2011 WI 95
Supreme Court of Wisconsin
State of Wisconsin,
David W. Domke,
REVIEW OF A DECISION OF THE COURT OF APPEALS
November 1, 2011
Submitted on Briefs:
September 14, 2011
Source of Appeal:
Michael T. Judge
For the plaintiff-respondent-petitioner the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant there was a brief and oral argument by Martha K. Askins, assistant state public defender.
An amicus curiae brief was filed by Robert R. Henak, Rebecca R. Lawnicki and Henak Law Office, S.C., Milwaukee, on behalf of the Wisconsin Association of Criminal Defense Lawyers.
2011 WI 95
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
STATE OF WISCONSIN :
IN SUPREME COURT
David W. Domke,
NOV 1, 2011
A. John Voelker
Acting Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 N. PATRICK CROOKS, J. This is a review of an unpublished decision of the court of appeals reversing the circuit court's judgment of conviction and remanding for a new trial based on ineffective assistance of counsel. A jury convicted David W. Domke (Domke) of repeatedly sexually assaulting Alicia S., his stepdaughter, when she was ten years old, in violation of Wis. Stat. § 948.02(1) and § 948.025(1)(a) (2003-04). Domke moved for postconviction relief and a new trial based on the ineffective assistance of his trial counsel, Terrence Woods (Woods). In order to prevail on the ineffective assistance claim, Domke needed to establish both that Woods' performance was deficient and that the deficient performance prejudiced Domke——in other words, that counsel's errors undermine the court's confidence in the result. After a postconviction hearing, the circuit court denied the motion because it concluded that while Domke had shown that Woods performed deficiently, Domke had failed to show that the deficient performance had prejudiced him. The court of appeals, however, concluded that Domke had established cumulative prejudice from three instances of deficient performance. Thus, the court of appeals reversed the circuit court's denial of Domke's postconviction motion and remanded for a new trial.
¶2 We conclude that Domke is not entitled to a new trial due to ineffective assistance of counsel. While we agree with the court of appeals that Woods performed deficiently in three respects during trial, we are not persuaded that these errors prejudiced Domke. We hold that under the totality of the circumstances Domke received a fair trial, and our confidence in the result is not undermined.
¶3 Therefore, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction.
I. FACTUAL BACKGROUND
¶4 The charges against Domke are based on four incidents between June 20, 2005, and December 25, 2005, on which Alicia S. alleged that Domke engaged in sexual contact with her. Specifically, Alicia S. alleged that on all four occasions Domke rubbed his penis on her buttocks and on one occasion Domke also licked her vagina. Alicia S. was ten years old at the time. Alicia S. did not disclose the full extent of the alleged assaults at first, but over time the details of the four incidents emerged.
¶5 Approximately six months after the first alleged assault, Alicia
S. told two friends, L.H. and J.M., that Domke had sexually assaulted her. J.M.
told another friend, whose mother reported the allegations to Alicia S.'s
elementary school. The guidance
counselor at the school notified the police, and a police officer, Corey Rank
(Rank), and a child protection investigator, Bonnie Anderson (
II. PROCEDURAL HISTORY
¶6 On December 18, 2006, Domke was charged with the repeated sexual assault of a child in violation of Wis. Stat. § 948.025(1)(a) (2003-04) based on four alleged incidents of sexual contact with Alicia S. in violation of Wis. Stat. § 948.02(1). A two-day jury trial was held on January 17 and 18, 2008, in the Oconto County Circuit Court, the Honorable Michael T. Judge presiding.
A. The Trial
¶7 Alicia S. testified first, providing a detailed account of the four alleged sexual assaults. Alicia S. testified: "The first time we were at 344 South Adams Street of Oconto County [Oconto Falls] and we were watching 50 First Dates. And I had woken up to my pants and underpants pulled down and that Dave was rubbing his penis up and down my -- near my anal area."
