehl v. State, 77 Wis.2d 398,
413, 253 N.W.2d 210, 217 (1977). Hart
argues that the instruction did not cure the improper testimony because it was
too general and untimely. He points to State
v. Penigar, 139 Wis.2d 569, 580-82, 408 N.W.2d 28, 33-34 (1987), in
which the supreme court determined that an instruction which did not expressly
direct the jury to disregard the improper testimony was overly broad and
inadequate to cure the defect.
We
believe that Penigar is distinguishable because Reichert was the
only witness who testified as to W.'s credibility. Therefore, a reasonable juror had to have understood that the
instruction was directed towards Reichert's testimony. The instruction was not overly broad in terms
of the subject matter or in terms of whose testimony was improper. In fact, it was almost identical to the one
proffered by Hart except that it did not name any witness in particular towards
whom the instruction might be directed.
The jury was instructed to disregard any testimony by any
witness regarding another witness's credibility. A reasonable juror would have included Reichert's improper
testimony in this category.
Furthermore,
that the trial court waited to admonish the jury until counsel, again,
attempted to elicit the same improper testimony from another witness does not
make the instruction untimely and superfluous.
This was an appropriate context in which the court could cure the
improper testimony. Additionally, at
the end of testimony and before deliberations, the court again similarly
instructed the jury. We conclude that
no reasonable juror could have understood the curative instruction as
permitting it to consider Reichert's improper testimony.
This
case turned on W.'s claim that Hart sexually assaulted her. The jury must have believed W. or it would
not have convicted Hicks. While the
opinion testimony as to W.'s credibility was improper, the curative instruction
permits us to maintain confidence in the outcome. The credibility issue was not "clouded" by the improper
opinion testimony. The improper
testimony did not deprive Hart of a fair trial the result of which is reliable.
2. Mistrial
Hart
also argues that the trial court should have granted his request for a
mistrial. The decision to grant a
mistrial rests within the sound discretion of the trial court. State v. Bunch, 191 Wis.2d
501, 506, 529 N.W.2d 923, 925 (Ct. App. 1995).
When a defendant requests a mistrial for reasons not related to the
State's overreaching or laxness, we afford a greater degree of deference to the
trial court's decision. Id.
at 507, 529 N.W.2d at 925. This is
especially the case when the request is based upon conduct on the part of the
defense. Id.
Hart's
request for a mistrial was based upon his belief that the improper testimony,
much of which was elicited by his counsel, could not be cured. However not all errors warrant a mistrial
and "the law prefers less drastic alternatives, if available and
practical." Id. at
512, 529 N.W.2d at 927. A mistrial is
appropriate only when a "manifest necessity" exists for the
termination of the trial. Id.
at 507, 529 N.W.2d at 925.
In
the instant case, a curative instruction directed the jury to disregard the
improper testimony. As we stated above,
this instruction was not overly broad and we presume that the jury adhered to
it and did not consider Reichert's testimony when rendering its decision. This was the least drastic but most
effective method of addressing the problem.
Accordingly, we conclude that the trial court did not erroneously
exercise its discretion when it denied Hart's motion for a mistrial.
3. New
Trial in the Interest of Justice
Hart
seeks a new trial in the interest of justice under § 752.35, Stats.[3] Hart argues that the trial court's failure
to instruct the jury to specifically disregard Reichert's testimony that W.'s
story was extremely credible prevented the real controversy from being fully
and fairly tried. Based upon our review
of the record and the foregoing discussion, we conclude that the real
controversy was fully tried and that a new trial is not warranted. The court instructed the jury to not
consider any testimony by any witness passing on the credibility
of another witness. We have concluded
that the instruction was adequate.
Without a showing that the improper testimony was not corrected or that
the jury improperly relied upon it to convict Hart, we see no reason to
exercise our discretionary reversal power.
EXCLUSION OF
EXPERT TESTIMONY
Hart
proffered expert testimony that he suffered from sleep apnea. Hart contends that this evidence would show
that this was a constant condition and that it is difficult to arouse from
sleep a person who has sleep apnea especially when that person has been
drinking alcohol. Hart argues that this
evidence is extremely probative because it shows that W.'s story, that he awoke
and assaulted her, is not plausible and supports his testimony that he fell
asleep and was awakened by Sheri.
