State v. Domke
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A jury convicted David Domke of repeatedly sexually assaulting his ten-year-old stepdaughter. Domke moved for postconviction relief and a new trial based on the ineffective assistance of his trial counsel. The circuit court denied the motion after concluding that while Domke had shown that counsel had performed deficiently, Domke had failed to show that the deficient performance had prejudiced him. The court of appeals reversed and remanded for a new trial, concluding that Domke had established cumulative prejudice from three instances of deficient performance. The Supreme Court reversed the decision of the court of appeals and affirmed the circuit court's judgment of conviction, holding (1) Domke was not entitled to a new trial due to ineffective assistance of counsel because, although counsel performed deficiently in three aspects during trial, those errors did not prejudice Domke; and (2) under the totality of the circumstances, Domke received a fair trial.
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2011 WI 95 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2009AP2422-CR State of Wisconsin, Plaintiff-Respondent-Petitioner, v. David W. Domke, Defendant-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 1, 2011 September 14, 2011 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Oconto Michael T. Judge JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For argued the by plaintiff-respondent-petitioner Marguerite M. Moeller, assistant the cause attorney was general, with whom on the briefs was J.B. Van Hollen, attorney general. For the defendant-appellant there was a brief and oral argument by Martha K. Askins, assistant state public defender. An amicus curiae brief was filed by Robert R. Henak, Rebecca R. Lawnicki and Henak Law Office, S.C., Milwaukee, on behalf of the Wisconsin Association of Criminal Defense Lawyers. 2011 WI 95 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2009AP2422CR (L.C. No. 2006CF147) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent-Petitioner, v. NOV 1, 2011 David W. Domke, A. John Voelker Acting Clerk of Supreme Court Defendant-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 N. unpublished PATRICK decision CROOKS, of the J. This court of is a appeals1 Reversed. review of reversing an the circuit court's judgment of conviction and remanding for a new trial based convicted on ineffective David W. Domke assistance (Domke) of of counsel. repeatedly A jury sexually assaulting Alicia S., his stepdaughter, when she was ten years old, in violation of Wis. Stat. § 948.02(1) and § 948.025(1)(a) (2003-04). 1 Domke moved for postconviction relief and a new State v. Domke, No. 2009AP2422-CR, unpublished slip op. (Wis. Ct. App. Sept. 21, 2010). No. 2009AP2422CR trial based on the ineffective assistance of his trial counsel, Terrence Woods (Woods). In order to prevail on the ineffective assistance claim, Domke needed to establish both that Woods' performance was prejudiced Domke in undermine the postconviction because it performed deficient and other court's the that deficiently, the words, confidence hearing, concluded that Domke that the result.2 denied Domke had had failed deficient performance had prejudiced him. however, concluded that Domke had performance counsel's court in circuit while deficient shown to show errors After the motion that of appeals reversed the Woods that the The court of appeals, established cumulative prejudice from three instances of deficient performance. the court a circuit court's Thus, denial of Domke's postconviction motion and remanded for a new trial. ¶2 We conclude that Domke is not entitled to a new trial due to ineffective assistance of counsel. While we agree with the court of appeals that Woods performed deficiently in three respects during trial, we are not persuaded that these errors prejudiced Domke. We hold that under the totality of the circumstances Domke received a fair trial, and our confidence in the result is not undermined. ¶3 Therefore, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction. I. FACTUAL BACKGROUND 2 Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) (setting forth the standard for review of claims of ineffective assistance of counsel). 2 No. ¶4 2009AP2422CR The charges against Domke are based on four incidents between June 20, 2005, and December 25, 2005, on which Alicia S. alleged that Domke engaged in sexual contact with her. Specifically, Alicia S. alleged that on all four occasions Domke rubbed his penis on her buttocks and on one occasion Domke also licked her vagina. Alicia S. was ten years old at the time. Alicia disclose S. assaults did at not first, but the over full time extent the of details the of alleged the four incidents emerged. ¶5 Approximately six months after the first alleged assault, Alicia S. told two friends, L.H. and J.M., that Domke had sexually assaulted her. mother reported school. The the J.M. told another friend, whose allegations guidance counselor to at Alicia the S.'s school elementary notified the police, and a police officer, Corey Rank (Rank), and a child protection investigator, Bonnie Anderson (Anderson), interviewed Alicia S. at the school on January 17, 2006. went to a physician's assistant, Tracey Alicia S. later BeFay (BeFay), on January 23, 2006, for a physical examination during which she repeated some of the allegations. began seeing an outpatient In February 2006, Alicia S. therapist, Kim Rusch (Rusch), to address some emotional and behavioral problems she was having that Alicia S. and her natural father, David S., attributed to the alleged abuse. It was through the approximately 20 to 25 therapy sessions with Rusch that Alicia S. provided the full account of the four alleged sexual assaults. II. PROCEDURAL HISTORY 3 No. ¶6 On December 18, 2006, Domke was 2009AP2422CR charged with the repeated sexual assault of a child in violation of Wis. Stat. § (2003-04)3 948.025(1)(a) sexual contact 948.02(1).4 with based Alicia on in S. four alleged