State v. Stroik
| Decision Date | 24 February 2022 |
| Docket Number | Appeal No. 2021AP447-CR |
| Citation | 401 Wis.2d 150,972 N.W.2d 640,2022 WI App 11 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Shane Allan STROIK, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Tristan S. Breedlove, assistant state public defender of Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Loryn L. Limoges, assistant attorney general, and Joshua L. Kaul, attorney general.
Before Blanchard, P.J., Graham, and Nashold, JJ.
¶1 Shane Stroik appeals a judgment of conviction for first-degree sexual assault of "Amy," who was five years old at the time of the alleged assault, and an order that denied his postconviction motion for a new trial.1 Among other things, he argues that his trial counsel provided ineffective assistance of counsel when he (1) failed to object to the prosecutor's statements and arguments as well as the witness testimony about Stroik's "high sex drive" and (2) failed to seek out and introduce evidence from which a jury could find that Amy made a prior untruthful allegation that she had been sexually assaulted by a cousin.
¶2 We conclude that the evidence about Stroik's "sex drive" was propensity evidence that was inadmissible under WIS. STAT. § 904.04. Therefore, had trial counsel objected to the prosecutor's statements and arguments and the witness testimony on this topic, counsel's objections should have been sustained. However, under the circumstances presented here, Stroik has not met his heavy burden to show that counsel's performance was deficient because counsel eventually and adequately addressed the statements, arguments, and evidence about Stroik's "sex drive" during his closing argument.
¶3 Separately, we conclude that Stroik's trial counsel provided ineffective assistance when he failed to seek out and introduce evidence at trial regarding Amy's prior allegation against the cousin, which was addressed in a report by the county child protective services agency. For reasons we explain below, we conclude that counsel's failure to investigate was deficient because it was not based on a reasonable strategic decision. Had counsel conducted a reasonable investigation, the evidence would have been admissible at trial and, if pursued, there is a reasonable probability that the result of the trial would have been different. We therefore reverse the judgment and order, and we remand for a new trial.
¶4 The alleged assault at issue in this case occurred on or around June 10, 2016. At that time, Amy's parents were separated and going through a difficult divorce. Amy's father had sole custody and primary placement. As a result, Amy lived with her father and his girlfriend most days.2 Amy's mother, "Laura," was residing with and in a romantic relationship with Stroik, and Amy stayed with Laura and Stroik every other weekend.
¶5 Amy's father originally reported the allegation at issue in this case to the family's social worker in July 2016.3 He reported that, after an incident in which Amy urinated on the floor of her aunt's house, Amy disclosed that Stroik had touched her vagina. The father also reported that Amy's behavior had changed; specifically, she had become more defiant within the last month.
¶6 These allegations resulted in an investigation by the county child protective services (CPS) agency. In the course of the investigation, Amy's father drove her to a child advocacy center approximately one month after the alleged assault occurred, and a forensic interviewer conducted a video-recorded forensic interview of Amy, who was five years old.
¶7 At the outset of the interview, immediately upon being asked what was new, Amy said: "I am going to tell you about Shane [Stroik]." She went on to say that, one time when her mother was in the bathroom, Stroik "pull[ed] down [her] pants and touche[d] [her] meme." At that point, Amy pointed to her vagina. The interviewer clarified that Amy used the term "meme" to refer to her vagina.
¶8 Later in the interview, when asked for additional information about how Stroik had touched her "meme," Amy made the following statements. Amy was on the bed watching a movie in the "middle bedroom" when Stroik came into the room. Stroik was "laying on the bed," and he "pulled [her] pants down and touched [her] meme." Before Stroik pulled Amy's pants down, he told her to "turn around" and that he "want[ed] to do something to [her]." Amy said "stop it" but Stroik "didn't stop it." He said, "no, I'm not stopping." He also said "don't tell [your] mom." Stroik touched Amy's "meme" with one hand, either on the "side" or on the "inside" or both, with his hand not moving, and it made her "meme" feel "not good." At some point, Stroik stopped because of "the dog." At one point during the interview, when asked to describe Stroik, Amy indicated that he was bald. However, it is undisputed that Stroik was not bald.4
¶9 In response to a question by the forensic interviewer, Amy said, "It's not just Shane." She stated that her paternal grandfather, who she referred to as her "papa," touched her "meme" on multiple occasions when they slept in the same bed. Amy stated that he would put "his tongue on [her] meme" and move it around, and that he would say, "Don't tell daddy." It is undisputed that Amy's grandfather had died several months before the interview, in March 2016.5
¶10 Law enforcement officers interviewed Stroik, Laura, and other potential witnesses. During these interviews, which were memorialized in police reports, Stroik and Laura both told police that Amy had previously made a statement that her paternal cousin had touched her inappropriately. Laura told the police that the allegation about the cousin had been investigated, but nothing came of it. As discussed in greater detail below, Stroik's trial counsel was aware that there had been a CPS investigation into Amy's statements about her cousin's conduct. However, trial counsel did not look further into the matter related to the cousin and did not attempt to introduce evidence at trial about Amy's prior allegation against her cousin.
¶11 Stroik was charged with committing a single sexual assault against Amy.6 Following several pretrial hearings and adjournments, the case proceeded to a three-day jury trial in 2018. Multiple witnesses testified, including Amy, Amy's aunt, Amy's father, Amy's father's girlfriend, Laura, law enforcement and CPS employees who had been involved in the investigation, and Stroik. We do not attempt to summarize all the evidence introduced and arguments made at trial; we instead summarize only those portions of the trial that are necessary background to understand the issues we address below.
¶12 During his opening statement and closing argument, the prosecutor made several comments about Stroik's "sex drive." By way of example, during his opening statement, the prosecutor asserted that Stroik had a "very high sex drive" and therefore, according to the prosecutor, "the presumption of course is that [he touched Amy] for a sexual purpose." To give another example, during trial, the prosecutor questioned Laura about aspects of her sex life with Stroik and the frequency with which Stroik wanted to have sexual relations with Laura. We discuss the prosecutor's statements and arguments and the trial testimony about Stroik's "sex drive"—and trial counsel's response to the statements, arguments, and testimony—at length in the discussion section below.
¶13 Amy's aunt testified that, on one occasion when she was babysitting Amy, Amy urinated on the floor. Amy's aunt, Amy's father, and Amy's father's girlfriend all testified about a subsequent conversation they collectively had with Amy, during which, upon questioning, Amy said that Stroik had touched her "meme."
¶14 Amy's recorded CPS interview was played for the jury in its entirety. After the video was played, Amy, who was seven years old by the time of trial, was subject to direct examination by the prosecutor and cross-examination by Stroik's trial counsel, which was followed by another round of direct examination and cross-examination.7
¶15 During her testimony, Amy did not appear to have any clear memory of the assault. When the prosecutor initially asked Amy if she knew "why we're here today," she responded, "No." Amy went on to testify that she remembered "going to talk to a lady [that is, the forensic investigator] about something that happened with Shane [Stroik]," but that she did not remember anything happening between her and Stroik. The direct examination proceeded in pertinent part as follows:
¶16 Later, in response to the prosecutor's questioning on re-direct, Amy testified that she remembered telling "the lady" that Stroik "touched my private."
When the prosecutor asked if that was "true," Amy responded, "Yes." However, during her re-cross-examination, Amy testified that she did not know where "it happened" and that it was not in "the play room."8 She further testified that she did not know whether Stroik had "touched" her:
By contrast, Amy testified...
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