State v Falk
| Decision Date | 29 June 2000 |
| Docket Number | 99-0350-CR |
| Parties | This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62. State of Wisconsin,Plaintiff-Respondent, v. Richard J. Falk,Defendant-Appellant.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Marquette County: RICHARD O. WRIGHT, Judge. Affirmed.
Before Dykman, P.J., Vergeront and Deininger, JJ.
1. VERGERONT, J.
Richard Falk was convicted of two counts of child abuse in violation of Wis. Stat. 948.03(2)(a) (1997-98).1 Richard appeals his conviction and the order denying his motion for postconviction relief, arguing both trial court error and ineffective assistance of counsel. He contends the trial court erred by: (1)allowing the State to present other acts evidence, which, Richard argues, was highly prejudicial and not admissible under Wis. Stat. 904.04(2); (2)allowing the State to show the jury photographs of the injured child when the injuries were not disputed; and (3)precluding him from introducing evidence supporting the theory that his wife, not he, committed the crime against their daughter. We conclude the trial court did not erroneously exercise its discretion on the first point and, to the extent it did on the second point, the admission of photographs was harmless error. With respect to the evidence of other acts by Richard's wife, we hold the "legitimate tendency" test we adopted in State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984), affirmed, 163 Wis. 2d 352, 471 N.W.2d 606 (Wis. App. May 15, 1991) (No. 90-2019-CR), does not apply when the charged offense is child abuse, and the correct standard is the one for other acts evidence set forth in State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998), although applied less stringently than when the State seeks to introduce other acts evidence against a defendant, see State v. Scheidell, 227 Wis. 2d 285, 304-05, 595 N.W.2d 661. Applying that standard, we conclude the trial court did not exclude relevant evidence and therefore did not violate Richard's constitutional right to present a defense.
2. Richard also contends his trial counsel was ineffective on a number of grounds, several of which relate to the failure to gather and present evidence of Richard's wife's behavior, attitudes and psychological make-up. We conclude that Richard has not shown both deficient performance and prejudice for any ground. In particular, we conclude that the other acts evidence concerning his wife is not admissible under Wis. Stat. 904.04(2); the character evidence, including the psychological evaluation and expert testimony is inadmissible under 904.04(1)(c); and we decline to decide whether the character evidence is admissible under another, constitutionally required theory because the argument was not sufficiently developed. Finally, we decline to reverse and remand for a new trial in the interests of justice.
3. Laura Falk, the two-month-old daughter of Richard and his wife Shannon, was brought to the hospital on Friday, February 13, 1997. She had seventeen fractures in her arms, legs and ribs; she suffered from a life threatening infection resulting from those injuries; and a large blood clot had formed near her heart. The doctors who treated Laura determined the injuries had been intentionally inflicted within ten days prior to that Friday.
4. The police investigation focused on four suspects: Richard, Shannon, and Richard's brothers, Russell and David. Richard and Shannon lived in a trailer home with Laura and their three-year-old son Cody. Russell and David were living with them for several days prior to February 13, 1997, and stayed with the children when Richard and Shannon were out. The police questioned these four individuals and others. On March 5 Richard made a confession to Detective Thomas Schrank of the Marquette County Sheriff's Department, stating that he had caused the injuries to his daughter on two separate occasions-a confession Richard later said was not the truth.
5. In his signed statement Richard told the police the following details. During the night of Monday, February 10, Laura's crying woke him. While Shannon remained sleeping, Richard tried to feed Laura a bottle, but she would not eat well. He stated that he "got mad and frustrated" and he "grabbed Laura hard by both of her wrists and picked her up very roughly and started to yell at her." He then tried to burp Laura, holding her against him and hitting her on her back. He stated that he knew he was hitting her too hard. When Laura still would not eat, Richard laid her down to change her diaper, which was difficult because Laura was crying and kicking. He then stated:
I grabbed Laura by both of her legs very hard and pulled on them and picked her up by the legs as Laura continued to cry and kick. I know that I then twisted her legs a bit trying to get Laura to stop fighting me so I could change her diaper.
