State v. Pico

Decision Date15 June 2018
Docket NumberNo. 2015AP1799-CR,2015AP1799-CR
Citation914 N.W.2d 95,2018 WI 66,382 Wis.2d 273
Parties STATE of Wisconsin, Plaintiff-Appellant, v. Anthony R. PICO, Defendant-Respondent-Petitioner.
CourtWisconsin Supreme Court

For the defendant-respondent-petitioner, there were briefs filed by Tracey A. Wood, Sarah M. Schmeiser, and Tracey Wood & Associates, Madison. There was an oral argument by Anthony Cotton.

For the plaintiff-appellant, there was a brief filed by Sarah L. Burgundy, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Sarah L. Burgundy.

An amicus curiae brief was filed on behalf of Wisconsin Association of Criminal Defense Lawyers by Robert R. Henak and Henak Law Office, S.C., Milwaukee.


¶ 1 A jury convicted Anthony R. Pico of sexually assaulting a young girl.1 Mr. Pico believes there is a reasonable probability that, absent his trial counsel's alleged constitutional ineffectiveness, this conviction would not have occurred. The circuit court agreed, and so set aside his conviction.2 The court of appeals did not agree, and so reinstated the conviction.3

¶ 2 Mr. Pico asked us to review his case because he believes the court of appeals did not properly defer to the circuit court's findings of fact when conducting the ineffective assistance of counsel analysis required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The State, on the other hand, believes the court of appeals decided the matter correctly and that it was the circuit court that erred when it allowed an expert to testify about the reasonableness of defense counsel's representation. Finally, Mr. Pico argues that if we agree with the State, then we should send the case back to the circuit court because his sentence was improperly enhanced based on his continued assertion of innocence during the sentencing phase of this matter.

¶ 3 These arguments call on us to review the following three issues. First, whether the court of appeals improperly substituted the circuit court's findings of fact with its own when it assessed the sufficiency of trial counsel's performance. Second, whether an expert witness may testify about the reasonableness of trial counsel's performance. And third, whether the circuit court improperly relied on Mr. Pico's lack of remorse when it fashioned his sentence. With respect to the first issue, we conclude that the court of appeals conducted the Strickland analysis properly and that Mr. Pico's trial counsel performed as required by the constitution. As to the second, we hold that expert testimony at a Machner 4 hearing regarding the reasonableness of trial counsel's performance is not admissible. And finally, we hold that the circuit court did not err when it imposed sentence on Mr. Pico.


¶ 4 D.T., a primary-school student, said Mr. Pico put his hand inside her pants and touched her vagina twice while he was volunteering in her classroom. She reported the incident to her mother that evening (a Friday), who in turn informed D.T.'s school the following Monday. Upon learning of the incident, D.T.'s school contacted the police.

¶ 5 Detective Andrew Rich met Mr. Pico in his home to investigate the event. During at least part of the interview, Detective Rich used what is known as the "Reid technique." This technique involves telling the interviewee that law enforcement officials have certain incriminating evidence (which they do not, in fact, have), in the hope that the interviewee will disclose factually accurate details about the event in question. For example, while discussing the event with Mr. Pico (and without identifying D.T. as the victim), Detective Rich told Mr. Pico that there were video cameras in the classroom, that male DNA had been found on the victim's clothing in the area she said she was touched, and that another student had "partially substantiated" the complainant's allegation. None of that was true, but when asked if any of this made sense to him, Mr. Pico stated "[y]eah, I remember." Mr. Pico then provided D.T.'s name and described how he "tickled" and massaged her leg. Further questioning resulted in Mr. Pico's acknowledgement that, in the course of this behavior, he had moved his hand under her pants, but claimed it was inadvertent. Detective Rich accused Mr. Pico of putting his hand down D.T.'s pants twice and that he had done so "intentionally rather than just by mistake." Mr. Pico responded "I don't know. I don't—I don't recall ever doing it the second time, but it shouldn't have happened the first time, right." And when Detective Rich suggested that, "[o]nce you walked out of that class I bet you were—well, you were probably just sick to your stomach," Mr. Pico responded "Yes."

