COURT OF APPEALS
DATED AND FILED
April 6, 2010
David R. Schanker
Clerk of Court of Appeals
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.
STATE OF WISCONSIN
IN COURT OF APPEALS
Victor T. Jackson,
from a judgment and an order of the circuit court for
¶1 CURLEY, P.J. Victor T. Jackson appeals
from a judgment convicting him of two counts of repeated first-degree sexual
assault of the same child, one count for each of two victims, contrary to Wis. Stat. § 948.025(1)(a) (2005-06). He also appeals the order denying his request
for postconviction relief. Jackson
argues that his trial was “tainted” by several errors: (1) the trial court’s admission of what he
contends was inadmissible hearsay; (2) the State’s violation of his statutory
discovery rights when it relied on a pretrial telephone recording during trial despite
the fact that the recording was not provided to the defense prior to trial; and
(3) his trial counsel’s deficient performance in a number of respects.
¶2 On May 23, 2006, a criminal complaint was filed charging
¶3 The sexual assault accusations that led to the criminal
¶4 During trial, both C.H. and C.K. testified to being sexually
assaulted three or more times by
¶6 The jury found
A. The trial court
properly admitted the statements challenged on appeal, and
Jackson forfeited his confrontation clause claim.
i. Hearsay testimony.
¶7 Jackson contends that the trial court erred in allowing
inadmissible hearsay, including repeated references to M.C.’s purported
eyewitness account of the sexual assaults, to be admitted during his trial. Specifically, he argues that the trial court
erred when it allowed the repeated statements to be introduced on the theory
that they provided background information and that it was ineffective
assistance of counsel not to have preserved objections to the out-of-court
statements. In the event that the
statements were admissible as non-hearsay background,
¶8 Regarding the admissibility of the hearsay statements, this
court reviews evidentiary rulings with deference to the trial court as to
whether it properly exercised its discretion, in accordance with the facts and
accepted legal standards. State
v. Tucker, 2003 WI 12, ¶28, 259
¶9 The statements
Detective Justin Carloni
¶10 Detective Carloni responded to the scene on February 6, 2006,
and was the State’s first witness to testify during
¶11 Detective Carloni also testified regarding a conversation he
had with Alisha J., C.H.’s older sister and Ann J.’s biological daughter.
M[.C.], who is the three[-]year[-]old sibling of C[.H.], a half[-]sister of C[.H.], was in the residence and had made a comment to Alisha J[.] … that Victor [Jackson] was doing the nasty in the basement with C[.H.] and C[.K.] Alisha [J.] was alarmed by that and had heard it once before from M[.C.] and had questioned C[.H.] about it and at that time there was [sic] some denials on C[.H.]’s part and it was dismissed.
Now [Alisha J.] had heard it for a second time, and Alisha J[.] heard it from the younger sibling, M[.C.], that they were doing the nasty, that C[.H.] and C[.K.] and Victor J[ackson] were doing the nasty in the basement. She investigated further and actually called C[.K.] over and talked with the girls independently and found out that there was sexual contact between Victor Jackson and C[.H.] and Victor Jackson and C[.K.]
¶12 During her trial testimony, Alisha J. relayed that on February
6, 2006, M.C. told her that
Q So did [M.C.] use the word inappropriate, or did she use other words?
A No, she said my daddy was putting his dick on her ass or in her booty or whatever.
¶13 Alisha J. testified that she then questioned C.H., who was
“unresponsive.” This prompted Alisha J. to
question C.K., who told her
Police Officer Shemia Watts
¶15 C.K.’s mother testified that C.K. told her that
¶16 During trial, the prosecutor questioned Ann J. regarding the
accusations that came out on February 6, 2006.
As Ann J. began to respond,
¶17 Ann J. also testified that prior to February 6, 2006, M.C. had accused
The residual hearsay exception.
¶18 The State argues, and we agree, that the challenged hearsay
statements were admissible under the residual hearsay exception. In this case, the trial court did not
consider the admissibility of the out-of-court hearsay statements under Wis. Stat. § 908.03(24). However, we “will not reverse a lower court
decision where that court has exercised its discretion based on a mistaken view
of the law if the facts and their application to the proper legal analysis support
the lower court’s conclusion.” State
v. Sorenson, 143
¶19 As a general rule, out-of-court assertions may not be used for their truth at a trial by virtue of the rule against hearsay. See Wis. Stat. §§ 908.01, 908.02. One exception to the rule against the admission of such assertions is the residual hearsay exception. See Wis. Stat. § 908.03(24) (“The following are not excluded by the hearsay rule, even though the declarant is available as a witness: … (24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.”).
