*1 Plaintiff-Respondent, Wisconsin, State
v. Defendant-Appellants.† A. Silva, William Appeals Court 02-1502-CR, on 02-2050-CR. Submitted Nos. briefs August March 2003. Decided App 191
2003 WI 385.) (Also in 670 reported N.W.2d 12-16-03. † Petition to review denied *5 defendant-appellant, On behalf of the the cause was submitted on the briefs of Martin E. Kohler and Brian Hart, Kinstler of LLP, Kohler & of Milwaukee. plaintiff-respondent, On behalf of the the cause was Peggy Lautenschlager, submitted on the brief of A. Attorney Gregory General, Weber, M. assistant attorney general. Curley, Fine,
Before Schudson and JJ. appeals 1. CURLEY, J. William A. Silva judgment following convicting enteréd trial, bench first-degree contrary him of one count of assault, sexual 948.02(1) § (1999-2000), to Wis. Stat. and from the argues denying postconviction motion.1 He order (1) knowing attorney not was ineffective for: that his *6 holding pursuant Wallerman, to the of State v. 203 that, (Ct. 1996), App. 128 overruled 158, Wis. 2d N.W2d by Veach, 390, 2d v. 2002 WI 255 Wis. State stipulation proffered 447, a could have been that N.W2d prevented damaging might of have the introduction (2) failing object to to the evidence; acts" admis- "other (3) abdicating evidence; acts" and his role guilt sion of "other by conceding process in Silva's in the adversarial (1) closing argument. Further, he contends that: his right jury he his was invalid because waived to a waiver attorney; jury on the mistaken advice of his trial based (2) admitting the "other the trial court erred acts” admitting prejudi- and in other irrelevant and evidence testimony regarding guilty appearance; cial Silva's and (3) resentencing to trial he is entitled because the court to inform him two advisories under the failed critical 973.01(8). § truth-in-sentencing law, see Wis. Stat. reviewing record, 2. After we are satisfied attorney's performance was deficient as result Silva's ignorance holding, he but his Wallerman was by adopt prejudiced Further, not postconviction conduct. we this findings, they clearly
court's as are not freely voluntarily erroneous, that Silva decided and to a the trial court ruled on waive his before emphasizing evidence, the "other acts" and the de closing argument nature of the offense minimis was strategy evidentiary appropriate issues, an As to the we properly exercised conclude trial court its admitting "other evidence discretion in acts" concerning guilty appearance. evidence the other are to All references to the Wisconsin Statutes version unless otherwise noted. 1999-2000 Finally, postconviction we are satisfied that the court sentencing failing cured the trial court's omissions in personally explanations required by advise Silva of the § Wis. Stat. 973.01. Thus, we affirm. Background.
I. charged In June Silva was with one first-degree count of charge sexual assault of a child. The six-year-old arose out of an accusation his got put niece, M.S., that Silva her, into bed with pants, hand down her her rubbed buttocks. The complaint criminal states that Silva also rubbed his against legs. preliminary "winkie" her Silva waived his hearing. Later, the State filed a motion in limine 904.04(2) seeking § to introduce Wis. Stat. evidence of *7 prior three sexual assaults.
¶ 4. limine, After the State filed its motion in but before the trial court ruled on the "other evidence, acts" Silva waived his to a trial on the advice of attorney. hearing, trial At the Machner the trial attor- ney admitted that when he advised Silva to waive his jury, possibility entering he was unaware of the stipulation, might prevented Wallerman which have admitting the State from the "other acts" evidence to show intent.2 prior
¶ 5. Just to the trial, commencement of the attorney's objection, over Silva's the trial court ruled that the "other acts" evidence was admissible. After the granted trial court motion, the State's the State attorney agreed stipulation permitting Silva's to a the 2 During hearing, a Machner trial counsel testifies and the postconviction court determines whether trial counsel's actions Machner, were ineffective. See State v. 2dWis. (Ct. 1979). N.W.2d 905 App. prior to be entered into evidence of the offenses
records testimony. past live of the victims' lieu trial, victim, M.S., called At the State the to other All stand, as well several witnesses. were as by attorney. of those Silva's One wit- cross-examined victim, brother, the father who was Silva's of the nesses that he confronted Silva with his testified when dirty yellow daughter's accusation, Silva me "turned objection testimony. was made to this and nervous." No objection, testified, over The brother also Silva's alleged assault, he learned of the Silva demon- before during prayer guilt he sat down strated his when standing, everyone service, while else remained when again." discussing "sinning No witnesses theme by called the defense. were attorney of the trial, 7. At conclusion Silva's
