State v. Lyle Clark

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 9, 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. 2019AP1278-CR Cir. Ct. No. 2016CF3733

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LYLE CLARK,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: MARK A. SANDERS, Judge. Affirmed.

Before Dugan, Donald and White, 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. 2019AP1278-CR

¶1 PER CURIAM. Lyle Clark appeals from the judgment of
conviction and the order denying his motion for postconviction relief following his
conviction for first-degree sexual assault of a child less than thirteen years of age.
Underlying all of Clark’s arguments for a new trial is his contention that his right
to confrontation was violated when he was unable to meaningfully cross-examine
his accuser, M.H., who also happens to be his step-grandson.

¶2 We conclude that Clark is not entitled to a new trial and that the trial
court properly denied Clark’s motion. Clark forfeited his ability to have his right
to confrontation argument addressed directly because his trial counsel failed to
object to M.H.’s testimony at trial. Clark is likewise not entitled to a new trial on
the basis of plain error, ineffective assistance of counsel, or in the interest of
justice because Clark’s right to confrontation was not violated by M.H.’s live
testimony or the admission of the recordings of M.H.’s forensic interviews. We,
therefore, affirm the judgment of conviction and the trial court’s order denying
Clark’s postconviction motion.

BACKGROUND

¶3 On July 21, 2016, M.H., who was four years old at the time, was
playing with his younger brother, who was one year old, when M.H.’s father
noticed M.H. with his pants down and instructing his younger brother to touch or
kiss his penis. When M.H.’s father asked M.H. where he learned that behavior,
M.H. started crying and said he learned it from Grandpa, which was what M.H.
called Clark.

¶4 M.H.’s parents took M.H. to the doctor and reported Clark to the
police. Karla Lehmann, a child forensic interviewer at Children’s Hospital of
Wisconsin, interviewed M.H. to follow up on the report. The first interview took

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place on July 28, 2016, at which time M.H. indicated that Clark asked him to keep
secrets, had told him to stick out his “pee pee,” and took pictures of it. When
M.H. asked if he could talk to Lehmann again, his parents scheduled a second
interview for August 12, 2016. During the second interview, M.H. revealed
alarming information about Clark’s conduct with M.H. and his younger brother.
According to M.H., Clark told M.H. to stick out his “pee pee” and have his
younger brother suck on it. M.H. also indicated that Clark told him to urinate in
his younger brother’s mouth and that Clark took pictures of him and his younger
brother doing this.1 M.H. also said that he had urinated in the living room at
Clark’s direction. M.H. asked to see Lehmann a third time, and M.H.’s parents
scheduled another interview that took place on August 18, 2016. At this
interview, M.H. described how he cleaned his house and that he washed out the
tub with Clark’s “pee pee” and that he had sucked on Clark’s penis and butt,
among other body parts. M.H. said that Clark peed in his mouth and he swallowed
it and described Clark’s pee as white in color.

¶5 Clark was arrested following this third interview and charged on
August 23, 2016, with first-degree sexual assault of a child. Clark waived his
right to a jury trial, and the case was tried to the court over the course of four days
in March and April 2018.

¶6 The State presented testimony from M.H.’s parents, Lehmann, and
the detective who arrested Clark. The State also introduced the recordings of
M.H.’s forensic interviews, and M.H., who was six years old at the time of the

1
Further investigation, including a search of Clark’s electronic devices such as his
phone, did not reveal any pictures depicting the events described by M.H.

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No. 2019AP1278-CR

trial, testified. When M.H. took the stand, he was able to respond to questions
indicating his understanding between truth and lies, but his responses to questions
on both direct and cross-examination that were aimed at eliciting information
about the abuse largely consisted of “I don’t remember,” “I don’t know,” and “I
don’t really know.” The trial court later described M.H.’s testimony by saying,
“The experience of testifying in court and the subject upon which [M.H.] was
testifying was clearly quite difficult for him.” The trial court further stated that
“[i]t was clear that [M.H.] was afraid and emotional on the stand.”