violation of incidents Wis. Stat. of § A two-day jury trial was held on January 17 and 18, 2008, in the Oconto County Circuit Court, the Honorable Michael T. Judge presiding. A. The Trial ¶7 account Alicia of the S. four testified first, alleged sexual providing a assaults. detailed Alicia S. testified: "The first time we were at 344 South Adams Street of Oconto Dates. County [Oconto Falls] and we were watching 50 First And I had woken up to my pants and underpants pulled down and that Dave was rubbing his penis up and down my -- near my anal area." ¶8 Regarding the second incident, Alicia S. testified: "I believe we were at 202 Wisconsin Street of Oconto County [Oconto Falls]. And we were downstairs watching TV, and I had woken up to him licking my vagina this time. And he had flipped me over and he was rubbing his penis up and down near my anal area." 3 Wisconsin Stat. § 948.025(1)(a) (2003-04) provides: "Whoever commits 3 or more violations under s. 948.02(1) or (2) within a specified period of time involving the same child is guilty of: (a) A Class B felony if at least 3 of the violations were violations of s. 948.02(1)." 4 Wisconsin Stat. § 948.02(1) (2003-04) provides: "First degree sexual assault. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony." 4 No. ¶9 2009AP2422CR Regarding the third incident, Alicia S. testified: The third time was also at 202 Wisconsin Street. This time I had went into my mom's bedroom. I crawled in at approximately 6:30 a.m. so I could spend time with her before she went to work. And eventually she got up and went to work. And I had woken up to Dave putting his penis near my anal area, and this time I had felt wetness. And I pretended I was sleeping, and then he eventually got up and went - took a shower and went hunting. ¶10 Alicia S. indicated that the fourth incident took place in December of 2005 while she was watching television in her bedroom. Alicia S. testified: I was watching [Country Music Television], and this time he had came into my bedroom and he was naked and he was rubbing his penis up and down my anal area. And this time he told me if I took off my clothes it would feel better and I said no. I told him to get out and I locked my door, and I was really, really scared. ¶11 Alicia S. also testified that she first reported the sexual assaults to her friends L.H. and J.M. at a sleepover. Alicia S. explained that she told her friends about the assaults because "it was really bothering" her, but that she did not want them to tell anyone and made them "pinky swear." L.H. confirmed this and testified that Alicia S. told her "that her stepdad had licked her in the privates." L.H. further testified that when Alicia S. told her this, she "acted very upset and she looked like she was going to actually throw up." ¶12 Regarding her interview with Anderson and Rank, Alicia S. explained that she did not want to disclose the assaults to them. Alicia S. testified that she was scared and, at that 5 No. time, did not want completely honest Domke with to go Anderson to and jail, Rank. so 2009AP2422CR she Alicia was S. not stated that, when pressed, she did disclose some of the alleged abuse to them. When Anderson testified, she agreed with Alicia S.'s description of the interview and stated that it was clear that Alicia S. liked Domke very much. Anderson explained that in response to some of her and Rank's questions Alicia S. confirmed that Domke sexually assaulted her: [Alicia S.] told us without very specific details that on two different occasions at her mother's house -- at actually two different houses in Oconto Falls when she was visiting her mother that her stepfather, David Domke, did put his penis between her buttocks on two different occasions while she was pretending to be sleeping when they were all watching TV together in the living room. ¶13 Alicia S. also testified that she was later examined by a physician's assistant, BeFay, to whom she revealed some details of the alleged assaults. BeFay testified that Alicia S. was reluctant to talk with her about the alleged assaults, but that Alicia S. indicated that Domke buttocks and his mouth on her genitals. the physical examination was normal. put his penis on her BeFay testified that During Woods' cross- examination of BeFay, he moved to enter into evidence BeFay's dictated report, which reflected the normal physical examination and also included a summary of what Alicia S. told BeFay about the alleged assaults. ¶14 Alicia S. further testified that she began to see a therapist, Rusch, and that, after about 10 to 15 sessions, she 6 No. 2009AP2422CR told Rusch all of the details regarding the four alleged sexual assaults. Rusch testified regarding the services she provided to Alicia S.: She -- the problem focus that was on my intake form when she came to me was that she had been sexually assaulted and that she was having some problems with nightmares, intrusive thoughts, flashbacks. She had a lot of fears. She was scared, things like that. So I was asked to deal with those symptoms that come along with that. Rusch also testified about the progression of her sessions with Alicia S.: The first few sessions we basically talked about how she could maybe not be having as many nightmares. We implemented a safety plan because she was very afraid to be outside. She would come home from school and she would be worried somebody was in the house, things like that. So we developed a safety plan for her to feel safer in her town here and also at her home and when she had to go to school. So that's what we focused on just to make her more comfortable and have her to be able to, you know, be functioning relatively normally in the community and in her family. And then it was down the road a ways, not until June. I started seeing her in February. And then in June when I finally - Alicia [S.] and I had talked and she was ready to tell me her whole story. She had told, you know, bits and pieces throughout, but that was when she told me her whole story. In a report documented that "Alicia the State [S.]'s introduced whole alleged sexual assaults. 