State v. Smith

• Decision Date: 20 September 2022
• Docket Number: 2021AP72-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Darrell K. Smith, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent, v. Darrell K. Smith, Defendant-Appellant.

No. 2021AP72-CR

Court of Appeals of Wisconsin, District I

September 20, 2022

Not recommended for publication in the official reports.

APPEAL from a judgment and an order of the circuit court for Milwaukee County No. 2016CF1654: MARK A SANDERS and STEPHANIE ROTHSTEIN, Judges.

Before Brash, C.J., Donald, P.J., and Dugan, J.

DONALD, P.J.

¶1 Darrell K. Smith appeals from the judgment of conviction following a jury trial, for second-degree sexual assault, and an order denying his postconviction motion without an evidentiary hearing.^[1] Smith contends that he was deprived of his right to effective assistance of counsel because trial counsel failed to object to: (1) the admission of statements from a non-testifying sexual assault nurse examiner (SANE) in violation of Smith's constitutional right to confrontation; and (2) the admission of a Department of Corrections (DOC) photo of Smith, and testimony from two law enforcement officers, which highlighted that the photo was obtained from the DOC. Upon review, we conclude that Smith is entitled to a Machner evidentiary hearing on his ineffective assistance of counsel claims.^[2] Therefore, we reverse and remand.

BACKGROUND

¶2 According to the criminal complaint, on February 6, 2016 A.B. Was drinking with several friends, became intoxicated and went to the Rave Bar, in Milwaukee. The next thing A.B. remembered was waking up in the hospital. At the hospital, A.B. noticed that she was bleeding from her vagina and believed that someone may have had sex with her without her consent. A.B. later underwent a sexual assault examination. DNA swabs were taken and submitted to the Wisconsin State Crime Lab for analysis. A forensic analyst located semen on the swabs, mapped a DNA profile of the semen, and entered it into the Combined DNA Index System (CODIS). The DNA profile from the semen was determined to match the known profile of Smith. Smith was charged with second-degree sexual assault.

¶3 The case proceeded to a jury trial in 2018. Relevant to this appeal, at the start of the trial, the State indicated that C.H., the SANE who performed the examination of A.B. was unavailable, and L.K., the manager of the SANE program and a former SANE, would be testifying instead.^[3] Trial counsel objected based on the "best evidence rule," and the trial court overruled the objection.^[4]

¶4 During L.K.'s testimony, the State moved A.B.'s SANE records into evidence. L.K. testified that she did not do the SANE examination of A.B., and that it was C.H. who conducted the examination.

¶5 As part of L.K.'s testimony, the prosecutor had her read into the record, verbatim, what C.H. had written in the "Progress Notes - Encounter Notes" of the SANE records. The notes included:

Patient returned … accompanied by friend Tiffany who was with her last night at Rave and friend Molly. Patient reports she has returned to have evidence collected and report to police.

Patient reports she has not called police at this time and wishes for them to be contacted prior to being seen by the R.N. to speed up process.

Patient willing to be seen by R.N. while waiting for police arrival. Milwaukee Sensitive Crimes contacted by R.N. at 21:04. Notified that squad will be sent out.

The notes went on to state:

Patient reports she and friends had been drinking prior to going to the Rave to see a show. Patient states she is unsure of the exact quantity consumed but states it was a fair amount. Patient reports she was intoxicated when they left….

….

Patient reports she did not have a memory of having a drink once getting to the Rave. Patient has no further memory after arrival at the Rave until awakening at … about five a.m. this morning.

Patient reports from what she has been told by friends she and her friend Tiffany were in a cab and were kicked out of the cab. The patient's ex-boyfriend's friend witnessed this and brought them to his home at prior to midnight.

Patient reports she lost her ID, credit card, debit card and coat. Milwaukee Sensitive Crimes spoke with patient at [the sexual assault treatment center] to take report.

Patient had evidence collected and full head-to-toe exam. Patient reports genital exam done earlier in day. Patient declines photos at this time. Patient had all medications including emergency contraception earlier…. Reviewed home [medication] instructions with patient. Discharged, reviewed.

