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COURT OF APPEALS DECISION DATED AND RELEASED November 28, 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
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No. 94-3356-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ERIC P. RUSSELL,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. KREMERS, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Eric P. Russell appeals from a judgment,
entered after a jury convicted him of second-degree sexual assault of a child,
contrary to § 948.02(2), Stats. He also appeals from an order denying his
postconviction motions. Russell claims:
(1) that he received ineffective assistance of trial counsel; and
(2) that the trial court erroneously exercised its sentencing
discretion. Because Russell received
effective assistance of trial counsel and because the trial court did not
erroneously exercise its sentencing discretion, we affirm.
I. BACKGROUND
Russell was charged with
sexually assaulting a fourteen-year-old girl, Sharon F. The case was tried to a jury. During the trial, Detective Edward Benish
volunteered his opinion that Sharon was telling the truth. Instead of objecting to Benish's statement,
Russell's trial counsel chose to deflate the objectionable testimony on
cross-examination.
Sharon's stepmother also
testified during the State's case. She
explained that when Sharon gets scared, Sharon often says “I don't know” in
response to questions. At the close of
the trial, the jury was instructed with the pattern instruction on reasonable
doubt, Wis J I—Criminal 140
(1991). Russell was convicted and
sentenced to eight years in prison.
Russell filed
postconviction motions alleging ineffective assistance of trial counsel and improper
sentencing. The trial court denied his
motions. He now appeals.
II. DISCUSSION
A. Ineffective
Assistance Claims.
The United States
Supreme Court set out the two-part test for ineffective assistance of counsel
under the Sixth Amendment in Strickland v. Washington, 466
U.S. 668 (1984). The first prong of Strickland
requires that the defendant show that counsel's performance was deficient. Id. at 687. This demonstration must be accomplished
against the “strong presumption that counsel acted reasonably within
professional norms.” State v.
Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990). The second Strickland prong
requires that the defendant show that counsel's errors were serious enough to
render the resulting conviction unreliable.
Strickland, 466 U.S. at 687. In reviewing the trial court's decision, we accept its findings
of fact, its “‘underlying findings of what happened,’” unless they are clearly
erroneous, while reviewing “the ultimate determination of whether counsel's
performance was deficient and prejudicial” de novo. Johnson, 153 Wis.2d at 127-28,
449 N.W.2d at 848.
First, Russell claims
that trial counsel was ineffective because he failed to object to Benish's
statement that Sharon was telling the truth.
We reject this claim. Although
Benish's statement may have violated the rule announced in State v.
Haseltine, 120 Wis.2d 92, 96, 352 N.W.2d 673, 676 (Ct. App. 1984) (that
no witness should be allowed to opine as to whether another witness is telling
the truth), trial counsel's strategy of attacking the statement on
cross-examination was within the range of professionally competent assistance.
As documented by the
record, trial counsel was effective in his cross-examination of Benish on this
point. Trial counsel queried: “You
really can't tell me whether or not [Sharon is] telling the truth, the absolute
truth?” Benish responded: “No, sir.”
We have previously held that trial counsel's decision to forego an
objection based on his intent to impeach the statement at a later time
constitutes effective performance. State
v. Vinson, 183 Wis.2d 297, 307-08, 515 N.W.2d 314, 318-19 (Ct. App.
1994). We conclude that trial counsel's
strategy in the instant case was to avoid drawing unnecessary attention to the
statement volunteered by Benish because he felt cross-examination would more
effectively refute it. Such strategy
does not constitute deficient performance.
Next, Russell claims
that his trial counsel should have objected to the stepmother's testimony
regarding Sharon's typical reaction to questions. Russell asserts that this testimony was irrelevant. However, he does not offer any citation to
authority to support his argument and, therefore, we decline to consider
it. See State v. Pettit,
171 Wis.2d 627, 646-47, 492 N.W.2d 633, 642 (Ct. App. 1992) (appellate court
may decline to address issues that are inadequately briefed; arguments that are
not supported by legal authority will not be considered).
Finally, Russell claims
that his trial counsel should have objected to the pattern jury instruction on
reasonable doubt because it conflicts with the standard of proof for criminal
cases described in In re Winship, 397 U.S. 358 (1970). Our supreme court recently addressed and
rejected this contention in State v. Avila, 192 Wis.2d 870,
886-89, 532 N.W.2d 423, 429-30 (1995).
Accordingly, we cannot fault trial counsel for failing to object to a
jury instruction that our supreme court has held is not objectionable.
B. Sentencing
Discretion.
Russell claims that the
trial court relied on improper factors in imposing sentence. Specifically, he claims that the trial
court's reference to the victim's lower mental age was improper because that
fact was not a part of the record, and that the trial court imposed a greater
sentence because Russell refused to admit guilt.
Our standard of review
when reviewing a criminal sentencing is whether or not the trial court
erroneously exercised its discretion. State
v. Plymesser, 172 Wis.2d 583, 585 n.1, 493 N.W.2d 367, 369 n.1 (1992).
Russell claims that the
trial court's reference to Sharon's mental age of ten years was improper
because there was no basis in the record to support such a statement. We disagree. The sentencing transcript demonstrates that Sharon's stepmother
represented to the trial court that Sharon's mental age was ten years.[1] In addition, at the sentencing hearing, the
prosecutor referred to similar representations contained in the presentence
investigation report. This is
sufficient for the trial court to reference this fact and accordingly, we
conclude that the trial court did not erroneously exercise its discretion in
considering this factor. See Dawson
v. Delaware, 503 U.S. 159, 164 (1992) (a sentencing court is “‘largely
unlimited either as to the kind of information [it] may consider, or the source
from which it may come’”).
Russell also claims that
the trial court's reliance on Russell's refusal to admit guilt was
improper. We disagree. Relying on this factor is improper only when
the trial court bases its sentencing decision exclusively on the defendant's
refusal to admit guilt. State v.
Carrizales, 191 Wis.2d 85, 96, 528 N.W.2d 29, 34 (Ct. App. 1995). It is clear from the record that the trial
court in the instant case did not rely solely on Russell's failure to admit
guilt when it imposed sentenced. The
trial court discussed Russell's refusal to admit guilt as it related to his
rehabilitation needs, which is appropriate.
See State v. Baldwin, 101 Wis.2d 441, 459, 304
N.W.2d 742, 752 (1981) (defendant's refusal to admit guilt may be relevant to
sentencing factor regarding the defendant's need for rehabilitation). Further, the record demonstrates that the
trial court considered the three
primary factors: the gravity of the
offense, the character of the offender, and the need to protect the public,
when it imposed sentence. State
v. Harris, 119 Wis.2d 612, 623, 350 N.W.2d 633, 639 (1984).
Accordingly, we cannot
say that the trial court erroneously exercised its sentencing discretion.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.