gave closing argument. During closing a brief argument, attorney admitted that the victim was "being extent," truthful, and that Silva had some "technically" committed the crime. Silva was found guilty. urging State, At the the trial court proclaimed relied it had not on the Wis. Stat. 904.04(2) § reaching "other acts" evidence its verdict. years twenty-five sentenced to of confinement Silva was years supervision; twenty however, of extended give failed to mandated trial court advisories truth-in-sentencing new law.3 *8 provides, part: § Stat. 973.01 in relevant WISCONSIN imprisonment super- Bifurcated sentence of and extended vision. (8) (a) imposes a When a court Explanation op sentence, section, orally explain, sentence it shall
bifurcated under this writing, following person being all of the to the sentenced: postconviction ¶ 8. Silva filed a motion and, as hearing. noted, the trial court held a Machner postconviction court determined that Silva decided to jury waive his to a before the State filed its motion seeking the admission of "other evidence, acts" even though August the State's motion 2, 2000, was filed on actually sign and Silva did not waiver until August postconviction 23, 2000. The court also deter- attorney's performance mined that while his was defi- knowledge cient for his lack of of the Wallerman hold- ing, prejudice Silva suffered no since the trial court guilty considering found him without the "other acts" Additionally, postconviction evidence. court found attorney object that Silva's did to the admission of the attorney's closing "other acts" evidence and that his argument, concentrating on the de minimis nature of appropriate strategy. Finally, the offense, constituted an length 1. The total of the bifurcated sentence. person prison 2. The amount of time the will serve in under prison portion
the term of confinement in of the sentence. person spend 3. The amount of time the will on extended supervision, assuming person any does not commit act prison results in the extension of the term of confinement in 302.113(3). under s. person actually 4. That the amount of time the must serve in 302.113(3) prison may provided be extended as under s. and that 302.113(3) person because of under extensions s. could serve prison. the entire bifurcated sentence in person subject 5. That the will be to certain conditions while supervision, any on release to extended and that violation of may person being prison, those conditions result returned to 302.113(9). provided as under s. added.) (Emphasis *9 provided the miss- postconviction Silva with court truth-in-sentencing
ing mandates. Analysis.
II. attorney was not but Silva deficient, was A. Silva's prejudiced as a result. attorney argues ineffective was that his 9. Silva attorney that his First, he submits reasons.
for three holding thus, and, in Wallerman unaware was preventing stipulation "other acts" a failed to secure being his Next, Silva claims admitted. from evidence attorney object failing ineffective for was Finally, his he submits that acts" evidence. "other attorney's closing argument, he stated that which "being and that extent," truthful, to some was victim "technically" criminal violation of the was Silva prohibiting child, aof the sexual assault statute consequently, guilt and, his of to concession amounted process." "abdicated] role in the adversarial his counsel attorney's argues conduct was that, result, as He prejudicial, waiver was and his deficient and both disagree. invalid. We prevail ineffective on a claim of In order to must show counsel, a defendant
assistance performance defen- and that the was deficient counsel's prejudiced conduct. a result of this deficient as dant was (1984); Washington, 466 U.S. v. See Strickland 628, 633, 2d 369 N.W2d Pitsch, 124 Wis. see also State v. (1985). performance, prove defen- To deficient identify specific omissions of counsel acts or must dant range professionally corn- fall "outside the wide at 690. To petent Strickland, 466 U.S. See assistance." prejudice, demonstrate that defendant must show *10 pro- of the that the result serious errors were so the ceeding fails at 687. If the defendant Id. was unreliable. prejudice— performance prong or on either —deficient Id. at claim fails. of counsel ineffective assistance the "strongly presumeG" rendered counsel has 697. We adequate Id. at 690. assistance. concerning claim
¶ have reviewed Silva's 11. We possibility attorney's ignorance aof Waller- of the stipulation ineffective assis- context of an in the man that his conclude claim we tance of counsel holding knowledge attorney's the Wallerman of lack of performance. are However, we deficient constituted obligated of counsel assistance review ineffective to place of at the time the the law in on claims based holding appeal, has been over- and the Wallerman compelled that Silva to conclude are turned; thus, we prejudice. U.S. Fretwell, v. 506 Lockhart no See suffered (1993). 364, 372-73 procedure out a
