State v. Street

• Decision Date: 16 May 1996
• Docket Number: No. 95-2242-CR,95-2242-CR
• Citation: 551 N.W.2d 830,202 Wis.2d 533
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Edwin J. STREET, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 830

551 N.W.2d 830

202 Wis.2d 533

STATE of Wisconsin, Plaintiff-Respondent, v. Edwin J. STREET, Defendant-Appellant. ^d

No. 95-2242-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 11, 1996.

Opinion Released May 16, 1996.

Opinion Filed May 16, 1996.

For the defendant-appellant the cause was submitted on the briefs of Mark A. Eisenberg of Eisenberg Law Offices, S.C. of Madison.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, and Thomas J. Balistreri, Assistant Attorney General.

Before DYKMAN, SUNDBY and VERGERONT, JJ.

VERGERONT, Judge.

Edwin Street appeals from a judgment of conviction for sexual contact with a thirteen-year-old child in violation of § 948.02(2), STATS., ¹ and an order denying his motion for postconviction relief. Street contends: (1) he was denied effective assistance of counsel because his first attorney, who represented him through the preliminary hearing, had a conflict of interest; (2) he was denied effective assistance of counsel because both his first attorney and his second attorney failed to object to his bind over and both inadequately prepared for trial; (3) the trial court erred in admitting prior consistent statements under § 908.01(4)(a)2, STATS.; (4) certain comments made by the district attorney in closing argument constituted plain error under § 901.03(4), STATS.; and (5) the use of videotaped depositions at trial violated his confrontation rights under the United States and Wisconsin Constitutions. We reject each argument and affirm.

BACKGROUND

Street was charged with two counts of sexual contact with a minor. The first count alleged that Street had sexual contact with six-year-old B.L.S. in early to mid-July 1993. The second count alleged that Street had sexual contact with thirteen-year-old B.L.G. on July 13, 1993. The complaint was based on the written report of Marquette County Sheriff's Department Detective Thomas Schrank.

Street retained Attorney Daniel Sondalle to defend him against the charges. Sondalle was already representing Detective Schrank in a divorce action when he agreed to represent Street. Sondalle testified at the postconviction hearing that he was aware from the criminal complaint that Schrank was the investigating officer in the criminal case against Street. ² Sondalle discussed this with Schrank and Street, but did not obtain their written consent to simultaneously represent them. The divorce action was still pending at the time of the postconviction hearing.

After the initial appearance, the State filed a motion to allow the children to testify at trial via videotaped depositions pursuant to § 967.04(7)(a), STATS., ³ and to use a screen during the videotaped depositions to shield the children from Street. At the hearing on the motion, the State presented the testimony of Darlene Freeman, a psychotherapist who works with child victims of sexual abuse. Freeman testified that she had met with the children for five one-hour sessions. Freeman testified that it was difficult for each child to talk about her experiences with Street; that it would be traumatic for each to testify face-to-face with Street; and that a videotaped deposition using a screen would be in the best interests of each child. The trial court granted the State's motion and directed that the videotaped depositions be taken with a screen blocking Street's view of the children, but placed so that Street's counsel could observe the demeanor of the children. ⁴

Each child's testimony was videotaped at the preliminary hearing. At the conclusion of the hearing, the trial court determined that there was probable cause to believe that a felony had been committed by Street and bound Street over for trial. The information contained the same two counts as set forth in the criminal complaint.

Attorney Sondalle filed a motion to exclude the videotaped depositions from trial on the grounds that the State had not established the requirements set forth in § 967.04(7)(a) and (b), STATS., for use of a videotaped deposition, and that the use of the screen violated Street's confrontation rights under the United States and Wisconsin Constitutions. Sondalle then withdrew from the case and Attorney James Hublou was substituted as counsel. At the postconviction hearing, Sondalle testified that, although he knew that a "potential conflict of interest" existed from the time he began representing Street based on his simultaneous representation of Street and Schrank, he thought he might be able to plea bargain the case. After the preliminary hearing, he realized the case would proceed to trial and that "I must get out of the situation ... [b]ecause of the possible conflict of interest."

