State v. Anthony R. Pico , 382 Wis. 2d 273 ( 2018 )

2018 WI 66
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1799-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Anthony R. Pico,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 376 Wis. 2d 524, 900 N.W.2d 343
(2017 – unpublished)
OPINION FILED: June 15, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 19, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Michael O. Bohren
JUSTICES:
CONCURRED: R.G. BRADLEY, J., concurs, joined by KELLY, J.
(opinion filed).
DISSENTED: ABRAHAMSON, J., dissents, joined by A.W.
BRADLEY, J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
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.
2
2018 WI 66
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1799-CR
(L.C. No. 2012CF547)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant,
FILED
v. JUN 15, 2018
Anthony R. Pico, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DANIEL KELLY, J. 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
1
The Honorable William J. Domina, Waukesha County Circuit
Court, presiding.
No. 2015AP1799-CR
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,
2
The Honorable Michael O. Bohren, Waukesha County Circuit
Court, presided over the Machner hearing. See State v. Machner,
92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
3
This is a review of an unpublished decision of the court
of appeals, State v. Pico, No. 2015AP1799-CR, unpublished slip
op. (Wis. Ct. App. May 10, 2017).
2
No. 2015AP1799-CR
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 Machner4 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
4
Machner, 92 Wis. 2d 797.
3
No. 2015AP1799-CR
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:
5
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
4
No. 2015AP1799-CR
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.
6
"A person is not responsible for criminal conduct if at
the time of such conduct as a result of mental disease or defect
the person lacked substantial capacity either to appreciate the
wrongfulness of his or her conduct or conform his or her conduct
to the requirements of law." Wis. Stat. § 971.15(1).
5
No. 2015AP1799-CR
¶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
6
No. 2015AP1799-CR
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
7
His motion further claimed the sentencing court improperly
considered his California conviction. However, he did not
address this issue here, so we will not address it. A.O. Smith
Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588
N.W.2d 285 (Ct. App. 1998) ("[A]n issue raised on appeal, but
not briefed or argued, is deemed abandoned.").
7
No. 2015AP1799-CR
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,
8
No. 2015AP1799-CR
¶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
9
No. 2015AP1799-CR
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
8
See U.S. Const. amend. VI; Wis. Const. art. I, § 7.
10
No. 2015AP1799-CR
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.").
11
No. 2015AP1799-CR
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
12
No. 2015AP1799-CR
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 précis 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
13
No. 2015AP1799-CR
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.
9
Mr. Pico's counsel said he actually did consider the
possibility of a plea of not guilty by reason of mental disease
or defect, as was his standard practice. He explained that, in
evaluating whether such an approach may be appropriate, he
considers a number of factors, including the client's social
history, how the client interacts, whether the client is logical
and makes sense, whether the client has ever had any mental
health issues, and whether he observed symptoms that caused him
to believe that a further exploration of mental capacity was
necessary. He chose not to pursue this option because he did
not observe anything suggestive of ongoing symptoms related to
the brain injury (other than the double vision) that would
support an NGI defense.
14
No. 2015AP1799-CR
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
15
No. 2015AP1799-CR
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
16
No. 2015AP1799-CR
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
17
No. 2015AP1799-CR
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).
10
See, e.g., Fact, Black's Law Dictionary (10th ed. 2014)
(defining a "fact" as including "[s]omething that actually
exists[,]" "not just tangible things, actual occurrences, and
relationships, but also states of mind such as intentions and
the holding of opinions[,]" and "[a]n actual or alleged event or
circumstance, as distinguished from its legal effect,
consequence, or interpretation.").
18
No. 2015AP1799-CR
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 counsel's performance was
deficient and prejudiced the defense are questions of law,
however, and a reviewing court need not grant deference to the
decisions of the circuit court.").
¶33 Thus, when Mr. Pico claims the circuit court "found"
that his counsel should have investigated Mr. Pico's mental
capacity more extensively than he did, he is not referring to a
factual finding at all, but to a conclusion of law. We
determine whether trial counsel's investigation should have been
more extensive by applying the legal standard to the known
facts. Here, the standard is that counsel must "either
reasonably investigate the law and facts or make a reasonable
strategic decision that makes any further investigation
19
No. 2015AP1799-CR
unnecessary." Domke, 337 Wis. 2d 268, ¶41. In applying that
standard to the known facts, the court of appeals owed no
deference to the circuit court because this is a question of
law. See Pitsch, 124 Wis. 2d at 634; see also Knight, 168
Wis. 2d at 514, n.2. Likewise, when Mr. Pico complains that the
court of appeals "found because there was no proof the family or
Pico told [trial counsel] about the significance of the brain
damage, he had no duty to investigate or raise the issue in any
way," he is recasting a legal conclusion as a finding of fact.
The court of appeals did not, in so concluding, "find" anything.
It applied the standard (reasonable investigation) to the fact
(neither "the family [n]or Pico told [trial counsel] about the
significance of the brain damage") and arrived at its legal
conclusion (no duty to investigate further). The same is true
of Mr. Pico's claim that the court of appeals was obligated to
defer to the circuit court's "factual finding that the attorney
decided not to investigate, and that deficiency led to the
conviction." The extent of trial counsel's investigation is
undisputed. But the circuit court and court of appeals differed
on whether this comprised a "deficiency" that "led to the
conviction." That disagreement, of course, is about whether the
agreed facts satisfy a legal standard. As such, it is a
question of law on which the court of appeals owed no deference
to the circuit court.
