State v. Smith
| Decision Date | 06 July 1988 |
| Docket Number | No. 87-1542-CR,87-1542-CR |
| Citation | 145 Wis.2d 905,430 N.W.2d 379 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Daniel J. SMITH, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment and an order of the circuit court for Waukesha county: Mark Gempeler, Judge.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Daniel J. Smith was convicted of two counts of second-degree sexual assault involving B.J.S., who was fifteen years old at the time of the assaults. See sec. 940.225(2)(e), Stats. Smith raises several issues on appeal, including various evidentiary matters, ineffective assistance of trial counsel, adequacy of the notice aspect of the complaint and newly-discovered evidence. We find none of Smith's arguments persuasive. Therefore, we affirm the judgment of conviction and order denying postconviction relief.
In October 1985, B.J.S. informed a school counselor that she had been sexually assaulted by Smith, sometime in June 1985 at the Ottawa State Campground. Additional facts will be set forth as necessary to address Smith's arguments.
We first address two trial court rulings precluding Smith from introducing witnesses because defense counsel had not included them on the witness list provided to the state under sec. 971.23(3), Stats. On appeal, Smith challenges the merits of the ruling and argues that counsel's failure to timely identify the witnesses constituted ineffective assistance of counsel.
On rebuttal, Smith sought to introduce evidence of camper registration records for the Ottawa Lake Campground for the month of July 1985. The records were to be introduced through the testimony of a Department of Natural Resources warden. The trial court refused to allow the evidence because the warden had not been included on the list of potential defense witnesses provided to the state under sec. 971.23, Stats. On appeal, Smith contends that his constitutional rights to present witnesses in his defense and to due process were violated by the trial court's ruling.
We need not address the merits of the trial court's ruling because we conclude that Smith's constitutional rights were not violated. A defendant seeking to establish a constitutional infringement from the exclusion of evidence must make a "plausible showing" that the evidence "would have been both material and favorable to his defense." See United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). Smith has not done so in this case.
B.J.S. testified that the assaults occurred at the Ottawa Lake Campground and that Smith was driving a blue Volkswagen. The records which Smith sought to introduce as rebuttal evidence showed that no "Daniel Smith" had registered for a campsite at the Ottawa Lake Campground during July 1985. At trial, a detective testified that Smith had admitted meeting B.J.S. at the Ottawa Lake Campground but denied any sexual contact with B.J.S. At the postconviction hearing, the state presented evidence that a "Daniel Smith" had registered for a campsite in an adjoining campground for two nights, departing July 21, 1985. The registered vehicle was a Volkswagen.
Under these circumstances, the evidence which Smith sought to introduce was neither material nor favorable to his defense. By his own statement, Smith was with B.J.S. at the Ottawa Lake Campground. Evidence that no "Daniel Smith" had registered at that particular campground is not overly favorable in light of records which reflect the registration of a "Daniel Smith" at an adjoining campground and driving the same make of automobile.
Smith also makes the related argument that trial counsel's failure to identify the warden as a potential witness at trial constituted ineffective assistance of counsel. This contention fails.
A defendant claiming denial of the effective assistance of counsel must establish both that counsel's performance was deficient and that the defendant was prejudiced by the deficient performance. State v. Teynor, 141 Wis.2d 187, 209, 414 N.W.2d 76, 84 (Ct.App.1987). Whether a deficient performance was prejudicial to the defendant is a question of law. Id. at 210, 414 N.W.2d at 84. Prejudice is shown when there is a State v. Harvey, 139 Wis.2d 353, 375, 407 N.W.2d 235, 245 (1987), quoting Strickland v. Washington, 466 U.S. 668, 694 (1984).
Even assuming that counsel's performance was deficient because he failed to name the warden as a possible witness, the error was not prejudicial. The evidence which was to be introduced through the warden was neither material or favorable to the defense. Therefore, our confidence in the outcome is not undermined. See id. Smith was not prejudiced by counsel's conduct.
