State v. Henkel, 00-2909
| Decision Date | 10 January 2002 |
| Docket Number | 00-2909 |
| Citation | 640 N.W.2d 564,251 Wis. 2d 479 |
| Parties | This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5. State of Wisconsin, Plaintiff-Respondent, v. Thomas G. Henkel, Defendant-Appellant. AppealSTATE 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 Dane County: STEVEN D. EBERT, Judge. Affirmed.
Before Dykman, Roggensack and Deininger, JJ.
¶1.
Thomas Henkel appeals a judgment of conviction and an order denying his postconviction motion. He raises a number of issues, including ineffective assistance of counsel, whether the court should have granted a continuance, and whether the court erred by excluding evidence. We affirm.
¶2. Henkel was convicted of one count of first-degree sexual assault of a child under thirteen, contrary to Wis. Stat. §948.02(1) (1999-2000).1 The assault was alleged to have occurred in the victim's residence, and was witnessed by the victim's sister. In the interest of preserving the victim's privacy, we will not otherwise describe the facts of the crime, except to the extent necessary to address the issues raised.
¶3. Henkel argues that his trial counsel was ineffective by not offering to stipulate to certain elements of the crime, with the intent of keeping out certain other acts evidence. See, e.g., State v. DeKeyser, 221 Wis. 2d 435, 585 N.W.2d 688 (Ct. App. 1998); State v. Veach, 2001 WI App 143, 246 Wis. 2d 395, 630 N.W.2d 256, review granted, 2001 WI 114, 246 Wis. 2d 171, 634 N.W.2d 318. To establish ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that such performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We affirm the trial court's findings of fact unless they are clearly erroneous, but the determination of deficient performance and prejudice are questions of law that we review without deference to the trial court. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985).
¶4. We conclude that counsel's performance was not deficient on this point. The test for deficient performance is whether counsel's representation fell below "an objective standard of reasonableness." Strickland, 466 U.S. at 688. At the postconviction hearing, Henkel's trial counsel testified that he would have offered a stipulation if he had thought of it, and that he had no strategic reason for not doing so. However, because we are applying an objective standard, we are not bound by counsel's lack of a strategic reason. We may still conclude that an objectively reasonable attorney could have had a strategic reason for taking the action in question, and that therefore counsel's performance was not deficient.
¶5. According to Henkel's argument on appeal, the stipulation in this case would have included his admission that if touching did occur, it was for the purpose of sexual gratification. His defense at trial was based on his assertion that no touching occurred, and this was what he testified to, and what his attorney argued in his opening statement. However, this defense was not fully consistent with his own earlier statement to police, in which he admitted that the touching might have happened, and if it did, it was accidental. Under these circumstances, counsel could reasonably conclude that it would have been unwise to enter a stipulation that would give up the opportunity for the jury to decide that any touching was accidental.
¶6. Henkel's next argument is that the jury "never heard a considerable amount of relevant and exculpatory evidence." Henkel's brief is vague as to what legal theory this argument is based on, although he makes a passing reference to due process. We are not aware of any due process theory that allows reversal of a conviction based simply on the fact that the jury did not hear relevant and exculpatory evidence. Remarkably, Henkel's brief entirely fails to discuss why the jury did not hear this evidence. However, in his postconviction motion, he alleged that his trial counsel was ineffective by failing to present this evidence. We will address the issue on that basis.
¶7. Our review of this issue is hampered by the fact that, at the postconviction hearing, the circuit court did not allow Henkel to present the evidence that he argues his counsel should have presented at trial. Henkel sought to have those witnesses testify at the postconviction hearing, but the court allowed Henkel to present the testimony of only his trial counsel. On appeal, Henkel has not argued that the court erred by limiting the evidence in this manner, and therefore we reach no decision on that point. Thus, we are limited to a postconviction record consisting of Henkel's motion, his offer of proof on the testimony of the excluded witnesses, and the actual testimony of his trial counsel. Under these circumstances, we will address each claim by either reviewing the testimony of trial counsel to see if it contains a sufficient basis to deny the claim, or by reviewing the trial court's decision as if the motion were denied without a hearing, using the test set forth in State v. Bentley, 201 Wis. 2d 303, 308-11, 548 N.W.2d 50 (1996).
¶8. Henkel claimed that his trial counsel should have presented the testimony of two friends of the victim's mother. Trial counsel testified that he didn't call one of those witnesses because she was "openly hostile" to the defense and counsel was afraid she might "dump on Tom in some unexpected way." He said that he did not call the other friend because she told counsel she "wanted nothing to do with the case," and because he believed he could introduce some of the same evidence through other witnesses. On appeal, Henkel has not argued, and we have not noted, any basis to conclude that these strategic choices were unreasonable. Therefore, this claim was properly denied.
¶9. Henkel also claims that his trial counsel should have presented evidence about the victim's mother's "illegitimate personal and financial motives" to obtain Henkel's conviction. We conclude that this claim could properly be denied without a hearing. Although Henkel's motion clearly alleged and offered to prove various personal and financial reasons the mother might want to convict Henkel, the motion does not offer any evidence connecting the mother's motivation directly to the victim's...
To continue reading
Request your trial