¶34 Mr. Pico did accurately identify that the court of
appeals set aside one of the circuit court's factual findings as
it analyzed his counsel's duty to investigate. It is the same
20
No. 2015AP1799-CR
one we were constrained to set aside. The circuit court said
trial counsel did not discuss Mr. Pico's head injury with his
family. That finding was clearly erroneous because the
transcript from the Machner hearing unequivocally demonstrates
that trial counsel did have that conversation with Mr. Pico's
family. State v. Pico, No. 2015AP1799-CR, unpublished slip op.,
¶46 n.6 (Wis. Ct. App. May 10, 2017).
2. Defense Counsel's Trial Performance
¶35 Mr. Pico also believes he received ineffective
assistance of counsel because of how his counsel conducted his
trial. He is dissatisfied with trial counsel's choice of
witnesses, his failure to object to certain testimony, the lack
of motions in limine to prevent the exploration of some topics
during trial, and his decision not to introduce evidence Mr.
Pico believes would have been helpful to him. Much, but not
all, of Mr. Pico's argument on this score is the same as above,
to wit, that the court of appeals substituted its own judgment
for the circuit court's factual findings. He cites three
additional instances in which he believes this occurred. We
will address each in turn.11
¶36 First, Mr. Pico says his counsel should have moved to
suppress the statements he made during the police interview
because Detective Rich used the "Reid technique." The circuit
11
Mr. Pico's briefs purport to identify other instances in
which the court of appeals usurped the circuit court's fact-
finding role. But close examination reveals them to be repeats
of allegations already made.
21
No. 2015AP1799-CR
court agreed and said such a motion would have been successful.
Mr. Pico characterizes that statement as a finding of fact that
binds the court of appeals unless it was clearly erroneous. The
potential success of such a motion, however, is not a matter of
historical fact. It is a conclusion of law based on the circuit
court's exercise of judgment in applying the appropriate legal
standard to the circumstances comprising Detective Rich's
interview with Mr. Pico. The court of appeals owed the circuit
court no deference on this question. Mr. Pico's suppression
argument depends on his injury-induced susceptibility to the
"Reid technique." We have already concluded trial counsel had
no duty to investigate this injury, and without that information
the suppression motion would have been baseless. The court of
appeals correctly concluded such a motion would not have been
successful.
¶37 Mr. Pico's second allegation relates to his belief
that his counsel should have called an expert to challenge Ms.
Sarah Flayter's forensic interview techniques, to describe
D.T.'s susceptibility to an interviewer's suggestion, and to
explain the significance of some of the statements D.T. made
during the interview. Mr. Pico says "the trial court found"
that "an expert should have been consulted" on these subjects,
and that if his counsel had done so, "it would have helped the
defense case." The relevant factual finding here is that Mr.
Pico's counsel did not introduce an expert witness to provide
testimony on the identified subjects, a fact the court of
appeals did not challenge. What it challenged was whether that
22
No. 2015AP1799-CR
fact established that trial counsel should have called such an
expert, an entirely unremarkable question of law. And how the
result of the trial might have changed if Mr. Pico's counsel had
presented expert testimony on these topics is actually the
opposite of a factual finding——it is, indeed, a contrafactual.
It is a hypothetical conclusion about a potential outcome
flowing from the application of a legal standard to an
alternative set of facts. It is, in short, informed speculation
about a trial that never occurred. As such, it is not possible
for this to be a matter of fact. The court of appeals did not
err in choosing not to defer to the circuit court's conclusion
about the expected result of a hypothetical trial.
¶38 Finally, Mr. Pico is concerned about certain
statements introduced at trial that he believes improperly
vouched for the credibility of the State's witnesses. He
asserts that the circuit court "found" that trial counsel's
failure to file a motion in limine to protect against such
testimony was "constitutionally deficient." And he argues that,
in disagreeing with the circuit court, the court of appeals
improperly "substituted its beliefs for those of the judge who
listened to the testimony at the hearing." But as we said in
both Pitsch and Knight, whether an attorney's conduct was
constitutionally deficient is a question of law, not fact.
"Listening to testimony" is essential to the project of
accurately finding facts; deciding questions of law can be done
just as well by appellate tribunals.
23
No. 2015AP1799-CR
¶39 Our review confirms that the court of appeals properly
distinguished between findings of fact and conclusions of law.
Consequently, it did not usurp the circuit court's fact-finding
role when it concluded that trial counsel did not perform
deficiently.12 Still, Mr. Pico argued that several additional
defects in his counsel's performance caused him to suffer the
ineffective assistance of counsel. The court of appeals wrote
an extensive and well-reasoned opinion addressing each of those
claims, and we do not believe we would provide any additional
value by repeating the good work it has already done. We adopt
its reasoning on these claims as our own. Because trial
counsel's performance was not deficient, we may conclude that
Mr. Pico did not receive ineffective assistance of counsel
without addressing the "prejudice" prong of the Strickland
analysis. 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
12
The court of appeals did set aside an additional factual
finding while conducting this part of its review. However, it
was justified in doing so. The circuit court apparently
misunderstood part of trial counsel's testimony with respect to
whether Ms. Flayter should have clarified one of D.T.'s
statements. Trial counsel testified this task was necessary,
but that it was for D.T., not Ms. Flayter, to provide the
clarification. He also said Ms. Flayter did get D.T. to explain
her ambiguous statement. The circuit court appears to have
missed this testimony, and so found that a required
clarification had not been made. The court of appeals is
correct that this finding was clearly erroneous because the
record unequivocally establishes that D.T.'s statement had been
properly explained.
