The court of appeals granted Hunt a new trial; the supreme court takes that new trial away. The supreme court’s decision does not develop any new law or address a novel issue of statewide concern—and that’s no surprise, for as described here, the state’s petition for review admitted the case didn’t meet the usual standards for review. Instead, the court applies well-developed rules governing harmless error and ineffective assistance of counsel to the fact-specific claims in this case. In the course of doing so, however, the court misunderstands, ignores, or inverts some fundamental tenets of appellate review and basic rules of evidence.
Hunt was charged with child sexual assault and causing a child to view a depiction of sexual activity, § 948.055, the latter charge being based on A.H.’s allegation that Hunt had shown her a video on his cell phone showing a man and woman having intercourse. (¶¶4, 7). Hunt testified and denied the allegations, so the trial was a pure and simple question of credibility. (¶8). The jury acquitted on the sexual assault charge but convicted on the § 948.055 charge. (¶16).
Hunt’s defense was that A.H.’s accusations were an embellishment of non-criminal conduct he did admit—namely, his showing her two images that, while crude, were not sexually explicit activity under the statute. (¶9). To bolster this defense, Hunt called a witness named Venske to corroborate Hunt’s testimony that Venske sent Hunt the two crude images but never sent a sexually explicit video. The trial court excluded Venske’s testimony about the sexually explicit video on the grounds that the source of the video was irrelevant. (¶¶8, 12-13).
The state concedes the trial court erred in excluding this testimony, and the supreme court accepts that concession. (¶25). But the state argued the error was harmless, primarily because the investigating officer testified that he interviewed Venske and Venske said he had not sent the video to Hunt; thus, the state claims, the officer’s testimony “functionally served the same purpose” as Venske’s own testimony. (¶30). This argument is fundamentally wrong, for two reasons: The detective’s testimony wasn’t admitted to prove what Venske said—that would be hearsay—but only to explain they conversed; and it was accompanied by an unusually explicit limiting instruction that, among other things, told the jury “[w]hen the Officer is being allowed to testify about this conversation, it’s not to be used by you to determine whether Mr. Venske actually sent something from his phone or not.” (¶11). Yet the supreme court buys the state’s argument:
¶32 Hunt’s argument overstates the implications of the circuit court’s hearsay instruction. Simply because the jury could not use Officer Nachtigal’s testimony as evidence to prove the truth of what Venske had told him does not render Officer Nachtigal’s testimony immaterial. The jury could still use Officer Nachtigal’s testimony as evidence to prove that Venske had told Officer Nachtigal that he sent no videos to Hunt. Undoubtedly, Venske’s excluded testimony had some probative value to Hunt’s defense. However, with respect to corroborating Hunt’s testimony that Venske did not send the video of sexual intercourse to Hunt, we conclude that there is little meaningful difference between Venske’s assertion that he did not send Hunt a video and Officer Nachtigal’s testimony that Venske told him he did not send Hunt a video. The circuit court’s instruction accurately informed the jury that it could not conclude, based solely on Officer Nachtigal’s testimony, that Venske did not send the video. However, the jury still heard that Venske had represented to the police that he did not send the video, which corroborated what Hunt had already alleged at trial.
If the court really believes what it writes here, its analysis is flawed because it is based on a misunderstanding of the basic rule of evidence on which the trial court’s cautionary instruction is premised (which might explain the complete dissonance between the second and third sentences). On the other hand, if the court understands the rule, it isn’t really engaging in legal analysis at all, but is just trying to justify the result it wants to reach by ignoring that rule, along with the rule that the jury is presumed to follow the court’s limiting instruction—a rule the court doesn’t deign to mention here (though as we shall see, it doesn’t hesitate to invoke it later, against Hunt). The dissent by Justice Bradley, joined by Chief Justice Abrahamson, levels similar, and additional, criticism of the majority opinion.
The court also says Venske’s testimony wasn’t that important because the source of the video wasn’t an element of the offense or otherwise made an issue at trial. (¶¶33-34). “Notably, A.H. never testified about the source of the images on Hunt’s cell phone, and the State never raised the issue while making its case to the jury.” (¶35).
Here the court effectively inverts the focus of the harmless error test. The source of the video was an issue relevant to Hunt’s defense, not the state’s proof, and depriving him of the additional corroborating evidence affected his defense. Moreover, there was evidence about the video’s source, as the investigating officer testified that A.H. said that Hunt mentioned all the images came from Venske. (¶¶10, 44 n.12). And, as noted below, one of Hunt’s ineffective assistance claims involved trial counsel’s failure to respond appropriately to the state’s objection when he attempted to elicit that evidence directly from A.H. This shows the errors in the trial by the trial court and trial counsel were connected, which would augment the impact on the defense. The court ignores this problem by treating each error in isolation.
The court also rejects Hunt’s claim that trial counsel was ineffective for: failing to argue the appropriate hearsay exception in response to the state’s objection to a question put to A.H. about the source of the video (¶¶7, 41); failing to cite § 904.03 in support of an objection to A.H.’s testimony that she saw other images, which might have led the jury to believe the other images met the statutory definition of sexually explicit activity (¶¶6, 45-46); and failing to agree to the trial court’s proposal to add language to the instruction on the elements of the offense that only the sex video could form the basis for conviction (¶¶14-15, 52). Applying the established IAC standards, the court holds counsel’s failures to articulate the right hearsay exception or cite to § 904.03 weren’t prejudicial (¶¶43-44, 48-50) and that he made a reasonable strategic decision to not accept the trial court’s proposed instruction because he feared it might convey the court believed the video met the statutory standard (¶¶54-55).
In finding no prejudice on the first claim, the court focuses on how A.H.’s answer might have bolstered her story, but ignores the answer’s consistency with Hunt’s defense and the fact Hunt’s opening statement anticipated A.H.’s answer would be admitted (Hunt’s brief at 17). And, in rejecting Hunt’s second claim, the court points to a passing reference in the jury instructions to the video of sexual intercourse being the basis for the charge, and then invokes the rule that the jury is presumed to follow the court’s instructions—the rule it ignored in its harmless error analysis. (¶48).
Lastly, note how the court dodges the rule about aggregating counsel’s errors when determining prejudice, State v. Thiel, 2003 WI 111, ¶59, 264 Wis. 2d 571, 665 N.W.2d 305. The court assumes counsel was deficient on two of the claims (¶¶42 n.11, 47-48) and finds no deficiency on the third. No finding of deficiency means no aggregation: “Because we conclude that one of the alleged errors raised by Hunt are [sic] not deficient as a matter of law, we cannot address Hunt’s aggregacy [sic] argument, as we do not find any, let alone multiple, instances of deficient performance.” (¶56 n.15).