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Rejection of guilty plea, admission of rebuttal expert affirmed

State v. Mychael R. Hatcher, 2015AP297-CR, District 3, 8/16/16 (not recommended for publication); case activity (including briefs)

Hatcher was convicted of sexually assaulting an intoxicated person, obstructing an officer, and bail-jumping. This 38-page court of appeals decision rejects claims that the trial court erred in refusing to accept Hatcher’s guilty plea, admitting expert testimony during the State’s rebuttal, admitting evidence of the victim’s flirting, and ineffective assistance of counsel for failure to move for suppression and for introducing into evidence a report showing the victim’s BAC.

Refusal of guilty plea. At the final pre-trial for this case the court gave Hatcher an ultimatum: “[T]his is the D-day deadline for you to decide if you want to take [the State’s] offer or not . . . So, it’s today or not at all.” ¶10.  You can guess what happened. The morning of trial Hatcher tried to plead guilty to the obstruction and bail-jumping charges. He wanted to confine the trial to sexual assault and get credit for accepting responsibility at sentencing. The trial court said “no.”

A circuit court may, in the exercise of sound judicial discretion, reject a guilty plea. Santobello v. New York, 404 U.S. 257, 262 (1971); State v. Conger, 2010 WI 56, 325 Wis. 2d 664, 797 N.W.2d 341. The court of appeals upheld the exercise of discretion here.

¶17 . . . The court denied that request, citing: (1) its prior warning that it would not accept a last-minute plea; (2) the fact that the jurors were waiting; and (3) the fact that the plea questionnaire form Hatcher signed was not completed, and there was no indication Hatcher had reviewed it. The court provided sound reasons for rejecting Hatcher’s pleas, and its decision to do so was not arbitrary. See Kelly312 F.3d at 330

The court of appeals also held that if an error occurred it was harmless. The obstruction charge was based on the fact that Hatcher had lied to the police about his identity. And the bail-jumping charge was based on the fact that he did that while on bond for a misdemeanor.  His lie to the would have come in at trial whether he or not he pled guilty. ¶20.  And Hatcher offered no proof that the trial court treated him less favorably at sentencing for not having pled to the obstruction and bail jumping charges. ¶22.

Admission of a “reactive behaviors” expert during rebuttal.  Part of Hatcher’s defense strategy was to show that the decision by Williams (the victim) to call her friend before calling the police cast doubt on whether she was actually sexually assaulted. Thus, in its rebuttal the State called an expert to testify that sexual assault victims usually talk to someone they trust before reporting an assault to the police. The court of appeals said this was fine. Section 971.23(1)(d)  requires the State to disclose all witness it intends to call at trial, except rebuttal and impeachment witnesses. The State had no way of knowing Hatcher’s defense strategy until he cross-examined the witness.

¶34 . . . Although the State theoretically could have anticipated that line of cross-examination, the State is not “barred from putting on legitimate rebuttal evidence simply because it correctly anticipated the defense.” Konkol, 256 Wis. 2d 725, ¶16. A contrary rule would “require a prosecutor to assemble and list all possible rebuttal witnesses in anticipation of defense strategies that may or may not be presented at trial,” which would “needlessly protract the entire trial process.” Id.

Admission of evidence that victim was flirting. Hatcher claimed that Williams’s flirtatious behavior suggested consent to sex. The trial court’s exclusion of this evidence thus violated his constitutional right to present a defense.  The proffered evidence, he argued, was essential to his defense per State v. Williams, 2002 WI 58, ¶70, 253 Wis. 2d 99, 644 N.W.2d 919. The circuit court didn’t bite on that, and neither did the court of appeals.

¶54 . . . Hatcher cannot show that any testimony excluded by the trial court was “essential to” his defense. See id., ¶70. Hatcher testified Williams flirted with other men while playing pool with him. Three other witnesses, including Williams, testified Williams made comments about wanting to have sex that night. In addition, the trial court did not prevent Hatcher from testifying that Williams made comments about wanting to have sex with him. Accordingly, it cannot be said that the trial court’s limitation of Hatcher’s testimony left him with no reasonable means of defending his case. Id.

Ineffective assistance of counsel. Hatcher first faulted trial counsel for failing to move for suppression of statements he made during a custodial interrogation without a Miranda warning. Even though the court of appeals said the issue was “close,” it held that Hatcher failed to carry his burden of showing that he was in custody when he made the challenged statement. Thus, he could not meet the “deficient performance” prong of an ineffective assistance of counsel claim. ¶76.

Hatcher also argued that trial counsel was ineffective for offering into evidence a report showing that Williams’s BAC was between .143% and .233% at the time of the assault. According to Hatcher, the report only underscored that she was too intoxicated to consent to sex. He lost that point because trial counsel introduced the report during the cross-examination of a detective who testified that he has seen folks with BAC’s between .14% and .233% who were able to speak and move. ¶80. Supposedly, this dispelled the idea that Williams was too drunk to consent to sex.

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