¶ Wallerman, this court set 12. In by defendant, could foreclose the utilized that, when introducing Ac- acts" evidence. "other from the State cording concedes if defendant Wallerman, to charged acts" the "other offense of the element might proving, be State at was directed evidence introducing acts" evidence. the "other foreclosed from 904.04(2). holding, stipula- § that a This See Wis. Stat. accordingly proffered eliminate tion could be evidence, acts" the "other admission of for the reasons part WI Veach, v. 2002 State overruled has been case held 447. That 390, 648 N.W.2d 2d 110, 255 Wis. accept obligated to Wallerman not State is stipulations: that Wallerman not hold we do "While per that, stipulations hold with se, we do are invalid exception stipulations to a status, defendant's obligated accept stipula- state and the court are not tions to Veach, elements a crime . . . 255 Wis. 2d Additionally, 390, it concluded: stipulation [A]Wallerman in a child sexual assault case directly contrary greater to the latitude rule for the admission of other acts evidence in child sexual assault purpose cases. The of a stipulation Wallerman in this case-involving allegation an of child sexual assault-is preclude the admission of other acts evidence. The purpose greater latitude rule in involving cases allegations of child sexual assault "permit is to a more liberal admission of other crimes evidence." (quoting Veach, 255 Wis. 2d v. State David- son, ¶91, WI 2d 537, Wis. 613 N.W.2d606 Veach) (citations omitted)). *11 (emphasis by added Here, allegedly stipulated what would to, have been had trial counsel been aware Wallerman, was the occurrence separate prior of three instances of sexual assault. This evidence is relevant to the motive element of the crime. by As Veachdiscusses, and as made clear Davidson, 236 ¶ 537, Wis. 2d 65, Hammer, State v. 92, 2000 WI ¶ 25, 236 686, Wis. 2d 613 N.W2d the State must prove every element of crime, even those elements undisputed. obligated that are Thus, as the State is not accept stipulations, to Wallerman and as the "other establishing acts" evidence is relevant to an element of unlikely crime, it is that the State would to consent stipulate a defendant's offer to to an element of the charged crime if the introduction of that evidence prohibited Accordingly, would be as a result. the failure stipulation perfor- to offer a Wallerman is not deficient mance under Veach. Veach, See Wis. 2d (stating "[w]e DeKeyser .. . overrule Wallerman and to imply the extent that those cases state or that the state or stipulation, court must Wallerman accept or the offer a stipulation counsel to that failure of trial or whether the state regardless deficient performance More- accepted stipulation."). would have the court to court found that Silva decided over, noted, the trial as sought the State to a trial waive his right before Therefore, Silva the "other acts" evidence. introduce attorney's performance claim his successfully cannot was ineffective. Wallerman knowing not about of the record belies Silva's Next, our review to the "other object failed to attorney claim that his he previ- that complaints regarding acts" evidence Silva is young girls. three other molested ously sexually no he filed brief object, although did attorney wrong; filed the State. to that in opposition - objection, an I I didn't file Counsel]: [Defense necessary. Honor, think it was because I didn't Your that, ah, Defendant's, ah, position It's that, ah, be, ah, I don't -1 think denied. motion should may have occurred of, ah, allow evidence events present from the are far removed and 1994 so - to the outweigh prejudice doesn't that it would Um, to recant what to recall witnesses Defendant. be ex- and 1994 would in 1991 allegedly happened if, ah, client, and when my tremely prejudicial to happens, guilty, if that this Defendant the Court finds transpired anything examine then could . the Court matters, prior is concerned on Defendant as far as this *12 And call witnesses sentencing. ah, purposes of for the have and 1994 and age in 1991 of tender that were totally time, ah, I would be testify this believe them at not be allowed. and it should prejudicial on this ground. to relief is not entitled Thus, Silva 919 Finally, ¶ 14. we address Silva's last ineffective alleges claim, assistance of counsel attorney's which that his guilt concession of Silva's entitles him to a Again, disagree. new trial. we argues attorney's closing ¶ 15. Silva that his ar- gument, favorably he which commented on the credibility victim's and conceded that Silva was "tech- nically" guilty charged improper per offense, was holding App Gordon, in State v. 53, 2002 WI 702, Wis. 2d 183,4 N.W2d and resulted in his filing appeal, Since the of this Gordon has been reversed Gordon, State v. 2003 WI 262 Wis. 2d 663 N.W2d 765 [hereinafter Gordon inexplicably II]. Dissent contends that the reversal clearly of Gordon "all the more why established we here[,]" despite must reverse the fact that the reversal supports Majority's opinion. The Dissent on supreme