2018 WI 28
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2667-CR & 2015AP2668-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Gerrod R. Bell,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 373 Wis. 2d 310, 895 N.W.2d 104
(2017 – Unpublished)
OPINION FILED: April 10, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 23, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Monroe
JUDGE: Michael J. Rosborough
JUSTICES:
CONCURRED: ZIEGLER, J. concurs (opinion filed).
DISSENTED: A.W. BRADLEY, J. dissents (opinion filed).
NOT PARTICIPATING: ROGGENSACK, C.J. withdrew from participation.
ABRAHAMSON, J. did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by and an oral argument by Suzanne L. Hagopian, assistant
state public defender.
For the plaintiff-respondent, there was a brief filed by
Daniel J. O’Brien, assistant attorney general, and Brad D.
Schimel, attorney general. There was an oral argument by Daniel
J. O'Brien.
2018 WI 28
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2015AP2667-CR & 2015AP2668-CR
(L.C. Nos. 2001CF239 & 2001CF249)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. APR 10, 2018
Gerrod R. Bell, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DANIEL KELLY, J. Gerrod Bell says he is entitled to
a new trial because the first one, which resulted in convictions
for the sexual assault of two victims, was unfair——a violation
of his due process rights. He believes it was unfair because
the State told the jurors they could not find him not guilty
unless they thought the victims lied about the sexual assaults,
and that they should not disbelieve the victims because there
was no motive for them to lie. This, he says, shifted the
burden of proof and distorted the jury's credibility
determinations. He also claims the jury based its verdict, at
least in part, on inadmissible evidence contained in two
No. 2015AP2667-CR & 2015AP2668-CR
exhibits sent to the jury room during deliberations. We
conclude that Mr. Bell is not entitled to a new trial and affirm
the decision of the court of appeals.1
I. BACKGROUND
¶2 The State charged Mr. Bell with sexually assaulting
two victims——T.P., who was fourteen years of age at the time,
and her older sister, A.L., who was then seventeen. The
incidents came to light when, in August of 2001, T.P.'s mother
reported to Sergeant Dale Stickney of the Sparta Police
Department that Mr. Bell, a family friend, had sexually
assaulted T.P. in the backyard of T.P.'s home after a birthday
party for A.L.
¶3 Detective LaVern Erickson and a social worker met with
T.P. to interview her about the incident. Subsequently,
Detective Erickson questioned A.L. about her sister's sexual
assault. In the course of that interview, A.L. revealed to
Detective Erickson that she had herself been the victim of three
sexual assaults by Mr. Bell, all of which had occurred around
the time of the incident with T.P.2 Approximately five months
1
This is a review of an unpublished decision of the court
of appeals, State v. Bell, Nos. 2015AP2667-CR & 2015AP2668-CR,
unpublished slip op. (Wis. Ct. App. Dec. 1, 2016), affirming the
Monroe County Circuit Court's denial of Mr. Bell's
postconviction motion. The Honorable Michael Rosborough
presided over both the jury trial and the postconviction motion.
2
It is somewhat unclear whether A.L. revealed all of this
conduct during the course of a single interview with Detective
Erickson; however, it appears that she reported these three
incidents within approximately one to two weeks of T.P. having
reported her assault.
2
No. 2015AP2667-CR & 2015AP2668-CR
after reporting these incidents, A.L. further disclosed that Mr.
Bell had also sexually assaulted her in the bathroom of her
mother's home in early July 2001——prior to the incidents she had
previously reported and prior to the sexual assault of T.P. Of
the four incidents, only the one occurring in the bathroom
involved sexual intercourse.
¶4 The State initiated two cases against Mr. Bell, one
for each of the victims, but joined them for trial.3 With
respect to T.P., the State charged Mr. Bell with one count of
sexual assault as a persistent repeater contrary to Wis. Stat.
§§ 940.225(2)(a) (2001-02),4 939.50(3)(bc), and 939.62(2m) (Count
1); one count of second-degree sexual assault of a child as a
persistent repeater contrary to Wis. Stat. §§ 948.02(2),
939.50(3)(c), and 939.62(2m)(b)2. (Count 2); and one count of
misdemeanor bail jumping as a repeater contrary to Wis. Stat.
§§ 946.49(1)(a), 939.51(3)(a), and 939.62(1)(a) (Count 3). With
respect to A.L., the State charged Mr. Bell with two counts of
sexual assault as a persistent repeater contrary to Wis. Stat.
§§ 940.225(2)(a), 939.50(3)(bc), and 939.62(2m) (Counts 1 and
2);5 and two counts of attempted second degree sexual assault as
3
Monroe County Circuit Court Case No. 2001CF239 (T.P.);
Monroe County Circuit Court Case No. 2001CF249 (A.L.).
4
All subsequent references to the Wisconsin Statutes are to
the 2001-02 version unless otherwise indicated.
5
Count 1 pertained to sexual contact without consent by use
of threat or force and Count 2 pertained to non-consensual
sexual intercourse with use of threat or by force.
3
No. 2015AP2667-CR & 2015AP2668-CR
a persistent repeater contrary to Wis. Stat. §§ 940.225(2)(a),
939.50(3)(bc), and 939.62(1)(c) (Counts 3 and 4). Before
submitting the case to the jury, the circuit court dismissed
Count 3 for lack of sufficient evidence, and then dismissed
Count 4 at the State's request.
¶5 During deliberations, the jury requested that certain
documents be delivered to it for review. Two of the documents
indicated that T.P. had not had sexual intercourse until she was
assaulted by Mr. Bell. Neither the prosecutor nor defense
counsel asked for that information to be redacted from the
exhibits.
¶6 The jury returned guilty verdicts on all counts
submitted to it, and Mr. Bell received his sentence in due
course. He then moved to vacate the judgments of conviction and
requested a new trial pursuant to Wis. Stat. § (Rule)
809.30(2)(h) (2015-16)6 on July 13, 2015.7 His motion claimed he
6
Wisconsin Stat. § (Rule) 809.30(2)(h) (2015-16) provides:
Notice of appeal, postconviction or postdisposition
motion. The person shall file in circuit court and
serve on the prosecutor and any other party a notice
of appeal or motion seeking postconviction or
postdisposition relief within 60 days after the later
of the service of the transcript or circuit court case
record. The person shall file a motion for
postconviction or postdisposition relief before a
notice of appeal is filed unless the grounds for
seeking relief are sufficiency of the evidence or
issues previously raised. A postconviction or
postdisposition motion under this section may not be
accompanied by a notice of motion and is made when
filed. A notice of appeal filed under this section
(continued)
4
No. 2015AP2667-CR & 2015AP2668-CR
did not receive a fair trial because: (1) the prosecutor's
comments regarding motive and evidence of lying during closing
argument shifted the burden of proof; and (2) the jury was
allowed to view two inadmissible exhibits during deliberation.8
As to his first argument, Mr. Bell argued he was entitled to
relief based on the plain error doctrine or ineffective
assistance of counsel, and as to his second argument, he sought
relief based on the interests of justice or ineffective
assistance of counsel. The circuit court conducted a Machner9
hearing at which trial counsel testified. The court denied the
motion because it concluded the trial was free from harmful
shall conform to the requirements set forth in s.
809.10.
7
The procedural history in these cases is long,
complicated, and but for the portions we have recounted, not
relevant to the issues sub judice. For our purposes, it will
suffice that the case is before us on direct appeal,
notwithstanding the nearly 13 years between the verdict and Mr.
Bell's postconviction motion.
8
Mr. Bell also sought resentencing on Count 1 in the case
related to T.P. (2001CF239). He asserted that if the court
denied his request for a new trial, he was entitled to
resentencing on this count because the persistent repeater had
been incorrectly applied. The persistent repeater had also been
applied incorrectly to Counts 1 and 2 in the case related to
A.L. (2001CF249), which error was corrected in 2014. At the
conclusion of the postconviction motion hearing, the circuit
court agreed that resentencing on Count 1 in 2001CF239 would be
necessary in the event the appellate courts upheld Mr. Bell's
convictions. The resentencing issue is not currently before
this court.
9
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
5
No. 2015AP2667-CR & 2015AP2668-CR
error. The court of appeals affirmed, and we granted Mr. Bell's
petition for review.
II. STANDARD OF REVIEW
¶7 Mr. Bell asks us to review the State's trial
commentary under the plain error doctrine or, alternatively, for
a determination that he received ineffective assistance of
counsel. With respect to his attorney's failure to request
redaction of the exhibits sent to the jury room, he asks us to
determine only whether he received ineffective assistance of
counsel.
¶8 The "plain error" Mr. Bell claims is at issue is a
violation of his due process rights, which is a question of law
we review de novo. State v. Burns, 2011 WI 22, ¶23, 332
Wis. 2d 730, 798 N.W.2d 166. However, we will not remedy errors
under this doctrine unless they are "obvious and substantial[,]"
and "so fundamental that a new trial or other relief must be
granted even though the action was not objected to at the time."
State v. Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754
N.W.2d 77 (citation and internal marks omitted).
¶9 A claim of ineffective assistance of counsel presents
a mixed question of fact and law. State v. Tourville, 2016
WI 17, ¶16, 367 Wis. 2d 285, 876 N.W.2d 735. We will not
reverse the circuit court's findings of fact unless they are
clearly erroneous. Id. We independently review, as a matter of
law, whether those facts demonstrate ineffective assistance of
counsel. Id.
6
No. 2015AP2667-CR & 2015AP2668-CR
III. DISCUSSION
¶10 Mr. Bell says his right to a fair trial was violated
by: (1) the State's trial commentary, which he believes
improperly shifted the burden of proof to him; and (2) the
jury's review of certain unredacted documents during
deliberations. We will address each issue in turn.
A. The State's Trial Commentary10
¶11 The essence of Mr. Bell's argument is that the State
impermissibly shifted the burden of proof by framing this case
as a binary proposition: The jury must convict him if it
believes the victims, and may find him not guilty only if it
does not.11 Mr. Bell maintains there are other reasons the jury
legitimately could have chosen to acquit him, and so the State's
commentary misstated the law.12 Because the defense did not move
for a mistrial on that basis, this alleged error was not
10
When we refer to the State's "trial commentary," we mean
it to include comments and questions during voir dire, the
opening statement, examination of witnesses, and closing
arguments.
