Opinion
Case No. 95-0299-CR.
Opinion Released: March 5, 1998. Opinion Filed: March 5, 1998. Not recommended for publication in the official reports.
APPEAL from a judgment and an order of the circuit court for La Crosse County: JOHN J. PERLICH, Judge. Affirmed.
Before Eich, C.J., Dykman, P.J., and Roggensack, J.
This case comes to us on remand from the supreme court.
Bruce Solberg was convicted in 1994 of third-degree sexual assault (nonconsensual intercourse), and we considered his appeal in State v. Solberg , 203 Wis.2d 459, 553 N.W.2d 842 (Ct.App. 1996). He argued that the trial court improperly denied him access to the victim's psychological records, as well as to police reports of a prior claim of sexual assault by the victim. We reversed on a limited issue, remanding the case to the trial court to determine whether the victim had consented to the trial court's in camera review of her medical and psychological records. Id. at 463, 553 N.W.2d at 843. Because we so held, we did not consider Solberg's claim regarding the police reports or his argument that his trial counsel was ineffective. Id . at 462 n. 1, 553 N.W.2d at 843. On review, the supreme court reversed, concluding, after its own in camera review, that the trial court did not erroneously exercise its discretion in ruling that the medical records were immaterial. State v. Solberg , 211 Wis.2d 372, 388, 564 N.W.2d 775, 782 (1997). The supreme court did not address Solberg's claims in regard to the police reports and ineffective assistance of counsel, remanding those questions to us for determination.
We now conclude that the trial court properly exercised its discretion in denying Solberg's request for access to the police reports and that he has failed to establish that his counsel was ineffective. We therefore affirm the judgment of conviction and the trial court's order denying his motion for postconviction relief. Other facts will be discussed below.
I. Disclosure of Police Reports
Prior to trial, Solberg learned that the victim, E.H., had once complained that another man had assaulted her in a similar manner, and that while the man had never been prosecuted, the prosecutor had retained police reports prepared during the investigation of the incident. Solberg's counsel requested disclosure of the reports, arguing very generally that they were relevant to his defense and suggesting that if the prosecutor had decided not to pursue the case because of "credibility problems" with E.H., such evidence would be exculpatory. The trial court, after undertaking an in camera inspection of the reports, denied Solberg's request, stating that it saw nothing setting forth the prosecutor's rationale for not going forward with the prosecution and found no material that would be relevant to his defense to the charge:
I don't see anything in these reports that in any way helps or assists the defense.
Number two, the defense already knows about the allegation, knows who made it, has interviewed the alleged perpetrator who has denied it.
The defense already has the . . . information that's in these reports. So I can't see any benefit to the defense in giving them to the defense, and I'm not going to.
Solberg argues on appeal that the fact that the earlier act, which was similar to the charged act, was not prosecuted "leads [him] to believe that the prior allegation was false," and if false, "there is a likelihood that the present allegations . . . are false as well." The extent of Solberg's argument is the statement that "[i]t is common practice in La Crosse County for the District Attorney's office to prosecute individuals they believe to be guilty." He concludes by "recommend[ing] that this matter be remanded for a full production of documents."
Just as determining the relevancy of particular items of evidence is committed to the trial court's discretion, State v. Denny , 120 Wis.2d 614, 626, 357 N.W.2d 12, 18 (Ct.App. 1984), so, too, are decisions granting or denying requests for pretrial discovery. State v. O'Brien , 214 Wis.2d 327, 343, ___ N.W.2d ___, ___ (Ct.App. 1997). We do not test a trial court's discretionary determination by a subjective standard, or even by our sense of what might be a "right" or "wrong" decision in the case; rather, the decision will stand unless "no reasonable judge, acting on the same facts and underlying law, could reach the same conclusion." State v. Jeske , 197 Wis.2d 905, 913, 541 N.W.2d 225, 228 (Ct.App. 1995). We have often stated in this regard that we look for reasons to sustain a trial court's discretionary decisions. Burkes v. Hales , 165 Wis.2d 585, 591, 478 N.W.2d 37, 39 (Ct.App. 1991).