¶20 In Sorenson, our supreme court set forth five factors to be considered when determining the admissibility of a child’s statements under the residual exception. These include the following:
First, the attributes of the child making the statement should be examined, including age, ability to communicate verbally, to comprehend the statements or questions of others, to know the difference between truth and falsehood, and any fear of punishment, retribution or other personal interest, such as close familial relationship with the defendant, expressed by the child which might affect the child’s method of articulation or motivation to tell the truth.
Second, the court should examine the person to whom the statement was made, focusing on the person’s relationship to the child, whether that relationship might have an impact upon the statement’s trustworthiness, and any motivation of the recipient of the statement to fabricate or distort its contents.
Third, the court should review the circumstances under which the statement was made, including relation to the time of the alleged assault, the availability of a person in whom the child might confide, and other contextual factors which might enhance or detract from the statement’s trustworthiness.
Fourth, the content of the statement itself should be examined, particularly noting any sign of deceit or falsity and whether the statement reveals a knowledge of matters not ordinarily attributable to a child of similar age.
Finally, other corroborating evidence, such as physical evidence of assault, statements made to others, and opportunity or motive of the defendant, should be examined for consistency with the assertions made in the statement.
¶21 We now apply these factors to the out-of-court statements by C.H., C.K., and M.C. First, we agree with the State that C.H.’s and C.K.’s attributes support the reliability of their statements. C.H. was seven years old when the assaults occurred, eight years old when she reported the abuse, and nine years old at the time of trial. C.K. turned nine during the summer of 2005, when the assaults occurred, and was ten years old at trial. During trial, both C.H. and C.K. explained that they understood the difference between telling the truth and telling lies. The record reflects that C.H. and C.K. were able to verbally communicate and comprehend the questions asked of them.
¶22 As to the second factor, both C.K. and C.H. ultimately confided in Alisha J. and later in Officer Watts. C.K. also confided in her mother. There is nothing in the record that would indicate a possible motive for any of these individuals to fabricate or distort the statements made by C.K. and C.H. Thus, this factor also supports the admissibility of the statements.
¶23 Although the accusations made in 2006 related to assaults that
took place during the summer of 2005, we conclude that the circumstances under
which C.K. and C.H.’s statements were made lend support for the trustworthiness
of the hearsay. “Contemporaneity and
spontaneity of statements are not as crucial in admitting hearsay statement of
young sexual assault victims under the residual exception.”
¶24 As to the content of C.K. and C.H.’s statements, their descriptions of the incidents appear to have been consistent in all relevant respects. Although there was no physical evidence corroborating the assault, trial testimony revealed that this was to be expected given the lapse of time between when the assaults occurred and when they were reported.
¶25 We next apply the Sorenson factors to M.C.’s out-of-court statements. M.C. was three years old at the time she made accusations against Jackson, who is her father. Cf. id. at 246 (analyzing statements made by a child who was mentally and emotionally at about a four-year-age level and noting “that a child at such a young age is unlikely to review an incident of sexual assault and calculate the effect of a statement about it”). As relayed above, the jury heard Officer Watts’ testimony that at the time of the interview, M.C. could not distinguish between telling the truth and telling a lie. Notwithstanding, we agree with the State:
There is no indication that, at threeyearsold, [M.C.] had avenues to sexual knowledge other than by some sort of firsthand knowledge. The content of the statements fails to disclose any sign of deceit or falsity. Her description of specific incidents of sexual assault, and her familiarity with crude terminology for body parts, indicate knowledge well beyond the ordinary familiarity of a child her age…. The statements also were corroborated by the facts as testified to by C.H. and C.K.
This factor favors the admission of M.C.’s out-of-court statements.
¶26 As to the second factor, M.C. made statements to Alisha J., Ann J., and Officer Watts. We are not aware of anything in the record that would indicate a possible motive for any of these individuals to fabricate or distort the statements made by M.C. Thus, this factor also supports the admissibility of the statements.
¶27 The circumstances under which the statements were made also
weigh in favor of their admissibility. Both
Alisha J. and Ann J. testified that approximately one month prior to February
6, 2006, M.C. had made the same accusations against
¶28 Based on our review of the applicable factors, we conclude that
the out-of-court statements challenged by
ii. Right to confrontation.
¶31 Although Jackson claims that his trial counsel was ineffective
for failing to object on grounds that the use of M.C.’s out-of-court statements
violated Jackson’s right to confrontation, Jackson did not question his trial
counsel on this issue at the Machner hearing. Machner requires the preservation of
trial counsel’s testimony to determine whether a particular decision was a
deliberate and reasonable trial strategy.
