State v. Frank Tyrone Whitehead

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.
July 21, 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. 2018AP83 Cir. Ct. No. 2012CF133

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

FRANK TYRONE WHITEHEAD,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Douglas County:
GEORGE L. GLONEK, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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. 2018AP83

¶1 PER CURIAM. Frank Whitehead, pro se, appeals from the circuit
court’s denial of his WIS. STAT. § 974.06 (2017-18)1 postconviction motion
without a hearing. We conclude all claims Whitehead attempts to raise are barred.
Consequently, we affirm.

BACKGROUND

¶2 Whitehead was charged with one count of first-degree sexual assault
of an eleven-year-old child after the victim alleged Whitehead had performed oral
sex on her, and with one count of making threats to injure for allegedly threatening
the victim that “if you tell anybody I will make you disappear.” At trial,
Whitehead contended that the victim and her mother falsely accused him of the
sexual assault. Defense counsel’s strategy was to highlight inconsistencies in the
victim’s testimony and to show that the victim and her mother had changed their
stories about the assault throughout the course of the investigation.

¶3 The victim testified at trial that Whitehead was a neighbor, and that
she occasionally went to his house to play with his stepsons or to earn extra money
by doing chores. On the day of the alleged assault, the victim testified she and her
younger brother went to Whitehead’s house. When they arrived, Whitehead was
the only person home. Whitehead told them that his stepsons had gotten new
bicycles, and he asked whether they would like to buy the old bikes. The victim’s
brother then went to Whitehead’s shed and picked out a bike. Whitehead
suggested he ride the bike home and ask his mother to come back and pay for it.
Whitehead asked the victim to come in his house and do some work for him.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP83

¶4 The victim testified that her brother rode his bike home, and she
went inside Whitehead’s house with him. Once inside, Whitehead forced her
down onto a bed, and he performed oral sex on her, and then forced her to touch
his testicles. She managed to get away from Whitehead and run out of the house,
at which point Whitehead threatened to “make her family disappear” if she told
anyone about the assault.

¶5 The victim testified that when she arrived home, her mother drove
her back to Whitehead’s house to pay for her brother’s bike. The victim testified
that she stayed in the van while her mother picked out a bike for her. Whitehead
said the victim’s mother could pay off the bike by having the victim do chores for
him. When the victim’s mother relayed that offer to the victim, the victim said she
needed to go home, and she later made excuses to avoid going back to
Whitehead’s residence.

¶6 On cross-examination of the victim’s mother, the defense elicited
testimony that before the assault, she had warned the victim not to be alone with
Whitehead, but did not tell the victim why. Defense counsel also challenged the
mother with inconsistent statements contained in a typewritten statement she
prepared before reporting the incident to police, her testimony at the preliminary
hearing, and her testimony at a restraining order hearing. On those occasions, the
mother stated that she left the victim with Whitehead after purchasing the bikes.
At one point, the mother admitted her recollection of these events was unclear, and
at another point she said that she was mistaken and “remembered … it
inaccurately” when she previously stated that she had left the victim alone after
the transaction.

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No. 2018AP83

¶7 Whitehead was the only defense witness. He denied that the assault
occurred, and he also denied being alone with the victim on the day of the alleged
assault. He testified the mother drove to his house and asked him if he still had
bikes for sale. After the children—both the victim and her brother—picked out
bikes, the mother paid him and then drove away, and the children rode their bikes
home. Whitehead denied asking the victim to stay at his house to do chores. He
also testified that the victim and her brother had not been at his house at any other
time on the day in question.

¶8 The jury found Whitehead guilty of the charged offenses. We
upheld Whitehead’s conviction on a direct appeal and also affirmed an order
denying his WIS. STAT. RULE 809.30 postconviction motion. See State v.
Whitehead, No. 2014AP460-CR, unpublished slip op. (WI App Nov. 11, 2014).
Whitehead had argued that his trial attorney was ineffective, and he further argued
for a new trial in the interests of justice. Id., ¶1.

¶9 Whitehead subsequently filed a pro se petition for a writ of habeas
corpus, pursuant to State v. Knight, 168 Wis. 2d 509, 512-13, 484 N.W.2d 540
(1992). This petition again alleged ineffective assistance of counsel. We denied
the petition ex parte. See State ex rel. Whitehead v. Douma, No. 2016AP463-W,
unpublished slip op. (WI App Apr. 21, 2017).

