State v. Coleman

BRENNAN, J.

¶ 48. (dissenting). I dissent from the Majority opinion because I believe it fails to be "highly deferential" to trial counsel's strategic decisions, disregards the "strong presumption" that counsel's representation "falls within the wide range of reasonable professional assistance" and engages in the "distorting effects of hindsight." See Strickland v. Washington, 466 U.S. 668, 689 (1984); see also State v. Carter, 2010 WI 40, ¶ 22, 324 Wis. 2d 640, 782 N.W.2d 695.

¶ 49. Our job is to review the reasonableness of trial counsel's strategic choices from counsel's perspective at the time of counsel's conduct. State v. Felton, 110 Wis. 2d 485, 502-03, 329 N.W.2d 161 (1983). The standard we apply is an objective standard of reasonably effective assistance. Strickland, 466 U.S. at 687-88. And, as our Wisconsin Supreme Court has noted, the objective standard does not require that counsel's performance be perfect to be constitutionally adequate. State v. Thiel, 2003 WI 111, ¶ 19, 264 Wis. 2d 571, 665 N.W.2d 305.

¶ 50. Applying the proper standard of review here, I would affirm because trial counsel's defense strategies were reasonable at the time they were made and fall within the wide range of reasonable professional assistance.

*476. Trial counsel's strategic reasons for stating that Coleman would testify were not unreasonable.

¶ 51. The Majority concludes that trial counsel's strategy of attempting to enhance Coleman's credibility by saying in his opening statement that Coleman would testify constitutes deficient representation because counsel did not know for sure that Coleman would testify.

¶ 52. First, it is important to note that Coleman is not contending that he told trial counsel at the time of the opening statement that he would not testify. In fact, Coleman admits in his appellate brief that "he was always under the impression that he would testify [o]n his own behalf, thus making Atty. Taylor's opening statement consistent with that plan." (Emphasis added.) Coleman even testified at the Machner hearing that, at the time trial counsel made his opening statement, Coleman intended to testify and that he had told trial counsel that he intended to testify.

¶ 53. And it is true that trial counsel was not sure whether Coleman would testify. Trial counsel testified at the Machner hearing that he thought Coleman did not want to testify, but that he might yet decide to testify. Counsel also stated that he knew that the final decision was Coleman's and would not be made until the defense case:

That decision was not made until the final moment even though he had some apprehension about testifying from the beginning. And throughout that, still that decision was his. He could have said at any time: I'm going to testify and that would have been it.

Trial counsel correctly assessed the law. No trial counsel knows for sure at opening statement if the defen*477dant is going to testify later in the trial. That decision is the defendant's alone and is not made until much later.

¶ 54. Thus, the Majority's conclusion that counsel is ineffective unless he or she knows for sure that the client will testify is, first of all, impractical and legally impossible to know. Clients can, and do, change their minds and the law explicitly says they can do so up to the point of testifying. And secondly, such a rule contravenes the standard of review for ineffective-assistance claims. Strickland clearly states that we are to review the strategic reasons for counsel's conduct. Id., 466 U.S. at 691. We are to do so from counsel's perspective at the time of the conduct and apply the objective standard of reasonably effective, not perfect, assistance. See Felton, 110 Wis. 2d at 502-03; see also Thiel, 264 Wis. 2d 571, ¶ 19.

¶ 55. When we apply the proper standard of review to trial counsel's stated strategic decisions here, we see that trial counsel had strategic reasons for wanting to tell the jury in opening what his client's testimony would be. He was to present the "I've got nothing to hide" credibility enhancement strategy. Trial counsel testified that he was trying to give Coleman "some sort of credibility in the face of these horrendous allegations." Coleman was facing a child victim who was going to testify to his predatory sexual acts. It was a he-said, she-said case. It was certainly reasonable for trial counsel to want to present Coleman as a person with nothing to hide to enhance his credibility in the jury's eyes.

¶ 56. Additionally, as the postconviction court noted, this strategy was actually a rather artful way of presenting Coleman's testimony without calling him and subjecting him to cross-examination or impeach*478ment. There was no down-side to the strategy because, if Coleman chose not to testify, the State would be prohibited from commenting on his silence and the jury would be instructed that it was Coleman's right not to testify.

¶ 57. Thus, I conclude that, from the perspective of trial counsel during opening statement, this was an objectively reasonable strategy that falls within a wide range of reasonably professional assistance.

2. Trial counsel's strategic reasons for telling the jury of Coleman's prior conviction, prison time and that he was "not an angel" were not unreasonable.

¶ 58. As the Majority notes, trial counsel told the jury during voir dire that Coleman had a prior criminal conviction. Counsel testified at the Machner hearing that he did so "to take the thunder away from the state" and to remove any jurors who might have been biased against someone convicted of a crime. The Majority finds this to be an unreasonable voir dire strategy because counsel was not sure that Coleman would testify and the Majority concludes that there is no way the prior record would come in unless Coleman did testify.

¶ 59. While trial counsel may have thought it unlikely that Coleman would testify later in the trial, it was certainly possible, and under Wisconsin law, had Coleman taken the stand, he would have been subjected to impeachment by his prior criminal conviction. See State v. Kuntz, 160 Wis. 2d 722, 753, 467 N.W.2d 531 (1991) (A prior conviction on any crime is relevant to the credibility of a witness's testimony.); see also Liphford v. State, 43 Wis. 2d 367, 371, 168 N.W.2d 549 (1969) (Our law presumes that a person who has been *479convicted of a crime is less likely to be a truthful witness than a person who has not been convicted.). Therefore, trial counsel's decision to inform the jury panel of Coleman's prior conviction so that he could attempt to remove any jurors who would have been biased as a result of that conviction was certainly reasonable and a common defense trial tactic.

