State Of Wis. v. Carter

• Decision Date: 25 May 2010
• Docket Number: No. 2008AP1185-CR.,2008AP1185-CR.
• Citation: 782 N.W.2d 695,2010 WI 40
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner,v.Michael James CARTER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

782 N.W.2d 695

2010 WI 40

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,v.Michael James CARTER, Defendant-Appellant.

No. 2008AP1185-CR.

Supreme Court of Wisconsin.

Argued Nov. 3, 2009.

Decided May 25, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

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.

¶ 1 ANNETTE KINGSLAND ZIEGLER, J.

This is a review of an unpublished court of appeals' decision ¹ that reversed the Milwaukee County Circuit Court, Judge Patricia D. McMahon presiding, and remanded for further proceedings. On January 27, 2006, Michael J. Carter (Carter) was convicted of one count of first-degree sexual assault of a child under Wis. Stat. § 948.02(1) (2005-06).² Judge Mel Flanagan sentenced Carter to 27 years imprisonment, comprised of 12 years in initial confinement and 15 years on extended supervision. On January 25, 2008, Carter filed a post-conviction motion for a new trial on the grounds of ineffective assistance of counsel. Specifically, Carter argued that his 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 State petitioned this court for review, and we accepted. 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 proceedings on Carter's claim that his trial 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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 considering all the circumstances. Second, even assuming that his counsel's 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 sex on him. The assault occurred while Carter was living with Cassandra and her mother, Denise. About two weeks after Denise and Cassandra moved to another 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. When he stopped, Cassandra described wiping her mouth and 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 court that he would not be presenting any 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 The jury convicted Carter of one count of first-degree sexual 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. When asked what she meant, Cassandra said, “Like [her cousin].” Carter gathered from Cassandra's explanation that “her and [her cousin] were upstairs 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. He testified that when questioned by Denise, Cassandra 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 In his post-conviction motion, Carter summarized the 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] 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 In either case, Carter's trial counsel, Sargent, viewed the videotaped interview and opted not to present evidence at trial of the alleged previous sexual assault. At the Machner hearing, Sargent recalled that Carter mentioned to him that another person may have “molested” Cassandra, but Carter was not any more specific. After hearing the information, Sargent arranged for an investigator to contact Cassandra through Denise, but Denise declined to speak to the investigator.

¶ 13 According to Sargent,⁷ presenting evidence of the previous sexual assault would have been an unwise 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 of directly attacking Cassandra, Sargent opted instead to challenge her credibility through Denise, by demonstrating that there was a breakdown in Denise and Carter's relationship, and Denise pressured Cassandra into making the allegations against Carter. 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 ...