State v. Prineas

• Decision Date: 04 February 2009
• Docket Number: No. 2007AP1982-CR.,2007AP1982-CR.
• Citation: 766 N.W.2d 206,2009 WI App 28
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Anthony L. PRINEAS, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

766 N.W.2d 206

2009 WI App 28

STATE of Wisconsin, Plaintiff-Respondent, v. Anthony L. PRINEAS, Defendant-Appellant.^†

No. 2007AP1982-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs October 8, 2008.

Opinion Filed February 4, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Raymond M. Dall'osto and Kathryn A. Keppel of Gimbel, Reilly, Guerin & Brown, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James M. Friemuth, assistant attorney general, and J.B. Van Hollen, attorney general.

Before BROWN, C.J., ANDERSON, P.J., and SNYDER, J.

¶ 1 SNYDER, J

Anthony L. Prineas appeals from a judgment of conviction on two counts of second-degree sexual assault and from an order denying postconviction relief. He contends that the court erroneously denied his request to substitute counsel prior to trial, allowed inadmissible testimony into evidence during the jury trial, imposed an unduly harsh sentence, and failed to grant postconviction relief for ineffective assistance of trial counsel. We affirm the judgment and order of the circuit court.

BACKGROUND

¶ 2 On April 24, 2004, residents of a fraternity house in Whitewater hosted a party. Prineas had once been a member of the fraternity. Keri C. and three friends attended the party that night. Keri drank several alcoholic beverages while at the party and at some point she encountered Prineas. Prineas, who was also drinking that night, does not dispute that he had sexual intercourse with Keri during the party; rather, he disputes the number and variation of sexual acts that occurred and whether the acts were consensual.

¶ 3 Keri went to the police the next day, Sunday, April 25. She reported that she was assaulted by Prineas and provided them with the bra that she had worn to the party. After meeting with the police, Keri went to the hospital for a sexual assault examination. The State subsequently charged Prineas with six counts of second-degree sexual assault, including four counts arising from penis to vagina penetration, one count arising from penis to anus penetration, and one count arising from ejaculation on the victim.

¶ 4 Prineas hired an attorney to represent him. On October 25, 2004, approximately one week before the trial date, Prineas filed a motion asking the court's permission for his attorney to withdraw, to substitute counsel, and for a continuance of the trial date. Prineas had consulted a different attorney and paid a retainer to that attorney conditioned on the substitution of counsel and postponement of the trial. The court held a hearing on the motion two days later. The State advised the court that Keri and her family did not want the trial delayed because Keri wanted the case to "be done so she could get on with her life." The court stated that it would not grant a continuance so close to the trial date unless Prineas or his counsel could "give [the court] some extraordinary reason other than just a simple desire to change [attorneys] at this late date." Because no explanation was offered and because the newly retained attorney could not be ready for the trial as scheduled, the court denied the motion.

¶ 5 A three-day jury trial took place in November 2004. The State presented testimony from several witnesses, including Patricia Stephan, a registered nurse and a certified sexual assault nurse examiner. Stephan had performed the sexual assault examination on Keri the day after the fraternity party. During her testimony, Stephan described an abrasion on Keri's labia minora and indicated that the abrasion was "consistent with intercourse that occurred by force." Stephan also found bruises on Keri's back and buttocks. She described a bruise on Keri's buttock to be in the shape of a hand print and stated the bruise was consistent with the type seen when someone has been hit. Over objection by Prineas, Stephan was allowed to tell the jury what Keri said during the sexual assault exam. Stephan also testified that, to the best of her knowledge, she had never had a sexual assault complainant give her an inaccurate history during an exam.

¶ 6 The jury convicted Prineas of two counts of sexual assault and acquitted him of the remaining four. The circuit court sentenced Prineas on February 3, 2005. On the first count, the court imposed a sentence of ten years' initial confinement and ten years' extended supervision. On the second count, the court withheld sentence and ordered a concurrent term of thirty years of probation.

¶ 7 Prineas moved for postconviction relief, seeking a new trial or, in the alternative, resentencing. He argued that his trial counsel's performance was deficient and prejudicial, that the circuit court erred when it did not grant an adjournment to accommodate Prineas' new counsel of choice, that the court relied on inappropriate factors at sentencing, and that his sentence was excessive. The circuit court held an evidentiary hearing and ultimately denied the postconviction motion in all respects. Prineas appeals.

