State v. Nicholas D. Tuinstra

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 17, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP816-CR Cir. Ct. No. 2014CF113

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NICHOLAS D. TUINSTRA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Green Lake County: MARK T. SLATE, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP816-CR

¶1 PER CURIAM. Nicholas D. Tuinstra appeals from a judgment of
conviction for two counts of first-degree intentional homicide and one count of
stalking resulting in bodily harm, by use of a dangerous weapon, as an act of
domestic abuse. Tuinstra also appeals from an order denying his postconviction
motion. He argues that he is entitled to a new trial because the trial court
erroneously “deferr[ed] to the sheriff’s request” to have the defendant in leg
shackles during the jury trial and because the two attorneys who represented
Tuinstra provided ineffective assistance in numerous ways.1 We reject his
arguments and affirm.

BACKGROUND

¶2 On a Saturday night in September 2014, Tuinstra’s estranged wife,
Melissa Tuinstra (hereafter, “Melissa”), and her boyfriend, Justin Daniels, were
shot multiple times at Melissa’s apartment building, causing their deaths.
Melissa’s body was found on the sidewalk outside her apartment building by
customers leaving a bar. Daniels’ body was subsequently discovered inside the
building, at the entrance to Melissa’s apartment.

¶3 The next morning, an investigator interviewed Tuinstra, who told her
that he had never been to Melissa’s apartment except to drop off their daughter
outside the building. In that recorded interview, Tuinstra said the last time he
spoke with Melissa was at about 9:00 p.m. the night before when he called to talk
with her after having a bad dream. He said Melissa told him that he was “just

1
Some of Tuinstra’s allegations of ineffective assistance relate to both attorneys, while
other allegations are specific to the attorney who cross-examined particular witnesses. For ease
of reference, we will refer to “trial counsel” in the singular throughout this decision.

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No. 2019AP816-CR

having an anxiety attack” and should go to his mother’s house. Tuinstra told the
investigator he could hear Daniels in the background when he spoke with Melissa.
Tuinstra said after talking with Melissa, he got into his car and drove to his
parents’ house, where his daughter was staying the night, arriving at
approximately 10:00 p.m.

¶4 When Tuinstra was asked about guns that he owned, he identified
four guns that he had recently taken to his parents’ house for safekeeping.
Notably, the guns Tuinstra mentioned did not include a 9mm gun, which was the
type used in the homicides. Tuinstra said he had traded guns in the past, and the
last time he had done so was “last year maybe.” At the conclusion of the
interview, Tuinstra was allowed to leave the police station and was not
immediately charged with any crimes.

¶5 Two days after his first interview with the police, Tuinstra was
served with a search warrant so officers could collect his DNA and fingerprints.
Tuinstra said that he “just wanted to fill a few gaps” in his statement. Tuinstra
participated in another recorded interview with the same investigator and a captain
(collectively, “the officers”).

¶6 Tuinstra told the officers that Melissa used to shoot guns with him
and that in the days before her death, Tuinstra gave Melissa a Beretta 9mm gun
that he had acquired after trading in another gun. Tuinstra said he also gave
Melissa a fifteen-round magazine for the gun. The officers told Tuinstra they did
not believe him, and they shared information that had been gathered in the days
since Tuinstra’s first interview. For instance, cell phone records indicated that the
night Melissa and Daniels were killed, Tuinstra called and spoke with Melissa
twice, at 9:45 p.m. and again a few minutes later. The officers told Tuinstra that

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after the first call, Melissa texted Tuinstra, “Not tonight, in the morning.” Her last
text to him, at 9:58 p.m., stated, “Please and sorry.”

¶7 The officers also told Tuinstra they had a recording of gunshots
being fired at 10:14 p.m., so they knew that Melissa and Daniels died about fifteen
minutes after Tuinstra spoke with Melissa. Confronted with this information,
Tuinstra admitted that he walked ten minutes from his home to Melissa’s
apartment. He said he tried to talk to Melissa, who was on the stairs leading to her
apartment, at the same time that Daniels was standing at the door of the apartment,
asking Melissa to come back in. Tuinstra said that after Daniels closed the door to
the apartment, Tuinstra heard a noise “like something was being cocked … like he
was playing with their gun or door lock.”

