April 3, 2015 – The Wisconsin Supreme Court has upheld the conviction of a man accused of sexually assaulting his minor stepdaughter repeatedly over a five-year period, despite lower court rulings that said the defendant deserved a new trial.
In 2011, the state filed an amended complaint against Joel Hurley for engaging in repeated acts of sexual assault of a child. The complaint alleged that Hurley assaulted his minor stepdaughter 26 times “on and between” 2001 and 2005.
The state alleged that Hurley’s assaults started when the stepdaughter was six years old and lasted until she was 11. The stepdaughter came forward when she was 15 years old, after Hurley and her mother had divorced and Hurley moved to Indiana.
During the trial, the state successfully entered “other acts” evidence that Hurley sexually assaulted his younger sister in 1980s, when he was under 15 years old. At a hearing, the younger sister testified that Hurley sexually assaulted her, providing details of what had occurred when she was between the ages of 8 and 10. The circuit court, in allowing the evidence, noted that the sister’s allegations bore similarities to the stepdaughter’s.
Hurley testified that he did not recall the assaults alleged by his younger sister. At closing, the prosecutor pointed out that Hurley’s lawyer didn’t ask him whether he sexually assaulted his younger sister or not, but asked whether Hurley recalled what she alleged. “That’s different than it didn’t happen,” the prosecutor told the jury.
Ultimately, the jury found Hurley guilty, and he was sentenced to 10 years in prison with seven years extended supervision. Hurley filed a post-conviction motion for relief.
Hurley said the state’s amended complaint was deficient and his lawyer was ineffective for failing to object to the complaint on due process grounds. He also said the “other acts” evidence was improperly admitted, and his trial counsel was ineffective for failing to object to the prosecutor’s closing remarks regarding assaults against his sister.
The circuit court ruled that the prosecutor’s closing statements were improper and ordered a new trial in the interests of justice. On appeal, the appeals court did not address the prosecutor’s remarks, but ruled that the amended complaint violated Hurley’s due process rights, and “other acts evidence” was admitted improperly.
However, in State v. Hurley, 2015 WI 35 (March 31, 2015), a supreme court majority (5-2) upheld Hurley’s conviction, concluding the amended complaint was adequate and did not violated Hurley’s due process rights, “other acts evidence” was properly admitted, and a new trial was not warranted based on the prosecutor’s closing remarks.
First, the majority ruled that the amended complaint did not violate Hurley’s due process rights. Hurley argued that allegations of sexual assaults occurring “on and between” 2001 and 2005 did not provide adequate notice to plead and prepare a defense.
The court recently considered the same issue in State v. Kempainen, and came to the same conclusion here: the amended complaint did not violate due process rights.
In addition, the majority ruled that Hurley’s trial counsel was not ineffective for failing to object to the amended complaint, because “counsel’s recommendation not to file a motion to dismiss was reasonable professional advice and was not prejudicial.”
Evidence that Hurley sexually assaulted his sister in the 1980s was properly admitted into evidence, the majority also ruled. It was relevant and offered for a permissible purpose – to show method of operation and opportunity – the majority noted.
The majority explained that trial courts have greater latitude to admit “other acts” evidence in child sexual assault cases “because an average juror likely presumes that a defendant is incapable of such an act.”
“[G]iven the greater latitude rule, the circuit court reasonably concluded that the other-acts evidence was admissible for the purposes of establishing Hurley’s method of operation,” wrote Justice Michael Gableman, noting the other act had similarities.
In addition, Hurley couldn’t show the risk of unfair prejudice substantially outweighed the evidence’s probative value, the majority noted. Evidence that Hurley sexually assaulted his younger sister was highly probative to show method of operation (M.O.), and limiting instructions ensured the jury could not use the evidence for an improper purpose.
“Simply put, the circuit court’s decision regarding the prejudicial effect was not a decision that no reasonable judge could make,” wrote Justice Gableman.
Finally, the majority ruled that the circuit court committed error in granting a new trial in the interests of justice based on statements the prosecutor made in closing argument.
“The prosecutor did not ask the jury to draw an inference that he knew or should have known was untrue,” Justice Gableman wrote. “Had the prosecutor argued that Hurley had never denied the results, then, given the credibility contest, those remarks may have infected the trial with unfairness. But that was not the case.”
Dissent
Chief Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley. Like the court of appeals, the dissenters concluded the trial court erroneously exercised its discretion in admitting evidence that Hurley sexually assaulted his sister in the 1980s.
“The State offered other-acts evidence in order to show that the defendant is a bad person with a propensity to sexually assault children,” wrote the chief justice, noting the evidence offered for this purpose is inadmissible under Wis. Stat. section 904.04(2)(a).
Even if offered for a proper purpose, such as method of operation and opportunity, the chief justice said the probative value of evidence that Hurley sexually assaulted his sister in the 1980s was outweighed by the danger of unfair prejudice.
Limiting instructions, she said, could not cure the possibility that a jury would convict based on a sense of horror and instinct to punish Hurley based on alleged other acts.