¶10 Whitehead then filed a pro se WIS. STAT. § 974.06 postconviction
motion, asserting multiple claims of ineffective assistance by his postconviction
and trial counsel. Whitehead also filed an addendum to the § 974.06 motion, two
supplements to the motion, and a “motion to compel production of documents.”
The circuit court denied Whitehead’s motions without an evidentiary hearing. A
motion for reconsideration was also denied. Whitehead now appeals.

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No. 2018AP83

DISCUSSION

¶11 Whitehead’s briefs on appeal are very difficult to follow. We
construe his arguments to reassert five claims raised in his WIS. STAT. § 974.06
motion and supplements.2 We conclude one claim is barred as having been
previously litigated. See § 974.06(4); State v. Witkowski, 163 Wis. 2d 985, 990,
473 N.W.2d 512 (Ct. App. 1991). The remaining four claims are barred because
Whitehead cannot show that these claims are clearly stronger than the claims
postconviction counsel raised during the direct appeal.3 See State v.
Romero-Georgana, 2014 WI 83, ¶4, 360 Wis. 2d 522, 849 N.W.2d 668.

¶12 We first address Whitehead’s argument that his postconviction
counsel was ineffective for failing to address whether his trial counsel erred by not
eliciting testimony from Whitehead that months after the alleged assault but one
week before Whitehead was accused of sexually assaulting the victim, the victim’s
mother made a threat to “get” Whitehead and used racial slurs. Whitehead argues
that the victim and her mother conspired to falsely accuse him of sexual assault in
“[r]etaliation from [sic] a fight between me and the Mother.”

2
To the extent Whitehead raises any additional arguments, they are inadequately
developed to warrant consideration. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d
633 (Ct. App. 1992).
3
Postconviction and appellate counsel alleged in the WIS. STAT. RULE 809.30 motion
and during the direct appeal that Whitehead’s trial counsel was ineffective for failing
to: (1) question Whitehead about the victim’s mother’s threats to “get” him, made one week
before he was charged with assaulting her daughter; (2) introduce a sheriff’s department report
stating that another county had investigated Whitehead for sexually assaulting the victim’s sister
and had “close[d] the[] case without further action”; and (3) call the victim’s nine-year-old
brother as a witness at trial.

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No. 2018AP83

¶13 In our decision upholding Whitehead’s conviction on his direct
appeal, we concluded that Whitehead failed to show prejudice from any alleged
error of his trial counsel in this regard. We noted that testimony about the alleged
threat came into evidence during the redirect examination of the victim’s mother.
Specifically, we stated:

[The victim’s mother] testified Whitehead claimed during
the restraining order hearing that she had threatened him
and called him an “F’ing N word[.]” Thus, contrary to
Whitehead’s assertion, the jury was aware of the alleged
threat. As a result, it was not reasonably probable the result
of Whitehead’s trial would have been different had defense
counsel asked Whitehead about the [threat.4]

¶14 Whitehead’s current argument—that his postconviction counsel was
ineffective for failing to raise the issue of the “threat” in the circuit court—is
merely an attempt to rehash the previously adjudicated claim of Whitehead’s trial
counsel’s ineffectiveness on this basis. A matter once litigated may not be
relitigated in a subsequent postconviction motion no matter how artfully the
defendant may rephrase the issue. See WIS. STAT. § 974.06(4); Witkowski, 163
Wis. 2d at 990. Whitehead’s challenge to this issue is therefore procedurally
barred as having been previously litigated.

¶15 The next issue involves Whitehead’s contention that his
postconviction counsel was ineffective for not raising a claim related to
photographs that his girlfriend purportedly gave to a defense investigator but that

4
In our decision affirming the conviction on direct appeal, we stated that Whitehead’s
reply brief noted the victim’s mother had incorrectly testified that the racial slur was directed at
Whitehead rather than at his stepsons. However, we concluded the jury was aware the threat was
made to Whitehead, regardless of the target of any racial slurs.

6
No. 2018AP83

were not presented at trial.5 Whitehead’s arguments in this regard are
undeveloped and lack citations to the record on appeal. For example, Whitehead
does not explain in his brief what the purported photographs would have shown
that would have made a difference to his case. The only clear allegation that
Whitehead made against his postconviction counsel in the WIS. STAT. § 974.06
motion is that counsel should have subpoenaed the investigator to testify about
what happened to the photographs. This allegation alone, however, would also not
entitle Whitehead to a new trial, as it does not show the photographs’ relevance.