7 story" into evidence, regarding the Rusch four No. ¶15 On cross examination, Woods asked questions about the first alleged incident. 2009AP2422CR Rusch several This included the following exchange: Woods: Could this have just been like a bad dream or something? [The State objected, and the circuit court overruled the objection.] Rusch: No. dream. I do not believe it could have been a Woods: All right. Rusch: No. dream. ¶16 You don't think it was a dream? In my professional opinion, it was not a As his first witness, Woods called Tina Domke, who is Alicia S.'s mother and Domke's wife. Woods asked Tina Domke whether the she had told Anderson, child protection investigator, that she did not believe Alicia S.'s allegations against Domke. Tina Domke responded that, yes, she had told Anderson that she did not believe Alicia S. "[a]t that time." On cross-examination, the State elicited that Tina Domke now believes percent." her daughter's allegations against her husband "100 In response to further questioning, Tina Domke stated that Alicia S. was the bravest girl she knew and that she no longer had any doubt that Alicia S. was telling the truth. ¶17 Woods then called Domke's ex-wife, Tina Baxter, and Domke's three children to testify. From each of these witnesses Woods elicited testimony that Domke had never been accused of sexually abusing any of his biological children. Two of Domke's children also testified that they had never seen Domke sexually 8 No. 2009AP2422CR abusing Alicia S. while they all lived together. On cross- examination, one of the children admitted that Alicia S. told her about the alleged sexual assaults before those allegations were reported to police, and that she reported Alicia S.'s statements to her when interviewed by Anderson and Rank. ¶18 Domke Alicia S. testified and denied ever sexually assaulting Domke stated that he knew Alicia S. lied a lot and that he and Alicia S. argued a lot about her refusal to abide by his rules. On cross-examination, the State elicited from Domke that when he originally spoke to Anderson and Rank he told them that he and Alicia S. had a good relationship. ¶19 The jury convicted Domke of all charges, and he was sentenced to 20 years in prison and 20 years of extended supervision. B. Domke's Postconviction Motion for a New Trial ¶20 March Domke filed a postconviction motion for a new trial on 19, counsel. 2009, based on ineffective assistance of trial Domke asserted that Woods performed deficiently in several respects, and that the deficient performance prejudiced him because Woods' errors had erroneously bolstered Alicia S.'s credibility. ¶21 Domke requested a Machner hearing on these issues.5 First, Domke asserted that Woods erred when he failed to object to Rusch's hearsay testimony regarding the reason that 5 A Machner hearing is "[t]he evidentiary hearing to evaluate counsel's effectiveness, which includes counsel's testimony to explain his or her handling of the case." State v. Balliette, 2011 WI 79, ¶31, __ Wis. 2d __, __ N.W.2d __. 9 No. Alicia S. sought counseling services. statements were not covered by 2009AP2422CR Domke argued that these the hearsay exception for statements made for purposes of medical diagnosis or treatment, Wis. Stat. § 908.03(4) (2007-08),6 because statements made to a counselor and social worker, like Rusch, are excluded from that exception. See State v. Huntington, 216 Wis. 2d 671, 695, 575 N.W.2d 268 (1998) (declining "to apply the hearsay exception for statements made for medical diagnosis or treatment, Wis. Stat. § 908.03(4), to statements workers"). Domke asserted made to counselors that these or statements social are not admissible as records of regularly conducted activity either, see Wis. Stat. § 908.03(6). erred by asking Rusch Second, Domke argued that Woods whether she thought that Alicia S.'s allegations of the first incident may have been the result of a bad dream, which allowed Rusch to state that in her professional 6 Wis. Stat. § 908.03(4) (2007-08) provides: Hearsay exceptions; availability of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. 10 No. opinion, it was not just a bad dream. that Woods erred when he failed to 2009AP2422CR Third, Domke asserted object to the hearsay testimony of L.H., Alicia S.'s friend, which was not covered by the excited utterance or records of regularly conducted activity exceptions, see Wis. Stat. § 908.03(2), (6); Domke said that while Woods may have hoped to establish inconsistencies between L.H.'s and Alicia S.'s testimony, he did not actually do so on cross-examination. Fourth, Domke argued that Woods erred by moving BeFay's report into evidence because he did not have a valid strategic reason for doing so. Fifth, Domke asserted that Woods' most serious error was his decision to call Tina Domke without investigating whether she still doubted the truth of Alicia S.'s allegations.7 ¶22 Domke asserted that these deficiencies prejudiced him because this case was ultimately a credibility contest between Alicia S. and Domke. the testimony of Domke argued that Woods' mishandling of Rusch and L.H., his decision to introduce BeFay's report, and his decision to call Tina Domke as a witness led to Alicia the introduction S.'s of allegations additional and evidence generally corroborating bolstering her credibility. ¶23 In the alternative, Domke also sought a new trial in the interest of justice. 7 Domke criticized other aspects of Woods' handling of Rusch's and BeFay's testimony as well. Domke did not pursue those alleged errors before this court, so we do not address them further. 