State v. Bullock, 2012AP107–CR.

CourtCourt of Appeals of Wisconsin
Writing for the CourtPER CURIAM.
Citation823 N.W.2d 840,2012 WI App 132,345 Wis.2d 62
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. John D. BULLOCK, Defendant–Appellant.
Docket NumberNo. 2012AP107–CR.,2012AP107–CR.
Decision Date10 October 2012

345 Wis.2d 62
823 N.W.2d 840
2012 WI App 132

STATE of Wisconsin, Plaintiff–Respondent,
v.
John D. BULLOCK, Defendant–Appellant.

No. 2012AP107–CR.

Court of Appeals of Wisconsin.

Oct. 10, 2012.


Appeal from a judgment and an order of the circuit court for Eau Claire County: Paul J. Lenz, Judge. Affirmed.
Before HOOVER, P.J., PETERSON and MANGERSON, JJ.¶ 1PER CURIAM.

John Bullock appeals a judgment convicting him of two counts of first-degree sexual assault, as a party to a crime, and an order denying postconviction relief. Bullock argues: (1) his trial attorney was ineffective; (2) his convictions violate double jeopardy; (3) he was denied his right to an impartial jury; (4) the circuit court improperly admitted certain evidence; (5) insufficient evidence supports his convictions; (6) the real controversy was not fully tried; and (7) he is entitled to resentencing. We reject Bullock's arguments and affirm.

BACKGROUND

¶ 2 An amended information charged Bullock and his codefendant, Damonta Jones, with two counts each of first-degree sexual assault, as a party to a crime, in connection with the sexual assault of Cheri F. With respect to Bullock, the amended information used identical wording for each count, stating:

The above-named defendant on or about Thursday, November 11, 2010, in the City of Eau Claire, Eau Claire County, Wisconsin, as a party to a crime, by use of force, did have sexual intercourse with [Cheri F.], without that person's consent, and was aided or abetted by one or more persons[.]

¶ 3 At trial, Cheri testified that, on November 10, 2010, she was in Turtle Lake with Mynor Adrian Andrade, whom she had met the night before. Around ten p.m., she received a call from her friend, Sophia McBain, asking Cheri for a ride to Eau Claire to visit Jones, who was McBain's boyfriend. Cheri and Andrade drove to Rice Lake to pick up McBain, and the three of them drove to Jones' house in Eau Claire.

¶ 4 After they arrived at Jones' residence, Cheri, Andrade, McBain, and Jones proceeded to consume vodka. Cheri and McBain began dancing provocatively with one another. After a while, one of Jones' friends, who was later identified as Bullock, arrived at the house. Shortly thereafter Andrade left to go to a bar and McBain went into the bathroom to take a shower.

¶ 5 Jones then offered to show Cheri his children's bedroom. When Cheri entered the darkened bedroom, she was “struck or just pushed hard,” and fell down. Part of her body hit the floor, part of it fell onto a mattress, and she hit her head. Cheri testified someone pulled her pants at least partially off, and Jones held her down while Bullock penetrated her from behind. Cheri felt Bullock ejaculate inside her. Then she “heard something about a snake” and heard someone say, “Hold on, I'll go get it.” Earlier that evening, she had observed that Jones kept a live snake in his living room. She felt something that was not a penis penetrate her vagina. She felt a sharp pain inside her, cried out, and then heard someone say, “[P]ull it out[.]” She was unable to see what had been inserted inside her. Cheri testified she did not consent to any sexual contact with either Bullock or Jones.

¶ 6 Afterwards, Bullock apparently left Jones' residence. Cheri told McBain about the assault, but McBain did not believe her. When Andrade returned from the bar, Cheri told him she had been raped. Andrade drove her to the hospital in Rice Lake, where she was examined by Marian Weiss, a sexual assault nurse examiner. During this initial examination, Cheri did not mention anything about a snake because she was too embarrassed. However, she returned to the hospital later that morning after experiencing sharp pains in her abdomen and vaginal bleeding. At that point, Cheri told a detective she believed she had been assaulted with a snake and feared she had been bitten.

¶ 7 Weiss testified that she examined Cheri at 3:30 a.m. on November 11, 2010. She observed bruises on Cheri's neck, arms, left breast, back, and knees. She noted that Cheri was “uncomfortable” and in “a lot of pain[.]” Weiss observed three small tears on Cheri's vaginal opening. Cheri's cervix was “very red” and abraded. Weiss testified Cheri's injuries were consistent with a sexual assault like the one Cheri reported. Weiss also testified that she collected biological samples from Cheri's vagina, cervix, and rectum.