¶8 When officers asked what happened next, Tuinstra indicated that he
wanted to “say the rest with an attorney.” The officers ended the interview, and
Tuinstra did not give any subsequent interviews to the police.

¶9 Tuinstra was charged with two counts of first-degree intentional
homicide. After extensive pretrial litigation, during which the State added one
count of stalking, the case proceeded to a jury trial.

¶10 At the six-day trial, the State presented evidence concerning the two
homicides and Tuinstra’s relationship with Melissa. The State argued that
Tuinstra displayed controlling behavior and stalked Melissa after she left him less
than a month before the homicides. The State also played for the jury the two
videotaped interviews that Tuinstra gave to the police. In addition, the State
introduced purchase records and testimony concerning the Beretta 9mm gun that
Tuinstra purchased in July 2014, which was never found even after the police
searched Tuinstra’s home, his parents’ home, and Melissa’s apartment.

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No. 2019AP816-CR

¶11 Tuinstra did not testify at trial. In her closing argument, trial counsel
questioned the State’s time line for the homicides, suggesting that Tuinstra may
have gone to speak with Melissa at her apartment before the two spoke on the
phone. Trial counsel argued that it is unlikely Tuinstra could have shot the
victims, walked home, changed clothes, disposed of evidence, and driven to his
parents’ house by 11:10 p.m., the time a neighbor’s surveillance camera filmed
Tuinstra’s car arriving. Trial counsel also disputed the State’s suggestion that
Tuinstra stalked Melissa, and she emphasized that there was no DNA or other
physical evidence that Tuinstra had been present for the shootings.

¶12 The jury found Tuinstra guilty of all charges. The trial court
sentenced Tuinstra to two consecutive life terms without the possibility of
extended supervision, and it imposed a concurrent eight-year sentence for the
stalking count.

¶13 Represented by postconviction counsel, Tuinstra filed a
postconviction motion seeking a new trial on numerous grounds, including
ineffective assistance of counsel. Over four days, the trial court heard testimony
from numerous witnesses, including the two attorneys who represented Tuinstra at
trial. Ultimately, the trial court denied Tuinstra’s motion in a written decision.
This appeal follows.

DISCUSSION

¶14 Tuinstra argues that he is entitled to a new trial because the trial
court erroneously “deferr[ed] to the sheriff’s request” to have the defendant in leg
shackles during the jury trial and because his trial counsel provided ineffective

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No. 2019AP816-CR

assistance in multiple ways.2 For reasons explained below, we reject Tuinstra’s
arguments and affirm.

I. Use of leg shackles at trial

¶15 Prior to trial, Tuinstra filed a motion in limine seeking, among other
things, an order allowing him “to appear in court in street clothing and without
shackles or handcuffs because his appearance in jail clothing and restraints would
unduly prejudice the defendant.” At a pretrial conference two weeks before the
trial, the State did not object to Tuinstra’s request to appear in street clothes, and it
expressed no preference concerning shackles or handcuffs, stating: “I leave
security arrangements to the people who are professionals.”

¶16 The trial court said that it had spoken with the sheriff’s department,
which was recommending the use of leg shackles. The trial court acknowledged
that Tuinstra did not want any restraints, but it said that it wanted to “defer to the
sheriff’s department as to what they believe is in the best interest of everybody
involved.” The trial court continued: “I can override them, but I’m only going to
do so with a very good reason. And I guess I leave that up—that’s kind of the
tentative ruling is civilian clothes, he will have shackles on his feet.” The trial
court also described the procedures that it would use during the trial to ensure that
the jurors did not see the shackles, including how they would enter the courtroom
during voir dire. The trial court said that “[i]f the defense wants to argue it or
come up with something else,” it could do so on the Friday before the trial, when

2
Tuinstra has not pursued all of the issues he raised in his postconviction motion. Those
unbriefed issues are deemed abandoned and we will not discuss them. See Reiman Assocs., Inc.
v. R/A Advert., Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292 (Ct. App. 1981) (holding that
issues not briefed are deemed abandoned).

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No. 2019AP816-CR

the parties were already scheduled to appear for a hearing. It is undisputed that
Tuinstra did not ask the trial court to reconsider its “tentative ruling” that Tuinstra
would have shackles on his legs.