Specifically, he argues that this evidence might have been sufficient to
create reasonable doubt amongst the jury because the State's case was
essentially based upon W.'s accusations.
He contends that the exclusion of this testimony was an erroneous
exercise of discretion on the part of the trial court and that it denied him
his right to present a defense as guaranteed by the Sixth Amendment to the
United States Constitution and Article I, § 7 of the Wisconsin Constitution.
A
defendant has a constitutional right guaranteed by the Sixth Amendment to the
United States Constitution[4]
and Article I, § 7 of the Wisconsin Constitution[5]
to present evidence in support of his or her defense. State v. Pulizzano, 155 Wis.2d 633, 645, 456 N.W.2d
325, 330 (1990). This right, however,
only pertains to relevant evidence the probative value of which is not
substantially outweighed by its prejudicial effect. Id. at 646, 456 N.W.2d at 330.
Expert
testimony is admissible to the extent it is relevant. Whether this evidence is relevant requires a showing that it has
a 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. Section 904.01, Stats.
"The criterion of relevancy is whether the evidence sought to be
introduced would shed any light on the subject of inquiry." State v. Patricia A.M., 176
Wis.2d 542, 550, 500 N.W.2d 289, 292 (1993) (quoted source omitted). Evidence is relevant when it supports a
hypothesis of innocence. Id.
at 550-51, 500 N.W.2d at 292.
A
trial court's ruling on relevance will be reversed only for an erroneous
exercise of discretion. State v.
Pittman, 174 Wis.2d 255, 267, 496 N.W.2d 74, 79, cert. denied,
114 S. Ct. 137 (1993). A discretionary
decision must be the product of a rational mental process by which the facts of
record and law relied upon are stated and are considered together for the
purpose of achieving a reasonable and reasoned determination. Id. at 268, 496 N.W.2d at
79-80. When the trial court, however,
has failed to recite reasons on the record for its decision, we will still
affirm if the facts of record support the decision. Id., 496 N.W.2d at 80.
Hart
argues that the offer of proof was sufficient to support his contention that he
was incapable of assaulting W. An offer
of proof need not be inordinately detailed, but it should state an evidentiary
hypothesis supported by a sufficient statement of facts to warrant the
conclusion or inference that the trier of fact is urged to adopt. State v. Robinson, 146 Wis.2d
315, 327-28, 431 N.W.2d 165, 169 (1988).
The offer of proof must enable us "to act with reasonable
confidence that the evidentiary hypothesis can be sustained." Id. at 328, 431 N.W.2d at
169.
The
offer of proof shows that the expert would have testified that Hart's sleep
apnea condition was continuous and that it was difficult to arouse him when he
was asleep. It did not show, however,
whether his sleep apnea condition would have prevented him from waking up when
W. rubbed his back. Based upon our
review of the expert's records and the offer of proof, we conclude that the
offer of proof was insufficient because it failed to show that the evidence of
Hart's condition was relevant to his assertion that it was not plausible that
he committed this crime. Consequently,
the trial court did not erroneously exercise its discretion when it excluded
the proffered evidence.
REVIEW OF COUNSELOR'S RECORDS
The trial court reviewed
the records of W.'s counselor and concluded they were not relevant to Hart's
defense. The preliminary showing of
relevance is a question of law we review independently, notwithstanding that
relevancy is ordinarily within the trial court's discretion. State v. Speese, 191 Wis.2d
205, 222, 528 N.W.2d 63, 70 (Ct. App. 1995), rev'd on other grounds, No.
93-0443 (Wis. Mar. 20, 1996). We have
conducted our own in camera review of the records. The trial court was correct in concluding
they contain no information relevant to Hart's defense.
JURY
POLLING
Hart
argues his defense counsel was ineffective by waiving Hart's right to
individually poll the jury without informing him of that right and without
advising him that it was his personal decision to make. Even if the right is one that can be waived
by counsel without consultation, Hart argues his counsel was ineffective in
this case. The trial court rejected the
argument.