relies fact-specific court's II, conclusions and observations in Gordon considering instead of reasoning the essence of the behind its reasoning clearly reversal. That aligns more itself with the Majority's conclusion upon consideration of all of the present here, circumstances defense closing argument counsel's falls equivalent" short of the "functional guilty plea of a in the instant case. The Dissent supreme contends that the court's "inextricably reversal connected to two critical circum [,]"i.e., stances that Gordon's trial guilt counsel conceded on one counts, yet zealously three acquittal advocated on the other two, and the already defendant admitted the conduct that count, constituted the conceded and accordingly, since neither here, However, of the two exist we should reverse. supreme attorney's court also noted that an guilt admission of the aof client guilty is not tantamount plea: appeals The court attorney's closing held that the defense argument disorderly concession on the conduct while armed count equivalent guilty plea,
was the improper functional of a if done consent, conclusivelypresumed preju- without Gordon's to be disagree. guilty trial, plea dicial. We A waives cross-examination of *13 his role the adversarial attorney "abdicating process." (1984) Cronic, See United States v. 466 U.S. 656-57 (if confronta- trial "loses its character as a process the adversaries, guarantee tion between the constitutional violated."). Here, is stated in its closing argument is the entirety: Honor, very difficult to cross-examine a Your it's -I I that the child was
six-year-old child. also believe truthful, being to extent. some that, ah, Um, the fact when I'm concerned about by the questions asked about time District she was - - testified that the Attorney ah this is after she had - ah, minute incident, approximately lasted one statement, credibility give whether we can to longer it or not. The facts still remains is whether was that, um, minute. she said it took one witnesses, testify right in one's own to and call witnesses beyond defense, guilt right verdict of and the to a unanimous in this case had none of these a reasonable doubt. The concession effects .... light that in II, 2d 24. It went on note
Gordon 262 Wis. admitting conduct that consti- testimony of Gordon's own count, performance for it "not deficient tuted the conceded was weight of the overwhelming attorney to concede the Gordon's Id., . . . ." evidence trial, case, similarly albeit had
In the instant Silva witnesses, opportu- had the jury, without a cross-examined testify if he chose to do so. and the nity to call witnesses case, considering of this Accordingly, after the circumstances M.S., strategy as trial counsel's i.e., the cross-examination court, strength of by the trial appropriate deemed deny case, failure to testimony regarding State's attorney rendered accusation, that Silva's we conclude supported determination is assistance and that this adequate the reversal of Gordon. First[-]degree very, very sexual assault serious
- very crime. I serious would assume the State's upon young girl case fact that is based this was 13 *14 - years age. under 13 of I tried to have the Court find out from the witnesses what the extent of the sexual contact was. The extent of the sexual contact was buttock, fact that had vaginal he rubbed her not her area, and, ah, that, ah, Ah, he had his clothes on. at no Um, exposed. evidently time was he is substanti- ah, by, police ated our Exhibit No. which the officer by stating recorded that he was clothed.
Um, suppose technically I this is case first that, Hdegree say sexual assault. I don't like to how- ever, I insignificant proportions believe it's of such toas generally we first[-]clegree what would call a sexual assault, that, um, and that I don't believe State proved beyond doúbt, ah, that, has a reasonable the fact ah, proved. the elements have been only
That's the comment I have to make at this time. hearing, attorney
¶ 16. At the Machner Silva's closing argument strategy point testified that his was to out to the trial court that the case had been over- charged first-degree agreed aas sexual assault. He just touching question he characterized the as "minor touching."5 postconviction The court determined that attorney's closing strategy appropriate. Silva's adopt was We postconviction finding regard court's in this clearly DeKeyser, as it is not erroneous. v. 221 State Wis. court ordered a Machner postconviction hearing on grant other issues and did not the motion to hold a Machner hearing upon attorney's based closing argument. Silva's How ever, postconviction postconviction motion and the court Thus, explored this issue. we do not remand for an additional Machner hearing. (Ct. 1998) App. (stating 435, 442,
2d 585 N.W.2d668 we uphold postconviction findings will court's factual "concerning circumstances of the case and counsel's strategy" they clearly conduct and ous), unless are errone- grounds by overruled on other State Veach, v.
