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State v. Pico

Supreme Court of Wisconsin

June 15, 2018

State of Wisconsin, Plaintiff-Appellant,
v.
Anthony R. Pico, Defendant-Respondent-Petitioner.

          SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 19, 2018

          Circuit Court Waukesha County L.C. No. 2012CF547 Michael O. Bohren, Judge

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 376 Wis.2d 524, 900 N.W.2d 343

          For the defendant-respondent-petitioner, there were briefs filed by Tracey A. Wood, Sarah M. Schmeiser, and Tracey Wood & Associates, Madison. There was an oral argument by Anthony Cotton.

          For the plaintiff-appellant, there was a brief filed by Sarah L. Burgundy, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Sarah L. Burgundy.

          An amicus curiae brief was filed on behalf of Wisconsin Association of Criminal Defense Lawyers by Robert R. Henak and Henak Law Office, S.C., Milwaukee.

          DANIEL KELLY, J.

         ¶1 A jury convicted Anthony R. Pico of sexually assaulting a young girl.[1] Mr. Pico believes there is a reasonable probability that, absent his trial counsel's alleged constitutional ineffectiveness, this conviction would not have occurred. The circuit court agreed, and so set aside his conviction.[2] The court of appeals did not agree, and so reinstated the conviction.[3]

         ¶2 Mr. Pico asked us to review his case because he believes the court of appeals did not properly defer to the circuit court's findings of fact when conducting the ineffective assistance of counsel analysis required by Strickland v. Washington, 466 U.S. 668 (1984) . The State, on the other hand, believes the court of appeals decided the matter correctly and that it was the circuit court that erred when it allowed an expert to testify about the reasonableness of defense counsel's representation. Finally, Mr. Pico argues that if we agree with the State, then we should send the case back to the circuit court because his sentence was improperly enhanced based on his continued assertion of innocence during the sentencing phase of this matter.

         ¶3 These arguments call on us to review the following three issues. First, whether the court of appeals improperly substituted the circuit court's findings of fact with its own when it assessed the sufficiency of trial counsel's performance. Second, whether an expert witness may testify about the reasonableness of trial counsel's performance. And third, whether the circuit court improperly relied on Mr. Pico's lack of remorse when it fashioned his sentence. With respect to the first issue, we conclude that the court of appeals conducted the Strickland analysis properly and that Mr. Pico's trial counsel performed as required by the constitution. As to the second, we hold that expert testimony at a Machner[4] hearing regarding the reasonableness of trial counsel's performance is not admissible. And finally, we hold that the circuit court did not err when it imposed sentence on Mr. Pico.

         I. BACKGROUND

         ¶4 D.T., a primary-school student, said Mr. Pico put his hand inside her pants and touched her vagina twice while he was volunteering in her classroom. She reported the incident to her mother that evening (a Friday), who in turn informed D.T.'s school the following Monday. Upon learning of the incident, D.T.'s school contacted the police.

         ¶5 Detective Andrew Rich met Mr. Pico in his home to investigate the event. During at least part of the interview, Detective Rich used what is known as the "Reid technique." This technique involves telling the interviewee that law enforcement officials have certain incriminating evidence (which they do not, in fact, have), in the hope that the interviewee will disclose factually accurate details about the event in question. For example, while discussing the event with Mr. Pico (and without identifying D.T. as the victim), Detective Rich told Mr. Pico that there were video cameras in the classroom, that male DNA had been found on the victim's clothing in the area she said she was touched, and that another student had "partially substantiated" the complainant's allegation. None of that was true, but when asked if any of this made sense to him, Mr. Pico stated "[y]eah, I remember." Mr. Pico then provided D.T.'s name and described how he "tickled" and massaged her leg. Further questioning resulted in Mr. Pico's acknowledgement that, in the course of this behavior, he had moved his hand under her pants, but claimed it was inadvertent. Detective Rich accused Mr. Pico of putting his hand down D.T.'s pants twice and that he had done so "intentionally rather than just by mistake." Mr. Pico responded "I don't know. I don't-I don't recall ever doing it the second time, but it shouldn't have happened the first time, right." And when Detective Rich suggested that, "[o]nce you walked out of that class I bet you were-well, you were probably just sick to your stomach, " Mr. Pico responded "Yes."

