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Trial counsel was not ineffective for failing to object to testimony about recorded conversations in Spanish between the defendant and the victim

State v. Adamis Figueroa, 2013AP47-CR, District 1, 12/3/13; court of appeals decision (not recommended for publication); case activity

Trial counsel was not ineffective for failing to object to the testimony of a police department employee about the content of two recorded conversations in Spanish between Figueroa and J.R., who alleged Figueroa had sexually assaulted her several years ago, when she was a child. (During one conversation J.R. wore a wire and spoke with Figueroa in person; the second conversation was a one-party consent telephone call.) Vele, a police department employee, translated for officers while the conversations were being recorded. (¶¶2-3, 5-7).

Figueroa argued trial counsel should have raised a hearsay objection to Vele’s testimony about what J.R. said during those conversations. (¶18). The state contended J.R.’s statements were admissible as adoptive admissions under § 908.01(4)(b)2. but Figueroa contended he didn’t adopt her statements. (¶¶18, 22). The court of appeals rejects Figueroa’s contention:

¶24      Adoption can be manifested through silence or absence of a denial. See [State v.Marshall, 113 Wis. 2d [643,] 652[, 335 N.W.2d 612 (1983)]. For example, in Marshall, the Wisconsin Supreme Court concluded that Arthur Johnson’s testimony was admissible as an adoptive admission. Id. at 647, 652. Johnson testified that he heard the defendant request payment from Elijah Jackson, to which Jackson replied that he would not pay because the defendant had “hit” the wrong guy. Id. at 645. Rather than deny the accusations, the defendant “responded that he had put his life on the line anyway[.]” Id. at 648.  The court stated that: “One would certainly expect a denial from an innocent party accused of something as serious as murder,” and that the defendant’s failure to deny Jackson’s accusations constituted an adoptive admission. Id. at 652.

¶25      Similarly here, Figueroa adopted J.R.’s serious accusations by failing to deny them. J.R.’s questions to Figueroa, asking him why he sexually abused her as a young child, particularly those questions asking why he engaged in specific sex acts, were made directly to him and are certainly the types of statements that a person would ordinarily deny if they were not true. See id. Even if Figueroa had heard the accusations before, accusations of child sexual abuse are so serious, it is reasonable to conclude that a person would ordinarily continue to deny them, if not true. See id. Figueroa “manifested [his] … adoption or belief” in the truth of the statements, for purposes of admissibility under § 908.01(4)(b)2., by his silence and his non-responses to J.R.’s inquiries. See id.see also United States v. Jinadu, 98 F.3d 239, 244 (6th Cir. 1996) (“Adoption can be manifested by any appropriate means, such as language, conduct, or silence.”). …

Even if trial counsel should have objected, Vele’s testimony about J.R.’s statements was not prejudicial: “J.R.’s allegations against Figueroa were already abundantly clear to the jury. She testified to them at length and in detail at trial. Vele’s testimony regarding those allegations is merely cumulative and does not convince us that the outcome of the trial is unreliable.” (¶26).

Trial counsel was also not ineffective for failing to object to Vele’s testimony under the “best evidence” rule, § 910.02, and to argue the recordings themselves should have been played instead of having Vele testify about their contents. (¶27). The court of appeals concludes the purposes of the best evidence rule would not be served by playing tapes of conversations in Spanish. (¶29). Nor was trial counsel deficient for failing to object to Vele’s competence to translate based on the fact she is not a certified Spanish language translator, as all that is needed is “a proper foundation … establishing the witness’s competence in English and the other language.” (¶32). And even if trial was deficient on these two grounds, Figueroa wasn’t prejudiced given that he called a certified Spanish language translator who impeached some of Vele’s translations of the conversations. (¶¶28, 33-35).

Finally, trial counsel was not ineffective for failing to object to the testimony of Castro, J.R.’s childhood friend, that J.R. had inserted a toothbrush into her own vagina, testimony Figueroa argues was irrelevant and in violation of the rape-shield law, § 972.11(2)(b). The court concludes that even if the evidence was inadmissible, it did not prejudice Figueroa given that the “hours of graphic testimony” from J.R. (¶40). Other instances of hearsay Castro testified to, including her statement that J.R.’s brother said he believed J.R.’s allegations, were also nonprejudicial. (¶¶41-45).

The court of appeals makes Figueroa’s “best evidence” argument seem a bit absurd by noting it makes little sense to play tapes of conversations in Spanish during a trial conducted in English. (¶29). But Figueroa’s brief (at 27-28) makes it clear he wouldn’t expect the jurors to listen to the tapes without assistance, as he points out an in-court interpreter could have translated as the tapes were played or a certified transcript with a translation could have been provided. Further, the court misapprehends Figueroa’s argument about the qualifications of the Vele. His brief (at 24-25) simply argues the prosecutor laid no foundation at all for her qualifications as a translator, not that Vele needed to be state-certified in order to testify. This misunderstanding doesn’t matter, of course, given the court’s rejection of the claim based on lack of prejudice.

The circuit court adopted the state’s brief in toto as the basis for its denial of Figueroa’s postconviction motion, and the court of appeals “once again” cautions trial courts not to do that. (¶13 n.4). (For other recent instances of this practice, see here, here, and here). The court of appeals also says–once again–that the trial court’s adoption of the state’s brief is of no consequence because it independently reviews the questions presented in the appeal.

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