110,WI Wis. 2d 648 N.W2d 447. Finding attorney's handling the trial girl appropriate
little on cross-examination as a matter strategy, postconviction court remarked: I find in lawyer's [the trial strategizing about the defense he was concerned and I find the concern appropriate attacking [-] that the credibility of a six- year[-]old child is a difficult and delicate feat that one has to on one hand be cautious treat the child with gloves kid yet has to be able to attack the under- standing comprehension or aof child as to hap- what *15 pened happened. or if it attorney engaged
¶ 18. Silva's in selective cross- examination of M.S., from which he was able to estab- concept suspect lish that M.S.'s of time was because the victim claimed to be assaulted her sister's bed at a day contrary testimony. time of to her mother's Silva's attorney correctly closing argument observed in his examining six-year-old ais delicate task: "Your very six-year-old Honor, it's difficult to cross-examine a Accordingly, attorney question child." elected to length highlight attack, the confusion of argue the victim as to when occurred, it and to that the insignificant proportions offense was "ofsuch as to what generally first[-]degree we would call a assault," sexual exposed only inappropri- since Silva never himself ately touched his niece on the buttocks. that, 19. We are satisfied under the circum- allegations strong
stances, Silva's do not defeat the presumption adequate that trial counsel rendered as- attorney Silva's trial did as well as most
sistance. attorneys Stating would have done. that Silva was "technically guilty" first, had two beneficial effects: it telegraphed any to the trial court that if doubt existed mind, in the trial court's the minor nature of the act controlling finding could act as a factor Silva not guilty; strategy emphasized second, the idea overcharged, setting up argu- that the matter was an leniency sentencing. Thus, ment for at counsel did not process. abdicate his role in the adversarial given strength Moreover, of the State's attorney's closing argument case, the was also not beyond "reasonably representa- the realm of effective apply. tion," which is the test we must See State v. (Ct. App. McMahon, 68, 80, 2d 186 Wis. 519 N.W.2d621 1994). six-year-old girl very was a articulate wit- reported ness. She the attack to her mother as soon as get attention, she was able to her mother's which was day. significant next Another consideration is the girl's fact that the father testified that when he con- only displayed Silva, half-brother, fronted his Silva not signs guilt, deny all the but also did not the accusa- tion. State, 102, 110, See Caccitolo v. 69 Wis. 2d (1975) (silence N.W.2d139 in the face of an accusation admission). people deny Thus,* that most would is an Silva is not entitled to a new trial on this basis. knowingly jury. B. Silva waived *16 argues right ¶ 21. he Silva waived his to a jury upon attorney, based the inaccurate advice of his holding, who was unaware of the Wallerman which introducing would have foreclosed the State from "other urged right evidence, acts" when he him to waive his jury. attorney hearing a testified at the Machner
924 that he recommended a bench trial he because believed vigorous that a more cross-examination of the victim accordingly, in and, could be conducted a bench trial that the trial court could then better assess cred- ibility any Also, of the victim. he was concerned that jurors young identify who had children would with the victim. examining party
¶ 22. When
whether a
should be
jury trial,
relieved from a-waiver of
this court reviews
the trial
if
court's decision to see
there has been an
Cloud,
erroneous exercise of discretion. See
v.
State
(Ct.
1986).
App.
58, 63,
2d
A
Wis.
and the record indicates a right. and intent to waive his or her See Wis. Stat. 972.02(1); § Grant, 90, 95, State v. 230 Wis. 2d (Ct. 1999). jury App. valid, "a trial Thus, N.W.2d8 to be relinquishment waiver be an intentional or aban- must right privilege." donment of known or See State v. ¶7, Anderson, 2002 WI 249 Wis. 2d 638 N.W.2d (citations omitted). However, the trial court's find- ing jury proper party's that a waiver was should be accepted clearly it is See unless erroneous. Wis. Stat. 805.17(2) 972.11(1). § § and Wis. Stat. postconviction court refused to relieve jury Silva from his it determined that waiver because Silva had decided to waive his to a trial before seeking the State filed its motion to introduce "other acts" evidence. *17 right, waiving
¶ one 24. a constitutional When intelligently, voluntarily, knowingly, and do so must of the relevant circum awareness with "sufficient Brady likely consequences." v. United and stances (1970). The determination of States, U.S. depend waiver "must there has been a valid whether upon particular unique of each case. circumstances" McCann, U.S. States ex rel. See Adams v. United (1942). 269, 278 accepted postconviction Silva's court 25.
attorney's elected to have a bench averments that Silva jury would be of his concern trial because sympathetic M.S., and not because of his concern to regarding prior of evidence
over the admission
accept
postconviction
court's
conduct. We must
DeKey
they
clearly
findings
not
erroneous. See
as
are
ser,
Silva to waive his to regarding possibility that evidence unaware of jury by way kept prior a could be from assaults stipulation, on Silva's waiver was based a Wallerman jury up would be made of mothers his concern that the possibility young children, and not on the fathers of would be admitted. Silva that "other acts" evidence right thought he fare because he that would waived his Indeed, decided to do so better in a bench trial. Silva sought the "other the State to introduce even before right Moreover, Silva had waived his acts" evidence. prior jury occasion, and was well trial on at least one significance Thus, of that waiver. we aware of the waiver of his was conclude that Silva's intelligently post- knowingly made, and that the properly conviction court exercised its discretion when it failed to relieve Silva of his waiver. *18 properly
