State v. Joshua S. Gehde

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.
November 19, 2020
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. 2019AP1765-CR Cir. Ct. No. 2016CF927

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSHUA S. GEHDE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: STEPHEN E. EHLKE, Judge. Affirmed.

Before Kloppenburg, Graham, and Nashold, JJ.

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. 2019AP1765-CR

¶1 PER CURIAM. Joshua Gehde appeals a judgment of conviction for
first-degree reckless homicide and an order denying his post-conviction motion.
Gehde argues that his two trial attorneys were ineffective by failing to present a
consistent defense. He asserts that one of his attorneys presented arguments in
opening statements and cross-examination of the State’s lay witnesses that
conflicted and were inconsistent with the evidence presented by his other attorney
through testimony by the defense expert witnesses. For the reasons explained
below, we conclude that Gehde’s trial counsel were not ineffective. We affirm.

¶2 Gehde was charged with first-degree reckless homicide based on the
death of two-year old S.K.H., who was the daughter of Gehde’s girlfriend. Gehde
was represented by two attorneys at trial. One of Gehde’s attorneys gave the
opening statement and argued that the evidence would show the following. On the
day of the incident that led to S.K.H.’s death, Gehde was watching S.K.H. while
S.K.H.’s mother was at work. Gehde left S.K.H. in the living room watching
television and eating crackers, while Gehde went into the bathroom to prepare for
the day. When Gehde came out of the bathroom, he found S.K.H. on the floor,
choking and not breathing. Gehde called S.K.H.’s mother, started trying to clear
S.K.H.’s airway, and called 9-1-1. Emergency responders found S.K.H. on the
floor, with what appeared to be regurgitated crackers nearby. Medical personnel
used forceps to remove vomit that was blocking S.K.H.’s airway, but S.K.H. was
still not breathing. Police reported that there was nothing to indicate criminal
activity at the scene and believed that it had been a “tragic accident.”

¶3 Counsel also argued that the medical evidence would show the
following. S.K.H. had a virus and “several other things going on.” S.K.H. was “not
breathing for a long period of time, oxygen is not getting to her brain, her heart
stopped beating, creates … hypoxia … which creates a chemical condition in the

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brain called metabolic acidosis,” which in turn led to brain swelling. S.K.H. did not
have any skull fractures caused by external injury or any injury to her gray and white
brain matter that would have explained why she stopped breathing. The absence of
any evidence of brain injury meant that a brain injury was not the mechanism that
had caused S.K.H.’s brain to shut down, and that instead, it was choking that had
caused her brain to shut down. Additionally, S.K.H.’s MRI at the hospital revealed
blood clots and a neurosurgeon at the hospital had recommended that S.K.H. be
assessed for a stroke. Moreover, testing of S.K.H.’s blood at the hospital indicated
blood clotting abnormalities, but the hospital failed to test for a genetic blood
disorder despite an indication for that testing, and a genetic blood disorder could
have meant that S.K.H. had a predisposition to clotting and that even minor bumps
could have caused blood clots.

¶4 Counsel argued that the investigators had a “tunnel vision” focused
on child abuse, seeing only “part of the picture” rather than the “whole thing.” He
finished his opening statement by arguing that Gehde had not harmed S.K.H., and
that the evidence would show that Gehde found S.K.H. choking; that material was
removed from S.K.H.’s airway that was consistent with choking; that S.K.H. had
blood clots; and that if the jury looked at everything, it would see that Gehde was
not guilty.

¶5 Gehde’s first attorney also questioned the State’s lay witnesses as to
evidence that S.K.H. had choked on crackers. He elicited testimony from
emergency responders that vomit had been removed from S.K.H.’s mouth, that
crackers and vomit were found near S.K.H. on the floor, and that S.K.H. had
difficulty breathing and her lips were blue.

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No. 2019AP1765-CR

¶6 Gehde’s second attorney presented the defense medical evidence.
The first defense expert testified that S.K.H.’s manner of death was “probably … a
natural death,” that is, “a disease process that took place over time.” The expert
described clots in S.K.H.’s sinus, and opined that S.K.H. had a stroke. He also
opined that S.K.H. may have had a genetic blood disorder that caused her to form
blood clots more easily. He testified that S.K.H. had a choking episode that
prevented oxygen from getting to her brain. He ended his direct testimony by
reiterating that he believed S.K.H. died of a stroke. He explained that S.K.H. had a
cold virus that caused her to become dehydrated, and that the dehydration led to
blood clots that led to brain swelling. He again stated that S.K.H.’s death was from
a “natural disease process.”

¶7 The second defense expert witness testified that S.K.H. died after
suffering a stroke that led to a seizure and subsequently lack of oxygen and swelling
of her brain. He testified that S.K.H. had developed blood clots in her brain, which
irritated her brain and caused a seizure. He also testified that evidence that S.K.H.
had choked and bitten her tongue was consistent with his conclusion that she had
suffered a seizure.

¶8 The third defense expert witness testified that S.K.H. had died due to
lack of oxygen to her heart and brain, which he believed was caused by a choking
episode or a seizure caused by a blood clot in her brain. He also explained that a
seizure could look like choking to a layperson.

¶9 Gehde filed a postconviction motion arguing that his trial counsel
were ineffective by presenting conflicting and inconsistent defenses. He argued that
his first attorney, through his opening statement and cross-examining the State’s lay
witnesses, pursued a defense that S.K.H. had died from choking on crackers, while

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his second attorney, through the defense expert witnesses, had pursued a defense
that S.K.H. had died from a stroke.