11 No. ¶24 2009AP2422CR The circuit court held a Machner hearing on June 12, 2009, at which Woods testified. In response to Domke's first allegation, Woods first stated that he thought some of Rusch's testimony "could have been objectionable" but that he did not want to draw attention to the testimony by objecting. He then stated it that recorded exception in this a for information regularly was kept statements admissible record made for or the because was because the hearsay purposes of medical diagnosis or treatment may apply. ¶25 Regarding Domke's second allegation, concerning Woods' decision to ask Rusch the dream question twice, Woods explained: It seemed to me that, you know, maybe the child was having problems. As I understood Alicia, she was a special-ed student. She was on some medication and maybe was just having, you know, nightmares. And I'm not -- you know, I'm not an expert in that, but I did want to follow up and that was why. Woods admitted that he did not know what Rusch would say in response to these questions. ¶26 Woods explained in regard to the third alleged deficiency that he did not object to L.H.'s testimony because he also wanted to allow her testimony so that he could bring out inconsistencies in Alicia S.'s testimony. Woods also suggested that the excited utterance or regularly kept records hearsay exceptions might have applied, see Wis. Stat. § 908.03(2), (6). ¶27 that he In regard to the fourth allegation, Woods responded introduced BeFay's report to show that Alicia S.'s physical examination was normal and also to establish the lapse 12 No. 2009AP2422CR in time between the alleged sexual assaults and the physical examination. ¶28 calling In Tina response Domke to to the fifth testify allegation, without checking concerning her present position, Woods explained that he wanted "to elicit from [Tina Domke] that at the inception of this matter she had indeed not believed her own child." Woods explained, "It was initially at least her view, as expressed to the social services people and the police, that indeed this was not a truthful child that we are talking to now." Woods noted that the police report indicated that "Tina [Domke] said Alicia lies a lot." Woods also stated that by the time of trial he had been "informed that indeed [Tina Domke] had been vacillating" in regard to whether she still believed Alicia S. was lying. He admitted that he had not talked with Tina Domke before trial nor did he recall when he last spoke with her. Woods stated that he relied on the police reports and what Domke told him. ¶29 motion, performed The circuit concluding court that deficiently in denied while certain Domke Domke's had respects, postconviction shown he that had establish that the deficiencies prejudiced him. Woods failed to The circuit court concluded that Woods' failure to object to the testimony of Rusch and L.H., and Woods' constituted deficient performance. decision to call Tina Domke In its decision, the circuit court noted that it would have sustained an objection to Rusch's testimony based on Huntington, 216 Wis. 2d 671. The circuit court concluded that Woods made reasonable strategic decisions 13 No. 2009AP2422CR to ask Rusch the dream questions and to introduce BeFay's report into evidence. it concluded The circuit court denied Domke's motion because that, given the totality of the circumstances, including Alicia S.'s "very compelling" testimony, Domke was not prejudiced by Woods' errors. C. The Court of Appeals Decision ¶30 denial The of court Domke's of appeals reversed the motion based postconviction assistance of trial counsel. circuit on court's ineffective State v. Domke, No. 2009AP2422-CR, unpublished slip op. (Wis. Ct. App. Sept. 21, 2010). The court of appeals concluded that Woods performed deficiently by failing to object to Rusch's testimony, by asking Rusch the dream question twice, and by calling Tina Domke as a witness without checking, prior to trial, what her present position was on her daughter's truthfulness. of appeals testimony concluded and performance. Id., ¶¶3-7. that BeFay's Woods' report Id., ¶1 n.1. In a footnote, the court decisions did not regarding constitute L.H.'s deficient The court of appeals concluded that it was reasonable for Woods not to object to L.H.'s testimony because it was Id. exception. decision likely The court of appeals also concluded that Woods' to introduce admissible BeFay's under report the into residual evidence hearsay was not deficient performance because in closing arguments he used the report to give an example of a prior inconsistent statement by Alicia S. ¶31 Id. The court of appeals first concluded that Woods performed deficiently by failing to object to Rusch's hearsay 14 No. 2009AP2422CR testimony without having a strategic basis for that decision or knowing the relevant law. have been aware of Id., ¶3. Huntington's diagnosis and hearsay exception Domke, No. 2009AP2422-CR, ¶3. ask Rusch the dream A reasonable attorney would limitation and on medical on objected the that basis.8 Additionally, Woods' decision to question twice constituted deficient performance because there was such a low probability that she would concede that it could have been a dream. Id., ¶¶5-6. Finally, Woods erred by calling Tina Domke as a witness without knowing whether Alicia S. she Id., ¶7. still believed Domke or now supported The court of appeals concluded that because the credibility of Alicia S. and Domke was central to the case, the collective prejudice from the testimony of Tina Domke and Rusch required a new trial. ¶32 Woods Id., ¶8. The State petitioned this court for review of whether performed deficiently by failing to object to Rusch's hearsay testimony and asking Rusch the dream question twice, and if so, whether the collective prejudice of these errors and Woods' decision to call Tina Domke prejudiced the defendant. III. ANALYSIS 8 The court of appeals also rejected the State's argument that Rusch's testimony would have been admissible as a hearsay exception under the rule of completeness. Domke, No. 2009AP2422-CR, ¶4. The State does not argue before this court that the rule of completeness would have provided a basis to admit Rusch's hearsay testimony. We thus do not address it further. 