State v. Michael J. Carter

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2010 WI 40 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2008AP1185-CR State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Michael James Carter, Defendant-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS (no cite) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: May 25, 2010 November 3, 2009 Circuit Milwaukee Mel Flanagan BRADLEY, J., concurs (opinion filed). ABRAHAMSON, C.J., joins concurrence. DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiff-respondent-petitioner the cause was argued by Aaron R. O Neil, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general. For the defendant-appellant there was a brief by John T. Wasielewski and Wasielewski & Erickson, Milwaukee, and oral argument by John T. Wasielewski. 2010 WI 40 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2008AP1185 CR (L.C. No. 2005CF4726) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent-Petitioner, MAY 25, 2010 v. David R. Schanker Clerk of Supreme Court Michael James Carter, Defendant-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 ANNETTE KINGSLAND ZIEGLER, J. unpublished Milwaukee court County of appeals' Circuit Court, Reversed. This is a review of an decision1 that Judge Patricia presiding, and remanded for further proceedings. reversed D. the McMahon On January 27, 2006, Michael J. Carter (Carter) was convicted of one count of first-degree 1 sexual assault of a child State v. Carter, No. 2008AP1185-CR, (Wis. Ct. App. Mar. 12, 2009). under Wis. Stat. unpublished order No. § 948.02(1) (2005-06).2 27 years 2008AP1185-CR Judge Mel Flanagan sentenced Carter to imprisonment, comprised of 12 years in confinement and 15 years on extended supervision. initial On January 25, 2008, Carter filed a post-conviction motion for a new trial on the grounds Specifically, of Carter ineffective argued assistance his that of counsel trial counsel. was ineffective because he failed to introduce evidence that the five-year-old victim was previously sexually assaulted, which would have provided an alternative explanation for her detailed sexual knowledge. On April 17, 2008, Judge McMahon conducted a Machner hearing3 and denied the motion. Carter appealed, and the court of appeals remanded the matter to the circuit court for further proceedings. The review, and we accepted. State petitioned this court for We now reverse the decision of the court of appeals. ¶2 The issue before us is whether the court of appeals properly remanded the case to the circuit court for further 2 Wisconsin Stat. § 948.02(1)(2005-06) provides in relevant part: "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of one of the following: . . . (b) If the sexual contact or sexual intercourse did not result in great bodily harm to the person, a Class B felony." 3 "Under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979), a hearing may be held when a criminal defendant's trial counsel is challenged for allegedly providing ineffective assistance. At the hearing, trial counsel testifies as to his or her reasoning on challenged action or inaction." State v. Thiel, 2003 WI 111, ¶2 n.3, 264 Wis. 2d 571, 665 N.W.2d 305. 2 No. proceedings on Carter's claim that his trial 2008AP1185-CR counsel was ineffective. ¶3 We conclude that the court of appeals improperly remanded the case to the circuit court for further proceedings. Carter's ineffective assistance of counsel claim fails under the two-part inquiry of Strickland v. Washington, 466 U.S. 668, 687 (1984). First, deficient. his trial counsel's performance was not His counsel's strategic decision not to introduce evidence that the child victim was previously sexually assaulted was objectively Second, even reasonable assuming considering that his all the counsel's circumstances. performance was deficient, the deficiency did not prejudice Carter's defense. Evidence that the child victim was previously sexually assaulted would have been inadmissible under Wisconsin's rape shield law, Wis. Stat. § 972.11(2) (2007-08),4 and the narrow five-part test articulated in State v. Pulizzano, 155 Wis. 2d 633, 656-57, 456 N.W.2d 325 (1990). Accordingly, this court reverses the court of appeals' decision and upholds the judgment of the circuit court denying Carter's post-conviction motion for a new trial. I. FACTS ¶4 On August 25, 2005, Carter was charged with one count of first-degree sexual assault of a child. The State alleged that on or between March 1, 2005, and July 31, 2005, Carter forced five-year-old Cassandra L. (Cassandra) to perform oral 4 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. 3 No. sex on him. The assault occurred while Carter was living with Cassandra and her mother, Denise. and 2008AP1185-CR Cassandra moved to another About two weeks after Denise residence, Cassandra informed Denise that Carter "touched her down in her private area and wanted her to lick his private area." Denise took Cassandra to urgent care, and they eventually spoke to police. ¶5 Cassandra spoke with city of Milwaukee police officer Lucretia Thomas (Officer Thomas). According to Cassandra, one night while her mother was sleeping, she was watching television with Carter when he asked her to "come by him." Carter unbuttoned his shorts and pulled them down a short distance. Cassandra described seeing "a thing sticking out like my kitty." To demonstrate for Officer Thomas, she placed her stuffed pink cat at her vaginal area and angled it upward. Cassandra also described seeing hair the same color as her mother's (brunette). According to Officer Thomas, Cassandra indicated "that she knew what [Carter] wanted her to do" because Cassandra said that she "closed her mouth tight" when he told her to come by him. Carter then pried open Cassandra's mouth and pushed her head down onto his "private part," using his hand to push her head up and down. and When he stopped, Cassandra described wiping her mouth seeing "white stuff hanging from her hand." Cassandra stated that after she washed her hands in the bathroom, she passed Carter in the hallway, and he pretended to zip his mouth and turn a key. ¶6 At trial, before any witness was called, Carter's trial counsel, Stephen Sargent (Sargent), informed the circuit 4 No. court that he would not be presenting any 2008AP1185-CR evidence that Cassandra may have been previously sexually assaulted by a third party. As a "strategic decision," he opted not to present the evidence because he thought (1) the prosecutor would object; (2) the evidence was not relevant; and (3) the evidence would build the jury's sympathy for Cassandra. ¶7 sexual The jury convicted Carter of one count of first-degree assault of a child. After he was sentenced, Carter retained new counsel and filed a post-conviction motion for a new trial, claiming that Sargent provided ineffective assistance of counsel. Carter argued that Sargent was ineffective because he failed to introduce evidence that Cassandra was previously sexually assaulted, which would have provided an alternative explanation for her detailed sexual knowledge. ¶8 At the Machner hearing, Carter testified that Cassandra was previously sexually assaulted by her cousin, and it was from that assault that Cassandra derived her detailed sexual knowledge. Carter learned of the alleged sexual assault in the summer of 2004 while he, Denise, and Cassandra were at Carter's grandmother's house. According to Carter, he was in the bathroom when Cassandra stood outside the door and asked Carter if he "wanted her to make juice." Carter came out of the bathroom and told Cassandra that they did not have any juice, to which Cassandra replied that she "can help [Carter] make juice" and pointed towards his crotch. Cassandra said, "Like [her When asked what she meant, cousin]." Carter gathered from Cassandra's explanation that "her and [her cousin] were upstairs 5 No. 2008AP1185-CR in her bedroom, and she basically pulled on his penis to get him to ejaculate." ¶9 Carter then testified that on the same day, he relayed the incident to Denise. Denise, Cassandra He testified that when questioned by described playing upstairs with her cousin when he pulled his pants down and told her to pull "on his thing." Carter testified that Cassandra then told Denise that "some stuff came out," and the color was white. ¶10 According to Carter's testimony at the hearing, sometime later Denise told him specifically that a social worker and sheriff came over to the house and spoke to Cassandra alone.5 ¶11 Carter alleged that Cassandra referenced the previous sexual assault in a videotaped interview with city of Milwaukee police officer Christine Koch taken on August 26, 2005, shortly after Carter was charged with sexually assaulting Cassandra.6 his post-conviction motion, Carter summarized the In relevant portion of the videotape as follows: In this interview, after telling of events involving Mr. Carter, Officer Koch asked Cassandra if she had seen anyone else's private part. (This starts at about 10:14 a.m. on the clock superimposed on the video.) Cassandra related that she saw [her cousin's] 5 However, as the circuit court pointed out, Carter's postconviction motion made no mention of the alleged previous sexual assault ever being reported to the police. 