State v. Earls

• Decision Date: 08 April 2015
• Docket Number: No. 2014AP57–CR.,2014AP57–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Fairly W. EARLS, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

362 Wis.2d 539

865 N.W.2d 884 (Table)

STATE of Wisconsin, Plaintiff–Respondent

v.Fairly W. EARLS, Defendant–Appellant.

No. 2014AP57–CR.

Court of Appeals of Wisconsin.

April 8, 2015.

Opinion

¶ 1 PER CURIAM.

Fairly W. Earls appeals pro se from a judgment of conviction entered after a jury found him guilty of three counts of first-degree sexual assault of a child and from an order denying his motion for postconviction relief. Earls argues that the trial court improperly determined that by failing to diligently procure trial counsel's appearance at the scheduled Machner¹ hearing, Earls forfeited his ineffective assistance of counsel claims. He further alleges that the trial court erred by (1) admitting the redacted videotaped interview of the victim, (2) denying his motion to dismiss for loss of jurisdiction, (3) improperly commenting on the trial testimony, (4) allowing testimony concerning his custodial status after his apprehension in Panama, (5) permitting the victim to testify about a charge for which he was found not guilty, and (6) admitting other acts evidence. We conclude that the trial court properly denied Earls's ineffective assistance of counsel claims, and with the exception of one claim, decline to reach the merits.² Further, because we determine that the trial court did not err as alleged in Earls's preserved claims, we affirm.

¶ 2 In 1997, the State filed a criminal complaint charging Earls with four counts of first-degree sexual assault of a six-year-old girl, J.M.O., occurring in August of that year. During trial, the court allowed the State to play a videotaped interview between J.M.O. and a clinical social worker, Liz Ghilardi. The social worker also testified at trial. Earls was found guilty of three counts, and his judgment was affirmed on direct appeal. See State v. Earls, No.2000AP2303–CR, unpublished slip op. (WI App Sept. 5, 2001).

¶ 3 The Court of Appeals for the Seventh Circuit reversed the judgment after concluding that trial counsel's failure to redact the victim's videotaped statement in accordance with the trial court's prior ruling constituted ineffective assistance of counsel. Specifically, the Seventh Circuit determined that trial counsel was ineffective for failing to ensure that the videotape was redacted to omit the social worker's closing statements to the victim that she was “very sorry that Fairly did that to you. He should not have been touching you down there,” and “we don't want him to do this to you anymore.”³

¶ 4 The State elected to retry Earls. Earls was released on bail and absconded. Earls was later apprehended and a second jury found him guilty of the same three charges. The office of the state public defender appointed counsel to represent Earls for postconviction purposes. Following a hearing, the trial court granted appointed counsel's motion to withdraw so that Earls could represent himself. Earls filed a pro se motion alleging ineffective assistance of trial counsel and the trial court scheduled the motion for a Machner hearing. When Earls failed to produce any witnesses at the hearing, the trial court summarily denied Earls's postconviction motion.

The Trial Court Properly Denied Earls's Ineffective Assistance of Counsel Claims

¶ 5 On November 6, 2013, Earls was provided notice of the December 18, 2013 Machner hearing. Earls failed to procure trial counsel's attendance. Consequently, the trial court dismissed Earls's ineffective assistance of counsel claims for lack of proof. Earls contends that the trial court erroneously exercised its discretion by “fail[ing] to address the issues on the record” and instead issuing a “blanket denial” of his ineffective assistance of counsel claims. We disagree.

¶ 6 In denying Earls's ineffective assistance of counsel claims, the trial court found that Earls did not request a subpoena until two days before the hearing. Though the court honored Earls's request to issue the subpoena on the day it was received, it was too late to serve the subpoena on trial counsel. The court concluded that Earls had not exercised sufficient diligence in procuring trial counsel's attendance at the hearing:

I did not receive anything, hear from you in any manner or form, have any communication with anyone concerning this hearing following the filing of your motion and request for a Machner hearing until after lunch on Monday when I got your two subpoenas. I certainly don't find that to fall within the definition of due diligence....

