Friar challenges his conviction for sexual assault by use of force, claiming the circuit court erroneously admitted certain evidence and that his trial lawyer was ineffective. The court of appeals rejects his challenges.
This is a lengthy (36 pages) and fact-bound opinion, especially regarding the ineffective assistance claims, so this post can give only an overview of most of the issues. Anyone litigating similar issues should read the decision carefully, along with appellate defense counsel’s well-done briefs.
The complaining witness, M, testified she’d met Friar, liked him, and given him her phone number. They met a few days later and, after drinking, dancing, and making out, went to his apartment. Once there, she said, his manner changed, and he had forcible sexual contact with her, and squeezed her neck, causing her to black out. She came to and found Friar passed out on top of her. She left and, after talking to her roommates, contacted police. After giving a statement to the police, she went to a hospital for a forensic exam, during which she called her parents. Friar denied he strangled or sexually assaulted M. (¶¶3-10).
Erroneously admitted evidence
Of the claims challenging the trial court’s evidentiary rulings, Friar makes the most headway on the admission of M’s statements to her roommates as prior consistent statements. As happens all too frequently, the trial court thought that because Friar’s defense was that M fabricated the assault, her prior statements were admissible to rebut the claim of fabrication. But this ignores the requirement that the prior consistent statement be made before the alleged fabrication or motive to fabricate. § 908.01(4)(a)2.; State v. Miller, 231 Wis. 2d 447, 470, 605 N.W.2d 567 (Ct. App. 1999). Friar argued M was lying from the start because she immediately regretted her consensual encounter with him, and therefore her statements to her roommates weren’t made before she had the motive to lie. The state claims the roommates’ statements were proper to bolster her trial testimony, which offered more detail than her initial statements, against Friar’s implied argument that her trial testimony was embellished to fill the gaps in her memory. The court isn’t persuaded:
¶43 On this point, we agree with Friar. The record demonstrates that, although [the] defense implicitly charged M with fabricating certain details for the benefit of trial (for example, about whether her memory of the evening was clear and about whether her insulin pump was damaged), those implied charges were not rebutted by M’s prior consistent statements to her roommates. M’s statements as testified to by her roommates did not reference those details. Rather, M’s prior consistent statements rebutted the defense’s charges of fabrication of the “story” that M told her roommates, including whether the encounter was consensual and whether Friar strangled and assaulted M.
¶44 Because M’s motive to lie about these matters, as alleged by the defense, existed immediately after her encounter with Friar, M’s prior consistent statements to her roommates were made after that motive to lie arose and, therefore, do not satisfy the third “pre-motive” statutory requirement stated above. Accordingly, we conclude that the circuit court erred in admitting the roommates’ testimony about those statements….
Nonetheless, the court finds the error was harmless. Rejecting Friar’s argument that this was a “he said, she said” case and that the jury’s failure to convict on a strangulation charge shows that the jury did not fully believe M’s testimony, the court points to other evidence the jury had beyond the testimony of M and Friar—namely, video footage, photographs, forensic examination reports, police reports, and testimony from other witnesses—that showed M blocked Friar’s number, texted her friends for help after leaving Friar’s bedroom, spent hours with the police and at the hospital submitting to a forensic exam, during which she called every member of her immediate family and was distraught. The jury also heard testimony from the forensic examiner that M had sustained injuries to her external genitalia. Further, the split verdict only indicates the specific elements of strangulation weren’t proved, but there was other evidence of bruising to M that allowed the jury to infer Friar used force. (¶¶45-50).
Relatedly, Friar challenged the trial court’s decision to admit photographs of the injuries to M’s vaginal area and the testimony of M and her parents about her demeanor in the hours after the event. He argued the evidence was inadmissible under § 904.03 because the probative value was substantially outweighed by the danger of unfair prejudice and/or was needlessly cumulative. Applying the daunting erroneous exercise of discretion standard of review, the court rejects his challenges. (¶¶17-30).
Ineffective assistance of counsel
Friar argues his trial lawyer was ineffective on three separate grounds. At the postconviction hearing trial counsel articulated his reasons for his handling of all three topics, and both the trial court nor the court of appeals concluded his decisions were reasonable; accordingly, Friar hasn’t shown counsel performed deficiently and therefore he wasn’t ineffective. The three topics were: failing to object to testimony from the nurse who did the forensic exam summarizing M’s version of events (¶¶60-63); failing to impeach M’s testimony using her prior statements about her memory of the event, her alcohol consumption, and her injuries (¶¶64-78); and for failing to present expert testimony about the effect of alcohol on a person who, like M, has type 1 diabetes (¶¶79-86).