6 This videotape was not presented at trial, and neither Carter nor the State introduced the videotape at the postconviction hearing. Accordingly, the videotaped interview did not appear in the record before this court, and we must rely on the parties' interpretations of the interview. 6 No. 2008AP1185-CR private part. [Her cousin] . . . is older than Cassandra and is like a grown-up. This happened when Cassandra was four years old. This happened in a big place where they went upstairs. [Her cousin] was "making juice." His pants were down. The State, however, maintained that Cassandra made no such reference: What we have is a statement by a girl in a videotape that says she saw her cousin's penis and that is all we have in that videotape. She doesn't talk about anything else. She doesn't describe it. She doesn't say anything. All she says she sees her cousin's penis. She doesn't even know whether he's a boy or an adult. Then there is some incident of playing and some making of drinks and things like that; but there is nothing that says that she touched him, that he touched her, that there was anything that was sexual in nature. ¶12 viewed In the either case, videotaped Carter's interview trial and counsel, opted not to Sargent, present evidence at trial of the alleged previous sexual assault. At the Machner hearing, Sargent recalled that Carter mentioned to him that Carter another was information, not person any Sargent may more arranged have "molested" specific. for an After Cassandra, hearing investigator to but the contact Cassandra through Denise, but Denise declined to speak to the investigator. 7 No. ¶13 to Sargent,7 assault would According previous sexual presenting have been 2008AP1185-CR evidence an unwise of the defense strategy: [A]s far as who may have sexually assaulted this girl, or when, or where, I did have my investigator attempt to contact the mother of the child. That was not going anywhere, and I made the strategic move we should challenge the mother's credibility through the child rather than other defenses. ¶14 instead Instead of directly attacking Cassandra, Sargent opted to challenge her credibility through Denise, by demonstrating that there was a breakdown in Denise and Carter's relationship, and Denise pressured allegations against Carter. Cassandra into making the In Sargent's view, the videotaped interview depicted a "very sympathetic child," and he did "not wish to build up sympathy for the Jury towards this child and then have to challenge this child's credibility and the mother's credibility within the same trial." ¶15 sexual In deciding not to present evidence of the previous assault, Sargent conceded that he never whether the evidence would have been admissible. researched Specifically, Sargent did not review State v. Pulizzano, a decision by this court that created a narrow exception inadmissibility of a victim's sexual history. 633. to the general See 155 Wis. 2d Pursuant to Pulizzano, evidence of a prior sexual assault against a child victim is admissible if the defendant satisfies 7 By the time of the Machner hearing on April 17, 2008, Sargent had been employed for 18 years as a staff attorney in the State Public Defender's Office, Milwaukee Trial Division. 8 No. 2008AP1185-CR a five-part test, and the court determines that the defendant's right to present the evidence outweighs the State's interest in excluding it. Id. at 656-57. Concerning his familiarity with Pulizzano, Sargent provided the following testimony at the postconviction hearing: Q: [Attorney Wasielewski, on behalf of Carter]: Now when you considered whether or not to bring up this prior sexual assault of Cassandra, what was your understanding as to whether it was legally admissible? A: [Attorney Sargent]: I would have to say I did not look too far whether it was admissible. It was my understanding at some point it may or may not have been. Q: Did you ever Pulizzano? A: No, I did not. Q: Or any subsequent case that quotes the Pulizzano test? A: Prior to trial, no, I did not. Q: Did you do any research that led you to any conclusion as to the admissibility of the prior incident? A: I did not go into researching of that issue. Q: So you made a strategic decision not to go after it without pursuing the question whether you could pursue the admission of the prior incident; is that a fair statement? A: No. To be accurate to say I did not believe that issue to be a strong one as strategic as a trial defense strategy that I that as far as who may have sexually assaulted this girl, or when, or where, I did have my investigator attempt to contact the mother of the child. That was not going anywhere, and I made the strategic move we review a 9 case called State v. No. 2008AP1185-CR should challenge the mother's credibility through the child rather than other defenses. ¶16 At the close of the Machner hearing, the circuit court denied Carter's motion for a new trial, concluding that Carter did not receive ineffective assistance of counsel. First, the circuit court determined that Sargent's decision not to present evidence of the previous sexual assault was a reasonable one. The circuit court declined to criticize Sargent for opting not to present evidence that he deemed irrelevant to his defense strategy and that would have conjured up sympathy for the child victim. Second, Carter failed to establish that his defense was prejudiced by Sargent's decision not to present evidence of the previous sexual assault. According to the circuit court, the admissibility of the evidence presented a "very uphill battle" under Pulizzano. The circuit court also found that Carter's testimony was not credible, especially concerning his statement that the alleged previous sexual assault had been reported to the police. ¶17 The court of appeals remanded the case to the circuit court for further proceedings. The court of appeals concluded that Sargent's performance was deficient given his failure to investigate whether the previous sexual assault had occurred and his unfamiliarity with Pulizzano. However, the court of appeals stated that until further investigation was completed, neither the court whether of appeals Carter performance. was nor the circuit prejudiced by court could Sargent's determine deficient Accordingly, the court of appeals did not grant 10 No. 2008AP1185-CR Carter a new trial and instead remanded the case to the circuit court for further proceedings.8 ¶18 On review, we conclude that Carter did not receive ineffective assistance of counsel. We therefore reverse the decision of the court of appeals and uphold the judgment of the circuit court denying Carter's post-conviction motion for a new trial. II. STANDARD OF REVIEW ¶19 A claim of ineffective mixed question of fact and law. assistance of counsel is a State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 N.W.2d 305; State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999). circuit court's erroneous. findings Thiel, 264 of fact Wis 2d 571, unless ¶21. We will uphold the they are "Findings clearly of fact include 'the circumstances of the case and the counsel's conduct and strategy.'" Id. (quoting State v. Knight, 168 Wis. 2d 509, 514 n.2, 484 N.W.2d 540 (1992)). 