¶16 But even on the merits as best we can discern them, Whitehead’s
contention fails. In his WIS. STAT. § 974.06 motion and supplemental filings,
Whitehead appeared to assert that his girlfriend gave the defense investigator a bag
containing over 200 photographs. These photographs are now apparently lost.
Whitehead references a letter in which his trial counsel informed Whitehead that
the photographs were not in his possession, and that the investigator left them with
the jail after going through them with Whitehead. The letter from trial counsel
stated, “My recollection is that the photos were obtained after the trial but before
sentencing.” The letter also indicated that the jail claimed it did not have the
photographs.

¶17 Whitehead alleges the bag contained four photographs that would
have impugned the credibility of the victim and her mother. The four alleged
photographs included: (1) a picture of the victim and her brother smiling and

5
While Whitehead’s WIS. STAT. RULE 809.30 motion was still pending, he filed a pro se
motion for “contempt of court,” referencing a missing “bag full of photos.” In the motion,
Whitehead asserted the bag included photos that would assail the credibility of the victim and her
mother. Whitehead suggested in the motion that his trial attorney lost the photos. The circuit
court denied the motion.

7
No. 2018AP83

standing with their bikes on the day of the alleged assault; (2) a picture of the
victim and her brother taken after the date of the alleged assault following a
birthday party at Whitehead’s home; (3) a picture of the victim and another person
outside of Whitehead’s bedroom window, taken after the date of the alleged
assault; and (4) a picture from inside Whitehead’s house that Whitehead suggests
contradicted the victim’s description at trial about the home’s interior.

¶18 The circuit court found that three of the four purported photographs
“would have had minimal, if any, relevance at trial.” The court found “clearly the
most relevant” photograph was the one of the victim smiling with her brother
behind the bikes they had just purchased on the date of the alleged assault.
Whitehead argues this photo discredits the testimony that the victim stayed in the
van while her mother paid for the bikes. This photograph, however, would not
have changed the outcome of the trial, where the jury was already presented with
conflicting stories about the details of the bicycle transaction. In addition, pictures
showing the victim at Whitehead’s home after the date of the alleged assault
would have minimal, if any, probative value. Whitehead himself confirmed on
cross-examination that the victim, her brother, and other children frequently
played at Whitehead’s house and in nearby woods. And the victim did not testify
at trial that she never returned to Whitehead’s home after the assault.

¶19 Moreover, the circuit court stated that it was “not convinced the
purported [four] photographs even exist.” As the court noted, Whitehead did not
testify at trial about the existence of the photographs. Nor did he allege in his
WIS. STAT. § 974.06 motion that his counsel was aware of the four photographs
before trial, but then declined to offer them into evidence. Whitehead also failed
to allege that, before sentencing, the four photographs were brought to defense
counsel’s attention, but counsel then declined to use them. The court also noted,

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No. 2018AP83

in denying the § 974.06 motion, that Whitehead did not mention taking a
photograph of the children with their bikes during his lengthy statement at the
sentencing hearing.

¶20 Whitehead cannot show that any unspecified claim of his
postconviction counsel’s ineffectiveness related to the photographs is clearly
stronger than the issues raised on direct appeal because such a claim rests on
Whitehead’s unsupported assertions about the existence and contents of the four
photographs. Because these four photographs appear to be lost, and Whitehead
apparently failed to make copies of them prior to turning them over to the defense
investigator, there is no way to verify Whitehead’s claims about their contents.
For these reasons, Whitehead’s claim that his postconviction counsel was
ineffective for failing to raise an unspecified claim relating to the purported
photographs fails because Whitehead has not shown this claim is clearly stronger
than the claims raised on direct review.

¶21 Whitehead also appears to argue that his postconviction counsel
rendered ineffective assistance by failing to allege that Whitehead’s trial counsel
was ineffective for eliciting testimony about the victim’s sister’s allegations that
Whitehead had previously assaulted her at a Minnesota casino. The risk
associated with such other acts evidence is that the jurors may improperly
conclude from the prior bad acts that the defendant had the propensity to commit
the charged act. See State v. Fishnick, 127 Wis. 2d 247, 256, 378 N.W.2d 272
(1985). Therefore, if other acts evidence is sought to be admitted, the State must
offer the evidence for a proper purpose, and a court must deny the State’s request
to present such evidence if its prejudicial effect substantially outweighs its
probative value. See State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30
(1998).

