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State v. Talley

Court of Appeals of Wisconsin, District I

March 19, 2019

State of Wisconsin, Plaintiff-Respondent,
Harvey A. Talley, Defendant-Appellant.

         Not recommended for publication in the official reports.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.

          Before Kessler, P.J., Brennan and Brash, JJ.

          BRENNAN, J.

         ¶1 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.[1] 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.

         ¶2 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.

         ¶3 The postconviction court conducted a Machner hearing[2] 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.

         ¶4 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 her.[3] 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.


         ¶5 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), [4] 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.

         A.D.'s pretrial accounts of Talley's conduct.

         ¶6 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 intercourse.[5]
- 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."

         Trial testimony related to ...

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