¶10 The circuit court held an evidentiary hearing on Gehde’s
postconviction motion. Both of Gehde’s trial counsel testified at the postconviction
motion hearing that they failed to properly communicate with each other as to the
defense theory, and that they did not believe they effectively presented a consistent
defense to the jury. The circuit court found that defense counsel were not deficient
in their presentation of the defense at trial and also that any deficiency did not
prejudice the defense, and denied the postconviction motion. Gehde appeals.

¶11 A defendant claiming ineffective assistance of counsel must establish
that counsel’s performance was both deficient and prejudicial. See Strickland v.
Washington, 466 U.S. 668, 687-694 (1984). Counsel’s performance is deficient if
it falls outside the wide range of professionally competent assistance. Id. at 690. If
the defendant fails to establish deficient performance, we need not address
prejudice. Id. at 697. We review the circuit court’s factual findings as to an
ineffective assistance of counsel claim under the clearly erroneous standard, but
independently review whether those facts establish that counsel was ineffective.
State v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695.

¶12 Gehde argues that his trial counsel were ineffective by presenting
inconsistent theories to the jury about the cause of S.K.H.’s death. Gehde argues
that his first attorney presented a defense to the jury that S.K.H. had died because
she choked on crackers, while his second attorney presented a defense to the jury
that S.K.H. died because she had a stroke. He notes that the two defense theories
had some overlap—with each attorney referencing both choking and blood clots—
but contends that the two attorneys presented different and inconsistent theories as

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No. 2019AP1765-CR

to the cause of S.K.H.’s death. Gehde contends that, from opening statements
through the first five days of trial, his first attorney presented a defense that S.K.H.
had died by choking on crackers. He points out that his first attorney argued that
choking was the mechanism that caused S.K.H.’s brain to shut down. He asserts
that, in the opening statement, counsel sprinkled in mentions of blood clots but
provided no explanation as to the relevance of the blood clots or how the experts
would connect the blood clots to S.K.H.’s death. He contends that, suddenly, after
the first full week of trial, his second attorney introduced a completely new theory:
that S.K.H. had a pre-existing condition that caused her to form blood clots more
easily and that she died of a stroke. He argues that the defense expert witnesses
completely undercut his opening statement, and that the defense lost all credibility
as a result. He cites his counsel’s testimony at the postconviction motion hearing
as establishing that the reason for the lack of consistency was counsel’s failure to
communicate and properly prepare for trial.

¶13 The State responds that Gehde’s two defense attorneys presented a
consistent theory of defense: that S.K.H. died from a sequence of physical events,
possibly stemming from blood clots, rather than inflicted trauma. It points out that
Gehde’s counsel are presumed to have exercised reasonable professional judgment
and made sound strategic decisions at trial. See State v. Balliette, 2011 WI 79, ¶¶25,
27, 336 Wis. 2d 358, 805 N.W.2d 334. It argues that Gehde’s first attorney correctly
set forth in his opening statement that the evidence would show that S.K.H. was
found choking, possibly due to blood clots, and that there was a lack of any external
trauma to S.K.H. that would establish physical abuse. It argues that the three
defense experts were largely consistent with the defense opening statement because
they opined that S.K.H. was found choking and that she had blood clots in her
sinuses that may have caused a seizure and brain swelling. The State also points

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No. 2019AP1765-CR

out that the circuit court was not required to accept Gehde’s defense counsel’s
assertions at the postconviction motion hearing that they failed to adequately
prepare for trial. See State v. Kimbrough, 2001 WI App 138, ¶¶29, 35, 246 Wis. 2d
648, 630 N.W.2d 752 (the circuit court is entitled to accept or reject trial counsel’s
testimony at a postconviction motion hearing; counsel’s testimony is considered
along with other evidence in the record in deciding whether counsel’s performance
was deficient).

¶14 Professionally competent assistance encompasses a “wide range” of
conduct, and a reviewing court starts with the presumption that counsel’s assistance
fell within that wide range. Strickland, 466 U.S. at 689. Here, despite trial
counsel’s testimony at the postconviction motion hearing, our review of the trial
transcripts establishes that counsel presented a consistent defense theory: that
S.K.H. died from lack of oxygen to her brain caused by a series of physical reactions
that were not caused by physical abuse.

¶15 Gehde’s first attorney argued in opening statements that the evidence
would show that Gehde found S.K.H. choking on crackers, and also that S.K.H. had
“several other things going on,” including a virus and blood clots. While counsel
did not lay out in opening statements how the defense experts would specifically tie
the blood clots to S.K.H.’s death, he informed the jury that the evidence would show
that S.K.H.’s death was not caused by physical abuse. Gehde’s first attorney also
elicited testimony from State witnesses consistent with Gehde’s report that he found
S.K.H. choking on crackers. Gehde’s second attorney presented expert medical
testimony opining that S.K.H. may have had a genetic blood clotting disorder; that
she had blood clots and a stroke that caused a seizure and brain swelling; that she
had a choking episode; and that she died as a result of loss of oxygen to her brain.
Gehde’s second attorney also elicited testimony from the experts opining that

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No. 2019AP1765-CR

S.K.H.’s death was not caused by physical abuse. Thus, defense counsel did not
pursue inconsistent theories; they both pursued the theory that Gehde did not harm
S.K.H., but rather found her choking on crackers, and that the series of physical
reactions that led to her death could be traced to blood clots, rather than physical
abuse.

¶16 We conclude that Gehde has not met his burden to show that his
defense counsel performed deficiently. See Strickland, 466 U.S. at 687, 690.
Accordingly, we affirm the judgment of conviction and the order denying Gehde’s
postconviction motion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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