8 Moreover, this court will not The State argues for the first time in its reply brief that since the court of appeals did not grant Carter's request for a new trial and instead remanded for further proceedings, Carter cannot request this court to grant him a new trial because he failed to file a petition for cross-review. See Wis. Stat. § 809.62(3m)(a) ("A party who seeks to reverse, vacate, or modify an adverse decision of the court of appeals shall file a petition for cross-review within the period for filing a petition for review with the supreme court, or 30 days after the filing of a petition for review by another party, whichever is later."); Wis. Stat. § 809.62(1g)(b) (defining "adverse decision" to include the court of appeals' failure to grant the full relief sought). Because of our decision to reverse the court of appeals, it is unnecessary for us to address this issue. 11 No. exclude the credibility Thiel, circuit and 264 court's demeanor, Wis. 2d 571, unless articulated they ¶23. are 2008AP1185-CR assessments clearly However, the of erroneous. ultimate determination of whether counsel's assistance was ineffective is a question of law, which we review de novo. Id., ¶21. III. ANALYSIS ¶20 Both the United States Constitution and the Wisconsin Constitution guarantee criminal defendants the right to counsel. U.S. Const. amend. VI; Wis. Const. art. I, § 7.9 The United States Supreme Court has recognized that "'the right to counsel 9 The Sixth Amendment of the U.S. Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. Similarly, the guarantees: Wisconsin Constitution, Article I, Section In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law. 12 7 No. is the right to the effective assistance 2008AP1185-CR of counsel.'" Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).10 ¶21 Whether a convicted defendant received assistance of counsel is a two-part inquiry. U.S. at 687. performance ineffective Strickland, 466 First, the defendant must prove that counsel's was deficient. Id. Second, if counsel's performance was deficient, the defendant must prove that the deficiency prejudiced the defense. Id. In order for Carter to succeed on his claim of ineffective assistance of counsel, he must satisfy both prongs of the Strickland test. See id. This court concludes that he has satisfied neither. A. Deficient Performance ¶22 must To show objective demonstrate that his standard circumstances. deficient counsel's of performance, representation reasonableness" Id. at 688. the "fell considering defendant below an all the In evaluating the reasonableness of counsel's performance, this court must be "highly deferential." Id. at 689. We must 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." Id. Counsel enjoys a "strong presumption" that his conduct "falls 10 "The standard for determining whether counsel's assistance is effective under the Wisconsin Constitution is identical to that under the federal Constitution." Thiel, 264 Wis. 2d 571, ¶18 n.7. 13 No. 2008AP1185-CR within the wide range of reasonable professional assistance." Id. Indeed, counsel's performance need not be perfect, nor even very good, to be constitutionally adequate. Thiel, 264 Wis. 2d 571, ¶19 (citing State v. Williquette, 180 Wis. 2d 589, 605, 510 N.W.2d 708 (1993)). ¶23 Strategic decisions made after less than complete investigation of law and facts may still be adjudged reasonable. Strickland, 466 U.S. at 690-91. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular (emphasis investigations added). investigate, In this unnecessary." evaluating court must counsel's assess Id. decision the at not 691 to decision's reasonableness in light of "all the circumstances," "applying a heavy measure of deference to counsel's judgments." ¶24 We conclude that Sargent's Id. performance was not deficient because his strategic decision not to present evidence of the previous sexual assault considering all the circumstances.11 was objectively reasonable At trial, Sargent informed the circuit court that he had made the strategic decision not to present evidence that Cassandra 11 may have been previously In his brief, Carter appears to argue that the deficiency of Sargent's performance is not at issue because the State, in its brief, "acknowledge[d], though not wholeheartedly, that . . . 'perhaps Sargent's decision not to pursue the [alleged previous sexual assault] matter further was not reasonable.'" We decline to dispose of the deficient performance prong on that basis. As discussed supra Part II, the determination of whether counsel performed deficiently is a question of law that this court reviews independently. Thiel, 264 Wis. 2d 571, ¶21. 14 No. sexually assaulted by a third party. 2008AP1185-CR He gave three reasons for his decision: (1) "[he] thought the DA would likely object"; (2) "[he did not] see it as relevant"; and (3) "[he thought he would] if anything, build up sympathy for this young girl." Like the circuit court, we decline to criticize Sargent for opting not to present evidence that he deemed irrelevant to his defense strategy and that would have conjured up the jury's sympathy for Cassandra. ¶25 At the Machner hearing, Sargent clearly articulated the defense strategy he chose: instead of directly attacking Cassandra, he opted instead to challenge her credibility through Denise, by demonstrating that there was a breakdown in Denise and Carter's relationship, and Denise used Cassandra as a tool in that breakup. Sargent's chosen defense strategy was revealed at trial through his opening argument; his cross-examination of Denise and Cassandra; his direct-examination of Carter; and the State's closing argument. ¶26 In his opening argument, Sargent represented to the jury that Denise and Carter had an angry relationship, for which Denise and Cassandra harbored hostility towards Carter: Look at the case. Look at all the witnesses. Look at their testimony. Look at the the nature of this girl, relationship with her mother, their relationship with Mr. Carter. Now, I think one fallacy in life is that we think that we have to show that kids are manipulative or they think that you know, they create grand schemes. It's not one of those cases. 15 No. 2008AP1185-CR Question of whether or not the atmosphere of this child that was living at was such that there was a great deal of hostility towards Michael Carter. There will be. There will be some things you hear about the relationship of Michael Carter and her mother that were bad. There will be some things you hear about Michael Carter that are not good to hear, that he was involved in some very bad arguments with his girlfriend. There was arguments over money. There was arguments over drugs. Okay. That is not very good to talk about, that's not very positive, but that's the facts that this child was living in. There will be testimony about the hostility that this girl saw . . . . . . . . . . . In the end I'm gonna ask you to return a not guilty verdict, 'cuz the evidence will show that there really is there, really, is no clear evidence that Michael Carter did anything improper towards this girl. He was a man, he was in a relationship, an adult relationship with a woman, the woman had a child, the The adult relationship was a volatile one possibly at times, it was [an] angry relationship, it was not a good relationship. ¶27 Denise and Carter's broken relationship was further revealed through Sargent's cross-examination of Denise: Q: . . . Towards the spring, into the early summer of 2005, you and Mr. Carter began to have arguments, correct? A: Yes, sir. Q: Some of these arguments Cassandra was home? 16 were in the when No. 2008AP1185-CR A: Yes. Q: Some of these arguments were very loud? A: Oh, yes. Q: About money? A: Yes. Q: About drug use? A: Yes. Q: Michael Carter's drug use? A: Yes. Q: They were about a Michael Carter and a breakup of a relationship, correct? A: Pardon? . . . . Q: Your relationship with Michael Carter was breaking up, correct? A: Yes. Q: There's a lot of animosity in that, correct? A: Correct. Q: And your daughter had to see a lot of that. A: Right. ¶28 During Sargent's cross-examination of