C. The trial court exercised its discretion in admitting the "other acts" evidence.
¶ 27. The trial court ruled that the evidence of prior probative assaults was relevant, and could purposes showing plan, be admitted for the scheme "probative motive. The court also found that the and/or outweighs any prejudicial value effect."6 The State regarding prior wished to introduce evidence three incidents of sexual assault. Two of the three incidents were criminal convictions obtained in 1990 and In thirteen-year-old case, one the accuser was Silva's girlfriend's niece; in other, the the accuser was his thirteen-year-old daughter. The incident, third for charges daughter, which filed, no were involved Silva's who claimed that Silva fondled her twice when she was approximately years nine old. Silva now claims that his attorney's objection to the evidence amounted to no objection specific at all because he was not in his opposing statements the the admission of evidence and opposition thereby did not file a State's, brief to the guaranteeing almost the of the admission "other acts" applied The trial court an improper standard. Wisoonsin § provides: 904.03 Stat. grounds prejudice,
Exclusion of relevant evidence on confusion, relevant, Although may or waste of time. evidence probative substantially outweighed by if be excluded its value is issues, danger prejudice, of unfair the confusion of or mislead- ing jury, time, delay, or considerations of undue waste of or presentation needless of cumulative evidence. postconviction found that Silva's court evidence. sufficiently objected attorney to the admission evidence. applying the three- satisfied, after 28. We are
part
Sullivan,
216 Wis. 2d
set forth
State v.
test
(1998),
trial court
771-73,
D. The evidence Silva's demeanor at a service of is admissible. Finally,
¶ 29. Silva claims that the trial court (1) permitting testimony erred in: his from brother dirty yellow that Silva "turned me and nervous" when (2) accusation; confronted with his niece's admit- ting prayer of his at evidence demeanor service. He argues prejudicial. the evidence was irrelevant We objection piece note that no was made to the first of Ehly, thus, evidence and, it is waived. See Wirth v. 93 (1980). Regarding 433, 443-44, Wis. 2d N.W2d piece evidence, the second of Silva's brother testified day that on the of the assault Silva attended a service "sinning again." discussed act of brother during stated that everyone sat Silva down discussion while standing. remained else This behavior is con- person recently sistent with the has conduct of who crime committed a and is admissible as such. See (1903) State, 89, Paulson v. 118 Wis. N.W. ("Conduct suspected person a after crime is a legitimate subject bearing upon consideration, for as ."). probability guilt. . . Thus, the trial court correctly permitted testify the witness to to his obser- guilt day vations of Silva's on the crime. *20 judgment ¶ the stated, 30. For the and reasons order are affirmed.
By Judgment the and order affirmed. Court.— (concurring). join fully ¶ FINE, J. I 31. the Majority briefly opinion, respond but write to to the
929 have, A. William Silva should Dissent's contention that endure, a trial. his should have new victim complains trial law- ¶ Dissent that Silva's 32. The argument closing yer to the in his too much conceded nonjury, The also bench trial. Dissent in this court trial lawyer gave opening complains no state- I no address matters and called witnesses. these ment in turn. give opening
¶ did an 33. The State also not lawyers dispense with for statement. It is common opening Thus, mutual in bench trials. the statements opening in a trial to the court eschewal of statements sitting defense both the State without hardly beyond "reasonably realm of effective is representation," Majority notes, as the is the
which, apply. McMahon, See v. 186 standard we must State 1994). (Ct. App. 80, 621, 2d 68, Wis. N.W2d lawyer also did not call It is true that Silva's any however, us, not tell witnesses. Dissent does legal representation: the Dis- this ineffective how was points have neither to what witnesses should been sent prejudiced called, Silva. See State nor tells us how this Flynn, 48, v. Wis. 2d 527 N.W.2d 349-350 1994) (defendant (Ct. lawyer App. alleges who lawyer did do some- ineffective because the not was lawyer specificity thing, what must show with either have done and how that would have should very changed things or, at least, how that made fundamentally trial or result unfair). either unreliable complains trial law- 35. The Dissent that Silva's closing argument, yer gave perfunctory con- which guilt. more, I, as does technical He did however. ceded lawyer's closing Majority opinion, set out the trial argument in full: *21 Honor, very Your it's difficult cross-examine a — I
six-year-old child. I also that believe the child was truthful, being to some extent.
Um, that, I'm ah, concerned about the fact when questions by she was asked about time the District — — Attorney ah this after she had testified that the — incident, ah, approximately lasted one minute we give credibility statement, whether can to that it longer whether was or not. fact The still remains is that, um, she said it took one minute. degree very, First[-] very sexual assault is serious
— n I very serious crime. would assume that the State's upon case is based the fact that young girl this was 13 — years age. I under tried have the Court find out from the witnesses what the extent of the sexual was. contact The extent of the contact sexual was buttock, vaginal fact that he had her rubbed not her area, and, ah, ah, that, he Ah, had his clothes on. at no Um, exposed. evidently time was he that is substanti- ah, by, ated our police Exhibit No. which the officer he stating recorded was clothed.