¶17 On appeal, Tuinstra argues that the trial court “erroneously exercised
its discretion by deferring to the sheriff’s department decision that the defendant
should be shackled during trial.” He further argues that the trial court’s “shackling
decision violated [his] right to a fair trial.” We are not persuaded that Tuinstra is
entitled to relief.

¶18 “[I]n the exercise of its discretion, a [trial] court may require
restraints when ‘they are necessary to maintain order, decorum, and safety in the
courtroom.’” State v. Ziegler, 2012 WI 73, ¶84, 342 Wis. 2d 256, 816 N.W.2d
238 (citation omitted). Ziegler held that the extent to which the trial court needs to
address the reasons for restraints depends on whether the restraints are visible to
the jury. See id., ¶86 (holding that when the restraints are not visible to the jury,
the trial court is not required “to inquire into the necessity of hidden restraints”
(citation omitted)).

¶19 Here, the trial court took steps to ensure that the leg shackles were
not visible to the jury, and Tuinstra does not assert that the jurors saw the leg
shackles. Therefore, under Ziegler, the trial court was not required to delve into
the reasons for those restraints. See id. Nonetheless, the trial court briefly
considered the issue in response to Tuinstra’s motion in limine. The trial court
explained that while it generally defers to the sheriff’s department’s advice, it was
open to changing its “tentative decision” if the defense offered a good reason for
doing so. Trial counsel did not again raise the issue. We cannot fault the trial

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No. 2019AP816-CR

court for not revisiting the use of leg shackles when the defense chose not to offer
arguments why it should do so.

¶20 Moreover, when Tuinstra questioned the trial court’s leg shackling
decision in postconviction proceedings, the trial court had an opportunity to
further explain why it had decided to follow the sheriff’s department’s advice. It
said that “[l]eg shackles are considered the least restrictive security measure the
[c]ourt has access to in Green Lake County” and that they were appropriate for
Tuinstra, “a person charged with two very violent, horrific crimes, who had a
$1,000,000.00 cash bond.” We agree with the State that those reasons supported
the trial court’s exercise of discretion.

II. Ineffective assistance of counsel

¶21 Tuinstra asserts that trial counsel performed deficiently in eleven
ways and that he was prejudiced by those deficiencies, both individually and
cumulatively. “Whether a defendant received ineffective assistance of counsel
presents a mixed question of law and fact.” State v. Domke, 2011 WI 95, ¶33, 337
Wis. 2d 268, 805 N.W.2d 364. On appeal, we will uphold the trial court’s
“findings of fact, including the circumstances of the case and the counsel’s
conduct and strategy, unless they are clearly erroneous.” Id. (citation omitted).

¶22 A defendant who seeks to establish that he was denied the
constitutional right to effective assistance of counsel “must prove two elements:
(1) his counsel’s performance was deficient, and (2) the deficient performance
prejudiced the defense.” State v. Sholar, 2018 WI 53, ¶32, 381 Wis. 2d 560, 912
N.W.2d 89. We need not address both prongs of the test if the defendant fails to
make a sufficient showing on either one. Strickland v. Washington, 466 U.S.
668, 697 (1984).

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No. 2019AP816-CR

¶23 To establish deficient performance, a defendant must show specific
acts or omissions of counsel that were “outside the wide range of professionally
competent assistance.” Id. at 690. “A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight ...
and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689.
Thus, “counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment.” Id. at 690.

¶24 “To prove prejudice, a defendant must establish that ‘particular
errors of counsel were unreasonable’ and ‘that they actually had an adverse effect
on the defense.’” Scholar, 381 Wis. 2d 560, ¶33 (quoting Strickland, 466 U.S. at
693) (emphasis omitted). Our supreme court has explained:

To establish prejudice the defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. When a defendant challenges a conviction, the
question is whether there is a reasonable probability that,
absent the errors, the factfinder would have had a
reasonable doubt respecting guilt. We examine the totality
of the circumstances to determine whether counsel’s errors,
in the context of the entire case, deprived the defendant a
fair trial. It is not sufficient for the defendant to show that
his counsel’s errors had some conceivable effect on the
outcome of the proceeding.

