State v. Romaine J. Reed

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.
February 28, 2023
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. 2021AP127 Cir. Ct. No. 2014CF1584

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROMAINE J. REED,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and White, 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. 2021AP127

¶1 PER CURIAM. Romaine J. Reed, pro se, appeals an order denying
his motion for postconviction relief under WIS. STAT. § 974.06 (2021-22).1 Reed
contends that his trial attorney was ineffective for failing to retain and present at
trial a child psychologist. In addition, Reed requests that this court grant a new
trial in the interest of justice. For the reasons set forth below, we reject Reed’s
arguments, and affirm.

BACKGROUND

¶2 Reed was charged with one count of repeated sexual assault of his
daughter, Annie, between May and August 2012.2 In 2014, the case went to trial.
Annie, who was five years old at the time of the trial, testified that Reed had
inserted his penis into her mouth and into her bottom on more than two occasions
when she was three years old. Annie also testified that Reed called what came out
of his penis during the assaults “yogurt,” and that he made her eat it.

¶3 Melanie, Annie’s mother, testified that Reed had lived with them in
2012. In May and June of 2012, Melanie stated that Reed would often be home
alone with Annie while Melanie was at work. In May of 2012, Melanie testified
that Annie began wetting herself frequently.

¶4 Melanie further testified that Annie began to make comments about
Reed’s penis. In November of 2012, Annie told her that “[Reed] kisses my
snood,” which is a term the family uses to refer to the vagina. Melanie testified

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
For confidentiality purposes, we refer to the child victim and her mother by
pseudonyms.

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No. 2021AP127

that on another occasion, while Annie was eating cherries, Annie said this is “what
[Reed’s] penis feel[s] like.” Additionally, when Melanie was changing her son’s
diaper, Annie said “his wicky is little,” and Reed’s “wicky looks like that just
bigger.” Annie also told her that Reed had put his penis in her mouth and told her
to touch his penis in a certain way. Annie showed Melanie the motion.

¶5 In addition to Annie and Melanie, the State called a number of other
witnesses including Amanda Didier, a child forensic interviewer, who testified
generally about child sexual assault disclosure. The State also moved into
evidence two interviews of Annie, one conducted by Officer Cindy Carlson, and
one conducted by Rebecca McFadden, a social worker from the Bureau of
Milwaukee Child Welfare. The defense did not present any witnesses.

¶6 A jury found Reed guilty as charged. Reed was sentenced to a total
of thirty years of initial confinement and fifteen years of extended supervision.

¶7 In 2016, Reed moved for postconviction relief asserting that his trial
attorney was ineffective for failing to cross-examine Melanie about the fact that
she was upset at Reed’s family for filing taxes on Reed’s behalf and claiming a
deduction for Annie. The motion also alleged that trial counsel should have
presented testimony from Paris, Reed’s brother, that Melanie had threatened that
Reed would “do the max if she did not get her tax money.” According to the
motion, this was relevant and material to Melanie’s credibility and constituted a
motive for Melanie to “coach” Annie. The circuit court denied the motion without
a hearing.

¶8 Reed appealed to this court, arguing that the circuit court
erroneously denied his postconviction motion. Additionally, Reed contended that:
the evidence was insufficient to support the verdict; the circuit court should have

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granted a mistrial; the circuit court erroneously overruled his objections to witness
testimony; and he was entitled to a new trial in the interest of justice. This court
affirmed, see State v. Reed (Reed I), No. 2017AP883-CR, unpublished slip op.
(WI App. Sept. 18, 2018), and the Wisconsin Supreme Court denied review.

¶9 Subsequently, Reed, pro se, filed the WIS. STAT. § 974.06 motion
underlying this appeal. Reed alleged that his trial attorney was ineffective for
failing to retain and present a child psychologist.

¶10 In support of his motion, Reed retained Dr. Carol Mellen to examine
his case. Based on Mellen’s report, which Reed filed with his motion, Reed
contended that: (1) investigators relied on an incorrect format to obtain Annie’s
statements; (2) the determination that Annie could differentiate between the truth
and a lie was flawed; (3) one of the investigators often completed Annie’s
narratives with her own opinions of what Annie may have experienced, creating
bias; (4) there was no standardized measure of the quality of Annie’s behavioral
presentation or developmental status; (5) investigators used leading questions,
which increased the likelihood of error; (6) the use of anatomical figures tainted
Annie’s statements; and (7) the multiple interviews of Annie tainted her
statements. Additionally, Reed contended that there were multiple signs that
Annie was “coached,” and extrinsic factors provided for Annie’s use of sexual
knowledge and terms.

