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Trial counsel wasn’t deficient in cross examining complaining witness

State v. Harvey A. Talley, 2018AP786-CR, 2018AP787-CR, & 2018AP788-CR, District 1, 3/19/19 (not recommended for publication); case activity (including briefs)

Talley, who was convicted of first degree sexual assault causing pregnancy in violation of § 940.225(1)(a), argues trial counsel was ineffective for failing to elicit testimony from A.D., the complainant, the reasons why she initially falsely alleged Talley had forcible, nonconsensual sex with her. The court of appeals holds trial counsel’s strategy in questioning A.D. was reasonable.

A.D., the teenage daughter of Talley’s wife, told multiple stories about her sexual relationship with Talley. Initially she told police Talley engaged in forcible, nonconsensual intercourse with her. She subsequently said she had intercourse with him while he was passed out from taking medication. A few months after that she told police she and Talley had repeated intercourse as part of a consensual relationship, that she alleged the forcible assault because the truth would have made her mother angry, and that she was now coming out with the truth to “rid herself of guilt.” Finally, she said the intercourse “just happened” while she and Talley were watching TV one night. (¶6). At trial she insisted she wasn’t raped and that they had consensual sex about 10 times. (¶8).

Talley faults trial counsel for not asking A.D. why she lied to police and why she was now coming forward with the truth, arguing she would have said she lied because she did not want to anger her mother and that she came forward with the truth “to rid herself of guilt.” But trial counsel wasn’t sure what she would say if he’d pressed her, given her varying, inconsistent statements, so his decision not to press her on her motives was reasonable. (¶21). Further, it’s not clear the jury would have credited A.D.’s claimed motivations, given her inconsistent statements and evidence that she was being pressured to “fix” the sexual assault charge. (¶22).

¶23     …. It is objectively rational for trial counsel to obtain the testimony most helpful to the defendant and avoid further questioning of an unpredictable witness that might prompt answers requiring counsel to impeach a witness who was otherwise helpful to the defense. In the context of the rest of the evidence, it is an objectively rational decision to minimize the potential of specific damaging evidence against Talley after trial counsel secured from A.D. repeated testimony that the pregnancy resulted from a consensual relationship, that Talley had not raped her, and that she had “made up” the rape allegation.

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