COURT OF APPEALS DECISION DATED AND FILED September 14, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. David J. Jensen,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. David Jensen appeals from an amended judgment of conviction for one count of first-degree sexual assault of a child, and an order denying Jensen’s motion for a new trial based on ineffective assistance. Jensen asserts he is entitled to a new trial because the prosecutor compromised the jury’s ability to fairly resolve the credibility dispute between Jensen and the victim by inquiring into the facts underlying Jensen’s criminal history. We conclude Jensen’s attorney was deficient for failing to object to this prejudicial examination and agree Jensen was denied effective assistance of counsel. Accordingly, we reverse and remand for a new trial.
BACKGROUND
¶2 On April 6, 2007, nine-year-old Brandi C. reported that her mother’s boyfriend, David Jensen, had inappropriately touched her. Jensen was subsequently charged with first-degree sexual assault of a child. The one-day trial boiled down to a credibility dispute between Brandi, who testified unequivocally that Jensen sexually assaulted her, but whose recollection of the incident was less than clear, and Jensen, who denied the accusation.
¶3 As the State concluded its cross-examination of Jensen, the prosecutor stated he had “one last, final question,” and asked whether Jensen had ever been convicted of a crime and, if so, how many times. As agreed to by the parties, Jensen answered seven. In a single question of redirect, defense counsel established that none of Jensen’s seven convictions were for sexual assault. On recross, the prosecutor explored, without objection, not only the identity of Jensen’s prior convictions, but also the facts underlying the incidents. This was the last testimony the jury heard before convicting him. The circuit court denied Jensen’s postverdict motion for a new trial.
DISCUSSION
¶4 Allegations of ineffective assistance of counsel are governed
by the two-part test articulated in Strickland v. Washington, 466 U.S.
668 (1984). In order to establish that
he was denied effective representation, Jensen must demonstrate both that
counsel’s performance was deficient and that counsel’s errors or omissions were
prejudicial to the defense.
¶5 Jensen proposes his counsel performed deficiently by failing
to object to, or otherwise limit via a motion in limine, the scope of the
prosecutor’s questioning concerning Jensen’s prior offenses. He does not dispute that the prosecutor
appropriately established the number and nature of prior convictions to impeach
Jensen pursuant to Nicholas v. State, 49
¶6 We first examine whether Jensen’s counsel was deficient for
failing to object based on Nicholas. “The fact of prior convictions and the number
thereof is relevant evidence because the law in
¶7 In Nicholas, our supreme court
anticipated the possibility that some witnesses may answer those two questions
falsely. If this occurs, a prosecutor is
entitled to ask the witness whether he or she was convicted of a particular
crime on a particular date, mentioning the crime by name if necessary for clarity’s
sake.
¶8 Nicholas did not, however, address the present situation. Nicholas defines the scope of
inquiry where a witness answers the two permissible questions incorrectly or
claims a lack of memory. Our supreme
court did not elucidate the scope of inquiry permitted when a witness chooses
to inform the jury that none of his or her prior convictions involved the
charged offense. “Deficient performance
is limited to situations where the law or duty is clear such that reasonable
counsel should know enough to raise the issue.”
State v. Wery, 2007 WI App 169, ¶17, 304
¶9 But Jensen’s counsel had grounds for objection other than Nicholas. It is elementary that relevant evidence may nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Wis. Stat. § 904.03. Wisconsin Stat. § 906.09, which generally permits a party attacking the credibility of a witness to introduce evidence that the witness has been convicted of a crime, explicitly adopts this basic rule. See Wis. Stat. § 906.09(2). The rule requires that the court determine the probative value of the evidence, and then assess whether the danger of unfair prejudice substantially outweighs that value.
¶10 Here, the defense attorney’s failure to object deprived the
circuit court of the opportunity to weigh the probative value of the evidence
against the danger of unfair prejudice.
The prosecutor’s foray into the facts underlying Jensen’s criminal
history was probative of Jensen’s credibility to the extent it demonstrated he
had previously been convicted of a crime.
By contrast, the evidence was extremely prejudicial. The last exchange the jury heard painted
Jensen as a violent, physically abusive individual. After establishing his first conviction was
for battery and disorderly conduct, the prosecutor elicited Jensen’s testimony
that he hit a person whose identity he could not recall. In response to the prosecutor’s instruction
to “tell about the facts of that case,” Jensen testified that he beat an
acquaintance who jumped Jensen’s brother in a parking lot. Jensen stated he was convicted of battery a
second time after he “grabbed [his ex-girlfriend] by the throat and gave her a
shove to get away because she hit me in the head with a frying pan.” Jensen could not recall the details of the
third, fourth, or fifth convictions, leading the prosecutor to speculate that
Jensen may have been convicted of sex crimes but simply could not recall
them. An incident in which Jensen
elbowed his ex-wife in the ribs formed the basis for his sixth and seventh
convictions. Although this evidence was
elicited for the limited purpose of impeachment, it invited the jury to
conclude Jensen deserved punishment merely because he was a bad person.
¶11 The unfairly prejudicial nature of the evidence clearly and
substantially outweighed its probative value.
Under these circumstances, trial counsel had a clear duty to object
under Wis. Stat. §§ 904.03
and 906.09(2). We have no trouble
concluding counsel’s failure to do so fell “outside the wide range of
professionally competent assistance.” See Pitsch,
124
¶12 We next consider whether Jensen was prejudiced by trial
counsel’s deficient performance. This
prong of the Strickland analysis asks whether the defendant has shown a
reasonable probability that, but for counsel’s unprofessional errors, the
results of the proceeding would have been different. See Strickland, 466
¶13 Because the State introduced no physical evidence to support its
allegations, the sole issue was which witness, Brandi or Jensen, was credible. The jury’s ability to fairly weigh the
conflicting testimony was tainted by the prosecutor’s impermissible inquiry
into the facts underlying Jensen’s prior criminal history.[2] This examination spans a full five pages of
the trial transcript and was the last testimony the jury heard. Trial counsel’s failure to object to the
inquiries into Jensen’s past criminal history significantly damaged Jensen’s
credibility. “Because credibility was
the central issue in this case, we conclude that the error had a pervasive
effect on the inferences to be drawn from the evidence and altered the entire
evidentiary picture.” Pitsch,
124
By the Court.—Judgment and order reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the
[2] For this reason, we doubt the real credibility controversy was fully tried, and would exercise our discretionary reversal authority even if Jensen had received effective assistance of counsel. See Wis. Stat. § 752.35.