24
No. 2015AP1799-CR
of the inquiry if the defendant makes an insufficient showing on
one."); Carter, 324 Wis. 2d 640, ¶21 ("to succeed on [a] claim
of ineffective assistance of counsel, [the defendant] must
satisfy both prongs of the Strickland test.").
B. Expert Strickland Testimony
¶40 At the Machner hearing, Mr. Pico called an attorney as
an expert witness on the Strickland standard "to show what a
reasonable attorney versed in the criminal law would and should
do under the circumstances at issue in this case." Wisconsin
Stat. § 907.02 (2015-16) governs the admissibility of expert
opinion testimony and provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the case.
§ 907.02(1) (2015-16). "Whether to admit proffered 'expert'
testimony rests in the circuit court's discretion." LaCount,
310 Wis. 2d 85, ¶15 (one set of quotation marks omitted).
¶41 The expert's task in the Machner hearing was to opine
on how trial counsel ought to have handled Mr. Pico's defense.
Presumably, that means he was supposed to do something more than
argue that Mr. Pico's counsel should have conducted the defense
differently. If that had been his function, he should have been
seated at counsel's table along with Mr. Pico's postconviction
25
No. 2015AP1799-CR
attorney, not in the witness box. We presume his role was not
duplicative. Nor was his purpose to provide a historical
recitation of facts relating to trial counsel's conduct of Mr.
Pico's case. Nor was he there to explain historical facts that
the court was incapable of understanding on its own. That
leaves only one role for the expert here——informing the court
that, in his judgment, Mr. Pico's counsel did not perform as a
reasonable attorney should have under those circumstances.
¶42 So the question we must answer is whether there is
room in a Machner hearing for an expert witness's judgment on
trial counsel's performance. Expert testimony is admissible to
address questions of fact, not law. This is so because "the
only 'expert' on domestic law is the court." See Wis. Patients
Comp. Fund v. Physicians Ins. Co. of Wis., Inc., 2000 WI App
248, ¶8 n.3, 239 Wis. 2d 360, 620 N.W.2d 457 (input from experts
regarding an attorney's ethical obligations is unnecessary
because such obligations are questions of law reviewed de novo
by the court; compiling cases); see also United States v.
Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991) ("As a general
rule an expert's testimony on issues of law is
inadmissible . . . . [A]lthough an expert may opine on an issue
of fact within the jury's province, he may not give testimony
stating ultimate legal conclusions based on those facts."); Itek
Corp. v. Chicago Aerial Indus., Inc., 274 A.2d 141, 143 (Del.
1971) ("Testimony from an expert is inadmissible if it expresses
the expert's opinion concerning applicable domestic law."); In
re Estate of Ohrt 516 N.W.2d 896, 900 n.1 (Iowa 1994) ("Experts,
26
No. 2015AP1799-CR
no matter how well qualified, generally should not be permitted
to give opinions on questions of domestic law."); Jackson v.
State Farm Mut. Auto. Ins. Co., 600 S.E.2d 346, 355 (W. Va.
2004) (quoting 32 C.J.S. Evidence § 634, at 503-04 (1996)) ("As
a general rule, an expert witness may not give his [or her]
opinion on a question of domestic law [as opposed to foreign
law] or on matters which involve questions of law, and an expert
witness cannot instruct the court with respect to the applicable
law of the case . . . ." (alterations in original)).
¶43 The court's status as the only expert on domestic law
is not a descriptive statement, but a normative one.
Interpreting and applying the law to the facts of a particular
case is the judiciary's responsibility, a responsibility it
shares with no other when acting in its judicial capacity.
Gabler v. Crime Victims Rights Bd., 2017 WI 67, ¶37, 376
Wis. 2d 147, 897 N.W.2d 384 ("No aspect of the judicial power is
more fundamental than the judiciary's exclusive responsibility
to exercise judgment in cases and controversies arising under
the law."); see also Operton v. LIRC, 2017 WI 46, ¶73, 375
Wis. 2d 1, 894 N.W.2d 426 (R. Grassl Bradley, J., concurring)
(indicating that "the court's duty to say what the law is"
constitutes a "core judicial function"); In re Appointment of
Revisor, 141 Wis. 592, 598, 124 N.W. 670 (1910) (stating that
"it is the exclusive function of the courts to expound the
laws"). In the context of a Machner hearing, that exclusive
responsibility encompasses the exercise of its judgment on the
reasonableness of counsel's performance: "[A] court . . . must
27
No. 2015AP1799-CR
judge the reasonableness of counsel's challenged conduct on the
facts of the particular case . . . ." Strickland, 466 U.S. at
690 (emphasis supplied). As we discussed above, this is a
question of law, not fact. Pitsch, 124 Wis. 2d at 634 ("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.").
¶44 The court can, and must, reserve to itself the
exercise of this responsibility in every case. And when "the
court . . . is able to draw its own conclusions without the aid
of expert testimony, 'the admission of such testimony is not
only unnecessary but improper.'" Racine Cty. v. Oracular
Milwaukee, Inc., 2010 WI 25, ¶28, 323 Wis. 2d 682, 781 N.W.2d 88
(quoting Cramer v. Theda Clark Mem'l Hosp., 45 Wis. 2d 147, 151,
172 N.W.2d 427 (1969)). Therefore, an expert's judgment about
the reasonableness of how counsel handled the defense is
superfluous not because he has no insights on the matter, but
because his opinion is unnecessary as a matter of law.
