State v. Gatlin

• Decision Date: 12 May 2016
• Docket Number: Nos. 2014AP2351–CR,2014AP2352–CR.,s. 2014AP2351–CR
• Citation: 370 Wis.2d 260,881 N.W.2d 358 (Table)
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Latasha K. GATLIN, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

370 Wis.2d 260

881 N.W.2d 358 (Table)

STATE of Wisconsin, Plaintiff–Respondent,

v.Latasha K. GATLIN, Defendant–Appellant.

Nos. 2014AP2351–CR

2014AP2352–CR.

Court of Appeals of Wisconsin.

May 12, 2016.

¶ 1PER CURIAM.

Latasha Gatlin was tried before a jury and was convicted of six counts of physical child abuse.Her appeal raises several claims of ineffective assistance relating to her trial, and she argues that, post-trial, the circuit court improperly denied her relief based on prosecutor misconduct and newly discovered evidence.We reject all of Gatlin's arguments, and affirm.¹

Background

¶ 2 The procedural history and trial evidence are complicated.We provide a bare bones summary here and supply more details as appropriate in the discussion section.

¶ 3 At the time school employees and police initiated the investigation that led to charges against Gatlin, she was a single mother living with six of her eight children in Madison.Gatlin's eight children and their ages and sexes at the time of trial, are: Q .G., male, age 19; T.G., female, age 16; T.B.T., female, age 14; A.T., male, age 13; T.T.G., female, age 11; I.M.S., female, age 10; I.S., female, age 7; and C.S., female, age 5.The six girls lived with Gatlin.Her younger son, A.T., lived with Gatlin until at least October 2010 but, by the time of the investigation, had moved to Milwaukee to live with his grandmother.After the move, A.T. visited his family in Madison on weekends “mostly every week.”

¶ 4 On February 7, 2011, the Monday after Super Bowl Sunday, one of Gatlin's daughters, then 10–year–old T.T.G., informed a teacher at her school that she had broken a household item, that she was afraid she would be in trouble, and that she was afraid to go home.The teacher observed that T.T.G. was acting nervous.The next day, February 8, 2011, the teacher observed that T.T.G. seemed “sad and scared.”The teacher spoke with T.T.G. away from the other children, and T.T.G. told the teacher that Gatlin had hit her the night before with a “piece of wood with needles in it.”T.T.G .'s report led to a further investigation by school officials, and then by police officers.

¶ 5 That same day, police officers went to Gatlin's residence to speak with Gatlin and look for evidence that might corroborate allegations made by T.T.G.For example, officers investigated whether there were belts matching belts that T.T.G. alleged Gatlin had used to “whoop” T.T.G.The police were at Gatlin's residence for approximately 3 hours.

¶ 6 As a result of the investigation, the six children who were then residing with Gatlin were removed from the home.The next day, February 9, 2011, T.T.G. was interviewed by a police detective at Safe Harbor.The interview was video recorded and lasted about an hour.

¶ 7 Based on information obtained from T.T.G. and later from school employees, police also interviewed two of T.T.G.'s younger sisters on March 15, 2011, at Safe Harbor.A detective interviewed then 9–year–old I.M.S. and then 6–year–old I.S.Again the interviews were video recorded.Both I.M.S.'s interview and I.S.'s interview lasted about half an hour.

¶ 8 Gatlin was charged with five counts of physical child abuse.Later, an additional charge was added.Gatlin went to trial on the six counts, all involving the three daughters who were interviewed at Safe Harbor.Two counts alleged that, in 2008, when the family was living in a motel, Gatlin kicked T.T.G. in the vagina, and Gatlin pinched I.M.S., leaving marks.The four remaining counts relate to 2010 and 2011, when the family was living in an apartment.It was alleged that on February 6, 2011, Super Bowl Sunday, Gatlin struck T.T.G. with a belt, and that, the following day, Gatlin struck T.T.G. with a piece of wood door trim.As to I.M.S., it was alleged that, between June 1, 2010, and August 31, 2010, Gatlin “whooped” I.M.S. with a belt, a hanger, and a boot.As to I.S., it was alleged that, between January 1, 2010, and February 1, 2011, Gatlin hit I.S. with a belt.

¶ 9The State's case consisted primarily of the video-recorded interviews referenced above, introduced in lieu of testimony pursuant to Wis. Stat. § 908.08.²All three girls were called to the witness stand.The prosecutor asked the girls some questions, played the recordings, and then the girls were questioned by both the prosecutor and Gatlin's counsel.In the videos, the three girls related specific instances of being hit by Gatlin and made general statements about how Gatlin used belts, cords, a stick, and other objects to strike them and their older siblings.