11
Mr. Bell says the State compounded this error by also
telling the jurors they should not believe the victims unless
they could discern a reason for them to lie.
12
Mr. Bell's brief purports to identify other reasons the
jury could have acquitted him, but each one was just a different
way of describing the jury's failure to believe the victims'
testimony.
7
No. 2015AP2667-CR & 2015AP2668-CR
preserved for appellate review.13 Mr. Bell says we should
nonetheless reach and decide this issue under our "plain error"
doctrine, or conclude that the failure to request a mistrial
deprived him of the effective assistance of counsel during the
trial.
¶12 The "plain error" doctrine allows us to review errors
even when they were not properly preserved at trial. State v.
Mayo, 2007 WI 78, ¶29, 301 Wis. 2d 642, 734 N.W.2d 115; see also
Wis. Stat. § 901.03(4) (2015-16) ("Nothing in this rule
precludes taking notice of plain errors affecting substantial
rights although they were not brought to the attention of the
judge."). To qualify for this doctrine's application, however,
the error "must be 'obvious and substantial[,]'" and "'so
fundamental that a new trial or other relief must be granted
even though the action was not objected to at the time.'"
Jorgensen, 310 Wis. 2d 138, ¶21 (citation and one set of marks
omitted). We employ this doctrine sparingly. Id.
¶13 We can also address unpreserved claims of error if the
error is of such a nature that it deprived the defendant of "the
13
See State v. Davidson, 2000 WI 91, ¶86, 236 Wis. 2d 537,
613 N.W.2d 606 (defendant who objects to a prosecutor's closing
argument but fails to timely move for a mistrial waives his
objection to the prosecutor's closing argument statements);
State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611
N.W.2d 727 ("It is a fundamental principle of appellate review
that issues must be preserved at the circuit court. Issues that
are not preserved at the circuit court, even alleged
constitutional errors, generally will not be considered on
appeal.").
8
No. 2015AP2667-CR & 2015AP2668-CR
effective assistance of counsel." See Strickland v. Washington,
466 U.S. 668, 686 (1984). If the failure to move for a mistrial
based on the State's trial commentary comprised deficient
performance, and that deficiency was prejudicial, Mr. Bell would
be entitled to a new trial. See id. at 687; State v. Pitsch,
124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985).
¶14 There can be neither a deficiency nor plain error,
however, unless the State's trial commentary was improper.
Therefore, whether we analyze this case under the "plain error"
doctrine or as an ineffective assistance of counsel claim, our
first step is to determine whether the State's trial commentary
was improper. If it was, our analysis would then turn to
whether counsel's failure to request a mistrial: (1) was an
error so obvious, substantial, and fundamental that a new trial
is necessary; or (2) comprised deficient and prejudicial
performance.
¶15 We begin with the fundamental tenet that Mr. Bell is
guaranteed the right to due process of law. See U.S. Const.
amend. XIV, § 1 ("No State shall . . . deprive any person of
life, liberty, or property, without due process of
law . . . ."); Wis. Const. art. I, § 8 ("No person may be held
to answer for a criminal offense without due process of
law . . . ."). This guaranty extends to the State's comments
during trial: "When a defendant alleges that a prosecutor's
statements and arguments constituted misconduct, the test
applied is whether the statements 'so infected the trial with
unfairness as to make the resulting conviction a denial of due
9
No. 2015AP2667-CR & 2015AP2668-CR
process.'" Mayo, 301 Wis. 2d 642, ¶43 (quoting State v.
Davidson, 2000 WI 91, ¶88, 236 Wis. 2d 537, 613 N.W.2d 606)
(some internal marks omitted); see also Darden v. Wainwright,
477 U.S. 168, 181 (1986) (same).
¶16 These due process considerations do not, however,
prevent the State from energetically pressing its case. The
State's attorney is free to "prosecute with earnestness and
vigor——indeed, he should do so." Berger v. United States, 295
U.S. 78, 88 (1935). But in conducting a trial, he must keep in
mind that he represents "a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall be
done." Id. For that reason, "while he may strike hard blows,
he is not at liberty to strike foul ones. It is as much his duty
to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to
bring about a just one." Id.
¶17 Mr. Bell says the State struck foul blows in his
trial, the result of which was that he bore the burden of
proving to the jury he was not guilty——a burden that does not
belong to him. The burden to prove guilt beyond a reasonable
doubt belongs to the State. Barrera v. State, 109 Wis. 2d 324,
329, 325 N.W.2d 722 (1982) (citing In re Winship, 397 U.S. 358
(1970)) ("The state bears the burden of proving all elements of
a crime beyond reasonable doubt."); see also State v. Kuntz, 160
Wis. 2d 722, 736, 467 N.W.2d 531 (1991) ("It is axiomatic that
10
No. 2015AP2667-CR & 2015AP2668-CR
the State must prove all the elements of a crime beyond a
reasonable doubt to convict a defendant."). Specifically, Mr.
Bell says the State's comments throughout trial (including its
closing argument) required the jury to convict him unless he
could prove the victims lied about the sexual assaults and
prevented the jury from questioning the victims' veracity unless
it could divine a reason for them to lie.
¶18 We cannot, of course, look at the State's comments in
isolation. We must examine them in the context of the entirety
of the trial——including the nature of the defense Mr. Bell
presented. It is fair to say that in evaluating Mr. Bell's
claim, context is everything.
1. The Trial
¶19 To provide the proper context, we will recount, at
length, the relevant parts of the trial proceedings. The
purpose for doing so is to compare the State's commentary
against the relevant facts and law. Our analysis will inquire
into whether there is such a meaningful discrepancy between the
two that it could have caused the jury to convict Mr. Bell
without finding him guilty beyond a reasonable doubt. Mr. Bell
says the State's improper commentary started with the
examination of potential jurors, so we will begin there.
a. Voir Dire
¶20 The prosecutor introduced the idea that people
generally don't lie without reason early in the proceedings. He
queried the prospective jurors closely on the truthfulness of
teenagers and the reasons they might lie. For example, he asked
11
No. 2015AP2667-CR & 2015AP2668-CR
if any of the prospective jurors had "ever known a teenager to
lie[,]" whether anyone had "ever not known a teenager to have
lied[,]" and "what are some of the typical things you might
expect a teenager to lie about?". After hearing from
prospective jurors who acknowledged that teenagers likely do lie
in some circumstances but are less likely to do so in others,
the prosecutor asked:
Would everybody agree here that——that, though, that if
you're going to lie, you're going to have a reason
like jealousy of some sort; there's going to be a
reason why you would lie? Everybody agree with that?
Everybody is nodding their head.
¶21 The prosecutor then asked "what are some reasons that
a teenage girl might falsely accuse someone of sexual assault?"
One juror responded that a teenage girl might lie for
"attention," another answered "[l]ack of understanding of the
gravity of accusing someone," another answered "revenge," and
one prospective juror responded that teenage girls might lie
about a sexual assault if they were afraid "that they'd get in
trouble with their parents for having sex in the first place if
they got caught." So the State asked the prospective jurors if
they would "expect there would be some evidence that somebody
would have a reason to lie? There would be some sort of
evidence that this person would have a reason to lie about——[.]"
Two prospective jurors responded that they would expect there to
be some type of evidence that the person had lied. The State
cautioned the prospective jurors they would hear jury
instructions telling them that they would not be allowed to
12
No. 2015AP2667-CR & 2015AP2668-CR
speculate and that their verdict would need to be based on
evidence or the lack of evidence.
¶22 The defense was similarly interested in the
prospective jurors' impression of teenagers' truthfulness.
After asking each prospective juror the ages of their children,
he asked "How many people believe that a child 14 years old, 18
years old can——can lie about a sexual assault?" He then
reminded the prospective jurors that the prosecutor had
mentioned the concept of someone omitting certain details and
asked if "anybody [has] heard of lying by omission?" He pursued
this theme as he inquired into: (1) whether the jurors believed
that someone might lie because she does not understand the
repercussions; (2) whether someone might tell a lie and then
continue telling the lie because it is too difficult to
backtrack; and (3) whether someone might "lie to gain attention
because they want the love and attention from that person[.]"
b. Opening Statements And Evidence Adduced at Trial
¶23 During his opening statement, defense counsel signaled
that he would be concentrating on the victims' veracity. Part
of his remarks referred to testimony that he said would
establish T.P. had lied about the amount of alcohol she drank on
the night of the assault, that she lied about the assaults
having occurred, that A.L. had admitted prior to trial that she
previously lied about how much alcohol T.P. consumed the night
of the assault, and concluded by telling the jury that "the
evidence will show at the end of this, that in fact . . . [T.P.]
and [A.L.] did not know what the truth is."
13
No. 2015AP2667-CR & 2015AP2668-CR
¶24 Central to the State's case was the testimony of T.P.
and A.L., who testified extensively and in great detail about
the sexual assaults. T.P. not only recounted details of the
actual assault, she also described the circumstances surrounding
it. So, for example, she testified that on the day Mr. Bell
sexually assaulted her, she had multiple alcoholic beverages and
felt intoxicated at some point during the evening. T.P. then
explained that when her mother asked her to go make sure the
bonfire was out, Mr. Bell came out and sat on the picnic table
with her. She then gave a moment by moment description of how
Mr. Bell sexually assaulted her. She said that, afterwards, Mr.
Bell demanded that she tell no one what he had done and warned
her that if she did, it would happen again.
¶25 Mr. Bell's counsel questioned T.P. closely. Part of
the cross-examination focused on potential motives for lying.
