State v. Anderson, 2004AP2010-CR.

• Decision Date: 11 October 2005
• Docket Number: No. 2004AP2010-CR.,2004AP2010-CR.
• Citation: 707 N.W.2d 159,2005 WI App 238
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Lionel N. ANDERSON, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL>
• Court: Wisconsin Supreme Court

707 N.W.2d 159

2005 WI App 238

STATE of Wisconsin, Plaintiff-Respondent, v. Lionel N. ANDERSON, Defendant-Appellant.^†

No. 2004AP2010-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs August 2, 2005.

Opinion Filed October 11, 2005.

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On behalf of the defendant-appellant, the cause was submitted on the brief of Harry R. Hertel of Hertel & Gibbs, S.C., of Eau Claire.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, Attorney General, and Jeffrey J. Kassel, Assistant Attorney General.

Before FINE, CURLEY and KESSLER, JJ.

¶ 1 CURLEY, J

Lionel N. Anderson appeals the judgment convicting him of first-degree sexual assault of a child, contrary to WIS. STAT. § 948.02(1) (2001-02).¹ Anderson submits that he is entitled to a new trial because the trial court declined two requests by the jury for Anderson's testimony without Anderson's knowledge or input, violating his constitutional rights, and because he claims he was entitled to have his testimony reread to the jury. Alternatively, Anderson submits that because his attorney rendered ineffective assistance, he is entitled to a Machner hearing.² After reviewing the record, we conclude that because Anderson's attorney failed to object to the trial court's unilateral decision to require the jury to specify exactly which parts of Anderson's testimony it wished read back, we must review these actions under the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), ineffective assistance of counsel standard. Inasmuch as Anderson has not shown that he was prejudiced by any of his attorney's actions, we affirm.

I. BACKGROUND.

¶ 2 Charlene Anderson, the legal guardian of nine-year-old M.L. and the wife of Anderson, called the police after she received a phone call late one night from her sister who told her that she had reason to believe that M.L. may have been sexually assaulted by Anderson. After first denying that Anderson had assaulted her, M.L. eventually revealed to Charlene that Anderson made her suck his penis when Charlene was in the hospital in February 2001. M.L. claimed that Anderson called her into the kitchen and asked her if she wanted to play with his "tail." When she answered "no," he forced her to get down on her knees next to where he was sitting, and demanded that she suck his penis. She did as she was told.

¶ 3 After hearing about the assault, Charlene confronted her husband and told him to leave. Anderson left, and traveled to Kentucky where he was arrested. He later agreed to be returned to Milwaukee. After the police were contacted, M.L. was interviewed by a social worker, and the entire interview was recorded on videotape. During the interview, M.L. described the sexual assault in detail. After Anderson waived his right to a preliminary hearing and changed attorneys, a number of pretrial conferences were held. The case eventually proceeded to a jury trial. At it, the State called six witnesses and the defense called three.

¶ 4 Shortly after the trial began, the State presented the video of M.L.'s interview with the social worker. Although notice of the State's intention to introduce the tape at the preliminary hearing had been sent to then-defense counsel, no notice was sent to Anderson's trial attorney that it would be introduced at trial, and neither Anderson nor his trial attorney saw the video before trial. Before the trial, the State filed a motion in limine seeking to introduce evidence concerning the effects of sexual assault through an expert witness. At trial, no objection was raised to the fact that no notice was sent to defense counsel or that the video had not been viewed by the defense. The tape was shown to the jury before M.L. testified. Anderson's attorney did not object to this procedure.

¶ 5 As anticipated, the State called an expert witness who explained the dynamics of child sexual abuse to the jury. This witness was not listed on the State's witness list. No objection was raised to her testifying because of the failure to list her as a potential witness. One of the areas discussed by the expert was the delay in reporting often seen in intra-family sexual abuse cases. During Charlene's testimony, she mentioned that after the sexual assault allegations became known, Anderson left the state and went to Kentucky. Anderson's attorney did not object to her testimony regarding Anderson's fleeing the state.

¶ 6 During the trial, the trial court, apparently in error, admitted an exhibit that neither attorney had requested. It was written by the social worker who taped M.L.'s video and summarized M.L.'s testimony on the video. This exhibit was later allowed into the jury room during deliberations.