15 No. ¶33 2009AP2422CR Whether a defendant received ineffective assistance of counsel presents a mixed question of law and fact. State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 N.W.2d 305. court will uphold the circuit court's findings This of fact, "includ[ing] 'the circumstances of the case and the counsel's conduct and strategy,'" unless they are clearly erroneous. Id. (quoting 484 State v. Knight, N.W.2d 540 (1992)). constitutionally requires a and Wis. 2d 509, 514 n.2, Whether counsel's performance constitutes ineffective showing deficiently 168 by that the the assistance of counsel, defendant that error errors or counsel which performed prejudiced the defendant, presents a question of law that this court decides de Id.; Strickland, 466 U.S. at 687 (setting forth the two novo. components of an ineffective assistance of counsel claim: "First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense."). ¶34 Wisconsin criminal defendants are guaranteed the right to the effective assistance of counsel through the Sixth and Fourteenth Amendments to the federal constitution and Article I, Section 7 of the Wisconsin Constitution. State v. Trawitzki, 2001 WI 77, ¶39, 244 Wis. 2d 523, 628 N.W.2d 801; Thiel, 264 Wis. 2d 571, ¶18. fell below assistance United the We measure whether counsel's representation constitutional of counsel against States Wis. 2d 523, Supreme ¶39. Court Counsel minimum the in will 16 for standard set said effective to by the Trawitzki, Strickland. be the forth 244 have provided No. 2009AP2422CR constitutionally inadequate representation if the defendant can show that counsel performed deficiently and that such deficient performance prejudiced the defendant. 687. must Strickland, 466 U.S. at "The benchmark for judging any claim of ineffectiveness be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Trawitzki, 244 Wis. 2d 523, ¶39 (quoting Strickland, 466 U.S. at 686). ¶35 Because we conclude that Domke has not established "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," we reverse the court of appeals and affirm the circuit court's See Strickland, 466 U.S. at 694. judgment of conviction. the result established examine is driven prejudice whether by our from Woods' conclusion the alleged representation that Domke has not we deficiencies, was While also constitutionally deficient. A. Deficient Performance ¶36 show that To establish deficient performance, the defendant must counsel's representation fell below standard of "reasonably effective assistance." U.S. at 687-88. the objective Strickland, 466 Reviewing courts should be "highly deferential" to counsel's strategic decisions and make "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." State v. Carter, 2010 WI 40, ¶22, 324 Wis. 2d 640, 782 N.W.2d 17 No. 695 (quoting Strickland, 466 U.S. at 689). presumption' range of that [counsel's] reasonable conduct professional 2009AP2422CR There is a "'strong 'falls within assistance.'" the Id. wide (quoting Strickland, 466 U.S. at 689). ¶37 Domke asserts that the court of appeals correctly concluded that Woods performed deficiently by failing to object to Rusch's hearsay testimony, by asking Rusch the dream question twice and by calling Tina Domke as a witness without checking, prior to trial, what her present position was on her daughter's truthfulness. The State asserts that Woods did not perform deficiently in regard to his handling of Rusch's testimony but does not contest the court of appeals' conclusion that Woods performed deficiently by calling Tina Domke without checking, prior to trial, allegations. whether she still doubted her daughter's We agree with Domke and the court of appeals that these three errors constituted deficient performance; however, because we conclude that these errors did not prejudice Domke, he is not entitled to a new trial.9 1. Woods' failure to object to Rusch's hearsay testimony. ¶38 On this issue, Domke and the State focus on whether this testimony was admissible as a statement made for purposes of medical diagnosis or treatment, Wis. Stat. § 908.03(4), or whether it was inadmissible because Huntington excludes, from 9 The court of appeals concluded that Woods' handling of L.H.'s testimony and BeFay's report did not constitute deficient performance. Domke, No. 2009AP2422-CR, ¶1 n.1. Domke did not challenge these decisions before this court; therefore, we do not address these alleged deficiencies further. 18 No. 2009AP2422CR that hearsay exception, statements made to counselors and social workers. not to The State argues that Woods made a reasonable decision object to Rusch's hearsay testimony because it was arguably covered by the hearsay exception for statements made for purposes of medical diagnosis or treatment. The State asserts that even though Woods was not familiar with Huntington, attorneys are not required to know all obscure and unsettled points of law, and it is debatable whether Rusch's testimony was inadmissible under Huntington. ¶39 Domke argues that Rusch is either a social worker or a counselor, and thus, her testimony recounting what Alicia S. told her was limitation exception. on inadmissible the medical hearsay under diagnosis and Huntington's treatment clear hearsay Domke asserts that Woods should have objected, at which point it would have been the State's burden to establish that the medical diagnosis and treatment hearsay exception applied despite Huntington.10 ¶40 Our recent decision in Carter is instructive regarding the extent to which counsel is required to know or investigate the relevant law. 324 Wis. 2d 640. In Carter, defense counsel clearly articulated that he made a strategic decision not to present evidence that the victim may sexually assaulted by another person. 10 have been previously Id., ¶¶24-35. Counsel See State v. Jenkins, 168 Wis. 2d 175, 187-88, 483 N.W.2d 262 (Ct. App. 1992) ("A party objecting to the admission of evidence need not specify the rule into which the evidence does not fit. Rather, the proponent has the burden to show why the evidence is admissible." (citation omitted)). 19 No. explained that, as a result of this decision, 2009AP2422CR he did not investigate the alleged previous assault or whether evidence of a previous assault would have been admissible. 