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State v. Breitzman

Supreme Court of Wisconsin

December 1, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Ginger M. Breitzman, Defendant-Appellant-Petitioner.

         REVIEW of a decision of the Court of Appeals. (L.C. No. 2013CF270) Affirmed.

          For the defendant-appellant-petitioner, there were briefs filed and an oral argument by Hannah Schieber Jurrs, assistant state public defender.

          For the plaintiff-respondent, there was a brief filed by Donald V. Latorraca, assistant attorney general, with whom on the brief were Brad D. Schimel, attorney general, and Maura F.J. Whelan, assistant attorney general. There was an oral argument by Donald V. Latorraca.

          ANNETTE KINGSLAND ZIEGLER, J.

         ¶1 This is a review of an unpublished decision of the court of appeals, State v. Breitzman, No. 2015AP1610-CR, unpublished slip op., (Wis. Ct. App. Aug. 16, 2016), which affirmed the Milwaukee County circuit court's[1] denial of Ginger Breitzman's ("Breitzman") postconviction motion challenging her convictions for child neglect under Wis.Stat. § 948.21(1) (2013-14)[2] and disorderly conduct under Wis.Stat. § 947.01(1).

         ¶2 In a criminal action by the State, Breitzman was charged with, and convicted of, five crimes relating to her negative interactions, confrontations, abuse, and neglect of her son, J.K., during the time period ranging from November 2011 through December 2012: (1) Physical Abuse of a Child (Intentional Causation of Bodily Harm) under Wis.Stat. § 948.03(2)(b); (2) Physical Abuse of a Child (Intentional Causation of Bodily Harm) under § 948.03(2)(b); (3) Child Neglect (Bodily Harm) under Wis.Stat. § 921.21(1) (b); (4) Child Neglect (Misdemeanor) under Wis.Stat. § 948.21 (1) (a); and (5) Disorderly Conduct under Wis.Stat. § 947.01(1).

         ¶3 In the circuit court, Breitzman filed a postconviction motion under Wis.Stat. § 809.30(2) (h) seeking judgments of acquittal for counts three, four, and five. For all three, she argued that there was insufficient evidence to support a conviction. Additionally, she argued that defense counsel at trial had been ineffective because he failed to move for dismissal of count five for disorderly conduct on free speech grounds, pursued a defense theory of reasonable parental discipline in opening remarks that was inconsistent with Breitzman's plan to deny striking J.K., and failed to object to testimony regarding other-acts evidence. Following a Machner[3]hearing, the circuit court granted the motion for judgment of acquittal as to count three and denied the motion as to counts four and five, concluding that there was sufficient evidence to sustain the convictions on counts four and five and that counsel had not been ineffective at trial.

         ¶4 In the court of appeals, Breitzman challenged the circuit court's denial of her postconviction motion as to counts four and five, again challenging the sufficiency of the evidence and asserting that defense counsel at trial had been ineffective. The court of appeals affirmed the circuit court.

         ¶5 On petition to this court, Breitzman seeks review of the denial of her ineffective assistance of counsel claim. In this regard, we note that Breitzman's claim does not raise a facial or as-applied challenge to the disorderly conduct statute, Wis.Stat. § 947.01. A facial challenge would argue that "profane conduct, " as listed in § 947.01(1), is not actionable as a crime because profanity is protected speech. An as-applied challenge would argue that Breitzman's profane conduct in this case was not actionable as a crime because it was protected speech. Breitzman argues neither. Breitzman only argues that her trial counsel rendered ineffective assistance.[4]Thus, while this case touches on an interesting issue of free speech law, we reserve full analysis of what constitutes profane speech and whether profane speech is otherwise protected as free speech for another day and confine our analysis here to the ineffective assistance of counsel issue presented, briefed, and argued by the parties.

         ¶6 The ineffective assistance of counsel issue raised requires consideration of whether counsel was ineffective for any of the following reasons: (1) failing to move to dismiss the disorderly conduct charge on the basis that it violated Breitzman's constitutional right to free speech; (2) failing to present opening remarks consistent with Breitzman's anticipated testimony; and (3) failing to object to testimony regarding other uncharged conduct.

