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Court of Appeals reverses circuit court’s finding that trial counsel was ineffective

State v. Anthony R. Pico, 2015AP1799-CR, 5/10/17, District 2 (not recommended for publication), petition for review granted 10/10/17, affirmed, 2018 WI 66; case activity (including briefs)

The circuit court granted Pico a new trial on a charge of first degree child sexual assault after concluding Pico’s trial lawyer was ineffective on various grounds. Over a dissent, the court of appeals reverses and reinstates Pico’s conviction.

This is a lengthy decision (40-plus pages), so here we provide only an overview of Pico’s most significant claims, with links to the relevant parts of the decision for readers interested in more detail:

• Pico alleged trial counsel should have obtained records documenting his traumatic brain injury in 1992, asserting the effects of the injury provided a basis for an NGI defense, explained his behavior with the complainant, D.T., and showed he was susceptible to making false statements to the detective who interviewed him using the Reid technique. (¶34). But Pico’s life history since the injury and trial counsel’s interactions with Pico provided no basis for trial counsel to believe Pico had deficits or difficulties stemming from the injury. (¶¶35-38). In addition, Pico’s statements about the offense and the information Pico’s family gave trial counsel show there was no viability to any of the asserted benefits the records would have provided to the defense. (¶¶43-54). Thus, trial counsel did not act unreasonably in failing to obtain the records, and Pico can’t demonstrate that failure to get the records was prejudicial. (¶¶41-42, 55-69).

• A recording of Pico’s interrogation was played to the jury, and in the recording the detective questioning Pico referred to D.T. as “extremely credible” and “consistent” in her allegations. (¶¶3, 10, 70-72). Pico argued that trial counsel should have objected to those statements because they violated State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1994). The court of appeals disagrees, applying State v. Snider, 2003 WI App 172, 266 Wis. 2d 830, 668 N.W.2d 784, State v. Smith, 170 Wis. 2d 701, 490 N.W.2d 40 (Ct. App. 1992), and State v. Miller, 2012 WI App 68, 341 Wis. 2d 737, 816 N.W.2d 331. The detective’s statements were made during a pretrial investigation, rather than at trial, and only described an interrogation technique—namely, lying to Pico to try to get him to confess. At trial the detective didn’t testify that he thought D.T. was telling the truth; while the detective did say he thought Pico was being deceptive, this kind of testimony was condoned in Smith and, given Pico was being prosecuted, the jury would have inferred it anyway. Thus, neither the purpose nor the effect of the detective’s testimony violated Haseltine. (¶¶73-83).

• The detective also testified that Flayter, the person who conducted the forensic interview of D.T., was “among the best in the state.” (¶86). Pico argues his lawyer should have objected to this testimony. Trial counsel wasn’t deficient for failing to file a motion in limine to keep out this statement, as he didn’t anticipate it; and while trial counsel could have sought a pretrial order preventing commentary by witnesses on the credibility of other witnesses, the detective’s statement didn’t amount to that kind of commentary. (¶¶88, 90). Further, counsel reasonably decided not to object to the statement when it did come out, as trial counsel invoked the old saw about not wanting to highlight the testimony. (¶¶86, 89).

• Nor was trial counsel ineffective for failing to present an expert to explain deficiencies in Flayter’s forensic interview, and in particular to comment on her testimony about suggestibility and her failure to clarify a key aspect of D.T.’s allegations. (¶93). Trial counsel reasonably concluded there was no basis to challenge how the forensic interview was conducted. Further, the expert Pico presented during postconviction proceedings both confirmed the interview was “well-conducted” and basically agreed with Flayter’s testimony about suggestibility; thus, the expert wouldn’t have helped Pico’s defense. (¶¶95-108).

A dissent by Judge Reilly faults the majority for failing to accept the circuit court’s findings of fact on the brain injury issue, which the circuit court concluded had a “broad impact” on strategy and the development of the theory of defense, and substituting its own conclusions instead. (¶¶123-26).

Appellate practice note: Pico made some additional claims the trial court rejected, and tries to argue on appeal that the circuit court erred in rejecting them. But he didn’t file a cross-appeal to the state’s appeal of the order granting a new trial, so the claims are unreviewable. (¶¶119-21).

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{ 1 comment… add one }
  • Robert R. Henak May 12, 2017, 2:43 pm

    Regarding the “Appellate Practice Note,” the Court’s decision reflects a serious misunderstanding of the applicable rules. It is well-settled that a party who WON in the court below need not file a cross-appeal, and indeed has no basis to file a cross-appeal unless he or she is seeking a more beneficial judgment or order than that granted by the lower court. Absent such circumstances, there is no “adverse decision” to appeal from.

    Here, the circuit court granted a new trial. Two of the issues the COA believed were forfeited due to Pico’s failure to file a cross-appeal dealt with seeking a new sentencing should the new trial order be overturned. That, of course, is a lesser remedy than the new trial granted by the circuit court and, because Pico got everything he wanted from the circuit court by winning a new trial, and there can be no resentencing if the new trial is upheld, there was no legal basis for Pico to cross-appeal. Until the COA reversed the new trial order, the circuit court’s ruling on the sentencing issues was dicta, and it is settled law that a party has no right to appeal language it does not agree with that has no impact on the results. See, e.g., Wis. Stat. (Rule) 809.62(1g) (defining “adverse decision”); Neely v. State, 89 Wis.2d 755, 757-58, 279 N.W.2d 255 (1979).

    The COA appears to have missed the boat on the third issue it deemed unreviewable. As described by the Court, Pico claimed “that the circuit court erred when it denied Pico’s motion in limine to present character evidence.”
    While the claim itself demonstrates that Pico HAD raised the claim in the circuit court and that the circuit court had denied the claim, the COA inexplicably asserted that “[t]he third claim is raised for the first time on appeal and, thus, is not properly before us.” The COA appears to be under the impression that, even when an issue is fully preserved, it must be raised again in a post-conviction motion before it can be raised on appeal. That is not the law. Wis. Stat. s.974.02(2).

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