So, for example, he obtained T.P.'s admission that she "ha[d]n't
had the best life" and that she had received comfort and
attention from her mother, and others, after reporting the
assaults. He also took direct aim at her credibility, getting
her to admit she had previously lied about the amount of alcohol
she had consumed on the night of the assault and that——despite
her earlier statements——she was, in fact, intoxicated at some
point that evening. T.P. also confirmed she had previously lied
regarding the extent of her knowledge about sexual matters, and
defense counsel also identified other discrepancies between
T.P.'s trial testimony and her previous statements.
14
No. 2015AP2667-CR & 2015AP2668-CR
¶26 A.L. provided testimony both about the evening her
sister was assaulted and about her own assaults. With respect
to T.P.'s assault, she said there was alcohol at her (A.L.'s)
birthday party, that she (A.L.) had "a slight buzz," and that
T.P. had been drinking, too, and was "kinda tipsy." A.L. said
she (A.L.) left the party at some point with Mr. Bell and three
other men and that they were "getting stoned," and she explained
that after the group returned to the house around 7:00 p.m., she
and one of the other men left again around midnight. When she
returned shortly thereafter, she noticed a change in T.P.'s
countenance and described her as seeming more sober and "off to
herself."
¶27 A.L. also testified that she herself had been sexually
assaulted by Mr. Bell on four occasions. She said three of the
assaults occurred around the time Mr. Bell assaulted T.P. The
fourth assault (the one she did not originally report to the
police) involved sexual intercourse (unlike the other three
events). She said she did not initially report this assault
along with the others because she was "ashamed to talk about" it
and "didn't want to remember it." Additionally, she said Mr.
Bell had threatened to do the same thing to her sister if she
told anyone what had occurred.
¶28 During his cross-examination of A.L., Mr. Bell's
counsel focused on her credibility. He questioned her about
discrepancies between her trial testimony and the statements she
gave to police and her preliminary hearing testimony as to what
occurred on the night Mr. Bell had non-consensual sexual
15
No. 2015AP2667-CR & 2015AP2668-CR
intercourse with her, and he also questioned A.L. about whether
she had previously lied about how much alcohol she consumed on
the night of T.P.'s sexual assault. A.L. confirmed she had
previously lied about the amount she consumed because she was
afraid of getting in trouble for drinking. A.L. also confirmed
that after reporting the first three incidents involving Mr.
Bell——which did not include sexual intercourse——she had lied to
investigators when she told them that no other incidents had
occurred. When asked whether her mother had been supportive of
her after she had reported the fourth incident, A.L. confirmed
that she had been and that her mother's support "was different"
from what she had experienced in the past.
¶29 Dr. Ann Budzak, the pediatrician who examined T.P.,
also testified. She explained that although she performed a
pelvic exam of T.P., she did not perform a forensic exam——which
would include collecting specimens such as hair and semen if
possible——because the exam occurred approximately five weeks
after the alleged assault. Dr. Budzak further testified that
based upon a reasonable degree of medical certainty, there was
evidence that T.P. may have had sexual intercourse at some point
because she had tolerated the pelvic exam and because there was
a lack of hymenal tissue. She also testified, however, that a
lack of hymenal tissue "is not specific or proof of having had a
penetration experience such as sexual intercourse" and that
although that was generally the most common explanation for its
absence or disruption, "there are other ways hymenal tissue can
be disrupted[.]"
16
No. 2015AP2667-CR & 2015AP2668-CR
¶30 Through cross-examination, defense counsel elicited
that Mr. Bell had told the police he had not assaulted T.P. and
A.L. In an attempt to bolster the credibility of this
statement, defense counsel called Sergeant Stickney as a witness
to recount Mr. Bell's offer to undergo a Computer Voice Stress
Analysis. According to Sergeant Stickney, measuring the stress
in an individual's voice can help in determining whether the
person is telling the truth. However, Sergeant Stickney never
followed up on Mr. Bell's offer to take the test. Defense
counsel also attacked A.L.'s credibility by calling a private
investigator to explain how the physical layout of the bathroom
where A.L. said she had been sexually assaulted contradicted her
testimony.
c. Jury Instructions
¶31 Prior to closing arguments, the circuit court
instructed the jury, in relevant part, as follows:
Consider only the evidence received during this
trial and the law as given to you by these
instructions and from these alone, guided by your
soundest reason and best judgment, reach your verdict.
. . . .
The burden of establishing every fact necessary
to constitute guilt is upon the State. Before you can
return a verdict of guilty, the evidence must satisfy
you beyond a reasonable doubt that the defendant is
guilty.
If you can reconcile the evidence upon any
reasonable hypothesis consistent with the defendant's
innocence, you should do so and return a verdict of
not guilty.
17
No. 2015AP2667-CR & 2015AP2668-CR
The term "reasonable doubt" means a doubt based
upon reason and common sense. It is doubt for which a
reason can be given, arising from a fair and rational
consideration of the evidence or lack of evidence. It
means such a doubt as would cause a person of ordinary
prudence to pause or hesitate when called upon to act
in the most important affairs of life.
A reasonable doubt is not a doubt which is based
on mere guesswork or speculation. A doubt which
arises merely from sympathy or from fear to return a
verdict of guilt is not a reasonable doubt. A
reasonable doubt is not a doubt such as may be used to
escape the responsibility of a decision.
While it is your duty to give the defendant the
benefit of every reasonable doubt, you are not to
search for doubt. You are to search for the truth.
¶32 The court defined evidence as: (1) "the sworn
testimony of witnesses, both on direct and cross-examination";
(2) "exhibits the court has received"; and (3) "any facts to
which the lawyers have agreed or stipulated or which the court
has directed you to find." The court emphasized that the
"[r]emarks of the attorneys are not evidence" and that while the
jury should "[c]onsider carefully" the closing arguments, the
attorneys' "arguments and conclusions and opinions are not
evidence."
¶33 The court also identified the various factors the jury
should consider in determining a witness's credibility and the
weight to give the witness's testimony. Among the factors the
court identified were "possible motives for falsifying
testimony" and "all other facts and circumstances during the
trial which tend to either support or to discredit the
testimony." In doing so, the court instructed the jury to use
18
No. 2015AP2667-CR & 2015AP2668-CR
"your common sense and experience. In everyday life you
determine for yourselves the reliability of things people say to
you. You should do the same thing here."
d. Closing Arguments
¶34 As the prosecutor commenced his closing argument, he
reminded the jurors of the instructions they had just heard. He
then reprised the theme of his case: The jury shouldn't return
a verdict of "not guilty" unless it believed T.P. and A.L. had
lied:
I think it's interesting to start from this point of
view. What must we believe, what things must we
believe for the defendant to be not guilty? After
hearing all the evidence that we've heard, what are
the things that we must believe true if he is not
guilty?
First of all, when it comes to [T.P.], who's 13
[sic], that she first lied to Sergeant Stickney about
the defendant raping her. We have to believe that she
then proceeded in the videotape that occurred over two
days——one of those videotapes we saw, the first one——
that she then lied to the social worker . . . about
the rape. That the defendant, when the defendant
assaulted her.
We then have to believe that she lied to us. You
have to believe that.
We have to then believe when we look at [A.L.]
and her testimony, we would have to believe if the
defendant is not guilty, that she first lied to
Detective LaVern Erickson when she told him about the
incident on the couch when the defendant held her down
and grabbed her breast. And that the first thing that
she came forward with.
The other instances when they were investigating
the night of the party, we have to believe she lied
about that.
19
No. 2015AP2667-CR & 2015AP2668-CR
At that point, trial counsel objected; however, the circuit
court overruled the objection and the prosecutor resumed his
argument:
We must believe that she [A.L.] lied to Detective
LaVern Erickson about that. We must believe then six
months later, for some reason, she just decided to
pile on another story and that she lied to Sergeant
Stickney when he said there was a pool of tears, there
was a wet spot there when she got done testifying——or
telling him about the rape in the shower on July 2d.
We have to believe that she lied about that.
And we have to then believe that she lied at the
preliminary hearing back in February of this year when
she had to discuss both of those instances.
We have to believe that she lied to us over the
course of two days when she was up there for a number
of hours, that she intentionally lied to us this week.
That's what we'd have to believe.
The prosecutor further argued that, to believe T.P. and A.L.
were lying, the jury would have "to believe that those two
girls, [A.L. and T.P.] are simply two of the best actors——or
actresses we have ever seen. Could Meryl Streep have done any
better? The reason their testimony is so compelling is because
they weren't acting."
¶35 The prosecutor encouraged the jurors not to disbelieve
the victims unless they found a motive to lie. He said that "if
somebody is going to lie about something, they're going to have
a reason. They're going to have some evidence of that reason."
He argued that in this case, however, defense counsel had "no
idea" why A.L. and T.P. might lie and that because he had no
idea, he "just begins to speculate. He just begins to make
guesses after he says he has no idea why [T.P.] would make this
20
No. 2015AP2667-CR & 2015AP2668-CR
up." The prosecutor further argued that "[i]f a person lies
about something, they must have a reason. And the reason why
there is no evidence in this case about why anybody would lie is
because they're not lying. [T.P.] and [A.L.] are not lying."
¶36 Defense counsel's closing argument focused exclusively
on whether T.P. and A.L. should be believed. He argued that the
police had not thoroughly investigated T.P.'s and A.L.'s
allegations and that "much like the Salem Witch Trials of 1962
(sic), certain people were believed and that was it, that was
all that was necessary. And apparently, unfortunately——
unfortunately for [Mr.] Bell, that it was assumed that the girls
were telling the truth." Trial counsel also juxtaposed A.L.'s
testimony about the layout of the bathroom where one of the
sexual assaults occurred with the testimony of the private
investigator Mr. Bell hired to argue that A.L. had been lying
and that she had "change[d] her story." Defense counsel's
argument became even more pointed, asserting that "it [the
sexual assaults] never happened. The reason why it doesn't make
sense is it just didn't happen." Revisiting each of the
victim's allegations, he told the jury "[t]his never happened"
or "[i]t didn't happen."