¶ 60. Next, the Majority finds deficient trial counsel's opening statement that Coleman served time in prison and was "not an angel." It is true that his prison sentence would ordinarily not have been allowed to be mentioned at trial even if Coleman testified and was subject to impeachment by his prior conviction. However, at the time trial counsel was making his opening statement, there was reason for trial counsel to believe from the police reports that the testimony might reveal or suggest that Coleman had been recently released from incarceration.

¶ 61. The testimony could have revealed that Coleman was sleeping on the couch in the victim's parents' apartment because he had nowhere to stay after his recent release from prison. Even if trial counsel could have brought a motion to exclude reference to Coleman's prison experience, the jury would be told, at a minimum, if Coleman testified, that Coleman had previously been convicted of a crime and had no place to live so he was sleeping on the victim's family's couch. From this, it was reasonable for trial counsel to be concerned that a juror might surmise that Coleman had been to prison.

¶ 62. In that context, it was not totally unreasonable for trial counsel to want to be the one to tell the jury of Coleman's past so that trial counsel could "clothe it in some sort of way that wouldn't be so harsh towards [Coleman]," as trial counsel testified at *480the Machner hearing. Telling the jury that Coleman was "not an angel," accomplished the same reasonable strategy of "takfing] the thunder away from the state."

¶ 63. But even assuming that mention of his prison sentence and the "not an angel" comment were deficient, they cannot be considered prejudicial. This was a credibility case. The case was always going to boil down to who the jury believed — the child victim or Coleman. Trial counsel presented a reasonable "fabrication" defense. The jury knew that the child's parents did not believe her and that the Crime Lab evidence did not support part of her testimony. In that context, Coleman's past would have had little impact on his credibility in the jury's eyes. Admitting that Coleman was not perfect may have even enhanced his credibility.

¶ 64. Additionally, any prejudice was cured by the jury instructions. The trial court gave the jury the standard instructions, informing the jury: that statements and arguments of counsel were not evidence; of the weight to be given to counsels' arguments; of the State's burden of proof; and that the defendant's decision not to testify must not influence the verdict. Wisconsin law presumes that a verdict was based on the evidence presented and the instructions provided by the court. See State v. Chambers, 173 Wis. 2d 237, 259, 496 N.W.2d 191 (Ct. App. 1992).

¶ 65. Under the circumstances, trial counsel's strategy of attempting to take the thunder away from the State was not objectively unreasonable or prejudicial.

*4813. Trial counsel's failure to impeach the victim with her "sticky wet stuff' statement to police was not deficient representation.

¶ 66. At trial, the thirteen-year-old victim testified to one act of sexual contact on September 21, 2011, that is, she testified that Coleman was moving his body against hers and that his "private" was "making the fabric of his pants poke out." She described the second act that occurred on September 22, 2011, where Coleman attempted to insert his penis into her vagina and licked her vaginal area. She reported the assault to her parents that day and to a school social worker the following day. The school notified police, and the victim's clothes, unwashed sheets and blankets were collected and analyzed at the Crime Lab. However, no male DNA evidence was found on any item or on the victim. The jury was told all of this information.

¶ 67. The Majority concludes it was deficient to fail to impeach the child victim with the statement she made to the detective that she told her stepmom, the school social worker and the detective that when Coleman ejaculated "she could feel his thing on her body and felt a wet sticky substance on the back of her right thigh."

¶ 68. Trial counsel testified that he did not think he needed the additional impeachment testimony because he had the Crime Lab evidence that no male DNA was found. He was also concerned that had he cross-examined the victim on the stand about the "wet sticky substance" statement to the detective, it would have highlighted a more reprehensible sexual assault than the victim testified to. The postconviction court agreed and noted that it is a common sexual assault defense strategy to stay away from any impeachment *482that makes it look like the lawyer is picking on the victim, particularly a child victim, especially where the lawyer does not need to. I agree.

¶ 69. Trial counsel reasonably concluded that the risks of this impeachment outweighed its potential benefit — especially given the Crime Lab evidence already available. This was a reasonable defense strategy and was neither deficient nor prejudicial.

4. Trial counsel's failure to impeach the victim with her inconsistent statement about how long she watched TV with Coleman the day after the assault was neither deficient nor prejudicial.

¶ 70. Even the Majority agrees that failing to impeach the child victim with her inconsistency about whether she went to bed at 6:00 p.m. or 8:00 p.m. the day after the assault and how long she watched TV with Coleman is not deficient representation. However, the Majority lumps this claim in with the others to conclude the cumulative deficiencies were prejudicial and warrant reversal. If it is not a deficiency — as the Majority concedes — then it does not warrant being included in the cumulative prejudice analysis because that analysis only applies to "deficiencies." See Thiel, 264 Wis. 2d 571, ¶ 59 (When a defendant alleges multiple deficiencies by trial counsel, prejudice should be assessed based on the cumulative effect of those deficiencies.).

CONCLUSION

¶ 71. The law presumes trial counsel was reasonably competent and warns reviewing courts not to engage in second-guessing or hindsight. Strickland, *483466 U.S. at 689. There is a prescribed standard of review that is important to adhere to. Applying that law here, trial counsel was not deficient in any of the claimed respects. I would affirm.