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State v. Maceo W., No. 2009AP3098, District I, 6/2/10

court of appeals decision (1-judge; not for publication); for Maceo: Brian C. Findley

TPR – Assume-Responsibility Ground

Evidence sufficient to support verdict on § 48.451(6) ground of failure to assume parental responsibility for child born prematurely with significant medical needs:

¶30     The trial court accurately concluded that the evidence it outlined was sufficient to support the jury’s verdict that Maceo failed to assume parental responsibility of Jalacea. Maceo points to evidence that he visited Jalacea in the hospital and lived with her for two months to demonstrate that he “expressed concern for or interest in the support, care, or well-being of Jalacea.” See Wis JI‑Children 346. However, that was only one factor that the jury was to consider, and there was ample evidence that could convince the jury that while Maceo, at times, took some minimal interest in Jalacea, his relationship with her was at no point “substantial.” Further, Maceo has pointed to no evidence that during the time he lived with Jalacea that he did anything but share a roof with her. Indeed, Maceo admits he could not be left alone with Jalacea because he was unable to learn to care for her special medical needs. But Maceo points to no evidence in the record that demonstrates that he was unable to assist with Jalacea’s more basic needs or that he ever made an attempt to assist with those needs. The jury was free to conclude that merely being physically present in Jalacea’s life did not establish a “substantial parental relationship.”

There’s more, of course (always is); Maceo dealt drugs when he might have visited his child, landing himself in prison, and he struck the child’s mother. But the fact remains that the ground relied on by the court of appeals, § 48.451(6), is one whose “viability and constitutionality” is currently questioned by a pending certification, as the court itself acknowledges, ¶33. (See this post.) The court nonetheless distinguishes that challenge from Maceo’s on the basis that Maceo was not “the child’s primary caretaker,” ¶35. (“Accordingly, the pivotal question of whether Maceo may have engaged in substantial parenting but not have established a substantial parental relationship with Jalacea is not in play in this case.”) The court thus splits an awfully fine hair, one not recognized explicitly by the certification. Nor is the distinction implicit. The question isn’t whether the parent was the primary caretaker but whether the parent had a “substantial relationship” with the child. Indeed, the court goes on, in discussing a different issue, to note that, “whether Maceo did establish a substantial parental relationship with Jalacea was the question the jury was directed to answer,” ¶42. “Substantial relationship” simply is not the same as “primary caretaker.” If the supreme court agrees to review the certification, then there’s a decent basis for review in this case as well.

TPR – Nonstandard JI – Incarceration as Ground

A “nonstandard” instruction, to the effect that “incarceration is not a defense to failure to assume parental responsibility,” was not erroneous, ¶¶40-44.

TPR – Evidence – Domestic Violence, Relevant to Ground

¶51     In short, the trial court did not abuse its discretion when finding that the evidence that Maceo engaged in violent behavior in the family’s home was relevant to whether he had a substantial parental relationship with Jalacea.  The trial court appropriately weighed the relevant evidence, applied a proper standard of law, and reasonably determined that the relevance of the evidence of domestic violence outweighed the prejudicial value of the evidence, even though the prejudicial value was substantial.  See State v. Sullivan, 216 Wis. 2d 768, 280-81, 576 N.W.2d 30 (1998).  We cannot overturn that decision.  See id.

TPR – Evidence – Prior Criminal History

Maceo’s erroneous testimony that he had been convicted “about twenty times” when he had in fact been convicted 12 times, was not prejudicial:

55 Maceo’s trial counsel did, in fact, file a motion in limine objecting to the admission of evidence of prior crimes. However, the trial court never ruled upon the motion and trial counsel admitted that at the time of the trial he mistakenly believed that the motion had been decided in the State’s favor. Trial counsel also conceded that although he had spoken with Maceo four or five times in preparation for questions about “convictions to admit to the jury,” because Maceo answered the question regarding the number of his convictions wrong, trial counsel should have discussed it with him more.

¶56      Even assuming, without deciding, that trial counsel was deficient for not objecting to the admission of Maceo’s prior crimes and for not adequately preparing Maceo to testify about the number of his convictions, there is no prejudice. See Strickland, 466 U.S. at 697. Following the State’s examination of Maceo, his trial counsel briefly asked him a few follow-up questions with respect to his prior criminal convictions. That testimony informed the jury that Maceo’s current sentence was his first felony conviction, that at least seven of his prior convictions were for operating after revocation, and that “other convictions were misdemeanors.” Given that Maceo’s criminal history was rather benign and that the evidence was only a small part of that given over the four day trial, we agree that trial counsel’s failure to follow-up on his objection was harmless. The jury could not reasonably conclude that Maceo was “dangerously incorrigible” as he contends based upon the testimony. Because the error was harmless, there was no prejudice and trial counsel was not ineffective. See id.

Of course, this testimony was the product of deficient performance. It’s not even clear that the  majority of priors (7 OARs) would have been available for impeachment. On the other hand, absence of prejudice is at least arguable, State v. Bowie, 92 Wis.2d 192, 205, 284 N.W.2d 613, 617 (1979) (Bowie admitted four convictions when he only had one: harmless error, because “the standard jury instruction does not direct the jury to give the number of convictions special consideration, although the number of prior convictions is admissible evidence”). Given his incarceration, Maceo’s jury would have known he had a criminal history, so the precise number of priors might not have had decisive impact. But there is no discussion as to whether the jury was given a proper limiting instruction as in Bowie (that priors may be used only for purposes of credibility), so it’s unwise to make close comparisons.

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