         ¶6 The State charged Mr. Pico with one count of first-degree sexual assault of D.T., contrary to Wis.Stat. §§ 948.02(1) (e) and 939.50(3) (b) (2011-12).[5] The case went to trial, following which the jury found Mr. Pico guilty as charged. He received his sentence in due course, during which the circuit court commented on Mr. Pico's lack of remorse:

What I mean when I say that is acknowledging your conduct ... I will consider whether or not you demonstrate remorse as a part of my sentence.
I'm offended that you don't have the courage to recognize, and don't give me a half story of I touched her but not enough, I didn't touch her in the way she said. I don't accept it, Mr. Pico. That's half a loaf.

         ¶7 Mr. Pico filed a postconviction motion seeking a new trial and resentencing, asserting that his trial counsel provided constitutionally-inadequate assistance because, inter alia, he failed to investigate an old brain trauma. Twenty years before these events, Mr. Pico had suffered a motorcycle accident that resulted in an injury to the frontal lobe of his brain. The injury caused Mr. Pico to experience double vision, for which he still wears an eyepatch. The eyepatch, Mr. Pico says, should have alerted trial counsel to the need to investigate his mental capacity. That investigation, he claims, would have led to his medical records, and the records would have caused a reasonable attorney to suggest to his client that he may wish to consider a plea of not guilty by reason of mental disease or defect.[6] Mr. Pico believes the records also would have provided support for a motion to suppress the statements he made to Detective Rich because the injury left him unusually susceptible to the "Reid technique" Detective Rich had used.

         ¶8 Mr. Pico's motion also claimed his counsel was ineffective because of several alleged errors during the course of his trial. He says his trial counsel should have presented an expert to establish that the "Reid technique" can produce false confessions. Additionally, he faults his counsel for not presenting an expert witness in response to Ms. Sarah Flayter, a child advocacy interviewer, who testified for the State about her forensic interview of D.T. He also believes his counsel should have objected to some of Detective Rich's trial testimony, as well as to some of the statements Detective Rich made during Mr. Pico's recorded interview, which were played for the jury. Further, he faulted trial counsel for not introducing evidence that D.T. had just learned about "good touches" and "bad touches" in school. And finally, he thinks his counsel should have called Mr. Pico's wife as a witness to explain that their daughter has a sensory disorder and that they have learned that massaging her leg calms her.

         ¶9 The postconviction motion's final assignment of error relates to the alleged enhancement of Mr. Pico's sentence for failing to show remorse. He did not show remorse, Mr. Pico says, because he is innocent of the crime for which he was convicted. Increasing the sentence of a defendant who does not demonstrate remorse because he maintains his innocence, he argues, comprises punishment for exercising his right to remain silent.[7]

         ¶10 The circuit court conducted a Machner hearing at which it received testimony from several witnesses, including Mr. Pico's trial counsel and an attorney who testified about the reasonableness of trial counsel's representation. The circuit court concluded that Mr. Pico's counsel had performed deficiently and, although none of the errors standing alone prejudiced Mr. Pico, the cumulative effect was to deny him the effective assistance of counsel. Consequently, the court vacated the conviction.

         ¶11 The State appealed, arguing that Mr. Pico's counsel had not provided ineffective assistance. The State also asserted it was improper for the defendant to introduce expert testimony on the reasonableness of defense counsel's performance for purposes of the Strickland analysis. The court of appeals reversed the circuit court and reinstated Mr. Pico's conviction because it determined that trial counsel's representation was not deficient. However, it did not address the Strickland expert testimony question, nor did it address Mr. Pico's sentencing claim because he did not raise the issue in a cross-appeal .

         ¶12 We granted Mr. Pico's petition for review, and now affirm.

         II. STANDARD OF REVIEW

         ¶13 An ineffective assistance of counsel claim 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. "Findings of fact include 'the circumstances of the case and the counsel's conduct and strategy.'" State v. Thiel, 2003 WI 111, ¶21, 264 Wis.2d 571, 665 N.W.2d 305 (citation omitted). We independently review, as a matter of law, whether those facts demonstrate ineffective assistance of counsel. Id.

         ¶14 The imposition of a criminal sentence involves the circuit court's exercise of discretion. We apply the "erroneous exercise of discretion" standard in reviewing such decisions. State v. Loomis, 2016 WI 68, ¶30, 371 Wis.2d 235, 881 N.W.2d 749 ("'This court reviews sentencing decisions under the erroneous exercise of discretion standard.'" (citation omitted)). "An erroneous exercise of discretion occurs when a circuit court imposes a sentence 'without the underpinnings of an explained judicial reasoning process.'" Id. (citation omitted).

