ARGUMENT: October 23, 2017
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310, 895 N.W.2d 104 (2017 - Unpublished)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
the defendant-appellant-petitioner, there were briefs filed
by and an oral argument by Suzanne L. Hagopian, assistant
state public defender.
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.
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.
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.
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. 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
The State initiated two cases against Mr. Bell, one for each
of the victims, but joined them for trial. 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),  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); 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.
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
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) on July 13, 2015. 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.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 Machnerhearing 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.
STANDARD OF REVIEW
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.
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).
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.
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
¶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. 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. Because the defense did not move for a
mistrial on that basis, this alleged error was not preserved
for appellate review. 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 "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.
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).
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.
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).
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."
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.
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
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
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
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.
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
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
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."
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
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.
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."
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
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.
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
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.
¶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.
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."
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."
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 ...