¶ 8 Linnea Schiffner, a senior DNA analyst for the state crime laboratory, testified that she analyzed the biological samples taken from Cheri, as well as samples taken from Jones' snake. Schiffner testified Bullock was a match for semen found on Cheri's vaginal and cervical swabs. Schiffner found human DNA on one of the swabs taken from the snake, but there was not enough genetic material to identify the source of the DNA. She testified the state crime laboratory does not have the capacity to test for the presence of snake DNA.

¶ 9 Bullock testified in his own defense. He stated that when he arrived at Jones' house on the evening of November 10, Cheri was lying on the floor wearing only her underwear, and McBain was dancing provocatively on top of her. McBain then gave Jones a lap dance, and Cheri “started giving [Bullock] a lap dance” and “put her breasts in [his] face.” Cheri was intoxicated. After Andrade left to go to a bar, Cheri performed oral sex on Bullock in front of Jones and McBain. Bullock then went into a bedroom to make a phone call. Cheri followed him into the bedroom, kissed him, and again performed oral sex on him, after which they had consensual vaginal intercourse. Bullock testified that afterwards he told Cheri he needed to leave because he had to get back to his girlfriend and children.

¶ 10 During its deliberations, the jury asked the circuit court for “clarification as to what the ... differences are between Counts One and Four as the wording is the same.” The court told the jury that “Count[s] One and Two go to the first alleged sexual assault. Counts Three and Four go to the second alleged sexual assault.” The jury ultimately found Bullock guilty of both counts.1 He received concurrent sentences of twenty-five years' initial confinement and ten years' extended supervision on each count.

¶ 11 Bullock moved for postconviction relief. Among other things, he argued he was denied his right to an impartial jury. In support of his claim, Bullock presented an affidavit of Perry Hagler. Hagler averred that on the evening of the first day of trial, juror Douglas Polzin told Hagler that “he knew ‘they’ were guilty when he first saw them.” Hagler and Polzin were available to testify at the postconviction hearing, but the court determined their testimony would not be competent. The court subsequently denied Bullock's motion. Additional facts are set forth in the discussion section where necessary.

DISCUSSION
I. Ineffective assistance of counsel

¶ 12 Bullock argues that his trial attorney was ineffective in several ways. An ineffective assistance of counsel claim presents a mixed question of fact and law. State v. Erickson, 227 Wis.2d 758, 768, 596 N.W.2d 749 (1999). We accept the circuit court's findings of fact unless they are clearly erroneous, but whether counsel's performance fell below the constitutional minimum is a question of law that we review independently. Id.

¶ 13 To prevail on an ineffective assistance claim, a defendant must prove both that counsel performed deficiently and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, a defendant must show that his or her attorney “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. However, “every effort is made to avoid determinations of ineffectiveness based on hindsight ... and the burden is placed on the defendant to overcome a strong presumption that counsel acted reasonably within professional norms.” State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845 (1990).

¶ 14 To establish prejudice, a defendant must demonstrate that there is a reasonable probability that, absent counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. “A defendant who alleges that counsel was ineffective by failing to take certain steps must show with specificity what the actions, if taken, would have revealed and how they would have altered the outcome of the proceeding.” State v. Byrge, 225 Wis.2d 702, 724, 594 N.W.2d 388 (Ct.App.1999), aff'd,2000 WI 101, 237 Wis.2d 197, 614 N.W.2d 477;see also State v. Flynn, 190 Wis.2d 31, 48, 527 N.W.2d 343 (Ct.App.1994). If a defendant fails to establish either prong of the Strickland test, we need not determine whether the other prong was satisfied. Strickland, 466 U.S. at 697.

1. Failure to object to the amended information, jury instructions, and verdicts

¶ 15 Bullock first contends his trial attorney was ineffective by failing to object to the amended information, jury instructions, and verdicts. He argues the amended information and verdicts were ambiguous because they used identical language with respect to Counts Two and Four—the two sexual assault charges against him. He complains that, while the court instructed the jury that it must reach a unanimous verdict, it did not specifically instruct the jury “that they needed to be unanimous about the specific act each count was based upon or even what act formed the basis of each count.” He argues the jury was clearly confused about which count pertained to which allegations, as it asked the court to clarify the difference between the counts. He contends this jury confusion violated his right to a unanimous verdict.

¶ 16 Bullock's argument is foreclosed by State v. Becker, 2009 WI App 59, 318 Wis.2d 97, 767 N.W.2d 585. There, Becker was charged with two counts of first-degree sexual assault of a child. Id., ¶ 2. The...

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