35. This court concluded that counsel Id., ¶¶25, 34- did not perform deficiently because his decision not to investigate or introduce this evidence was based on a reasonable trial strategy that was consistent with Id., ¶¶24-35. investigate the overall trial strategy that he pursued. Therefore, it was reasonable for counsel not to further if his strategy Carter we explained made such investigation unnecessary. ¶41 In that "[s]trategic decisions made after less than complete investigation of law and facts may still be adjudged reasonable." Id., ¶34. Counsel must either reasonably investigate the law and facts or make a reasonable strategic decision unnecessary. that makes any further investigation Id., ¶23 (quoting Strickland, 466 U.S. at 691). Woods did neither. Woods did not articulate any valid strategic reason for not objecting to Rusch's hearsay testimony. no strategic testimony, a reason to reasonable allow the attorney presentation should have of Having Rusch's investigated whether it was admissible under one of the hearsay exceptions and, if not, objected to that testimony. ¶42 In the Machner hearing, Woods mentioned the hearsay exception for statements made for purposes of medical diagnosis or treatment, see Wis. Stat. § 908.03(4), but he did not appear familiar with the limitations on that exception. Wisconsin courts have applied that hearsay exception to statements made to 20 No. psychologists, psychiatrists, 2009AP2422CR chiropractors and practitioners in addition to other medical doctors. 216 Wis. 2d at 694-95. In Huntington, nurse Huntington, this court "decline[d] . . . to apply the hearsay exception for statements made for medical diagnosis or treatment, Wis. Stat. § 908.03(4), to statements made to counselors or social workers." 216 Wis. 2d at 695. ¶43 with "a Rusch testified that she is an outpatient therapist [b]achelor's degree in psychology and a [m]aster's degree in education with an emphasis in community counseling." She did not state that she fits within any of the professions to which Huntington allowed application of the exception. Based on the available information, a reasonable attorney would have been familiar with Huntington's limitation on the medical diagnosis or treatment hearsay exception and would have objected to Rusch's hearsay testimony on that basis. ¶44 Contrary to the State's argument, Huntington is not obscure or unsettled law. this rule from State v. Maloney, 2005 WI 74, ¶28, 281 Wis. 2d 595, 698 N.W.2d 583 (holding that counsel is not required to argue an unsettled or unclear point of law). 2005-06 The annotations to Wis. Stat. § 908.03 in both the and 2007-08 Wisconsin Statutes provide: "The hearsay exception for medical diagnosis or treatment under sub. (4) does not apply to statements made to counselors or social workers. State v. Huntington, 216 Wis. 2d 671, 575 N.W.2d 268 (1998)." The edition of Professor Daniel Blinka's treatise on Wisconsin Evidence available at the time 21 of trial also states, "With No. little discussion, § 908.03(4) has psychologists, psychiatrists, and court however, has drawn the line, been extended chiropractors. 'counselors or social workers.'" at 2009AP2422CR The statements to supreme made to Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence § 803.4, at 611-12 (2d ed. 2001) (footnote omitted). Wisconsin Evidence, "[s]tatements made as to Judge Ralph Adam Fine's treatise on updated in counselors 2007, or also social explained workers that are not within" the medical diagnosis or treatment hearsay exception. Ralph Adam Fine, Fine's Wisconsin Evidence, § 908.03(4), at 90845 (2007). ¶45 Huntington provides a clear basis upon which could have objected to Rusch's hearsay testimony. Woods While the State advocates an alternative reading of Huntington, the wellsettled interpretation statements made to of Huntington that counselors and medical diagnosis and treatment hearsay been grounds for Woods' objection. Wis. Stat. Ann. § 908.03 social (West it workers excludes from exception would the have 216 Wis. 2d at 695; see also 2007-08). From Woods' perspective as defense counsel, and with no strategic reason to allow Rusch to present this hearsay testimony, he should have objected. The circuit court noted in its decision on Domke's postconviction motion that it would have sustained an objection on that basis. ¶46 Under all the circumstances set forth herein, Woods performed deficiently by failing to object to Rusch's hearsay testimony, not because allowing the testimony was part of his 22 No. 2009AP2422CR trial strategy, but because he was unfamiliar with Huntington's limitation on the medical diagnosis or treatment hearsay exception. 2. Woods' decision to ask Rusch the dream question twice. ¶47 ask The State argues that it was reasonable for Woods to Rusch whether she thought that Alicia S.'s allegation regarding the first incident could have stemmed from a bad dream even though he was not sure what Rusch would say. The State asserts that it was reasonable for Woods to explore this theory because he defense." overall "did not have much to work with in preparing a According to the State, it was consistent with his trial strategy to establish that the first alleged sexual assault could have just been a bad dream. ¶48 Domke argues that Woods' decision to ask Rusch the dream question twice was not a reasonable trial strategy. Domke asserts that it was unreasonable for Woods to ask this question because he had no reason to believe that Rusch might concede that the first alleged assault could be based on a bad dream. ¶49 strategy, This court will not second-guess a reasonable trial but this court performance was deficient may if it conclude was that based on an attorney's an "irrational trial tactic" or "based upon caprice rather than upon judgment." State v. Felton, 110 Wis. 2d 485, 503, 329 N.W.2d 161 (1983). Woods asserted that his theory of the case would have been supported if Rusch had conceded that the first assault could have been just a bad dream. However, Woods could not provide any information that he had to suggest that Rusch might concede 23 No. that possibility. 