¶32 Because we have concluded that out-of-court statements were admissible under the residual hearsay exception and that the confrontation objection and related ineffective assistance of counsel claim were forfeited, we need not address Jackson’s contentions that if the statements were admissible as non-hearsay background, the jury should have been instructed not to consider the statements as affirmative evidence of guilt or that his trial attorney was ineffective for failing to adequately object to the hearsay statements.
B. Pretrial telephone recording.
¶34 “The issue of whether a person has been deprived of the
constitutional right to the effective assistance of counsel presents a mixed
question of law and fact.” State
v. Trawitzki, 2001 WI 77, ¶19, 244
¶35 In Strickland v. Washington, 466 U.S. 668 (1984), the United
States Supreme Court set forth a two-part test for determining whether counsel’s
actions constitute ineffective assistance.
¶36 During her cross-examination of defense witness Luz Torres, who
¶37 During her cross-examination of Jackson, the prosecutor questioned him about statements he made during pretrial phone calls from jail:
Q And, Mr. Jackson, since you’ve been in custody since May of 2006, you’ve talked to Luz Torres, your fiancée or girlfriend, several times over the phone; is that correct?
Q Did you ever make threats to anyone when you talked to her on the phone?
A I don’t recall.
Q It is possible that you made threats to somebody when you’ve talked to her on the phone?
A I don’t remember.
Q Are you aware that your phone calls that are placed through the House of Corrections are recorded?
Q Do you remember telling Luz Torres during a phone conversation, “You need to find out what class of sexual assault it is and find out how many years it carries”? [sic] And then do you remember further saying, “Fuck this dog. I’ll have someone mark that bitch”? [sic] Do you remember saying that to Luz?
Q And do you remember when Luz said, “Don’t say that on the phone” to you?
Q Well, now that I’m refreshing your recollection with the phone conversation, do you remember who you were referring to when you said, “I’ll have someone mark that bitch”? [sic]
A Me and her have a lot of conversations. A lot of conversations didn’t have nothing to do with Ann [J]. I know those phone calls are recorded. My phone calls have nothing to do with Ann [J.] or C[.H.] or C[.K.], none of that.
were raised by
¶38 Outside the presence of the jury, the prosecutor advised that she intended to call Torres on rebuttal to testify regarding the phone call that was placed. If Torres did not testify that the phone call had been made, the prosecutor intended to play the recording for the jury. Following the court’s inquiry, the State conceded that it had not disclosed these statements to the defense before using them at trial. It was at this point that defense counsel objected to the use of the recording. Although the court did not allow the recording to be introduced during trial because it had not been turned over in compliance with the discovery statute, it did allow the prosecutor to ask questions about the conversation, stating:
Now, conversely, Counsel, when [the prosecutor] started to ask your client about this conversation and go through the conversation, there was no objection to the admissibility of that information. There was no objection raised. So the fact that she asked about that question, that she talked to him about that conversation, that information came in, it came in without objection.
Consequently, the State was allowed to question Torres on rebuttal about the telephone conversation. In addition, the prosecutor referenced the statements during her closing argument.
¶39 The State concedes that the prosecutor’s use of statements made
during the pretrial telephone recording constituted a discovery violation under
Wis. Stat. § 971.23. The State further concedes that
¶40 In light of these concessions, the question before us is
Under Strickland, a defendant
is not required to show that counsel’s deficient conduct was outcome
determinative. See id. at 693-94. Rather, “[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.”
v. McDowell, 2004 WI 70, ¶54, 272
¶41 Upon consideration of the totality of the evidence before the
trier of fact, we are satisfied that
by virtue of testimony describing his forcing anal and oral sex on seven- and eight-year-old girls; by his admission of having been convicted twelve times in the past; by his admission that he hid from police for three months while they were looking for him in connection with these assaults; and by his unimpressive explanation for why he was being accused of these crimes (“you can give [C.H.] some money, and she’ll lie about anything”).
citations omitted.) Consequently,
C. Alibi witnesses.
¶42 In addition,
¶43 At the Machner hearing,
¶45 During the hearing,
¶46 We agree with the trial court that the decision not to call
D. Reference to expert testimony during opening statement.
¶47 Finally, Jackson contends his trial attorney was ineffective
for making an “unfulfilled promise” to the jury that that it would hear from Dr. Michael
Kotkin and then later deciding not to call Kotkin upon finding out that Kotkin
could be cross-examined about a prior fourth-degree sexual assault, for which
Jackson had been convicted.