¶37 Defense counsel also told the jury that A.L. and T.P.
had ample motive to lie. He explained that in light of their
"difficult life," "lying becomes easy" and eventually turns into
"a way of survival." In regard to T.P., defense counsel argued
that she had
21
No. 2015AP2667-CR & 2015AP2668-CR
learn[ed] that she can manipulate what happens to her,
she can manipulate not going to school, she can
manipulate trying to get closer to mom and so lying
becomes an easy thing. Lying can be a daily event for
an individual like that, like protecting others,
protecting themselves, can be a cry for attention, so
I don't have to do something such as go to school, so
they'll allow me to do something.
Lying can be out of jealousy, lying can be out of
hurt, lying can be for revenge and a lie is out of
control. And that's what's happened here. The lies
have become so deep and so out of control that you
can't bring it back. You can't expose what the truth
is and that the truth that this never happened; you
can't because you would be the scorn of all. And in
fact, maybe her actions tell you so much by saying I
don't want to pursue this thing.
Defense counsel further argued:
That's what this is all about; a life where lies don't
mean anything, they don't mean anything to these girls
because they've had to live that life the entire time.
It's a way to protect themselves, it's their shield.
And so it's easy for them that they can look you in
the eye and I'm not lying, no, it was one wine
cooler. . . .
. . . .
They put on a mask. He——[the prosecutor] talks
about Meryl Streep and great actresses. They've had
to act their whole life; . . . . They're crying for
help; it's easy to act.
¶38 On rebuttal, the prosecutor dismissed defense
counsel's theories about why A.L. and T.P. might lie as "[p]ure
speculation, pure speculation, pure speculation" and argued that
there simply was "no testimony that they were lying. There's no
evidence that they were lying." The prosecutor also told the
jurors that the jury instructions precluded them from
speculating and engaging in "sheer guesswork."
22
No. 2015AP2667-CR & 2015AP2668-CR
2. Propriety of the State's Trial Commentary
¶39 Although there are boundaries on what prosecutors may
say during trial, we leave them plenty of room to address the
facts and law. "Counsel is allowed considerable latitude in
closing arguments, with discretion given to the trial court in
determining the propriety of the argument." State v. Burns,
2011 WI 22, ¶48, 332 Wis. 2d 730, 798 N.W.2d 166. A "prosecutor
may comment on the evidence, detail the evidence, argue from it
to a conclusion and state that the evidence convinces him and
should convince the jurors." State v. Draize, 88 Wis. 2d 445,
454, 276 N.W.2d 784 (1979) (citation and internal marks
omitted). "The prosecutor should aim to 'analyze the evidence
and present facts with a reasonable interpretation to aid the
jury in calmly and reasonably drawing just inferences and
arriving at a just conclusion upon the main or controlling
questions.'" Burns, 332 Wis. 2d 730, ¶48 (quoting Draize, 88
Wis. 2d at 454). But a prosecutor cannot suggest that the jury
consider facts not in evidence. Burns, 332 Wis. 2d 730, ¶48.
¶40 Because people are endlessly inventive, and each trial
is unique, it is impossible to describe in detail the outer
parameters of proper trial commentary. However, based on what
we said in Draize and Burns, we may conclude that those
boundaries extend at least far enough to encompass fair
characterizations of the law and the state of the evidence. If
the prosecutor steps across the permissible boundary, we must
then determine whether the incursion is so significant (either
alone or in combination with other infractions) that it renders
23
No. 2015AP2667-CR & 2015AP2668-CR
the entire trial unfair. "When a defendant alleges that a
prosecutor's statements constituted misconduct, the test we
apply is whether the statements so infected the trial with
unfairness as to make the resulting conviction a denial of due
process." Davidson, 236 Wis. 2d 537, ¶88 (internal marks and
citations omitted); see also State v. Hurley, 2015 WI 35, ¶96,
361 Wis. 2d 529, 861 N.W.2d 174 (quoting Mayo, 301 Wis. 2d 642,
¶43) ("'[T]he [challenged] statements must be looked at in the
context of the entire trial.'").
¶41 With that context, we are now prepared to assess Mr.
Bell's claim that the State's comments deprived him of the due
process of law. Mr. Bell says the improper commentary fell into
two categories. The first comprised the prosecutor's statements
that the jurors had to believe T.P. and A.L. were lying before
they could find him not guilty (the "must believe" statements).
The second category contained those statements in which the
prosecutor claimed that people generally do not lie without
reason, and that if the victims had no motive to lie, they
should be believed (the "motive" statements). Mr. Bell has not
identified any Wisconsin case addressing the propriety of
statements of this nature, nor have we found any. So we will
resolve this matter by drawing on the general principles
enunciated above and the wisdom we find in other jurisdictions.
a. The "Must Believe" Statements
¶42 As is apparent from our recitation of trial
highlights, the prosecution and defense theories of the case
were mirror-images: The prosecution said T.P. and A.L. were
24
No. 2015AP2667-CR & 2015AP2668-CR
telling the truth, the defense said they were not. But they
agreed that the resolution of that contest would decide the
case. The prosecutor said it would be improper for the jury to
find Mr. Bell not guilty unless the victims lied, while the
defense said such a finding was necessary because they did.
¶43 Mr. Bell pursued a reasonable, but narrowly focused
strategy. He did not argue that T.P. and A.L.'s description of
events failed to satisfy the statutory elements of the crimes
with which he was charged. He did not argue mistaken identity
or assert that someone else bore responsibility for the
assaults. He did not argue the actions had been misconstrued.
He said they never happened. The only evidence he adduced at
trial related to the victims' credibility, and all of his
efforts went into showing that T.P. and A.L. could not be
believed. Through comments in voir dire, the outline of the
case provided in opening statements, the examination of
witnesses, and closing arguments, the defense offered the jury
one reason, and one reason only, for acquitting him——to wit, the
untruthfulness of the victims. This is not just our
characterization of the record, it is Mr. Bell's own description
of his defense strategy: "The entire defense was aimed at
establishing reasonable doubt in the jurors' minds about the
sisters' accusations, by vigorous cross-examination of A.L. and
T.P. to establish inconsistencies and to show that they had been
encouraged by their mother to lie about T.P.'s drinking."
¶44 Consequently, we must determine whether there is any
meaningful distinction in this case between the defense's
25
No. 2015AP2667-CR & 2015AP2668-CR
assertion that the jury must find Mr. Bell not guilty because
the victims lied and the prosecution's argument that the jury
may not make such a finding unless they did. This is not just a
quibble over semantics. The two propositions implicate the
logical distinction between those conditions that are
"sufficient" to reach a conclusion versus those that are merely
"necessary" (but not sufficient).
¶45 An example of the latter condition would be a case in
which the victim is the sole source of evidence for some (but
not all) of the elements of the crime. In that situation, her
testimony is necessary to convict the defendant, but not
sufficient——the State must still present evidence in support of
the remaining elements from other sources. Viewing the same
scenario from the defendant's perspective illustrates the
asymmetrical nature of "sufficient" conditions. It is
sufficient for an acquittal that he convince the jury not to
believe the victim, because that negatives the elements of the
crime for which she was the sole source of evidence. But it is
not necessary for the jury to disbelieve the victim, because (in
this example) there were other elements of the crime the State
had to establish, and the jury could legitimately conclude the
State failed to do so. The logical prerequisites for each
party's success are asymmetrical because it is necessary for the
State to succeed with respect to each element, while it is
sufficient for the defense to succeed with respect to just one.
In this category of cases, the State may not suggest the jury
should not return a verdict of "not guilty" unless it concludes
26
No. 2015AP2667-CR & 2015AP2668-CR
the victim lied. Such a suggestion would be an improper
shifting of the burden of proof because although the victim's
untruthfulness was a sufficient condition for acquittal, it was
not necessary.
¶46 There is a different category of cases, however, in
which the logical prerequisites for each party's success are
symmetrical. This category comprises situations in which, for
example, the State need only prove the truth of one condition to
obtain a conviction. From the State's perspective, that
condition is both necessary and sufficient. Unlike the prior
category of cases, the defendant's perspective is the mirror
image——an acquittal is not possible unless that one condition is
not true. That is to say, it is not just sufficient that the
one condition be untrue, it is also necessary.
¶47 Mr. Bell presents us with just such a case. Here,
that one condition was whether the victims were telling the
truth. If they were, their testimony satisfied all of the
elements of the crimes with which Mr. Bell was charged.
Therefore, the only way Mr. Bell could have won an acquittal
would have been to falsify that condition——that is, convince the
jury that the victims lied. Mr. Bell offered the jury no
weakness in the State's case other than the victims'
credibility. Even now, he does not tell us how (absent jury
nullification) the jury could have acquitted him if it
nonetheless believed the victims. And jury nullification is not
an option——there is no right to have the jury disregard the law
or evidence. State v. Bjerkaas, 163 Wis. 2d 949, 960, 472
27
No. 2015AP2667-CR & 2015AP2668-CR
N.W.2d 615 (Ct. App. 1991) (the defendant has no "right to have
a jury decide a case contrary to law or fact, much less a right
to an instruction telling jurors they may do so or to an
argument urging them to nullify applicable laws."); see also
United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988) ("It
[the jury] has the power to acquit on bad grounds, because the
government is not allowed to appeal from an acquittal by a jury.
But jury nullification is just a power, not also a
right . . . .") (emphasis omitted); Strickland, 466 U.S. at 695
("An assessment of the likelihood of a result more favorable to
the defendant must exclude the possibility of arbitrariness,
whimsy, caprice, 'nullification,' and the like. A defendant has
no entitlement to the luck of a lawless decisionmaker, even if a
lawless decision cannot be reviewed. The assessment of prejudice
should proceed on the assumption that the decisionmaker is
reasonably, conscientiously, and impartially applying the
standards that govern the decision.") (analyzing prejudice under
ineffective assistance of counsel). Therefore, the jury's
resolution of the case had to follow its conclusion regarding
the victims' veracity.
¶48 The authorities Mr. Bell cited do not persuade us
because they are not in the same logical category as this case.
