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Counsel ineffective; failed to challenge credibility in swearing contest

State v. Rafael D. Honig, 2016 WI App 10; case activity (including briefs)

Honig, convicted at trial of two first-degree child sexual assaults, asserts that his trial counsel mishandled three issues bearing on the credibility of his accusers; the court of appeals agrees.

Honig was accused of having intercourse and sexual contact with his two granddaughters, aged three and five. The allegations first surfaced when the elder of the two allegedly told her uncle, Raymond Cruz, that Honig had touched her and her sister. (¶2). Each girl gave a video-recorded interview. The older girl’s account involved some strange details, which her mother refuted. She also said that her grandfather had touched other girls. (¶3). The younger said during her interview that Honig “didn’t do nothing to me” and that “he just did it to [the older girl].” (¶4).

Both girls testified at trial, and the video of the older girl (including the statements about Honig allegedly touching other girls) was shown to the jury. (¶8). The state’s direct examination of the younger girl featured a string of leading, yes-or-no questions, culminating in a “yes” answer to whether Honig had touched her. (¶11).

Honig testified and denied touching either girl. He also said that he and Cruz, who had first reported the assaults, did not get along and that Cruz had threatened him via text and in person. (¶13). Honig’s trial counsel had previously alerted the court that he planned to call George Colon, an acquaintance of Cruz, who would testify that Cruz had told him he “knew ways to frame people” and “that he had some plan to frame [Honig] by somehow getting kids to say things about about things that my client allegedly did.” However, despite being present in the courtroom, Colon never testified. (¶6).

Honig filed a Machner motion alleging ineffective assistance for, inter alia, failing to call Colon, failing to impeach the younger girl’s testimony with her videotaped statement that Honig did not touch her, and failing to object to the older daughter’s statements regarding assaults of other children. (¶15). At the hearing Colon testified that Cruz had talked about how to “get children and counsel them and to charge somebody with molestation.” (¶18). Trial counsel testified somewhat vaguely that he thought Colon might be an uncooperative witness; as to the video of the younger girl, that he thought it was “fairly consistent” with her trial testimony. (¶¶16, 19).

The trial court rejected all three claims. It found the failure to call Colon to be “trial strategy,” and agreed with trial counsel that the younger girl’s video interview was “generally consistent” with her testimony. The court stated that it would have granted a motion to exclude the “other acts” comments from the elder girl’s video interview, but concluded that they had not prejudiced Honig. (¶20).

The court of appeals reverses, accepting all three of Honig’s ineffective assistance claims. As the court repeatedly notes (¶¶29, 33, 46), the trial was a pure credibility battle, with no physical evidence and only Honig’s word against the girls’ and Cruz’s:

Counsel knew, or should have known, that Colon’s reports of Cruz’s statements would have a significant impact on Cruz’s credibility. Yet, counsel failed to ask Cruz about them. Had Cruz denied telling Colon that he knew how to “get rid people” by convincing children to accuse those people of molestation, Colon’s testimony would have been admissible as a prior inconsistent statement…. If Cruz admitted the conversation with Colon, counsel’s theory of defense would have had additional important support. Because both alternatives operated to enhance the defense theory in a significant way, there was no reasonable strategic reason articulated, or presented in the record, not to question Cruz about the assertion and not to present Colon’s testimony.

(¶29).

Addressing the trial court’s conclusion that the failure to call Colon was “strategic,” the appeals court observes that the theory of defense throughout the trial was that Cruz had manufactured the allegations; thus failure to explore his statements to Colon “was a failure to present available evidence that went to the core of the defense theory.” (¶31).

The court reaches similar conclusions as to the other two claims. Each of the two alleged victims’ testimony, on video or in court, was shaky, and their credibility was the crux of the case. Failing to object to damaging propensity evidence (the trial predated Wis. Stat. § 904.04(2)(b)1.) or to present one victim’s previous denial that an assault had occurred were thus deficient and prejudicial to Honig. (¶¶43-46).

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