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References to victim’s truthfulness, parochial schooling don’t merit new trial

State v. Joshua J. Feltz, 2014AP2675-CR, District 1, 9/29/15 (not recommended for publication); case activity (including briefs)

Feltz hasn’t shown his defense was prejudiced when his trial counsel elicited a statement about the truthfulness of the victim. Nor was defense counsel deficient in agreeing to allow the prosecutor to refer in closing to the victim attending a school “where moral guidance is provided.”

Feltz was charged with two counts of repeated sexual assault of T.S. over two time periods—from May 2003 to September 2004 and September 2004 to September 2005. (¶¶2-6). During cross-examination of Young, the investigating officer, trial counsel asked a question that led the officer to state that it appeared T.S. “was being truthful.” Trial counsel’s objection to the answer was overruled and a motion for mistrial was denied. (¶7). Even if trial counsel was deficient for eliciting an answer from the officer that violated State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984), the second prong of ineffectiveness isn’t met:

¶20     Here, Feltz cannot show that the questions and answers prejudiced him. First, Young did not testify that T.S. was telling the truth in her trial testimony. She did not vouch for T.S.’s credibility at trial. Rather, Young testified that T.S. appeared to be giving truthful information during the police interview. This mitigates any prejudice. Second, the trial court specifically told the jury to disregard Young’s impression as the jury is solely responsible for determining who is telling the truth. We presume juries follow instructions. See State v. Marinez, 2011 WI 12, ¶41, 331 Wis. 2d 568, 797 N.W.2d 399. ….

That the witness was vouching for the victim as to what she said during the police interview versus at trial is a completely meaningless distinction and mitigates nothing. The witness in Haseltine didn’t directly vouch for the victim’s trial testimony, either, but simply opined there was no doubt she was an incest victim, and that was “an opinion that she was telling the truth,” 120 Wis. 2d at 96, whether at trial or in speaking to anyone else, even cops.

Nor was trial counsel ineffective for allowing the prosecutor to refer to T.S.’s attendance at a school “where moral guidance is provided.” The prosecutor initially stated T.S. attended “a Christian school,” but trial counsel objected to that as violating § 906.10; then, at a side bar, trial counsel agreed the prosecutor could refer instead to the “moral guidance” language. (¶¶10-11, 22). Counsel wasn’t deficient for agreeing to that language:

¶24     Although Wis. Stat. § 906.10 prohibits a witness’s religious beliefs or opinions being used to enhance credibility, the language “moral guidance” is not a religious belief or opinion. Rather, “moral” is “of or relating to principles or considerations of right and wrong action.” See Moral, Webster’s Third New International Dictionary (1993). Thus, use of the language “moral guidance” was proper and any further objection by Feltz’s trial lawyer would have been overruled.

¶25     Moreover, the prosecutor is allowed to argue that a witness is credible in closing argument, see State v. Lammers, 2009 WI App 136, ¶16, 321 Wis. 2d 376, 773 N.W.2d 463, the closing argument is not evidence, and the ultimate determination of credibility is for the jury to decide based on the actual evidence, see State v. Mayo, 2007 WI 78, ¶44, 301 Wis. 2d 642, 734 N.W.2d 115. Feltz’s trial lawyer did not act deficiently in not objecting to the prosecutor’s closing argument.

The court also holds there was sufficient evidence to convict Feltz of the second count:

¶16     T.S. testified that Feltz assaulted her at least twelve times and that each time consisted of three separate sexual acts. That is a minimum of thirty-six sexual assaults. She said that the sexual assaults continued through the time she was in second grade and the summer after second grade, which would be September 2004 to September 2005. T.S. testified that Feltz sexually assaulted her almost every time he visited his grandparents. The record reflects that at a minimum, Feltz went to his grandparents four times a year. Based on this evidence, a jury could have reasonably found that Feltz repeatedly sexually assaulted T.S. at least three times during the time period set forth in count two. ….

Based on the briefs, this sufficiency analysis either misreads or ignores the record. T.S. didn’t emphatically say each incident involved three separate acts, but that the acts happened “pretty much every time….” As to “a minimum” number of visits to the grandparents, Feltz’s grandmother actually said he visited “maybe” four times a year. And, apparently T.S. didn’t say the acts continued through the second grade, but that something “might” have happened to her during second grade, as well as that the acts ended during second grade and that she didn’t think anything happened in third grade, which was the September 2004 to September 2005 time period.

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