on Briefs December 17, 2015
[Copyrighted Material Omitted]
from a judgment and an order of the circuit court for Kenosha
County: S. MICHAEL WILK, Judge. Cir. Ct. No. 2012CF532.
behalf of the defendant-appellant, the cause was submitted on
the briefs of Colleen Marion, assistant state public defender
behalf of the plaintiff-respondent, the cause was submitted
on the brief of Thomas J. Balistreri, assistant attorney
general, and Brad D. Schimel, attorney general.
Reilly, P.J., Gundrum and Hagedorn, JJ.
[¶1] Esequiel Morales-Pedrosa appeals his
judgment of conviction following a jury trial and the trial
court's denial of his postconviction motion seeking a new
trial. All fourteen counts of the judgment relate to
Morales-Pedrosa sexually assaulting his teenage daughter,
B.M., on multiple occasions. Morales-Pedrosa contends his
trial counsel provided him ineffective assistance by failing
to (1) object on the ground of impermissible "
vouching" to testimony by a State expert witness that it
is " commonly understood that approximately 90 percent
of reported cases are true" and (2) object to "
other acts" evidence that Morales-Pedrosa had sex with
the victim's mother--who, at the time of trial, had been
with Morales-Pedrosa for nearly twenty years and married to
him for approximately twelve years--when she was the same age
as the victim. He also claims his right under the Sixth
Amendment to the United States Constitution to confront his
accuser was violated when other witnesses testified regarding
statements B.M. had previously made to them because such
testimony was presented after B.M. had testified and was
" excused." We conclude trial counsel was not
ineffective and Morales-Pedrosa's confrontation right was
not violated. We affirm.
[¶2] Morales-Pedrosa's convictions
relate to him sexually assaulting B.M. on three separate
occasions when she was between the ages of thirteen and
fifteen. At his trial, the State presented the following
witnesses relevant to this appeal: B.M.; B.M.'s mother,
who is also Morales-Pedrosa's wife; City of Kenosha
Police Officer Willie Hamilton and Detective David May;
Kenosha County Child Protective Services Investigator Julie
Ortiz; student liaison Gary Vargas from B.M.'s school;
and forensic interviewer Julie McGuire. The defense presented
[¶3] B.M. testified first. At the time of
trial, she was eighteen years old and living with her
grandparents in Ohio. She testified extensively as to the
specifics of the sexual assaults Morales-Pedrosa perpetrated
on her, the circumstances surrounding the assaults, and her
reporting of the abuse. When direct examination questioning
began to get into sensitive details related to the assaults,
B.M. indicated she " want[ed] to leave." The trial
court permitted a recess but stated it was not ordering B.M.
to stay, to which the prosecutor responded that B.M. was
" under subpoena," a point no one disputed. After
the recess, B.M. returned to the stand and testimony
continued. The court later recessed for lunch and,
thereafter, B.M. again returned to the stand.
[¶4] B.M. testified that around September
2011 she had told her mother and student liaison Vargas
something was going on at home involving her and
Morales-Pedrosa, but did not tell them everything that had
been happening. On May 13, 2012, about a week after the most
recent assault, B.M. spoke with Hamilton, told him "
what was going on," and eventually wrote out a
statement, which was admitted by the State into evidence,
without objection, as exhibit 2. B.M. also testified, without
objection, regarding a statement about the assaults she
provided to May on May 14, 2012, exhibit 3, and regarding a
letter she wrote to the court and prosecutor in 2012
recanting her statements. She wrote the recantation "
because I don't want nothing to happen to my dad"
and " because that would ruin my family." B.M.
testified that she subsequently reconfirmed to the prosecutor
that her original allegations were true.
[¶5] On cross-examination, trial counsel
questioned B.M. regarding statements she
made to Hamilton and May related to the assaults, including
questioning her regarding exhibits 2 and 3 and her
recantation. Counsel also cross-examined B.M. regarding
statements she made to Vargas and Ortiz during a September
2011 meeting they had with her at her school. Counsel secured
acknowledgments from B.M. that during this meeting she told
Vargas and Ortiz she did feel safe in her home, " mom
and dad fight a lot," Morales-Pedrosa is "
mean," and she wanted to " get out of the
house." After redirect, recross, and re-redirect
examination, the court told B.M., " You may step down.
Please watch your step. You are excused from these
proceedings at this time."
