State v. Koller

• Decision Date: 20 September 2001
• Docket Number: No. 99-3084-CR.,99-3084-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William KOLLER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

248 Wis.2d 259

2001 WI App 253

635 N.W.2d 838

STATE of Wisconsin, Plaintiff-Respondent, v. William KOLLER, Defendant-Appellant.¹

No. 99-3084-CR.

Court of Appeals of Wisconsin.

Oral argument July 26, 2001.

Decided September 20, 2001.

On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Peter M. Koneazny, assistant state public defender of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Daniel J. O'Brien, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Daniel J. O'Brien.

Before Dykman, Roggensack and Lundsten, JJ.

¶ 1. LUNDSTEN, J.

William Koller appeals from judgments convicting him of five counts of first-degree sexual assault of a child and orders denying his postconviction motions for a new trial. He argues that he was denied effective assistance of counsel at three points: (1) when his trial counsel failed to properly question prospective jurors during voir dire; (2) when his trial counsel failed to seek dismissal of multiplicitous charges; and (3) when his trial counsel failed to ask for acquittal and to comment on the State's burden of proof during closing arguments. We disagree and conclude that, in each instance, Koller has failed to show that he was prejudiced by allegedly deficient performance. Koller also contends that he is entitled to a new trial because, without notifying the parties, the trial court responded to a jury request during deliberations. We conclude that any error in this respect was harmless. We affirm the judgments and orders denying postconviction relief.

I. Background

¶ 2. The State charged Koller with five counts of first-degree sexual assault of a child in violation of WIS. STAT. § 948.02(1) (1991-92).² Count 1 alleged that Koller had penis-to-vagina intercourse with Kelly W. The remaining four counts related to Koller's contact with Katherine D.: Count 2 alleged hand-to-breast contact, Count 3 alleged penis-to-vagina intercourse, Count 4 alleged mouth-to-vagina contact, and Count 5 alleged penis-to-vagina intercourse.

¶ 3. At trial, Kelly W. testified that in 1993, when she was eleven years old, she was at Koller's house. Kelly W. was a friend of Koller's daughter and had been asked to baby-sit a younger brother. Kelly W. said she was on the porch when Koller told her she had a phone call. When she entered the house, Koller pushed her down on the living room floor, removed her shorts and underwear, and forced his penis into her vagina.

¶ 4. Katherine D. testified that in 1991, when she was eight years old, Koller was at her house visiting her family. That night, Koller came into Katherine D.'s bedroom, unzipped her nightgown, and rubbed her bare chest. Later, in the living room, Koller pulled up her nightgown and pulled down her underwear, then touched her vagina with his hands, his mouth, and his penis. She testified that Koller put his penis into her vagina two separate times and put his mouth on her vagina for a couple of minutes.

¶ 5. The jury found Koller guilty of all five charges and Koller filed postconviction motions with the same claims he now pursues on appeal. The trial court denied the motions and this appeal followed.

II. Analysis

A. Standards Applicable To Ineffective Assistance Of Counsel Claims

¶ 6. Three of Koller's claims involve the contention that he received ineffective assistance of counsel. We set forth here the generally applicable standards for such claims.

[1]

¶ 7. A defendant alleging ineffective assistance of counsel bears the burden of showing that his trial counsel's performance was deficient and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990).

[2, 3]

¶ 8. The function of a court assessing a claim of deficient performance is to determine whether counsel's performance was objectively reasonable. See State v. Kimbrough, 2001 WI App 138, ¶¶ 31-35, 246 Wis. 2d 648, 630 N.W.2d 752

. In making this determination, the court may rely on reasoning which trial counsel overlooked or even disavowed. See id. at ¶¶ 24, 31. Courts "do not look to what would have been ideal, but rather to what amounts to reasonably effective representation." State v. McMahon, 186 Wis. 2d 68, 80, 519 N.W.2d 621 (Ct. App. 1994). Professionally competent assistance encompasses a "wide range" of behaviors. Strickland, 466 U.S. at 689. "Review of counsel's performance gives great deference to the attorney and every effort is made to avoid determinations of ineffectiveness based on hindsight." Johnson, 153 Wis. 2d at 127.