In United States v. Vargas, 583 F.2d 380 (7th Cir. 1978), for
example, the prosecution's case depended not just on the
witnesses' honesty, but also on the accuracy of their
observations and the inferences they concluded from them. As
the Seventh Circuit later characterized that case, the
28
No. 2015AP2667-CR & 2015AP2668-CR
prosecutor's error was in telling the jury there was only one
way to reach acquittal, when in fact the evidence gave them
other paths to that end:
Not content to let the jury decide the case according
to the judge's instructions, he set up a "false
dilemma" by informing the jury that they had to choose
between two and only two options——either the defendant
was lying or all the federal agents were lying——when
in fact the jury had more options than only those
two . . . ."
United States v. Amerson, 185 F.3d 676, 687 (7th Cir. 1999)
(citing Vargas, 583 F.2d at 387).
¶49 The prosecutor's argument in United States v. Cornett,
232 F.3d 570 (7th Cir. 2000), suffered the same deficiency as
the one in Vargas. The Cornett jury could have acquitted the
defendant on the charge he unlawfully possessed a firearm if it
concluded that what the law enforcement officer observed did not
amount to possession of a firearm. Because the jury could
acquit without believing the officer had lied, the prosecutor's
statement to the contrary was error. Likewise, the defendant in
United States v. Reed, 724 F.2d 677 (8th Cir. 1984), faced
multiple counts of wire fraud in which the State's case relied
not just on the honesty of its witnesses, but the rational
inferences one could derive from their testimony. Therefore, it
was error for the prosecutor to argue that the jury could acquit
only if the jury "determine[s] that [the defendant] is telling
the truth and that all [the government witnesses] are lying to
you." Id. at 681. As in Vargas and Cornett, the jury could
have believed the witnesses but acquitted anyway because they
29
No. 2015AP2667-CR & 2015AP2668-CR
did not agree with the conclusions the witnesses drew from what
they observed.14
¶50 We see support for the propriety of the prosecutor's
trial commentary in the principles described in Amerson and
United States v. Sandoval, 347 F.3d 627, 631-32 (7th Cir. 2003).
In Sandoval, the prosecutor said "'Well, you would have to
conclude that the police officers were not telling the truth if
you're going to accept the defendant's testimony.'" Id. at 632.
The court said this was in the nature of "ask[ing] the jury to
14
Most of the other cases on which Mr. Bell relies are not
in the same logical category as his because they describe
circumstances in which the jury could have acquitted the
defendant based on something other than the witness's
untruthfulness. See, e.g., United States v. Richter, 826
F.2d 206 (2nd Cir. 1987) (prosecutor's argument that jury could
determine defendant was "not telling . . . the truth" because
that would mean the two FBI agents had "committed perjury" was
"patently misleading" because resolution of the "fundamental
issue" did not "hinge[] upon the veracity of the FBI agents.");
State v. Albino, 97 A.3d 478 (Conn. 2014) (despite concluding
defendant was not deprived of a fair trial, prosecutor's
argument that jury would "have to find that every single person
in this case is wrong" in order to find defendant not guilty
precluded jury from reaching reasonable reconciliations of
conflicting testimony); People v. Dace, 604 N.E.2d 1013 (Ill.
App. Ct. 1992) (court explained that "the jury could have
believed some of the witnesses and still have believed
defendant's testimony that he did not sexually assault
L.R."); State v. Graves, 668 N.W.2d 860 (Iowa 2003)
(prosecutor's statement that if the jury believed the officer's
testimony then "there is no question [defendant] is guilty as
charged" was improper because even if jury believed officer's
testimony regarding defendant's residency, defendant's
"residency alone would not support a guilty verdict on the
possession-with-intent-to-deliver charge."). The remaining
cases Mr. Bell cited provide insufficient information for us to
identify the logical category into which they would fit.
30
No. 2015AP2667-CR & 2015AP2668-CR
weigh the credibility of the witnesses." Id. Similarly, in
Amerson, the prosecutor said the jury couldn't "'believe the
testimony of these police officers and believe the defendant's
testimony at the same time.'" 185 F.3d at 680. The Amerson
court said this was "a mere statement of fact, which was no
different than stating to the jury that they had a chance to
determine whether the officers or the defendant was telling the
truth and that it was up to the jury to determine who was more
credible when applying the . . . jury instructions . . . ." Id.
at 687.
¶51 The key to both Amerson and Sandoval is that when the
prosecutor's statements are fairly characterized as impressing
on the jury the importance of assessing the witnesses'
credibility, there is no error. That is the practical effect of
the prosecutor's commentary in this case. The parties did not
offer competing story lines, nor did the defense advance an
alternative version of the events described by T.P. and A.L.
There was the truth of the events the victims described, or the
lack of truth. The verdict would necessarily follow the option
chosen by the jury. Therefore, because Mr. Bell is in the
category of cases in which the verdict will necessarily follow
the jury's determination of the victims' credibility, the
State's argument that the jurors should not find Mr. Bell not
guilty unless they conclude T.P. and A.L. lied is equivalent to
asking the jurors to carefully weigh the victims' credibility.
¶52 We conclude that the State's "must believe" commentary
was not improper; that does not, however, end our inquiry, as we
31
No. 2015AP2667-CR & 2015AP2668-CR
must also consider whether the prosecutor's "motive" statements
were improper.
b. The "Motive" Statements
¶53 Mr. Bell characterizes the prosecutor's "motive
statements" as instructing the jury that it could not disbelieve
the victims unless there was evidence of a motive for them to
lie. We do not believe this fairly characterizes the nature of
these statements. Taken as a whole, the prosecutor was
undoubtedly encouraging the jurors not to disbelieve the victims
unless they found evidence of a motive to lie. But such an
argument is in an entirely different category from an assertion
that they cannot disbelieve the victims without such evidence.
The first category comprises persuasion, while the second
relates to purported statements of the law.
¶54 Both the prosecutor and defense counsel spent time
during voir dire questioning prospective jurors about the
reasons a person might lie. Defense counsel used cross-
examination to suggest some motives for lying, including a
desire for parental attention and sympathy, and avoiding
responsibility for misdeeds. The statements that come closest
to Mr. Bell's claim of error took place during closing
arguments. There, the prosecutor made statements such as "if
somebody is going to lie about something, they're going to have
a reason. They're going to have some evidence of that reason."
Additionally, he argued that "[i]f a person lies about
something, they must have a reason. And the reason why there is
no evidence in this case about why anybody would lie is because
32
No. 2015AP2667-CR & 2015AP2668-CR
they're not lying." Defense counsel responded by describing
various reasons the victims might have lied, including jealousy,
hurt, revenge, and a perceived need for survival. The
prosecutor, during rebuttal, told the jurors that defense
counsel was inviting them to speculate about the motives to lie
and that the jury instructions say they must not speculate.
¶55 We agree with the court of appeals that it is a matter
of general life experience that people normally do not lie
without reason: "It is common sense that people do not lie
unless there is a reason behind the lie. That is, at least
ordinarily, and arguably by definition, a lie is the result of a
decision to convey a falsehood." State v. Bell, Nos.
2015AP2667-CR & 2015AP2668-CR, unpublished slip op., ¶32 (Wis.
Ct. App. Dec. 1, 2016). All but one of the prosecutor's
"motive" statements consist of observations about this common-
sense principle and an encouragement not to discard it as they
weighed the victims' credibility. That is, the comments fell
into the category of persuasion.
¶56 The one comment that fell into the "statements of law"
category was the prosecutor's admonition that the jury
instructions did not allow the jurors to speculate with respect
to a witness's credibility. Mr. Bell says they may, and directs
our attention to the jury instruction's description of what may
be considered in weighing a witness's credibility:
It is the duty of the jury to scrutinize and to
weigh the testimony of witnesses and to determine the
sole effect of the evidence as a whole. You are the
sole judges of the credibility, that is, the
33
No. 2015AP2667-CR & 2015AP2668-CR
believability, of the witnesses and of the weight to
be given to their testimony.
In determining the credibility of each witness
and the weight you give to the testimony of each
witness, consider these factors: whether the witness
has an interest or lack of interest in the result of
this trial; the witness' conduct, appearance, and
demeanor on the witness stand; the clearness or lack
of clearness of the witness' recollections; the
opportunity the witness had for observing and for
knowing the matters the witness testified about; the
reasonableness of the witness testimony; the apparent
intelligence of the witness; bias or prejudice, if any
has been shown; possible motives for falsifying
testimony; and all other facts and circumstances
during the trial which tend either to support or to
discredit the testimony. Then give to the testimony
of each witness the weight you believe it should
receive.
There is no magic way for you to evaluate
testimony; instead, you should use your common sense
and experience. In everyday life you determine for
yourselves the reliability of things people say to
you. You should do the same thing here.
¶57 This instruction does not suggest the jury may
speculate about witness credibility. It gives examples of
considerations that may affect the jurors' judgment about the
witness's credibility, amongst which are the possible motives
for falsifying testimony, and "all other facts and
circumstances" that "either support or discredit the trial
testimony." This is not an invitation to speculate, nor does it
endorse the creation of discrediting evidence ex nihilo. As in
all other aspects of the case, the jury must consider the
witnesses' testimony in light of the admissible evidence and
reasonable inferences, all as directed by their "common sense
and experience."
34
No. 2015AP2667-CR & 2015AP2668-CR
¶58 Mr. Bell says our decision in Vill. of Bangor v. Hussa
Canning & Pickle Co., 208 Wis. 191, 242 N.W. 565 (1932),
recognizes the jury's right to speculatively discount a
witness's credibility. There, we observed that "[i]n a jury
trial there are a great many factors, some of them very subtle,
which, consciously or unconsciously, influence the juror's mind
in judging the credibility of witnesses and resolving the merits
of the case." Id. at 198. True enough, but just because the
evidence's effect is subtle does not make the jurors' response
to it a matter of speculation.
¶59 The prosecutor did not shift the burden to Mr. Bell by
encouraging the jury not to discount the victims' testimony in
the absence of a motive to lie. This was persuasion, not a
statement of the law. Nor was his admonition that the jurors
must not speculate, even with respect to matters of credibility,
erroneous. Consequently, having determined that neither the
"must believe" nor the "motive" statements were improper, Mr.