Domke, 337 Wis. 2d 268, ¶54 (citation omitted). In addition, “when a court finds
numerous deficiencies in a counsel’s performance, it need not rely on the
prejudicial effect of a single deficiency if, taken together, the deficiencies establish
cumulative prejudice.” State v. Thiel, 2003 WI 111, ¶59, 264 Wis. 2d 571, 665
N.W.2d 305.

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No. 2019AP816-CR

¶25 With those legal standards in mind, we turn to Tuinstra’s ineffective
assistance claims. The first claim relates to a change in courtroom security that
occurred on the third day of the trial. The State raised concerns about a recorded
conversation that Tuinstra had with his father the previous night, during which
Tuinstra indicated that he was “going to try something here and see what happens”
and also referred to a mistrial.3 Ultimately, to address security concerns about
Tuinstra’s comments, the table at which Tuinstra was sitting was moved slightly
and an additional deputy sat near Tuinstra.

¶26 According to trial counsel’s testimony at the postconviction motion
hearing, the decision to move the table and add an additional deputy was the result
of a plan worked out when trial counsel, the State, and representatives of the
sheriff’s department met privately to discuss the need for additional security
measures in light of Tuinstra’s statements. Trial counsel said that “originally, they
wanted him in wrist shackles,” but she objected to both that idea and a proposal to
turn Tuinstra’s table so that he would be on the end, directly facing the jury. Trial
counsel said she concluded that the agreement she reached with the State and the
sheriff’s department—which the trial court later accepted—was “the best possible
result out of everything that we had discussed.” She testified that she was satisfied
with the agreement and did not think the changes were “anything that was
noticeable to the jury.” She added: “It was a good compromise.” Trial counsel
said she did not “think it made much difference” for Tuinstra to be moved slightly
farther away from her.

3
At the postconviction hearing, Tuinstra asserted that when he spoke with his father, he
was referencing his plan to fire his attorneys, not suggesting that he was going to cause a
disturbance. We need not determine the meaning of Tuinstra’s statements to resolve his
ineffective assistance claim.

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No. 2019AP816-CR

¶27 In its written decision, the trial court found “that the security
measures of slightly turning the table that the defendant was seated at, and adding
an additional deputy were insignificant.” The trial court concluded that trial
counsel was not deficient for failing to object to those changes, adding: “It could
be argued that to object to such a minor change could be ineffective,” because if
the parties had not reached an agreement, the trial court “could have made much
more significant changes … that could have affected the communication between
the defendant and his attorneys and would have been noticeable to the jurors.”
The trial court indicated that “significant deference should be afforded to [the
decisions of] trial counsel.”

¶28 We agree with the trial court that Tuinstra has not shown that trial
counsel performed deficiently with respect to the security changes. Trial counsel
assessed the concerns of the State and the sheriff’s department, advocated against
shackling Tuinstra’s hands and turning his table to face the jury, and agreed to
changes that the trial court later found were insignificant. Tuinstra has not
overcome the presumption that trial counsel “rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment.” See Strickland, 466 U.S. at 690.

¶29 Next, we turn to Tuinstra’s second allegation of ineffective
assistance. Tuinstra argues that trial counsel failed to adequately research the
State’s domestic violence expert and utilize an independent expert to dispute what
Tuinstra asserts were inaccurate statistics about domestic violence.4 The trial

4
Although the State originally wanted its expert to testify about domestic violence and
Tuinstra’s actions, the trial court granted Tuinstra’s motion to limit the expert’s testimony to
generalities of domestic violence.

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No. 2019AP816-CR

court found that trial counsel did not perform deficiently because she made a
strategic decision to focus on the fact that Tuinstra did not commit the crimes,
rather than draw attention to the domestic violence issue by calling a different
expert to refute the State’s expert.

¶30 We decline to address whether trial counsel performed deficiently,
because Tuinstra has not shown that he was prejudiced by trial counsel’s failure to
refute the expert’s testimony or by any of the other alleged errors in trial counsel’s
performance.5 See id. at 697.

