State v. Ronell Howlett, 2012AP1672-CR, District 1, 5/14/13; court of appeals decision (not recommended for publication); case activity
Howlett, a school bus driver, was convicted of three counts of sexual assault of C.A., a nine-year-old child he was responsible for driving. (¶¶1-3, 7). Adopting significant portions of the trial court’s postconviction ruling, the court of appeals rejects his claim that trial counsel was ineffective in the following ways:
- Failing to introduce C.A.’s attendance records: C.A. testified the the assaults occurred on three days “right in a row” and “three straight days” in “the 20’s of May,” but trial counsel’s failure to introduce records showing she was not in school on three consecutive calendar days in that period was not prejudicial because the records show she was in attendance three consecutive school days and the jury could reasonably have concluded she meant three straight school days, not calendar days. (¶¶14-16).
- Failing to impeach C.A. with her preliminary hearing testimony regarding the duration of the assaults: C.A.’s description of the duration at the prelim (“two seconds”) differed from her trial testimony (“a minute”), but the differences were so “minute” that it would not have caused the jury to doubt her credibility. (¶¶17-19).
- Failing to present evidence that C.A. was exposed to sexually explicit terms via her peers: C.A.’s use of sexually explicit terms to describe the assaults was not to corroborate them based on words she learned from Howlett, but to describe his behavior. Because it was her detailed description of the assaults that persuaded the jury, evidence of where C.A. learned the explicit language would not affect the reliability of the verdict. (¶¶20-22).
- Failing to object to leading questions put to the investigating officer and to hearsay in the officer’s testimony: Assuming counsel was deficient for not objecting, the officer’s testimony was not prejudicial because it did not create an impression the officer endorsed or believed C.A.’s testimony, and the hearsay, which consisted of repeating C.A’s allegations, was “too brief” to reinforce C.A.’s own detailed testimony about the assaults. (¶¶23-28).
- Failing to introduce testimony regarding C.A.’s reputation for untruthfulness: Though one of C.A.’s teachers would have testified to her reputation for being untruthful, failing to present the witness was not prejudicial. The teacher had ties to Howlett, weakening the weight of the evidence, especially when compared to C.A.’s very detailed account of the assaults, which included details typically beyond the grasp of children and thus showing it was unlikely she fabricated the claims. (¶¶29-30).
- Failing to impeach C.A. about an allegation she stole a cell phone from a teacher: Howlett contended C.A. stole a phone from his bus, and then claimed he gave it to her in exchange for sexual contact. (¶¶3, 4, 33). Trial counsel was not deficient in failing to elicit an allegation regarding an earlier phone theft because, the court concludes, the evidence was not admissible under any of the theories Howlett offers. It was not habit evidence under Wis. Stat. § 904.06(1) because there was insufficient evidence to establish a pattern or routine. (¶¶33-34). It was not offered for a proper purpose to be other acts evidence under Wis. Stat. § 904.04(2)(a), but was simply propensity evidence that she stole a phone before. (¶¶33, 35). Nor was it a specific instance of prior conduct under Wis. Stat. § 906.08(2), as C.A. never testified to her character for truthfulness. (¶¶33, 36).
- The cumulative impact of trial counsel’s errors: Having dispatched each individual claim, the court of course concludes there is no cumulative effect. (¶38).
I believe the court of appeals misapplied Wis. Stat. sec. 906.08(2) regarding specific instances of conduct probative of truthfulness. Howlett’s counsel was attempting to impeach C.A. with a prior act of theft. The court of appeals claims that was inadmissible because C.A. never testified to her character for truthfulness. But Wis. Stat. sec. 906.08(2) doesn’t require that. The language of the statute provides that specific instances of conduct of a witness may, “if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to his or her character for truthfulness or untruthfulness.” The statute’s first instance when this can be done, on cross-examination of the witness, is what Howlett was doing. The second instance is specifically when a witness testifies to his or her character for truthfulness or untruthfulness, which is not what Howlett was doing. The word “or” separates those two instances, indicating they don’t both require the witness to first testify about his or her character for truthfulness before the witness’ credibility can be attacked with specific instances of conduct. The court of appeals’ decision effectively reads that first instance out of the statute.
Granted, the statute should probably be re-written to be clearer. For example, the first instance seems to make the second instance redundant. If this evidence can be used for any cross-exam of a witness generally, it is logically also admissible for cross-exam of the witness when they’ve testified to their character for truthfulness. I believe the correct reading is that the legislature intended to make a distinction when it used “the witness” in the first instance and “a witness” in the second instance, suggesting the second instance occurs when another witness testifies to the character of the first witness, and the specific instance of conduct regarding the first witness can be used to impeach the second witness (e.g. another witness testifies that C.A. has a good character for truthfulness, and that witness is impeached with whether they are aware C.A. previously stole a cell phone, and if that changes their opinion).
Regardless, I believe the way the statute is written allows the type of impeachment Howlett attempted.