¶8 Regarding the second incident, Alicia S. testified: "I believe we were at 202 Wisconsin Street of Oconto County [Oconto Falls]. And we were downstairs watching TV, and I had woken up to him licking my vagina this time. And he had flipped me over and he was rubbing his penis up and down near my anal area."
¶9 Regarding the third incident, Alicia S. testified:
The third time was also at
¶10 Alicia S. indicated that the fourth incident took place in December of 2005 while she was watching television in her bedroom. Alicia S. testified:
I was watching [Country Music Television], and this time he had came into my bedroom and he was naked and he was rubbing his penis up and down my anal area. And this time he told me if I took off my clothes it would feel better and I said no. I told him to get out and I locked my door, and I was really, really scared.
¶11 Alicia S. also testified that she first reported the sexual assaults to her friends L.H. and J.M. at a sleepover. Alicia S. explained that she told her friends about the assaults because "it was really bothering" her, but that she did not want them to tell anyone and made them "pinky swear." L.H. confirmed this and testified that Alicia S. told her "that her stepdad had licked her in the privates." L.H. further testified that when Alicia S. told her this, she "acted very upset and she looked like she was going to actually throw up."
¶12 Regarding her interview with
[Alicia S.] told us without very specific details that on two different occasions at her mother's house -- at actually two different houses in Oconto Falls when she was visiting her mother that her stepfather, David Domke, did put his penis between her buttocks on two different occasions while she was pretending to be sleeping when they were all watching TV together in the living room.
¶13 Alicia S. also testified that she was later examined by a physician's assistant, BeFay, to whom she revealed some details of the alleged assaults. BeFay testified that Alicia S. was reluctant to talk with her about the alleged assaults, but that Alicia S. indicated that Domke put his penis on her buttocks and his mouth on her genitals. BeFay testified that the physical examination was normal. During Woods' cross-examination of BeFay, he moved to enter into evidence BeFay's dictated report, which reflected the normal physical examination and also included a summary of what Alicia S. told BeFay about the alleged assaults.
¶14 Alicia S. further testified that she began to see a therapist, Rusch, and that, after about 10 to 15 sessions, she told Rusch all of the details regarding the four alleged sexual assaults. Rusch testified regarding the services she provided to Alicia S.:
She -- the problem focus that was on my intake form when she came to me was that she had been sexually assaulted and that she was having some problems with nightmares, intrusive thoughts, flashbacks. She had a lot of fears. She was scared, things like that. So I was asked to deal with those symptoms that come along with that.
Rusch also testified about the progression of her sessions with Alicia S.:
The first few sessions we basically talked about how she could maybe not be having as many nightmares. We implemented a safety plan because she was very afraid to be outside. She would come home from school and she would be worried somebody was in the house, things like that.
So we developed a safety plan for her to feel safer in her town here and also at her home and when she had to go to school. So that's what we focused on just to make her more comfortable and have her to be able to, you know, be functioning relatively normally in the community and in her family.
And then it was down the road a ways, not until June. I started seeing her in February. And then in June when I finally –- Alicia [S.] and I had talked and she was ready to tell me her whole story. She had told, you know, bits and pieces throughout, but that was when she told me her whole story.
In a report that the State introduced into evidence, Rusch documented "Alicia [S.]'s whole story" regarding the four alleged sexual assaults.
¶15 On cross examination, Woods asked Rusch several questions about the first alleged incident. This included the following exchange:
Woods: Could this have just been like a bad dream or something?
[The State objected, and the circuit court overruled the objection.]
Rusch: No. I do not believe it could have been a dream.
Woods: All right. You don't think it was a dream?
Rusch: No. In my professional opinion, it was not a dream.
¶16 As his first witness, Woods called Tina Domke, who is Alicia S.'s
mother and Domke's wife. Woods asked
Tina Domke whether she had told
¶17 Woods then called Domke's ex-wife, Tina Baxter, and Domke's three children to testify. From each of these witnesses Woods elicited testimony that Domke had never been accused of sexually abusing any of his biological children. Two of Domke's children also testified that they had never seen Domke sexually abusing Alicia S. while they all lived together. On cross-examination, one of the children admitted that Alicia S. told her about the alleged sexual assaults before those allegations were reported to police, and that she reported Alicia S.'s statements to her when interviewed by Anderson and Rank.
