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No IAC prejudice for not telling jury ID of mysterious “Victoria”

State v. John P. Bougneit, 2018AP74, 10/24/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

A jury convicted Bougneit of fourth-degree sexual assault; he allegedly nonconsensually fondled an 18-year-old woman under a blanket while he, the woman, and his wife were watching a movie together at their house. The wife testified for Bougneit and the state sought to damage her credibility by calling attention to her professed recall–in a statement to police and on the stand–of various seemingly minor details of the evening. 

The wife also testified that a woman named Victoria had told her about the alleged victim’s claims a couple weeks after the assault had supposedly occurred–weeks before the police statement and long before the trial. This, per Bougneit, both explained the wife’s not-yet-faded memory of the night in question and provided an explanation for how she would know about what was alleged (other than having seen the assault happen or heard about it from Bougneit himself). But Bougneit’s counsel never elicited testimony about who this Victoria was, so the jury never heard that she was the mother of the alleged victim–and a former longtime friend of the wife.

Bougneit claims, as he did in his postconviction motion, that counsel’s failure to bring out this fact left the jury free to conclude that “Victoria” was simply made up, by the wife or by Bougneit, as part of their defense strategy. And, at the Machner hearing, trial counsel agreed that it could have enhanced the wife’s credibility to establish Victoria’s identity.

But, says the court of appeals, no prejudice. First, the state did not argue or suggest that Victoria didn’t exist. (¶¶15-16).

Sure, but this doesn’t mean the jury wouldn’t have wondered; a party’s failure to flesh out a factual claim can certainly be damaging even if the other side doesn’t expressly dispute it, right? The jury is free to discredit even uncontroverted testimony, so where a witness’s credibility is at issue, couldn’t it make a difference to provide the sort of detail that makes that testimony more plausible? And in fact…

The jury asked two questions during deliberations, and one was “[The wife] discovered from Victoria that John was accused. Who is Victoria?” The answer they got–that they should rely on their memory–of course left them nowhere, since they couldn’t remember what they hadn’t ever learned. (¶7). So it seems like the jury actually did think this was important.

Prejudice, right?

Nope, says the court of appeals. The jury’s request for this information “could have simply been for context or clarification.” (¶18).

“Could have”? (Also: “context or clarification”? What does that mean here? That the jurors were asking a question having nothing to do with what they were deciding–guilt or innocence?) Here again, we have the court of appeals turning the ineffective assistance prejudice standard on its head. The burden is on the defendant to show a “reasonable probability” of a different result on retrial. Strickland v. Washington makes clear that this burden is even lower than the lowest civil burden, preponderance of the evidence. 466 U.S. 668, 693-94. So, not even 51%. But, per the court, the fact that there “could” be another reason the jury asked about Victoria means Bougneit hasn’t carried his burden. Sounds closer to “beyond a reasonable doubt” that “reasonable probability,” does it not?


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