State v. DeKeyser, 98-0174-CR

• Decision Date: 18 August 1998
• Docket Number: No. 98-0174-CR,98-0174-CR
• Citation: 221 Wis.2d 435,585 N.W.2d 668
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Jerry J. DeKEYSER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 668

585 N.W.2d 668

221 Wis.2d 435

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Jerry J. DeKEYSER, Defendant-Appellant.

No. 98-0174-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 10, 1998.

Opinion Released Aug. 18, 1998.

Opinion Filed Aug. 18, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs Steven L. Miller of Miller & Miller, River Falls.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Daniel J. O'Brien, Assistant Attorney General.

Before CANE, C.J., MYSE, P.J., and HOOVER, J.

MYSE, Presiding Judge.

Jerry DeKeyser appeals an order denying his motion to suppress other acts evidence, a judgment of conviction for sexual contact under § 948.02(2), STATS., and an order denying postconviction relief. DeKeyser contends that his counsel was ineffective for failing to stipulate to elements of his offense in order to avoid the introduction of other acts evidence. ¹ We conclude that DeKeyser's attorney was deficient for not knowing about the possibility of and failing to propose such a stipulation as a means of excluding other acts evidence, and we further conclude that such deficiency was prejudicial. We therefore reverse the conviction and remand this matter for further proceedings.

FACTS

DeKeyser was charged with having sexual contact with his fifteen-year-old granddaughter. The State filed a motion to introduce Whitty evidence ² of an accusation that DeKeyser had unlawful sexual contact with another fifteen-year-old granddaughter four years earlier. Charges were not brought on the earlier accusation because the alleged victim elected not to pursue the matter.

DeKeyser's attorney sought to prevent the introduction of this testimony both prior to trial and at trial. After the trial court ruled against these attempts, DeKeyser's attorney persuaded the trial court to read a cautionary instruction on the evidence prior to its introduction. The instruction stated, in part:

Now, you may not consider this evidence to conclude that the defendant has a certain character or a certain character trait and that the defendant acted in conformity with that trait or character with respect to the offense charged in this case.

The evidence was received--or the evidence has been--is going to be received on the issues of intent, and that is whether the defendant acted with the state of mind that is required for this offense.

It is received on the issue of preparation or plan. That is, whether such other conduct of the defendant was part of a design or scheme that led to the commission of the offense charged.

And also it is being received on the issue of absence of mistake or accident. That is, whether the defendant acted with the state of mind required for this offense.

Now, you may consider this evidence only for the purposes that I have described, giving it the weight you determine it deserves. It is not to be used to conclude that the defendant is a bad person and for that reason is guilty of the offense which he is charged with here in the instant case.

There was no physical evidence of any sexual contact between DeKeyser and his granddaughter, and the trial therefore focused on the credibility of the alleged victim and the defendant. The granddaughter testified that DeKeyser placed his hands between her legs while she was sitting on his lap, and squeezed her vagina through her blue jeans until a ringing telephone allowed her to escape. DeKeyser denied the touching and testified that he was not in the house at the time of the alleged incident. He substantiated his alibi with testimony from his wife and the victim's four-year-old cousin. In addition, the person who placed the phone call to DeKeyser during the alleged incident testified that the victim answered the phone on the first ring, giggled, and told her that everybody was outside.

In order to show motive, intent, preparation, plan, and the absence of mistake, the State introduced other acts evidence in the form of testimony from another of DeKeyser's granddaughters that DeKeyser fondled her breasts four years earlier when she was also fifteen years old. The jury ultimately found DeKeyser guilty.

Subsequently, DeKeyser brought a postconviction motion alleging ineffective assistance of trial counsel. DeKeyser contended that his attorney was deficient for failing to stipulate that the purpose of the alleged contact would have been sexual gratification and that the age of the victim was under sixteen. DeKeyser argued that conceding these elements would have rendered the other acts evidence inadmissible because that stipulation would have limited the issue at trial to whether the touching occurred. At the motion hearing, DeKeyser's trial counsel testified that he did not offer such a stipulation because he was unaware that he could do so. Counsel explained that his strategy was to do everything legally permissible to keep out that evidence, and that had he known about the possibility of stipulating to the elements he would have convinced his client to do so.