Cassandra, Cassandra testified that the arguments between her mother and Carter caused Cassandra to "want[] to get away from" Carter: Q: And they argued sometimes in front of you. A: Yes. Q: And that made you very sad, didn't it? 17 No. 2008AP1185-CR A: Mm-hmm. Q: And you wanted to get away from that house, didn't you? And you wanted to get away from Mike, didn't you? A: Yes. ¶29 Sargent's direct-examination of Carter confirmed Denise and Carter's broken relationship: Q: Now, and in March till August 2005, would towards the latter part, would you say that you and her mother were having . . . Break-up issues, I call it. You were having disagreements, right? A: Yes. Q: You were arguing about money? A: Quite a bit. Q: And brought up by her mother, that you were arguing about her drug use? A: Yes. Q: Okay. And you and her mother were having some pretty loud arguments A: Yes Q: in front A: we were Q: of the child. Along with alcohol abuse. During that time were your Was your alcohol and drug use affecting the relationship? A: Yes. Quite a bit. Q: Was that causing a strain on your relationship? A: Yes. 18 No. ¶30 Finally, Sargent's chosen defense 2008AP1185-CR strategy was made clear when it was attacked by the State in its closing argument: And the last thing I want to talk to you about is, again, [Cassandra's] testimony. If there was a reason to get Mr. Carter in trouble that was contrived between the mother and this little girl, would it not have been simpler? Would it have not just been, he hit me. He hit me in my face. Something a little girl would remember. But a sexual assault, and a sexual assault with this much detail and graphic detail? Ask yourself, would a six year old be able to carry that off? She's six. Not a sophisticated liar. ¶31 Sargent determined that evidence of a previous sexual assault against Cassandra was irrelevant to his defense strategy of challenging Cassandra's credibility through Denise by demonstrating that there was a breakdown in Denise and Carter's relationship, breakup. and Denise used That determination Cassandra was a as a tool reasonable one. in that Whether Cassandra was previously sexually assaulted by a third party would not assessing have necessarily whether Denise's assisted broken the trier relationship of with fact in Carter caused her to pressure Cassandra into making allegations against Carter. If Denise pressured Cassandra into making up the allegations, the jury could have believed that Denise was the source of Cassandra's sexual knowledge, alleged previous sexual assault. 19 regardless of the No. ¶32 2008AP1185-CR In addition, it was reasonable for Sargent to conclude that if he presented evidence of the previous sexual assault, the jury would have questioned his chosen defense theory. The jury could have found it even less likely that Denise would put her daughter through a lie about sexual assault allegations, given the fact that Cassandra was already a victim. It was a reasonable trial strategy to not risk causing greater sympathy for Cassandra by introducing her as a victim of sexual assault and then directly attacking her credibility. evidence of the previous sexual assault is On balance, when weighed with the strategy employed, and there is already an alternative source of sexual knowledge, that being Cassandra's mother, the fact that Cassandra was previously sexually assaulted militates against the defense. Furthermore, the jury could have concluded that this child was vulnerable to sexual assault by Carter because she was previously a victim. In the end, the jury had to decide who it believed: the child or Carter. Whether the child was a previous victim of sexual assault would not have necessarily assisted the jury in answering that question.12 ¶33 Even more reasonable, however, was Sargent's concern that presenting evidence of the previous sexual assault would 12 In this case, we conclude that evidence of the alleged previous sexual assault would have been inadmissible. See supra Part III.B. Such evidence, offered as proof of a child victim's "alternative source of sexual knowledge," is not admissible without safeguards. See State v. Pulizzano, 155 Wis. 2d 633, 656-57, 456 N.W.2d 325 (1990). We do not accept the proposition that children who are victims of sexual assault should be automatically subject to greater attack than adult victims. 20 No. have built up the jury's sympathy for Cassandra. 2008AP1185-CR The jury would have been faced with the unfortunate prospect that five-year-old Cassandra had been sexually assaulted not once, but twice, and both times by men close to her (her cousin and her mother's live-in boyfriend). Moreover, by attempting to demonstrate that Cassandra gained her detailed sexual knowledge, not from Carter, but from a previous sexual assault by her cousin, Sargent would necessarily have been asking the jury to discredit the testimony of a five-year-old victim of sexual assault. It was certainly reasonable that Sargent was more confident asking the jury to discredit the mother, Denise, instead of directly attacking the child victim. ¶34 appeals' because Finally, Carter conclusion he that "ma[d]e a urges us Sargent's strategic to adopt performance determination the court was deficient without of full knowledge of the circumstances of the alleged prior assault and its potential admissibility." State v. Carter, No. 2008AP1185- CR, unpublished order (Wis. Ct. App. Mar. 12, 2009). the invitation to override the circuit court's We decline determination regarding the facts, the credibility of the witnesses, and the "very uphill battle" regarding the admissibility of the alleged prior assault under Pulizzano. Under the facts of this case, counsel's failure to further investigate is not deficient as a matter of law. Strategic decisions made after less than complete investigation of law and facts may still be adjudged reasonable. Strickland, 466 U.S. at 690-91. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable 21 No. 2008AP1185-CR decision that makes particular investigations unnecessary." at 691 (emphasis added). whether Sargent's unnecessary was It is our responsibility to determine decision a Id. that reasonable further one in investigation light of was "all the circumstances," bearing in mind that his judgment is entitled to "a heavy measure of deference." See id. at 691. We conclude that Sargent reasonably decided that further investigation of the alleged prior unnecessary. better sexual However, practice is assault to for be and clear, counsel to its we admissibility do always familiar with pertinent legal authority. was caution the that research and be In another case, the failure to do so may constitute deficient performance. Under "all the circumstances" of this case, id., however, we conclude that Sargent's decision not to investigate was reasonable. ¶35 have After being informed by Carter that another person may sexually assaulted Cassandra13 and after viewing the 13 There is a discrepancy in the record as to whether Carter was any more specific in describing to Sargent the alleged previous sexual assault. Sargent testified that at some point before trial (he could not recall when), Carter mentioned to him "that some other possible person" may have previously "molested" Cassandra. However, according to Sargent, Carter never told him about an incident in which Cassandra pointed to Carter's crotch and offered to help him "make juice" and furthermore that Carter never even mentioned Cassandra's cousin: Q: [Attorney Wabitsch, on behalf of the State]: So the only thing you knew of any prior incidents that might have been sexual in nature was when Mr. Carter told you that he believes there was an incident that happened not in Milwaukee and she was molested by another person? 