         ¶7 As to the first, we conclude that trial counsel's failure to move to dismiss the disorderly conduct charge on the basis that it violated Breitzman's constitutional right to free speech was not deficient performance, and thus not ineffective assistance of counsel, because whether profane conduct that tends to cause or provoke a disturbance is protected as free speech is unsettled law.

         ¶8 As to the second, we conclude that trial counsel's theory of reasonable parental discipline, as presented in opening remarks, was not deficient performance, and thus not ineffective assistance of counsel, because it reflected trial counsel's reasonable expectations, which were rationally based on discussions with Breitzman, and it was part of a reasonable trial strategy.

         ¶9 As to the third, we conclude that trial counsel's failure to object to testimony regarding uncharged conduct was not deficient performance, and thus not ineffective assistance of counsel, because declining to object was part of a reasonable trial strategy.

         ¶10 Because we conclude that trial counsel's performance was not deficient, we need not address whether, in the context of ineffective assistance of counsel, there was prejudice to Breitzman, and we decline to do so.

         ¶11 Thus, we affirm the decision of the court of appeals.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         ¶12 To give proper perspective on the narrow issues we address here, it is important to outline the charges, allegations, and evidence presented to the jury, as well as the theory of defense and strategy of trial counsel.

         ¶13 The State charged Breitzman with the following five counts: (1) Physical Abuse of a Child (Intentional Causation of Bodily Harm) under Wis.Stat. § 948.03(2) (b), as to striking J.K. in the face, resulting in a bloody nose, for J.K.'s failure to wash the floor; (2) Physical Abuse of a Child (Intentional Causation of Bodily Harm) under § 948.03(2) (b), as to striking J.K. in the face, resulting in a bruise, for J.K.'s failure to prepare a meal; (3) Child Neglect (Bodily Harm) under Wis.Stat. § 948.21(1) (b), as to Breitzman's failing to seek medical care for J.K. when he was sick for a week with vomiting and diarrhea; (4) Child Neglect (Misdemeanor) under § 948.21(1)(a), as to Breitzman's locking J.K. out of the house during the winter; and (5) Disorderly Conduct under Wis.Stat. § 947.01(1), as to Breitzman's engaging in "profane conduct, under circumstances in which such conduct tended to cause a disturbance."[5] Breitzman entered pleas of not guilty and the case was set for a jury trial. At trial, the State's primary witness was J.K., Breitzman's son.

         ¶14 As to the first charge, for physical abuse, J.K. testified that he had been sweeping the floor while also trying to keep an eye on his three-year-old little sister. Breitzman wanted him to hurry up sweeping the floor, but his sister was running around the house and throwing things on the floor, in J.K.'s words, "being a three year old." Then, when Breitzman came into the room and saw that he was not sweeping "right or fast enough, " she grabbed the broom and struck him on the side of his head with her fist (she could not reach his face because he had raised his hands defensively when she grabbed the broom), telling him he never did anything right and calling him a "piece of shit" and the "dog of the house."

         ¶15 As to the second charge, also for physical abuse, J.K. testified that he could not recall the precise date on which Breitzman struck him, but he remembered clearly the bloody nose that resulted because it lasted three minutes and he had to go find something to stem the flow. He said that Breitzman had seemed angry with him when she came into his room and then struck him in the face when he would not get out of bed, calling him a "fuck face" and a "retard." When she left, he remembers crying and that he did not know what he'd done wrong.

         ¶16 As to count three, for child neglect, J.K. testified that, on or about November 18, 2012, he became very ill. He had been vomiting almost every hour and had diarrhea, both of which appeared to have blood in them. When he told Breitzman this, she said she would get him a Gatorade at the end of the week if he was still sick. He testified that he was sick like this for six-to-seven days, but when he asked Breitzman if he could go to the doctor, she refused. This prompted him to call friends and post on Facebook seeking help.

         ¶17 As to count four, also for child neglect, J.K. testified that, in the winter of 2011-2012, he could not get into the house when he got home from school because his mother had locked the doors. The weather that morning had been warmer, so he had not taken a coat with him to school; the weather grew cooler over the course of the day, however, and it was cold when he returned home at about 3:30 p.m. Finding the house locked, he testified that he knocked on the front and back doors and rang the doorbell for about three minutes to no avail. J.K. said he could tell that Breitzman was home because her car was in the driveway, but she did not come to the door so he crawled under the grill cover on the porch for shelter. He continued to ring the doorbell every fifteen minutes, but spent approximately four hours outside, huddling under the grill cover to keep from freezing.

