State v. Bell, s. 2015AP2667-CR
| Decision Date | 10 April 2018 |
| Docket Number | Nos. 2015AP2667-CR,2015AP2668-CR,s. 2015AP2667-CR |
| Citation | 380 Wis.2d 616,2018 WI 28,909 N.W.2d 750 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Gerrod R. BELL, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner, there were briefs filed by and an oral argument by Suzanne L. Hagopian, assistant state public defender.
For the plaintiff-respondent, there was a brief filed by Daniel J. O'Brien, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Daniel J. O'Brien.
¶ 1 Gerrod Bell says he is entitled to a new trial because the first one, which resulted in convictions for the sexual assault of two victims, was unfair—a violation of his due process rights. He believes it was unfair because the State told the jurors they could not find him not guilty unless they thought the victims lied about the sexual assaults, and that they should not disbelieve the victims because there was no motive for them to lie. This, he says, shifted the burden of proof and distorted the jury's credibility determinations. He also claims the jury based its verdict, at least in part, on inadmissible evidence contained in two exhibits sent to the jury room during deliberations. We conclude that Mr. Bell is not entitled to a new trial and affirm the decision of the court of appeals.1
¶ 2 The State charged Mr. Bell with sexually assaulting two victims—T.P., who was fourteen years of age at the time, and her older sister, A.L., who was then seventeen. The incidents came to light when, in August of 2001, T.P.'s mother reported to Sergeant Dale Stickney of the Sparta Police Department that Mr. Bell, a family friend, had sexually assaulted T.P. in the backyard of T.P.'s home after a birthday party for A.L.
¶ 3 Detective LaVern Erickson and a social worker met with T.P. to interview her about the incident. Subsequently, Detective Erickson questioned A.L. about her sister's sexual assault. In the course of that interview, A.L. revealed to Detective Erickson that she had herself been the victim of three sexual assaults by Mr. Bell, all of which had occurred around the time of the incident with T.P.2 Approximately five months after reporting these incidents, A.L. further disclosed that Mr. Bell had also sexually assaulted her in the bathroom of her mother's home in early July 2001—prior to the incidents she had previously reported and prior to the sexual assault of T.P. Of the four incidents, only the one occurring in the bathroom involved sexual intercourse.
¶ 4 The State initiated two cases against Mr. Bell, one for each of the victims, but joined them for trial.3 With respect to T.P., the State charged Mr. Bell with one count of sexual assault as a persistent repeater contrary to Wis. Stat. §§ 940.225(2)(a) (2001-02),4 939.50(3)(bc), and 939.62(2m) (Count 1); one count of second-degree sexual assault of a child as a persistent repeater contrary to Wis. Stat. §§ 948.02(2), 939.50(3)(c), and 939.62(2m)(b)2. (Count 2); and one count of misdemeanor bail jumping as a repeater contrary to Wis. Stat. §§ 946.49(1)(a), 939.51(3)(a), and 939.62(1)(a) (Count 3). With respect to A.L., the State charged Mr. Bell with two counts of sexual assault as a persistent repeater contrary to Wis. Stat. §§ 940.225(2)(a), 939.50(3)(bc), and 939.62(2m) (Counts 1 and 2);5 and two counts of attempted second-degree sexual assault as a persistent repeater contrary to Wis. Stat. §§ 940.225(2)(a), 939.50(3)(bc), and 939.62(1)(c) (Counts 3 and 4). Before submitting the case to the jury, the circuit court dismissed Count 3 for lack of sufficient evidence, and then dismissed Count 4 at the State's request.
¶ 5 During deliberations, the jury requested that certain documents be delivered to it for review. Two of the documents indicated that T.P. had not had sexual intercourse until she was assaulted by Mr. Bell. Neither the prosecutor nor defense counsel asked for that information to be redacted from the exhibits.
¶ 6 The jury returned guilty verdicts on all counts submitted to it, and Mr. Bell received his sentence in due course. He then moved to vacate the judgments of conviction and requested a new trial pursuant to Wis. Stat. § (Rule) 809.30(2)(h) (2015-16)6 on July 13, 2015.7 His motion claimed he did not receive a fair trial because: (1) the prosecutor's comments regarding motive and evidence of lying during closing argument shifted the burden of proof; and (2) the jury was allowed to view two inadmissible exhibits during deliberation.8 As to his first argument, Mr. Bell argued he was entitled to relief based on the plain error doctrine or ineffective assistance of counsel, and as to his second argument, he sought relief based on the interests of justice or ineffective assistance of counsel. The circuit court conducted a Machner 9 hearing at which trial counsel testified. The court denied the motion because it concluded the trial was free from harmful error. The court of appeals affirmed, and we granted Mr. Bell's petition for review.
