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Right to confront and present evidence; probative value of evidence outweighed by prejudicial effect, § 904.03

State v. Damon R. Lowe, 2012AP555-CR, District 2, 9/18/13; court of appeals decision (not recommended for publication); case activity

Lowe, charged with sexual and physical abuse of V.A.L., his adopted daughter, sought to present evidence that she was motivated to fabricate her allegations because she wanted to get away from her overly strict father, who restricted her use of cell phones, her internet use, and her choice of friends. While trial counsel was able to elicit “voluminous testimony” (¶9) about V.A.L.’s refusal to follow Lowe’s rules before she made her allegations, he was limited in his attempts to bring in evidence about V.A.L.’s acts after she made her allegations. Specifically, counsel wanted to present evidence about, among other things, her drinking, pot smoking, and posting on a website her goal list of having sex and getting “wasted”; the court allowed him to elicit evidence of V.A.L.’s post-allegation behavior in three broad areas in which V.A.L. behaved in ways of which Lowe disapproved, and the court of appeals holds this limitation did not violate Lowe’s right to cross-examine and present evidence.

Unlike the defendants in Delaware v.Van Arsdall, 475 U.S. 673 (1986), and State v. Echols, 2013 WI App 58, 348 Wis. 2d 81, 831 N.W.2d 768, “trial counsel was able to fully explore V.A.L.’s pre-allegation behavior, including intense conflict with Lowe. …   Trial counsel was able to lay ample foundation for the theory that, at the time of the allegations, V.A.L. was in the habit of breaking Lowe’s rules and arguably had reason to want to get out from under Lowe’s control.” (¶18). In addition, because defense counsel was allowed to establish that V.A.L.’s alleged motive was in fact borne out, that V.A.L. misbehaved in ways of which Lowe would not have approved, the specifics as to how V.A.L. subsequently misbehaved would have been cumulative and counsel’s attempt to challenge V.A.L.’s credibility by exploring whether she was truthful about her post-arrest behavior would divert the trial to extraneous matters and confuse the jury by placing undue emphasis on collateral issues. (¶¶19, 21). Thus, the trial court properly excluded the evidence because any probative value of the after-the-fact evidence was substantially outweighed by the potential for confusion and misleading the jury, and there was no violation of Lowe’s rights to confrontation and compulsory process, citing State v. McCall, 202 Wis. 2d 29, 44 & n.11, 549 N.W.2d 418 (1996) (right to confront one’s accusers is not violated when court excludes irrelevant or immaterial evidence); State v. Evans, 187 Wis. 2d 66, 84, 522 N.W.2d 554 (Ct. App. 1994) (right to confrontation and compulsory process only allow the defendant to present relevant evidence that is not substantially outweighed by its prejudicial effect). (¶24).

Lowe raised a host of additional claims of error, including ineffective assistance of counsel, all of which the court of appeals dispatches with alacrity. Three are notable as pointers about preserving issues for appeal:

First, Lowe argued the jury instructions were not legally accurate or unconstitutionally misled the jury. (¶48). This claim is waived. Though trial counsel submitted written objections to the instructions, “written submissions do not remove the requirement that objections be made on the record at the conference. See Frayer v. Lovell, 190 Wis. 2d 794, 809, 529 N.W.2d 236 (Ct. App. 1995) (proposed list of jury instructions submitted to court does not obviate need to object on the record at the conference).” (¶49). More importantly, “the instruction Lowe objects to on appeal was discussed at the conference, with trial counsel ultimately agreeing that the instruction was acceptable as modified.” (Id.).

Second, Lowe argued trial counsel was ineffective for failing to obtain certain telephone records that could have been used to impeach his ex-wife, but he he did not call her to testify at the postconviction hearing and so failed to show that cross-examining her with the records “would have changed her testimony, much less the result of the trial.” (¶39).

Third, Lowe claimed trial counsel was ineffective for failing to prepare Lowe to testify and failing to make a discovery demand that would have resulted in a disclosure of another statement made by V.A.L. “Neither of these contentions was raised in Lowe’s postconviction motion and supporting brief. Although both were briefly touched upon at the Machner hearing, they were not presented in Lowe’s trial briefing as instances of deficient performance. We decline to address these issues. See State v. Giebel, 198 Wis. 2d 207, 218, 541 N.W.2d 815 (Ct. App. 1995) (declining to review allegations of ineffective assistance of counsel that were not presented in postconviction motion).” (¶41).

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