¶45 Consequently, we hold that expert testimony about the
"reasonableness" of counsel's performance is inadmissible
because it addresses a question on which the court is the only
expert. This is not a matter of first impression in this state.
Faced with the same question we are addressing here, the court
of appeals in State v. McDowell said "that no witness may
testify as an expert on issues of domestic law" such as whether
trial counsel rendered effective assistance. 2003 WI App 168,
28
No. 2015AP1799-CR
¶62 n.20, 266 Wis. 2d 599, 669 N.W.2d 204, aff'd, 2004 WI 70,
272 Wis. 2d 488, 681 N.W.2d 500. We are further persuaded this
is a sound statement of the law for the reasons given by the
Eleventh Circuit Court of Appeals:
[T]he reasonableness of a strategic choice is a
question of law to be decided by the court, not a
matter subject to factual inquiry and evidentiary
proof. Accordingly, it would not matter if a
petitioner could assemble affidavits from a dozen
attorneys swearing that the strategy used at his trial
was unreasonable. The question is not one to be
decided by plebiscite, by affidavits, by deposition,
or by live testimony. It is a question of law to be
decided by the state courts, by the district court,
and by this Court, each in its own turn.
Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998).
¶46 Our review of the record confirms that Mr. Pico's
expert was "judg[ing] the reasonableness of counsel's challenged
conduct on the facts of the particular case." See Strickland,
466 U.S. at 690. Upon introducing the expert's testimony,
postconviction counsel frankly acknowledged the expert witness
would testify to "what a reasonable criminal
attorney . . . should and should not" do. The expert witness
proceeded to do that very thing, opining (in part) that: (1) an
attorney who has been put on notice of an injury should "get the
[medical] records" and should "chase the records if you know
they're there"; (2) further investigation into the injury and
its potential impacts would have been beneficial to the case;
(3) knowledge of the brain injury and testimony about the
resulting impact could have impacted strategic decisions; (4)
experts should have been called to review Detective Rich's taped
29
No. 2015AP1799-CR
interview of Mr. Pico and Ms. Flayter's forensic interview of
D.T.; (5) there generally would not have been any downside to
seeking expert review of or obtaining the good touch/bad touch
materials D.T. learned in school; and (6) trial counsel should
have objected to certain statements that amounted to "witness
vouching." Ultimately, the expert witness asserted that he did
not believe trial counsel provided constitutionally adequate
representation.
¶47 When we analyzed Mr. Pico's claim that the court of
appeals usurped the circuit court's fact-finding role, supra, we
addressed some of the very topics on which the expert witness
provided testimony. We said they presented questions of law,
and there is no reason to reconsider that conclusion in
determining whether it was appropriate for Mr. Pico's expert to
opine on them. What trial counsel should or should not have
done is not a question of fact. Nor is the soundness of his
strategic or tactical decisions. And as we observed above, the
likely effect of those decisions on the outcome of a
hypothetical trial is informed speculation, not a statement of
fact. Because this testimony addressed questions of domestic
law, it was inadmissible. We conclude that Strickland expert
testimony is admissible in the Machner context, but only to the
extent the expert focuses on factual matters and does not offer
his opinion on the reasonableness of trial counsel's conduct or
strategy.
30
No. 2015AP1799-CR
C. Mr. Pico Is Not Entitled To A New Sentencing Hearing
¶48 Mr. Pico asserts that the circuit court violated his
right against self-incrimination by increasing the severity of
his sentence because he maintained his innocence at the
sentencing hearing.13 We review a sentencing decision for an
13
Mr. Pico also asserts that his counsel "was ineffective
for failing to object" to the sentencing court's statements
related to his maintenance of innocence at sentencing. Mr. Pico
does not develop any ineffective assistance of counsel claim as
to this issue; however, because we conclude that the sentencing
court did not err, Mr. Pico's counsel could not have been
ineffective for not having objected.
31
No. 2015AP1799-CR
erroneous exercise of discretion.14 State v. Harris, 2010 WI 79,
¶30, 326 Wis. 2d 685, 786 N.W.2d 409. Such an error occurs if a
court "imposes its sentence based on or in actual reliance upon
clearly irrelevant or improper factors." Id. To establish such
14
The State says Mr. Pico waived this issue by not filing a
cross-appeal from the circuit court's order on the motion for
postconviction relief, which granted him a new trial and vacated
his sentence. The State says a cross-appeal was necessary
because the circuit court vacated the sentence not because of a
sentencing error, but because it concluded the conviction was
constitutionally unsound. Regardless of the circuit court's
reasoning, the result was an order vacating the sentence. A
party appeals from a written order, not a circuit court's
reasoning. See Wis. Stat. § 809.10(1)(b)2 (2015-16) (the notice
of appeal shall identify "the judgment or order from which the
person filing the notice intends to appeal and the date on which
it was entered."); see also Neely v. State, 89 Wis. 2d 755, 758,
279 N.W.2d 255 (1979) (per curiam) (explaining that "[t]he word
decision, as used in the statutes and the rules, refers to the
result (or disposition or mandate) reached by the court of
appeals."); Ramsthal Advert. Agency v. Energy Miser, Inc., 90
Wis. 2d 74, 75, 279 N.W.2d 491 (Ct. App. 1979) ("An order, to be
appealable, must be in writing and filed."). A cross-appeal is
necessary only when the respondent seeks a modification of the
order from which an appeal is taken: "A respondent who seeks a
modification of the judgment or order appealed from or of
another judgment or order entered in the same action or
proceeding shall file a notice of cross-appeal . . . ." Wis.