¶ 7 Mr. Bell asks us to review the State's trial commentary under the plain error doctrine or, alternatively, for a determination that he received ineffective assistance of counsel. With respect to his attorney's failure to request redaction of the exhibits sent to the jury room, he asks us to determine only whether he received ineffective assistance of counsel.
¶ 8 The "plain error" Mr. Bell claims is at issue is a violation of his due process rights, which is a question of law we review de novo. State v. Burns, 2011 WI 22, ¶ 23, 332 Wis. 2d 730, 798 N.W.2d 166. However, we will not remedy errors under this doctrine unless they are "obvious and substantial[,]" and "so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time." State v. Jorgensen, 2008 WI 60, ¶ 21, 310 Wis. 2d 138, 754 N.W.2d 77 (citation and internal marks omitted).
¶ 9 A claim of ineffective assistance of counsel presents a mixed question of fact and law. State v. Tourville, 2016 WI 17, ¶ 16, 367 Wis. 2d 285, 876 N.W.2d 735. We will not reverse the circuit court's findings of fact unless they are clearly erroneous. Id. We independently review, as a matter of law, whether those facts demonstrate ineffective assistance of counsel. Id.
¶ 10 Mr. Bell says his right to a fair trial was violated by: (1) the State's trial commentary, which he believes improperly shifted the burden of proof to him; and (2) the jury's review of certain unredacted documents during deliberations. We will address each issue in turn.
¶ 11 The essence of Mr. Bell's argument is that the State impermissibly shifted the burden of proof by framing this case as a binary proposition: The jury must convict him if it believes the victims, and may find him not guilty only if it does not.11 Mr. Bell maintains there are other reasons the jury legitimately could have chosen to acquit him, and so the State's commentary misstated the law.12 Because the defense did not move for a mistrial on that basis, this alleged error was not preserved for appellate review.13 Mr. Bell says we should nonetheless reach and decide this issue under our "plain error" doctrine, or conclude that the failure to request a mistrial deprived him of the effective assistance of counsel during the trial.
¶ 12 The "plain error" doctrine allows us to review errors even when they were not properly preserved at trial. State v. Mayo, 2007 WI 78, ¶ 29, 301 Wis. 2d 642, 734 N.W.2d 115 ; see also Wis. Stat. § 901.03(4) (2015-16) ("Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge."). To qualify for this doctrine's application, however, the error "must be 'obvious and substantial[, ]' " and " 'so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.' " Jorgensen, 310 Wis. 2d 138, ¶ 21, 754 N.W.2d 77 (). We employ this doctrine sparingly. Id.
¶ 13 We can also address unpreserved claims of error if the error is of such a nature that it deprived the defendant of "the effective assistance of counsel." See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If the failure to move for a mistrial based on the State's trial commentary comprised deficient performance, and that deficiency was prejudicial, Mr. Bell would be entitled to a new trial. See id. at 687, 104 S.Ct. 2052 ; State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985).
¶ 14 There can be neither a deficiency nor plain error, however, unless the State's trial commentary was improper. Therefore, whether we analyze this case under the "plain error" doctrine or as an ineffective assistance of counsel claim, our first step is to determine whether the State's trial commentary was improper. If it was, our analysis would then turn to whether counsel's failure to request a mistrial: (1) was an error so obvious, substantial, and fundamental that a new trial is necessary; or (2) comprised deficient and prejudicial performance.
¶ 15 We begin with the fundamental tenet that Mr. Bell is guaranteed the right to due process of law. See U.S. Const. amend. XIV, § 1 (); Wis. Const. art. I, § 8 (). This guaranty extends to the State's comments during trial: "When a defendant alleges that a prosecutor's statements and arguments constituted misconduct, the test applied is whether the statements 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Mayo, 301 Wis. 2d 642, ¶ 43, 734 N.W.2d...
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