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State v. Bell

Supreme Court of Wisconsin

April 10, 2018

State of Wisconsin, Plaintiff-Respondent,
Gerrod R. Bell, Defendant-Appellant-Petitioner.

          ORAL ARGUMENT: October 23, 2017

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 373 Wis.2d 310, 895 N.W.2d 104 (2017 - Unpublished)

          Circuit Court Monroe County Michael J. Rosborough Judge

          For the defendant-appellant-petitioner, there were briefs filed by and an oral argument by Suzanne L. Hagopian, assistant state public defender.

          For the plaintiff-respondent, there was a brief filed by Daniel J. O'Brien, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Daniel J. O 'Brien.

          ROGGENSACK, C.J. withdrew from participation. ABRAHAMSON, J. did not participate.

          DANIEL KELLY, J.

         ¶1 Gerrod Bell says he is entitled to a new trial because the first one, which resulted in convictions for the sexual assault of two victims, was unfair-a violation of his due process rights. He believes it was unfair because the State told the jurors they could not find him not guilty unless they thought the victims lied about the sexual assaults, and that they should not disbelieve the victims because there was no motive for them to lie. This, he says, shifted the burden of proof and distorted the jury's credibility determinations. He also claims the jury based its verdict, at least in part, on inadmissible evidence contained in two exhibits sent to the jury room during deliberations. We conclude that Mr. Bell is not entitled to a new trial and affirm the decision of the court of appeals.[1]

         I. BACKGROUND

         ¶2 The State charged Mr. Bell with sexually assaulting two victims-T.P., who was fourteen years of age at the time, and her older sister, A.L., who was then seventeen. The incidents came to light when, in August of 2001, T.P.'s mother reported to Sergeant Dale Stickney of the Sparta Police Department that Mr. Bell, a family friend, had sexually assaulted T.P. in the backyard of T.P.'s home after a birthday party for A.L.

         ¶3 Detective LaVern Erickson and a social worker met with T.P. to interview her about the incident. Subsequently, Detective Erickson questioned A.L. about her sister's sexual assault. In the course of that interview, A.L. revealed to Detective Erickson that she had herself been the victim of three sexual assaults by Mr. Bell, all of which had occurred around the time of the incident with T.P.[2] Approximately five months after reporting these incidents, A.L. further disclosed that Mr. Bell had also sexually assaulted her in the bathroom of her mother's home in early July 2001-prior to the incidents she had previously reported and prior to the sexual assault of T.P. Of the four incidents, only the one occurring in the bathroom involved sexual intercourse.

         ¶4 The State initiated two cases against Mr. Bell, one for each of the victims, but joined them for trial.[3] With respect to T.P., the State charged Mr. Bell with one count of sexual assault as a persistent repeater contrary to Wis.Stat. §§ 940.225(2) (a) (2001-02), [4] 939.50(3) (be), and 939.62(2m) (Count 1); one count of second-degree sexual assault of a child as a persistent repeater contrary to Wis.Stat. §§ 948.02(2), 939.50 (3) (c), and 939. 62 (2m) (b) 2. (Count 2); and one count of misdemeanor bail jumping as a repeater contrary to Wis.Stat. §§ 946.49(1)(a), 939.51(3)(a), and 939.62(1)(a) (Count 3). With respect to A.L., the State charged Mr. Bell with two counts of sexual assault as a persistent repeater contrary to Wis.Stat. §§ 940.225 (2) (a), 939.50 (3) (be), and 939.62(2m) (Counts 1 and 2);[5] and two counts of attempted second degree sexual assault as a persistent repeater contrary to Wis.Stat. §§ 940.225(2) (a), 939.50(3) (be), and 939.62(1) (c) (Counts 3 and 4). Before submitting the case to the jury, the circuit court dismissed Count 3 for lack of sufficient evidence, and then dismissed Count 4 at the State's request.

         ¶5 During deliberations, the jury requested that certain documents be delivered to it for review. Two of the documents indicated that T.P. had not had sexual intercourse until she was assaulted by Mr. Bell. Neither the prosecutor nor defense counsel asked for that information to be redacted from the exhibits.

