State v. Domke, 2009AP2422CR.
| Decision Date | 01 November 2011 |
| Docket Number | No. 2009AP2422CR.,2009AP2422CR. |
| Citation | 2011 WI 95,337 Wis.2d 268,805 N.W.2d 364 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. David W. DOMKE, Defendant–Appellant. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the plaintiff-respondent-petitioner the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant there was a brief and oral argument by Martha K. Askins, assistant state public defender.
An amicus curiae brief was filed by Robert R. Henak, Rebecca R. Lawnicki and Henak Law Office, S.C., Milwaukee, on behalf of the Wisconsin Association of Criminal Defense Lawyers.N. PATRICK CROOKS, J.
This is a review of an unpublished decision of the court of appeals 1 reversing the circuit court's judgment of conviction and remanding for a new trial based on ineffective assistance of counsel. A jury convicted David W. Domke (Domke) of repeatedly sexually assaulting Alicia S., his stepdaughter, when she was ten years old, in violation of Wis. Stat. § 948.02(1) and § 948.025(1)(a) (2003–04). Domke moved for postconviction relief and a new trial based on the ineffective assistance of his trial counsel, Terrence Woods (Woods). In order to prevail on the ineffective assistance claim, Domke needed to establish both that Woods' performance was deficient and that the deficient performance prejudiced Domke—in other words, that counsel's errors undermine the court's confidence in the result.2 After a postconviction hearing, the circuit court denied the motion because it concluded that while Domke had shown that Woods performed deficiently, Domke had failed to show that the deficient performance had prejudiced him. The court of appeals, however, concluded that Domke had established cumulative prejudice from three instances of deficient performance. Thus, the court of appeals reversed the circuit court's denial of Domke's postconviction motion and remanded for a new trial.
¶ 2 We conclude that Domke is not entitled to a new trial due to ineffective assistance of counsel. While we agree with the court of appeals that Woods performed deficiently in three respects during trial, we are not persuaded that these errors prejudiced Domke. We hold that under the totality of the circumstances Domke received a fair trial, and our confidence in the result is not undermined.
¶ 3 Therefore, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction.
¶ 4 The charges against Domke are based on four incidents between June 20, 2005, and December 25, 2005, on which Alicia S. alleged that Domke engaged in sexual contact with her. Specifically, Alicia S. alleged that on all four occasions Domke rubbed his penis on her buttocks and on one occasion Domke also licked her vagina. Alicia S. was ten years old at the time. Alicia S. did not disclose the full extent of the alleged assaults at first, but over time the details of the four incidents emerged.
¶ 5 Approximately six months after the first alleged assault, Alicia S. told two friends, L.H. and J.M., that Domke had sexually assaulted her. J.M. told another friend, whose mother reported the allegations to Alicia S.'s elementary school. The guidance counselor at the school notified the police, and a police officer, Corey Rank (Rank), and a child protection investigator, Bonnie Anderson (Anderson), interviewed Alicia S. at the school on January 17, 2006. Alicia S. later went to a physician's assistant, Tracey BeFay (BeFay), on January 23, 2006, for a physical examination during which she repeated some of the allegations. In February 2006, Alicia S. began seeing an outpatient therapist, Kim Rusch (Rusch), to address some emotional and behavioral problems she was having that Alicia S. and her natural father, David S., attributed to the alleged abuse. It was through the approximately 20 to 25 therapy sessions with Rusch that Alicia S. provided the full account of the four alleged sexual assaults.
¶ 6 On December 18, 2006, Domke was charged with the repeated sexual assault of a child in violation of Wis. Stat. § 948.025(1)(a) (2003–04) 3 based on four alleged incidents of sexual contact with Alicia S. in violation of Wis. Stat. § 948.02(1).4 A two-day jury trial was held on January 17 and 18, 2008, in the Oconto County Circuit Court, the Honorable Michael T. Judge presiding.