         ¶15 "Whether to admit proffered expert testimony rests in the circuit court's discretion." State v. LaCount, 2008 WI 59, ¶15, 310 Wis.2d 85, 750 N.W.2d 780 (internal quotation marks omitted) (quoting State v. Shomberg, 2006 WI 9, ¶10, 288 Wis.2d 1, 709 N.W.2d 370) . "[O]ur review of a circuit court's use of its discretion is deferential, and we apply the erroneous exercise of discretion standard." LaCount, 310 Wis.2d 85, ¶15. We will not overturn the circuit court's exercise of discretion so long as the decision "had 'a reasonable basis, ' and if the decision was made 'in accordance with accepted legal standards and in accordance with the facts of record.'" Id. (citation omitted). We may also "search the record for reasons to sustain the circuit court's exercise of discretion." Id.

         III. ANALYSIS

         ¶16 We begin our analysis with Mr. Pico's argument that the court of appeals supplanted the circuit court's role as the finder of fact in the Machner hearing. We then consider the admissibility of expert testimony regarding the reasonableness of defense counsel's performance. Finally, we address Mr. Pico's argument that the circuit court imposed a harsher sentence on him because he refused to admit his guilt.

         A. Ineffective Assistance of Counsel

         ¶17 We review Mr. Pico's ineffective assistance of counsel claim because he says the court of appeals did not properly distinguish between findings of fact and conclusions of law when it conducted the Strickland analysis. Specifically, he says that the court of appeals "disagreed with every one of [the circuit court's] findings and substituted its own findings of fact and weight to be placed on the evidence." Of the many reasons Mr. Pico believes his counsel was constitutionally ineffective, the most significant is his insistence that trial counsel should have explored Mr. Pico's mental capacity further than he did. We will address this assignment of error in some detail as a means of exploring the method by which the court of appeals reviewed the circuit court's decision. Then we will consider whether the court of appeals deviated from that methodology as it addressed the remaining claims of defective performance.

         ¶18 The "effective assistance of counsel" is a right vouchsafed to every criminal defendant by the Sixth Amendment to the United States Constitution.[8] Strickland, 466 U.S. at 686. A defendant is denied that right when his counsel performs deficiently, and the deficiency prejudices his trial. See State v. Pitsch, 124 Wis.2d 628, 633, 369 N.W.2d 711 (1985); see also Strickland, 466 U.S. at 687.

         ¶19 The first prong of the Strickland analysis requires us to compare counsel's performance to the "wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Only if his conduct falls outside that objectively reasonable range will we conclude that counsel performed deficiently. Thiel, 264 Wis.2d 571, ¶19. "The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Harrington v. Richter, 562 U.S. 86, 88 (2011) . We presume that counsel's assistance fell within that range. Strickland, 466 U.S. at 689 ("[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .") .

         ¶20 To show prejudice (the second prong), a defendant must establish "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Pitsch, 124 Wis.2d at 642 (quoting Strickland, 466 U.S. at 694) . "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A lack of confidence arises when "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting Strickland, 466 U.S. at 687) . The court need not address this prong if the petitioner fails to satisfy the first prong. Strickland, 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one."); State v. Carter, 2010 WI 40, ¶21, 324 Wis.2d 640, 782 N.W.2d 695 ("to succeed on [a] claim of ineffective assistance of counsel, [the defendant] must satisfy both prongs of the Strickland test.").

         1. Trial Counsel's Duty to Investigate

         ¶21 Mr. Pico says his eyepatch, along with his confusion during his interview with Detective Rich, should have caused trial counsel to investigate his mental capacity. If he had done so, Mr. Pico argues, his counsel would have discovered the significance of his head injury, which would have, in turn, caused counsel to suspect it may have compromised his mental capacity. Mr. Pico believes his compromised condition may have prevented him from forming the intent necessary to support a criminal conviction. If trial counsel had known this, Mr. Pico concludes, his counsel would have advised him on the possibility of entering a plea of not guilty by reason of mental disease or defect. Mr. Pico also says his injury makes him unusually susceptible to suggestion. Therefore, even if a plea of not guilty by reason of mental disease or defect had not been appropriate, this information could have provided support for a motion to suppress the statements he made to Detective Rich. Without the investigation, however, neither of these strategic options were available.