         ¶6 The jury returned guilty verdicts on all counts submitted to it, and Mr. Bell received his sentence in due course. He then moved to vacate the judgments of conviction and requested a new trial pursuant to Wis.Stat. § (Rule) 809.30(2)(h) (2015-16)[6] on July 13, 2015.[7] His motion claimed he did not receive a fair trial because: (1) the prosecutor's comments regarding motive and evidence of lying during closing argument shifted the burden of proof; and (2) the jury was allowed to view two inadmissible exhibits during deliberation.[8]As to his first argument, Mr. Bell argued he was entitled to relief based on the plain error doctrine or ineffective assistance of counsel, and as to his second argument, he sought relief based on the interests of justice or ineffective assistance of counsel. The circuit court conducted a Machner[9]hearing at which trial counsel testified. The court denied the motion because it concluded the trial was free from harmful error. The court of appeals affirmed, and we granted Mr. Bell's petition for review.


         ¶7 Mr. Bell asks us to review the State's trial commentary under the plain error doctrine or, alternatively, for a determination that he received ineffective assistance of counsel. With respect to his attorney's failure to request redaction of the exhibits sent to the jury room, he asks us to determine only whether he received ineffective assistance of counsel.

         ¶8 The "plain error" Mr. Bell claims is at issue is a violation of his due process rights, which is a question of law we review de novo. State v. Burns, 2011 WI 22, ¶23, 332 Wis.2d 730, 798 N.W.2d 166. However, we will not remedy errors under this doctrine unless they are "obvious and substantial[, ]" and "so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time." State v. Jorgensen, 2008 WI 60, ¶21, 310 Wis.2d 138, 754 N.W.2d 77 (citation and internal marks omitted).

         ¶9 A claim of ineffective assistance of counsel presents a mixed question of fact and law. State v. Tourville, 2016 WI 17, ¶16, 367 Wis.2d 285, 876 N.W.2d 735. We will not reverse the circuit court's findings of fact unless they are clearly erroneous. Id. We independently review, as a matter of law, whether those facts demonstrate ineffective assistance of counsel. Id.


         ¶10 Mr. Bell says his right to a fair trial was violated by: (1) the State's trial commentary, which he believes improperly shifted the burden of proof to him; and (2) the jury's review of certain unredacted documents during deliberations. We will address each issue in turn.

A. The State's Trial Commentary[10]

¶11 The essence of Mr. Bell's argument is that the State impermissibly shifted the burden of proof by framing this case as a binary proposition: The jury must convict him if it believes the victims, and may find him not guilty only if it does not.[11] Mr. Bell maintains there are other reasons the jury legitimately could have chosen to acquit him, and so the State's commentary misstated the law.[12] Because the defense did not move for a mistrial on that basis, this alleged error was not preserved for appellate review.[13] Mr. Bell says we should nonetheless reach and decide this issue under our "plain error" doctrine, or conclude that the failure to request a mistrial deprived him of the effective assistance of counsel during the trial.

         ¶12 The "plain error" doctrine allows us to review errors even when they were not properly preserved at trial. State v. Mayo, 2007 WI 78, ¶29, 301 Wis.2d 642, 734 N.W.2d 115; see also Wis. Stat. § 901.03(4) (2015-16) ("Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge."). To qualify for this doctrine's application, however, the error "must be 'obvious and substantial[, ]'" and "'so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.'" Jorgensen, 310 Wis.2d 138, ¶21 (citation and one set of marks omitted). We employ this doctrine sparingly. Id.

         ¶13 We can also address unpreserved claims of error if the error is of such a nature that it deprived the defendant of "the effective assistance of counsel." See Strickland v. Washington, 466 U.S. 668, 686 (1984). If the failure to move for a mistrial based on the State's trial commentary comprised deficient performance, and that deficiency was prejudicial, Mr. Bell would be entitled to a new trial. See id. at 687; State v. Pitsch, 124 Wis.2d 628, 633, 369 N.W.2d 711 (1985).

         ¶14 There can be neither a deficiency nor plain error, however, unless the State's trial commentary was improper. Therefore, whether we analyze this case under the "plain error" doctrine or as an ineffective assistance of counsel claim, our first step is to determine whether the State's trial commentary was improper. If it was, our analysis would then turn to whether counsel's failure to request a mistrial: (1) was an error so obvious, substantial, and fundamental that a new trial is necessary; or (2) comprised deficient and prejudicial performance.