He then tried to wrap Laura in a blanket to keep her fingers out of her mouth. In doing so Richard stated that he had to "twist and force the arms into the blanket." He then put her back in the crib and went back to bed himself.
6. Richard stated that Shannon asked him about a bruise on Laura's leg on Tuesday and he told Shannon that maybe it was from pulling Laura out of the swing, but he "really thought it was from what I did to Laura the night before when I had grabbed the legs and twisted them."
7. In his statement Richard also described being awakened by Laura's crying on Wednesday night, February 12. He had just fed her two hours ago so he knew she was not hungry. He said he "grabbed her very hard along the side of the body in the rib area and squeezed her very hard and was telling her to stop crying." He then fed her a little and put her back in the crib.
8. At trial Richard testified that the statement he made to Detective Schrank on March 5, 1997, was not true. The false confession was made, he testified, because he felt it was the only way to get his family back together. He said he realized he was covering for someone else, probably Shannon or Russell, but, at the time, he "really didn't think anything was done on purpose," and he thought that he "could probably handle [whatever the authorities decided to do] better than either [Shannon or Russell] could" because they are both very emotional people. Richard testified that at the time he made the confession, he was "under the understanding" he would not go to jail for his confessed actions, but would receive counseling. Richard testified that the week before he confessed he told four people-his father, his aunt and uncle, and his friend Doug Paul-that he planned to confess.
9. Richard's explanation at trial for how he made up the details of the confession was that he "knew Laura's condition and what all was wrong with her" and he "made sure to include it all" in his confession. His mother had relayed to him what Chief Deputy Kim Gaffney of the Marquette County Sheriff's Department had told her about how the police thought the injuries had occurred. She had told him, he testified, about the "grabbing of the wrists and holding her only by the wrists and also by the ankles ... and the intentional breaking of the legs." Richard's mother corroborated this.3
10. Chief Deputy Gaffney testified he did tell Richard's mother how the injuries could have happened based upon the information he received from the doctors at that time, which may have included the possible actions of squeezing the baby's ribs and hitting or twisting the baby's legs. He also testified he told Richard's mother that there were probably two separate incidents and that the injuries to the legs and the arms would have occurred something like Monday night or early Tuesday morning. However, when the State recalled Chief Deputy Gaffney as a rebuttal witness, he denied discussing a "dangling theory" with Richard's mother, and said that when he spoke with her the only theory he was aware of was the one the doctors had arrived at-a systematic breaking of the child's bones.
11. Dr. Keith Kahle, the orthopedic surgeon who treated Laura, testified that when he first observed all of the fractures in Laura, he theorized that they resulted from "a systematic, intentional taking each of the extremities at various locations, near the joints and just snapping them in certain moves...." Dr. Kahle relayed this theory to Detective Schrank at that time. When Detective Schrank later told Dr. Kahle how Richard described inflicting the injuries in his confession, Dr. Kahle stated that these actions could have caused the injuries he observed: Richard's description was "at least equally consistent" with the injuries as his original theory of systematic breaking of the bones.
12. The State also presented evidence, over Richard's objection, that Richard had caused similar rib fractures to his son, Cody, a couple years earlier. Detective Schrank testified that he interviewed Richard again on March 6 and asked him about fractured ribs the doctors identified on an x-ray of Cody from when he was about ten months old. Detective Schrank testified that Richard "indicated that he was probably the one who did it" and that he remembered "squeezing Cody in a similar fashion that he squeezed Laura." Richard denied making those statements and testified it was Detective Schrank who said "You probably did it" to Richard on March 6. There is not a signed statement from the March 6 interview.
13. The jury found Richard guilty of two counts of child abuse and he was sentenced to a twenty-five-year prison term.
14. Richard brought a number of postconviction motions, including a motion for a new trial based on ineffective assistance of counsel...
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