         ¶18 As to the fifth charge, for disorderly conduct, J.K. testified that, when he got home from school on December 4, 2012, he put a bag of popcorn in the microwave, but ended up burning it and having to throw it away. When Breitzman got home about a half hour later, he was on the phone with his best friend, D.M., and, when he heard Breitzman come through the door, he hid his phone in his pocket because he was afraid she would be mad. He testified that, when she smelled the burned popcorn and saw the bag in the trash can, she sought him out and told him he always messed things up, calling him a "fuck face, " "retard, " and a "piece of shit." He defended himself by saying that he had not done it on purpose, but Breitzman persisted saying she "[didn't] give a fuck." He then asked Breitzman to stop calling him names, which she responded to by threatening to kick him out of the house. Later that night he called D.M. back crying and needing someone to talk to.

         ¶19 Over the course of J.K.'s testimony, he further testified that it was a daily occurrence to be called "retard" and "fuck face." He also testified that he had not had glasses or treatment for his lazy eye since second grade and had not been to the dentist since he was five; that there was a lock on the refrigerator at home and he could not get lunch at school because Breitzman would not complete the paperwork for free lunches; and that Breitzman struck J.K. once when they were in the car because he disagreed with her about who had taught him a song when he was younger. The latter came up during trial counsel's cross-examination:

Q You just have a problem with frequent nosebleeds?
A From what it appears. But this was after the incident when she hit me in the car and my nose was bleeding on me.
Q By the way, was she driving the car at the time?
A Yes, sir.
Q And where were you located?
A I was in the passenger's seat.
Q And so it was her attempt to slap you, she was hitting you with the back of her hand at that time?
A She hit me with the back of her hand.
Q She couldn't have hit you with the palm of her hand because there wasn't quite a way to do that, right, so she actually had to go this way?
A Yes, sir.[6]

         ¶20 The State also introduced evidence to corroborate J.K.'s testimony: J.K.'s best friend, D.M., testified that over the course of about six months, J.K. went from "always happy and nice" to "more stressed out and tired and just more sad." Specifically, when J.K. called him back on the night of December 4, 2012, he said that J.K. seemed "beat down" and that he had "never heard [J.K.] cry before." D.M. also testified that J.K. had a bruise for about a week at the time of the second allegation of abuse; J.K.'s girlfriend, A.G., also verified this.

         ¶21 J.K.'s neighbor also testified. She said she had sent over Gatorade and crackers in response to J.K.'s Facebook post about being ill-she had had some on hand because her daughter had been sick with the flu. She was also the one J.K. called looking for a place to stay when Breitzman kicked him out on December 4, 2012.

         ¶22 Additionally, the State called J.K.'s high school counselor and the West Allis detective who investigated J.K.'s claims. The counselor testified that J.K. met with him on November 29, 2012, and told him about what had been going on at home, that he was tired of being called "retarded" and a "[f]uck face" and being "smacked in the head" by his mother. J.K. then met with a detective from the West Allis Police Department on December 11, 2012. In investigating J.K.'s claims, the detective interviewed Breitzman. The detective testified that Breitzman admitted that she called J.K. names, slapped and backhanded J.K., and did not allow J.K. to have a key to the house.

         ¶23 Breitzman's general defense to these allegations and charges was that J.K. was lying and that he was a rebellious and irresponsible teenager. She attributed this behavior to the fact that his father had rejected him and that J.K. had a new girlfriend.[7] Specifically, as to counts one and two, Breitzman denied striking J.K., and said that the bruise had been the result of him dropping a dumbbell on his face. As to count three, Breitzman testified that J.K. was not sick for a week, that she told him there were crackers and Gatorade available, and that the redness in his vomit and diarrhea was fruit punch Gatorade, not blood. As to count four, Breitzman confirmed that she knew what time J.K. got home from school, that she had locked the doors to the house, that she did not let J.K. have a key, and that she chose to take a nap at that time; but she defended her actions by pointing out that there were any number of businesses close by where J.K. could have gone to wait. As to count five, Breitzman said that her conduct was justified because J.K. had scorched the microwave when he burned the popcorn and he "was belligerent with [her]."