[¶6] Vargas testified next regarding
statements B.M. made to him about not feeling safe at and
wanting to leave home, Morales-Pedrosa " touch[ing]
her," and her family not believing her and likely "
disown[ing] her" because of her allegations. Trial
counsel objected to certain of Vargas's testimony on
confrontation grounds, which objections the trial court
overruled. On cross-examination, counsel questioned Vargas
regarding statements B.M. made to him about wanting to "
get out" of her family, Morales-Pedrosa not allowing her
and other family members to have friends over or " do
things," feeling safe at home, the " entire family
need[ing] help," and " mom and dad hav[ing] marital
problems." Counsel secured acknowledgements from Vargas
that he raised the issue of sexual abuse with B.M. first by
asking her if her father was " touching her," B.M.
" clammed up" in response to that question, and
B.M. " never even disclosed to [him] anything about
[¶7] Child protective services investigator
Ortiz testified that in September 2011 she was called in on
B.M.'s case due to an initial report that Morales-Pedrosa
had touched B.M. inappropriately. When Ortiz spoke with B.M.,
B.M. told Ortiz her family needed help and counseling, but
B.M. would not respond when Ortiz asked if she had been
sexually assaulted. Trial counsel objected on confrontation
grounds to certain of Ortiz's testimony, which objection
the trial court overruled. On cross-examination, counsel
questioned Ortiz about the initial report she received
regarding B.M.; concerns B.M. expressed regarding her family,
including that Morales-Pedrosa was " mean" to the
family; B.M.'s lack of disclosure to Ortiz regarding
physical or sexual abuse by Morales-Pedrosa; and whether B.M.
had told Ortiz she felt safe in her home.
[¶8] Before the start of testimony on the
second day of trial, the State requested to recall B.M. to
the stand in order to respond to certain testimony from the
previous day. Trial counsel objected, and the trial court
denied the State's request.
[¶9] City of Kenosha Police Officer Hamilton
then took the stand and testified regarding B.M. and her
mother coming to the police station on May 13, 2012, and B.M.
reporting to him that Morales-Pedrosa had sexually abused
her. B.M. wrote out a statement for Hamilton regarding the
abuse, exhibit 2. B.M. told him she had not previously
disclosed the abuse because " she feared for her safety
and her mom's safety." Trial counsel objected to
this latter testimony on confrontation grounds and moved to
strike it, adding, " I
have no opportunity to cross-examine that. That's brand
new excuses that we haven't heard before." The court
overruled the objection. On cross-examination, counsel
questioned Hamilton regarding B.M.'s reporting of the
abuse to Hamilton and whether Hamilton was aware how many
times Vargas, Ortiz and B.M.'s mother had asked B.M. if
Morales-Pedrosa had touched her. On redirect examination,
Hamilton testified regarding specific details of the sexual
assaults that B.M. wrote in exhibit 2. On
re-cross-examination, trial counsel questioned Hamilton
regarding a reference B.M. made in that statement to "
[¶10] B.M.'s mother also testified. As
relevant to this appeal, upon the State's questioning,
she testified her age at the time of trial was thirty-three;
she " met" Morales-Pedrosa when she was thirteen;
she and Morales-Pedrosa got married in 2001 and were
currently married; and she and Morales-Pedrosa had five
children together. In response to the State's inquiry,
she provided the names and ages of each child, the oldest of
whom, B.M.'s older brother, was nineteen at the time of
[¶11] City of Kenosha Police Detective May
testified regarding the statement related to the abuse that
B.M. signed on May 14, 2012, exhibit 3. May read from that
statement intimate details of the three assaults B.M.
informed May of on that date. Trial counsel objected on
confrontation grounds throughout this testimony; the trial
court overruled the objections. Trial counsel then
cross-examined May regarding exhibit 3, including procuring
acknowledgement that it was May, not B.M., who first used the
words " vagina," " breast," and "
[¶12] Forensic interviewer McGuire testified
as an expert witness for the State with regard to behaviors
commonly observed in child victims of abuse. On redirect
examination, the prosecutor asked McGuire, without objection,
" in your training and experience when you're
eliminating the alternative hypotheses, is it commonly
understood that approximately 90 percent of reported cases
are true?" McGuire responded, " Correct."
[¶13] The jury convicted Morales-Pedrosa on
all counts. He thereafter filed a postconviction motion
seeking a new trial, alleging ineffective assistance of
counsel. Following a Machner hearing, the
postconviction court denied the motion. Morales-Pedrosa
appeals, arguing the court erred in denying his
postconviction motion, and further contending his Sixth