¶11 In addition to the report from Dr. Mellen, Reed also filed an affidavit
from himself. The affidavit alleged that he had requested that his trial attorney
and his postconviction attorney retain an expert witness “to review the statements
of [Annie] and the methodology to obtain such statements.” Reed indicated that

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he was unaware of whether either attorney attempted to, or did in fact, retain any
experts to assist with his defense.

¶12 After briefing, which included supplemental briefing to address
whether there was a reasonable probability of a different result if an expert had
testified, the circuit court denied the motion without an evidentiary hearing. The
circuit court found that the “impact that testimony from Dr. Mellen would have
had on the trial [is] wholly speculative,” and that Reed had failed to establish a
reasonable probability of a different result. The court stated that the evidence of
Reed’s guilt was “overwhelming” and the argument that trial counsel and
postconviction counsel were ineffective “amounts to little more than ‘Monday
morning quarterbacking.’”3 This appeal follows. Additional facts are referenced
as needed below.

DISCUSSION

¶13 On appeal, Reed renews the argument in his WIS. STAT. § 974.06
motion that his trial attorney was ineffective for failing to retain and present a
child psychologist.

¶14 When a defendant, like Reed, seeks relief following a prior
postconviction motion and appeal, a WIS. STAT. § 974.06 motion must establish a
“sufficient reason” for failing to raise any issues that could have been raised in the
earlier proceedings. State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517
N.W.2d 157 (1994). In the absence of a sufficient reason, a claim that could have

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Reed filed a motion for reconsideration, which was denied. Reed does not appeal the
order denying his motion for reconsideration.

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No. 2021AP127

been raised earlier is procedurally barred. See id. at 186. Whether a claim is
procedurally barred is a question of law that we review de novo. See State v.
Fortier, 2006 WI App 11, ¶18, 289 Wis. 2d 179, 709 N.W.2d 893.

¶15 In his WIS. STAT. § 974.06 motion, Reed first contended that his
newly developed claim was not procedurally barred under Escalona-Naranjo
because he lacked previous knowledge of the claim. In support, Reed pointed to
State v. Howard, 211 Wis. 2d 269, 287-88, 564 N.W.2d 753 (1997), overruled on
other grounds by State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d
765.

¶16 Howard, however, is inapposite. Howard held that the defendant’s
lack of awareness of the legal basis of his claim constituted a sufficient reason for
failing to previously raise the legal issue because there was “a new rule of
substantive law.” Id. at 287-88. Here, Reed does not point to any change in the
law that might have made him aware of a claim now that he was not aware of
during his direct appeal. As the State observes, Escalona-Naranjo would become
meaningless if an incarcerated defendant could simply describe his or her lack of
legal training to overcome the procedural bar.

¶17 In addition, Reed contended that his claim was not procedurally
barred based on ineffective assistance of postconviction counsel.

¶18 In some circumstances, a claim of ineffective assistance of
postconviction counsel may constitute a sufficient reason for an additional motion.
See State v. Romero-Georgana, 2014 WI 83, ¶36, 360 Wis. 2d 522, 849 N.W.2d
668. A bare allegation of ineffective assistance of postconviction counsel,
however, is not sufficient to satisfy the procedural bar imposed by WIS. STAT.
§ 974.06. Rather, a defendant must “make the case” of counsel’s alleged

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ineffective assistance. See State v. Balliette, 2011 WI 79, ¶67, 336 Wis. 2d 358,
805 N.W.2d 334.

¶19 When evaluating an ineffective assistance of postconviction counsel
claim, we apply the well-established test in Strickland v. Washington, 466 U.S.
668 (1984). Under Strickland, a defendant must show both that counsel
performed deficiently, and that the deficiency was prejudicial. Id. at 687. To
establish deficient performance based on postconviction counsel’s failure to raise
particular issues, a defendant must allege and show that the new issues are “clearly
stronger” than the issues that counsel did present. See Romero-Georgana, 360
Wis. 2d 522, ¶4. 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.” Strickland, 466 U.S. at 694. If a
defendant fails to make an adequate showing as to one prong of the test, we need
not address the other. Id. at 697.