¶7 In his defense, Clark presented testimony from his wife—M.H.’s
paternal grandmother—and an expert witness on forensic interviews. Clark also
testified in his own defense. Clark’s theory of defense was that M.H.’s parents
coached M.H. to falsely accuse Clark of abuse, after Clark and his wife (the
Clarks) informed M.H.’s parents that their house would be sold if they did not pay
the rent that they owed.2

¶8 After receiving the evidence and hearing the testimony, the court
found Clark guilty. In making a record of its decision, the trial court found that
M.H.’s live testimony “was not enormously useful” because M.H. “was simply
unable to discuss the things that the parties wished him to discuss,” and the trial
court continued by noting that M.H.’s testimony was “neither helpful to the State
nor the [d]efense.” In assessing Clark’s testimony, the trial court found that

2
M.H.’s parents rented the house that they lived in from the Clarks. While the trial
court, for lack of evidence, ultimately placed no emphasis on any potential dispute between
M.H.’s parents and the Clarks over any debt M.H.’s parents owed the Clarks, there was testimony
from both M.H.’s parents and the Clarks regarding the many disputes that arose between M.H.’s
parents and the Clarks in relation to the house that M.H.’s parents rented from the Clarks. The
Clarks testified that the latest dispute centered on the Clarks’ decision to sell the house if the rent
and utilities were not brought current.

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No. 2019AP1278-CR

Clark’s testimony “in many respects seems credible.” Thus, the trial court stated
that “[t]he critical component of the evidence is whether [M.H.] is credible during
his forensic interviews” and “what this really boils down to is … [does the court]
believe what [M.H.] said with respect to [Clark] during his forensic interviews.”

¶9 On balance, the trial court found that M.H.’s statements of the abuse
he suffered while in Clark’s care were “sufficiently credible that it erase[d] in [the
court’s] mind any reasonable doubt that [the court] might have had.” The trial
court noted that it found M.H.’s statements credible because of “the concrete detail
that [M.H.] would not have otherwise had,” which the trial court described as
detailed “information [M.H.] would not have had but for having experienced it.”
The trial court additionally noted that Clark had an “unusual reaction” to the
accusations, and that Clark had “unusual behavior” at the time of his arrest.3 The
court found Clark guilty and, subsequently, sentenced Clark to twenty-seven years
of imprisonment, composed of seventeen years of initial confinement and ten
years of extended supervision.

¶10 Clark filed a motion for postconviction relief and argued that he was
entitled to a new trial based on a violation of his right to confront M.H. He argued
that the trial court could directly address his confrontation violation despite his
trial counsel’s lack of objection to M.H.’s testimony or, in the alternative, Clark

3
Clark reacted to the initial news of allegations of abuse by going to the police station to
refute the allegations instead of confronting M.H.’s parents. Then, when Clark was arrested, he
refused to follow the police officer’s directions to put his car in park. He also ignored directions
from police to exit his vehicle. The police were forced to shut down the street and call for
additional squad cars. Clark explained that he ignored orders to exit his vehicle because he called
his wife “to let her know [in] case she was wondering where [he] was at” and he called his
employer to “explain what was happening.” When Clark finally exited his vehicle, he uttered a
statement to the effect of “my life is over; why don’t you just shoot me.”

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No. 2019AP1278-CR

argued that the trial court could use either the doctrine of plain error or ineffective
assistance of counsel to grant him a new trial. The trial court denied the motion
finding that Clark was not denied his right to confrontation, and this appeal
followed.

DISCUSSION

¶11 Clark renews his argument on appeal that he is entitled to a new trial
because he was deprived of his opportunity to meaningfully cross-examine M.H.
in violation of his right to confront his accuser because M.H.’s live testimony was
“like questioning an empty chair” and neither he nor his attorney were present at
M.H.’s forensic interviews that were admitted at the trial and were used to convict
him. Clark argues that we have several options to “right this wrong.” As
explained further below, we disagree.

I. Clark forfeited his ability to bring a direct claim for
a violation of his right to confrontation

¶12 Clark first argues that we can directly address the alleged violation
of his right to confrontation; however, as Clark concedes in his brief, trial counsel
failed to object to the admission of the forensic interviews or M.H.’s live
testimony. “[U]nobjected-to errors are generally considered waived; and the rule
applies to both evidentiary and constitutional errors.” State v. Boshcka, 178
Wis. 2d 628, 642, 496 N.W.2d 627 (Ct. App. 1992).4 “[W]e may, in our discretion
4
In State v. Ndina, our supreme court clarified the distinction between the terms
“forfeiture” and “waiver.” See id., 2009 WI 21, ¶¶28-32, 315 Wis. 2d 653, 761 N.W.2d 612.
“Although cases sometimes use the words ‘forfeiture’ and ‘waiver’ interchangeably, the two
words embody very different legal concepts. ‘Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.’”
Id., ¶29 (citation omitted). Forfeiture is the appropriate term to use in reference to trial counsel’s
failure to object in this instance.

