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Harrison v. Tegels

United States District Court, W.D. Wisconsin

October 27, 2016

LIZZIE TEGELS, Respondent.



         In 2011, petitioner Richard Harrison, Jr. was charged with repeated sexual assault of his then stepdaughter, D.M.K. There were no third-party witnesses to the alleged assaults and no physical evidence. Instead, the state relied entirely on a recorded interview that D.M.K. gave to the police and the trial testimony of D.M.K.'s mother, Kimberly, who recounted what D.M.K. allegedly told her about the assaults.

         Petitioner's theory of the case was that D.M.K.'s mother persuaded her daughter to fabricate the allegations because petitioner and Kimberly were divorcing and she wanted to prevent petitioner from gaining custody over several children that they shared. In his opening statement, petitioner's counsel promised the jury that he would reveal many inconsistencies in D.M.K.'s and Kimberly's allegations, showing them to be incredible. Counsel broke this promise. Although he presented evidence that D.M.K.'s mother had made false accusations against petitioner in the past, counsel failed to present evidence of numerous and significant inconsistent statements that both D.M.K. and Kimberly made about almost every aspect of the alleged assaults, such as the type of conduct involved, the frequency of the assaults, their location and what petitioner allegedly said to D.M.K. during the assaults. In addition, counsel failed to object to D.M.K.'s statement at trial that petitioner often hid from the police around the time that the alleged assaults occurred, even though it was undisputed that the petitioner's hiding had nothing to do with the alleged sexual assaults.

         The jury convicted petitioner and the state court sentenced him to 30 years in prison. After exhausting his remedies in state court, petitioner filed a petition under 28 U.S.C. § 2254 for a writ of habeas corpus, which is fully briefed and ready for review. Now represented by the Wisconsin Office of the State Public Defender, petitioner challenges his conviction on the ground that the Wisconsin Court of Appeals applied Strickland v. Washington, 446 U.S. 668 (1984), unreasonably when it rejected his argument that his trial counsel provided ineffective assistance by failing to (1) impeach D.M.K. and her mother with prior inconsistent statements and (2) object to inadmissible character evidence.

         In considering any petition for a writ of habeas corpus, a federal court must balance carefully a petitioner's rights under the Constitution with the state's and the alleged victim's right to finality. Particularly when the alleged conduct involves a heinous crime against a young victim, it is difficult to set aside thoughts about the hardship that the child may have to endure if the case is tried a second time. On the other side of the scale is the petitioner's right to a fair trial, a right that exists to prevent innocent persons from being convicted unjustly and, as in prisoner's case, being sentenced to 30 years in prison. When the interests on both sides are so important, a mistake in overemphasizing either finality or certainty can have serious consequences.

         Congress and the Supreme Court have created a legal framework that informs federal courts how to weigh the interests in punishing criminal conduct against the interests in preventing wrongful convictions. Federal courts can grant relief to prisoners challenging a state conviction, but only in narrow circumstances. 28 U.S.C. § 2254(d). In light of the deference a federal court must give both trial counsel and the state court, it is a rare case in which a federal court may grant a habeas petition in the context of a claim for ineffective assistance of counsel. Harrington v. Richter, 562 U.S. 86, 105 (2011).

         This is one such rare case. By failing to present evidence on the very issue he told the jury would prove his client's right to acquittal, petitioner's trial counsel deprived petitioner of the ability to present a defense and receive a fair trial. Counsel has admitted that his failure to introduce what could have been critical impeachment evidence was the result of his ignorance of the law of evidence, not trial strategy. Further, because witness credibility was the key issue at trial, counsel's failure crippled petitioner's defense, sending the message to the jury that counsel needed to mischaracterize the evidence because he knew that the evidence supporting petitioner was weak.

         The inconsistent statements were not related simply to minute details that could be dismissed easily by the jury as misstatements or the result of a diminished memory. Some of the differences were fundamental and dramatic, such as the change in D.M.K.'s statement that petitioner assaulted her hundreds of times (the statement the jury heard) to a revised estimate of between one and five assaults (the statement the jury could not consider). Considering the importance of credibility to the trial, the large number of the inconsistencies and their significance and trial counsel's announcement to the jury that he had ample evidence to show that D.M.K. could not be believed, I conclude that the failure by counsel to impeach D.M.K. and her mother was both deficient and prejudicial and that the conclusion of the Wisconsin Court of Appeals to the contrary was unreasonable. Although counsel's failure to object to the inadmissible character evidence may have been a less serious error, it increases the likelihood that petitioner was prejudiced.