2009AP2422CR When Rusch responded with a fairly emphatic "no" the first time, Woods asked Rusch this question again, which allowed Rusch to highlight that "[i]n [her] professional opinion, it was not a dream." to ask once, it was While it may have been reasonable incautious and inconsistent with any rational trial strategy for Woods to ask Rusch a second time whether she thought the first assault might be the result of a bad dream. We agree with the court of appeals that Woods' error in this regard constituted deficient performance. 3. Woods' decision to call Tina Domke as a witness. ¶50 Tina The State does not argue that Woods' decision to call Domke doubted as Alicia a witness S.'s without allegations with constitutionally adequate that the circuit court and knowing against whether Domke representation. the court of was she consistent Domke appeals still asserts correctly concluded that Woods' decision to call Tina Domke as a witness under the circumstances constituted deficient performance. ¶51 When Woods decided to call Tina Domke as his first witness, he had the following information. reflected that when Anderson and Rank The police report first spoke with Tina Domke and the defendant about the alleged assaults, Tina Domke stated that Alicia S. often lied. Domke also told him that his wife had been vacillating regarding whom she believed Alicia S. or Domke. her to the Woods did not speak with Tina Domke before calling stand or further investigate whether doubted Alicia S.'s allegations at the time of trial. 24 she still No. ¶52 "[C]ounsel investigations" or has to a make duty a to strategic further investigation unnecessary. 2009AP2422CR make reasonable decision that makes Thiel, 264 Wis. 2d 571, ¶40 (quoting Strickland, 466 U.S. at 691). Woods explained that he wanted to elicit from Tina Domke that she initially told police that Alicia S. lied a lot and that she believed Domke when he said he did not assault her. consider calling Tina This may have provided a reason to Domke as a witness, but it does not provide a reasonable explanation for why Woods failed to talk with Tina Domke first or do any further investigation. Domke, as the defendant, mother was in a of the unique victim position credibility of Alicia S. and Domke. and asking whether she and the to wife comment Tina of the on the By calling her as a witness initially believed Alicia S.'s allegations, Woods allowed the State to elicit from Tina Domke that she now believed Alicia S. "100 percent." A reasonable attorney, knowing that a witness had been vacillating regarding whom she believed, would have done some investigation when faced with the risk of calling a witness who may provide extremely useful or extremely damaging testimony. either If Woods had talked with Tina Domke he would have discovered that at the time of trial she completely believed Alicia S. and would have realized that the harm from her testimony to that effect likely outweighed any benefit from her testimony that she originally doubted Alicia S. ¶53 Woods' decision to call Tina Domke as a witness without doing any reasonable investigation into what she might 25 No. 2009AP2422CR say, even after Domke told him that Tina Domke was vacillating regarding whether she believed Alicia S. or Domke, constitutes deficient performance. We now turn to whether this error along with Woods' errors regarding Rusch's testimony prejudiced the defendant. We conclude they did not. B. Prejudice ¶54 To establish prejudice "[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 probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. question is A reasonable probability is "When a defendant challenges a conviction, the whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. We examine the totality of the circumstances to determine whether counsel's errors, in the context of the entire case, deprived the defendant a fair trial. 695. Thiel, 264 Wis. 2d 571, ¶¶62-63; Strickland, 466 U.S. at "It is not sufficient for the defendant to show that his counsel's errors 'had some conceivable effect on the outcome of the proceeding.'" Carter, 324 Wis. 2d 640, ¶37 (quoting Strickland, 466 U.S. at 693). ¶55 The State argues that even if Woods' performance was deficient regarding the testimony of both Rusch and Tina Domke, there was not sufficient prejudice to warrant a new trial given the totality of the circumstances. The State further argues that Rusch's testimony was merely cumulative of Alicia S.'s and 26 No. 2009AP2422CR BeFay's testimony because her report was what Alicia S. used to refresh her recollection, was admitted consistent with Alicia S.'s testimony. the court of appeals, in in evidence, and was The State asserts that reaching its conclusion to the contrary, failed to consider the strong evidence against Domke. This included Alicia S.'s detailed and credible testimony, the testimony of L.H. and BeFay corroborating her testimony, and Alicia S.'s statements that she had loved Domke and initially did not want to report the abuse because she did not want to break up her family. Such testimony strongly supported a conclusion that she had no motive to fabricate the allegations. ¶56 Domke argues that the court of appeals properly concluded that the cumulative effect of these errors prejudiced Domke. Domke further asserts that Rusch's corroboration of Alicia S.'s testimony and her testimony that she did not think the assault allegation was the result of a bad dream were damaging to Domke because of her familiarity with Alicia S. and her expertise. In Domke's view, Tina Domke's testimony was the most damaging because of her close relationship to both Alicia S. and Domke. ¶57 We are convinced, based on our review of the totality of the evidence, that Domke received a fair trial. boiled Domke. down to a credibility contest between This case Alicia S. and Woods' errors may have strengthened the State's case against Domke by providing additional corroboration for Alicia S.'s testimony and bolstering her credibility. However, even excluding the