Despite trial counsel’s errors, no new trial for sexual assault defendant, supreme court says

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 3, 2011 – A criminal defendant convicted for sexually assaulting his stepdaughter won’t get a new trial despite his trial lawyer's missteps, the Wisconsin Supreme Court has concluded.

After a circuit court sentenced David Domke to 20 years in prison and 20 years extended supervision, he filed a post-conviction motion and asked for a new trial, arguing his trial counsel was ineffective.

In State v. Domke, 2011 WI 95 (Nov. 1, 2011), a unanimous supreme court ruled that Domke’s trial counsel did commit errors, but the cumulative effect of those errors did not prejudice the defense.

“[E]ven excluding the evidence admitted due to [counsel’s] errors, the State had a very strong case,” wrote Justice N. Patrick Crooks. “Upon examining the totality of the circumstances we are not persuaded that, but for [the errors], the result would have been any different.”

Errors committed

First, Domke’s trial counsel did not object to testimony by a sexual assault counselor, who documented and testified to the victim’s statements through 20-25 therapy sessions.

It was error not to object, the supreme court explained, because the counselor’s testimony concerning statements made by the victim was inadmissible hearsay not subject to the medical diagnosis and treatment hearsay exception.

In other words, Domke’s trial counsel should have known that under State v. Huntington, 216 Wis. 2d 671, 575 N.W.2d 268 (1998), the “medical diagnosis and treatment hearsay exception” does not apply to statements made to “counselors” or “social workers.”

The medical diagnosis and treatment hearsay exception allows a third party to testify about “statements made for purposes of medical diagnosis or treatment” and describing medical history or past or present symptoms that are causing the problem. Wis. Stat. section 908.03(4)

“Wisconsin courts have applied that hearsay exception to statements made to psychologists, psychiatrists, chiropractors and nurse practitioners in addition to other medical doctors,” but not counselors or social workers, Justice Crooks explained.

Decided in 1998 and cited in Wisconsin evidence treatises, Huntington is well-settled law, Justice Crooks noted, and “a reasonable attorney should have investigated whether it was admissible under one of the hearsay exceptions and, if not, objected to that testimony.”

Domke’s trial counsel also asked the sexual assault counselor, twice during cross-examination, whether it was possible the victim’s allegations were the result of a “bad dream.”

The counselor answered “no” a first time, and the follow-up question allowed the counselor to add that, “in her professional opinion,” it was not a dream.

Domke argued, and the supreme court agreed, it was unreasonable trial strategy to ask this question twice without knowing whether the counselor would concede the victim’s allegations against the defendant could have been the result of a dream.

Finally, the supreme court ruled that it was error for Domke’s lawyer to call the victim’s mother (Domke’s wife) to testify without knowing whether she doubted her daughter’s allegations. This bolstered the victim’s credibility to the detriment of Domke, he argued.

Although other evidence suggested the mother was skeptical about her daughter’s allegations, which prompted the lawyer to call her as a witness, the state elicited on cross-examination testimony that the mother believed her daughter “100 percent.”

“A reasonable attorney, knowing that a witness had been vacillating regarding whom she believed, would have done some investigation when faced with the risk of calling a witness who may provide extremely useful or extremely damaging testimony,” Justice Crooks wrote.

Errors not prejudicial

Despite acknowledging trial counsel’s errors, the supreme court ruled that a new trial is not warranted because the cumulative effect of the errors did not prejudice the defense.

The court noted that the victim testified herself about the alleged sexual assaults, her testimony was corroborated by a friend, a physician’s assistant, a police officer, and a child protection investigator, and nothing in evidence suggested the victim had a motive to fabricate.

“There were errors on the part of trial counsel, but under the totality of the circumstances, we cannot say that there is a reasonable probability that but for [counsel’s] deficient performance the result would have been different,” Justice Crooks wrote.