State v. Nielsen

• Decision Date: 31 July 2001
• Docket Number: No. 00-3224-CR.,00-3224-CR.
• Citation: 2001 WI App 192,247 Wis.2d 466,634 N.W.2d 325
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William NIELSEN, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

247 Wis.2d 466

2001 WI App 192

634 N.W.2d 325

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

No. 00-3224-CR.

Court of Appeals of Wisconsin.

Submitted on briefs May 21, 2001.

Decided July 31, 2001.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Waring R. Fincke of West Bend.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Diane M. Welsh, assistant attorney general.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. CANE C.J.

William Nielsen appeals from a judgment convicting him of second-degree sexual assault and from an order denying his motion for postconviction relief. Nielsen seeks a new trial based on ineffective assistance of counsel and on his contention that the trial court erroneously denied his objection to the State's use of two letters at trial. For the reasons discussed below, we disagree and affirm the judgment and order.

STATEMENT OF FACTS

¶ 2. Nielsen was convicted of second-degree sexual assault of his former girlfriend, T.H. T.H. and Nielsen had a brief relationship during which they lived together in Wisconsin. When the relationship ended, Nielsen went to Chicago. Weeks later he returned to Wisconsin to stay with T.H. During Nielsen's visit, he slept on the living room couch.

¶ 3. T.H. testified that late one night, Nielsen came home drunk, entered T.H.'s bedroom and forcibly had sexual intercourse with her. Nielsen denied that the incident occurred. Because T.H. did not immediately report the incident to law enforcement, no direct physical evidence of the assault was available. Instead, the primary evidence against Nielsen was T.H.'s testimony and the testimony of others who saw a bruise on her breast.

¶ 4. Nielsen's theory of defense was that T.H. fabricated the sexual assault because she was disappointed that they did not renew their romantic relationship when Nielsen returned to Wisconsin. Nielsen argued that T.H. learned of Nielsen's relationship with another woman, Marilize, to whom he is now married, and that T.H. lied to get back at Nielsen. A jury found Nielsen guilty and he was sentenced to seventy-eight months in prison.

¶ 5. Nielsen filed a motion for postconviction relief seeking a new trial on numerous grounds, including ineffective assistance of counsel, plain error and a new trial in the interest of justice. The trial court denied his motion and this appeal followed.

ISSUES

¶ 6. Nielsen argues that five specific trial errors entitle him to a new trial. First, he contends that the trial court erroneously allowed the State to use two letters to impeach a defense witness that were not previously disclosed to the defense. Nielsen also contends, in the alternative, that trial counsel was ineffective for failing to more fully investigate, discover the existence of the letters and strenuously object to their use at trial.

¶ 7. Next, Nielsen raises four unobjected-to errors in the context of an ineffective assistance of counsel claim: (1) counsel failed to make appropriate peremptory challenges; (2) counsel failed to object to the admission of testimony concerning Nielsen's post-Miranda² statement to police; (3) counsel failed to object to testimony concerning Nielsen's alleged theft of T.H.'s compact discs (CDs) and necklace; and (4) counsel failed to object to the prosecutor's closing argument.

[1]

¶ 8. Finally, Nielsen argues that the same errors entitle him to a new trial under the "plain error" and "new trial in the interest of justice" doctrines. Although Nielsen provides several paragraphs of general information on these doctrines, he fails to specifically apply the doctrines to the alleged errors in the case. We decline to develop Nielsen's argument for him and, therefore, will not specifically address these doctrines with respect to each alleged error. See Estrada v. State, 228 Wis. 2d 459, 465 n.2, 596 N.W.2d 496 (Ct. App. 1999) (We need not consider arguments not developed.). However, we note generally that we are confident that the alleged errors do not constitute plain error and do not justify granting a new trial in the interest of justice.

STANDARDS OF REVIEW

¶ 9. Nielsen's first argument is that the trial court erroneously exercised its discretion by allowing the State to cross-examine Nielsen and Marilize about two letters she wrote to him, despite the fact that the State had not disclosed the letters to the defense. Nielsen contends the State's action constituted a discovery abuse and that the trial court should not have allowed the State to use the letters.

