State v. Williams, 2005AP2282-CR.

• Decision Date: 28 September 2006
• Docket Number: No. 2005AP2282-CR.,2005AP2282-CR.
• Citation: 2006 WI App 212,723 N.W.2d 719
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Quentrell E. WILLIAMS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

723 N.W.2d 719

2006 WI App 212

STATE of Wisconsin, Plaintiff-Respondent, v. Quentrell E. WILLIAMS, Defendant-Appellant.

No. 2005AP2282-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 12, 2006.

Opinion Filed September 28, 2006.

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On behalf of the defendant-appellant, the cause was submitted on the briefs of Eileen A. Hirsch, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael C. Sanders, assistant attorney general, and Peggy A. Lautenschlager, attorney general.

Before LUNDSTEN, P.J., DYKMAN and DEININGER, JJ.

¶ 1 DYKMAN, J

Quentrell Williams appeals from a judgment entered on a jury verdict convicting him of recklessly causing harm to a child, contrary to WIS. STAT. § 948.03(3)(b) (2003-04).¹ He also appeals from an order denying his postconviction motion for a new trial. Williams contends he received ineffective assistance of counsel. Alternatively, he requests a discretionary reversal under WIS. STAT. § 752.35 because the real controversy was not fully tried. He bases both arguments on three alleged errors at trial: (1) defense counsel's failure to anticipate recklessly causing harm to a child as a lesser-included offense; (2) defense counsel's misunderstanding the court's ruling on Williams's motion in limine, and consequent failure to introduce testimony evidence of his being similarly disciplined as a child; and (3) the prosecutor's mischaracterizing trial testimony in his closing argument and defense counsel's failure to object. We conclude that any deficient performance by Williams's attorney did not prejudice his defense, and he was therefore not denied effective assistance of counsel. We also conclude that the real controversy was fully tried. We therefore affirm.

BACKGROUND

¶ 2 The following is taken from trial testimony and the circuit court's judgment and order. On the evening of February 10, 2004, Williams's five-year-old daughter, A.B.A., was staying with him at the home he shared with his grandmother and his cousin. Williams had not been in A.B.A.'s life before that time. Around 9:30 to 10:00 p.m., Williams began attempting to put A.B.A. to sleep for the night. A.B.A. was supposed to go to sleep in Williams's grandmother's room, but instead was misbehaving and jumping on the grandmother's bed. At 11:00 p.m., Williams's grandmother told Williams he needed to do something with A.B.A. because she would not sleep. Williams then spoke with A.B.A. and insisted she go to sleep or he would spank her.

¶ 3 Williams sent A.B.A. back into his grandmother's room and returned to his own room. At 1:00 a.m., he came out of his room and saw A.B.A. sitting up watching television. After another discussion over A.B.A. needing to go to bed and her further refusal, Williams took A.B.A. into his room and told her he was going to spank her because she was being disobedient. He instructed her to lie flat on his bed with her face to the mattress, fully clothed. He went to his closet and selected the only belt he had without metal studs, which was a weightlifting belt, and struck A.B.A. five times on the buttocks. Williams testified that he decided to spank his daughter with a belt because that was how he was disciplined as a child, and he selected the weightlifting belt because he believed it would cause less harm to A.B.A. than the belts with metal pieces.

¶ 4 Three days later, A.B.A. was returned to her mother. A.B.A.'s mother noticed bruising on A.B.A.'s buttocks and took A.B.A. to the emergency room. The emergency room doctor who treated A.B.A., Dr. Joel Wacker, testified at trial that A.B.A. had two large areas of bruising on her buttocks, which were approximately two or three days old when he examined her. When Dr. Wacker asked A.B.A. how the injuries occurred, she said she had been spanked by her father. Dr. Wacker testified that the injuries would have absolutely caused A.B.A. pain. On a scale of one to ten, with one being the least and ten being the most pain, Dr. Wacker estimated the pain A.B.A. experienced was a five or a six. Dr. Wacker testified he would have called the police if they had not already been present in the exam room because of the suspicion of child abuse.

¶ 5 Officer Weyh, one of the officers assigned to investigate the cause of A.B.A.'s injuries, also testified at trial. Weyh testified that he questioned Williams about the injuries to A.B.A. and Williams admitted striking A.B.A. with the weightlifting belt. Williams told Officer Weyh he did not intend to harm his daughter, but only wanted to discipline her and was trying to be a father figure to the best of his ability.

