recommended for publication in the official reports.
APPEALS from judgments and an order of the circuit court for
Milwaukee County Nos. 2015CF1502 2015CM1221 2015CM1276: M.
JOSEPH DONALD and CAROLINA STARK, Judges. Affirmed.
Kessler, P.J., Brennan and Brash, JJ.
Harvey A. Talley appeals judgments of conviction, entered on
a jury verdict, for multiple crimes related to sexual contact
with A.D., the teenage daughter of his wife. On appeal, he
challenges only the conviction for first-degree sexual
assault causing pregnancy. The charge was based on A.D.'s
allegation, which she later recanted, that in early 2014
Talley had forced her to have sexual intercourse and that he
was the father of her child, born in November 2014. Talley
also appeals the order denying his postconviction motion
after an evidentiary hearing.
At trial, A.D. testified on cross-examination by defense
counsel that she had lied to police when she said Talley
raped her and that the pregnancy in truth resulted from a
consensual sexual relationship with Talley when she was
sixteen. Talley argued in his postconviction motion that his
trial counsel rendered ineffective assistance because during
his cross-examination of A.D., when he questioned her about
her statement to the defense investigator about lying about
the rape, he failed to question her about the
reasons she gave the investigator for initially lying
and eventually telling the truth: that she initially lied
because she did not want her mother to be angry and that she
eventually told the truth because she wanted to rid herself
of guilt. Talley argued that this constituted deficient
performance and that it prejudiced him because the jury was
left to attempt to reconcile A.D.'s conflicting
statements without hearing her reasons for them.
The postconviction court conducted a Machner
hearing more than two years after the trial. There
was undisputed testimony that trial counsel had practiced
criminal law for thirty-three years and had tried hundreds of
cases. Trial counsel testified that he had no specific
recollection as to why he did not ask the questions Talley
claimed should have been asked. However, with regard to his
cross-examination of A.D., trial counsel stated,
I wasn't sure, and this is pure speculation in trying to
determine why I didn't want a reason [from A.D.] in
there, the only thing that sort of stands out, I was not sure
what [A.D.] was going to say and I didn't want to impeach
her on that, if I had to.
An objective view of the record, including trial
counsel's testimony at the Machner hearing,
supports the conclusion that experienced counsel could
reasonably have decided to elicit as much favorable testimony
from A.D. as possible and otherwise seek to avoid eliciting
answers that might require trial counsel to impeach
On that basis, we conclude that counsel's performance
"was objectively reasonable according to prevailing
professional norms." See State v. Kimbrough,
2001 WI.App. 138, ¶31, 246 Wis.2d 648, 630 N.W.2d 752.
Because Talley has not established that trial counsel's
performance was deficient, we affirm the order denying his
motion for a new trial.
The conviction Talley challenges on appeal is the conviction
for one count of first-degree sexual assault, contrary to
Wis.Stat. § 940.225(1)(a) (2017-18),  which states that
a person is guilty of a Class B felony if he "[h]as
sexual contact or sexual intercourse with another person
without consent of that person and causes pregnancy
or great bodily harm to that person." Id.
(emphasis added). Talley's defense at trial was that his
sexual contact with A.D. was with her consent. For support,
he relied on statements A.D. made prior to trial and at trial
recanting her original account to police and asserting that
the pregnancy resulted from a consensual sexual relationship.
pretrial accounts of Talley's conduct.
In A.D.'s pre-trial accounts about the sexual contact
with Talley, she first gave a detailed account of sexual
assault, then recanted, giving varying accounts in which she
had consented to intercourse:
- On April 4, 2015, A.D. told police that she had gotten
pregnant in January 2014 when Talley raped her. She told
police that Talley had forcibly removed her clothes, pushed
her down, and raped her, and that when she asked him to stop
he told her to "be still." She also told police he
threatened to kill her if she told anyone. She had not told
anyone until March 2015. On the day A.D. reported the rape to
police, Talley was arrested and taken into custody.
- Three days later, on April 7, 2015, shortly after Talley
was released from custody, A.D. returned to police and
recanted, stating that the pregnancy resulted from sexual
intercourse she had with Talley while he was passed out from
taking Xanax, and that he had not awakened during
- Three months later, on July 3, 2015, A.D. told the defense
investigator that she and Talley had had a consensual sexual
relationship that involved repeated intercourse, and that she
had lied to police when she said Talley raped her because the
truth would have made her mother angry. The
investigator's report stated that A.D. said she was
telling the truth about the consensual relationship "to
rid herself of guilt."
- On September 14, 2015, the morning Talley's jury trial
was scheduled to start, A.D. gave a statement to police,
stating that the truth was that she and Talley engaged in
consensual sex in her bedroom while watching T.V., and that
it "just happened."
testimony related to ...