¶18 Domke testified and denied ever sexually assaulting Alicia S. Domke stated that he knew Alicia S. lied a
lot and that he and Alicia S. argued a lot about her refusal to abide by his
rules. On cross-examination, the State
elicited from Domke that when he originally spoke to
¶19 The jury convicted Domke of all charges, and he was sentenced to 20 years in prison and 20 years of extended supervision.
B. Domke's Postconviction Motion for a New Trial
¶20 Domke filed a postconviction motion for a new trial on March 19, 2009, based on ineffective assistance of trial counsel. Domke asserted that Woods performed deficiently in several respects, and that the deficient performance prejudiced him because Woods' errors had erroneously bolstered Alicia S.'s credibility. Domke requested a Machner hearing on these issues.
¶21 First, Domke asserted that Woods erred when he failed to object to
Rusch's hearsay testimony regarding the reason that Alicia S. sought counseling
services. Domke argued that these
statements were not covered by the hearsay exception for statements made for
purposes of medical diagnosis or treatment, Wis. Stat. § 908.03(4) (2007-08),
because statements made to a counselor and social worker, like Rusch, are
excluded from that exception.
¶22 Domke asserted that these deficiencies prejudiced him because this case was ultimately a credibility contest between Alicia S. and Domke. Domke argued that Woods' mishandling of the testimony of Rusch and L.H., his decision to introduce BeFay's report, and his decision to call Tina Domke as a witness led to the introduction of additional evidence corroborating Alicia S.'s allegations and generally bolstering her credibility.
¶23 In the alternative, Domke also sought a new trial in the interest of justice.
¶24 The circuit court held a Machner hearing on June 12, 2009, at which Woods testified. In response to Domke's first allegation, Woods first stated that he thought some of Rusch's testimony "could have been objectionable" but that he did not want to draw attention to the testimony by objecting. He then stated that this information was admissible because it was recorded in a regularly kept record or because the hearsay exception for statements made for the purposes of medical diagnosis or treatment may apply.
¶25 Regarding Domke's second allegation, concerning Woods' decision to ask Rusch the dream question twice, Woods explained:
It seemed to me that, you know, maybe the child was having problems. As I understood Alicia, she was a special-ed student. She was on some medication and maybe was just having, you know, nightmares. And I'm not -- you know, I'm not an expert in that, but I did want to follow up and that was why.
Woods admitted that he did not know what Rusch would say in response to these questions.
¶26 Woods explained in regard to the third alleged deficiency that he did not object to L.H.'s testimony because he also wanted to allow her testimony so that he could bring out inconsistencies in Alicia S.'s testimony. Woods also suggested that the excited utterance or regularly kept records hearsay exceptions might have applied, see Wis. Stat. § 908.03(2), (6).
¶27 In regard to the fourth allegation, Woods responded that he introduced BeFay's report to show that Alicia S.'s physical examination was normal and also to establish the lapse in time between the alleged sexual assaults and the physical examination.
¶28 In response to the fifth allegation, concerning calling Tina Domke to testify without checking her present position, Woods explained that he wanted "to elicit from [Tina Domke] that at the inception of this matter she had indeed not believed her own child." Woods explained, "It was initially at least her view, as expressed to the social services people and the police, that indeed this was not a truthful child that we are talking to now." Woods noted that the police report indicated that "Tina [Domke] said Alicia lies a lot." Woods also stated that by the time of trial he had been "informed that indeed [Tina Domke] had been vacillating" in regard to whether she still believed Alicia S. was lying. He admitted that he had not talked with Tina Domke before trial nor did he recall when he last spoke with her. Woods stated that he relied on the police reports and what Domke told him.