         ¶24 Breitzman further testified that she did call J.K. "retarded, " a "piece of shit, " and a "fuck face, " but not regularly;[8] that she did not get J.K. glasses because she did not have insurance and because he would not wear them when he did have them; that J.K. did not have lunch because he could not remember to bring home the form and did not make his own lunch, and that J.K. always had the code to the lock on the refrigerator, which was just in place to make him think before eating; and that she did strike J.K. in the uncharged incident in the car. Breitzman also testified that she would generally discipline J.K. by grounding him or by taking away phone and/or video game privileges, but would resort to physical violence if she thought he was lying to her, talking back, being belligerent, or if he did not check in when he was out. She testified that she never struck him just to hurt him. In short, Breitzman's defense was that J.K. could not be believed, and that, as a single parent, she "did what [she] thought [she] had to do."

         ¶25 At trial, the testimony was bookended by attorneys' arguments. As pertains to the ineffective assistance of counsel issue presented here, Breitzman's trial counsel argued in his opening remarks as follows:

[W]hat's really at the base of this is the question of the instructions that the Court gives you, have any of these been met or not? You will also be getting later on an instruction which is very important to this case, and it is going to be very important when you get to the defense case, and that is the question of reasonable parental discipline privilege, it's a jury instruction, number 950, 950, that's very important because this is eventually what this comes down to. . . .
Was she intentionally trying to inflict pain beyond the right of a parent to inflict pain and, yes, read chapter or read Jury Instruction 950 when you get it, it actually refers to a parent's right to inflict, that means cause pain, and we know you can cause pain a million ways. You can slap someone if they are disrespectful to you. You can smack someone hard on the back of their butt. You can hit them on the side of their head. . . . You are going to have a couple of days of evidence to consider as to whether my client is a criminal or just a struggling parent, and I believe the evidence will show that she is not a criminal . . . .[9]

         As is general practice, the circuit court instructed the jury that attorney arguments are not evidence:

Remarks of the attorneys are not evidence. If the remarks suggested facts not in evidence, disregard the suggestion.
Consider carefully closing arguments of the attorneys but their arguments and conclusions and opinions are not evidence.

         ¶26 On May 23, 2014, the jury convicted Breitzman of all five counts. After the verdict, the circuit court entered the judgments of conviction.

         ¶27 On February 6, 2015, Breitzman filed a postconviction motion, seeking judgments of acquittal for counts three, four, and five. For all three, she argued that there was insufficient evidence to support a conviction. Additionally, she argued that defense counsel at trial had been ineffective because he failed to move for dismissal of count five for disorderly conduct on free speech grounds, pursued a defense theory of reasonable parental discipline in opening remarks that was inconsistent with Breitzman's plan to deny striking J.K., and failed to object to testimony regarding other-acts evidence. On May 29, 2015, the circuit court held a Machner hearing on the motion, at which both trial counsel and Breitzman testified.

         ¶28 As to his failure to challenge the disorderly conduct charge on free speech grounds, trial counsel testified that he had contemplated moving to dismiss count five for disorderly conduct on free speech grounds, but decided not to because it was "too shallow and there wasn't enough guts to it."

         ¶29 As to his assertion of the reasonable parental discipline theory of defense, Breitzman's trial counsel testified as follows:

Q Prior to the commencement of the actual jury trial, you asked for the Court to include within the opening statements the reasonable discipline defense; isn't that true?
A ... yes.
Q Why did you ask for that?
A Because it was the only major defense position I believed we could take, regardless of all the charges, because jurors . . . [are] really trying to decide which side is telling the truth in the end . . . and the major morality of this case was whether he had a struggling mother doing the best she could or whether we had a mother engaged in abuse ....
That's why I included the recommendation originally, and the client saw the wisdom of it. . . .[10]

         ¶30 As to his failure to object to other-acts evidence, Breitzman's trial counsel further testified as follows:

Q Was there a reason why you did not file a motion in limine pretrial to preclude any reference to these other allegations of her bad behavior?
A The heart of her defense was that she had a rebellious child. She was a single mom with very limited economic resources. She had another child she had to take care of. She had had a very difficult set of circumstances she was dealing with. She had loved her son and had had a good relationship with him until a point in time, a year or two before where he suddenly became rebellious, which she ...

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