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No. 2018AP83

¶22 But here, the defense—not the State—insisted on introducing the
victim’s sister’s allegations. Prior to trial, the State announced that it did not
intend to present evidence of the sister’s allegations, and the State moved to
prohibit the defense from presenting such evidence as well. Defense counsel
opposed the State’s motion, arguing that the victim’s and her mother’s awareness
of the sister’s allegations went to the crux of Whitehead’s defense. Whitehead’s
position was that he was never alone with the victim in his house on the day of the
alleged assault. In addition, based on the mother’s testimony that she told the
victim never to be alone with Whitehead, counsel argued it was “unbelievable”
that the mother would have left the victim with Whitehead that day. The circuit
court denied the State’s motion, and it permitted Whitehead to present evidence of
the sister’s allegations.

¶23 Counsel’s choice to use the sister’s allegations in this way bolstered
Whitehead’s claim that he was never alone with the victim in the house and, as
such, it was a considered strategic decision that is virtually unassailable on appeal.
See State v. Westmoreland, 2008 WI App 15, ¶20, 307 Wis. 2d 429, 744 N.W.2d
919 (2007). Whitehead fails to show that a claim of ineffectiveness based on
counsel eliciting this testimony was clearly stronger than the issues raised in the
postconviction motion and on direct appeal.

¶24 In another difficult-to-discern argument, Whitehead contends that
his counsel should have investigated and presented impeachment evidence at trial
relating to a pair of underwear that Whitehead allegedly gave to the victim, and to

10
No. 2018AP83

statements made by the mother in a typewritten letter6 about ordering some boys
off of her property. Whitehead fails to demonstrate that such a claim of
ineffective assistance would have merit, much less that it would have been clearly
stronger than the claims actually raised.

¶25 As the circuit court noted, the State did not present evidence at trial
that Whitehead gave the victim a pair of underwear. Whitehead appears to suggest
that the underwear may have belonged to the victim’s sister, and he makes
various, undiscernible arguments about why the claim that he gave the victim the
underwear is not credible. Suffice it to say, counsel left this matter well enough
alone by not introducing at trial a potentially damaging allegation that Whitehead
gave the eleven-year-old victim a pair of underwear.

¶26 Similarly, the State did not present evidence at trial that the victim’s
mother wrote a letter alleging that she ordered boys off of her property.
Whitehead appears to argue that the letter contained inaccuracies, and he also
appears to suggest that the statement somehow shows that the victim and her
mother falsely accused him. But Whitehead fails to show how introduction of
such a statement would have damaged the victim’s or her mother’s credibility so
as to alter the outcome of the trial.

¶27 Finally, Whitehead appears to assert that his postconviction counsel
should have argued that trial counsel was ineffective for not raising a challenge to
the racial composition of the jury, pursuant to Batson v. Kentucky, 476 U.S. 79

6
It is unclear to whom the letter was addressed. In his brief, Whitehead states: “My
Trail [sic] Attorney was in possession of this letter and when he gave me a copy of it .…” At
another point, Whitehead suggests the victim’s mother presented the letter “to detective Hoyt ….”

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No. 2018AP83

(1986). In that case, the Court held that the State may not use race as a basis for
its peremptory challenges. Id. at 80. The circuit court properly concluded that
this case does not implicate Batson.

¶28 Here, the thirty-eight-member jury pool did not include any
nonwhite members. Its members were selected at random from a list of Douglas
County residents with valid, government-issued identification. As the circuit court
noted, census data showed that only one percent of Douglas County’s voting age
population was of Whitehead’s race. Whitehead provides no authority showing
that a jury pool chosen at random in such circumstances violates the requirement
that a jury pool represent a fair cross-section of the community. See Berghuis v.
Smith, 559 U.S. 314, 322-23, 329-30 (2010).7 Accordingly, Whitehead fails to
show that a claim challenging the racial makeup of the jury would have been
clearly stronger than the claims raised by his postconviction counsel on direct
review. The claim is therefore also barred.

By the Court.—Order affirmed.

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

7
In his brief-in-chief, Whitehead makes an unsupported claim that one of the members
of the jury wore a confederate flag shirt. This claim was not included in his WIS. STAT. § 974.06
motion or supplemental filings, and issues not raised in the circuit court are deemed forfeited.
See City of Madison v. DHS, 2017 WI App 25, ¶20, 375 Wis. 2d 203, 895 N.W.2d 844. In any
event, the record on appeal fails to support this allegation.

12