¶48 In his opening statement,
Finally, we intend to present testimony from Dr. Michael Kotkin, a psychologist expert who speciali[zes] in sexual assault matters, who meet [sic] with Mr. Jackson, went through various testing procedures with him and so forth, and he will tell you in detail about his findings and his opinion regarding Mr. Jackson.
subsequently put the defense on notice that if Kotkin testified, it would open
the door to
¶49 During the Machner hearing, trial counsel
testified that at the time he made his opening statement, he believed the
One, Doctor Kotkin’s opinion was not able to assert with any certainty that Mr. Jackson did not commit this act. The best he could do, which I thought would be okay in the beginning, would indicate that he does not fit the profile of a person that likes sex with young kids.
The second reason …, which was more important, I did not want the jury to know that he had been convicted of a prior sexual assault. Even though it was fourth-degree, I didn’t think the jury would make any big distinction about that, and I thought that would be damaging.
¶51 Even if counsel’s performance was deficient in this regard, we
again conclude, after considering the totality of the evidence before the trier
of fact, that
¶52 The dissent finds deficiency and prejudice from the trial court’s unfulfilled promise to the jury that he would call Dr. Kotkin to tell them “in detail about his findings and opinion regarding Mr. Jackson.” By not calling the doctor as a witness, the dissent contends that the jury was left with only two inferences, both prejudicial to the defendant. While the dissent notes that there is a strong presumption that trial counsel rendered adequate assistance, see Strickland, 466 U.S. at 690, and it cites to no Wisconsin law supporting its conclusion, it relies on Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988), for its conclusion of prejudice.
¶53 We are unpersuaded.
First, trial counsel’s promise of Dr. Kotkin’s testimony was vague, and
therefore, its omission was not significant.
Trial counsel merely said that the doctor would tell the jury his
“findings and opinion” without saying what those were and how they supported
the defense. The promise in
¶54 Unlike in Anderson, trial counsel for
¶55 Secondly, the inferences the jury may have drawn from the doctor’s absence are not limited to the two posited by the defense and include benign inferences as well. For example, the jury may have speculated the doctor was unavailable—doctors are busy people—or they may have assumed that his testimony was no longer important. It is also possible that the jury may not have even remembered Dr. Kotkin was going to testify.
¶56 Given the definition of prejudice in Strickland (“a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different”), id. at 694, and the court’s
direction to reviewing courts to consider the “totality of the evidence” in
making a determination of prejudice, id. at 695, we do not see how can we
conclude that allowing the jury to speculate why Dr. Kotkin did not give his
non-specific “findings and opinion” creates a “reasonable probability” that
Jackson would have been acquitted, see
id. The totality of the evidence here included
the testimony of both child sexual assault victims corroborated by other
relatives and after full opportunity for cross-examination. Given the strong State case,
¶57 Additionally, even if trial counsel had done everything that
the dissent suggests he should have done, Dr. Kotkin’s testimony was of mixed
value, at best, to
¶58 Based on our resolution of the preceding issues, we decline
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
¶59 KESSLER, J. (concurring in part, dissenting in part). I concur with all of the majority opinion except Section D, which concludes that Jackson was not denied the effective assistance of counsel despite trial counsel’s unfulfilled promise to call “a psychologist expert who speciali[zes] in sexual assault matters, who [met] with Mr. Jackson” and who would “tell [the jury] in detail about his findings and his opinion regarding Mr. Jackson.” Because I conclude that trial counsel’s performance was both deficient and prejudicial as defined by Strickland v. Washington, 466 U.S. 668 (1984), I would reverse and remand for a new trial.
¶60 With respect to trial counsel’s performance, I recognize that
there is a strong presumption that counsel rendered adequate assistance. See id. at 690. Professionally competent assistance
encompasses a “wide range” of behaviors and “[a] fair assessment of attorney
performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the
¶61 Applying these standards, I conclude that trial counsel’s performance was deficient—but not because he ultimately decided not to call Dr. Michael Kotkin after the trial court ruled that the State would be permitted to ask him about the impact of Jackson’s prior fourth-degree sexual assault on his opinion. Rather, I conclude trial counsel performed deficiently when he promised the jury it would hear testimony from Dr. Kotkin without first seeking a ruling from the trial court on an issue that trial counsel should have known would be decided against him or, at the very least, would be a difficult argument to win based on existing case law and statutes.