At the hearing on the motion to exclude the videotaped depositions, the State acknowledged that the trial judge who decided the State's motion for use of the videotaped depositions did not discuss the factors listed ins 967.04(7)(b), STATS. ⁵ However, the trial court stated that a review of the transcript of the hearing on the motion revealed that the standards established in § 967.04(7) had been met at the time the videotaped depositions were permitted.

Following a trial, the jury found Street not guilty of having sexual contact with B.L.S., but guilty of having sexual contact with B.L.G. Street's motion for postconviction relief was denied.

INEFFECTIVE ASSISTANCE OF COUNSEL

I. Conflict of Interest

Street alleges that he was denied his Sixth Amendment right to effective assistance of counsel because Attorney Sondalle had a conflict of interest that adversely affected his representation.

A defendant's right to effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution and art. I, § 7 of the Wisconsin Constitution. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984); State v. Wirts, 176 Wis.2d 174, 180, 500 N.W.2d 317, 318 (Ct.App.), cert. denied, 510 U.S. 894, 114 S.Ct. 257, 126 L.Ed.2d 209 (1993). Where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981). "The right to counsel guaranteed by the Constitution contemplates the services of an attorney devoted solely to the interests of his client." Von Moltke v. Gillies, 332 U.S. 708, 725, 68 S.Ct. 316, 324, 92 L.Ed. 309 (1948).

In order to establish a Sixth Amendment violation on the basis of a conflict of interest, a defendant who did not raise an objection at trial must demonstrate by clear and convincing evidence that his or her counsel had an actual conflict of interest and that the actual conflict of interest adversely affected his or her lawyer's performance. Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990) (quoting Strickland, 466 U.S. at 692, 104 S.Ct. at 2067); State v. Foster, 152 Wis.2d 386, 392, 448 N.W.2d 298, 301 (Ct.App.1989) (co-defendants). The defendant need not make the full showing of prejudice usually required under Strickland--that it is more likely than not that the outcome of the proceeding would have been different had the attorney acted properly. Rosenwald, 898 F.2d at 587. In Strickland, the United States Supreme Court explained:

In Cuyler v. Sullivan, [446 U.S. 335, 345-50, 100 S.Ct. 1708, 1716-19, 64 L.Ed.2d 333 (1980) ], the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties.... Even so, the rule is not quite the per se rule of prejudice that exists [when there is an "[a]ctual or constructive denial of the assistance of counsel altogether"]. Prejudice is presumed only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance."

Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. See also Foster, 152 Wis.2d at 393, 448 N.W.2d at 301 ("If the lawyer's performance for the complaining client is compromised by the dual representation, the client need not prove prejudice because prejudice is presumed.").

Since the pertinent facts are not disputed, whether the facts establish a constitutional violation is a question of law that we review de novo. See State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457, 465 (1984), habeas corpus granted on other grounds sub nom. Woods v. Clusen, 605 F.Supp. 890 (E.D.Wis.1985), aff'd, 794 F.2d 293 (7th Cir.1986).

We conclude that Attorney Sondalle had an actual conflict of interest. While Sondalle was representing Street, he was also representing Detective Schrank in a divorce proceeding. The fact that the simultaneous representation was in an unrelated civil matter makes no difference in the conflict of interest inquiry. Rosenwald, 898 F.2d at 587-88. The pressure on counsel is financial--he or she does not want to lose a client whether that client is seeking advice on a civil or criminal matter. Id. A lawyer's duty of loyalty to his or her client and to promote the client's interests exists in both the civil and criminal contexts. See SCR 20:1.7.

The interests of Street and Schrank were divergent. Cf. Foster, 152 Wis.2d at 394, 448 N.W.2d at 301. Street desired an acquittal and Schrank had an interest in a conviction. Schrank was the investigating officer in the case against Street. He interviewed the children and Street, referred the case to the district attorney, testified on behalf of the State, and sat with the district attorney at counsel table throughout the trial. For purposes of the criminal trial, Street and Schrank were adversaries.

However, while Attorney Sondalle had an actual conflict of interest, Street has not demonstrated by clear and convincing evidence that the conflict adversely affected Sondalle's...