[4, 5]

¶ 9. Showing prejudice means showing that counsel's alleged errors actually had some adverse effect on the defense. Strickland, 466 U.S. at 693. The defendant must show the alleged deficient performance "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. The defendant cannot meet this burden by simply showing that an error had some conceivable effect on the outcome. Id. at 693. Instead, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694; State v. Moats, 156 Wis. 2d 74, 101, 457 N.W.2d 299 (1990).

[6, 7]

¶ 10. Whether trial counsel's actions constitute ineffective assistance presents a mixed question of fact and law. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). We will not reverse the trial court's factual findings regarding counsel's actions unless those findings are clearly erroneous. Id. at 634. Whether trial counsel's performance was deficient, and whether that behavior prejudiced the defense, are questions of law we review de novo. Id.

B. Voir Dire

¶ 11. Koller argues that he was denied effective assistance of counsel because his trial attorney failed to sufficiently question several prospective jurors about their personal experiences with sexual assault and sexual assault victims. Koller tacitly concedes that the record does not support a finding that any of the jurors who sat on his case were biased. He nonetheless asserts that his trial counsel's failure to properly pursue indications of possible bias during voir dire might have resulted in a biased juror escaping detection. ¶ 12. The well-established burden placed on Koller is to show both deficient performance and resulting prejudice. However, we need not decide whether Koller's counsel performed deficiently during voir dire because we conclude that Koller has failed to show prejudice. See State v. Sanchez, 201 Wis. 2d 219, 237-39, 548 N.W.2d 69 (1996)

.

¶ 13. Koller spends much time trying to persuade this court that his counsel performed deficiently during voir dire, but he does not attempt to show resulting prejudice. In that regard, Koller merely states "[i]t would be impossible to prove that [he] would have been acquitted but for his counsel's deficiency at jury selection." Koller apparently assumes that showing prejudice in this context means showing that a differently composed jury would have acquitted him. He seems to be saying that, because this is an impossible task, he should be relieved of his burden of showing prejudice.

¶ 14. Koller misperceives the issue. He was entitled to an unbiased jury, regardless of the outcome of his trial. See State v. Brunette, 220 Wis. 2d 431, 439, 583 N.W.2d 174 (Ct. App. 1998)

("The right to an impartial jury is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution as well as the principle of due process."). The prejudice issue here is whether his counsel's performance resulted in the seating of a biased juror, not whether a differently composed jury would have acquitted him. See State v. Traylor, 170 Wis. 2d 393, 400-01, 489 N.W.2d 626 (Ct. App. 1992); see also State v. Lindell, 2001 WI 108, ¶ 81, 245 Wis. 2d 689, 629 N.W.2d 223.

¶ 15. Accordingly, at the postconviction stage Koller needed to show that if his trial counsel had asked more or better questions, those questions would have resulted in the discovery of bias on the part of at least one of the jurors who actually decided his case. He might have done this by calling suspect jurors as witnesses at his postconviction hearing and asking them the questions he now claims his trial counsel should have asked. There is nothing unusual about this sort of retroactive determination of juror bias. E.g., State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999)

(postconviction hearing conducted to determine whether juror who gave an erroneous answer during voir dire was actually biased). However, Koller made no such showing, and his assertion of possible juror bias is mere speculation. See State v. Erickson, 227 Wis. 2d 758, 774, 596 N.W.2d 749 (1999) (speculation is insufficient to satisfy the prejudice prong of Strickland).

[8]

¶ 16. Therefore, based on Koller's failure to show prejudice, we reject his claim that he was denied effective assistance of counsel during voir dire.

C. Closing Argument

¶ 17. Koller argues that he was denied effective assistance of counsel during closing argument. He contends that his trial counsel deficiently failed to ask for acquittal and to emphasize the State's burden of proving the elements beyond a reasonable doubt. Koller also complains that his counsel suggested, in the following passage from closing argument, that Koller was guilty:

Now, what I am addressing to you is that if in fact that happened as Katherine D[.] said, that it did not happen to the extent certainly that four separate violations took place at or about that same time in the living room, three of which would be approximately in the living room. One would have been [in] the bedroom, the touching while she was in bed.

¶ 18. The burden placed on...