¶ 6 The State charged Williams with intentionally causing harm to a child contrary to WIS. STAT. § 948.03(2)(b). Williams filed a motion in limine requesting the court to allow testimony from Williams and other witnesses regarding Williams's upbringing and how he was disciplined as a child. Williams's attorney argued at the hearing on the motion in limine that the testimony evidence was relevant to Williams's state of mind when he acted and whether he intended to harm A.B.A. The court found there was insufficient information before it to decide the motion, but stated:

[B]ased on what I'm hearing, if an objection were raised at trial, I would grant the objection on the basis of relevance. . . . I think under the circumstances I'm going to, on my own motion, I'm going to order that absent a showing prior, absent a showing to the Court prior to any questioning of any witness, that there be no argument nor any questions asked to elicit information about how the defendant was disciplined as a child. . . . I'm not precluding you from offering it, but I'm requiring that you show me specifically the relevance of what it is that you want to offer before you put that before a jury even in the form of argument or a question.

Following the hearing, Williams's attorney never offered any proof of relevance to introduce the testimony evidence.

¶ 7 At trial, on cross-examination, A.B.A.'s mother testified as follows:

Q: Ms. [A], you are the one who first noticed the bruising to [A.B.A.], correct?

A: Yes.

Q: And you were with her in the emergency room?

A: Yes.

Q: Before you got to the emergency room when you noticed the bruising, did you ask [A.B.A.] what the heck had happened?

A: Yes.

Q: What did she tell you?

A: She seemed almost scared to tell me at first, and then she told me that her dad had hit her with a belt.

Q: She said, mommy, it was the biggest, fattest, blackest, blackest, blackest belt there is and it really hurt?

A: She didn't say the really hurt part, but she did say that in the emergency room. She actually said it didn't hurt.

¶ 8 The prosecutor summarized A.B.A.'s mother's testimony in his closing argument as: "She told you A.B.A. was scared and A.B.A. told her that the defendant had hit her with that belt, and she called it the biggest, fattest, blackest, blackest, blackest belt there is, and she said it really, really hurt." Williams's attorney made no objection to the prosecutor's closing argument.

¶ 9 At the close of evidence, the prosecution requested submission of the lesser-included offense of recklessly causing harm to a child under WIS. STAT. § 948.03(3)(b). Williams's attorney objected, claiming submission of the lesser-included offense was "unfair surprise" and "[t]here is no way that I can effectively argue for my client at this point if it is included." The court decided submission of the lesser-included offense was appropriate, and the jury found Williams guilty of the lesser-included offense of recklessly causing harm to a child.

¶ 10 Williams filed a postconviction motion for a new trial because he was afforded ineffective assistance of counsel and in the interest of justice under WIS. STAT. § 805.15(1) because the real controversy was not fully tried. The trial court denied the motion. Williams appeals from the judgment of conviction and the order denying his postconviction motion for a new trial.

STANDARD OF REVIEW

¶ 11 Once the underlying facts have been established, the determination of effective assistance of counsel is a question of law we decide de novo. State v. Felton, 110 Wis.2d 485, 504-05, 329 N.W.2d 161 (1983) (citation omitted). Thus, we review Williams's claim of ineffective assistance of counsel without deference to the trial court. See id.

¶ 12 It is within our discretion to grant a new trial if the real controversy has not been fully tried. WIS. STAT. § 752.35. We thus conduct an independent review of the record to determine if a new trial is warranted in the interest of justice. See id.

¶ 13 A trial court's ruling on a postconviction motion for a new trial in the interest of justice is within its discretion. State v. Randall, 197 Wis.2d 29, 36, 539 N.W.2d 708 (Ct.App.1995). Thus, we review the court's denial of Williams's motion for an erroneous exercise of discretion. See id. A trial court properly exercises its discretion if it applies accepted legal standards to the facts in the record. Id. (citation omitted).

DISCUSSION

¶ 14 The State contends a claim for a new trial in the interest of justice is inappropriate when the claim may be analyzed under ineffective assistance of counsel. Thus, the State argues, Williams's entire argument must be analyzed under the framework of ineffective assistance of counsel. We disagree.

¶ 15 The State relies on State v. Flynn, 190 Wis.2d 31, 46-49, 527 N.W.2d 343 (Ct. App.1994), in which we concluded the defendant's claim of ineffective assistance of counsel, based on his trial counsel's failure to adequately investigate his case, failed. We then rejected his argument that the real controversy was not fully tried based on the same inadequate investigation. Id. at 48-49 n. 5, 527 N.W.2d 343. We said that WIS. STAT. § 752.35 "`was not intended to vest this court with power of...