Stat. § 809.10(2)(b) (2015-16). Mr. Pico wanted no
modification; to the contrary, he wanted the court of appeals to
affirm the vacation of his sentence. His "sentencing error"
argument is an alternative basis for affirming that part of the
circuit court's order. On appeal, a court may "'examine all
rulings to determine whether they are erroneous and, if
corrected, whether they would sustain the judgment or order
which was in fact entered.'" Auric v. Cont'l Cas. Co., 111 Wis.
2d 507, 516, 331 N.W.2d 325 (1983) (citation omitted). If Mr.
Pico were right about the sentencing court's error, correcting
it would sustain the circuit court's vacation of his sentence.
Therefore, no cross-appeal was necessary.
32
No. 2015AP1799-CR
error, the defendant must prove "by clear and convincing
evidence, that the sentencing court actually relied on
irrelevant or improper factors." State v. Alexander, 2015 WI 6,
¶17, 360 Wis. 2d 292, 858 N.W.2d 662. This requires that the
defendant establish both that the factor was improper or
irrelevant and that the court relied on it. Id., ¶¶18-27.
¶49 The Fifth Amendment guarantees a criminal defendant
the right against self-incrimination. U.S. Const. amend V ("No
person . . . shall be compelled in any criminal case to be a
witness against himself . . . ."). This right extends to
sentencing, although a defendant may waive his Fifth Amendment
right against self-incrimination in a bid for a lighter
sentence. See Scales v. State, 64 Wis. 2d 485, 496-97, 219
N.W.2d 286 (1974) (The court may consider "a posttrial
confession of guilt and an expression of remorse" "in mitigation
of a sentence."). The failure to express remorse, however, can
be used at sentencing only if it is one amongst other factors,
and it receives no undue consideration:
A defendant's attitude toward the crime may well be
relevant in considering these things [i.e., Gallion-
type factors15]. In this case we believe the trial
court considered a variety of factors, giving no undue
or overwhelming weight to any one in particular. The
sentence imposed was well within the maximum for which
the defendant might have been sentenced, and while it
is evident that the defendant's failure to admit his
guilt and his lack of remorse were factors in the
15
See State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678
N.W.2d 197.
33
No. 2015AP1799-CR
sentencing decision, we do not believe it was improper
or an abuse of discretion.
State v. Baldwin, 101 Wis. 2d 441, 459, 304 N.W.2d 742 (1981);
see also Williams v. State, 79 Wis. 2d 235, 239, 255 N.W.2d 504
(1977) (observing that circuit courts commit reversible error
when they "[give] undue and almost overwhelming weight to the
defendant's refusal to admit guilt.").
¶50 The transcript from Mr. Pico's sentencing hearing
reflects that the court considered multiple factors——such as Mr.
Pico's background, his family and support network, his medical
history, the seriousness of the offense, the presentencing
report, the impact on the community, and the risk of re-
offending——in formulating the sentence.16 It also reflects the
court's reference to Mr. Pico's lack of remorse:
A part of the problem that you have is how you're
gonna go forward and you express yourself, and I
believe you're to a degree very sincere. To a degree
I'm not so sure you're willing to do what you need to
do to find your way back into a life closer to normal.
What I mean when I say that is acknowledging your
conduct before this forum, before your family, before
[D.T.'s family] in order to allow your children to
hear it and to know what you've done is important, and
I will consider whether or not you demonstrate remorse
as part of my sentence.
. . . .
16
A circuit court must consider three main factors at
sentencing: (1) the gravity of the offense; (2) the defendant's
character; and (3) the need to protect the public. State v.
Alexander, 2015 WI 6, ¶22, 360 Wis. 2d 292, 858 N.W.2d 662. The
circuit court may also consider numerous secondary factors. See
id.
34
No. 2015AP1799-CR
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 the way she
said. I don't accept it, Mr. Pico. That's half a
loaf.
¶51 Mr. Pico says this commentary is similar to Scales, in
which we concluded the circuit court had improperly relied on
the defendant's lack of remorse in imposing sentence. There, we
were concerned with the circuit court's statement that "'[i]t is
my judgment that until you demonstrate some remorse, until you
acknowledge your responsibility for the crime that you have
committed, probation is not in order and efforts at
rehabilitation will come to naught. It is for that reason that
it is my judgment . . . that I can do nothing but order your
incarceration . . . ." Scales, 64 Wis. 2d at 494-95. We said
"that fact alone [the failure to demonstrate remorse] cannot be
used to justify incarceration rather than probation," and
because the court identified no other basis for imposing
incarceration, we reasoned that the "the procedure utilized at
sentencing was coercive and in derogation of Scales' Fifth
Amendment rights." Id. at 496-97.
¶52 Mr. Pico's comparison to Scales is not apt. The
circuit court in Scales explicitly linked the defendant's lack
of remorse to the decision to impose incarceration instead of
probation. Here, there is quite obviously no explicit link
between Mr. Pico's lack of remorse and a harsher sentence. Nor
is there an implicit link. The circuit court's operative
statement on this subject was simply "I will consider whether or
not you demonstrate remorse as part of my sentence." Taken at
35
No. 2015AP1799-CR
face value, that is an entirely appropriate and unremarkable
statement——remorse is a proper factor to consider in developing
a sentence. And as long as the court honors the principles of
Baldwin and Williams, so is lack of remorse. The circuit
court's statement indicates it may have addressed remorse in one
of three ways. First, it might have applied no mitigating
factor in recognition that Mr. Pico had expressed no remorse.