¶ 6 The State charged Mr. Pico with one count of first-degree sexual assault of D.T., contrary to Wis. Stat. §§ 948.02(1)(e) and 939.50(3)(b) (2011-12).5 The case went to trial, following which the jury found Mr. Pico guilty as charged. He received his sentence in due course, during which the circuit court commented on Mr. Pico's lack of remorse:

What I mean when I say that is acknowledging your conduct ... I will consider whether or not you demonstrate remorse as a part of my sentence.
I'm offended that you don't have the courage to recognize, and don't give me a half story of I touched her but not enough, I didn't touch her in the way she said. I don't accept it, Mr. Pico. That's half a loaf.

¶ 7 Mr. Pico filed a postconviction motion seeking a new trial and resentencing, asserting that his trial counsel provided constitutionally-inadequate assistance because, inter alia, he failed to investigate an old brain trauma. Twenty years before these events, Mr. Pico had suffered a motorcycle accident that resulted in an injury to the frontal lobe of his brain. The injury caused Mr. Pico to experience double vision, for which he still wears an eyepatch. The eyepatch, Mr. Pico says, should have alerted trial counsel to the need to investigate his mental capacity. That investigation, he claims, would have led to his medical records, and the records would have caused a reasonable attorney to suggest to his client that he may wish to consider a plea of not guilty by reason of mental disease or defect.6 Mr. Pico believes the records also would have provided support for a motion to suppress the statements he made to Detective Rich because the injury left him unusually susceptible to the "Reid technique" Detective Rich had used.

¶ 8 Mr. Pico's motion also claimed his counsel was ineffective because of several alleged errors during the course of his trial. He says his trial counsel should have presented an expert to establish that the "Reid technique" can produce false confessions. Additionally, he faults his counsel for not presenting an expert witness in response to Ms. Sarah Flayter, a child advocacy interviewer, who testified for the State about her forensic interview of D.T. He also believes his counsel should have objected to some of Detective Rich's trial testimony, as well as to some of the statements Detective Rich made during Mr. Pico's recorded interview, which were played for the jury. Further, he faulted trial counsel for not introducing evidence that D.T. had just learned about "good touches" and "bad touches" in school. And finally, he thinks his counsel should have called Mr. Pico's wife as a witness to explain that their daughter has a sensory disorder and that they have learned that massaging her leg calms her.

¶ 9 The postconviction motion's final assignment of error relates to the alleged enhancement of Mr. Pico's sentence for failing to show remorse. He did not show remorse, Mr. Pico says, because he is innocent of the crime for which he was convicted. Increasing the sentence of a defendant who does not demonstrate remorse because he maintains his innocence, he argues, comprises punishment for exercising his right to remain silent.7

¶ 10 The circuit court conducted a Machner hearing at which it received testimony from several witnesses, including Mr. Pico's trial counsel and an attorney who testified about the reasonableness of trial counsel's representation. The circuit court concluded that Mr. Pico's counsel had performed deficiently and, although none of the errors standing alone prejudiced Mr. Pico, the cumulative effect was to deny him the effective assistance of counsel. Consequently, the court vacated the conviction.

¶ 11 The State appealed, arguing that Mr. Pico's counsel had not provided ineffective assistance. The State also asserted it was improper for the defendant to introduce expert testimony on the reasonableness of defense counsel's performance for purposes of the Strickland analysis. The court of appeals reversed the circuit court and reinstated Mr. Pico's conviction because it determined that trial counsel's representation was not deficient. However, it did not address the Strickland expert testimony question, nor did it address Mr. Pico's sentencing claim because he did not raise the issue in a cross-appeal.

¶ 12 We granted Mr. Pico's petition for review, and now affirm.


¶ 13 An ineffective assistance of counsel claim presents a mixed question of fact and law. State v. Tourville, 2016 WI 17, ¶ 16, 367 Wis. 2d 285, 876 N.W.2d 735. We will not reverse the circuit court's findings of fact unless they are clearly erroneous. Id."Findings of fact include the circumstances of the case and the counsel's conduct and strategy.’ " State v. Thiel, 2003 WI 111, ¶ 21, 264 Wis. 2d 571, 665 N.W.2d 305 (citation omitted). We independently review, as a matter of law, whether those facts demonstrate ineffective assistance of counsel. Id.

¶ 14 The imposition of a criminal sentence involves the circuit court's exercise of discretion. We apply the "erroneous exercise of discretion" standard in reviewing such decisions. State v. Loomis, 2016 WI 68, ¶ 30, 371 Wis. 2d 235, 881...

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