Howlett, a school bus driver, was convicted of three counts of sexual assault of C.A., a nine-year-old child he was responsible for driving. (¶¶1-3, 7). Adopting significant portions of the trial court’s postconviction ruling, the court of appeals rejects his claim that trial counsel was ineffective in the following ways:
- Failing to introduce C.A.’s attendance records: C.A. testified the the assaults occurred on three days “right in a row” and “three straight days” in “the 20’s of May,” but trial counsel’s failure to introduce records showing she was not in school on three consecutive calendar days in that period was not prejudicial because the records show she was in attendance three consecutive school days and the jury could reasonably have concluded she meant three straight school days, not calendar days. (¶¶14-16).
- Failing to impeach C.A. with her preliminary hearing testimony regarding the duration of the assaults: C.A.’s description of the duration at the prelim (“two seconds”) differed from her trial testimony (“a minute”), but the differences were so “minute” that it would not have caused the jury to doubt her credibility. (¶¶17-19).
- Failing to present evidence that C.A. was exposed to sexually explicit terms via her peers: C.A.’s use of sexually explicit terms to describe the assaults was not to corroborate them based on words she learned from Howlett, but to describe his behavior. Because it was her detailed description of the assaults that persuaded the jury, evidence of where C.A. learned the explicit language would not affect the reliability of the verdict. (¶¶20-22).
- Failing to object to leading questions put to the investigating officer and to hearsay in the officer’s testimony: Assuming counsel was deficient for not objecting, the officer’s testimony was not prejudicial because it did not create an impression the officer endorsed or believed C.A.’s testimony, and the hearsay, which consisted of repeating C.A’s allegations, was “too brief” to reinforce C.A.’s own detailed testimony about the assaults. (¶¶23-28).
- Failing to introduce testimony regarding C.A.’s reputation for untruthfulness: Though one of C.A.’s teachers would have testified to her reputation for being untruthful, failing to present the witness was not prejudicial. The teacher had ties to Howlett, weakening the weight of the evidence, especially when compared to C.A.’s very detailed account of the assaults, which included details typically beyond the grasp of children and thus showing it was unlikely she fabricated the claims. (¶¶29-30).
- Failing to impeach C.A. about an allegation she stole a cell phone from a teacher: Howlett contended C.A. stole a phone from his bus, and then claimed he gave it to her in exchange for sexual contact. (¶¶3, 4, 33). Trial counsel was not deficient in failing to elicit an allegation regarding an earlier phone theft because, the court concludes, the evidence was not admissible under any of the theories Howlett offers. It was not habit evidence under Wis. Stat. § 904.06(1) because there was insufficient evidence to establish a pattern or routine. (¶¶33-34). It was not offered for a proper purpose to be other acts evidence under Wis. Stat. § 904.04(2)(a), but was simply propensity evidence that she stole a phone before. (¶¶33, 35). Nor was it a specific instance of prior conduct under Wis. Stat. § 906.08(2), as C.A. never testified to her character for truthfulness. (¶¶33, 36).
- The cumulative impact of trial counsel’s errors: Having dispatched each individual claim, the court of course concludes there is no cumulative effect. (¶38).