         ¶22 The duty to investigate is certainly one of the components of effective representation. "Counsel must either reasonably investigate the law and facts or make a reasonable strategic decision that makes any further investigation unnecessary." State v. Domke, 2011 WI 95, ¶41, 337 Wis.2d 268, 805 N.W.2d 364. We review the reasonableness of trial counsel's decisions not with the benefit of hindsight, but in the context of the circumstances as they existed at the time he made his decisions. "We must consider the law and the facts as they existed when trial counsel's conduct occurred." State v. Felton, 110 Wis.2d 485, 502-03, 329 N.W.2d 161 (1983) (emphasis added); see also Strickland, 466 U.S. at 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."). So we examine the circumstances as if we were encountering them just as trial counsel did, making every effort to ensure our knowledge of the present does not affect how we assess what was known to him at the time. Therefore, we begin with a precis of pre-trial facts.

         ¶23 Mr. Pico's counsel acknowledged that he had been aware of Mr. Pico's head injury since his first meeting with him. He said the intake process for new clients includes a discussion of the client's medical conditions and diagnosis. During this process, he asked Mr. Pico about his eye patch. Mr. Pico described his motorcycle accident and head injury, but indicated he had recovered. His counsel said he subsequently discussed this injury with both Mr. Pico and his family. No one mentioned any lingering effects of the accident (other than the double vision), nor did anyone say it had affected Mr. Pico's behavior. To the contrary, Mr. Pico's family described him as a great father and a well-adjusted individual who was productively involved in his community. Trial counsel observed nothing about Mr. Pico's conduct to call any of those characterizations into question.

         ¶24 Mr. Pico now claims his confusion and nervousness during the interview with Detective Rich should have been enough to inform his counsel that his mental capacity was questionable. Trial counsel witnessed that behavior when he reviewed the recorded interview, and he discussed it with Mr. Pico. But Mr. Pico did not connect his conduct to his head injury. Instead, he said that when Detective Rich arrived at his home, he was confused because he thought perhaps one of his children might have been involved in an emergency situation. So trial counsel attributed Mr. Pico's confusion and nervousness to the surprising nature of Detective Rich's visit and the fact that he was being questioned about a very serious crime.[9]

         ¶25 At the Machner hearing, Mr. Pico presented Dr. Horace Capote, a neuropsychiatrist, to explain the significance of the head trauma he had suffered in the motorcycle accident. Dr. Capote said Mr. Pico's records reflect that he had been diagnosed with "frontal lobe syndrome, " the symptoms of which include deficits in cognitive, emotional, and behavioral functioning. Mrs. Pico testified at the Machner hearing that Mr. Pico shuts down when faced with frustration, that he often tells the same long, boring stories, that he avoids confrontation, and that he often gives in to what others want. Dr. Capote said this is consistent with frontal lobe syndrome.

         ¶26 Mr. Pico's post-hoc explanations about the seriousness of his head injury, however, miss the point. An investigation into a client's mental capacity is unwarranted unless the information known before trial suggests the need for such an exploration. Mr. Pico's presentation at the Machner hearing did not provide the type of information necessary for the court to assess the reasonableness of trial counsel's decision not to pursue that investigation. His expert, Dr. Capote, never examined him. Instead, he based his testimony on a review of 20-year-old records. Therefore, Dr. Capote could offer no opinion about whether behavior contemporaneous with Mr. Pico's criminal charge could have informed a reasonable attorney of the need to investigate his client's mental capacity. Had the information presented by Dr. Capote been known to Mr. Pico's counsel prior to trial, it may have been enough to require him to further investigate Mr. Pico's mental capacity. But the important point here is that it was not known to counsel before trial. If we were to apply that information retrospectively to evaluate counsel's pre-trial strategic decisions, we would be doing exactly what Strickland prohibits, to wit, evaluating counsel's performance with the "distorting effects of hindsight[.]" Strickland, 466 U.S. at 689.