To
establish ineffective assistance of counsel a defendant must show that
counsel's performance was deficient and that such performance prejudiced his
defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). We need not
address both components of the analysis if the defendant makes an inadequate
showing on one. Id. at
697. We affirm the trial court's
findings of fact unless they are clearly erroneous, but the determination of
deficient performance and prejudice are questions of law that we review without
deference to the trial court. State
v. Pitsch, 124 Wis.2d 628, 633-34, 369 N.W.2d 711, 714-15 (1985).
We
conclude counsel can waive the right to poll the jury without advising the
defendant. In State v. Jackson,
188 Wis.2d 537, 525 N.W.2d 165 (Ct. App. 1994), we decided that where counsel
is present at the return of the jury verdict, the trial court need not find
that the defendant knowingly and voluntarily waived his or her right to
individually poll the jury. Id.
at 542, 525 N.W.2d at 167. We also
concluded: "Jackson was
represented by counsel when the verdict was entered, and the decision to assert
or waive certain rights, including whether to poll the jury, was delegated to
that counsel." Id.
at 542-43, 525 N.W.2d at 168. We read Jackson
as holding that the decision whether to request an individual polling is one
delegated to counsel.
Because
the decision whether to request an individual polling is one delegated to
counsel, we decline to hold that counsel's failure to inform a defendant of the
right to an individual polling is, in itself, deficient performance. The better rule is that when counsel is
present at the return of the jury verdict and does not request an individual
polling, whether counsel's performance is deficient depends on all the
circumstances.
Hart
argues his counsel's performance was deficient in this case because counsel had
no strategic or tactical reason to waive the polling. It is unlikely there would ever be a "strategic" reason
to waive polling. Therefore, Hart's
argument is essentially that it is always deficient performance for counsel to
waive polling because, as he phrases it, there is "nothing to lose and
everything to gain." We reject the
argument because Hart is incorrect that there is nothing to lose. The thing to be lost is time. There are many acts counsel may take in
litigation which only cost time and might have some slim chance of
success. However, it is not deficient
performance for counsel to fail to pursue every conceivable, but most likely
futile, gesture. Hart points to no
specific facts that should have indicated to his counsel that there was
anything to gain by an individual poll of the jury in this case. Therefore, we conclude his counsel's
performance was not deficient.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] The trial transcript reads as follows:
Q.Okay. In this
kind of sexual assaults there isn't any kind of physical evidence. Is that what you're telling the jury?
A.I'm telling the jury that there's an extremely credible
statement by a victim.
Q.Why is that?
A. Due to the—
Q.Why extremely credible? Why do you say that?
A.The victim in this case, four-year-old child, has
maintained an extremely consistent story from the time that this originally
happened last September until today, November 4th. I personally thinking back to September 19th of last year, the
only thing that I remember about it that was extraordinary other than the fact
of this case was that I didn't get to watch Saturday Night Live. I think it's extraordinary that a child can
remember that, and I think her story is extremely incred—is extremely credible.
[2] However, our review of the trial transcript
reveals that why counsel decided not to object when confronted with Reichert's
improper testimony is not so clear. At
the end of the day, after the jury had been excused, the trial court confronted
counsel with this issue. The court
asked counsel if he had a tactical purpose for exploring Reichert's comment on
W.'s credibility. Counsel's immediate
response was that he did not have any tactical purpose but that Reichert had
just made a nonresponsive statement.
The court asked why he followed the improper testimony with additional
questions relating to it. The court
stated, "It was my conclusion that you had a tactical purpose." Counsel replied, "I didn't. I didn't.
That was my error then."
Once the court impressed upon counsel that the testimony was improper,
counsel moved for a mistrial which the court denied.
[3] Section 752.35, Stats., provides:
In an appeal to the court of
appeals, if it appears from the record that the real controversy has not been
fully tried, or that it is probable that justice has for any reason miscarried,
the court may reverse the judgment or order appealed from, regardless of
whether the proper motion or objection appears in the record and may direct the
entry of the proper judgment or remit the case to the trial court for entry of
the proper judgment or for a new trial, and direct the making of such
amendments in the pleadings and the adoption of such procedure in that court,
not inconsistent with statutes or rules, as are necessary to accomplish the
ends of justice.