22 No. 2008AP1185-CR videotaped interview in which Cassandra told the police that she had seen her information by cousin's arranging Cassandra through Denise. investigator to penis, speak investigator herself. for Sargent an followed up on the investigator to contact Denise, however, would not permit the with Cassandra and never spoke to the Because his investigator's efforts were fruitless and because, in his opinion, the videotaped interview depicted a "very sympathetic child," Sargent decided A: [Attorney Sargent]: That would be accurate. Q: But he didn't tell you what he meant by molesting? A: that He did not have more specific information to my knowledge. Carter, on the other hand, maintained that he explained to Sargent the specifics about the time in the bathroom when Cassandra asked Carter if he "wanted her to make juice." Carter testified that when he was at the House of Corrections, he told Sargent's assistant, and he was "almost positive that [he] told Steve Sargent, too," that he thinks Cassandra acquired her sexual knowledge from an incident with her cousin. He then testified that he explained to Sargent specifically "everything that Cassie told [him], that there was some type of something happened between her and her cousin earlier." According to Carter, he consistently took the position with Sargent that evidence of the previous incident between Cassandra and her cousin should be introduced at trial. The circuit court questioned Carter's credibility, specifically his testimony surrounding the alleged previous sexual assault and whether it had been reported to the police. This court must uphold the circuit court's assessment of Carter's credibility, as it is not clearly erroneous. See Thiel, 264 Wis. 2d 571, ¶23. As a practical matter, we cannot expect Carter's trial counsel to engage in a full investigation of the alleged previous sexual assault when, according to Sargent, Carter himself offered no specifics on the prior incident between Cassandra and her cousin until he challenged his counsel's effectiveness. 23 No. 2008AP1185-CR further investigation of the alleged previous sexual assault was unnecessary. Instead, he opted to pursue what he considered a wiser defense strategy: attacking Denise's credibility. At that point, it was not whether necessary for Sargent to research evidence of the alleged previous sexual assault was admissible. In light of all the circumstances, we cannot conclude that Sargent made an unreasonable decision when he determined that it was unnecessary to further investigate the alleged previous sexual assault and its admissibility. ¶36 Our conclusion that Sargent's performance was not deficient is enough to defeat Carter's ineffective assistance of counsel claim. See Strickland, 466 U.S. at 700 ("Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.") Nevertheless, we continue our analysis into the second prong of the two-part inquiry and conclude that irrespective of whether Sargent's claim performance still fails was deficient, because the Carter's deficiency ineffectiveness did not prejudice Carter's defense. B. Prejudice ¶37 the To warrant setting aside the defendant's conviction, defendant performance must was demonstrate prejudicial (recognizing that guarantee counsel of "[t]he is to to that his purpose ensure his counsel's defense. Id. deficient at of the Sixth that a defendant 691-93 Amendment has the assistance necessary to justify reliance on the outcome of the proceeding," and therefore, the 24 defendant must affirmatively No. 2008AP1185-CR prove that his counsel's deficient performance actually had an adverse effect on the judgment). defendant to show that It is not sufficient for the his counsel's errors "had conceivable effect on the outcome of the proceeding." 693. Rather, the defendant reasonable probability that, must but for show that counsel's some Id. at "there is a unprofessional errors, the result of the proceeding would have been different." Id. at 694. ¶38 Even assuming that Sargent's performance was deficient, we conclude that the deficiency did not prejudice Carter's defense because evidence of the previous sexual assault would have been inadmissible. Thus, regardless of whether Sargent attempted to present evidence of the previous sexual assault, the result of the proceeding would have been the same. 1. General Inadmissibility under Wisconsin's Rape Shield Law ¶39 generally 14 Wisconsin's rape shield law, Wis. Stat. § 972.11(2),14 prohibits a defendant like Carter from introducing Wisconsin Stat. § 972.11(2) provides in relevant part: (a) In this subsection, "sexual conduct" means any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and life-style. (b) If the defendant is accused of a crime under s. 940.225, 948.02, 948.025, 948.05, 948.051, 948.06, 948.085, or 948.095, or under s. 940.302(2), if the court finds that the crime was sexually motivated, as defined in s. 980.01(5), any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation 25 No. 2008AP1185-CR evidence concerning the alleged victim's prior sexual conduct. Our legislature enacted the rape shield law "to counteract outdated beliefs that a complainant's sexual past could shed light on the truthfulness of the sexual assault allegations." State v. Dunlap, 2002 WI 19, ¶19, 250 Wis. 2d 466, 640 N.W.2d 112 (citing Michael R.B. v. State, 175 Wis. 2d 713, 727, 499 N.W.2d 641 (1993)). The law "protect[s] victims of sexual assault from themselves becoming the focus of scrutiny during trial," Michael R.B., 175 Wis. 2d at 727, as it is generally recognized that evidence of the victim's prior sexual conduct is "'irrelevant or, if relevant, substantially outweighed by its prejudicial effect,'" State v. Dodson, 219 Wis. 2d 65, 70, 580 N.W.2d 181 (1998) (quoting Pulizzano, 155 Wis. 2d at 644). ¶40 Evidence that Cassandra may have had previous sexual contact with her cousin clearly falls under the rape shield as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31(11): 1. Evidence of the complaining witness's past conduct with the defendant. 2. Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered. 3. Evidence of prior untruthful allegations of sexual assault made by the complaining witness. 26 No. law's definition § 972.11(2)(a). of "sexual conduct." 2008AP1185-CR See Wis. Stat. Accordingly, unless Carter can demonstrate that such evidence is statutorily or judicially excepted from the rape shield law, the evidence is inadmissible.15 2. Inadmissibility even under State v. Pulizzano's exception to the Rape Shield Law ¶41 In Pulizzano, this court held that while Wisconsin's rape shield law is constitutional on its face, as applied it may unconstitutionally infringe upon a defendant's confrontation and compulsory process. "'In the circumstances complainant's probative prior that constitutionally of a sexual the defendant's protected.'" to 155 Wis. 2d at 647-48. particular conduct rights case evidence be right to present it is 219 Wis. 2d at 71 (quoting Pulizzano, 155 Wis. 2d at 647). relevant a may Dodson, so of and In particular, this court has recognized that when the complainant is a child, the possibility of the child having a previous sexual experience may be relevant to the defendant's case because it could provide an alternative source for the child's detailed sexual knowledge. Dunlap, 250 Wis. 2d 466, ¶19 (citing Michael R.B., 175 Wis. 2d at 728). ¶42 test that Accordingly, the in defendant Pulizzano, must we satisfy 15 articulated in order "to a narrow present It is evident from Carter's brief that he does not take issue with the fact that evidence that Cassandra may have been previously sexually assaulted by her cousin does not fall under any of the three statutory exceptions to the rape shield law. See Wis. Stat. § 972.11(2)(b)(1) (3). 27 No. otherwise excluded evidence of a child 2008AP1185-CR complainant's prior sexual conduct for the limited purpose of proving an alternative source for sexual knowledge": [P]rior to trial the defendant must make an offer of proof showing: (1) that the prior acts clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to the defendant's case; and (5) that the probative value of the evidence outweighs its prejudicial effect. If the defendant makes that showing, the circuit court must then determine whether the State's interests in excluding the evidence are so compelling that they nonetheless overcome the defendant's right to present it. . . . Pulizzano, 155 Wis. 2d at 656-57. ¶43 Despite our acknowledgement that the rape shield law "takes on a slightly different role when the complainant is a child," Dunlap, 250 Wis. 2d 466, ¶19, this court cautions that the Pulizzano exception to the rape shield law is intentionally narrow and must be applied accordingly. Even when the complainant is a child, evidence of his or her previous sexual experience can still be "extremely prejudicial" and can "improperly focus attention on the complainant's character and past actions, rather than on the circumstances of the alleged assault." Id. That the complainant happens to be a child, rather than an adult, does not alter the intention behind the rape shield law: "to protect victims of sexual assault from themselves becoming the focus of scrutiny during trial," Michael R.B., 175 Wis. 2d at 727. 