Second, it might have used Mr. Pico's lack of remorse as the
north star in developing his sentence. Last, the court may have
considered Mr. Pico's lack of remorse as one factor amongst many
in the exercise of its sentencing discretion. Of the three
possibilities, only the second would be inappropriate. There is
a strong public policy against interfering with the trial
court's sentencing discretion, and the trial court is presumed
to have acted reasonably. State v. Wickstrom, 118 Wis. 2d 339,
354, 348 N.W.2d 183 (Ct. App. 1984). It is Mr. Pico's
responsibility to demonstrate the circuit court used its
discretion erroneously in considering his lack of remorse.
State v. Lechner, 217 Wis. 2d 392, 418, 576 N.W.2d 912 ("When a
criminal defendant challenges the sentence imposed by the
circuit court, the defendant has the burden to show some
unreasonable or unjustifiable basis in the record for the
sentence at issue.").
¶53 Mr. Pico says his proof is that the circuit court
"intimated it might" "send[] him home that day" if he confessed
at sentencing. The circuit court intimated no such thing. Its
only mention of anything even remotely close to that concept was
36
No. 2015AP1799-CR
its reference to a letter from D.T. and her family indicating
they might agree that a "time served" sentence would be
acceptable if Mr. Pico admitted what he had done to D.T. In
commenting on that letter, the court stated:
Now, they [D.T.'s family] wanted to go so far as
to hinge as to whether or not you'll be in the
community versus whether or not you'll be housed in
prison, and our system is more complicated than that.
I have more things to consider in reaching that
decision. Your lawyer referenced the Gallion factors
and other factors that as a lawyer I have to——as a
judge I have to consider. I'll look at all those in
reaching a conclusion.
¶54 Not only does this commentary not support Mr. Pico's
position, it does the opposite. This passage reflects the
sentencing court's awareness of the totality of factors it was
required to consider——and did consider——in ultimately imposing a
bifurcated sentence of six years imprisonment followed by ten
years extended supervision——a sentence far less than the 60
years of imprisonment he faced upon conviction. See Wis. Stat.
§§ 948.02(1)(e) and 939.50(3)(b). We conclude there is no
evidence the circuit court imposed a longer sentence on Mr. Pico
because of his continued assertion of innocence. Therefore, Mr.
Pico is not entitled to a new sentencing hearing.
IV. CONCLUSION
¶55 We conclude that Mr. Pico's trial counsel did not
perform deficiently within the meaning of Strickland. We also
conclude that expert testimony at a Machner hearing regarding
the reasonableness of trial counsel's performance is not
admissible. Finally, because Mr. Pico did not demonstrate that
37
No. 2015AP1799-CR
the circuit court improperly relied on his lack of remorse in
fashioning his sentence, he is not entitled to resentencing.
By the Court.—The decision of the court of appeals is
affirmed.
38
No. 2015AP1799-CR.rgb
¶56 REBECCA GRASSL BRADLEY, J. (concurring). I join the
majority but write separately to clarify part III.B, which
addresses expert Strickland testimony.1 The majority says that
Strickland expert testimony is inadmissible at the Machner
hearing except "to the extent the expert focuses on factual
matters and does not offer his opinion on the reasonableness of
trial counsel's" performance.2 Majority op., ¶47. This
limitation could be misinterpreted as a total prohibition on
such testimony. It is not.
¶57 The majority stops short of explaining what it means
by "factual matters" at Machner hearings. I provide additional
explanation to avoid any confusion. When a circuit court
determines the testimony of a Strickland expert would be
helpful, the expert may testify as to what actions a reasonable
attorney could take in the same or similar circumstances. These
include "factual matters" such as alternate actions the
defendant's lawyer could have taken and different strategies
defense counsel could have employed. The expert lawyer may also
testify regarding the existence of alternative strategies
available to defense counsel under the particular facts and
1
Strickland v. Washington, 466 U.S. 668 (1984).
2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
1
No. 2015AP1799-CR.rgb
circumstances of the case.3 However, the expert may not testify
as to the ultimate question of law the circuit court must
decide. Specifically, the expert may not offer an opinion on
whether the trial lawyer performed deficiently. That is a
question of law left to the circuit court.
¶58 Although expert criminal lawyer testimony is not
required at a Machner hearing, in certain cases the circuit
court may perceive this testimony to be helpful. "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. In most cases, the circuit court will not need
expert lawyer testimony to decide the legal questions——it will
simply apply Strickland to the facts and circumstances presented
at the Machner hearing. However, if a circuit court is
unfamiliar with the practice of criminal law or the case
presents factual features unfamiliar to even an experienced
judge, Strickland expert testimony at the Machner hearing would
3
While expert testimony on issues of law generally is
inadmissible, the standard of care applicable to attorneys is
not an issue of law but one of fact. For example, in legal
malpractice cases in Wisconsin, not only is expert testimony
admissible, it is generally required to establish a breach of
the standard of care. See, e.g., Helmbrecht v. St. Paul Ins.
Co., 122 Wis. 2d 94, 112, 362 N.W.2d 118 (1985) ("Expert
testimony is generally necessary in legal malpractice cases to
establish the parameters of acceptable professional conduct,
given the underlying fact situation."); Pierce v. Colwell, 209
Wis. 2d 355, 362-63, 563 N.W.2d 166 (Ct. App. 1997) (holding
plaintiff "was obligated to present expert testimony to sustain
his claim that [lawyer's] alleged negligence caused injury or
damage").
2
No. 2015AP1799-CR.rgb
be helpful and the circuit court retains the discretion to hear
it. See LaCount, 310 Wis. 2d 85, ¶15; Wis. Stat. § 907.02.