[2]

¶ 10. WISCONSIN STAT. § 971.23(7)³ requires the trial court to exclude evidence that is not produced pursuant to a discovery demand unless "good cause is shown for failure to comply." State v. Martinez, 166 Wis. 2d 250, 257, 479 N.W.2d 224 (Ct. App. 1991). Whether a party has satisfied its burden is a question of law that we review without giving deference to the trial court's conclusion. Becker v. State Farm Mut. Auto. Ins. Co., 141 Wis. 2d 804, 811, 416 N.W.2d 906 (Ct. App. 1987). [3,4]

¶ 11. Nielsen's remaining arguments concern numerous trial errors to which his counsel did not object. It is axiomatic that to preserve a proposed trial court error for review, trial counsel or the party must object in a timely fashion with specificity to allow the court and counsel to review the objection and correct any potential error. Absent such a procedure, the administrative rule of waiver may be invoked. In criminal cases, however, the normal procedure is to address the consequences of the rule "within the rubric of the ineffective assistance of counsel." State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999). We follow that procedure here.

[5-7]

¶ 12. A defendant claiming ineffective assistance of counsel must prove both that his or her lawyer's representation was deficient and, as a result, that he or she suffered prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Johnson, 133 Wis. 2d 207, 216-17, 395 N.W.2d 176 (1986). If we conclude that the defendant has not proven one prong, we need not address the other. See Strickland, 466 U.S. at 697. To prove deficient performance, a defendant must show specific acts or omissions of counsel that were "outside the wide range of professionally competent assistance." Id. at 690. We "strongly presume" counsel has rendered adequate assistance. Id.

[8,9]

¶ 13. To demonstrate prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. In applying this principle, reviewing courts are instructed to consider the totality of the evidence before the trier of fact. State v. Johnson, 153 Wis. 2d 121, 129-30, 449 N.W.2d 845 (1990).

[10,11]

¶ 14. Whether a lawyer gives a defendant ineffective assistance is a mixed question of law and fact. Johnson, 133 Wis. 2d at 216. The trial court's findings of fact will be upheld unless they are clearly erroneous. State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985). Whether proof satisfies either the deficiency or the prejudice prong is a question of law that this court reviews without deference to the trial court's conclusions.⁴ See id.

DISCUSSION

A. Prosecutor's use of letters not previously disclosed to the defense

¶ 15. Nielsen's first argument is that the trial court erroneously exercised its discretion by allowing the State to cross-examine Nielsen and Marilize about two letters she wrote to him before they were married. Neither letter had been provided to Nielsen in the discovery process.

¶ 16. The first letter was introduced when the State cross-examined Nielsen. Although Nielsen's counsel did not immediately object when the State first asked Nielsen about the letter, counsel objected when the State asked Nielsen to read the letter aloud. A sidebar conference was held. Thereafter, on the record, Nielsen's counsel objected "to the letter on the grounds that it wasn't previously provided to me by way of discovery."

¶ 17. The State responded that it did not know that the letter was going to be a relevant document until after Nielsen testified. The trial court overruled Nielsen's objection and Nielsen read the letter aloud. Marilize was also asked to read the letter aloud. The tone of the letter suggested that Marilize may have romantic feelings for Nielsen, arguably contradicting Nielsen's testimony that he and Marilize were not romantically involved before he began a relationship with T.H. Nielsen also testified that the letter had been in his personal belongings and that T.H. "[a]pparently ... took it out of my personal stuff."

¶ 18. The second letter was introduced, without objection by Nielsen, when the State cross-examined Marilize. Marilize was asked to read parts of her letter, which was written days after the alleged sexual assault. The letter contradicted her previous testimony about her relationship and visits with Nielsen.

[12,13]

¶ 19. Nielsen argues that the State's use of the letters violated WIS. STAT. § 971.23(1)(e) and (g), and that his discovery demand was broad enough to include a request for the letters.⁵ Our review of a claimed discovery violation under WIS. STAT. § 971.23 is subject to a harmless error analysis. See State v. Koopmans, 202 Wis. 2d 385, 396, 550 N.W.2d 715 (Ct. App. 1996). The test of harmless error is whether the appellate court in its independent determination can conclude there is sufficient evidence, other than and uninfluenced by the inadmissible evidence, that would convict the defendant beyond a reasonable doubt. See Wold v. State, 57 Wis. 2d 344, 356, 204 N.W.2d 482 (1973). Assuming, without deciding, that the State was required to disclose the letters before...