28 No. ¶44 2008AP1185-CR In this case, we conclude that Carter's offer of proof fails the first and second prongs of the Pulizzano test, and therefore, evidence of the alleged previous sexual assault against Cassandra is not admissible as an exception to the rape shield law. a. Did the prior sexual assault "clearly occur"? ¶45 Carter's offer of proof fails the first prong of the Pulizzano test because the alleged previous To demonstrate that the assault See 155 Wis. 2d at against Cassandra did not "clearly occur[]." 656. sexual previous assault "clearly occurred," Carter's offer of proof "'should state an evidentiary hypothesis underpinned by a sufficient statement of facts to warrant the conclusion or inference that the trier of fact is urged to adopt.'" Id. at 652 (quoting Milenkovic v. State, 86 Wis. 2d 272, 284, 272 N.W.2d 320 (Ct. App. 1978)). presented do not warrant the conclusion that clearly sexually assaulted by her cousin. the sexual assault, we have only The facts as Cassandra was As for evidence of Carter's testimony and a videotaped interview with Cassandra in which she told Officer Koch that she had seen her cousin's penis. Neither Carter's testimony nor the videotaped interview sufficiently demonstrates that the previous sexual assault "clearly occurred." ¶46 Carter testified that Cassandra pointed to his crotch and offered to "help [him] make juice," explaining to him that she "made juice" with her cousin by pulling on his penis and getting him testimony to ejaculate. Carter from Cassandra, Denise, 29 offered or no corroborating Cassandra's cousin. No. 2008AP1185-CR Furthermore, while he testified that a social worker and sheriff came over to the incident, Carter assertion that police. house and introduced the talked no incident to Cassandra documentation had ever been the support to about his reported to The circuit court adjudged Carter not credible, and we uphold that finding because it is not clearly erroneous. Thiel, the 264 Wis. 2d 571, ¶23. Given Carter's See lack of credibility, this court cannot conclude from his testimony that the previous sexual assault "clearly occurred." ¶47 charged, In a videotaped Cassandra cousin's penis. told interview Officer taken Koch that after she Carter had The parties agree on little else. seen was her At one point in the interview, Cassandra apparently referenced the making of drinks. According to Carter, she was referring juice" with her cousin while his pants were down. the other hand, maintains that Cassandra's that Cassandra's blank statement "making The State, on statement making drinks was merely a reference to playing. contends to about about The State seeing her cousin's penis was void of any sexual description: "there is nothing that says that she touched him, that he touched her, that there was anything that was sexual in nature." Because the videotaped interview did not appear in the record before this court, we are interpretations. left As to it rely was on relayed the to parties' us, the competing videotaped interview is too insufficient to support the conclusion that the previous sexual assault "clearly occurred." 30 No. ¶48 first 2008AP1185-CR Our conclusion that Carter's offer of proof fails the prong of the Pulizzano test is enough to dispose of Carter's argument that evidence of the previous sexual assault is excepted from the rape shield law. Wis. 2d 466, ¶29 (recognizing that See, e.g., Dunlap, 250 this court need not go further in applying the Pulizzano test after one of the five prongs is not satisfied). Nevertheless, we move on to discuss the second prong and further conclude that Carter's offer of proof fails to demonstrate that the previous sexual "closely resemble[s]" that of the present case. assault See Pulizzano, 155 Wis. 2d at 656. b. Did the prior act "closely resemble" this act? ¶49 In order to satisfy the second prong of the Pulizzano test, the defendant's offer of proof must show that the prior act "closely resembled" the act that the defendant is accused of committing. Id. This court has refused to broadly interpret "closely resembled." recognized that sufficiently intercourse. 16 Dunlap, 250 Wis. 2d 466, ¶23. evidence resemble of a prior present sexual touching allegation of We have does not sexual Dodson, 219 Wis. 2d at 79.16 Wisconsin Stat. § 948.01(6) defines "sexual intercourse" as vulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required. 31 No. ¶50 2008AP1185-CR In Dodson, in analyzing whether a prior act "closely resembled" the act alleged in the underlying case, see Pulizzano, 155 Wis. 2d at 656, this court made the distinction between (a) a prior act of sexual touching and a present allegation of sexual intercourse, and (b) a prior act of sexual intercourse and a present Dodson, 219 Wis. 2d at 79. allegation of sexual touching. "Although evidence of prior sexual touching does not sufficiently 'resemble sexual intercourse,' it does not automatically follow that evidence of prior sexual intercourse does not resemble or involve sexual touching." Id. Indeed, "it is impossible to conceive" of a prior act of sexual intercourse that does not involve sexual contact. Id. Accordingly, in Dodson, this court concluded that the defendant satisfied the second prong of the Pulizzano test because the previous act of sexual intercourse commissioned against the victim necessarily involved, and hence "closely resembled," the sexual contact that the defendant was accused of. ¶51 Id. at 78-79. In Michael R.B., we analyzed the converse scenario. 175 Wis. 2d at 736. The defendant, who was accused of having sexual intercourse with the child victim, made an offer of proof that the victim and her brother were previously seen touching each other's "private parts" while sitting together in a tire swing. Id. This court concluded that the defendant failed the second prong of the Pulizzano test, stating that it was "an Carter was charged with forcing Cassandra to perform oral sex on him. Oral sex constitutes "sexual intercourse" as defined by § 948.01(6). 32 No. 2008AP1185-CR insupportable leap of reasoning to conclude that two or three minutes of undefined sexual touching while sitting in a tire swing so closely resembles sexual intercourse as to satisfy the Pulizzano test." ¶52 Id. Here, Carter's offer of proof must fail the second prong of the Pulizzano test because the previous sexual assault against Cassandra does not "closely resemble[]" sexual intercourse that Carter was charged with. 155 Wis. 2d at 656. the act of See Pulizzano, Carter was charged with forcing Cassandra to perform oral sex on him, an act of "sexual intercourse." Wis. Stat. § 948.01(6). See Carter's offer of proof consists of testimony that Cassandra had previous sexual contact with her cousin, specifically that Cassandra "pulled on [her cousin's] penis to get him to ejaculate."17 As this court has made clear, a previous act of sexual contact does not sufficiently resemble an act of sexual intercourse for second prong of the Pulizzano test. purposes of satisfying the Dodson, 219 Wis. 2d at 79. Similar to our analysis in Michael R.B., it would require "an insupportable leap of reasoning" to conclude that the uncertain sexual touching that took place between Cassandra and her cousin "closely resembles" the act of oral sex that Carter was charged 17 In his brief, Carter concedes that the previous sexual assault did not involve oral sex: "The State correctly asserts that Mr. Carter did not and does not claim the assault by [her cousin] involved oral sex." It is therefore irrelevant that, according to Carter, Cassandra's statement to Officer Thomas (that she "closed her mouth tight" when she saw Carter's penis) indicated that Cassandra had some prior knowledge of oral sex. 33 No. with. See Michael R.B., 175 Wis. 2d at 736. 