909 N.W.2d 750
Wis.2018Background
- Defendant Gerrod Bell was tried jointly for multiple sexual-assault offenses against two teenage sisters (T.P., age 14; A.L., age 17). The defense strategy focused entirely on attacking the victims’ credibility.
- During voir dire and closing argument the prosecutor repeatedly urged jurors that they should not acquit unless they believed the victims were lying and that people ordinarily lie only for a reason (i.e., absence of a shown motive to lie weighed in favor of believing them). Defense counsel objected during closing but did not move for mistrial.
- The jury requested and received several exhibits during deliberations, including two defense exhibits that contained unredacted references indicating T.P. said she had never had sex before the alleged assault. Neither counsel requested redaction before the exhibits were sent to the jury room.
- Bell was convicted on submitted counts and filed a postconviction motion alleging: (1) due-process violation / plain error and ineffective assistance of counsel based on the prosecutor’s comments (burden shift and improper appeal to lack of motive to lie); and (2) ineffective assistance for failing to redact the two exhibits containing evidence of T.P.’s prior sexual history (Rape Shield issue).
- The circuit court denied relief after a Machner hearing; the court of appeals affirmed. The Wisconsin Supreme Court granted review and affirmed the lower courts, rejecting both challenges.
Issues
| Issue | Plaintiff's Argument (Bell) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether prosecutor’s voir dire/closing comments impermissibly shifted burden of proof / denied due process | Prosecutor told jurors they could not find Bell not guilty unless they believed the victims lied and said jurors should not disbelieve the victims absent evidence of a motive to lie; this shifted burden and infected trial with unfairness | Comments were proper argument about credibility in a case where the victims’ testimony was the sole, decisive evidence; urging jurors to weigh motive was persuasion, not law | Held: No error. "Must believe" and "motive" statements were permissible credibility argument given the case context; no plain-error and no basis for ineffective-assistance claim on this ground. |
| Whether defense counsel’s failure to request a mistrial for prosecutor’s comments amounted to ineffective assistance | Counsel’s failure to move for mistrial forfeited the issue; alternatively, counsel’s omission was deficient and prejudicial | No deficiency because the prosecutor’s statements were not improper; thus no Strickland prejudice | Held: Not ineffective assistance—no deficient performance because there was no prosecutorial error to remedy. |
| Whether admitting (unredacted) exhibits showing T.P. said she never had sex violated the Rape Shield statute and prejudiced Bell | Inclusion of those statements was Rape Shield-prohibited evidence of prior sexual conduct; counsel’s failure to redact was deficient and prejudicial because combined with medical testimony it could lead jury to infer the assault caused hymenal disruption | The exhibits should have been redacted (court assumes counsel may have erred) but any prejudice was speculative and not reasonably likely to change the verdict | Held: Counsel may have erred, but no Strickland prejudice—no reasonable probability of a different result. |
| Whether plain-error review independently requires a new trial | Error (if any) must be obvious, substantial, and fundamental to warrant relief despite lack of timely objection | No obvious or substantial error under the record; comments construed in context and jury instructions protected defendant | Held: Plain-error relief denied. No new trial warranted. |
Key Cases Cited
- In re Winship, 397 U.S. 358 (establishes State must prove guilt beyond a reasonable doubt)
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance-of-counsel standard)
- Berger v. United States, 295 U.S. 78 (prosecutor must seek justice, not merely victory)
- State v. Davidson, 236 Wis. 2d 537 (Wis.) (prosecutorial-misconduct/due-process test; preserved objections and mistrial timing)
- State v. Burns, 332 Wis. 2d 730 (Wis.) (scope of proper prosecutor argument and review of closing arguments)
- State v. Gavigan, 111 Wis. 2d 150 (Wis.) (Rape-shield rule: evidence of complainant’s prior sexual conduct, including lack of sexual experience, generally inadmissible)
- United States v. Vargas, 583 F.2d 380 (7th Cir.) (prosecutor created a false dilemma by saying jury had only two options on credibility)
- United States v. Amerson, 185 F.3d 676 (7th Cir.) (prosecutor may properly ask jury to weigh credibility where credibility is outcome-determinative)
- United States v. Sandoval, 347 F.3d 627 (7th Cir.) (similar principle: argument about choosing which witnesses to believe permissible when it tracks evidence)