The prosecutor also asked L.K. about other information in the records, including the chain of custody evidence report,^[5] the anatomical diagrams, and A.B.'s description of the assault.

¶6 In addition, during the trial, the State moved into evidence a DOC photo of Smith that was shown to A.B. The following exchange took place with Detective Jon Charles:

STATE: Detective, I'm showing you what's been marked as State's Exhibit 1. Can you tell me what that is?

DET.: It's a department of correction-Wisconsin Department of Corrections photo of the defendant.

STATE: So is this a fair and accurate photograph of the picture that you showed [A.B.]?

DET.: I believe this is the picture I showed her.

STATE: And what makes you believe that?

DET.: When I showed it to her, it was a department of corrections photo. This is the photo that I personally placed in the-we have files in sensitive crimes. I placed this in a file, and that's where it was located.

(Emphasis added.)

¶7 Subsequently, the following exchange took place with Detective Jolene Del Moral:

STATE: Given that it appeared Mr. Smith was unknown to [A.B.], but his DNA had linked to her sex kit, what did you do to follow up with that investigation?

DET.: So normally when we have that type of information, what we would do is-a lot of times we would check our own database to see if the person would be on file with us. Mr. Smith was not on file with us. What we would do is normally get a picture to see if she knows him. He was not on file with us, so then my next option was to check the department of corrections, and he was on file.

....

STATE: Detective Del Moral, I'm showing you what's been marked as Exhibit 1. Do you recognize that?

DET.: Yes, I do.

STATE: And what it is?

DET.: That's the photo of Mr. Smith from the department of corrections.

(Emphasis added.) Trial counsel did not object, move to strike, or seek a limiting or curative instruction in regards to the DOC references.

¶8 Smith was found guilty, and filed a postconviction motion. Smith argued that the admission of C.H.'s statements, as relayed in the SANE records and L.K.'s testimony, constituted a Confrontation Clause violation, and trial counsel was ineffective for failing to object. Smith also argued that trial counsel was ineffective for failing to object to the admission of the DOC photograph, and the testimony from the two law enforcement officers, which highlighted for the jury that the photograph of Smith was obtained from the DOC.

¶9 The postconviction court denied the motion without an evidentiary hearing. The court found that there was no Confrontation Clause violation. The court also stated that trial counsel was not deficient for failing to challenge an area of unsettled law. In addition, the court found that there was not a reasonable probability that the references to the DOC as the source of the photo had any impact on the outcome of the trial. Smith appeals. Additional relevant facts are referenced below.

DISCUSSION

¶10 On appeal, Smith renews his argument that he was deprived of his right to effective assistance of counsel because trial counsel failed to object to: (1) the admission of C.H.'s statements, as relayed through the SANE records and L.K.'s testimony, on the grounds that the evidence violated Smith's constitutional right to confrontation and (2) the admission of the DOC photo of Smith, and the testimony from the two law enforcement officers, which highlighted that the photo of Smith was obtained from the DOC.

¶11 To prevail on a claim of ineffective assistance of counsel, a defendant must prove both that counsel's performance was deficient and that the defendant was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a defendant must point to specific acts or omissions by counsel that are "outside the wide range of professionally competent assistance." Id. at 690. To demonstrate prejudice, the defendant must show there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

¶12 When evaluating whether a defendant is entitled to an evidentiary hearing, we first independently determine "whether the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief." State v. Ruffin, 2022 WI 34, ¶27 401 Wis.2d 619, 974 N.W.2d 432. Even if, however, "the motion alleges sufficient facts, an evidentiary hearing is not mandatory if the motion presents only conclusory allegations or if the record as a whole conclusively demonstrates that the defendant is not entitled to relief." Id., ¶3; see also State v. Spencer, 2022 WI 56, ¶49, 403 Wis.2d 86, 976 N.W.2d 383. "Whether the record conclusively demonstrates that the defendant is entitled to no relief is also a question of law we review independently." Spencer, 403 Wis.2d 86, ¶23 (citation omitted). "If the record conclusively demonstrates the defendant is not entitled to relief, the circuit court has the discretion to decide whether to hold a hearing, which we review for an erroneous exercise of discretion." Id. ¶13 As discussed...