Bell has identified no error to which we may apply the "plain
error" doctrine, and no cognizable deficiency in his counsel's
performance at trial. That necessarily means we need not
consider whether, if they had been improper, it would have been
so obvious, substantial, and fundamental that it would
necessitate a new trial under our "plain error" doctrine. It
also means Mr. Bell's counsel could not have performed
deficiently (on this issue) because Mr. Bell would not have been
entitled to a mistrial even if he had requested it. See, e.g.,
Strickland, 466 U.S. at 687 (to prove deficiency, defendant must
35
No. 2015AP2667-CR & 2015AP2668-CR
establish "that counsel made errors so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment.").
B. The Jury's Review of Unredacted Exhibits
¶60 Mr. Bell's final challenge to his convictions is that
his trial counsel was ineffective for failing to seek redaction
of information from two of his exhibits that suggested T.P. had
not been sexually active prior to the assault. The statements
at issue are brief. Mr. Bell's challenge to the first exhibit——
a transcript of T.P.'s taped statement to Sergeant Stickney——
relates to the following exchange:
[Sergeant Stickney]: "Had you ever had sex before
that point?"
[T.P.]: "No."
As to the second exhibit, Sergeant Stickney's written report
recounting the interview with T.P., Mr. Bell challenges the
following commentary:
She is 14 years old but seemed to have very little
knowledge about sex. She had told me she had never
had sex before.
She also could not say if he ejaculated or even if she
knew what that meant. I tried to explain and she said
she did not think he did but was not sure.
¶61 The Sixth Amendment15 guarantees to a criminal
defendant "the effective assistance of counsel." Strickland,
466 U.S. at 686. A successful attack on counsel's performance
15
See U.S. Const. amend. VI; Wis. Const. art. I, § 7.
36
No. 2015AP2667-CR & 2015AP2668-CR
requires that the defendant establish both that trial counsel
performed deficiently and that the deficiency was prejudicial.
See Pitsch, 124 Wis. 2d at 633; see also Strickland, 466 U.S. at
697.
¶62 The first prong requires us to compare counsel's
performance to the "wide range of professionally competent
assistance." Strickland, 466 U.S. at 690. Only if his conduct
falls outside that objectively reasonable range will we conclude
that counsel performed deficiently. State v. Thiel, 2003 WI
111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305. To show prejudice
(the second prong), a defendant must establish "'a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.'" Pitsch,
124 Wis. 2d at 642 (quoting Strickland, 466 U.S. at 694). "A
reasonable probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694. A
lack of confidence arises when "'counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.'" Lockhart v. Fretwell, 506 U.S. 364,
369 (1993) (quoting Strickland, 466 U.S. at 687). If the
defendant fails to prove one element, it is unnecessary to
address the other. Strickland, 466 U.S. at 697.
¶63 Mr. Bell says the two documents at issue contained
evidence made inadmissible by Wis. Stat. § 972.11(2)(b) (the
"Rape Shield" statute), which precludes admission of "any
evidence" of the complainant's "prior sexual conduct." Prior
sexual conduct includes a lack of sexual conduct, meaning that
37
No. 2015AP2667-CR & 2015AP2668-CR
evidence that a complainant had never had sexual intercourse is
inadmissible. State v. Gavigan, 111 Wis. 2d 150, 159, 330
N.W.2d 571 (1983). This prohibition extends to indirect
references to a complainant's lack of sexual experience or
activity. Id. Evidence of this nature is prohibited because it
"is generally prejudicial and bears no logical correlation to
the complainant's credibility." Id. at 156. The rule applies
to adolescents as well as adults. See State v. Mitchell, 144
Wis. 2d 596, 601, 424 N.W.2d 698 (1988).
¶64 Both the prosecutor and defense counsel had the
opportunity to review the requested exhibits and to redact them
as they saw fit before they went to the jury room. Defense
counsel and the prosecutor agreed to redact information from
exhibits other than the ones at issue. Defense counsel did not,
however, seek redaction of the exhibits about which Mr. Bell is
now concerned. At the December 2015 Machner hearing, defense
counsel could not specifically recall why he did not seek
redaction of these exhibits and speculated that he believed the
unredacted statements would bolster the inconsistencies in
T.P.'s testimony.
¶65 We agree with Mr. Bell that these exhibits should not
have been submitted to the jury without redaction. It is well-
established that the type of information Mr. Bell challenged is
generally inadmissible, and defense counsel acknowledged as much
at the Machner hearing, stating that he may have "goofed up" in
not requesting redaction. Defense counsel's attempt to explain
his possible rationale for failing to do so was hampered by the
38
No. 2015AP2667-CR & 2015AP2668-CR
passage of time——13 years between the trial and the Machner
hearing. The result is that we have insufficient information to
conclude that there was no deficiency in defense counsel's
performance.16 For the sake of the remaining analysis,
therefore, we will assume——without deciding——that his
performance was deficient.
¶66 To succeed with his challenge Mr. Bell must also
establish that the deficient performance was prejudicial. We
conclude the circumstances do not support such a conclusion.
¶67 Mr. Bell primarily argues that the unredacted
information was prejudicial because it "was likely to arouse
sympathy for [T.P.] and undercut defense counsel's contention
that she was uncooperative because the assault never occurred"
and that in light of Dr. Budzak's testimony regarding T.P.'s
lack of hymenal tissue, evidence that T.P. "had not had sexual
intercourse until she was assaulted by [Mr.] Bell undermines
confidence in the outcome." This lack of confidence, Mr. Bell
says, arises because the combination of Dr. Budzak's testimony
and the inadmissible evidence "created a strong inference that,
because [T.P.] had never before had intercourse, the destruction
16
Our review of the record confirms that defense counsel
was aware of the Rape Shield statute at the time of trial, at
least generally speaking: On the second day of trial, prior to
reprising A.L.'s testimony, he sought permission to address
A.L.'s prior sexual conduct on cross-examination despite being
aware that the "Rape Shield exists . . . ." The court ruled
that it would not allow him to do so based on the Rape Shield
statute.
39
No. 2015AP2667-CR & 2015AP2668-CR
of her hymen occurred during the only time she had intercourse,
and that was the assault by Bell." We disagree.
¶68 The connection between Dr. Budzak's testimony and the
statements at issue——that T.P. had not had sexual intercourse
prior to the sexual assault——was not the subject of argument,
and neither the prosecutor nor trial counsel drew any such
connection for the jury. Moreover, careful review of Dr.
Budzak's trial testimony weakens Mr. Bell's argument. While Dr.
Budzak did testify that based on T.P.'s exam "[i]t would be
likely" that T.P "had had sexual intercourse" at some point in
her life and that her conclusion was based on T.P.'s "lack of
hymenal tissue and her ability to tolerate the exam easily[,]"
she also explained that because approximately five weeks elapsed
between the assault and the exam, there simply was no way to
confirm that the sexual intercourse was the result of a sexual
assault. She likewise did not confirm whether it is possible to
pinpoint when the hymenal tissue became disrupted. Moreover,
Dr. Budzak explained that a lack of hymenal tissue does not
conclusively prove an individual has had sexual intercourse
because there are other explanations as to why that tissue is
absent or disrupted. Therefore, the fact that the physical exam
indicated T.P. may have had sexual intercourse at some point in
her life does not necessarily establish that she did have sexual
intercourse. And even if this established that she had had
sexual intercourse, it is entirely incapable of identifying with
whom she had it. Nor can it even establish that the hymenal
tissue was disrupted as a consequence of the sexual assault, as
40
No. 2015AP2667-CR & 2015AP2668-CR
opposed to sexual intercourse prior to that date, or during the
five weeks between that date and the examination. Therefore,
this evidence does not make it any more likely that the sexual
intercourse——assuming it occurred——was with Mr. Bell.
¶69 At best, Mr. Bell posits that the jury——without any
prompting by trial counsel or the prosecutor——may have drawn a
connection between Dr. Budzak's testimony and the inadmissible
evidence. This is too speculative to conclude that Mr. Bell
suffered any prejudicial effect at all, particularly because Dr.
Budzak's testimony and the exhibits at issue pertained only to
T.P. and said nothing of A.L.'s assault. This error was not so
serious that it deprived Mr. Bell of a fair trial, so it does
not shake our confidence in the outcome. Therefore, although it
was error for the jury to view the statements alluding to T.P.'s
lack of sexual intercourse prior to the sexual assault, there is
no reasonable probability that, but for defense counsel's
deficient performance, the result of the trial would have been
different. So we conclude that Mr. Bell did not receive
ineffective assistance of counsel when his attorney allowed
defense exhibits to go to the jury room without redaction of the
inadmissible evidence.
IV. CONCLUSION
¶70 The State's trial commentary was not improper, which
means there is no error, plain or otherwise, for us to address.
That also means the State's commentary cannot serve as the basis
for a claim of ineffective assistance of counsel. With respect
to the inadmissible evidence submitted to the jury in two of the
41
No. 2015AP2667-CR & 2015AP2668-CR
defense's exhibits, we conclude there is no reasonable
probability that redacting that evidence would have changed the
result of the trial. Accordingly, we conclude Mr. Bell received
a fair trial and is not entitled to a new one; we therefore
affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
¶71 PATIENCE DRAKE ROGGENSACK, C.J., withdrew from
participation.
¶72 SHIRLEY S. ABRAHAMSON, J., did not participate.
42
Nos. 2015AP2667-CR & 2015AP2668-CR.akz
¶73 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I write
to clarify why I join the court's opinion. In this writing I
intend to concisely highlight the main holdings of the opinion.
¶74 This is a review of an unpublished decision of the
court of appeals, State v. Bell, Nos. 2015AP2267-CR and
2015AP2668-CR, unpublished slip. op., (Wis. Ct. App. Dec. 1,
2016), affirming the Monroe County circuit court's1 denial of
Gerrod Bell's ("Bell") postconviction motion for a new trial.
