State v. Honig, 874 N.W.2d 589

Background

Honig was convicted by a jury of first‑degree sexual assault based on allegations by his grandchildren Y.H. (age 5) and Y.C. (age 3–4) that he touched their genitals and put his mouth on one child.
Forensic video interviews were recorded for both children; Y.H.’s interview was played at trial, Y.C.’s interview was not played because the State questioned its compliance with Wis. Stat. § 908.08, though the prosecutor elicited trial testimony from Y.C. consistent with an allegation of contact.
Defense theory was that Raymond Cruz, who had a hostile relationship with Honig, coached or planted allegations; defense counsel identified George Colon as a potential witness who would testify that Cruz discussed using children to make accusations, but counsel did not call Colon and did not impeach Cruz with Colon’s statements.
Defense counsel also did not move to redact portions of Y.H.’s interview that referred to other‑acts (statements that Honig “always” touched other little girls), and did not introduce or use Y.C.’s forensic interview to impeach Y.C.’s more incriminating trial testimony.
Postconviction counsel brought a Machner hearing alleging ineffective assistance for (1) failing to call Colon, (2) failing to object to/ redact Y.H.’s other‑acts statements, and (3) failing to impeach Y.C. with her prior video; the postconviction court denied relief in part, but the appellate court reversed.

Issues

Issue	Honig's Argument	State's / Trial Counsel's Argument	Held
Failure to call Colon as a witness	Colon would corroborate that Cruz talked about using children to accuse targets, supporting defense that Cruz coached the girls; counsel was ineffective for not calling him	Trial counsel framed omission as strategic; postconviction court characterized it as trial strategy and noted jury knew of "bad blood"	Counsel's failure to call Colon was deficient and prejudicial; lack of tactical basis in record; reversal and remand for new trial
Failure to redact other‑acts statements in Y.H.'s interview	Counsel should have moved to redact inflammatory statements that Honig "always" touched other little girls; omission was ineffective assistance	Postconviction court thought exclusion motion would likely have been granted and found no prejudice; trial counsel offered no reason for omission	Failure to seek redaction was deficient and prejudicial because statements were highly inflammatory and probative value was outweighed by unfair prejudice; counsel ineffective
Failure to impeach Y.C. with her forensic interview	Y.C.'s interview contained retractions/inconsistencies (e.g., "he didn't do nothing to me") that would have undercut her trial testimony; counsel failed to use it	Trial counsel believed trial testimony was "fairly consistent" with the interview and cited concern over the rule of completeness	Counsel's failure to present or use the video was deficient and prejudicial; video would have shown comprehension issues and inconsistencies that undermined credibility

Key Cases Cited

State v. Felton, 110 Wis. 2d 485 (Wis. 1983) (right to effective counsel requires more than nominal representation)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑part test for ineffective assistance: deficient performance and prejudice)
State v. Allen, 274 Wis. 2d 568 (Wis. 2004) (definition of deficient performance under Strickland)
State v. Jenkins, 355 Wis. 2d 180 (Wis. 2014) (failure to call a potential witness may be deficient performance)
State v. White, 271 Wis. 2d 742 (Wis. Ct. App. 2004) (failure to call witnesses central to defense can be deficient)
State v. Balliette, 336 Wis. 2d 358 (Wis. 2011) (deference to counsel's strategic decisions)
State v. Roller, 248 Wis. 2d 259 (Wis. Ct. App. 2001) (review of strategic decisions may be based on objective reasonableness)
State v. Pitsch, 124 Wis. 2d 628 (Wis. 1985) (standard for reviewing postconviction findings)
State v. Tulley, 248 Wis. 2d 505 (Wis. Ct. App. 2001) (independent review of prejudice and deficient performance)
State v. Hunt, 263 Wis. 2d 1 (Wis. 2003) (other‑acts evidence admissibility principles)
State v. Sullivan, 216 Wis. 2d 768 (Wis. 1998) (three‑part test for other‑acts evidence admissibility)
State v. Jeannie M.P., 286 Wis. 2d 721 (Wis. Ct. App. 2005) (de novo review of prejudice question)