Appellate Procedure – Waiver and Effective Assistance of Counsel
¶12 n. 12:
Although Marinez argues ineffective assistance of counsel, he also asks that we review his statutory and due process arguments directly. He cites to State v. Anderson, 2006 WI 77, ¶26, 291 Wis. 2d 673, 717 N.W.2d 74, for the proposition that an appellate court may review an alleged error that was not properly preserved in the circuit court if it raises a question of sufficient public interest and involves purely a question of law. While we recognize our authority to directly address waived claims of error in the circumstances Anderson describes, the normal procedure is to address them in the framework of ineffective assistance of counsel. See State v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 683 N.W.2d 31. We see no reason to depart from the normal procedure here. In any event, we note that in this case it does not matter whether we proceed as did the Anderson court or employ the ineffective assistance of counsel framework.
To be sure, Carprue does say that waived issues normatively fall under the IAC rubric. But the more recent case, Anderson, allows that the “court may consider the alleged [unpreserved] error on review when the error raises a question of sufficient public interest to merit a decision on appeal and the error raises a question of law that has been briefed by both sides and does not involve any questions of fact.” The court of appeals’ wave-of-the-hand dismissal of this authority doesn’t help litigants determine the limits of the waiver rule. For that matter, if you take this footnote at face value, then the court has just abrogated both plain-error and interest-of-justice review. Safest course of action, then, is to litigate all waived issues as IAC claims, wasteful and inefficient as that might be. At the same time, keep in mind that Anderson involved a claim (denial of right to counsel and personal presence) not subject to waiver, 2006 WI 77, ¶¶35-64. Fair to say, then, that issues involving personal colloquies fall outside “the normal procedure.”
Appellate Procedure – Standard of Review – Ineffective Assistance of Counsel
¶13 In order to establish ineffective assistance of counsel, Marinez must show that counsel’s performance was deficient and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Our analysis in this case focuses on whether counsel performed deficiently. To the extent the circuit court made factual findings regarding counsel’s performance, we uphold these unless clearly erroneous, but whether counsel’s performance was deficient under the constitutional standard presents a question of law, which we review de novo. See State v. Doss, 2008 WI 93, ¶23, 312 Wis. 2d 570, 754 N.W.2d 150. Where, as here, the basis for the assertion of deficient performance presents an issue of statutory construction and an issue of the correct application of the due process guarantee, our review of these issues is de novo. See Kenosha County DHS v. Jodie W., 2006 WI 93, ¶19, 293 Wis. 2d 530, 716 N.W.2d 845.
Evidence – § 908.08(5), Videotaped Statements of Children and Closing Argument
Neither due process nor § 908.08 precludes playing during closing argument a child’s video statement that was properly admitted into evidence under the statute:
¶18 The plain language of Wis. Stat. § 908.08 establishes a procedure and substantive standards for admission of an audiovisual recording of a child’s oral statement as evidence at the trial. There is nothing in the statute that suggests it is intended to address the use of this evidence during closing argument. Section 908.08(5) prescribes how the child’s availability to testify—a requirement of § 908.08(1)—is to be implemented: both the party presenting the video statement and any other party have the right to question the child immediately after the video statement is shown to the jury. With respect to the defendant, the evident purpose of this requirement is to give him or her the right to cross-examine the child immediately after the jury has seen and heard the video statement—just as if the child had directly testified to the statement at trial. As the statute requires, Marinez had that opportunity.
The court rejects a separate due process argument that the trial was “fundamentally unfair because a video of a witness’s statement is so much more powerful than reading a transcript of the statement or recounting the statement from notes,” ¶22, distinguishing State v. Anderson, 2006 WI 77 (jury-room viewing, during deliberations, of victim’s videotaped interview, overturned):
¶25 While the Anderson court’s analysis recognizes a significant distinction between video statements and other types of exhibits a jury views in the jury room, that analysis does not support Marinez’s position that no video statements may be played at closing. The Anderson ruling requires the video to be played in open court precisely because the court, with the input of counsel, can thereby control the playing of the video for the jury. Allowing the court to exercise its discretion to control the playing of video statements during closing argument is consistent with Anderson.
The matter of showing a properly admitted taped statement during arguments is thus committed to trial court discretion:
¶31 However, while the potential power of playing video statements at closing argument requires caution in their use, it does not warrant a wholesale prohibition of use in this context. The court’s discretion in controlling closing argument is sufficient to protect defendants against unfair uses in a particular case. The circuit court may control the length of the portions played in closing argument, both to avoid unduly long closing argument and to prevent an undue emphasis on the recorded testimony over the in-court testimony. In addition, the court may control the selection of portions of a recorded statement to avoid misrepresentation. See Lenarchick, 74 Wis. 2d at 458 (A circuit court may control the reading of a transcript at closing argument so it is not unduly time consuming and so that the portions selected do not give an undue emphasis.).
Marinez didn’t challenge the editing or length of the taped showing, ¶¶22, 33; his claim was categorical, which means simply that a trial court may but is of course not compelled to allow a tape to be shown during closing.
Counsel – Litigating IAC Claims – Trial Counsel’s Testimony re: Second Thoughts
¶32 n. 7:
Marinez points out that defense counsel testified at the Machner hearing that if he had to do it over again he would have objected to the State’s playing A.M.’s video statement during closing argument. See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). However, the proper inquiry is whether defense counsel’s performance is objectively reasonable in the circumstances of the case, and counsel’s testimony on his or her thinking is not dispositive. State v. Kimbrough, 2001 WI App 138, ¶¶31-35, 246 Wis. 2d 648, 630 N.W.2d 752. It is not unreasonable for defense counsel to fail to object based on legal theories that are incorrect.
Keep in mind, though, Kimbrough’s caution that counsel’s testimony is “evidence to be considered along with other evidence in the record that a court will examine in assessing counsel’s overall performance,” 2001 WI App 138, ¶35. Is anything left of the Harris v. Read, 894 F.2d 871 (7th Cir. 1990) idea that a court reviewing an ineffective assistance claim may “not construct strategic defenses which counsel does not offer”? Hard to say.
Counsel – Deficient Performance – Jury Deliberations: Request to Have Testimony Read Back
Counsel’s strategic decision to ask the trial court to instruct the jury to rely on its collective memory, in response to a request to have the complainant’s testimony read back, was reasonable:
¶1 We conclude defense counsel made a reasonable strategic decision in asking the court to instruct the jury to rely on its collective memory. The specific questions the jury referenced had, overall, answers that were inculpatory to Marinez. Defense counsel could reasonably decide that the jury’s request meant it wasn’t sure how A.M. had answered these questions and could decide it would be to Marinez’s disadvantage to have the answers read. In addition, there were answers to other questions that indicated Marinez made her do something scary to her in her bedroom that involved him undoing his zipper. Defense counsel could reasonably decide that, even if the court would allow A. M.’s entire testimony to be read, which would include the last two favorable answers, that would not outweigh the disadvantage of hearing the unfavorable answers. Thus, it was a reasonable strategy to propose that the court instruct the jury to rely on its collective memory.