The parties do not contest the trial court's authority to conduct an in camera review of the reports to determine their relevancy to the issues in the case. Nor do they suggest that we lack authority to do so in reviewing the trial court's ruling. See State v. Salentine , 206 Wis.2d 419, 433-34, 557 N.W.2d 439, 444 (Ct.App. 1996). We have done so, and our review satisfies us that the trial court appropriately exercised its discretion in denying Solberg's request on grounds that the sought-after documents do not contain any material relevant to his defense not already in his possession. The reports comprise statements of E.H. and various persons to whom she spoke regarding the alleged incident, as well as statements of the suspect. The statements simply describe the incident and the relationship between the parties and do not cast doubt on E.H.'s credibility or provide a reason for the prosecutor's decision not to pursue the case. In short, the reports fail to assist Solberg's defense. Our review of the reports confirms the trial court's analysis.
Solberg also suggests that even if the evidence was not exculpatory, the reports would be valuable to the defense in that they might provide "discovery leads" such as the names of possible witnesses and statements of the parties to the prior incident. But the State is under no obligation to provide the defense with discovery of nonexculpatory information — even highly "useful" information. State v. Denny , 120 Wis.2d 614, 628, 357 N.W.2d 12, 19 (Ct.App. 1984). Discovery in criminal cases is generally statutory, State v. O'Brien , 214 Wis.2d 327, 340, ___ N.W.2d at ___ (Ct.App. 1997), and Solberg has not directed us to any statute giving him a right to discovery of investigatory information in the hands of the prosecutor in order to develop his own "leads."
II. Ineffective Assistance of Counsel
Solberg claims his trial counsel was ineffective because: (1) she failed to call a witness who would testify that E.H. had falsely accused him of the assault; and (2) she "instructed him to testify [at] trial that it was possible [that E.H. had] verbally objected to the intercourse."
To succeed on an ineffective assistance of counsel claim, a defendant must establish that counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (1984). Because representation does not fall below the constitutional standard unless both elements are proven, a court may reject an ineffective assistance of counsel claim after determining that one of the elements was not satisfied. State v. Moats , 156 Wis.2d 74, 101, 457 N.W.2d 299, 311 (1990). Our review of the trial court's determination requires an inquiry into issues of both fact and law. Strickland , 466 U.S. at 698. Findings related to the attorney's actions, the events at trial, and the basis for challenging the conduct are factual inquiries and will be upheld unless they are clearly erroneous. State v. Weber , 174 Wis.2d 98, 111, 496 N.W.2d 762, 768 (Ct.App. 1993). The determination, however, as to whether counsel's performance was deficient and whether this deficient performance prejudiced the defendant raises questions of law which we review independently. State v. Hubanks , 173 Wis.2d 1, 25, 496 N.W.2d 96, 104-05 (Ct.App. 1992).
We accord considerable deference to counsel's conduct, recognizing that 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 time." Strickland , 466 U.S. at 689. There is a strong presumption that counsel was functioning reasonably within professional norms. State v. Johnson , 153 Wis.2d 121, 127, 449 N.W.2d 845, 847-48 (1990). As a result, the defendant must demonstrate that counsel "'made errors so serious that [he or she] was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment,'" in order to prevail. Id. at 127, 449 N.W.2d at 847 (quoting Strickland , 466 U.S. at 687).
In addition to establishing deficient performance, the defendant must also demonstrate that the deficient performance "actually had an adverse effect on the defense." Strickland , 466 U.S. at 693. It takes more than a showing of an error that could conceivably have influenced the outcome of the trial in order to establish prejudice; counsel's errors must be "'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Johnson , 153 Wis.2d at 127, 449 N.W.2d at 848 (quoting Strickland , 466 U.S. at 687). The defendant must show that a reasonable probability exists that, "'but for counsel's unprofessional errors, the result of the proceeding would have been different'"; and a reasonable probability is "'a probability sufficient to undermine the confidence in the outcome.'" Id. at 129, 449 N.W.2d at 848 (quoting Strickland , 466 U.S. at 694).
Solberg's first argument relates to counsel's failure to call D.T., the person who was the subject of E.H.'s earlier sexual assault complaint, to testify at his trial. Noting that D.T. had denied assaulting E.H., Solberg claims that counsel's failure denied him the opportunity to impeach E.H.'s credibility through D.T.'s testimony.
