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Ineffective Assistance of Counsel – Deficient Performance but non-Prejudicial

State v. David W. Domke, 2011 WI 95, reversing unpublished decision; for Domke: Martha K. Askins, SPD, Madison Appellate; case activity

Although Domke establishes deficient performance in several different respects, he fails to satisfy his burden of showing prejudice.

  • Failure to object to hearsay testimony / medical treatment and diagnosis exception inapplicable to counselors and social workers.

Domke was charged with repeated-acts sexual assault of Alicia S.,  his stepdaughter. A therapist (Rusch) testified without objection about their sessions, including an assertion that her “intake form” reflected that Alicia “had been sexually assaulted.”  Rusch’s report, which was admitted into evidence, recorded Alicia’s “whole story” about the alleged assaults. Counsel didn’t object to any of Alicia’s hearsay statements thus conveyed by Rusch, because he thought they were at least arguably admissible under the medical diagnosis and treatment exception. However, counsel wasn’t familiar with State v. Huntington, 216 Wis. 2d 671, 695 ¶42, 575 N.W.2d 268 (1998), which held: “We decline, however, to apply the hearsay exception for statements made for medical diagnosis or treatment, Wis. Stat. § 908.03(4), to statements made to counselors or social workers. Such an expansive application of the doctrine would strain the traditional grounds for the exception.” And this lack of familiarity with relevant caselaw made counsel’s failure to object a function of deficient performance:

¶45  Huntington provides a clear basis upon which Woods could have objected to Rusch’s hearsay testimony.  While the State advocates an alternative reading of Huntington, the well-settled interpretation of Huntington——that it excludes statements made to counselors and social workers from the medical diagnosis and treatment hearsay exception——would have been grounds for Woods’ objection.  216 Wis. 2d at 695; see also Wis. Stat. Ann. § 908.03 (West 2007-08).  From Woods’ perspective as defense counsel, and with no strategic reason to allow Rusch to present this hearsay testimony, he should have objected.  The circuit court noted in its decision on Domke’s postconviction motion that it would have sustained an objection on that basis.

¶46  Under all the circumstances set forth herein, Woods performed deficiently by failing to object to Rusch’s hearsay testimony, not because allowing the testimony was part of his trial strategy, but because he was unfamiliar with Huntington‘s limitation on the medical diagnosis or treatment hearsay exception.

State v. Carter, 2010 WI 40, 324 Wis. 2d 640, 782 N.W.2d 695 “is instructive regarding the extent to which counsel is required to know or investigate the relevant law,” ¶40. There, counsel made a reasonable, strategic decision not to investigate whether certain evidence was admissible. notwithstanding his lack of familiarity with relevant caselaw. Domke’s case is distinguishable:

¶41  In Carter we explained that “[s]trategic decisions made after less than complete investigation of law and facts may still be adjudged reasonable.”  Id., ¶34.  Counsel must either reasonably investigate the law and facts or make a reasonable strategic decision that makes any further investigation unnecessary.  Id., ¶23 (quoting Strickland, 466 U.S. at 691).  Woods did neither.  Woods did not articulate any valid strategic reason for not objecting to Rusch’s hearsay testimony.  Having no strategic reason to allow the presentation of Rusch’s testimony, a reasonable attorney should have investigated whether it was admissible under one of the hearsay exceptions and, if not, objected to that testimony.

The court rejects the idea that the Huntington principle is “obscure or unsettled,” ¶44 (citing, it should be noted, the two leading Wisconsin evidence treatises, Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence § 803.4, at 611-12 (2d ed. 2001), and Ralph Adam Fine, Fine’s WisconsinEvidence, § 908.03(4), at 908-45 (2007)).

  • Cross-examination of witness Rusch.

Counsel twice asked Rusch if Alicia’s allegation might have been a “dream,” something Rusch denied, in her “professional opinion.”

¶49  This court will not second-guess a reasonable trial strategy, but this court may conclude that an attorney’s performance was deficient if it was based on an “irrational trial tactic” or “based upon caprice rather than upon judgment.” State v. Felton, 110 Wis. 2d 485, 503, 329 N.W.2d 161 (1983).  Woods asserted that his theory of the case would have been supported if Rusch had conceded that the first assault could have been just a bad dream.  However, Woods could not provide any information that he had to suggest that Rusch might concede that possibility.  When Rusch responded with a fairly emphatic “no” the first time, Woods asked Rusch this question again, which allowed Rusch to highlight that “[i]n [her] professional opinion, it was not a dream.”  While it may have been reasonable to ask once, it was incautious and inconsistent with any rational trial strategy for Woods to ask Rusch a second time whether she thought the first assault might be the result of a bad dream.  We agree with the court of appeals that Woods’ error in this regard constituted deficient performance.

  • Decision to call Domke’s wife as a witness.

Tina, Domke’s wife and Alicia’s mother, testified she had initially told an investigator she didn’t believe Alicia’s allegations. However, on cross-examination, she testified that she now believed Alicia “100 percent,” Alicia was the bravest girl she knew, and she no longer had any doubt Alicia was telling the truth. Counsel’s decision to have Tina testify was made on the basis of a police report, without first speaking with her; moreover, Domke told counsel she was “vacillating regarding whom she believed” –

¶52  …  A reasonable attorney, knowing that a witness had been vacillating regarding whom she believed, would have done some investigation when faced with the risk of calling a witness who may provide either extremely useful or extremely damaging testimony.  If Woods had talked with Tina Domke he would have discovered that at the time of trial she completely believed Alicia S. and would have realized that the harm from her testimony to that effect likely outweighed any benefit from her testimony that she originally doubted Alicia S.

¶53  Woods’ decision to call Tina Domke as a witness without doing any reasonable investigation into what she might say, even after Domke told him that Tina Domke was vacillating regarding whether she believed Alicia S. or Domke, constitutes deficient performance.  We now turn to whether this error along with Woods’ errors regarding Rusch’s testimony prejudiced the defendant.  We conclude they did not.

  • Prejudice.

¶57  We are convinced, based on our review of the totality of the evidence, that Domke received a fair trial.  This case boiled down to a credibility contest between Alicia S. and Domke.  Woods’ errors may have strengthened the State’s case against Domke by providing additional corroboration for Alicia S.’s testimony and bolstering her credibility.  However, even excluding the evidence admitted due to his errors, the State had a very strong case.  Upon examining the totality of the circumstances we are not persuaded that, but for Woods’ errors, the result would have been any different.  See Strickland, 466 U.S. at 694-95.  Thus, Woods’ errors did not prejudice Domke, and he is not entitled to a new trial.

¶61  Even excluding the testimony of Rusch and Tina Domke that was admitted as a result of Woods’ errors, it is clear that the State had a very strong case against Domke.  There were errors on the part of trial counsel, but under the totality of the circumstances, we cannot say that there is a reasonable probability that but for Woods’ deficient performance the result would have been different.[12]

State v. Thiel, 2003 WI 111, ¶¶63-80, 264 Wis. 2d 571, 665 N.W.2d 305, distinguished, ¶60 n. 11: “Thiel was prejudiced by his counsel’s errors, which kept significant evidence from the jury that would have undermined the complainant’s credibility. Id.  In this case, Domke does not allege that Woods’ errors precluded him from presenting evidence that would have impeached Alicia S.’s credibility, and we conclude that, under the totality of the circumstances in this case, the cumulative effect of Woods’ errors did not prejudice Domke.”

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