         Of course, a conclusion that petitioner is entitled to habeas relief does not mean that petitioner is innocent of the crimes of which he is accused. I am not deciding whether D.M.K. and her mother should be believed, only that petitioner's counsel failed to present important evidence that the jury should have been able to consider. The state retains the right to try petitioner again for the serious crimes alleged, but before petitioner is subjected to a 30-year prison sentence, he should have the opportunity to present a full defense.


         A. Background

         Petitioner was married to the mother of the alleged victim for approximately six years. (I will follow the parties' lead in referring to the mother as “Kimberly” and the alleged victim as “D.M.K.”) D.M.K. was Kimberly's daughter from a previous relationship. She was two 1years old when petitioner and Kimberly met; during the relevant time period (2009 and 2010), she was eight or nine years old. Petitioner and Kimberly had four other children during their marriage.

         Sometime in 2010 (several months after Kimberly and petitioner stopped living together), Kimberly filed for divorce against petitioner. Shortly thereafter, Kimberly contacted the police, alleging that petitioner had sexually assaulted D.M.K.

         On September 30, 2010, a police officer, Christine Giacomino, interviewed D.M.K. about this allegation. In February 2012, after petitioner was criminally charged, D.M.K. provided a second statement about the alleged assaults at petitioner's preliminary hearing. (The parties do not explain the long passage of time between the report to the police and petitioner's preliminary hearing.)

         At petitioner's criminal trial in October 2012, defense counsel's theory of the case in his opening statement was that Kimberly prompted D.M.K. to fabricate allegations of abuse so that Kimberly would get custody of the children when they divorced. (Although petitioner would have no claim of custody over D.M.K. because she was not his biological daughter, a conviction for sexual assault would eliminate any chance that petitioner would win custody of his own children.) Counsel promised the jurors that they would hear many different, inconsistent versions of events from D.M.K. Dkt. #6-19 at 106.

         The state called D.M.K. to testify, but she had little substantive testimony to offer. When asked whether she “remember[ed] what happened between [her] and [petitioner], ” she stated, “Not really, because I don't really think about it.” Dkt. #6-19 at 153-54. Instead of live testimony, the state presented its case primarily through a tape recorded interview that D.M.K. gave to officer Giacomino on September 30, 2010, more than two years earlier. Neither the state nor petitioner entered into evidence D.M.K.'s testimony from the preliminary hearing in February 2012. Petitioner's counsel cross examined D.M.K. about one difference between her testimony at the hearing and her statements during the interview. In particular, D.M.K. stated during the interview that petitioner had assaulted her outdoors multiple times, but on cross examination at trial, she admitted that she had stated at the preliminary hearing that she could not remember whether any assaults occurred outdoors. Dkt. #6-19 at 148.

         In addition to D.M.K. and officer Giacomino, the only witness the state called was D.M.K.'s mother, Kimberly. On cross examination, Kimberly admitted that she contacted the police about petitioner's alleged sexual assaults shortly after she filed for divorce. Id. at 171-72. In addition, she admitted that she had filed and then withdrawn two restraining orders against petitioner during their marriage and that she had requested the dismissal of one of the restraining orders on the ground that she lied about it. Id. at 167. Petitioner's counsel did not cross examine Kimberly about inconsistencies between her trial testimony and statements that she gave the police.

         In his case, petitioner called three witnesses: Adrian Cruz (a doctor who examined D.M.K.), Patricia Harrison (petitioner's mother) and petitioner himself. Cruz testified that he saw no evidence of trauma or infection during his gynecological examination of D.M.K. and that her hymen appeared normal for a girl her age. Dkt. #6-20 at 6-9.