¶75 In a consolidated criminal action by the State, Bell
was charged with seven crimes relating to the sexual assaults of
two minors, A.L. and T.P. Majority op., ¶4. The case proceeded
to trial. At different points during the trial, the prosecutor
made a number of statements regarding witness credibility to the
effect that (1) to find Bell not guilty the jury must believe
that T.P. had lied (the "must believe" statements), and (2) to
believe that T.P. had lied, there had to be evidence of a reason
to lie (the "motive" statements). Majority op., ¶41. Defense
counsel objected to these statements during the State's closing
argument, but failed to properly preserve the objection by
moving for a mistrial before the jury rendered its verdict.2
1
The Honorable Michael Rosborough presided.
2
During the State's closing argument, when it was going
through its litany of "must believe" statements, defense counsel
objected:
[DEFENSE COUNSEL]: Your Honor, I'm concerned
about how he's presenting this because I think he's
reversing the burden of proof.
(continued)
1
Nos. 2015AP2667-CR & 2015AP2668-CR.akz
Additionally, when reviewing exhibits requested by the jury,
defense counsel failed to request the redaction of two exhibits
that tended to establish T.P.'s "prior sexual conduct," which is
inadmissible evidence pursuant to Wis. Stat. § 972.11(2)(b) (the
"Rape Shield" statute). The jury ultimately found Bell guilty
of all counts.
¶76 After the judgments of conviction were entered, Bell
filed a postconviction motion under Wis. Stat. (Rule)
§ 809.30(2)(h) seeking a new trial. See majority op., ¶6. The
circuit court denied Bell's motion for a new trial because it
found that the prosecutor's statements did not violate Bell's
constitutional rights given the totality of the circumstances at
(continued)
[STATE]: No I'm not Your Honor; I'm simply——
THE COURT: Well, this is argument; I think the
jury understands that. It's not evidence and there
has to be some latitude for advocacy during the course
of argument. I'm not convinced that what he's saying
is going beyond that at this point. And, of course,
you still have the opportunity to get up there and
make your presentation.
So let's proceed with that in mind.
As a procedural matter, this was insufficient to preserve the
issue for direct appeal. See State v. Davidson, 2000 WI 91,
¶86, 236 Wis. 2d 537, 613 N.W.2d 606 (concluding that the
defendant's failure "to make a timely motion for
mistrial . . . before the jury returned its judgment constitutes
a waiver of his objections to the prosecutor's statements during
closing arguments"); see also majority op., ¶11 n.13. Bell
acknowledges that this procedural requirement was not met, which
is why he must raise the issues before the court in the context
of plain error and ineffective assistance of counsel.
2
Nos. 2015AP2667-CR & 2015AP2668-CR.akz
trial, namely that the jury had been properly instructed. Bell
appealed.
¶77 The court of appeals affirmed. See Bell, unpublished
slip op., ¶3. The court of appeals held that the prosecutor's
statements were not misstatements of law; rather, the statements
were a characterization of the evidence that was responsive to
the defense's theory. Id., ¶36. Because it concluded that
there was no error, the court of appeals did not reach the
issues of whether the error was sufficient to entitle Bell to a
new trial on the basis of plain error or ineffective assistance
of counsel. Similarly, the court of appeals held that defense
counsel's failure to request redaction of the exhibits was not
ineffective assistance of counsel because the jury's review of
unredacted exhibits did not result in prejudice. Id., ¶¶38, 48.
Bell petitioned for review.
¶78 On review, we consider three issues: (1) Whether the
prosecutor's statements constitute plain error so as to entitle
Bell to a new trial; (2) whether Bell is entitled to a new trial
because defense counsel's failure to properly preserve objection
to the prosecutor's statements constitutes ineffective
assistance of counsel; and (3) whether Bell is entitled to a new
trial because defense counsel's failure to request redaction of
the exhibits constitutes ineffective assistance of counsel.
I
¶79 We consider first whether the prosecutor's statements
constitute plain error so as to entitle Bell to a new trial. We
conclude that the prosecutor's "must believe" statements were
3
Nos. 2015AP2667-CR & 2015AP2668-CR.akz
not improper, and, therefore, that there was no error, because
their practical effect was only to "impress[] on the jury the
importance of assessing the witnesses' credibility." Majority
op., ¶51. We further conclude that the prosecutor's "motive"
statements were not improper, and, therefore, that there was no
error, because either they were not statements of law at all or
they were not misstatements of law. Majority op., ¶¶55-57, 59.
Thus, we conclude that Bell is not entitled to a new trial
because there was no error. Majority op., ¶70. Here, I strive
to clarify why the "must believe" statements do not amount to
error.
¶80 Where witness testimony is the only evidence presented
at trial, and, if credible, it is sufficient to prove guilt, it
is not an error which requires reversal for the prosecutor to
argue that, to find the defendant not guilty, the jury must
believe the witnesses are lying. Majority op., ¶46. Here, this
is true for two reasons. First, the prosecutor's arguments are
not evidence. The court instructs the jury in that respect, and
we properly rely on the assumption that the jury follows the
instructions of the court. See, e.g., State v. Marinez, 2011 WI
12, ¶41, 331 Wis. 2d 568, 797 N.W.2d 399.
¶81 Second, the witnesses' testimony——the sole evidence in
this case——is sufficient to prove guilt; that is, it provides
sufficient evidence to support a finding of guilt on every
element the State is required to prove. Majority op., ¶46.
While the jury could believe the witnesses and conclude the
defendant is not guilty because the State has not met its burden
4
Nos. 2015AP2667-CR & 2015AP2668-CR.akz
of proof, the jury will still need to assess the witnesses'
credibility and determine what weight to attach to that
testimony. In other words, the jury is instructed to determine
who is believable and it is not beyond the jury's ability to
discern which witnesses the State hopes the jury will find
credible. We presume "that the decisionmaker is reasonably,
conscientiously, and impartially applying the standards that
govern the decision";3 that is, a defendant cannot argue that a
lawless jury is a possibility that renders otherwise sufficient
evidence, insufficient. Majority op., ¶47.
¶82 I also agree with the majority that Vargas,4 Cornett,5
and Reed6 are all distinguishable, in part because, in those
cases, the credibility of the witnesses' testimony was not
determinative of guilt. Majority op., ¶¶48-49; id., ¶49 n.14.
I further recognize that, where the credibility of a witness'
testimony is not the only thing at stake, the jury could find
the defendant "not guilty" for some other reason, for example,
if additional evidence offered is unpersuasive or persuasive.
Thus, it could be a misstatement of law in those circumstances
to say that to find the defendant not guilty, the jury must
believe the witnesses are lying. Majority op., ¶45.
3
Strickland v. Washington, 466 U.S. 668, 695 (1984).
4
United States v. Vargas, 583 F.2d 380 (7th Cir. 1978).
5
United States v. Cornett, 232 F.3d 570 (7th Cir. 2000).
6
United States v. Reed, 724 F.2d 677 (8th Cir. 1984).
5
Nos. 2015AP2667-CR & 2015AP2668-CR.akz
¶83 But that is not the circumstance here, and Amerson7 and
Sandoval8 provide additional support for the conclusion that the
prosecutor's statements were not improper because these cases
demonstrate that the statements may be properly characterized as
"impressing on the jury the importance of assessing the
witnesses' credibility." Majority op., ¶51. In fact, that is
what the prosecutor did here. The State impressed on the jury
the apparent fact that the jury must determine the credibility
of the witnesses and the weight to attach to their testimony.
It urged the jury to do what the jury already knew the State
wanted the jury to do. It was hardly a secret who the
prosecutor hoped the jury would believe. But, unlike improperly
vouching for a witness, the prosecutor here was merely telling
the jury what it already knew: the State wanted the jury to find
its witnesses credible.
¶84 In sum, I conclude that the prosecutor's "must
believe" statements were not misstatements of law, especially in
this case, where the witnesses' credible testimony is alone
enough for the State to prove guilt, and is, in fact, the only
proof offered. Majority op., ¶¶46-47. Additionally, the
practical effect of the statements was only to "impress[] on the
jury the importance of assessing the witnesses' credibility,"
majority op., ¶51, telling the jury what it already knew. The
State's case rested on the jury believing a particular witness,
7
United States v. Amerson, 185 F.3d 676 (7th Cir. 1999).
8
United States v. Sandoval, 347 F.3d 627 (7th Cir. 2003).
6
Nos. 2015AP2667-CR & 2015AP2668-CR.akz
but the prosecutor was not stepping into the shoes of the jury
to tell them whom to believe. The State was instead describing
the duty of the jury to determine what testimony they find more
appealing to their good judgment and common sense.
II
¶85 We consider second whether Bell is entitled to a new
trial because defense counsel's failure to properly preserve
objection to the prosecutor's statements constitutes ineffective
assistance of counsel. We conclude that Bell's defense counsel
did not perform deficiently in failing to move for a mistrial
prior to the verdict on the basis of the prosecutor's statements
because the prosecutor's statements were not objectionable
error. Majority op. ¶59. Thus, we conclude that Bell is not
entitled to a new trial because there is no ineffective
assistance of counsel where there is no deficient performance.
Majority op., ¶70.
III
¶86 We consider third whether Bell is entitled to a new
trial because defense counsel's failure to request redaction of
the exhibits constitutes ineffective assistance of counsel.
Although we hold that allowing the jury to review unredacted
versions of the exhibits was error because admission of such
evidence is prohibited under Wis. Stat. § 972.11(2)(b), majority
op., ¶65, we conclude that the error was harmless because Bell's
argument that the jury may have inferred T.P.'s prior sexual
history from Dr. Budzak's testimony and the inadmissible
contents of the exhibits is too speculative. Majority op., ¶69.
7
Nos. 2015AP2667-CR & 2015AP2668-CR.akz
Thus, we conclude that Bell is not entitled to a new trial
because there is no ineffective assistance of counsel where the
error does not prejudice the defendant. Majority op., ¶70.
¶87 For the foregoing reasons, I respectfully concur.