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No. 2019AP1278-CR

and if necessary to see that justice is done, consider such claims[.]” Id. at 643.
However, we conclude that there is no compelling reason for us to overlook trial
counsel’s failure to object and address Clark’s claim directly. Clark had ample
time during the proceedings to object to the introduction of the recorded forensic
interview and M.H.’s live testimony, yet did not do so. He “should not now be
heard to complain [of] his own acquiescence.” See id. However, as a part of
resolving Clark’s additional arguments, we discuss below whether Clark’s right to
confrontation was violated.

II. Clark is not entitled to a new trial based on plain
error

¶13 Clark next argues that he is entitled to a new trial because the
violation of his right to confrontation here rises to the level of plain error. We
disagree. Clark’s right to confrontation was not violated and, therefore, the
doctrine of plain error does not apply.

¶14 In State v. Jorgensen, 2008 WI 60, 310 Wis. 2d 138, 754 N.W.2d
77, our supreme court explained:

The plain error doctrine allows appellate courts to review
errors that were otherwise waived by a party’s failure to
object. Plain error is “‘error so fundamental that a new trial
or other relief must be granted even though the action was
not objected to at the time.’” The error, however, must be
“obvious and substantial.” Courts should use the plain
error doctrine sparingly.

Id., ¶21 (citations omitted). Thus, as a threshold requirement, invoking the plain
error doctrine requires that an error exist. However, as discussed below, Clark had
the opportunity to cross-examine M.H. when he appeared in court, and that is all
that is required to satisfy his right to confrontation. Therefore, there is no error,
much less a plain one.

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No. 2019AP1278-CR

¶15 “The Confrontation Clause of the Sixth Amendment involves the
right of a defendant to confront the witnesses against him or her.” State v.
Rockette, 2006 WI App 103, ¶20, 294 Wis. 2d 611, 718 N.W.2d 269. The same
protection is afforded by article I, section 7 of the Wisconsin Constitution. See
WIS. CONST. art. I, § 7. “The question of whether a defendant’s right to
confrontation has been violated is one of constitutional fact, subject to independent
appellate review.” Rockette, 294 Wis. 2d 611, ¶19. We accept the trial court’s
findings of historical fact unless they are clearly erroneous and independently
review whether those facts amount to a violation of the right to confrontation. Id.
(quoting State v. Stuart, 2003 WI 73, ¶21, 262 Wis. 2d 620, 664 N.W.2d 82).

¶16 “[W]hen the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his [or her] prior
testimonial statements.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004).
“Ordinarily a witness is regarded as ‘subject to cross-examination’ when he [or
she] is placed on the stand, under oath, and responds willingly to questions.”
United States v. Owens, 484 U.S. 554, 561 (1988). “[T]he Confrontation Clause
guarantees an opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense might wish.”
Delaware v. Fensterer, 474 U.S. 15, 20 (1985).

¶17 The issue here, as Clark argues, is whether M.H. can be considered
to have been subject to cross-examination when his testimony largely consisted of
“I don’t remember,” “I don’t know,” and “I don’t really know.” If he was not,

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No. 2019AP1278-CR

Clark contends that he is entitled to a new trial because his right to confrontation
was violated by the admission of M.H.’s previously recorded forensic interviews.5

¶18 As this court has previously explained, a witness’s “claimed inability
to remember earlier testimonial statements did not implicate the requirements of
the Confrontation Clause under Crawford because [the witness] was present at
trial, took an oath to testify truthfully and answered the questions put to him
during cross-examination.” Rockette, 294 Wis. 2d 611, ¶3. That is, “the key
inquiry for Confrontation Clause purposes is whether the declarant is present at
trial for cross-examination, takes the oath to testify truthfully and answers
questions asked of him or her by defense counsel.” Id., ¶24. Thus, when a
witness’s testimony aimed at exploring previous testimonial statements largely
consisted of responses such as “I don’t know” and “I don’t remember,” we
concluded that there was no violation of the defendant’s right to confrontation; the
witness was physically present at trial for cross-examination, took the oath to
testify truthfully, and answered the questions asked of him. Id., ¶27.