¶ 7 Alicia S. testified first, providing a detailed account of the four alleged sexual assaults. Alicia S. testified:
¶ 8 Regarding the second incident, Alicia S. testified:
¶ 9 Regarding the third incident, Alicia S. testified:
The third time was also at 202 Wisconsin Street. This time I had went into my mom's bedroom. I crawled in at approximately 6:30 a.m. so I could spend time with her before she went to work. And eventually she got up and went to work. And I had woken up to Dave putting his penis near my anal area, and this time I had felt wetness. And I pretended I was sleeping, and then he eventually got up and went—took a shower and went hunting.
¶ 10 Alicia S. indicated that the fourth incident took place in December of 2005 while she was watching television in her bedroom. Alicia S. testified:
I was watching [Country Music Television], and this time he had came into my bedroom and he was naked and he was rubbing his penis up and down my anal area. And this time he told me if I took off my clothes it would feel better and I said no. I told him to get out and I locked my door, and I was really, really scared.
¶ 11 Alicia S. also testified that she first reported the sexual assaults to her friends L.H. and J.M. at a sleepover. Alicia S. explained that she told her friends about the assaults because “it was really bothering” her, but that she did not want them to tell anyone and made them “pinky swear.” L.H. confirmed this and testified that Alicia S. told her “that her stepdad had licked her in the privates.” L.H. further testified that when Alicia S. told her this, she “acted very upset and she looked like she was going to actually throw up.”
¶ 12 Regarding her interview with Anderson and Rank, Alicia S. explained that she did not want to disclose the assaults to them. Alicia S. testified that she was scared and, at that time, did not want Domke to go to jail, so she was not completely honest with Anderson and Rank. Alicia S. stated that, when pressed, she did disclose some of the alleged abuse to them. When Anderson testified, she agreed with Alicia S.'s description of the interview and stated that it was clear that Alicia S. liked Domke very much. Anderson explained that in response to some of her and Rank's questions Alicia S. confirmed that Domke sexually assaulted her:
[Alicia S.] told us without very specific details that on two different occasions at her mother's house—at actually two different houses in Oconto Falls when she was visiting her mother that her stepfather, David Domke, did put his penis between her buttocks on two different occasions while she was pretending to be sleeping when they were all watching TV together in the living room.
¶ 13 Alicia S. also testified that she was later examined by a physician's assistant, BeFay, to whom she revealed some details of the alleged assaults. BeFay testified that Alicia S. was reluctant to talk with her about the alleged assaults, but that Alicia S. indicated that Domke put his penis on her buttocks and his mouth on her genitals. BeFay testified that the physical examination was normal. During Woods' cross-examination of BeFay, he moved to enter into evidence BeFay's dictated report, which reflected the normal physical examination and also included a summary of what Alicia S. told BeFay about the alleged assaults.
¶ 14 Alicia S. further testified that she began to see a therapist, Rusch, and that, after about 10 to 15 sessions, she told Rusch all of the details regarding the four alleged sexual assaults. Rusch testified regarding the services she provided to Alicia S.:
She—the problem focus that was on my intake form when she came to me was that she had been sexually assaulted and that she was having some problems with nightmares, intrusive thoughts, flashbacks. She had a lot of fears. She was scared, things like that. So I was asked to deal with those symptoms that come along with that.
Rusch also testified about the progression of her sessions with Alicia S.:
The first few sessions we basically talked about how she could maybe not be having as many nightmares. We implemented a safety plan because she was very afraid to be outside. She would come home from school and she would be worried somebody was in the house, things like that.
So we developed a safety plan for her to feel safer in her town here and also at her home and when she had to go to school. So that's what we focused on just to make her more comfortable and have her to be able to, you know, be functioning relatively normally in the community and in her family.
And then it was down the road a ways, not until June. I started seeing her in February. And then in June when I finally—Alicia [S.] and I had talked and she was ready to tell me her whole story. She had told, you know, bits and pieces throughout, but that was when she told me her whole story.
In a report that the State introduced into evidence, Rusch documented “Alicia [S.]'s whole story” regarding the four alleged...
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