A jury convicted Smith of 2nd degree sexual assault of A.B. He argued that his trial counsel was ineffective for failing to object when (1) statements from a non-testifying sexual assault nurse examiner (SANE) were admitted in violation of the Confrontation Clause, and (2) the circuit admitted a DOC photo of Smith and two officers testified that the photo was obtained from the DOC, thereby informing the jury that Smith had previous convictions. The circuit court denied both claims without a Machner hearing. The court of appeals reverses and remands for a hearing.
Confrontation Clause. The SANE who examined A.B. did not testify at trial. Her manager did. And during the manager’s testimony, the State moved the S.A.N.E.’s records into evidence. Counsel did not object based on the Confrontation Clause.
The court of appeals held that Smith’s postconviction motion asserting ineffective assistance made all of the required allegations. among other things, the SANE’s statements were testimonial, and Smith did not have an opportunity to cross-examine her. See Crawford v. Washington, 541 U.S. 36 (2004). The admission of the SANE’s documentation prejudiced Smith because without this documentation the State could not have introduced DNA evidence linking him to the victim. Opinion, ¶¶16-17.
The State argued that trial counsel did not perform deficiently, and Smith didn’t deserve a hearing because the SANE examination report was not testimonial. Not so, said the court of appeals. Opinion, ¶19 (citing State v. Nelson, 2021 WI App 2, ¶¶63-64, 395 Wis. 2d 585, 954 N.W.2d 11 (Davis, J., concurring) (emphasizing that “a SANE or similar exam may give rise to testimonial evidence in one situation and not another”).
The State also argued that trial counsel didn’t perform deficiently for another reason that defense lawyers often encounter–allegedly the law on this issue is unsettled. The court of appeals didn’t buy that either:
¶26 . . . While it is true that there may not have been binding Wisconsin law addressing this specific factual scenario in 2018 at the time of the trial in this case, the legal principles regarding a defendant’s right to confrontation were well-established. See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 564 U.S. 647 (2011); State v. Mattox, 2017 WI 9, 373 Wis. 2d 122, 890 N.W.2d 256.
Because the State failed to respond to Smith’s prejudice argument, the court of appeals deemed it conceded under Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). It, therefore, ordered a Machner hearing on Smith’s first claim.
When is the last time the court of appeals used Charolais Breeding against the government?
But it did not stop there. Smith also won a Machner hearing on his claim that trial counsel should have objected to the DOC photo and testimony because it amounted to improper other-acts evidence and that it was irrelevant to whether Smith assaulted A.B. See WIS. STAT. § 904.04(2)(a) (stating that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith”); WIS. STAT. § 904.01 (stating that “‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of theaction more probable or less probable than it would be without the evidence.”)
On this issue, the State claimed that there was no prejudice to Smith because his semen was found on A.B.’s vaginal and cervical swabs. But the court of appeals pointed out that the State had to prove more than that sex occurred. In this case, its sexual assault claim required proof that A.B. was so intoxicated that she lacked the capacity to consent to sex. But there was no conclusive evidence of her intoxication level.