¶ 10 Gatlin's defense consisted of her own testimony and six additional witnesses.Although the jury was instructed, as to two of the charges, that the State was required to prove that Gatlin's conduct was not reasonable discipline, Gatlin's defense at trial was not that any of the charged instances involved reasonable discipline.Rather, her defense as to all of the charged conduct was that the children were lying.Although the jury learned that Gatlin told police during the initial investigation that she never struck her children, at trial Gatlin's position was that she seldom did so and that she would not have physically punished the girls for the behavior the girls said prompted Gatlin to strike them.

¶ 11 Three of Gatlin's older children testified in her defense, and their testimony varied.A son, A.T., who was 13 at the time of trial, testified that he never saw Gatlin spank anyone, but rather that Gatlin used time-outs, made them stand in a corner, or sent the children to their rooms.Gatlin's two older daughters, 14–year–old T .B.T. and 16–year–old T.G., both testified that the normal punishment was non-physical.Both girls testified that Gatlin sometimes spanked the children and sometimes used a belt.For example, T.G. testified that she was struck with a belt “[n]ot that often” but that the striking “wasn't hard that I had bruises on myself.”

¶ 12 The other three witnesses that Gatlin's counsel called were a neighbor with children who played with Gatlin's children and who often visited Gatlin's Madison residence, a friend who often visited the Madison residence, and an uncle who had substantial contact with Gatlin in Milwaukee before Gatlin moved to Madison.All three testified that they never saw Gatlin strike any of her children.

¶ 13 In closing arguments, the prosecutor focused heavily on reasons why Gatlin was not credible, highlighting, for example, instances in which Gatlin's version of her contact with police officers differed sharply from the officers' accounts.

¶ 14 Gatlin's counsel focused on T.T.G. and on adults who were in a position to influence the younger girls.As to the alleged abuse of T.T.G. on Super Bowl Sunday and the following day, counsel argued that T.T.G.'s statements about why she got in trouble did not make sense and that it was significant that T.T.G. failed, at trial, to identify the piece of door trim that Gatlin allegedly used to punish T.T.G. during the second incident.Counsel argued that T.T.G. lied and that “this trial came about because [T.T.G.] wanted to go live with white people.[T.T.G.] thought they had more money.”Counsel accused T.T.G. of faking pain at school in an effort to be placed in foster care.Counsel also addressed the allegation that Gatlin kicked T.T.G. in the vagina, and pointed to reasons why the incident would have come to light earlier if the account was true.

¶ 15 As to the two younger girls, Gatlin's counsel's argument was more general.Counsel did not address any specific instances or types of discipline.Rather, counsel argued that the two girls were influenced by school employees.She argued that the school principal helped implant a memory by telling I.S. that her mother“hit [her] too hard” and that adults “were worried about [her].”Counsel argued that the Safe Harbor interviews of the younger girls did not take place until about a month after the girls had been removed from Gatlin's care and that, during the intervening time, the girls were “surrounded by adults [who] all want to hear how [the girls] were mistreated.”³

¶ 16 As noted, the jury returned guilty verdicts on all six charges.

Discussion

¶ 17 Gatlin seeks a new trial for several reasons.She claims that she was denied effective assistance of counsel based on her trial counsel's failure to object to other acts evidence, extrinsic evidence, opinion testimony, and calling the child witnesses before playing their recorded statements.Gatlin also contends that the prosecutor made a bad faith representation and that there is newly discovered evidence.In the following sections, we address and reject each argument.

A.Ineffective Assistance Of Counsel

¶ 18 Gatlin argues that her trial counsel was ineffective in several respects.To obtain relief, Gatlin must show both deficient performance and resulting prejudice.SeeStrickland v. Washington,466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).

¶ 19 With respect to deficient performance, Gatlin must point to specific acts or omissions by her counsel that are “outside the wide range of professionally competent assistance.”Id. at 690.“Deficient performance is judged by an objective test, not a subjective one.”State v. Jackson,2011 WI App 63, ¶ 9, 333 Wis.2d 665, 799 N.W.2d 461.The focus is not on trial counsel's subjective thinking, but rather on whether counsel's conduct was objectively reasonable.Seeid.

¶ 20 As to prejudice, Gatlin “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding[s] would have been different.A reasonable probability is a probability sufficient to undermine confidence in the outcome.”Strickland,466 U.S. at 694.

¶ 21 The ineffective assistance analysis has both factual and legal components.The circuit court's findings of what counsel did and the basis for the challenged conduct are factual and will be upheld unless clearly erroneous.State v....