A defendant in a sexual assault case may present evidence of the victim's prior untruthful allegation of sexual assault, under certain conditions: (1) a sufficient factual basis for the evidence exists; (2) the evidence is material; and (3) its probative value outweighs any possible inflammatory or prejudicial effect. State v. DeSantis , 155 Wis.2d 774, 785-86, 456 N.W.2d 600, 605-06 (1990). But, under State v. Olson , 179 Wis.2d 715, 508 N.W.2d 616 (Ct.App. 1993), the defendant may bring in such evidence only by cross-examining the victim; extrinsic third-party evidence — even the testimony of the person accused of the earlier assault — is inadmissible. Id. at 722-24, 508 N.W.2d at 619. Consequently, D.T., or any other witness Solberg complains his counsel neglected to call, could not have testified in the manner he suggests. And we agree with the State that because E.H. had steadfastly adhered to her claim that D.T. had assaulted her, even if Solberg's counsel had cross-examined her about the prior incident, it is outside the realm of reasonable possibility to assume she would testify that her former allegations were false. Solberg has not persuaded us that counsel's failure to call witnesses to testify about the prior incident was deficient performance.
As the State also points out, the same reasoning defeats any claim of prejudice from counsel's failure to cross-examine E.H., for "[c]ross-examining [E.H.] about an allegation she still claimed was truthful would . . . not have created a reasonable probability of a different result" on retrial.
Solberg next argues that his counsel "instructed him to testify [at] trial that it was possible [E.H. had] verbally objected to the intercourse," and that this, too, was deficient performance. At the postconviction hearing, however, counsel testified that she did not recall telling him to answer such a question either "yes" or "no." Realizing that "Isn't it possible" questions are commonplace in criminal trials, she stated that she gave Solberg the following advice:
I do recall talking about, you know, sure anything is possible. "[Is it] possible that she said no and you didn't hear it?" And that talking about, no, that's impossible, might not be a place to have an argument with the district attorney, because you can't be sure. And you don't know things that you . . . didn't hear.
So I don't recall ever telling him, and I don't tell witnesses, you should answer this question yes or no.
. . . .
I'm sure I probably said, you know, it is possible, anything is possible, and how can you say it's impossible. So, I mean, decide for yourself, but it's probably not a good point to get into an argument with the prosecutor about.
In deciding Solberg's ineffective assistance claim, the trial court found his attorney to be the more credible witness on the point.
I accept [trial counsel's] version, not his. Considering what was going at the time, his credibility has to be a little suspect. I suspect he was under a little stress at the moment considering the nature of the charges and considering he was going to have to testify the next day about some things that I suspect he wasn't particularly proud of no matter how it came out.
Thus, implicitly at least, the court found that counsel had not "instructed" Solberg how to answer the question, as he had claimed, but simply told him it was probably better to concede that nothing was impossible to avoid getting into an on-the-stand argument with the district attorney. The court stated that simply informing a client that "you are probably going to be asked that question on cross-examination . . . and you are probably going to have to concede that it's possible that she said that" did not constitute deficient performance, and we agree for two reasons.
First, it is for the trial court, not this court, to determine the credibility of the witnesses and the weight to be given their testimony. Leciejewski v. Sedlak , 116 Wis.2d 629, 637, 342 N.W.2d 734, 738 (1984). The trial judge, when acting as factfinder, "is considered the 'ultimate arbiter of the credibility of a witness,' and his [or her] finding in that respect will not be questioned unless based upon caprice, an abuse of discretion, or an error of law." Johnson v. Merta , 95 Wis.2d 141, 152, 289 N.W.2d 813, 818 (1980) (quoted source omitted). At the very least, the trial court's determination that one witness's testimony is more credible than another's will not be overturned unless it is clearly erroneous. State v. Schambow , 176 Wis.2d 286, 301-02, 500 N.W.2d 362, 368 (Ct.App. 1993). Solberg has not convinced us that the trial court's credibility determination was clearly erroneous.
Second, as counsel testified, her advice was intended to avoid the situation where Solberg, by failing to concede that "anything is possible," would engender what she considered to be an unwise and possibly damaging argument with the prosecutor — on what she believed to be an "insignificant" question in terms of Solberg's defense that E.H. had consented to the intercourse. As the Supreme Court noted in Strickland , 466 U.S. at 690: "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable" in ineffective-assistance cases.
By the Court. — Judgment and order affirmed.