Submitted on Briefs, November 4, 2014
[Copyrighted Material Omitted]
APPEAL from a judgment and an order of the circuit court for Milwaukee County: DENNIS R. CIMPL and STEPHANIE ROTHSTEIN, Judges. Cir. Ct. No. 2011CF4754.
For Appellant: On behalf of the defendant-appellant, the cause was submitted on the briefs of John A. Pray of The University of Wisconsin Law School, Frank J. Remington Center, Madison.
For Respondent: On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general and Gabe Johnson-Karp, assistant attorney general.
Before Curley, P.J., Kessler and Brennan, JJ. BRENNAN, J. (dissenting).
[362 Wis.2d 454] [¶1] James Richard Coleman appeals a judgment of conviction, following a jury trial, of two counts of second-degree sexual assault of a child under the age of sixteen, contrary to Wis. Stat. § 948.02(2) (2013-14). Coleman also appeals the order denying his postconviction motion. Because we agree that Coleman's defense counsel performed deficiently, and that the deficiencies prejudiced Coleman, we reverse and remand for a new trial.
[¶2] The following facts are taken from the complaint and from trial testimony. On October 4, 2011, Coleman was charged with two counts of second- [362 Wis.2d 455] degree sexual assault of a child for the alleged assault of C.B., the thirteen-year-old daughter of Coleman's cousin, Floyd Miller. According to the complaint, Coleman was temporarily living with Miller, Miller's wife, Sara Bergman, and C.B. The complaint states that on the morning of September 21, 2011, after C.B.'s father and stepmother left for work, Coleman came into C.B.'s room, where he was storing his clothes. Rather than go to the closet, however, the complaint states that Coleman went to C.B.'s bed, got on top of C.B., and began moving his body on top of hers. The complaint also states that Coleman got under the covers with C.B., who was lying on her stomach, and began grinding his pelvis against her buttocks. C.B. told police that she could feel Coleman's bare penis.
[¶3] The complaint also alleges that on the morning of September 22, 2011, Coleman again got into bed with C.B. C.B. pretended to be asleep while Coleman licked C.B.'s vaginal area. The case was tried to a jury.
[¶4] During voir dire, Coleman's defense counsel informed the jury that Coleman " has been convicted of a crime before."
[¶5] Later, during his opening statement, Coleman's defense counsel elaborated by telling the jury that Coleman spent time in prison:
Mr. Coleman by the way is a person that spent time in prison. Mr. Coleman is a man, 57 years old, that [has] done all kind[s] of things in his past. So he's not an angel here, but what we are trying to talk about here is what happened in the month of September, the day specifically of the 21st, and 22nd, 2011.
[362 Wis.2d 456] (Emphasis added.) Counsel continued his opening statement with an unambiguous representation that Coleman would testify:
We're going to show you through our cross examination, Mr. Coleman will testify because he has to testify here from my point of view. It's my call to make as a defense attorney. We're going to testify and show through cross examination that the facts are not as [the prosecutor] said and weaved this third grade story, telling this story.
[¶6] The representation was not true; Coleman did not testify. In his closing argument, Coleman's defense counsel did not take responsibility for Coleman not testifying, nor did he explain to the jury why the promise he made in his opening statement was not fulfilled.
[¶7] The State's main witness was C.B., who was thirteen years old in 2011. She testified that in the summer of 2011, she moved in with her father and his wife, Bergman. C.B. stated that at that time Coleman was living there as well. C.B. told the jury that Coleman became her " best friend," because he was " somebody I could always tell something to." Specifically, C.B. stated that she confided in Coleman about her friendships, arguments with her stepmother, and her relationship with her ex-boyfriend.
[¶8] C.B. testified that Coleman slept in the living room of the apartment, but that his belongings were stored in the closet in C.B.'s bedroom. C.B. explained that her bed was positioned against the closet door. C.B. told the jury that on the morning of September 21, 2011, Coleman came into her room and moved her bed so that he could reach his closet. She [362 Wis.2d 457] stated that Coleman " act[ed] like he was grabbing his clothes from a hanger," but that his body was " moving against" her and that his " private" was " making the fabric of his pants poke out." C.B. pretended to sleep, but told the jury she could feel Coleman's " private" between her upper thighs.