2008AP1185-CR "[W]e refuse to interpret the second prong of Pulizzano so broadly." Dunlap, 250 Wis. 2d 466, ¶23. ¶53 Because we conclude that Carter's offer of proof fails the first and second prongs of the Pulizzano test, we hold that evidence of the alleged Cassandra is not excepted therefore inadmissible. demonstrate that his previous sexual from rape the Accordingly, defense was assault shield Carter prejudiced counsel's decision not to present the evidence. law has by against and is failed to his trial Regardless of whether Sargent attempted to present evidence of the previous sexual assault, the result of the proceeding would have been the same. IV. CONCLUSION ¶54 To summarize, we conclude that the court of appeals improperly remanded the case to the circuit court for further proceedings. Carter's ineffective assistance of counsel claim fails under the two-part inquiry of Strickland v. Washington. First, his trial counsel's performance was not deficient. His counsel's strategic decision not to introduce evidence that the child victim was previously sexually assaulted was objectively reasonable assuming considering that his all the counsel's circumstances. performance was deficiency did not prejudice Carter's defense. Second, deficient, even the Evidence that the child victim was previously sexually assaulted would have been inadmissible under Wisconsin's rape shield law, Wis. Stat. § 972.11(2), and the narrow five-part test articulated in State 34 No. v. Pulizzano. 2008AP1185-CR Accordingly, this court reverses the court of appeals' decision and upholds the judgment of the circuit court denying Carter's post-conviction motion for a new trial. By the Court.-The decision reversed. 35 of the court of appeals is No. ¶55 ANN WALSH BRADLEY, J. 2008AP1185-CR.awb (concurring). I agree with the majority that Carter did not receive ineffective assistance of counsel and is therefore not entitled to a new trial. I also agree with the majority that the evidence Carter presented at the post-conviction hearing was insufficient to demonstrate that he was prejudiced by his attorney's failure to seek the admission of evidence of a prior assault. ¶56 I write separately, however, because the majority goes further. It unnecessarily places its imprimatur on the attorney's "strategic decision," which was apparently made in ignorance of the law and left unaddressed a question that was fundamental to the defense in this case. should not needlessly ratify this Because the court attorney's questionable decision, I respectfully concur. I ¶57 In State v. Pulizzano,1 the court recognized an exception to the rape shield statute, Wis. Stat. § 972.11(2)(b). It concluded that a defendant may have a constitutional right to present evidence of a prior sexual assault to demonstrate an alternative source of the child's detailed sexual knowledge. Based on Sargent's testimony at the post-conviction hearing, the court of appeals determined that he "was unfamiliar with the Pulizzano exception to the rape shield statute." State v. Carter, No. 2008AP1185-CR, unpublished order at 4 (Wis. Ct. App. 1 State (1990). v. Pulizzano, 155 1 Wis. 2d 633, 456 N.W.2d 325 No. March 12, 2009). 2008AP1185-CR.awb At the hearing, Sargent acknowledged that he did not "ever review a case called State v. Pulizzano."2 ¶58 whether assuming The majority Sargent's that recognizes performance [it] was that was need deficient, deficient, prejudice Carter's defense." it the not determine because deficiency Majority op., ¶3. "even did not The majority could have and should have decided this case based solely on a determination of no prejudice. Instead, the majority unnecessarily gives Sargent's performance a stamp of approval. Despite his apparent admitted ignorance of the relevant law and the failure of his purported strategy to address a question fundamental to the defense, the majority determines that the "strategic decision . . . was objectively reasonable considering all the circumstances." Id. 2 The following exchange took place between Carter's postconviction counsel and Sargent: Q: Did you Pulizzano? ever review a case called State v. A: No, I did not. Q: Or any subsequent case that quotes the Pulizzano test? A: Prior to trial, no, I did not. Q: Did you do any research that led you to any conclusion as to the admissibility of the prior incident? A: I did not go into researching of that issue. 2 No. 2008AP1185-CR.awb A ¶59 Why does the majority needlessly ratify a "strategic decision" when Sargent knowing the law? apparently made the decision without The majority sets the bar too low when it relegates knowledge of the law to merely a "better practice." It cautions "that the better practice is for counsel to always research and be familiar with pertinent legal authority." Id., ¶34. ¶60 Ignorance of deficient performance. the relevant law is often considered Even the State appears to acknowledge deficient performance here. After scant briefing on deficiency, the State concludes: "[P]erhaps Sargent's decision not to pursue the matter further was not reasonable[.]3 ¶61 defense In State counsel's v. Felton, ignorance we of a thoroughly possible considered defense strategy should be evaluated in an ineffective assistance claim. Wis. 2d 485, 329 N.W.2d 161 (1983). knowledge attorney of to the "make applicable a law, reasoned how 110 We concluded that without it is decision impossible consistent for with an the standard of performance expected of a prudent lawyer," and that the court should not "ratify a lawyer's decision merely labeling it . . . 'a matter . . . of trial strategy.'" by Id. at 505-06, 502. 3 At oral argument, counsel for the State asserted that Sargent's strategy was reasonable. The court asked: "If he doesn't know what the facts are and he has not really carefully looked at Pulizzano, then how can he make a reasonable strategy?" The State's attorney responded, "I think I agree with that statement, that he can't." 3 No. ¶62 2008AP1185-CR.awb In that case, Rita Felton was routinely battered by her husband and shot him on a day when his physical abuse was especially acute. Id. at 489-92. Felton second degree murder. Id. at 488. counsel in quickly zeroed on a was charged with Prior to trial, defense theory of self-defense and therefore failed to further explore the statutes and discover an alternative defense. Id. at 505. Because counsel was ignorant of the heat-of-passion defense, "he never was in a position even to consider whether, in light of the facts, heat of passion was an appropriate defense." ¶63 counsel's Id. Post-conviction, "strategic the circuit choice": "[T]here court may deferred have been to some shortcomings in the matters handled during the trial, but very often that is a matter of trial strategy. . . . [T]he defenses [Felton's attorney] put forth were a matter of choice and of trial strategy, and not grounds for a new trial." ¶64 Id. at 498. On review, we acknowledged that "this court is loath to interfere with a lawyer's exercise of professional judgment by a hindsight evaluation." Id. at 507. Nevertheless, we clarified that "strategic or tactical decisions must be based upon rationality founded on the facts and the law." "We will in fact second-guess a lawyer if Id. at 502. the initial guess . . . is the exercise of professional authority based upon caprice rather than upon judgment." ¶65 We unanimously informed of this defense concluded in the Id. at 503. that "[t]he circumstances failure of this to be case constitutes a glaring deficiency in trial counsel's knowledge of 4 No. the law" and was deficient performance.4 2008AP1185-CR.awb Id. at 505. We refused to "ratify a lawyer's decision merely by labeling it, as did the trial court, 'a matter of choice and of trial strategy.'" Id. at 502. ¶66 Here, Sargent acknowledges that he did not make a legal determination about whether evidence of the prior assault would have been admissible. See majority op., ¶15. Because of his apparent ignorance of Pulizzano, it appears impossible for him to "weigh consistent alternatives with and professional to make a reasoned standards. See decision" Felton, 110 Wis. 2d at 505-06. Instead, the decision was made in a legal vacuum. I join approval on cannot a decision the majority apparently in made putting in a stamp ignorance of of the applicable law. B ¶67 not There is an additional reason that the court should put its decision. imprimatur Sargent's on Sargent's purported questionable strategy left strategic unaddressed a fundamental question: was Cassandra telling the truth about the source of her detailed sexual knowledge? ¶68 At the post-conviction hearing, Sargent explained that he wanted to avoid challenging the credibility of a sympathetic five-year-old girl. Instead, he asserted, he planned to attack 4 See also State v. Thiel, 2003 WI 111, ¶40, 264 Wis. 2d 571, 665 N.W.2d 305 ("[D]efense counsel cannot claim to have decided strategically to forgo interviewing a particular witness if counsel has not read the police report relating to that witness, because that would not be an informed decision."). 