¶ 7 After the jury had deliberated for some time, the jury alerted the bailiff that it had reached a verdict. However, before reading the verdict, the trial court advised the parties that the jury had twice requested certain testimony to be read back and that the trial court had refused to provide it unless the jury could be more specific. These communications with the jury occurred without the trial court informing or consulting with the attorneys or Anderson. According to the trial court's recollection, the jury sent a note asking to have Anderson's and M.L.'s testimonies read back. The trial court asked the jury to be more specific. The jury then sent another note informing the court that it wanted Anderson's testimony read back because it did not understand his testimony. Again, the trial court asked the jury to be more specific. Nothing more was heard from the jury until it reached a verdict. Anderson's attorney raised no objection to the trial court's actions. Anderson was convicted of the charge and sentenced to twelve years of initial confinement and six years of extended supervision. He brought a postconviction motion which was denied.

II. ANALYSIS.

A. Anderson's attorney was not ineffective for failing to object to the trial court's communicating with the jury without his knowledge.

¶ 8 Anderson argues that the trial court's communications with the jurors without his input were errors of constitutional magnitude and, as a result, he is entitled to a new trial. In support of his argument, Anderson notes that before conferring with the jurors concerning their request to hear Anderson's testimony, the trial court granted the jury's request to view M.L.'s video interview and provided a TV and VCR for the jury with which to view it. He contends that the trial court's refusal to reread his testimony denied him a fair and balanced jury deliberation and thus, the error is not harmless. Further, Anderson submits that we should have little confidence in the trial court's recollections because very little is known about the jury's requests or the trial court's responses, as the jury's questions and the trial court's answers were thrown away by the jurors, and are thus not part of the record.³ Because Anderson has presented nothing to contradict the trial court's recollections, we accept them as being accurate.

¶ 9 It is settled law that when a trial defense lawyer does not object, the test is not whether the alleged trial court error was "harmless beyond a reasonable doubt," with the burden on the State to show this, State v. Stuart, 2005 WI 47, ¶ 40, 279 Wis.2d 659, 695 N.W.2d 259 (citation omitted) (state has burden), but, rather, whether, under an ineffective-assistance-of-counsel analysis, the defendant has shown prejudice under Strickland, 466 U.S. at 687, 104 S.Ct. 2052. See Kimmelman v. Morrison, 477 U.S. 365, 374-75, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); State v. Carprue, 2004 WI 111, ¶¶ 49-53, 274 Wis.2d 656, 683 N.W.2d 31.

¶ 10 The rule that objections are generally waived if not made at trial applies equally to constitutional and non-constitutional objections. See State v. Huebner, 2000 WI 59, ¶ 10, 235 Wis.2d 486, 611 N.W.2d 727 ("It is a fundamental principle of appellate review that issues must be preserved at the circuit court."); State v. Edelburg, 129 Wis.2d 394, 401, 384 N.W.2d 724 (Ct.App.1986) ("The waiver doctrine applies even to the claim of a constitutional right") (citing State v. Marshall, 113 Wis.2d 643, 653, 335 N.W.2d 612 (1983)).

¶ 11 A defendant claiming ineffective assistance of counsel must prove both that his or her lawyer's representation was deficient, and, as a result, the defendant suffered prejudice. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To prove deficient performance, the defendant must show specific acts or omissions of his attorney that fall "outside the wide range of professionally competent assistance." Id. at 690, 104 S.Ct. 2052. To show prejudice, the defendant must demonstrate that the result of the proceeding was unreliable. Id. at 687, 104 S.Ct. 2052. If the defendant fails on either prong—deficient performance or prejudice—his ineffective assistance of counsel claim fails. Id. at 697, 104 S.Ct. 2052. We "strongly presume[]" counsel has rendered adequate assistance. Id. at 690, 104 S.Ct. 2052.

¶ 12 "Whether a defendant's trial counsel provided ineffective assistance of counsel is a mixed question of law and fact." State v. Guerard, 2004 WI 85, ¶ 19, 273 Wis.2d 250, 682 N.W.2d 12 (citing Strickland, 466 U.S. at 698, 104 S.Ct. 2052); see State v. Franklin, 2001 WI 104, ¶ 12, 245 Wis.2d 582, 629 N.W.2d 289. A reviewing court will not disturb the circuit court's factual findings unless they are clearly erroneous. Franklin, 245 Wis.2d 582, ¶ 12, 629 N.W.2d 289. "Whether the trial counsel's conduct was deficient and whether it was prejudicial to the defendant are questions of law reviewed by this court de novo." Id. Because we are satisfied from our review of the record that Anderson suffered no prejudice, we decline to examine whether his attorney's actions were deficient.

¶ 13 WISCONSIN STAT. § 805.13(1) obligates the trial court to...