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State v. Morales-Pedrosa

Court of Appeals of Wisconsin

April 6, 2016


         Submitted on Briefs December 17, 2015 

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[Copyrighted Material Omitted]

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          APPEAL from a judgment and an order of the circuit court for Kenosha County: S. MICHAEL WILK, Judge. Cir. Ct. No. 2012CF532.

         On behalf of the defendant-appellant, the cause was submitted on the briefs of Colleen Marion, assistant state public defender of Madison.

         On 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.

         Before Reilly, P.J., Gundrum and Hagedorn, JJ.


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         GUNDRUM, J.

          [¶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 no witnesses.

          [¶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

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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,[1] 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 sexual stuff."

          [¶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

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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 " bruising."

          [¶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 trial.

          [¶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 " penis."

          [¶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,[2] is it commonly understood that approximately 90 percent of reported cases are true?" McGuire responded, " Correct." (Footnote added.)

          [¶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[3] hearing, the postconviction court denied the motion. Morales-Pedrosa appeals, arguing the court erred in denying his postconviction motion, and further contending his Sixth ...

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