The trial court denied DeKeyser's motion. While agreeing that "there would have been no real reason for defendant to not logically concede [those] elements," the court noted that such a concession was unlikely given DeKeyser's adamant denial of the charges. In addition, the court concluded that it would not have accepted such a stipulation because the other acts evidence was necessary to prove the touching occurred either through demonstrating a scheme or by demonstrating DeKeyser's signature. Finally, the court concluded that there was not a reasonable probability of a different outcome in the absence of the other acts evidence because the jury likely placed little weight on the evidence.

STANDARD OF REVIEW

DeKeyser contends that his conviction should be reversed because he was denied the effective assistance of counsel. The constitutional right to counsel is the right to the effective assistance of counsel. State v. Johnson, 153 Wis.2d 121, 126, 449 N.W.2d 845, 847 (1990). In reviewing claims of ineffective assistance of counsel we follow a two-part test. First, the trial counsel's performance must be deficient. Id. at 127, 449 N.W.2d at 847. This requires the defendant to overcome a strong presumption that his or her counsel acted reasonably within professional norms. Id. at 127, 449 N.W.2d at 847-48. Second, the defendant must show that counsel's deficiencies were so prejudicial that they deprived him or her of trial "whose result is reliable." Id. at 127, 449 N.W.2d at 848.

We review the trial court's ineffective assistance of counsel decision as a mixed question of law and fact. State v. Sanchez, 201 Wis.2d 219, 236, 548 N.W.2d 69, 76 (1996). We will not overturn a trial court's finding of fact concerning circumstances of the case and counsel's conduct and strategy unless the findings are clearly erroneous. Id. Our application of these facts to the constitutional standards, however, is a question of law we review independently of the trial court's determination. Id. at 236-37, 548 N.W.2d at 76.

ANALYSIS

DeKeyser contends that his trial counsel was deficient for failing to concede that the purpose of the act was sexual gratification and that the victim was under sixteen in order to avoid the introduction of the other acts evidence. Specifically, DeKeyser faults his attorney for failing to know about the case of State v. Wallerman, 203 Wis.2d 158, 552 N.W.2d 128, 132 (Ct.App.1996), which states that a defendant can concede elements of a crime in order to avoid the introduction of other acts evidence. We agree that trial counsel's failure to know and apply Wallerman was deficient performance and prejudiced the outcome of the trial.

The other acts evidence could have been admitted to prove that the touching, if it occurred, in the instant case was for the purpose of sexual gratification. A Wallerman stipulation, however, would have conceded this element and eliminated the admission of the other acts evidence. The trial court rejected DeKeyser's deficiency of counsel argument because it concluded that DeKeyser would not have agreed to concede both that if a touching occurred it was for the purpose of sexual gratification and the age of the victim. The trial court further concluded that the other acts had relevance apart from such concessions had they been offered. In determining whether DeKeyser's attorney's performance was deficient, we must review whether the trial court properly concluded that these reasons were a sufficient basis for rejecting the stipulation. While we do not hold that a trial court is without discretion to accept a Wallerman stipulation because that issue is not before us, a trial court erroneously exercises its discretion if it rejects such a stipulation based on an erroneous view of the law. See Schaefer v. Village Bd., 177 Wis.2d 287, 292, 501 N.W.2d 901, 903 (Ct.App.1993). Because the reasons advanced by the trial court for rejecting the stipulation are based on an erroneous view of the law, the court's conclusion that it would have rejected the stipulation would have been an erroneous exercise of discretion.

Before a court can accept a defendant's concession of certain elements to avoid other acts evidence, Wallerman sets forth the necessary criteria for accepting such a stipulation. After having considered whether there is sufficient evidence to prove the elements to which the stipulation applies, the court should: (1) determine exactly what the defendant is conceding; (2) assess whether the other acts evidence would still be necessary despite the concession; (3) personally voir dire the lawyers and the defendant to ensure they understand the effects of the concession; and (4) address these matters pretrial where possible. Id. at 167-68, 552 N.W.2d at 132-33. The court's rejection was based on the second and third requirements.

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