         ¶15 We begin with the fundamental tenet that Mr. Bell is guaranteed the right to due process of law. See U.S. Const, amend. XIV, § 1 ("No State shall . . . deprive any person of life, liberty, or property, without due process of law . . . ."); Wis. Const, art. I, § 8 ("No person may be held to answer for a criminal offense without due process of law . . . .") . This guaranty extends to the State's comments during trial: "When a defendant alleges that a prosecutor's statements and arguments constituted misconduct, the test applied is whether the statements ' so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Mayo, 301 Wis.2d 642, ¶43 (quoting State v. Davidson, 2000 WI 91, ¶88, 236 Wis.2d 537, 613 N.W.2d 606');">613 N.W.2d 606) (some internal marks omitted); see also Darden v. Wainwright, 477 U.S. 168, 181 (1986) (same).

         ¶16 These due process considerations do not, however, prevent the State from energetically pressing its case. The State's attorney is free to "prosecute with earnestness and vigor-indeed, he should do so." Berger v. United States, 295 U.S. 78, 88 (1935) . But in conducting a trial, he must keep in mind that he represents "a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Id. For that reason, "while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Id.

         ¶17 Mr. Bell says the State struck foul blows in his trial, the result of which was that he bore the burden of proving to the jury he was not guilty-a burden that does not belong to him. The burden to prove guilt beyond a reasonable doubt belongs to the State. Barrera v. State, 109 Wis.2d 324, 329, 325 N.W.2d 722 (1982) (citing In re Winship, 397 U.S. 358 (1970)) ("The state bears the burden of proving all elements of a crime beyond reasonable doubt."); see also State v. Kuntz, 160 Wis.2d 722, 736, 467 N.W.2d 531 (1991) ("It is axiomatic that the State must prove all the elements of a crime beyond a reasonable doubt to convict a defendant."). Specifically, Mr. Bell says the State's comments throughout trial (including its closing argument) required the jury to convict him unless he could prove the victims lied about the sexual assaults and prevented the jury from questioning the victims' veracity unless it could divine a reason for them to lie.

         ¶18 We cannot, of course, look at the State's comments in isolation. We must examine them in the context of the entirety of the trial-including the nature of the defense Mr. Bell presented. It is fair to say that in evaluating Mr. Bell's claim, context is everything.

1. The Trial

         ¶19 To provide the proper context, we will recount, at length, the relevant parts of the trial proceedings. The purpose for doing so is to compare the State's commentary against the relevant facts and law. Our analysis will inquire into whether there is such a meaningful discrepancy between the two that it could have caused the jury to convict Mr. Bell without finding him guilty beyond a reasonable doubt. Mr. Bell says the State's improper commentary started with the examination of potential jurors, so we will begin there.

a. Voir Dire

         ¶20 The prosecutor introduced the idea that people generally don't lie without reason early in the proceedings. He queried the prospective jurors closely on the truthfulness of teenagers and the reasons they might lie. For example, he asked if any of the prospective jurors had "ever known a teenager to lie[, ]" whether anyone had "ever not known a teenager to have lied[, ]" and "what are some of the typical things you might expect a teenager to lie about?". After hearing from prospective jurors who acknowledged that teenagers likely do lie in some circumstances but are less likely to do so in others, the prosecutor asked:

Would everybody agree here that-that, though, that if you're going to lie, you're going to have a reason like jealousy of some sort; there's going to be a reason why you would lie? Everybody agree with that? Everybody is nodding their head.

         ¶21 The prosecutor then asked "what are some reasons that a teenage girl might falsely accuse someone of sexual assault?" One juror responded that a teenage girl might lie for "attention, " another answered "[l]ack of understanding of the gravity of accusing someone, " another answered "revenge, " and one prospective juror responded that teenage girls might lie about a sexual assault if they were afraid "that they'd get in trouble with their parents for having sex in the first place if they got caught." So the State asked the prospective jurors if they would "expect there would be some evidence that somebody would have a reason to lie? There would be some sort of evidence that this person would have a reason to lie about-[.]" Two prospective jurors responded that they would expect there to be some type of evidence that the person had lied. The State cautioned the prospective jurors they would hear jury instructions telling them that they would not be allowed to speculate and that their verdict would need to be based on evidence or the lack of evidence.