The trial court also ruled that Smith could not introduce expert testimony addressing the effects of alcohol use on perception and memory because the witness had not been included in the witness list provided to the state. We apply the same analysis to this evidence and conclude that its exclusion did not violate Smith's constitutional right to present a defense.
Smith picked up B.J.S. and her friend, A.C., in the early evening. Both B.J.S. and A.C. testified that Smith provided them beer while they drove around. B.J.S. testified that she drank beer and Jack Daniels and smoked marijuana on the night in question. She also testified that, prior to the assaults, she "wasn't feeling good" and she "crashed a little while."
Expert testimony is appropriate when the trier of fact "is faced with matters requiring special knowledge or skill or experience on subjects which are not within the realm of the ordinary experience of mankind." Kujawski v. Arbor View Health Care Center, 139 Wis.2d 455, 463, 407 N.W.2d 249, 252 (1987). That consumption of alcohol and drugs to the point of illness and "crashing" may impair recall of the incident is a matter of common knowledge. Expert testimony to establish that proposition was not required. Id. at 463, 407 N.W.2d at 252-53. Thus, the exclusion of the expert witness did not prevent Smith from presenting material and favorable evidence that was vital to his defense. See Valenzuela-Bernal, 458 U.S. at 867.
Like the camper registration records, the omission of the proposed expert testimony does not undermine our confidence in the reliability of the outcome. Thus, even assuming counsel erred by not including the expert on the defense witness list, Smith was not prejudiced by such error. See Harvey, 139 Wis.2d at 375, 407 N.W.2d at 245.
We next address the admission of testimony from a social worker who worked with B.J.S. that she believed B.J.S. was telling the truth about the incident. Defense counsel did not object to this inquiry, the final question on direct examination of the social worker. On appeal, Smith claims reversible error. Alternatively, Smith contends that counsel's failure to object constitutes ineffective assistance of counsel.
The state concedes that admission of this testimony was error under State v. Haseltine, 120 Wis.2d 92, 96, 352 N.W.2d 673, 676 (Ct.App.1984), which held that no witness should be allowed to give an opinion that another mentally and physically competent witness is telling the truth. The state argues, however, that the error was harmless.
In assessing whether an error is harmless, the question is whether there is a reasonable possibility that the error contributed to the conviction. State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985). The reviewing court must determine whether the error undermines the court's confidence in the outcome of the case. Id. at 545, 370 N.W.2d at 232. The effect of claimed error must be viewed in the context of the entire trial and upon consideration of the strength of untainted evidence. State v. Grant, 139 Wis.2d 45, 53-54, 406 N.W.2d 744, 748 (1987).
Applying that analysis to this case, we conclude that the error was harmless. In doing so, we recognize that B.J.S.'s credibility was a crucial issue at trial. However, the jury was properly instructed that it was the sole judge of witness credibility. We must assume that the jury heeded that instruction. See State v. Lukensmeyer, 140 Wis.2d 92, 110, 409 N.W.2d 395, 408 (Ct.App.1987). Moreover, the prosecutor did not refer to or argue from the social worker's answer. Thus, we are faced with a one-line error over a lengthy, three-day trial. The solitary nature of the error in the context of the entire trial mitigates any possible prejudicial effect on the jury. See State v. Brecht, 143 Wis.2d 297, 317-18, 421 N.W.2d 96, 104 (1988).
Smith also contends that trial counsel's failure to object to the question constitutes ineffective assistance of counsel. Initially, we note that counsel testified at the postconviction hearing that this evidence came in too quickly for him "to raise a fuss" over. Implicit in that statement is the recognition that an objection, interposed after the answer was already before the jury, would serve primarily to highlight the evidence in the eyes of the jury. Thus, an attorney's choice to not object is a strategic decision. A decision not to object does not fall below the objective standard of reasonableness. See Teynor, 141 Wis.2d at 210, 414 N.W.2d at 84.
Even if counsel's conduct were deemed deficient, Smith was not prejudiced by the deficiency. Direct evidence of B.J.S.'s intoxication on the night in question was before the jury. The jury was aware that B.J.S. had passed out prior to the assaults. Extrinsic evidence of B.J.S.'s character for truthfulness was introduced by...
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