         Patricia Harrison testified that she lived with petitioner and Kimberly during the time of the alleged assaults, that she rarely left the house and that she never observed or heard any signs of the assaults. Id. at 23, 24, 51-52. She said that it was easy for her to hear what was going on in the bedrooms because of the way the home's ventilation system was set up. Id. at 51. In addition, she said that Kimberly did not have a job and she never left the house without petitioner. Id. at 26.

         During his testimony, petitioner denied that he sexually assaulted D.M.K. Id. at 65. During his brief cross examination, the state's counsel did not ask petitioner any questions about the alleged assaults.

         During closing arguments, petitioner's counsel tried to talk about inconsistencies in D.M.K.'s statements, but the state's counsel objected on the ground that the statements were not in evidence. Id. at 111-12. The court sustained the objection and directed the jury not to consider any evidence that was not admitted. Id.

         The jury found plaintiff guilty of repeated sexual assault of a child under Wis.Stat. § 948.025(1)(d). The court sentenced petitioner to 30 years in prison, to be followed by 10 years of extended supervision. Dkt. #6-1. In post conviction proceedings, petitioner challenged his conviction on the ground that he had received ineffective assistance of counsel. After holding a hearing in which petitioner's trial counsel testified, the court found that counsel performed deficiently. Dkt. #6-2 at 127. However, the court wrote that it was “satisfied by only the thinnest of margins that each layer of deficiency did not result in” prejudice. Id. The Wisconsin Court of Appeals affirmed the decision, and the Wisconsin Supreme Court denied petitioner's request for review. State v. Harrison, 2015 WI.App. 43, 362 Wis.2d 539, 865 N.W.2d 884, review denied, 2015 WI 91, 870 N.W.2d 463.

         I will discuss the facts of the case in more detail as they become relevant in the context of the opinion.

         B. Legal Standard

         Petitioner's sole claim is that his trial lawyer provided him constitutionally ineffective assistance. The Supreme Court set forth the standard for such a claim in Strickland v. Washington, 466 U.S. 668 (1984). First, petitioner must show that counsel's performance was deficient under an “an objective standard of reasonableness.” Id. at 687-88. The general question under this prong is whether counsel acted “within the range of competence demanded of attorneys in criminal cases” in light of “prevailing professional norms.” Id. See also id. (question is “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance”). In making this determination, a court's “scrutiny of counsel's performance must be highly deferential” and viewed from counsel's perspective at the time. Id. at 689. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id.

         Second, petitioner must show prejudice, which the Court defined as "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. This does not require a showing that "counsel's deficient conduct more likely than not altered the outcome in the case." Id. Instead, a "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. See also Harrington v. Richter, 562 U.S. 86, 112 (2011) (“The likelihood of a different result must be substantial, not just conceivable.”). Making this probability determination requires consideration of the "totality of the evidence before the judge or jury, " Strickland, 466 U.S. at 695, so a "verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support, " id. at 696. See also Harrington, 562 U.S. at 104 (reaffirming Strickland standard).

         In the context of a petition for a writ of habeas corpus under § 2254, the standard for ineffective assistance of counsel is “doubly deferential” in light of the standard of review imposed by 28 U.S.C. § 2254(d). Burt v. Titlow, 134 S.Ct. 10, 13 (2013). As relevant to this case, a federal court may not grant a § 2254 petition unless the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” § 2254(d). “A decision is ‘contrary to' clearly established federal law if the rule the decision applies differs from governing law set forth in Supreme Court cases. A decision involves an ‘unreasonable application' of Supreme Court precedent if the decision, while identifying the correct governing rule of law, applies it unreasonably to the facts of the case.” Bailey v. Lemke, 735 F.3d 945, 949-50 (7th Cir. 2013) (citing Bell v. Cone, 535 U.S. 685, 694 (2002), and Williams v. Taylor, 529 U.S. 362, 407 (2000)).

         “Surmounting Strickland's high bar is never an easy task. And establishing on habeas review that a state court unreasonably applied Strickland under § 2254(d) is all the more difficult." Harrington, 562 U.S. at 105 (internal quotations and citations omitted). Under Strickland, a state court decision is not unreasonable unless it is “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.

         I will consider first whether petitioner has satisfied the Strickland standard. If he does, I will consider whether he meets the standard of review under § 2254.

         C. Applyi ...

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