¶20 When a defendant raises a claim of ineffective assistance of counsel,
an evidentiary hearing is a prerequisite to appellate review. State v. Sholar, 2018
WI 53, ¶50, 381 Wis. 2d 560, 912 N.W.2d 89. On appeal, when evaluating
whether a defendant is entitled to a hearing, we first independently determine
“whether the motion on its face alleges sufficient material facts that, if true, would
entitle the defendant to relief.” State v. Ruffin, 2022 WI 34, ¶27, 401 Wis. 2d
619, 974 N.W.2d 432. If a WIS. STAT. § 974.06 motion does not raise sufficient
facts, “or presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief,” the circuit court has the
discretion to grant or deny a hearing. Balliette, 336 Wis. 2d 358, ¶18 (citation
omitted).

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¶21 In this case, the State contends that Reed’s ineffective assistance
claim is procedurally barred because Reed did not sufficiently explain how his
newly developed claim is “clearly stronger” than the issues raised by
postconviction counsel. Additionally, the State contends that the record
conclusively demonstrates that his ineffective assistance claim is meritless.

¶22 Even if we were to assume that Reed’s ineffective assistance claim is
not procedurally barred, we agree with the State that the record conclusively
shows that Reed is not entitled to relief. Reed has failed to demonstrate that he
was prejudiced. See Strickland, 466 U.S. at 694.

¶23 In regards to prejudice, we understand Reed’s WIS. STAT. § 974.06
motion to suggest that without an expert, such as Dr. Mellen, the jury did not hear
the problems with Annie’s interviews. While it is true that the defense did not
present an expert, Reed ignores that during the trial, his attorney challenged the
State’s case by extensive cross-examination. See Harrington v. Richter, 562 U.S.
86, 111 (2011) (stating that Strickland does not require “for every prosecution
expert an equal and opposite expert from the defense. In many instances cross-
examination will be sufficient to expose defects in an expert’s presentation.”).

¶24 For example, during the forensic interviewer’s testimony, trial
counsel elicited that it was necessary to ask “open questions,” and that one of the
questions Annie was asked was an improper leading question. Subsequently,
during the cross-examination of the social worker who interviewed Annie, trial
counsel highlighted Annie’s odd answers to the questions that were used to gauge
her ability to distinguish between the truth and a lie.

¶25 Trial counsel also elicited testimony that some of the terminology
Annie used was language she learned from others. During her cross-examination,

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No. 2021AP127

Annie testified that she learned the word “molester” from the police or her
grandma, and she learned the term “sex offender” from her grandma. Trial
counsel also questioned Annie regarding how many times she discussed with her
grandma, her mother, and the prosecution her account of what happened with
Reed. Additionally, trial counsel highlighted Annie’s inconsistent statements.

¶26 Moreover, during closing arguments, trial counsel challenged
Annie’s accounts of what occurred with Reed. Trial counsel emphasized the
inconsistencies in Annie’s statements. Trial counsel also questioned Annie’s use
of language, stating in particular that “children that age don’t know the word
‘molester.’”

¶27 Thus, based on the record, we are not persuaded that had trial
counsel retained and presented expert testimony that there is a reasonable
probability that the result of the proceeding would have been different.
Strickland, 466 U.S. at 694. At best, an expert would have highlighted the issues
with the State’s case that were obvious based on the testimony elicited during trial.
Accordingly, we conclude that the record conclusively demonstrates that Reed is
not entitled to relief, and the circuit court properly denied Reed’s motion without
an evidentiary hearing. See Balliette, 336 Wis. 2d 358, ¶18.

¶28 Finally, Reed contends that we should exercise our discretion to
grant a new trial pursuant to WIS. STAT. § 752.35. We may order a new trial under
§ 752.35 “if it appears from the record that the real controversy has not been fully
tried” or “it is probable that justice has for any reason miscarried[.]” Id. “We
exercise this power ‘only in exceptional cases.’” State v. Sugden, 2010 WI App
166, ¶37, 330 Wis. 2d 628, 795 N.W.2d 456 (citation omitted).

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No. 2021AP127

¶29 We decline to use our discretionary authority to order a new trial
here. As stated above, the record conclusively demonstrates that Reed is not
entitled to relief based on his ineffective assistance of counsel claim. Reed
contends that this case is exceptional because it is a “he said she said” case and
there was “no physical evidence or eye witnesses.” Reed, however, ignores the
fact that there was an eyewitness—Annie—who testified that Reed repeatedly
sexually assaulted her. Additionally, the mere fact that this case is a credibility
case does not render it exceptional. See id.

¶30 Therefore, for the reasons stated above, we conclude that the circuit
court properly denied Reed’s WIS. STAT. § 974.06 motion without an evidentiary
hearing. In addition, we decline to exercise our discretionary authority to order a
new trial in the interest of justice.

By the Court.—Order affirmed.

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

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