State v. David Wayne Ross, 2020AP261, 6/29/21, District 1 (not recommended for publication); case activity (including briefs)

Over a dissent, the court of appeals holds that, even if Ross is right that his trial lawyer performed deficiently in certain respects, Ross’s defense wasn’t prejudiced.

Ross was charged with sexually assaulting D.D.W. His defense was that they had consensual sex, and that’s what he said on the stand. (¶¶2-12). So credibility was the key issue.

Ross and D.D.W. had exchanged a number of text messages the day before and day of the alleged assaults, which were introduced at trial. (¶5 n.4). In them, she accused Ross of drinking and drug use. She also testified that Ross used crack while she was with him in his apartment. Trial counsel didn’t object to this evidence. (¶14).

The court isn’t persuaded by the state’s claim that trial counsel had a legitimate strategy for not objecting (especially since Ross’s postconviction motion was denied without a Machner hearing (¶30), but instead finds there was no prejudice. While the jury heard D.D.W.’s claims that Ross was using crack and drinking, it also heard multiple police officers testify that no crack, crack residue, crack pipes, or for that matter gin or beer was found in Ross’s apartment. Thus, the evidence “did not impugn Ross’s credibility such that our confidence in the trial outcome is shaken.” (¶31).

As for the text messages, trial counsel’s strategy to deal with them was to argue the messages presented in the state’s exhibit were manipulated or faked and shouldn’t be trusted. To that end,  trial counsel introduced records subpoenaed from D.D.W.’s cell phone, which did not show five messages seen in the state’s exhibit and which Ross testified that he had not seen. But as the state showed in rebuttal, trial counsel asked only for records of SMS texts, not MMS texts, which is what the missing texts were. While trial counsel also put on a private investigator to suggest messages could be faked,  she was unable to explain how. (¶¶18-22).

Ross argues this misbegotten, insufficiently investigated strategy was unreasonable and destroyed Ross’s credibility, not D.D.W.’s. Assuming trial counsel was deficient for not understanding the flaw in this strategy, the majority isn’t convinced his error prejudiced the defense because trial counsel did other things to undermine D.D.W.’s credibility and offers only “conclusory allegations” that the misguided text manipulation argument hurt Ross’s own credibility. (¶¶35-36).

The dissenting judge offers the more persuasive view that trial counsel’s strategy should undermine confidence in the verdict. Trial counsel thought the phone records were “a knock-out punch,” and told the jury during opening that “the most troubling part is that these photos [of D.D.W.’s phone] do not match the objective evidence of the certified phone records from the phone company.” (¶45). He presented a chart identifying discrepancies between the photos and the telephone company’s records and highlighted the discrepancies. When the state’s rebuttal witness revealed his error, trial counsel told the jury: “I screwed up as a defense attorney when I didn’t subpoena the MMS messages” because the purportedly missing text messages “looked to me as a defense attorney like a big deal,” until he learned that “[m]aybe that isn’t.” (¶46). Thus:

¶48     …. It appears that D.D.W.’s credibility was significantly damaged at trial, both due to the absence of any evidence to corroborate her allegations of Ross’s drug and alcohol use, and also through other aspects of trial counsel’s cross examination. If the jury disbelieved D.D.W. about the drugs and alcohol, there is a reasonable probability that that would have been enough to secure an acquittal on the sexual assault charges—except that counsel promised conclusive proof that she falsified text messages and that proof fell flat.

Not only fell flat, but possibly rehabilitated her credibility. And don’t forget that Ross testified he didn’t see the MMS messages, so once the flaw in the phone records was revealed, that testimony might well have sounded to the jury like a convenient lie, thus showing trial counsel’s error undermined Ross’s credibility.