5 No. her mother's pressured op., credibility Cassandra ¶14. The into and demonstrate making majority false concludes 2008AP1185-CR.awb that the allegations. that this mother Majority strategy was reasonable: [B]y attempting to demonstrate that Cassandra gained her detailed sexual knowledge, not from Carter, but from a previous sexual assault by her cousin, Sargent would necessarily have been asking the jury to discredit the testimony of a five-year-old victim of sexual assault. It is certainly reasonable that Sargent was more confident asking the jury to discredit the mother, Denise, instead of directly attacking the child victim. Id., ¶33. ¶69 Although it might have been worthwhile to challenge the mother's credibility, it was essential to the defense that Sargent challenge the child's credibility as well. Even if the mother had originally fabricated the story, it was the child who was repeating as true the mother's allegations. In his opening argument, Sargent argued to the jury that "there[] really[] is no clear evidence that towards this girl." Michael Carter did anything improper Yet, there was such evidence Cassandra's own testimony.5 ¶70 If the jury fully credited this testimony, then the allegations essential were to credibility. the true and defense Carter that was guilty. Sargent Thus, challenge it was Cassandra's Unless Sargent was able to undermine her version 5 Cassandra testified that she and Carter were sitting on the couch, that her mouth was on his private part, and that Carter was pushing on her head saying "[k]eep on going down." She testified that afterwards, she went to the bathroom to wash up because she "had some white stuff" on her hand. 6 No. 2008AP1185-CR.awb of events, the jury would be forced to conclude that Carter did in fact do something "improper towards this girl." ¶71 the In fact, contrary to the "strategy" he described at post-conviction hearing, discredit Cassandra. "want[ed] to get Sargent Ultimately, away from did she that make attempts testified house" and that from to she Carter. Certainly, the jury might infer that Cassandra had a motivation to tell a story that would keep Carter away. ¶72 Yet, fundamental Sargent's question. How "strategy" was a left girl of unaddressed that age able one to recount a sexual incident with many sexual details had she not been assaulted by Carter?6 In Pulizzano, we explained that in the absence of evidence of an alternative source for a child's detailed sexual knowledge, the jury would likely make the "logical and weighty inference" that the alleged assault had occurred. ¶73 155 Wis. 2d at 652. The majority's lengthy reiteration of portions of the testimony and argument is notable only for what it does not demonstrate. The record does not demonstrate that Sargent fully 6 In closing arguments, the prosecutor repeatedly emphasized Cassandra's detailed sexual knowledge as proof of Carter's guilt. She asked the jury to consider Cassandra's "opportunity for observing and knowing the matters testified to . . . . And the reason I say that is, the proof is really in the pudding. The proof is in what this little girl said. . . . [She testified she] could see the dark hair of Mr. Carter's groin. . . . Now, she doesn't know why that's important. She doesn't know that men have hair there, but she observed that . . . . And that is something that a six-year-old is not gonna know." The prosecutor repeated this theme when discussing Cassandra's knowledge of erections, ejaculation, and oral sex. 7 No. 2008AP1185-CR.awb followed through with his "strategy" of demonstrating that the mother pressured Cassandra into making untruthful allegations. Further, Sargent never argued that the mother provided Cassandra with the necessary adult information to tell a convincing story.7 In light majority of these concludes shortcomings, that it is Sargent's surprising purported that the strategy was "reasonable under the circumstances." II ¶74 Here, the majority's willingness to ratify Sargent's questionable trial strategy, which was apparently ignorance of the applicable law, is troublesome. made in Where there is ignorance of the law, you cannot excuse a lawyer's performance by labeling it trial strategy. ¶75 The "irrespective Carter's majority, of whether however, ultimately Sargent's performance ineffectiveness claim still fails deficiency did not prejudice Carter's defense." ¶36. concludes was that deficient, because the Majority op., I agree. ¶76 The law is clear that Carter is not entitled to a new trial unless he demonstrates that (1) his counsel's performance was deficient and (2) the deficiency prejudiced his defense. It is an well settled that the court 7 need not decide whether As the majority reports, there was evidence that Carter and Denise had a "broken relationship." See majority op., ¶¶2629. Yet Sargent never explained to the jury how the hostility in the household could be relevant in evaluating the likelihood of Carter's guilt. As the majority acknowledges, the only direct suggestion that Denise could be the ultimate source of the allegations came from the prosecutor, rather than defense counsel. See id., ¶30. 8 No. 2008AP1185-CR.awb attorney's performance was deficient if the court has already determined that there was no prejudice. Id., ¶21 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). ¶77 "show To that demonstrate there is Carter reasonable a prejudice, has probability the burden that, but to for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. this Carter case, that means that had to show a In reasonable probability that the evidence would have been admitted and would have been persuasive to the jury.8 ¶78 presented I agree with the majority that the evidence Carter at the post-conviction satisfy the Pulizzano test. hearing was insufficient See majority op., ¶¶39-53. to Without showing a reasonable probability that the evidence of an alleged prior assault would have been admitted at trial, Carter has not demonstrated that he ignorance of the law. was prejudiced by Sargent's apparent Therefore, he is not entitled to a new trial. ¶79 the Generally, an appellate court should decide cases on narrowest possible grounds. State v. Blalock, Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989). loss to understand why the majority 8 feels 150 I am at a compelled to go As we explained in Felton, "[t]here are, of course, a multitude of cases in which a lawyer's failure to inform himself of a particular defense could in no way be prejudicial[.]" 110 Wis. 2d at 507. "If the failure could have had no adverse effect on the defendant, the representation would not have been any more effective had that failure not occurred." State v. Fencl, 109 Wis. 2d 224, 241, 325 N.W.2d 703 (1982) (Heffernan, J., concurring). 9 No. further here. I cannot understand why it 2008AP1185-CR.awb unnecessarily concludes that Sargent made a "reasonable strategic decision," even though this decision was apparently made in ignorance of the law and left unaddressed defense in this case. ¶80 a question fundamental to the Accordingly, I respectfully concur. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this concurrence. 10 No. 1 2008AP1185-CR.awb