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Counsel wasn’t ineffective for failing to file Shiffra motion

State v. Tony Phillip Rogers, 2015AP921-CR, 4/12/16, District 1 (not recommended for publication); case activity (including briefs)

Though the complainant in Rogers’s child sexual assault prosecution made statements to her mother about “hearing voices” and needing mental health assistance, trial counsel was not deficient for failing to move for an in camera review of her treatment records because he could not have made the materiality showing needed under State v. Shiffra, 175 Wis. 2d 600, 608-09, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, ¶¶32-34, 253 Wis. 2d 356, 646 N.W.2d 298.

Trial counsel sought to introduce evidence the complainant had be hospitalized for mental health treatment, but the circuit court excluded the evidence because it lacked foundation. (¶¶4-5). On appeal Rogers contends trial counsel didn’t do enough to get this evidence in, and in particular didn’t file a Shiffra/Green motion seeking an in camera review of the complainant’s records. The court of appeals isn’t persuaded. Besides the fact that Rogers was allowed to cross-examine the complainant about her statements to her mother, and thus to put evidence of her mental state before the jury, Rogers hasn’t shown he met the Shiffra/Green standard:

¶23      …. At the outset, he fails to set forth “a specific factual basis” that demonstrates that the victim’s mental health records will contain “relevant information necessary to a determination of guilt or innocence.” See [Green, 253 Wis. 2d 356], ¶34. Instead, he just speculates. He jumps from the fact that the victim was hospitalized to his speculation that she must have mental health records and that they will show that she suffered “from a mental illness” and that it would be the type of mental illness that would somehow make it “more likely that she had fabricated or misremembered the events” at issue, which would have had a great impact on the jury. However, he offers no “fact-specific evidentiary showing” of relevance. See id., 253 Wis. 2d 356, ¶33. He fails to point to anything in the victim’s medical records that would indicate a propensity to lie. He simply links a series of guesses.

¶24     Having failed to set out any facts from which his trial counsel could have successfully made a Shiffra/Green motion, Rogers has not shown that trial counsel was deficient or that he was prejudiced by the lack of a motion. ….

Rogers also falls short in his challenge to the circuit court’s exclusion of evidence that the complainant made two false accusations, one of physical abuse by her mother, the second that she had witnessed a friend being abused. (¶¶6, 27). The circuit court properly exercised its discretion in holding the evidence was not admissible other-acts evidence under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), because even if it was offered for an acceptable purpose under § 904.04(2)(a) the evidence was not relevant:

¶33      Here, the proffered evidence is simply too unrelated to be relevant. Even if the victim had lied about her mom physically abusing her or about seeing a girlfriend being sexually assaulted, those kinds of lies—whether for gaining attention or greater privileges—do not show that she is going to lie about a relative sexually assaulting her. “The probative value of other acts evidence is partially dependent on its nearness in time, place and circumstance to the alleged act sought to be proved.” State v. Johnson, 184 Wis. 2d 324, 339, 516 N.W.2d 463 (Ct. App. 1994). These other alleged instances do not “involve[] the relationship between the principal actors,” follow “on the heels” of the victim’s accusations against Rogers, nor “travel[] directly” to Rogers’s theory as to why the victim would falsely accuse him. See id. The record is silent as to when these alleged lies occurred in relation to the sexual assault report or the victim’s letter to her mother. They simply do not pertain to the case at hand. It is far too obvious that the proffered evidence is solely for the purpose of showing that the victim is a liar, and that is expressly prohibited by Wis. Stat. § 906.08(2).

Rogers did get to ask the complainant about these false accusations during cross-examination, but under § 906.08(2) he was bound by her answers and couldn’t impeach any denial with extrinsic evidence. (¶35).

Last, the court rejects Rogers’s claim that the circuit court should have ordered a mistrial because the jury may have seen his jail-issued wristband. The circuit court took appropriate steps to remove the wristband and, in any event, it appears Rogers (who was found to be wearing multiple wristbands) may have been intentionally trying to expose it to the jury to provoke a mistrial. (¶¶7-10, 37-40).

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