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Failure to develop defendant’s testimony, object to hearsay didn’t prejudice defense

State v. Akim A. Brown, 2017AP1332-CR, District 1, 11/6/18 (not recommended for publication); case activity (including briefs)

Brown, charged with second degree sexual assault of L.S., testified their sexual encounter was consensual. He argues trial counsel was ineffective for failing to elicit from him certain testimony that would have helped show the encounter was consensual and for failing to object to testimony about L.S.’s prior consistent statements. The court of appeals concludes counsel’s shortcomings didn’t prejudice Brown’s defense.

L.S. testified she did not consent to sexual intercourse, while Brown testified to a course of interaction between the two that tended to show she did. (¶¶2-7, 10-11). He argues trial counsel should have elicited his testimony about L.S. stimulating herself during sexual intercourse, as that would have helped establish the consensual nature of the encounter. (¶14). The evidence “is certainly relevant to the primary issue in this case[;]” but, the court says, “Brown’s testimony about the incident was very detailed and included other information that suggested that the intercourse was consensual, ….” (¶22). Thus, even if trial counsel was deficient on this point, Brown hasn’t shown prejudice–i.e., that the verdict would have been different had the jury heard testimony about L.S.’s self-stimulation in addition to the other substantial testimony  from Brown suggesting L.S. consented to sexual intercourse. (¶23).

The court also agrees trial counsel probably should have objected to the testimony about the statements L.S. made about the incident to a friend and to the police. (¶¶8-9, 14). The court rejects the state’s claim they were admissible as prior consistent statements under § 908.01(4)(a)2. because Brown was claiming L.S. fabricated her story. Alleging a complainant is lying during cross-examination “is not sufficient to render the prior consistent statement admissible.” State v. Mainiero, 189 Wis. 2d 80, 102-03, 525 N.W.2d 304 (Ct. App. 1994). (¶¶25-26) Again, however, trial counsel’s failure didn’t prejudice Brown. The jury heard an “abundance of details regarding the night of the incident, many of which suggest that L.S. was a willing participant in their sexual encounter,” and some of which were also included in the testimony about L.S.’s prior consistent statements. (¶¶26-27).

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