Um, I suppose technically is a this case of first I like Hdegree that, sexual to say assault. don't how- ever, I insignificant proportions believe it's of such as to generally degree what we call first[-] would sexual as- sault, um, that, and that is I don't believe the State has ah, proved beyond doubt, that, ah, a reasonable the fact proved. the elements have been postconviction The court found that closing [the argument] if evidence was such "that was a deficiency unfairly inappropri- it did not or contribute ately [in] closing argument] [the to the conviction [trial] was not a material factor Court's decision" finding guilty beyond a Silva reasonable doubt. Of through testimony; it, sat trial court
course. jury, not need to have the evidence masti- did unlike marshaled. cated and *22 Majority opinion points Moreover, the
¶ as out: case, strength attorney's of the State's
given the argument beyond also not the realm of closing was 'reasonably which is the representation,1 effective test very six-year-old girl must was a articu- apply. we reported the attack to her mother as late witness. She attention, get as was able to her mother's soon she day. significant next was the Another consider- which that girl's ation is fact that the father testified when Silva, half-brother, only confronted his Silva not he signs guilt, deny displayed all the of but also did not accusation.
Majority op. (Emphasis original, ¶ 20. at citations omitted.) suggest light In this, of for the Dissent to lawyer flatly everything, have denied Silva's trial should saying, is which is essence of what Dissent advocating of the tactic that will borders on emulation Iraqi of forever be with the former Minister associated Information, Mohammed Saeed al-Sahaf.1 lawyer clos- 38. Had Silva's trial cannonaded his ing argument explosions denial, with of as Dissent suggest, arguing appeal I on bet Silva would be seems strategy Indeed, a that finding a was "ineffective." when such guilt by sitting a in a court as fact-finder strategy certain, here, trial is as it was a of candid bench why advocacy; powerful the bad facts is amelioration of argues lawyer he she should a be believed when or lawyer just, mitigation sentencing on when the was by Examples of absurd statements made Mohammed (last http://64.39.15.171 be found at accessed Saeed al-Sahaf can 2003), and, July 24, likely, cursory search the internet. most perhaps denying vigorously earlier, moments the irre- "advocacy" Yet, futable? this is the suicidal the Dissent respectfully disagree. I commends. (concurring/dissenting). 39. SCHUDSON, J. I majority many respects. concur with the On one issue, however—whether Silva denied was to a jury depart part majority's analysis; trial —I from closing and on another —whether defense counsel's ar gument disagree constituted ineffective assistance —I majority with the required. conclude that new trial
JuryA.
Trial
majority correctly
¶ 40. The
concedes
performance
counsel's
was deficient
virtue of his
ignorance
of Wallerman. Had Silva waived a
trial
*23
igno
grounded
based
advice,
on counsel's erroneous
in
jury
rance Wallerman,
of
then his
waiver would have
right
jury
been invalid and
a
his
trial would have to
analysis
be restored. No further
would be needed.
Prejudice would
because,
be clear
under such circum
by
stances, it
not to
is
be measured
the reasonable
probability
by
a
verdict,
rather,
of
different
but
the
probability
jury-
reasonable
a of
result
the
different
of
proceeding.
waiver
Smith,
258,
See State v.
207 Wis. 2d
(1997) ("The
¶ 276,
deficient so, is which that id. various circumstances recounted eight supreme ex- A review of the court's at 278-79. certainly proceedings amples reveals several would jury-waiver consequential than a deemed far more be Stallings, hearing. id.; N.W.2d See see also State v. (Iowa (defense 2003) failure to en- 106, 112 counsel’s jury was valid constituted defendant's waiver sure presumed prejudice for thus, was defect; structural establishing purposes of ineffective assistance coun- sel). broadly on Here, to the extent that it focuses likely Wallerman and the outcome of the
the reversal of jury narrowly trial, than on the result rather majority proceeding, the misses the mark. Ob waiver viously, the verdict would have been no one knows what jury-waiver following jury result of the trial.1 But the jury proceeding if Thus, known. Silva's waiver was ignorance faulty advice based on uninformed, due Wallerman, trial, if he to a new with a so contrary clear. to what desired, would be And development, including majority implies, subsequent no 1 Indeed, very uncertainty supports all the more supreme explained: position. court prejudice presuming is the Part of rationale behind difficulty measuring error or the the harm caused Behnke, instance, [State v.] [in In for which ineffective assistance. supreme prejudice" resulting from defense court "assumed *24 return, resulting absence from the verdict and the failure counsel's specula poll jury], indulge in or to the declined calculation we to prejudice arising from the absence of counsel and tion about the jury. poll the failure (1997) 259, 280, Smith, v. 2d 558 N.W2d 379 State 207 Wis. omitted). (citations 934 overruling of Wallerman, would alter the immu right jury fact table that Silva was denied his to a trial.2 majority correctly recog- Here, however, the postconviction finding nizes that the court's Silva —that right jury decided to waive his to a for trial reasons ignorance unrelated to counsel's of Wallerman —is not clearly finding substantially erroneous. Indeed, that is supported testimony defense counsel's at the Mach- hearing. ner performance For that alone, reason counsel's deficient prejudicial; deny
was not it did not Silva right jury his to a trial. Closing Argument
B.
