State v. Gutierrez
| Decision Date | 03 June 2020 |
| Docket Number | No. 2017AP2364-CR,2017AP2364-CR |
| Citation | 943 N.W.2d 870,391 Wis.2d 799,2020 WI 52 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. David GUTIERREZ, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the plaintiff-respondent-petitioner, there were briefs filed by Daniel J. O'Brien assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Daniel J. O'Brien.
For the defendant-appellant, there was a brief filed by Chris A. Gramstrup and Gramstrup Law Office, Superior. There was an oral argument by Chris A. Gramstrup.
¶1 This is a review of a published decision of the court of appeals1 reversing the judgment of conviction entered against David Gutierrez.
¶2 Gutierrez was convicted of multiple counts of sexual assault and enticement of his stepdaughter. In a postconviction motion, Gutierrez alleged the denial of his constitutional right to an impartial jury and to effective assistance of counsel. Gutierrez appealed the denial of his postconviction motion. He also appealed his judgment of conviction on the grounds that the circuit court2 erred in its decision to exclude unidentified DNA evidence and to admit "other acts" evidence. The court of appeals reversed the circuit court's decision to exclude the unidentified DNA evidence and affirmed its decision to admit other acts evidence. The judgment of conviction was vacated and the case was remanded for a new trial. The State petitioned for review.
¶3 We conclude that the court of appeals erroneously reversed the circuit court's exercise of discretion in excluding unidentified DNA evidence. We further conclude that the court of appeals properly affirmed the circuit court's admission of other acts evidence. Lastly, we conclude that Gutierrez was not denied his right to an impartial jury or his right to effective assistance of counsel. Accordingly, we reverse the court of appeals' decision as to the unidentified DNA evidence and affirm its decision as to the other acts evidence. We also affirm the circuit court's denial of Gutierrez's postconviction motion.
¶4 On November 2, 2012, twelve-year-old A.R. told her cousin she was afraid to return home because her stepfather, Gutierrez, touched her the night before. In a forensic interview conducted later that day, A.R. alleged that the prior evening, November 1, Gutierrez removed her clothes, touched her genitals, made her touch his genitals, performed oral sex on her, forced her to perform oral sex on him, ejaculated in her mouth, and attempted to penetrate her with his penis. A.R. further alleged that Gutierrez first sexually assaulted her when she was six years old by luring her into a closet and performing oral sex on her. A.R. also provided specific details about an alleged sexual assault that took place in a van some time between May and October 2011 and in a garage some time between September 2011 and May 2012.
¶5 After her forensic interview, A.R. submitted to a sexual assault forensic exam where she indicated that in the 24 hours since the assault she had urinated, defecated, washed her genital area, taken a shower, drank liquid, brushed her teeth, swished out her mouth, and changed her clothes. The nurse collected a perioral swab from A.R. to test for DNA.3
¶6 Additional DNA swabs were taken from two pairs of A.R.'s underwear seized during the execution of a search warrant on November 3. One pair, which A.R. indicated she wore during the November 1 assault, was pulled mid-cycle from the washing machine. It did not match the description A.R. had initially given to the police. The second pair, which was purportedly the underwear A.R. wore on November 2, was retrieved from a pile of soiled laundry. DNA from at least three unidentified males was detected on the perioral swab, and DNA from at least five unidentified males was detected on the underwear swabs. The testing excluded Gutierrez as a contributor to either DNA mixture. The testing also determined that none of the DNA was from semen or saliva.
¶7 Based on the three allegations of sexual assault that took place between 2011 and 2012, Gutierrez was charged with three counts of sexual assault of a child under the age of thirteen, three counts of incest with a child by stepparent, three counts of child enticement, and one count of exposing a child to harmful material.4 Prior to trial, Gutierrez moved to admit the DNA test results. The State objected, arguing that the DNA evidence was not relevant and that any probative value was substantially outweighed by the danger of undue prejudice, confusion of the issues, and misleading the jury. See Wis. Stat. §§ 904.01, 904.03. Additionally, the State asserted that the indication of unidentified male DNA on the swabs would invite speculation as to why male DNA would be around A.R.'s mouth and on her underwear, a purpose barred by Wisconsin's rape shield law, Wis. Stat. § 972.11(2)(b). Defense counsel argued that the unidentified DNA evidence was highly probative to rebut the State's theory that Gutierrez's DNA would not likely be found on A.R. since she had washed and wiped herself in the time between the assault and when the swabs were collected, and that this purpose was not contrary to the rape shield law.
