State v. Domke, 2011 WI 95

Domke was convicted of four counts of first-degree sexual assault of his ten-year-old stepdaughter Alicia S. under Wis. Stat. § 948.02(1) and § 948.025(l)(a).
Postconviction, Domke claimed trial counsel Woods performed deficiently and prejudiced him, pursuant to Strickland.
The circuit court found deficient performance but no prejudice; the court of appeals reversed, finding cumulative prejudice from three deficient acts.
Key trial issues included Rusch’s hearsay testimony about Alicia S.’s motive for seeking counseling, a dream-question to Rusch, BeFay’s report admission, and calling Tina Domke without current assurances of her belief in the allegations.
The court of appeals remanded for a new trial; this court reversed, affirming the conviction and holding no prejudice from the identified errors under the totality of circumstances.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Rusch hearsay without objection	Domke argues Huntington limits medical-diagnosis hearsay; Woods should have objected.	State contends testimony could fit medical-diagnosis/treatment exception and strategic tolerance.	Deficient, but not prejudicial
Dream-question to Rusch	Woods erred by twice asking about a bad dream without basis.	Question supported the defense theory given limited evidence.	Deficient, but not prejudicial
Calling Tina Domke without current stance check	Calling Tina without verifying her present belief risked impeachment or bolstering Alicia S.	Woods sought to show initial disbelief and later belief; no strategic flaw identified.	Deficient, but not prejudicial
Cumulative prejudice	Three deficient actions cumulatively prejudiced Domke by bolstering Alicia S.'s credibility.	Total evidence still favored Domke; errors did not undermine confidence in result.	No prejudice under totality of circumstances

Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court, 1984) (two-prong test for ineffective assistance of counsel)
State v. Thiel, 264 Wis. 2d 571 (Wis. 2003) (prejudice analysis under totality of the circumstances; cumulative errors may be prejudicial)
State v. Carter, 324 Wis. 2d 640 (Wis. 2010) (strategic decisions may be reasonable notwithstanding incomplete law/facts investigation)
State v. Huntington, 216 Wis. 2d 671 (Wis. 1998) (limits on medical-diagnosis-or-treatment hearsay exception for counselors/social workers)
State v. Maloney, 281 Wis. 2d 595 (Wis. 2005) (counsel not required to argue unsettled or unclear point of law)
State v. Hicks, 202 Wis. 2d 150 (Wis. Ct. App. 1996) (intermediate appellate review of trial issues; discretionary considerations in new-trial relief)