         ¶22 The defense was similarly interested in the prospective jurors' impression of teenagers' truthfulness. After asking each prospective juror the ages of their children, he asked "How many people believe that a child 14 years old, 18 years old can-can lie about a sexual assault?" He then reminded the prospective jurors that the prosecutor had mentioned the concept of someone omitting certain details and asked if "anybody [has] heard of lying by omission?" He pursued this theme as he inquired into: (1) whether the jurors believed that someone might lie because she does not understand the repercussions; (2) whether someone might tell a lie and then continue telling the lie because it is too difficult to backtrack; and (3) whether someone might "lie to gain attention because they want the love and attention from that person[.]"

b. Opening Statements And Evidence Adduced at Trial

         ¶23 During his opening statement, defense counsel signaled that he would be concentrating on the victims' veracity. Part of his remarks referred to testimony that he said would establish T.P. had lied about the amount of alcohol she drank on the night of the assault, that she lied about the assaults having occurred, that A.L. had admitted prior to trial that she previously lied about how much alcohol T.P. consumed the night of the assault, and concluded by telling the jury that "the evidence will show at the end of this, that in fact . . . [T.P.] and [A.L.] did not know what the truth is."

         ¶24 Central to the State's case was the testimony of T.P. and A.L., who testified extensively and in great detail about the sexual assaults. T.P. not only recounted details of the actual assault, she also described the circumstances surrounding it. So, for example, she testified that on the day Mr. Bell sexually assaulted her, she had multiple alcoholic beverages and felt intoxicated at some point during the evening. T.P. then explained that when her mother asked her to go make sure the bonfire was out, Mr. Bell came out and sat on the picnic table with her. She then gave a moment by moment description of how Mr. Bell sexually assaulted her. She said that, afterwards, Mr. Bell demanded that she tell no one what he had done and warned her that if she did, it would happen again.

         ¶25 Mr. Bell's counsel questioned T.P. closely. Part of the cross-examination focused on potential motives for lying. So, for example, he obtained T.P.'s admission that she "ha[d]n't had the best life" and that she had received comfort and attention from her mother, and others, after reporting the assaults. He also took direct aim at her credibility, getting her to admit she had previously lied about the amount of alcohol she had consumed on the night of the assault and that-despite her earlier statements-she was, in fact, intoxicated at some point that evening. T.P. also confirmed she had previously lied regarding the extent of her knowledge about sexual matters, and defense counsel also identified other discrepancies between T.P.'s trial testimony and her previous statements.

         ¶26 A.L. provided testimony both about the evening her sister was assaulted and about her own assaults. With respect to T.P.'s assault, she said there was alcohol at her (A.L.'s) birthday party, that she (A.L.) had "a slight buzz, " and that T.P. had been drinking, too, and was "kinda tipsy." A.L. said she (A.L.) left the party at some point with Mr. Bell and three other men and that they were "getting stoned, " and she explained that after the group returned to the house around 7:00 p.m., she and one of the other men left again around midnight. When she returned shortly thereafter, she noticed a change in T.P.'s countenance and described her as seeming more sober and "off to herself."

         ¶27 A.L. also testified that she herself had been sexually assaulted by Mr. Bell on four occasions. She said three of the assaults occurred around the time Mr. Bell assaulted T.P. The fourth assault (the one she did not originally report to the police) involved sexual intercourse (unlike the other three events) . She said she did not initially report this assault along with the others because she was "ashamed to talk about" it and "didn't want to remember it." Additionally, she said Mr. Bell had threatened to do the same thing to her sister if she told anyone what had occurred.

