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No severance, no ineffective assistance, no suppression, no in camera review of mental health records

State v. Gregory Tyson Below, 2014AP2614-2616-CR, 1/12,16, District 1 (not recommended for publication); case activity, including briefs

This was a high profile case in Milwaukee. Below was convicted of 29 charges of kidnapping, strangulation and suffocation, sexual assault, battery, reckless injury and solicitation of prostitutes. He appealed and asserted 4 claims for a new trial. The court of appeals rejected all of them.

1.  Severance.  The State charged Gregory Below with sexually assaulting 9 victims, using extreme violence and some sort of restraint. Allegedly, he choked and strangled 7 of them. Below claims that the trial court should have severed the charges for trial. A court may join crimes if  they “are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan,” but not if it appears the defendant or State will be prejudiced. Wis. Stat. §971.12(1) & (3) The court of appeals catalogued the similarities of the crimes at ¶14 and then affirmed the trial court based on the absence of “substantial” prejudice. See State v. Hoffman, 106 Wis. 2d 185, 209, 316 N.W. 2d 143 (Ct. App. 1982):

The mere fact that there were a large number of victims and allegations over a five-year span does not by itself establish that Below was substantially prejudiced–particularly in a case where he does not dispute the trial court’s analysis that the evidence of the allegations involving each victim would have been relevant regarding the other victims under WIS. STAT. § 904.04. Moreover, we do not find his additional arguments regarding the strength and “quality” of the witness testimony or “damning photos” of M.M. that supposedly infected the jury’s verdict regarding one of the counts involving J.O. persuasive. As the State correctly notes, the trial court could not have decided a pretrial motion to consolidate “by speculating or attempting to foresee the quantity or quality of evidence the parties will introduce at trial.” Rather, the court must decide the motion based on the allegations in the complaint. Slip op. ¶16.

2.  Ineffective assistance of counsel. Below argued that his trial counsel was ineffective for failing to object to: (1) hearsay evidence about other women who allegedly had been assaulted by, and were afraid of, Below (see ¶23); (2) evidence of his HIV status; and (3) references to his accusers as “victims.” Under Strickland, Below had to show deficient performance and prejudice. The court of appeals rejected all 3 claims for lack of prejudice.

Regarding the hearsay evidence, the court noted that 16 out of 18 statements were made by witnesses who testified at trial and were subject to cross-examination. It stressed that Below himself testified that he offered women drugs or money in exchange for consensual sex. Without reciting the evidence presented at trial, the court held:

The irreconcilable conflict between the in-court version of events of Below and his accusers was the central focus of this three week trial. Given the totality of the evidence in this case, the hearsay statements Below cites above did not deprive him of a fair trial. Slip op. ¶26.

Regarding admission of Below’s HIV status, the court said this was a self-inflicted wound that could not be attributed to counsel’s performance:

Below’s own trial testimony introduced the subject through no fault of his attorney. The prosecutor asked Below on cross-examination why he did not use protection during the numerous sexual encounters he had freely described. Below responded: “Well, I mean it is no excuse. Like they say, get high, get stupid, get AIDS.” Slip op. ¶29.

Regarding the 40 references to Below’s accusers as “victims,” the court did really not analyze the argument other than to say that in some instances witnesses used the word “victim” in the generic sense and that this was not prejudicial enough to satisfy Strickland. Slip op. ¶33.

3. Suppression.  Below also challenged a search warrant, arguing that the supporting affidavit failed to establish a sufficient link between his DNA and various assaults. The court of appeals held that the evidence presented at the suppression hearing supported the trial court’s probable cause finding:

The factual information, read as a whole, reveals facts and reasonable inferences from those facts that Below disregards. While it is true that read in isolation, the paragraphs he relies upon deal with undeveloped possibilities, the affidavit in its entirety establishes that the detectives followed up on those possibilities. The result was information revealing Below to be closely tied to the grey van that contained an apparent bloodstained white rag and an apparent bloodstained rear seat, consistent with J.D.’s report. In addition, these pieces of circumstantial evidence joined forces with [the accuser’s] reported personal experience: Below’s egregious bloody sexual assault and prior violence toward her. Slip op. ¶43.

4. In camera review of mental health records. The trial court denied Below’s request for in camera review of the mental health records of one of his accusers. Her mental health problems, he argued, were relevant to her ability to recall events accurately and thus her credibility. See State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298. The court of appeals affirmed on this point too.

Below points to the fact that C.R. was nervous and distraught, that she delayed reporting the assaults, and that she threatened to harm herself if police charged him with a crime. These factors do not, in our opinion, meet the Green standard. There is nothing that shows that the mental health records at issue would have suggested that C.R. suffered from any psychological disorder that hindered her ability to relay truthful information. See id., ¶37 (defendant in similar circumstances “failed to show any evidence to even remotely suggest that [the victim] suffered from any psychological disorder that hindered her ability to relay truthful information”). Indeed, contrary to what Below argues, his case is even less a “close call” than Green was, as in the Green case the victim not only delayed reporting the assault at issue, but also gave significantly conflicting descriptions of the assault. See id., ¶¶4-8, 37.


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