DISCUSSION

¶ 8 Prineas presents four issues for our review. First, he contends that portions of Stephan's testimony were inadmissible under State v. Jensen, 147 Wis.2d 240, 432 N.W.2d 913 (1988), and State v. Haseltine, 120 Wis.2d 92, 352 N.W.2d 673 (Ct.App. 1984). He also argues that the court erred when it denied his motion to substitute counsel prior to trial. Prineas then challenges his sentence on grounds the court improperly considered the charges on which he was acquitted and imposed an unduly harsh and excessive sentence. Finally, he argues that the court erred when it denied his postconviction claim of ineffective assistance of counsel.

Jensen/Haseltine evidence

¶ 9 We begin with Stephan's testimony. Wisconsin law holds that "[n]o witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth." Haseltine, 120 Wis.2d at 96, 352 N.W.2d 673. An expert may not "convey to the jury his or her own beliefs as to the veracity" of a witness. Jensen, 147 Wis.2d at 256-57, 432 N.W.2d 913. Prineas argues that Stephan's testimony that sexual assault complainants had never provided her with an inaccurate history improperly vouched for Keri's truthfulness. Further, he points to Stephan's testimony that Keri's labial abrasion was consistent with forcible sexual intercourse as impermissible Jensen/Haseltine evidence.

¶ 10 The State responds that Prineas failed to preserve the issue because he did not object on these grounds at trial. To preserve the right to appeal on admissibility of evidence, a litigant must inform the circuit court of the specific grounds for the objection. See State v. Tutlewski, 231 Wis.2d 379, 384, 605 N.W.2d 561 (Ct.App. 1999). Prineas objected to Stephan's testimony on hearsay grounds and on grounds a proper foundation was not presented for Stephan's opinion. He did not object on Jensen/Haseltine grounds that the testimony improperly vouched for the veracity of the victim. We agree with the State that the argument is waived.

¶ 11 Although Prineas failed to object to the testimony as Jensen/Haseltine evidence, he now asks us to reverse under the plain error rule or in the interests of justice. WISCONSIN STAT. § 752.35 (2005-06)¹ gives the court of appeals authority to examine the record and, in the interest of justice, reverse the judgment regardless of whether a proper objection was made at trial. We exercise our discretionary reversal power only sparingly. See Vollmer v. Luety, 156 Wis.2d 1, 11, 456 N.W.2d 797 (1990). The plain error rule requires that the objectionable testimony "so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Wolff, 171 Wis.2d 161, 167, 491 N.W.2d 498 (Ct.App.1992) (citation omitted).

¶ 12 As the circuit court noted, Stephan did not offer an opinion about the cause of Keri's abrasion, she stated that the abrasion was "consistent" with an injury that resulted from "penetration." In fact, Stephan acknowledged that she did not know what caused the abrasion. We have allowed such testimony in the past. See, e.g., State v. Ross, 203 Wis.2d 66, 79-81, 552 N.W.2d 428 (Ct.App.1996) (allowing testimony because the nurse did not testify that the victim's physical condition was the result of sexual assault). Furthermore, we observe that Stephan's objectionable statement regarding patient histories was elicited by defense counsel during cross-examination. Counsel likely expected Stephan to testify that some complainants are not forthcoming but, surprisingly, she did not. Our review of the record, particularly the whole of Stephan's testimony, convinces us that the exercise of our discretionary reversal power is not required here.

Substitution of counsel and motion for continuance

¶ 13 Prineas next argues that the circuit court erred when it denied his motion for substitution of counsel one week prior to the trial date. Decisions related to the substitution of counsel are within the sound discretion of the circuit court. See Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). When making a determination whether to allow the defendant's counsel of choice to participate, the circuit court must balance that right against the public's interest in the prompt and efficient administration of justice. State v. Lomax, 146 Wis.2d 356, 360, 432 N.W.2d 89 (1988) (the court should strike a proper balance between the defendant's constitutional right to counsel with society's interest in efficient administration of justice). Several factors assist the court in balancing the relevant interests, for example: the length of delay requested; whether competent counsel is presently available and prepared to try the case; whether prior continuances have been requested and received by the defendant; the inconvenience to the parties, witnesses and the court; and...