         ¶28 During his cross-examination of A.L., Mr. Bell's counsel focused on her credibility. He questioned her about discrepancies between her trial testimony and the statements she gave to police and her preliminary hearing testimony as to what occurred on the night Mr. Bell had non-consensual sexual intercourse with her, and he also questioned A.L. about whether she had previously lied about how much alcohol she consumed on the night of T.P.'s sexual assault. A.L. confirmed she had previously lied about the amount she consumed because she was afraid of getting in trouble for drinking. A.L. also confirmed that after reporting the first three incidents involving Mr. Bell-which did not include sexual intercourse-she had lied to investigators when she told them that no other incidents had occurred. When asked whether her mother had been supportive of her after she had reported the fourth incident, A.L. confirmed that she had been and that her mother's support "was different" from what she had experienced in the past.

         ¶29 Dr. Ann Budzak, the pediatrician who examined T.P., also testified. She explained that although she performed a pelvic exam of T.P., she did not perform a forensic exam-which would include collecting specimens such as hair and semen if possible-because the exam occurred approximately five weeks after the alleged assault. Dr. Budzak further testified that based upon a reasonable degree of medical certainty, there was evidence that T.P. may have had sexual intercourse at some point because she had tolerated the pelvic exam and because there was a lack of hymenal tissue. She also testified, however, that a lack of hymenal tissue "is not specific or proof of having had a penetration experience such as sexual intercourse" and that although that was generally the most common explanation for its absence or disruption, "there are other ways hymenal tissue can be disrupted[.]"

         ¶30 Through cross-examination, defense counsel elicited that Mr. Bell had told the police he had not assaulted T.P. and A.L. In an attempt to bolster the credibility of this statement, defense counsel called Sergeant Stickney as a witness to recount Mr. Bell's offer to undergo a Computer Voice Stress Analysis. According to Sergeant Stickney, measuring the stress in an individual's voice can help in determining whether the person is telling the truth. However, Sergeant Stickney never followed up on Mr. Bell's offer to take the test. Defense counsel also attacked A.L.'s credibility by calling a private investigator to explain how the physical layout of the bathroom where A.L. said she had been sexually assaulted contradicted her testimony.

         c. Jury Instructions

¶31 Prior to closing arguments, the circuit court instructed the jury, in relevant part, as follows:

Consider only the evidence received during this trial and the law as given to you by these instructions and from these alone, guided by your soundest reason and best judgment, reach your verdict.
The burden of establishing every fact necessary to constitute guilt is upon the State. Before you can return a verdict of guilty, the evidence must satisfy you beyond a reasonable doubt that the defendant is guilty.
If you can reconcile the evidence upon any reasonable hypothesis consistent with the defendant's innocence, you should do so and return a verdict of not guilty.
The term "reasonable doubt" means a doubt based upon reason and common sense. It is doubt for which a reason can be given, arising from a fair and rational consideration of the evidence or lack of evidence. It means such a doubt as would cause a person of ordinary prudence to pause or hesitate when called upon to act in the most important affairs of life.
A reasonable doubt is not a doubt which is based on mere guesswork or speculation. A doubt which arises merely from sympathy or from fear to return a verdict of guilt is not a reasonable doubt. A reasonable doubt is not a doubt such as may be used to escape the responsibility of a decision.
While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt. You are to search for the truth.

         ¶32 The court defined evidence as: (1) "the sworn testimony of witnesses, both on direct and cross-examination"; (2) "exhibits the court has received"; and (3) "any facts to which the lawyers have agreed or stipulated or which the court has directed you to find." The court emphasized that the "[r]emarks of the attorneys are not evidence" and that while the jury should "[c]onsider carefully" the closing arguments, the attorneys' "arguments and conclusions and opinions are not evidence."

         ¶33 The court also identified the various factors the jury should consider in determining a witness's credibility and the weight to give the witness's testimony. Among the factors the court identified were "possible motives for falsifying testimony" and "all other facts and circumstances during the trial which tend to either support or to discredit the testimony." In doing so, the court instructed the jury to use "your common sense and experience. In everyday life you determine for yourselves the reliability of things people say to you. You should do the same thing here."

         d. Closing Arguments

         ¶34 As the prosecutor commenced his closing argument, he reminded the jurors of the instructions they had just heard. He then reprised the theme of his case: The jury shouldn't return a verdict of "not guilty" unless it believed T.P. and A.L. had lied:

I think it's interesting to start from this point of view. What must we believe, what things must we believe for the defendant to be not guilty? After hearing all the evidence that we've heard, what are the ...

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