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Trial counsel found ineffective; promised defendant would testify, told jury about defendant’s sordid past, failed to elicit impeachment evidence

State v. James Richard Coleman, 2015 WI App 38; case activity (including briefs)

Coleman’s trial lawyer was ineffective for telling the jury Coleman would testify when Coleman had never said he intended to testify; for telling the jury that Coleman had a prior criminal conviction; and for failing to impeach the victim’s allegations by eliciting inconsistent statements she made to other witnesses.

Coleman was charged with two counts of sexual assault of 13-year-old C.B. (¶¶2-3). During voir dire and in his opening statement, trial counsel told the jury that Coleman had a prior criminal conviction, had spent time in prison, and had “done all kind[s] of things in his past. So he’s not an angel here,…” (¶¶4-5). Counsel also told the jury in opening that “Mr. Coleman will testify because he has to testify here from my point of view. It’s my call to make as a defense attorney. We’re going to testify and show through cross examination that the facts are not as [the prosecutor] said and weaved this third grade story, telling this story.” (¶5). Coleman didn’t testify, and in closing argument trial counsel said nothing about the promise he’d made in opening. (¶6).

Trial counsel justified his disclosure of Coleman’s prior record because he believed it would be revealed to the jury at some point and he thought it would help weed out biased jurors. (¶¶24-26). But Coleman’s record would have come out only if he had testified (and then only for impeachment under § 906.09) and Coleman had never told counsel he would testify. Nor is there any indication in the record that counsel used the disclosure to question jurors about bias. (¶¶25-27). Thus, counsel’s acted unreasonably:

¶27      Without an unambiguous commitment from Coleman that he would testify, defense counsel’s disclosure of a prior conviction for the purpose of enhancing Coleman’s credibility before Coleman took the stand, was not a reasonable strategic decision. Defense counsel’s performance in that respect was deficient. A defendant’s credibility becomes a jury issue only if the defendant testifies. By sharing information about Coleman’s prison time, as well as by demeaning his client’s character with comments about Coleman doing “all kind[s] of things in his past” and not being “an angel,” defense counsel told the jury things that, if disclosed by the State at that time or later, would likely have resulted in a mistrial. See Mulkovich v. State, 73 Wis. 2d 464, 473, 243 N.W.2d 198 (1976) (unnecessarily informing a jury of a defendant’s prior convictions can constitute prejudicial error, mandating either a mistrial or reversal). ….

And because Coleman had never said he intended to testify, trial counsel’s opening promise was also unreasonable:

¶29      …. Counsel characterized his unambiguous representation to the jury that Coleman would testify as a “strategic” decision to give Coleman “some sort of credibility” with the jury. Because Coleman’s credibility would not have been before the jury unless he first testified, it is difficult to discern any legal or factual support for that statement at the time counsel made it. How this damaging disclosure could give either Coleman or his defense “some sort of credibility” suggests counsel’s belief that Coleman and his defense lacked credibility before the trial had even commenced. Such a view ignores the presumption of innocence, and the State’s burden of proof. ….

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¶31     …. As to defense counsel’s statement that defense attorneys decide whether their clients testify, counsel acknowledged at the Machner hearing that the right to testify was Coleman’s alone. It is a defendant’s constitutional right to testify, and that right can be waived or exercised only by the defendant. See State v. Albright, 96 Wis. 2d 122, 128, 291 N.W.2d 487 (1980). Counsel unambiguously and knowingly misstated the law to the jury. We cannot discern how counsel reasonably believed he was helping Coleman’s credibility by knowingly misstating the law and counsel’s authority to the jury. At best, counsel seriously damaged his own credibility with the jury when he made an unambiguous representation which he had no basis for believing he could keep, and which he did not fulfill.

At the postconviction hearing Coleman testified he wanted to take the stand at trial and that he told trial counsel that, but trial counsel testified Coleman never said he wanted to testify. The trial court found trial counsel more credible, and the court of appeals relies on that credibility determination to treat this as a case where trial counsel did not know the defendant wanted to testify. (¶¶25 n.3, 26 n.4, 28-32 & n.5). This distinguishes Coleman’s case from State v. Krancki, 2014 WI App 80, 355 Wis. 2d 503, 851 N.W.2d 824, where before trial the defendant insisted he wanted to testify and counsel’s opening statement was based on that insistence. Based on the defendant’s, “counsel was ethically bound to Krancki’s  decision to testify as that was Krancki’s constitutional right, and counsel’s … statement … was a direct result of a decision dictated by Krancki.” Id., ¶11. “Unlike in Krancki, the record does not establish that Coleman unambiguously asserted his wish to testify; nor does the record establish that before the beginning of trial, Coleman led his lawyer to reasonably believe that he would testify.” (¶32).

Counsel was also deficient for failing to elicit inconsistent statements C.B. made to various witnesses that Coleman ejaculated during the incidents. Counsel’s reasoning was that because lab testing of C.B.’s clothing and bedding found no DNA to substantiate allegations of that sort, there was no reason to “open the door” on the allegation; further, he “didn’t want to talk about any sticky, wet substance on a 13-year old girl before a jury that’s already heard it.” (¶35).

¶35      …. This explanation is not reasonable given counsel’s role as Coleman’s defense counsel. Surely, discussing semen on a thirteen-year-old girl is no one’s preferred activity. Nonetheless, it is that thirteen-year-old girl’s statements to third parties that made such a discussion relevant and material in this case. The discussion was relevant and material precisely because of the lack of male DNA in places where it would normally be expected to be found (i.e., on the unwashed bedding and clothing) if C.B.’s report of the second assault was accurate. Counsel’s decision not to pursue this evidence, apparently because he believed it was distasteful to the jury, was not a reasonable strategic decision given the facts in this record. ….

Finally, counsel’s deficient performance was prejudicial. (¶¶40-46).

¶46      …[T]he cumulative effect of counsel’s multiple deficiencies undermines our confidence in Coleman’s conviction. There was no physical evidence of an assault. There were no witnesses to the assault. The entire case depended on whether the jury found C.B. credible. The combination of counsel’s errors bolstered C.B.’s credibility by failing to present significant impeaching evidence. The combination of counsel’s other errors impugned Coleman’s character before the jury by providing inadmissible information that could easily have resulted in a mistrial had it come from the State. Coleman was prejudiced on both fronts.

Judge Brennan dissents, saying the majority isn’t deferential enough to trial counsel’s strategic decisions and that even if trial counsel was deficient there was no prejudice. (¶¶48-71).

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