¶19 Applying Rockette here, as we must, we conclude that there is no
violation and, therefore, no error that warrants a new trial, pursuant to the doctrine
of plain error. M.H. was present at trial; he took an oath to testify truthfully; he
provided testimony indicating that he understood the difference between a truth

5
Clark does not argue that the trial court, at the start of the trial, misapplied WIS. STAT.
§ 908.08 (2017-18), when it addressed the use of the recordings of the forensic interviews as
evidence. We note that a review of the record shows that the trial court complied with the
requirements of § 908.08(3) when it assessed whether the interviews could be admitted pursuant
to that statute. We likewise note that M.H. was also produced for examination during the trial in
compliance with § 908.08(5).

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

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No. 2019AP1278-CR

and a lie; he was subject to cross-examination; and he provided answers to the
questions asked of him, even if Clark was disappointed with those answers. This
satisfies Clark’s right to confrontation, and Clark was afforded the right to
confront M.H. More specifically, Clark was given “an opportunity for effective
cross-examination,” which is “not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.” See Fensterer, 474 U.S. at
20. There is, thus, no violation and, therefore, no error to invoke the plain error
doctrine.

III. Clark did not receive ineffective assistance of
counsel

¶20 Clark additionally argues that he received ineffective assistance of
counsel as a result of his trial counsel’s failure to object to the introduction of the
recordings of the forensic interviews and M.H.’s live testimony as violations of his
right to confrontation and he is, therefore, entitled to a new trial. We again
disagree.

¶21 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of
counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334.
A defendant must show two elements to establish that his or her counsel’s
assistance was constitutionally ineffective: (1) counsel’s performance was
deficient; and (2) the deficient performance resulted in prejudice to the defense.
Id.

¶22 “An ineffective assistance of counsel claim presents a mixed
question of fact and law.” State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914
N.W.2d 95. “We will not reverse the circuit court’s findings of fact unless they

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No. 2019AP1278-CR

are clearly erroneous.” Id. “We independently review, as a matter of law,
whether those facts demonstrate ineffective assistance of counsel.” Id.

¶23 Here, Clark fails the first prong of the analysis because trial counsel
cannot be deficient for failing to object to a non-existent violation. As described
above, there is no violation of Clark’s right to confrontation as a result of M.H.’s
live testimony or the introduction of the recorded forensic interviews into
evidence. Trial counsel’s performance cannot be considered deficient for failing
to bring a meritless objection. See State v. Maloney, 2005 WI 74, ¶37, 281
Wis. 2d 595, 698 N.W.2d 583 (“Counsel does not render deficient performance for
failing to bring a suppression motion that would have been denied.”). Thus, we
reject Clark’s argument that he is entitled to a new trial based on having received
ineffective assistance of counsel.

IV. The interest of justice do not require a new trial

¶24 Clark finally argues that he is entitled to a new trial in the interest of
justice. However, without a violation of his right to confrontation, this argument
also fails.

¶25 Pursuant to WIS. STAT. § 752.35, “if it appears from the record that
the real controversy has not been fully tried, or that it is probable that justice has
for any reason miscarried,” we may reverse the judgment or order appealed from,
“regardless of whether the proper motion or objection appears in the record.” A
miscarriage of justice may be found when there is “a probability of a different
result on retrial such that a new trial in the interest of justice is warranted.” See
State v. Kucharski, 2015 WI 64, ¶46, 363 Wis. 2d 658, 866 N.W.2d 697. “The
power to grant a new trial when it appears the real controversy has not been fully
tried ‘is formidable, and should be exercised sparingly and with great caution.’”

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No. 2019AP1278-CR

State v. Sugden, 2010 WI App 166, ¶37, 330 Wis. 2d 628, 795 N.W.2d 456
(citation omitted). We only exercise our power to grant a discretionary reversal in
exceptional cases. Id.

¶26 In short, this is not an exceptional case in which the record suggests
that the real controversy has not been fully tried or there was any miscarriage of
justice. Clark was provided the opportunity to cross-examine M.H., and his right
to confrontation was not violated. We, therefore, decline to exercise our power to
grant a new trial in this case.

CONCLUSION

¶27 In sum, we conclude that Clark is not entitled to a new trial and the
trial court properly denied Clark’s motion. Clark’s right to confrontation was not
violated and, thus, his arguments for a new trial on the basis of plain error,
ineffective assistance of counsel, and in the interest of justice fail. We, thus,
affirm the judgment and the trial court’s order.

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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