8
No. 2015AP2667-CR & 2015AP2668-CR.awb
¶88 ANN WALSH BRADLEY, J. (dissenting). At the
foundation of our system of justice lies the principle that
defendants do not have to prove their innocence. State v.
Sawyer, 266 Wis. 494, 506, 63 N.W.2d 749 (1954). In fact, a
defendant is entitled to a presumption of innocence and need not
present any evidence at all at trial. See Johnson v. State, 85
Wis. 2d 22, 27, 270 N.W.2d 153 (1978); State v. Johnson, 11
Wis. 2d 130, 134, 104 N.W.2d 379 (1960).
¶89 As a corollary to this foundational principle, the
State bears the burden to prove beyond a reasonable doubt every
fact necessary to constitute guilt. State v. Schulz, 102
Wis. 2d 423, 427, 307 N.W.2d 151 (1981); In re Winship, 397
U.S. 358, 361-64 (1970). This burden remains with the State
throughout the entirety of trial, and cannot be shifted to the
defendant. Schulz, 102 Wis. 2d at 427.
¶90 Despite these well-established principles, the State
in this case argued to the jury that the defendant has a burden
to present evidence and convince the jury of the victims' motive
to lie. Because the statements made during voir dire and
closing argument misstated the law governing a jury's
consideration of evidence and impermissibly shifted to the
defendant a burden he does not carry, I respectfully dissent.
I
¶91 A jury convicted Bell of the sexual assault of two
underage victims, T.P. and A.L. At trial, Bell's defense
focused largely on the credibility of the victims. Both Bell
and the State presented extensive argument on this subject.
1
No. 2015AP2667-CR & 2015AP2668-CR.awb
¶92 The question is whether certain arguments made by the
State, referred to by the majority as the "must believe"
statements and the "motive" statements, crossed the line so as
to impermissibly shift the burden of proof from the State to the
defendant. Because it is dispositive, I focus my analysis on
the "motive" statements only.
II
¶93 The "motive" statements framed the State's entire
case. Setting the stage during voir dire, the prosecutor asked
the jury panel, "Would everybody agree here that . . . if you're
going to lie, you're going to have a reason like jealousy of
some sort; there's going to be a reason why you would lie?"
¶94 Probing further, the prosecutor then posed the
question to individual jurors, "Would you expect there would be
some evidence that somebody would have a reason to lie? There
would be some sort of evidence that this person would have a
reason to lie[.]" Conflating the burden of proof jury
instruction with the instruction on credibility of witnesses,
the prosecutor began to instruct the jury panel on the law. He
advised that the "jury instructions on reasonable doubt" do not
allow the jury to speculate, and that the jury must instead
2
No. 2015AP2667-CR & 2015AP2668-CR.awb
"just look at the facts, the evidence or lack of evidence in
this case" with regard to witness credibility.1
¶95 During closing argument, the State built on the theme
introduced in voir dire, repeatedly contending that there was no
evidence demonstrating that the victims had lied. Majority op.,
¶¶34-35. It advanced that in the absence of such evidence the
jury should believe the victims. See id., ¶35. Specifically,
the State argued to the jury, "if somebody is going to make a
flat out lie about something, they're going to have a reason.
They're going to have some evidence of that reason." The State
further asserted that Bell "has no idea why [the victim] would
make this up. He says that repeatedly and he . . . just begins
to speculate."
¶96 The State suggested next that if no evidence was
presented regarding the victims' motive to lie, then the jury
would be left with only speculation as to their credibility. It
contended that Bell "just begins to make guesses after he says
he has no idea why she would make this up." In concluding this
segment of its closing argument, the State reiterated, "If a
person lies about something, they must have a reason. And the
reason why there is no evidence in this case about why anybody
would lie is because they're not lying."
1
The jury instruction on burden of proof indicates that
"[a] reasonable doubt is not a doubt which is based on mere
guesswork or speculation." Wis JI——Criminal 140 (2000). But
when the prosecutor spoke of speculation and evidence, he was
speaking not of the ultimate burden of proof on the State to
prove guilt beyond a reasonable doubt, but of witness
credibility, thus conflating the two instructions.
3
No. 2015AP2667-CR & 2015AP2668-CR.awb
¶97 Following Bell's closing argument, the State returned
for rebuttal. It doubled down on its previous arguments,
asserting "[t]here's never testimony they were lying because
[they have a bad life]. There's no testimony they were lying
for any other reason. There's no testimony that they were
lying. There's no evidence that they were lying. . . . And
we're supposed to look at the evidence or lack of evidence."
The State then admonished the jury that it is forbidden from
speculating as to why the victims would lie.
¶98 According to the State, who has to come up with this
important evidence of motive? The State? Certainly not.
Rather, according to the State's distortion of the burden of
proof instruction, it is the defendant who must introduce this
evidence. Yet, a theory of defense that the witnesses are lying
should not be transformed into a shift of the burden of proof,
requiring that the defendant offer evidence of motive to lie.
¶99 The majority, however, does not see a problem with the
prosecutor's statements, contending that "it is a matter of
general life experience that people normally do not lie without
reason: It is common sense that people do not lie unless there
is a reason behind the lie. That is, at least ordinarily, and
arguably by definition, a lie is the result of a decision to
convey a falsehood." Majority op., ¶55 (quoting State v. Bell,
Nos. 2015AP2667-CR & 2015AP2668-CR, unpublished slip op., ¶32
(Wis. Ct. App. Dec. 1, 2016)). In the majority's view, the
State's arguments "fell into the category of persuasion" because
they "consist of observations about this common-sense principle
4
No. 2015AP2667-CR & 2015AP2668-CR.awb
and an encouragement not to discard it as [jurors] weighed the
victims' credibility." Id.
¶100 However, what becomes apparent upon reading the
transcript in this case is that the State essentially
misinformed the jury that it could not find the victims lacking
in credibility unless Bell presented "evidence" of their motive
to lie. Such an assertion is legally incorrect. Pursuant to
well-established precepts, Bell need not do anything of the
sort. See Sawyer, 266 Wis. at 506.
¶101 Even accepting the majority's dubious premise that
there is always a reason behind an untruthful statement, such a
premise does not require that a defendant present evidence of a
witness's motive to lie. Indeed, as observed above, the
defendant has no burden to present any evidence whatsoever, let
alone evidence proving a motive. See Johnson v. State, 85
Wis. 2d at 27.
¶102 Here the State's remarks are akin to those at issue in
U.S. v. Smith, 500 F.2d 293 (6th Cir. 1974). In Smith, the
prosecutor made the statement in closing argument "that the jury
should 'require' the defendants to present a 'reasonable
explanation' of the meaning of taped wiretap evidence, other
than the criminal meaning he ascribed to the conversations[.]"
Id. at 294. In other words, the prosecutor implored the jury to
require the defendant to present evidence, shifting the burden
of proof. See id.
¶103 The Smith court determined that "[t]he challenged
comments of the prosecutor were clearly improper argument." Id.
5
No. 2015AP2667-CR & 2015AP2668-CR.awb
at 295. The remarks "had the effect of shifting the burden of
proof from the government to the defendants and abrogating the
presumption of innocence to which [the defendants] were
entitled." Id. at 294.
¶104 In reaching this result, the Smith court forewarned
that "[i]t is, of course the duty of the prosecutor to advance
the government's cause with force and persuasiveness. However,
this duty includes concerns in addition to mere advocacy." Id.
at 295. Specifically, the prosecutor is entrusted with "the
responsibility of observing in practice the principles
considered under our system to be essential to a fair and just
criminal procedure[,]" thereby protecting the constitutional
right to due process. Id.
¶105 Smith is not alone in distinguishing between lawful
advocacy and an unlawful shift of the burden of proof. Courts
around the country have determined that a shift of the burden of
proof to the defendant constitutes a denial of the required
"fair and just criminal procedure." See, e.g., People v.
Santana, 255 P.3d 1126, 1130 (Colo. 2011) (explaining that it is
impermissible for a prosecutor to "shift the burden of proof
through argument or comment"); People v. Fyda, 793 N.W.2d 712,
723 (Mich. Ct. App. 2010) ("A prosecutor may not imply in
closing argument that the defendant must prove something or
present a reasonable explanation for damaging evidence because
such an argument tends to shift the burden of proof."); State v.
Roman Nose, 667 N.W.2d 386, 399 (Minn. 2003) ("[A] prosecutor
may not comment on a defendant's failure to call witnesses or to
6
No. 2015AP2667-CR & 2015AP2668-CR.awb
contradict testimony because such comments might lead the jury
to believe that the defendant has a duty to call witnesses or
bears some burden of proof.").
¶106 I agree with the majority that, "while [a prosecutor]
may strike hard blows, he is not at liberty to strike foul
ones." Majority op., ¶16 (citing Berger v. United States, 295
U.S. 78, 88 (1935)). However, the majority errs in its
application of this principle.
¶107 Like the blows landed by the prosecutor in Smith, the
jabs the State takes in this case are foul. They constitute a
"clearly improper argument" that "shift[s] the burden of proof
from the government to the defendants and abrogate[s] the
presumption of innocence" to which Bell is entitled. See Smith,
500 F.2d at 294-95. In short, Bell has no burden of proof, yet
the State's comments placed one on him.
¶108 The error here is not a mere evidentiary error.
Rather, it constitutes a violation of the due process right to a
fair trial by distorting the burden of proof jury instruction,
thus shifting the burden of proof to the defendant.
¶109 When a defendant alleges that a prosecutor's
statements constituted plain error, as does Bell, the burden is
on the State to prove that the error is harmless beyond a
reasonable doubt. State v. Mayo, 2007 WI 78, ¶29, 301
Wis. 2d 642, 734 N.W.2d 115. Because I determine that on this
record the State has failed to make such a showing, I
respectfully dissent.
7
No. 2015AP2667-CR & 2015AP2668-CR.awb
1
State v. Gerrod R. Bell
Court: Wisconsin Supreme Court
Date filed: 2018-04-10
Citations: 909 N.W.2d 750, 380 Wis. 2d 616, 2018 WI 28
Copy CitationsCombined Opinion