¶59 I respectfully concur.
¶60 I am authorized to state that Justice DANIEL KELLY
joins this concurrence.
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No. 2015AP1799-CR.ssa
¶61 SHIRLEY S. ABRAHAMSON, J. (dissenting). In an
interview with law enforcement, the defendant gave equivocal
statements regarding whether he touched the vagina of D.T., an
eight-year-old girl. Given the circumstances of the instant
case, advancing a reasonable doubt defense instead of properly
investigating the defendant's frontal lobe injury amounted to
deficient performance. In my view, a reasonable probability
exists that but for trial counsel's failure to properly
investigate the defendant's frontal lobe injury, the result of
the defendant's trial would have been different.
¶62 Accordingly, I dissent.1
I
¶63 In Strickland v. Washington, the United States Supreme
Court had this to say with regard to counsel's duty to
investigate:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent
that reasonable professional judgments support the
limitations on investigation. In other words, counsel
has a duty to make reasonable investigations or to
make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness
case, a particular decision not to investigate must be
directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference
to counsel's judgments.
Strickland v. Washington, 466 U.S. 668, 690-91 (1984).
1
I agree with Justice Rebecca Grassl Bradley's concurrence
insofar as it clarifies the "factual matters" about which an
attorney expert may testify during a Machner hearing.
1
No. 2015AP1799-CR.ssa
¶64 Put another way, "[c]ounsel 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. The reasonableness of counsel's decisions is judged
in the context of the circumstances as they existed at the time
counsel made those decisions. Strickland, 466 U.S. at 689;
State v. Felton, 110 Wis. 2d 485, 502-03, 329 N.W.2d 161 (1983).
¶65 The following facts were known to the defendant's
trial counsel at the time counsel made the decision not to
further investigate the defendant's frontal lobe injury and
instead pursue a reasonable doubt defense:
• The defendant was interviewed by a detective four days
after the defendant visited his daughter's classroom.
D.T. was a classmate of the defendant's daughter.
• During that interview, the detective employed the Reid
technique, a technique that involves law enforcement
officials lying to the interviewee by claiming to have
strong incriminating evidence that they do not in fact
possess in order to induce the interviewee to disclose
factually accurate details about the events in
question.
• Pursuant to the Reid technique and without identifying
the victim, the detective told the defendant that a
student in his daughter's class had accused him of
touching her inappropriately, that there were video
cameras in the classroom, that male DNA had been found
2
No. 2015AP1799-CR.ssa
on the victim's clothing in the area she said she was
touched, and that another student had partially
substantiated the victim's allegation. Other than the
fact that the defendant had been accused of
inappropriately touching a student, none of what the
detective told the defendant was true.
• When the detective asked if anything the detective had
just said made any sense to the defendant, the
defendant responded by saying, "Yeah, I remember."
Although the detective never identified D.T. as the
victim, the defendant provided D.T.'s name to the
detective and described how he "tickled" and massaged
D.T.'s leg.
• Further questioning by the detective resulted in the
defendant acknowledging that at some point while
tickling and massaging D.T.'s leg, he had moved his
hand under her pants. The defendant claimed that
moving his hand under D.T.'s pants was not
intentional.
• The detective told the defendant that D.T. claimed
that he touched her vagina twice. The defendant
responded, "I don't recall. I don't. I don't know.
I didn't. I don't know, sir. I don't remember that
happening, but——." The detective followed up, "Is it
possible?" The defendant responded, "[Y]eah." The
detective asked, "Do you know why?" and the defendant
answered, "I have no idea. I'm not sexually
3
No. 2015AP1799-CR.ssa
repressed. I got a good sex life. I have kids. I
wasn't thinking along those lines at all. I was just
playing."
• In response, the detective accused the defendant of
having intentionally put his hand down D.T.'s pants
twice. The defendant responded by saying "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."
• The detective then suggested that "[o]nce you walked
out of that class I bet you were——well, you were
probably just sick to your stomach." The defendant
responded "Yes."
• Upon first meeting the defendant, trial counsel became
aware of the defendant's brain injury. The defendant
wears an eyepatch, and he explained to trial counsel
that he suffers from double vision as a result of a
traumatic brain injury to his frontal lobe caused by a
serious motorcycle accident that occurred 20 years
before the events giving rise to the instant case.
• The defendant told trial counsel that he had fully
recovered from the accident, and neither the defendant
nor his family told counsel that they had observed any
behavior on the defendant's part that would indicate
that the defendant's brain injury affected the
defendant's behavior.
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No. 2015AP1799-CR.ssa
• Trial counsel, without bothering to obtain any of the
defendant's medical records or consult with an expert
knowledgeable about the connection between brain
trauma and human behavior, chose not to further
investigate because trial counsel did not observe any
ongoing symptoms that he believed related to the
defendant's brain injury.
¶66 Under these circumstances, I conclude that trial
counsel's decision not to further investigate the defendant's
frontal lobe injury and instead pursue a reasonable doubt
defense constitutes deficient performance.
¶67 First, as would seem obvious from the recitation of
facts above, a reasonable doubt defense was doomed to failure.
