COURT OF APPEALS DECISION DATED AND RELEASED JULY 25, 1995 |
NOTICE |
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Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
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No. 95-0366-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
THOMAS M. KAWALSKI,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Barron County: JAMES C. EATON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Thomas Kawalski appeals his conviction for
five counts of first degree sexual assault of child and one count of disorderly
conduct after a trial by jury. He argues that his trial counsel rendered
ineffective representation by: (1)
failing to call Cindy Shields as a defense witness; (2) failing to elicit
exculpatory testimony from William and Char Beach; (3) inadequately preparing
Kawalski to testify on his own behalf; and (4) failing to object to hearsay
testimony by Rose B., the victim's mother, recounting the victim's
statements. Kawalski also argues that
the trial court wrongly denied the request Kawalski made on the second day of
the trial seeking the discharge of his trial counsel and the appointment of new
counsel. We reject these arguments and
therefore affirm Kawalski's conviction.
We use a two part
process to determine whether an accused received ineffective assistance of
counsel. Strickland v. Washington,
466 U.S. 668, 687 (1984). First, the
accused must show that his trial counsel's performance was deficient. Id. Second, the accused must show that the deficient performance
prejudiced his defense. Id. The second component requires a showing that
trial counsel's errors were so serious they deprived the accused of a fair
trial. Id. Counsel's performance is measured against
the standard of a reasonably competent attorney, an objective standard of
reasonableness. Id. at
687-88. In order to show prejudice, an
accused must demonstrate that there is a reasonable probability that but for
counsel's unprofessional errors, the result of the proceeding would have been
different. Id. at
694. For the following reasons, we are
satisfied that none of Kawalski's arguments meet the Strickland
criteria.
Kawalski is not entitled
to a new trial on the ground that his trial counsel never called Cindy Shields
as witness. First, Kawalski expressly
waived her testimony. At a pretrial
hearing, Kawalski, his trial counsel and the trial court thoroughly examined
the question. Kawalski understood that
by virtue of a conflict of interest, Kawalski's counsel was unable to call
Shields. Kawalski had two choices: he
could have Shields testify and obtain new trial counsel or he could keep his
trial counsel and forego Shields' testimony.
Kawalski expressly chose the latter.
The trial court found that Kawalski knowingly and voluntarily waived Cindy
Shields' testimony, Harvey v. McGaughtry, 11 F.3d 691, 695 (7th
Cir. 1993), which we conclude was not a clearly erroneous finding. State v. Harris, 189 Wis.2d
162, 174, 525 N.W.2d 334, 338 (Ct. App. 1994).
As a result, Kawalski cannot cite his counsel's conflict of interest as
proof of ineffective representation. Harvey,
11 F.3d at 695. Moreover, Kawalski
never called Shields as a witness at the postconviction hearing. Without Shields' testimony at the
postconviction hearing, he has never shown that she had relevant, admissible,
and outcome shaping testimony. State
v. Wirts, 176 Wis.2d 174, 184-85, 500 N.W.2d 317, 320 (Ct. App.
1993). Kawalski therefore has not shown
that he suffered any prejudice from Shields' nonappearance.
We reject Kawalski's
argument that his trial counsel was ineffective because he failed to elicit
testimony from William and Char Beach.
According to Kawalski, these witnesses would have testified that Rose
B., the victim's mother, attempted to intimidate them and influence their
testimony. According to Kawalski, they
also would have testified that Kawalski had spent time alone with their own
daughter, without incident. At the
postconviction hearing, the trial court listened to testimony regarding Rose
B.'s and her representatives' alleged intimidation. After examining the evidence, the trial court found that Rose B.
had not attempted to intimidate the Beaches.
The trial court's finding was not clearly erroneous; the hearing
furnished no evidence supporting the intimidation theory. Harris, 189 Wis.2d at 174, 525
N.W.2d at 338. Likewise, the Beaches'
testimony concerning their own daughter would not have aided Kawalski's
defense. Litigants may not use other acts
to demonstrate that someone acted in conformity in the incident that is the
subject of the litigation. State
v. Tabor, 191 Wis.2d 483, 494, 529 N.W.2d 915, 920 (Ct. App.
1995). This means that Kawalski could
not use his nonassaultive behavior with the Beaches' daughter to prove that he
acted similarly with Rose B.'s daughter.
As a result, Kawalski's trial counsel acted competently in failing to
elicit this testimony, and Kawalski suffered no prejudice from its omission.
Kawalski also has not
shown that his trial counsel was inadequate because he failed to object to Rose
B.'s hearsay testimony or inadequately prepared Kawalski as a witness. Trial counsel never objected to the hearsay,
which recounted the victim's statements.
Kawalski states that his counsel's inadequate preparation resulted in
Kawalski giving contradictory testimony on his whereabouts at the time of the
incidents. These allegations are not
meritorious. First, Rose B.'s hearsay
testimony recounted the victim's excited utterances, which were admissible
under the excited utterance hearsay exception.
State v. Patino, 177 Wis.2d 348, 364, 502 N.W.2d 601, 607
(Ct. App. 1993). In addition, the
hearsay was not necessarily harmful, ironically somewhat helping Kawalski's
defense theory — that Rose B. had fabricated the sexual assault in retaliation
for Kawalski's threat to criminally prosecute her for forgery for taking and
cashing his worker's compensation check.
According to Rose B., the victim's excited utterances occurred shortly
after Kawalski threatened Rose B.'s forgery prosecution. This sequence of events, in which Kawalski's
threats preceded the claimed excited utterances, was consistent with his
fabrication theory. Second, Kawalski
has not explained precisely what he considered contradictory in his own
testimony, how his trial counsel should have prepared him to avoid such
contradictions, or why these contradictions influenced the verdict. He therefore has not proven ineffective
representation.
Finally, we reject
Kawalski's claim that the trial court inadequately considered and wrongly denied
Kawalski's motion for new counsel on the second day of the trial. The trial court made a discretionary
decision. State v. Lomax,
146 Wis.2d 356, 359, 432 N.W.2d 89, 90 (1988).
Trial courts should not allow new counsel in the absence of a timely request
and good cause. Id. Good cause requires a complete breakdown in
communication, State v. Clifton, 150 Wis.2d 673, 684, 443 N.W.2d
26, 30 (Ct. App. 1989), an alienation between counsel and client that prevents
an adequate defense and frustrates a fair presentation of the case. Lomax, 146 Wis.2d at 359-60,
432 N.W.2d at 90-91. As grounds for new
counsel, Kawalski cited his current counsel's failure to file a notice of
alibi, his counsel's conflict of interest over Cindy Shields, his general discomfort
with his counsel, his counsel's decision to have witness James Wakefield
arrested when Wakefield did not honor a subpoena, and two other grounds
Kawalski now admits were irrelevant.
None of these required new counsel.
The trial court allowed Kawalski's alibi testimony, Kawalski waived the
Shields conflict of interest, Kawalski has not shown that the Wakefield matter
harmed his defense, and Kawalski's intangible discomfort with his counsel was
no basis for substitution. Under these
circumstances, Kawalski has not demonstrated good cause for substitution of
counsel during the trial.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.