¶31 The trial court’s written decision analyzes key trial evidence that
supported the State’s theory that Tuinstra stalked Melissa and shot both Melissa
and Daniels. For instance, Tuinstra’s neighbor testified that he overheard a phone
conversation between Tuinstra and Daniels where Tuinstra said, “[I]f I find you, I
am going to kill you.” In addition, Tuinstra “had access to guns, and he practiced
shooting them regularly.” The trial court noted: “The autopsies confirmed that 13
of 14 shots hit the bodies of Melissa and [Daniels], and nine of the shots were fatal
wounds.” Further, the Beretta 9mm handgun that Tuinstra purchased two and one-
half months before the homicides was never found; a search of Tuinstra’s home
uncovered only the empty box for the gun.

5
Tuinstra argues that trial counsel performed deficiently by failing to: (1) introduce
“selfies” of Melissa to rebut witnesses’ claims that her neck was bruised, (2) introduce text
messages from Melissa to Daniels to provide an alternate theory for bruises on Melissa and a
motive for her to lie about Tuinstra, (3) elicit testimony from Tuinstra’s divorce lawyer
concerning Melissa’s demeanor toward Tuinstra, (4) object to hearsay statements about Tuinstra’s
alleged threat to commit suicide, (5) object to hearsay statements in Melissa’s journals, (6) object
to hearsay statements that Melissa told a friend she would not call the police because she feared
what Tuinstra would do, (7) object to a friend’s statement about the reason she shared a Facebook
message with Melissa, (8) impeach a witness with a Facebook conversation, and (9) object to
certain questions asked of Melissa’s friend.

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No. 2019AP816-CR

¶32 The trial court’s decision also discussed the night Melissa and
Daniels were shot. Tuinstra admitted that he spoke with Melissa by phone and
text, although a forensic analysis of Tuinstra’s phone revealed that “he had deleted
certain content,” including his contacts with Melissa on the night of her death.
The police were able to pinpoint the time of the homicides by listening to a voice
mail message Daniels left for a friend at 10:14 p.m. That recorded message
contained only the sounds of gunshots, “a door slamming,” and then silence,
indicating that Daniels and Melissa were shot “only minutes after [Tuinstra] would
have arrived after walking to Melissa’s apartment from his house.”

¶33 The trial court discussed Tuinstra’s statements to the police. In the
first interview, Tuinstra “did not reveal that he owned a 9mm handgun,” even
though he was asked—twice—to list all of his guns. Further, Tuinstra claimed in
his first interview that he had never been to Melissa’s apartment, but in his second
interview, he admitted that he went to the apartment the night of the homicides.

¶34 Ultimately, the trial court concluded that the numerous alleged
deficiencies of trial counsel did not “undermine confidence in the reliability of the
result of the trial” and that there was not “a reasonable probability that a jury
viewing the evidence untainted by counsel’s errors would have had a reasonable
doubt respecting guilt.”

¶35 On appeal, Tuinstra alleges that he was prejudiced by trial counsel’s
alleged deficiencies, both individually and cumulatively, but he does not directly
address the trial court’s prejudice analysis. For instance, he argues that trial
counsel’s failure to challenge the State’s domestic violence expert allowed the
State to “paint[] a frightening picture of domestic violence as an out of control
epidemic using statistics of dubious validity.” Similarly, when Tuinstra argues

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No. 2019AP816-CR

that trial counsel should have objected to the introduction of Melissa’s hearsay
statements to a friend about her fear of Tuinstra, he asserts: “It was unfairly
prejudicial and would have negatively affected the jurors’ view of Tuinstra.”
However, Tuinstra does not adequately explain how a more robust examination of
the State’s domestic violence expert or the exclusion of numerous hearsay
statements would have affected the remaining evidence that the trial court
discussed in its prejudice analysis. Tuinstra’s arguments are insufficient to
demonstrate prejudice as defined by Strickland and its progeny.

¶36 We have reviewed the entire record in this case, including the trial
court’s detailed summary of the evidence against Tuinstra. Having “examine[d]
the totality of the circumstances to determine whether counsel’s errors, in the
context of the entire case, deprived the defendant a fair trial,” we conclude that
Tuinstra has not shown that “there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt respecting guilt.” See
Domke, 337 Wis. 2d 268, ¶54 (citation omitted). Whether we consider the alleged
errors individually or cumulatively, Tuinstra has not established prejudice.
Therefore, he is not entitled to a new trial based on his allegations that trial
counsel provided ineffective assistance.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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