¶62 It is undisputed that trial counsel received Dr. Kotkin’s
report nine months prior to trial and was aware of references to
¶63 At the Machner hearing trial counsel
testified that “early in the game” he formed his opinion that the criminal
history described in the report would not be admissible because it was
“prejudicial.” However, trial counsel did not argue unfair
prejudice when the trial court considered whether the State would be able to
ask Dr. Kotkin about past crimes, or at the Machner hearing. Indeed, trial counsel cited neither statutes
nor case law in support of his “good faith belie[f]” that the State should not
be able to ask Dr. Kotkin about
¶64 It was unreasonable for trial counsel to believe that the State
would be denied the right to ask about
¶65 If trial counsel believed—despite the existing case law and statutes—that there was any potential basis to prohibit the State from asking Dr. Kotkin about the prior sexual-assault conviction mentioned in his report, trial counsel should have filed a pretrial motion in limine to get the matter decided. He did not, even though he filed other motions on unrelated issues.
¶66 Furthermore, even if trial counsel decided not to seek a ruling
prior to trial, he should not have promised the jury it would hear from Dr.
Kotkin, given the existence of the undecided issue that Jackson had little
chance of winning. Trial counsel should
have recognized that if the legal issue was decided against
¶67 For the foregoing reasons, I conclude that trial counsel performed deficiently when he promised the jury that it would hear testimony from Dr. Kotkin without first seeking a ruling from the trial court on an issue that trial counsel should have known would be difficult to win. Furthermore, I conclude that this deficient performance was prejudicial.
¶68 To satisfy the prejudice prong of Strickland, the defendant
must demonstrate that “counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
¶69 I conclude that
¶70 Consistent with trial counsel’s recognition of the importance
¶71 In conclusion, I respectfully dissent from Section D of the majority opinion. Based on trial counsel’s constitutional ineffectiveness, I would reverse and remand for a new trial.
crimes at issue took place during the summer of 2005, prior to the amendment of
Wis. Stat. § 948.025(1) in 2006. See
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 Due to the sensitive nature of the crimes involved, we refer to Ann J. and Alisha J. by first name and last initial only.
record reveals that
points out inconsistencies such as C.H.’s testimony on direct examination that
Jackson had assaulted her and her testimony on cross-examination that prior to
the incident, she had truthfully told her sister that Jackson had not assaulted
her, and C.K.’s testimony that Jackson assaulted her on more than five separate
nights, while on cross-examination, C.K. said that all of the assaults happened
on a single night.
State concedes there are multiple layers of hearsay with respect to Detective
Carloni’s testimony relaying what Alisha J. told him that M.C. had told her
(i.e., that Jackson “was doing the nasty in the basement with C[.H.] and
C[.K.]”). The State nevertheless
contends that Alisha J.’s statement to Detective Carloni was admissible under
the excited utterance exception. See Wis.
Stat. § 908.03(2) (“The following are not excluded by the hearsay
rule, even though the declarant is available as a witness: … (2)
utterance. A statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by
the event or condition.”).
our analysis is under Wis. Stat. § 908.03(24)
(pertaining to hearsay exceptions where the availability of the declarant is
immaterial) rather than Wis. Stat. § 908.045(6)
(pertaining to hearsay exceptions where the declarant is unavailable), which
was analyzed in State v. Sorenson, 143
Discovery and inspection. (1) What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:
(a) Any written or recorded statement concerning the alleged crime made by the defendant….
is worth noting, as
 Although trial counsel used the term “prejudicial” rather than “unfairly prejudicial,” I assume he was referring to the fact that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Wis. Stat. § 904.03.
 Wisconsin Stat. § 904.04 provides in relevant part:
Character evidence not admissible to prove conduct; exceptions; other crimes. (1) Character evidence generally. Evidence of a person’s character or a trait of the person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
(a) Character of accused. Evidence of a pertinent trait of the accused’s character offered by an accused, or by the prosecution to rebut the same.
 Wisconsin Stat. § 907.05 provides:
Disclosure of facts or data underlying expert opinion. The expert may testify in terms of opinion or inference and give the reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
 Wisconsin Stat. § 907.07 provides:
Reading of report by expert. An expert witness may at the trial read in evidence any report which the witness made or joined in making except matter therein which would not be admissible if offered as oral testimony by the witness. Before its use, a copy of the report shall be provided to the opponent.
previously noted, whether prejudice exists is dependent on the unique facts of
each case. Nonetheless, the following
Two members of this panel have long held the opinion that little is more damaging than to fail to produce important evidence that had been promised in an opening. This would seem particularly so here when the opening was only the day before, and the jurors had been asked on the voir dire as to their acceptance of psychiatric testimony. The promise was dramatic, and the indicated testimony strikingly significant. The first thing that the ultimately disappointed jurors would believe, in the absence of some other explanation, would be that the doctors were unwilling, viz., unable, to live up to their billing. This they would not forget.