year,
only
¶ 44. Last
with words that not
would
anticipate
seem to
the instant case but also would
majority's
desperate
refute the
rather
rationalization
closing argument,
for defense counsel's
we declared:
attorney may
[A] defense
guilt,
not admit his client's
which is contrary
plea
guilty,
client's
of not
unless
the defendant unequivocally understands and consents
2
majority's
Fretwell,
reliance on Lockhart v.
506 U.S.
(1993) misplaced.
364
displaced
Lockhart has not
Strickland
Washington,
(1984);
v.
beyond
¶ in month, Until last our decision Gordon 45. (After in all, case, the instant should have controlled. technically suppose "I conceded, this is defense counsel first-degree The rest of defense a case of sexual assault." nothing closing argument meager offered counsel's suggest otherwise.) supreme the court reversed. But doing ¶ so, however, In the id., 2d 5. See Wis. why clearly supreme we all the more established court here. must reverse supreme
¶ Gordon, court held: In by counsel was guilt] [of the defendant's concession under equivalent guilty plea not the functional case, closing this it came in circumstances where case, argument, multiple-count one count after on testing of the State's case and after the full adversarial on witness the facts defendant had admitted stand constituting offense. emphasized supreme repeatedly court
Id., 5. The inextricably to two that its conclusion was connected (1) guilt on critical circumstances: counsel conceded "argu[ing] only trial, while one count a three-count felony vigorously acquittal serious for on more (2) counts," id., 26; defendant, misdemeanor testifying constituting trial, at admitted the conduct attorney and, *26 conceded count therefore, "Gordon's anything did not concede that Gordon had not admitted as a factual matter stand," on the witness id. Citing noting
¶ 47. cases, numerous their significantly distinguishing supreme features, the court emphasized importance further the of these two cir- Any reading ¶¶ Id., cumstances. supreme 27-30. fair inescapable court's decision leads to the con- that, clusion but for either or both of those two circum- required. stances, reversal is only charge.
¶ 48. Silva faced one trial, At Silva testified; never tuting he never admitted the conduct consti- closing argument, Nevertheless,
the crime. in guilt. supreme defense counsel conceded Silva's The court's decision controls; Gordon Silva's conviction must be reversed.
C. The Ironic Link joins ¶ 49. One last link these two issues. And given majority's jury-waiver the issue, treatment of the irony interesting. closing argument, is at Counsel's upon jury nullify best, could have called a to to i.e.,— guilty despite find Silva not the uncontroverted evi- guilt. unquestionably, dence of But, trial, a bench "technically counsel's concession that this a of is case first-degree guilty sexual assault" called for verdict.3
3And, mind, keep in argument we must counsel's left option trial court no lesser-included offense atwas issue. —no Kramar, 767, 792, See v. State 2d Wis. 440 N.W2d 317 (1989) (option finding guilty defendant of lesser-included "only offense exists when there grounds are reasonable in the greater evidence both for acquittal charge on the and conviction offense"). on the lesser Supreme has The Court de- United States clared: protected Sixth process by the adversarial
[T]he accused have "counsel that the requires Amendment of an advocate." in the role acting right of of counsel is thus the assistance effective to survive require prosecution's case accused meaningful testing. When a true adversarial crucible if has conducted—even criminal trial been adversarial may have made demonstrable errors— defense counsel by the Sixth Amendment testing the kind of envisioned character as process has occurred. But loses its if adversaries, the constitutional between confrontation guarantee violated. *27 (citations Cronic, v. 466 U.S. 656-57 United States added). emphasis omitted; and footnotes advocacy? Here, was the was ¶ 51. where Where testing"? "meaningful counsel adversarial Defense right jury He his to a trial. made advised Silva waive opening witnesses, and con- statement, called no no guilt closing argument. in While the first ceded they bring determinative, added not two factors are closing understanding in which the context closing Gordon, came. Under Cronic and concession conceding guilt, argument dispositive; it was both is prejudicial, requiring trial. thus new deficient
D. Conclusion injustice in both Silva 52. The this case—for prolonged by alleged assault —now victim of significant. Still, Silva's trial, the need for new effective assistance of counsel to a trial with the preserved sharing and, therefore, must be while majority's many case, must, view matters this I part, respectfully dissent.