Asked about whether the defendant had twice touched the vagina
of an eight-year-old unidentified girl in her classroom during
school just four days prior, the defendant identified the
victim, acknowledged "tickling" her leg, and "[didn't] recall,"
or "[didn't] know" whether he had touched her vagina or not, but
said that if he did, he did not do so intentionally. The
majority is silent regarding the reasonableness of pursuing a
reasonable doubt defense in light of this damning evidence.2
2
The majority does, however, refer to the defendant's
equivocation as "nervousness" or being "flustered." Majority
op., ¶27. I find it unlikely that nervousness would cause
someone to forget whether or not they had twice touched the
vagina of an eight-year-old girl in her classroom during school
just four days earlier.
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No. 2015AP1799-CR.ssa
¶68 Second, trial counsel's decision to not conduct
further investigation into the defendant's brain injury was
unreasonable under the circumstances. Both state and federal
courts have found head injuries to be "red flags" that give rise
to a duty for counsel to investigate further for neurological
damage that may impact the client's case.3
¶69 In the instant case, trial counsel knew that the
defendant suffered from double vision as a result of a traumatic
brain injury to his frontal lobe caused by a serious motorcycle
accident. Rather than consult with a neurologist about the
effects of the defendant's brain trauma, or even obtain the
defendant's medical records, trial counsel instead stopped his
investigation after being told by the defendant and his family
that they did not notice anything abnormal about the defendant's
behavior. In my view, trial counsel did not do enough to
discharge his duty to adequately investigate the defendant's
frontal lobe injury and its impact on the defendant's case.
¶70 Given the impossible odds of a successful reasonable
doubt defense, trial counsel's performance was not reasonable
3
See Ellen G. Koenig, A Fair Trial: When the Constitution
Requires Attorneys to Investigate Their Clients' Brains, 41
Fordham Urb. L.J. 177, 211-12 (2013) (collecting cases); Richard
E. Redding, The Brain-Disordered Defendant: Neuroscience and
Legal Insanity in the Twenty-First Century, 56 Am. U. L. Rev.
51, Appendix (2006) (listing 45 cases in which counsel was
deemed ineffective for failing to investigate when counsel
either knew that the client suffered a traumatic brain injury or
would have learned that information by conducting a proper
investigation).
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No. 2015AP1799-CR.ssa
under prevailing professional norms and was therefore
constitutionally deficient.4
II
¶71 In addition to proving that trial counsel's
performance was constitutionally deficient, the defendant must
also prove that he was prejudiced by trial counsel's deficient
performance. This requires the defendant to "show that there is
a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. "A reasonable probability under
the Strickland prejudice prong is a probability sufficient to
undermine confidence in the outcome." Winnebago Cty. v. J.M.,
2018 WI 37, ¶49, 381 Wis. 2d 28, 911 N.W.2d 41.5
¶72 I conclude that the defendant has shown prejudice in
the instant case. Had trial counsel properly investigated the
defendant's frontal lobe injury, he would have learned that the
defendant suffered from frontal lobe syndrome. Trial counsel
would have learned that as a result of the defendant's frontal
lobe injury, the defendant suffered from a significant decrease
in IQ; deficits to cognitive, emotional, and behavioral
functioning; and abnormal impulsivity. Trial counsel also would
4
Strickland v. Washington, 466 U.S. 668, 688 (1984).
5
See also Winnebago Cty. v. J.M., 2018 WI 37, ¶49, 381
Wis. 2d 28, 911 N.W.2d 41 ("This statement of the prejudice
prong corresponds with another oft-quoted statement from
Strickland about the prejudice prong, namely that the defendant
was prejudiced if he or she was deprived of a fair trial whose
result is reliable.").
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No. 2015AP1799-CR.ssa
have learned that symptoms of frontal lobe syndrome include the
tendency to not read social cues well. Had trial counsel
consulted a doctor regarding the defendant's brain injury and
its symptoms, he would have realized (and the defendant's family
would have corroborated) that, consistent with frontal lobe
syndrome, the defendant shuts down when faced with frustration,
and often gives in to what others want in order to avoid
confrontation.
¶73 Trial counsel's failure to properly investigate the
defendant's frontal lobe injury prejudiced the defendant in at
least two ways.
¶74 First, the information that would have been obtained
through a proper investigation would have supported a plea of
not guilty by reason of mental disease or defect. Given how
disastrous a reasonable doubt defense was under the
circumstances, pleading not guilty by reason of mental disease
of defect may have been the only reasonable strategy to pursue.
¶75 Second, even if trial counsel chose to advance a
reasonable doubt defense, trial counsel should have presented
evidence of the defendant's frontal lobe syndrome and its
symptoms to mitigate the effect of the inculpatory statements
made to the detective during the interview. Coupled with
testimony about the unreliable nature of the Reid technique and
its likelihood of producing false confessions,6 the defendant
6
The defendant presented expert testimony to this effect at
the Machner hearing.
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No. 2015AP1799-CR.ssa
could have significantly mitigated the effect of his equivocal
statements regarding whether he had inappropriately touched D.T.
III
¶76 As our understanding of the connection between brain
trauma and criminal behavior develops, defense attorneys must be
on increased alert for red flags indicating neurological damage
that could have an impact on their clients' cases. In the
instant case, the defendant's trial counsel knew that the
defendant suffered a traumatic brain injury to his frontal lobe
but failed to properly and adequately investigate whether and to
what extent that trauma affected the defendant's case. Trial
counsel's failure to properly investigate the defendant's brain
injury prejudiced the defendant by causing him to argue an ill-
fated reasonable doubt defense that was unreasonable under the
circumstances.
¶77 I would conclude that the defendant succeeded in
proving his claim of ineffective assistance of counsel and is
entitled to a new trial.
¶78 For the foregoing reasons, I dissent.
¶79 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
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No. 2015AP1799-CR.ssa
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