[¶9] C.B. stated that the following morning Coleman again entered her room and again got on top of her to access the closet. She said that she pretended to sleep while Coleman got into bed with her, attempted to insert his penis in her vagina, and also licked her vagina. C.B. said that Coleman then checked his phone and said, " I got to go." Coleman then left the room. C.B. said once Coleman left the room, she locked herself in her father's bedroom and slipped a note outside the bedroom door to Coleman saying: " I am telling my daddy that you had raped me and if you say anything to me or touch me you will be reported to the cops." C.B. stated that Coleman attempted to talk to her, but she refused to say anything to him. C.B. left for school after Coleman left for work, but she did not report either incident to anyone at school that day.
[¶10] C.B. further testified that she told her father about the incidents when she returned from school on September 22, 2011.
[¶11] C.B.'s father, Miller, told the jury that he was driving home from work on September 22, 2011, when he saw C.B. on the sidewalk outside of the apartment. When Miller drove to C.B. and asked her what was wrong, C.B. " broke down and started crying, said [Coleman] raped her." Miller said that he took C.B. inside their
apartment, told her to stay in his (Miller's) bedroom, and then told Coleman that he (Miller) was going to pack up all of Coleman's things and kick Coleman out of the apartment.
[362 Wis.2d 458] [¶12] After Coleman left the apartment, Miller spoke with C.B., but stated that C.B. could not articulate what Coleman allegedly did to her. Miller said that he contemplated calling the police, but decided against it because he was unsure of whether C.B. was telling the truth. He also decided against taking C.B. to the hospital.
[¶13] Bergman told the jury that she was not comfortable with the closeness between Coleman and C.B. Bergman testified that on the evening of September 22, 2011, she received a text message from C.B. saying something to the effect of " [Coleman] had molested her and that her dad was taking him home." Bergman stated that she was unsure of whether to believe C.B.'s message because " she's had problems with lying." Upon returning home, Bergman spoke with C.B. about C.B.'s accusations. Bergman said that C.B. " gave ... some details, to me she didn't make a lot of sense when she was telling me but I was more - - she could tell I wasn't sure if I believed her or not." Bergman testified that she was hesitant to call the police because C.B. had been " untruthful" in the past.
[¶14] Jennifer Handlen, the social worker at C.B.'s school, told the jury that on September 23, 2011, C.B. told her that Coleman had sexually assaulted her (C.B.). Handlen contacted the local police department.
[¶15] Detective Ann Golombowski testified that she interviewed C.B. at C.B.'s school, and then C.B. was taken to the Child Protection Center where she was examined by a pediatric nurse. According to Golombowski's police report, C.B. told three people that Coleman ejaculated on her leg. C.B. told an officer that " she felt something sticky on her thigh." C.B. told Bergman, her stepmother, that " Coleman rubbed his penis against [C.B.'s vagina] until he came on her leg." [362 Wis.2d 459] C.B. told her school counselor, Handlen, that " she could feel his thing on her body and felt a wet sticky substance on the back of her right thigh." Golombowski stated that after interviewing C.B., she went to C.B.'s home and collected the clothing C.B. wore at the time of the alleged assaults, along with C.B.'s unwashed sheets and blankets from the time of the alleged assaults, for testing. No male DNA was found on any of the items, nor was any male DNA found on C.B.
[¶16] The jury found Coleman guilty on both counts.
The Postconviction Motion.
[¶17] Postconviction, Coleman moved for a new trial alleging, as relevant to this appeal, that defense counsel was ineffective for: (1) telling the jury before the trial that Coleman had been convicted of a crime and spent time in jail; (2) telling the jury that Coleman would testify, but then failing to call Coleman to testify; (3) failing to present evidence that C.B. told three people that Coleman ejaculated during the second assault (which would have made the fact that no male DNA was found on C.B.'s clothing or bedding more probative of C.B.'s credibility); and (4) failing to present other evidence inconsistent with C.B.'s trial testimony--namely, that after the first assault Miller noticed that C.B. watched television with Coleman until 8:15 p.m., although C.B. claimed she went to bed at 6:00 p.m. to avoid Coleman.
[¶18] The circuit court conducted a Machner hearing. Defense counsel testified about each of Coleman's allegations. We discuss that testimony in connection with
the discussion of the specific issues in this [362 Wis.2d 460] appeal. The circuit court concluded all of defense counsel's decisions were strategic and reasonable, ...