         ¶27 The information available to Mr. Pico's counsel before trial was much more limited than what Mr. Pico presented at the Machner hearing. He knew that Mr. Pico experienced double vision as the result of a motorcycle accident, and that he was flustered when questioned by the police about a very serious crime. Mr. Pico expects these two facts to carry more weight than they can bear. "In evaluating counsel's decision not to investigate, this court must assess the decision's reasonableness in light of 'all the circumstances, ' 'applying a heavy measure of deference to counsel's judgments.'" Carter, 324 Wis.2d 640, ¶23 (quoting Strickland, 466 U.S. at 691) . Double vision and nervousness during a police interview, alone, are insufficient to suggest there may be a need to investigate the defendant's mental capacity. There is nothing in the record suggesting double vision interferes with (or impacts or affects or alters) mental capacity. And nervousness under these circumstances could be the result of any number of factors that have nothing to do with a brain injury.

         ¶28 Accordingly, we conclude that trial counsel's decision not to further investigate Mr. Pico's mental capacity was reasonable and fell within the "wide range of professionally competent assistance." Strickland, 466 U.S. at 690. In the absence of the investigation, there was no basis for Mr. Pico's attorney to counsel Mr. Pico on the advisability of a plea of not guilty by reason of mental disease or defect. Nor was there a basis for a motion to suppress the statements Mr. Pico made to Detective Rich. This necessarily means trial counsel could not have performed deficiently with respect to those topics because an attorney does not perform deficiently when he chooses not to pursue tactics that lack factual or legal support. See State v. Cameron, 2016 WI.App. 54, ¶27, 370 Wis.2d 661, 885 N.W.2d 611 ("It is not deficient performance for counsel not to make a pointless objection."); see also State v. Jacobsen, 2014 WI.App. 13, ¶49, 352 Wis.2d 409, 842 N.W.2d 365 ("An attorney does not perform deficiently by failing to make a losing argument."); State v. Swinson, 2003 WI.App. 45, ¶59, 261 Wis.2d 633, 660 N.W.2d 12 ("Trial counsel's failure to bring a meritless motion does not constitute deficient performance."); State v. Toliver, 187 Wis.2d 346, 360, 523 N.W.2d 113 (Ct. App. 1994) ("[Defendant] has failed to show that trial counsel's performance was deficient and thus, we determine his ineffective assistance of counsel claim is meritless.").

         ¶29 We arrive at the same conclusion as the court of appeals with respect to trial counsel's duty to investigate. But more importantly for the issue at hand, we see no error in the court of appeals' methodology in reaching that conclusion.

         ¶30 As we conducted each step of our analysis, we kept careful watch for any of the circuit court's factual findings that would impede or contradict our (or the court of appeals') reasoning. We identified only one (more about that in a moment) . In all other instances, Mr. Pico's claim that the court of appeals simply ignored the circuit court's findings of fact in favor of its own is unsupported by the record. Instead, his argument indicates he mistook the circuit court's conclusions of law for findings of fact. Thus, he says the circuit court "found" that his counsel should have investigated his injury because it would have a significant effect on his case, so he concluded the court of appeals improperly rejected that "finding" when it concluded no such investigation was necessary. Similarly, he says the court of appeals "found because there was no proof the family or Pico told [his counsel] about the significance of the brain damage, he had no duty to investigate or raise the issue in any way." Further, he argues the court of appeals "disregarded the [circuit court's] factual finding that the attorney decided not to investigate, and that deficiency led to the conviction."

         ¶31 A court's factual findings address the "who, what, when, and where" of a case.[10] In the specific context of an ineffective assistance of counsel claim, "[f]indings of fact include 'the circumstances of the case and the counsel's conduct and strategy.'" Thiel, 264 Wis.2d 571, ¶21 (citation omitted). The court of appeals is duty-bound to defer to those factual findings unless they are clearly erroneous.

         ¶32 Thiel's reference to "counsel's conduct and strategy, " however, does not encompass the wisdom or constitutional sufficiency of that conduct or strategy. Thiel contemplates a simple accounting of historical events: What did counsel do, and what strategy did he employ? Whether the factual description of counsel's strategy and conduct add up to deficient performance is a question of law that is subject to de novo review. "The questions of whether counsel's behavior was deficient and whether it was prejudicial to the defendant are questions of law, and we do not give deference to the decision of the circuit court." Pitsch, 124 Wis.2d at 634; see also State v. Knight, 168 Wis.2d 509, 514 n.2, 484 N.W.2d 540 (1992) ("The final determination of whether ...


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