¶29 The circuit court denied Domke's postconviction motion, concluding
that while Domke had shown that Woods performed deficiently in certain
respects, he had failed to establish that the deficiencies prejudiced him. The circuit court concluded that Woods'
failure to object to the testimony of Rusch and L.H., and Woods' decision to
call Tina Domke constituted deficient performance. In its decision, the circuit court noted that
it would have sustained an objection to Rusch's testimony based on Huntington,
C. The Court of Appeals Decision
court of appeals reversed the circuit court's denial of Domke's postconviction
motion based on ineffective assistance of trial counsel. State v. Domke, No. 2009AP2422-CR,
unpublished slip op. (Wis. Ct. App. Sept. 21, 2010). The court of appeals concluded that Woods
performed deficiently by failing to object to Rusch's testimony, by asking
Rusch the dream question twice, and by calling Tina Domke as a witness without
checking, prior to trial, what her present position was on her daughter's
court of appeals first concluded that Woods performed deficiently by failing to
object to Rusch's hearsay testimony without having a strategic basis for that
decision or knowing the relevant law.
¶32 The State petitioned this court for review of whether Woods performed deficiently by failing to object to Rusch's hearsay testimony and asking Rusch the dream question twice, and if so, whether the collective prejudice of these errors and Woods' decision to call Tina Domke prejudiced the defendant.
a defendant received ineffective assistance of counsel presents a mixed
question of law and fact. State v.
Thiel, 2003 WI 111, ¶21, 264
criminal defendants are guaranteed the right to the effective assistance of
counsel through the Sixth and Fourteenth Amendments to the federal constitution
and Article I, Section 7 of the Wisconsin Constitution. State v. Trawitzki, 2001 WI 77, ¶39,
we conclude that Domke has not established "a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different," we reverse the court of appeals and affirm the
circuit court's judgment of conviction. See
A. Deficient Performance
establish deficient performance, the defendant must show that counsel's
representation fell below the objective standard of "reasonably effective
assistance." Strickland, 466
¶37 Domke asserts that the court of appeals correctly concluded that Woods performed deficiently by failing to object to Rusch's hearsay testimony, by asking Rusch the dream question twice and by calling Tina Domke as a witness without checking, prior to trial, what her present position was on her daughter's truthfulness. The State asserts that Woods did not perform deficiently in regard to his handling of Rusch's testimony but does not contest the court of appeals' conclusion that Woods performed deficiently by calling Tina Domke without checking, prior to trial, whether she still doubted her daughter's allegations. We agree with Domke and the court of appeals that these three errors constituted deficient performance; however, because we conclude that these errors did not prejudice Domke, he is not entitled to a new trial.
1. Woods' failure to object to Rusch's hearsay testimony.
this issue, Domke and the State focus on whether this testimony was admissible
as a statement made for purposes of medical diagnosis or treatment, Wis. Stat.
§ 908.03(4), or whether it was inadmissible because Huntington
excludes, from that hearsay exception, statements made to counselors and social
workers. The State argues that Woods
made a reasonable decision not to object to Rusch's hearsay testimony because
it was arguably covered by the hearsay exception for statements made for
purposes of medical diagnosis or treatment.
The State asserts that even though Woods was not familiar with
argues that Rusch is either a social worker or a counselor, and thus, her
testimony recounting what Alicia S. told her was inadmissible hearsay under
recent decision in Carter is instructive regarding the extent to which
counsel is required to know or investigate the relevant law. 324
Carter we explained that "[s]trategic decisions made after less
than complete investigation of law and facts may still be adjudged
reasonable." Id., ¶34. Counsel must either reasonably investigate
the law and facts or make a reasonable strategic decision that makes any
further investigation unnecessary.
¶42 In the Machner hearing, Woods mentioned the hearsay
exception for statements made for purposes of medical diagnosis or treatment, see
Wis. Stat. § 908.03(4),
but he did not appear familiar with the limitations on that exception. Wisconsin courts have applied that hearsay
exception to statements made to psychologists, psychiatrists, chiropractors and
nurse practitioners in addition to other medical doctors. Huntington, 216
¶43 Rusch testified that she is an outpatient therapist with "a
[b]achelor's degree in psychology and a [m]aster's degree in education with an
emphasis in community counseling."