¶8 The circuit court ruled that Gutierrez could introduce evidence only that DNA testing was performed on the perioral and underwear swabs and that his DNA was not found on those swabs. While the circuit court "agree[d] with [defense counsel's] analysis of the rape shield law," it precluded Gutierrez from presenting the unidentified DNA evidence because the lack of information surrounding the sources of the DNA and when it had been deposited rendered its probative value "extraordinarily limited." The circuit court also raised concerns that expert testimony on this issue could consume half a day and could take the trial "down a rabbit hole." As an alternative, the court allowed defense counsel to generally explore how DNA is transferred, how long foreign DNA remains viable on another person, and how easily DNA can be washed or wiped off with the expert witness.
¶9 The State moved to admit as "other acts" evidence allegations of prior sexual assaults dating back to when A.R. was approximately six years old. In light of the greater latitude rule applicable in child sexual assault cases,5 the circuit court granted the State's motion in part, admitting only the first incident of alleged assault for the limited purposes of proving motive and providing context and background. The court agreed to instruct the jury that if it believed A.R., it could consider Gutierrez's other act of child sexual assault for only these limited purposes.6
¶10 With Gutierrez's trial only weeks away, defense counsel disclosed a recent claim by Gutierrez's mother that while staying with her in Texas, A.R. confessed that she fabricated the allegations because she was upset with Gutierrez. While Gutierrez's mother appeared on his amended witness list, defense counsel announced at the outset of Gutierrez's case-in-chief that he would not be calling her to testify. Defense counsel opted instead to confront A.R. with the claim on cross-examination.
¶11 During jury selection, defense counsel asked whether any prospective juror felt they could not be fair and impartial given the nature of the charges. Juror R.G. responded, Defense counsel moved the court to excuse Juror R.G. for cause, but the State objected arguing that there needed to be a "little more certainty." The circuit court never ruled on the motion. Defense counsel did not renew the motion, question Juror R.G. further, or exercise a peremptory strike on her. She subsequently served on Gutierrez's jury.
¶12 One of the witnesses called by the defense at trial was State Crime Laboratory DNA Analyst Samantha Delfosse, who testified that Gutierrez's DNA was not present on A.R.'s perioral or underwear swabs. On cross-examination, the State elicited her testimony that DNA can be washed, scrubbed, or wiped off, and the more a person is washing or wiping, "the more likely you are removing any kind of DNA that was deposited." Defense counsel did not conduct any redirect examination.
¶13 The jury ultimately found Gutierrez guilty on nine counts.7
¶14 Gutierrez filed a postconviction motion, arguing that he was denied his right to an impartial jury. He also asserted that his defense counsel was unconstitutionally ineffective because he did not further question or exercise a peremptory strike on Juror R.G., or call his mother as a witness.8 At the Machner 9 hearing, defense counsel testified that he did not remember Juror R.G., her statement, or why he exercised each of Gutierrez's peremptory strikes on other prospective jurors. He admitted that "the best I can say is I must have felt there were other people that I needed off the jury more than her." As for not calling Gutierrez's mother as a witness, defense counsel stated that he did not make that decision until the defense's case-in-chief. In making that decision, he considered that Gutierrez's mother could not recall specifics surrounding the recantation such as why A.R. was at her home in Texas, when the recantation was made, or why she did not immediately report it. Defense counsel described Gutierrez's mother as a "loose cannon" who "loved to talk" and determined that these characteristics would allow her credibility to be undermined on cross-examination. Finally, he expressed concern that by calling the defendant's mother as a witness, the jury might infer that the defense was desperate.
¶15 The circuit court denied Gutierrez's postconviction motion and affirmed the judgment of conviction....
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