¶ 7 In determining that Earls did not timely subpoena trial counsel, the trial court hearkened back to the “very extensive hearing” in October wherein appointed counsel was permitted to withdraw at Earls's request. The court reminded Earls that at the October hearing, it had indicated “a tremendous downside of self-representing yourself in any criminal matter but certainly on matters of this sophistication ... given the magnitude of what has all transpired.” The court continued:

I then addressed protocols that would follow with regard to the filing of motions and the securing of parties and [that] the noticing of parties and securing the availability of parties is exclusively that of the proponent, that ... the State will do absolutely nothing nor will the Court, that the Court will not take and facilitate circulation of documents. If they are not properly circulated, served and facilitated, that is the proponent's responsibility to make sure that in fact is done. Given that, counsel certainly would be of assistance to make sure that those protocols would certainly be respected and followed consistent with prevailing case and statutory directives.

The court reminded Earls that it had cited to case law providing that the “failure to ... procure attendance of defendant's trial attorney waives the claim of ineffective assistance” and that because Earls had filed his pro se postconviction motion at that October hearing:

I said if for some reason trial counsel would be unavailable, just from the Machner hearing standpoint, it was important that the defendant understand that the Court will not permit him to rebut any presumption of effectiveness or ineffectiveness by his own statements and allegations.

¶ 8 The trial court thoroughly informed Earls that it was his obligation to procure trial counsel's appearance and warned him that the failure to do so would result in dismissal of his ineffective assistance of counsel claims. Despite these cautions, Earls did not timely subpoena trial counsel. An ineffective assistance of counsel claim must be supported by trial counsel's testimony. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905. In the absence of trial counsel's testimony, an ineffective assistance of counsel claim cannot succeed. State v. Mosley, 201 Wis.2d 36, 50, 547 N.W.2d 806 (Ct.App.1996). Under these circumstances, because the court properly determined that Earls failed to act with due diligence and Earls did not present the testimony of his trial counsel, the court did not err in denying his ineffective assistance claims.

The Trial Court Properly Admitted into Evidence the Victim's Videotaped Interview as Redacted

¶ 9 Prior to Earls's first trial, the State moved to admit the victim's videotaped interview with social worker Ghilardi. The trial court determined that the videotaped statement was hearsay and was not admissible under the Wis. Stat. § 908.08(3) (2013–14)⁴ hearsay exception for audiovisual recordings of statements of children. However, the court determined that the videotape was admissible under Wis. Stat. § 908.03(24), the residual hearsay exception.⁵ In Earls's direct appeal of his first trial, this court determined that the trial court properly exercised its discretion in admitting the videotaped interview:

Earls argues first that the evidence was inadmissible hearsay and that the circuit court improperly admitted the evidence as residual hearsay. See Wis. Stat. § 908.03(24). Before admitting the evidence, the circuit court applied the factors set forth in State v. Sorenson, 143 Wis.2d 226, 245–46, 421 N.W.2d 77 (1988). Sorenson held that the residual hearsay rule was appropriately used to admit hearsay statements of young sexual assault victims. Id. at 243, 421 N.W.2d 77. The court must first establish certain “guarantees of trustworthiness.” Id.

....

The record establishes that the circuit court considered all of these factors when it decided to allow the evidence. Earls has not demonstrated that the circuit court erroneously exercised its discretion when it allowed the evidence in under the residual hearsay rule.

Earls, No.2000AP2303–CR, unpublished slip op. at ¶¶ 13–14.

¶ 10 On retrial, trial counsel objected to the admissibility of the videotaped interview, adding to the arguments made in the first trial that the victim's current age weighed against admissibility. In response, the State filed a comprehensive memorandum with numerous attachments⁶ arguing that the retrial court should accept the first court's analysis as an appropriate exercise of discretion that was affirmed on appeal.

¶ 11 The trial court determined that the videotape was admissible under the residual hearsay exception.⁷ In so ruling, the trial court acknowledged that it had not viewed the videotape, but had reviewed the State's brief and considered that the original court's admissibility ruling was affirmed on appeal and left undisturbed by the Seventh Circuit's decision.⁸ The retrial court approved of the original court's analysis and ruling and determined that the passage of time only weighed in favor of admissibility:

This case I think probably now more supports the admission of that videotape than it ever did for the reason that this is 2012. That forensic interview took place I believe in '97, '98, whatever it was. So we're talking 14, 15 years removed. To expect that somebody may in fact remember each and every minute detail of certain things that far removed is I think unrealistic and the best evidence as I would see it is to have the

...