She did not state that she fits within any of the professions to which Huntington
allowed application of the exception.
Based on the available information, a reasonable attorney would have
been familiar with
to the State's argument, this rule from
¶46 Under all the circumstances set forth herein, Woods performed deficiently by failing to object to Rusch's hearsay testimony, not because allowing the testimony was part of his trial strategy, but because he was unfamiliar with Huntington's limitation on the medical diagnosis or treatment hearsay exception.
2. Woods' decision to ask Rusch the dream question twice.
¶47 The State argues that it was reasonable for Woods to ask Rusch whether she thought that Alicia S.'s allegation regarding the first incident could have stemmed from a bad dream even though he was not sure what Rusch would say. The State asserts that it was reasonable for Woods to explore this theory because he "did not have much to work with in preparing a defense." According to the State, it was consistent with his overall trial strategy to establish that the first alleged sexual assault could have just been a bad dream.
¶48 Domke argues that Woods' decision to ask Rusch the dream question twice was not a reasonable trial strategy. Domke asserts that it was unreasonable for Woods to ask this question because he had no reason to believe that Rusch might concede that the first alleged assault could be based on a bad dream.
court will not second-guess a reasonable trial strategy, but this court may
conclude that an attorney's performance was deficient if it was based on an
"irrational trial tactic" or "based upon caprice rather than
upon judgment." State v. Felton, 110
3. Woods' decision to call Tina Domke as a witness.
¶50 The State does not argue that Woods' decision to call Tina Domke as a witness without knowing whether she still doubted Alicia S.'s allegations against Domke was consistent with constitutionally adequate representation. Domke asserts that the circuit court and the court of appeals correctly concluded that Woods' decision to call Tina Domke as a witness under the circumstances constituted deficient performance.
Woods decided to call Tina Domke as his first witness, he had the following
information. The police report reflected
has a duty to make reasonable investigations" or to make a strategic
decision that makes further investigation unnecessary. Thiel, 264
¶53 Woods' decision to call Tina Domke as a witness without doing any reasonable investigation into what she might say, even after Domke told him that Tina Domke was vacillating regarding whether she believed Alicia S. or Domke, constitutes deficient performance. We now turn to whether this error along with Woods' errors regarding Rusch's testimony prejudiced the defendant. We conclude they did not.
To establish prejudice "[t]he defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome." Strickland, 466
¶55 The State argues that even if Woods' performance was deficient regarding the testimony of both Rusch and Tina Domke, there was not sufficient prejudice to warrant a new trial given the totality of the circumstances. The State further argues that Rusch's testimony was merely cumulative of Alicia S.'s and BeFay's testimony because her report was what Alicia S. used to refresh her recollection, was admitted in evidence, and was consistent with Alicia S.'s testimony. The State asserts that the court of appeals, in reaching its conclusion to the contrary, failed to consider the strong evidence against Domke. This included Alicia S.'s detailed and credible testimony, the testimony of L.H. and BeFay corroborating her testimony, and Alicia S.'s statements that she had loved Domke and initially did not want to report the abuse because she did not want to break up her family. Such testimony strongly supported a conclusion that she had no motive to fabricate the allegations.
¶56 Domke argues that the court of appeals properly concluded that the cumulative effect of these errors prejudiced Domke. Domke further asserts that Rusch's corroboration of Alicia S.'s testimony and her testimony that she did not think the assault allegation was the result of a bad dream were damaging to Domke because of her familiarity with Alicia S. and her expertise. In Domke's view, Tina Domke's testimony was the most damaging because of her close relationship to both Alicia S. and Domke.