evidence admitted due to his errors, the State had 27 No. a very strong case. Upon examining the 2009AP2422CR totality of the circumstances we are not persuaded that, but for Woods' errors, the result would have been any different. U.S. at 694-95. See Strickland, 466 Thus, Woods' errors did not prejudice Domke, and he is not entitled to a new trial. ¶58 The circuit court noted in its decision denying Domke's postconviction motion that Alicia S.'s testimony "was very compelling." credibility We will determination uphold unless Thiel, 264 Wis. 2d 571, ¶23. it the is circuit clearly court's erroneous. Our review of the record leads us to agree with the circuit court's determination in that regard. Alicia S. provided detailed, credible testimony including the details of each assault, details that were consistent with the testimony of L.H., Anderson and BeFay. Alicia S. admitted that she did not disclose the details of all of the alleged assaults to each of these people, and that she initially lied to Anderson and Rank when they interviewed her because she was scared and wanted to protect Domke. The prosecutor established through Anderson that it is not unusual for sexual assault victims to delay reporting or disclosing assaults. point in his closing argument. He highlighted this Woods vigorously cross-examined Alicia S. but failed to establish any inconsistencies other than those she had already admitted to and explained during her direct examination testimony. ¶59 Other evidence also supported Alicia S.'s credibility. Alicia S. testified that she had loved Domke and initially lied to Anderson and Rank to hide the alleged assaults because she 28 No. did not want Domke to go to jail. 2009AP2422CR This was confirmed by the testimony of both Anderson and Domke, who admitted that he told Anderson when she interviewed him that he and Alicia S. had a good relationship. The fact that Alicia S. initially lied to protect Domke supports her credibility because it explains the inconsistencies between statements to Anderson. her testimony at trial and her It also provides a potential reason for her delay in reporting the alleged abuse and her reluctance to disclose the full extent of the alleged assaults. The prosecutor noted in closing that Alicia S.'s feelings towards Domke provide a reason for her to lie to Anderson and Rank to protect Domke, and suggest that she had no motive to make up the allegations against him. Additionally, the testimony from L.H., Anderson, David S., and BeFay that Alicia S. was very upset by the alleged sexual assaults supports the conclusion that they actually occurred. Specifically, David S. testified that Alicia S.'s behavior changed after the alleged assaults took place, which was why he took her to see Rusch. ¶60 he was Domke does not argue that there was any evidence that precluded from presenting 29 as a result of counsel's No. errors.11 Domke chose to testify. 2009AP2422CR He denied the allegations and attacked Alicia S.'s credibility by stating that she lied a lot and suggesting allegations relationship. that because On she she had and a motive Domke cross-examination, to did fabricate not Domke have admitted a the good that he initially told Anderson and Rank that he and Alicia S. got along well, were relationship. affectionate Domke's and had ex-wife Tina a particularly Baxter and their close three children testified that they never saw the alleged assaults or knew of other similar allegations against Domke. ¶61 Even excluding the testimony of Rusch and Tina Domke that was admitted as a result of Woods' errors, it is clear that the State had a very strong case against Domke. There were errors on the part of trial counsel, but under the totality of the circumstances, we cannot say 11 that there is a reasonable The nature of Woods' errors distinguishes this case from State v. Thiel, 2003 WI 111, ¶¶63-80, 264 Wis. 2d 571, 665 N.W.2d 305, in which this court determined that Thiel was prejudiced by the cumulative effect of his counsel's errors. In Thiel, this court examined the totality of the circumstances at trial and concluded that Thiel was prejudiced by his counsel's errors, which kept significant evidence from the jury that would have undermined the complainant's credibility. Id. In this case, Domke does not allege that Woods' errors precluded him from presenting evidence that would have impeached Alicia S.'s credibility, and we conclude that, under the totality of the circumstances in this case, the cumulative effect of Woods' errors did not prejudice Domke. 30 No. 2009AP2422CR probability that but for Woods' deficient performance the result would have been different.12 IV. CONCLUSION ¶62 We conclude that Domke is not entitled to a new trial due to ineffective assistance of counsel. While we agree with the court of appeals that Woods performed deficiently in three respects during trial, we are not persuaded that these errors prejudiced Domke. We hold that under the totality of the circumstances Domke received a fair trial, and our confidence in the result is not undermined. ¶63 Therefore, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction. By the Court. The decision of the court of appeals is reversed. 12 Domke also makes a one-and-a-half-page alternative argument inviting this court to affirm the court of appeals and grant him a new trial in the interest of justice because the real controversy was not fully tried. See State v. Hicks, 202 Wis. 2d 150, 159-60, 549 N.W.2d 435 (1996). We decline to do so. The testimony of Rusch and Tina Domke did not "so cloud[] a crucial issue" such that the real controversy was not fully tried. Id. at 160. The real controversy was whether the jury believed Alicia S.'s allegations or Domke's denials. As described above, there was substantial evidence supporting Alicia S.'s allegations, the circuit court found her to be a very credible witness, and Domke was not precluded from presenting a defense. The real controversy was tried in this case. 31 No. 1 2009AP2422CR
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