¶57 We are convinced, based on our review of the totality of the evidence, that Domke received a fair trial. This case boiled down to a credibility contest between Alicia S. and Domke. Woods' errors may have strengthened the State's case against Domke by providing additional corroboration for Alicia S.'s testimony and bolstering her credibility. However, even excluding the evidence admitted due to his errors, the State had a very strong case. Upon examining the totality of the circumstances we are not persuaded that, but for Woods' errors, the result would have been any different. See Strickland, 466 U.S. at 694-95. Thus, Woods' errors did not prejudice Domke, and he is not entitled to a new trial.
circuit court noted in its decision denying Domke's postconviction motion that Alicia
S.'s testimony "was very compelling." We will uphold the circuit court's credibility
determination unless it is clearly erroneous.
evidence also supported Alicia S.'s credibility. Alicia S. testified that she had loved Domke
and initially lied to Anderson and Rank to hide the alleged assaults because
she did not want Domke to go to jail.
This was confirmed by the testimony of both Anderson and Domke, who
admitted that he told
does not argue that there was any evidence that he was precluded from
presenting as a result of counsel's errors. Domke chose to testify. He denied the allegations and attacked Alicia
S.'s credibility by stating that she lied a lot and suggesting that she had a
motive to fabricate the allegations because she and Domke did not have a good
relationship. On cross-examination,
Domke admitted that he initially told
¶61 Even excluding the testimony of Rusch and Tina Domke that was admitted as a result of Woods' errors, it is clear that the State had a very strong case against Domke. There were errors on the part of trial counsel, but under the totality of the circumstances, we cannot say that there is a reasonable probability that but for Woods' deficient performance the result would have been different.
¶62 We conclude that Domke is not entitled to a new trial due to ineffective assistance of counsel. While we agree with the court of appeals that Woods performed deficiently in three respects during trial, we are not persuaded that these errors prejudiced Domke. We hold that under the totality of the circumstances Domke received a fair trial, and our confidence in the result is not undermined.
¶63 Therefore, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction.
By the Court.—The decision of the court of appeals is reversed.
 State v. Domke, No. 2009AP2422-CR, unpublished slip op. (Wis. Ct. App. Sept. 21, 2010).
 Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) (setting forth the standard for review of claims of ineffective assistance of counsel).
 A Machner hearing is
"[t]he evidentiary hearing to evaluate counsel's effectiveness, which
includes counsel's testimony to explain his or her handling of the case." State v. Balliette, 2011 WI 79, ¶31,
Hearsay exceptions; availability of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . .
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.
 Domke criticized other aspects of Woods' handling of Rusch's and BeFay's testimony as well. Domke did not pursue those alleged errors before this court, so we do not address them further.
 The court of appeals also rejected the State's argument that Rusch's testimony would have been admissible as a hearsay exception under the rule of completeness. Domke, No. 2009AP2422-CR, ¶4. The State does not argue before this court that the rule of completeness would have provided a basis to admit Rusch's hearsay testimony. We thus do not address it further.
 The court of appeals concluded that Woods' handling of L.H.'s testimony and BeFay's report did not constitute deficient performance. Domke, No. 2009AP2422-CR, ¶1 n.1. Domke did not challenge these decisions before this court; therefore, we do not address these alleged deficiencies further.
 See State v.
 The nature of Woods' errors distinguishes this case from State v. Thiel, 2003 WI 111, ¶¶63-80, 264 Wis. 2d 571, 665 N.W.2d 305, in which this court determined that Thiel was prejudiced by the cumulative effect of his counsel's errors. In Thiel, this court examined the totality of the circumstances at trial and concluded that Thiel was prejudiced by his counsel's errors, which kept significant evidence from the jury that would have undermined the complainant's credibility. Id. In this case, Domke does not allege that Woods' errors precluded him from presenting evidence that would have impeached Alicia S.'s credibility, and we conclude that, under the totality of the circumstances in this case, the cumulative effect of Woods' errors did not prejudice Domke.
 Domke also makes a one-and-a-half-page
alternative argument inviting this court to affirm the court of appeals and
grant him a new trial in the interest of justice because the real controversy
was not fully tried.