State v. Michael D. Martin

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.
October 14, 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. 2020AP1575-CR Cir. Ct. No. 2017CF89

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL D. MARTIN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Portage County: THOMAS B. EAGON and THOMAS T. FLUGAUR, Judges.
Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Kloppenburg, 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. 2020AP1575-CR

¶1 PER CURIAM. Michael Martin appeals a judgment of conviction
for sexual assault of a child under the age of thirteen in violation of WIS. STAT.
§ 948.02(1)(e) (2019-20) following a jury trial.1 He also appeals the circuit
court’s order denying his postconviction motion for a new trial. Martin argues that
his trial counsel rendered ineffective assistance of counsel by failing to object to
the following: several portions of the prosecutor’s cross examination of him
during trial, rebuttal testimony related to some of this cross examination, and one
portion of the prosecutor’s closing arguments. As to each claimed instance of
ineffective assistance, we conclude that he fails to establish one or the other of the
required prongs for such a claim, either that his counsel performed deficiently or
that he was prejudiced. Based on the same reasoning, we reject closely related
arguments Martin makes for a new trial based on plain error or that we should use
our discretionary power under WIS. STAT. § 752.35 to order a new trial.
Accordingly, we affirm.

BACKGROUND

¶2 Pertinent events begin with two prior criminal cases brought against
Martin, one in 1996 and the other in 1999, because facts regarding these prior
prosecutions were part of the other-acts evidence that was admitted at trial,
pursuant to WIS. STAT. § 904.04. Martin does not challenge any of the circuit
court’s rulings allowing other-acts evidence. However, much of the cross

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

Separately, the Honorable Thomas T. Flugaur presided over the jury trial and proceedings
related to Martin’s postconviction motion. The Honorable Thomas B. Eagon presided over the
sentencing hearing and signed the judgment of conviction.

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No. 2020AP1575-CR

examination and rebuttal testimony that he now contends his counsel should have
objected to relates to testimony about the prior cases. We now summarize the
evidence regarding the prior cases that was presented at the trial in this case, and
then address the background leading up to the trial and postconviction motion in
this case.

1996 Case

¶3 A.B. testified in this case that, in 1996 when she was six and living
in Wisconsin, Martin sexually abused her several times, including on one occasion
touching her “with his fingers underneath [her] underwear.”2 At the time, Martin
was in a relationship with A.B.’s mother and he resided with the two of them.
Martin was found not guilty at a trial.

¶4 Martin testified in this case that he turned down prosecution plea
offers in the 1996 case, went to trial, testified to “the truth” in that case that he had
done “nothing wrong,” and presented an alibi defense that he was not in
Wisconsin at the time of the alleged sexual abuse.

1999 Case

¶5 C.D. testified in this case as follows. Martin was a friend of C.D.’s
father. C.D. and Martin had sex in June 1998, when C.D. was fourteen. Martin
and C.D. then continued to have sex for six or seven months until C.D. became
pregnant, at which point “everybody found out” that Martin was having sex with
C.D. and Martin “admitted everything.”

2
We use pseudonymous initials for each of the alleged victims in the prior and current
cases. See WIS. STAT. § 809.86(1), (4).

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¶6 Martin testified in this case that when investigators came to
interview Martin about alleged sexual assaults of C.D., he was truthful with them,
“never denied anything,” and more generally testified that “I never lied to anybody
about it.” Martin pled guilty to the 1999 charges and was sentenced to not more
than six years of prison and a consecutive term of 10 years of probation.

Subsequent Events

¶7 Martin was released on parole after serving 42 months of his prison
term for the 1999 case. In 2007, while still on probation, Martin obtained
permission from the Department of Corrections to start having a romantic
relationship with the mother of E.F., the victim in this case. The mother was in the
midst of getting a divorce from E.F.’s father. E.F.’s mother, E.F.’s brother, and
E.F. moved in with Martin. Martin and E.F.’s mother married in 2009.

¶8 E.F. testified in the trial in this case in part as follows. At some
point between 2008 and 2011, when E.F. was eight or nine years old, Martin sat
down next to her while wearing nothing but a bath robe and exposed himself to
her. Martin had her “squeeze and pull” his penis, “probably three times.” Martin
touched her vagina, under her underwear. Martin told E.F. to keep this conduct
secret and E.F. did not initially tell anyone about it. When E.F. was about ten
years old, Martin again exposed himself to her and asked her for a hug, which she
refused to do. This incident prompted E.F. to tell her mother about the earlier
incident that specifically involved touching. Martin and E.F.’s mother had an
argument and Martin apologized to E.F., but no authorities were informed at the
time and they would not be informed for several years. In addition to these
specific incidents, when E.F. was living with Martin, he would “frequently” wear
nothing but the robe and expose himself to E.F., and would “sometimes” have her

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sit on his lap while he had an erection.3 E.F.’s mother, E.F.’s brother, and E.F.
moved out of Martin’s home in July 2015, and the mother and Martin were
divorced some months later. In 2017, when she was 15, E.F. reported to her father
the allegations regarding Martin summarized above and gave a statement to police.
A child advocacy center employee conducted an additional interview of E.F.,
which was recorded. This included detailed statements about the alleged abuse.

¶9 Martin was charged with first degree sexual assault of a child under
the age of thirteen in violation of WIS. STAT. § 948.02(1)(e) as a persistent
repeater, see WIS. STAT. § 939.62(2m)(b)2.

¶10 At trial, the State called as witnesses E.F. and a detective who
investigated her allegations in part by interviewing Martin, in addition to E.F.’s
mother and E.F.’s brother. The State further called A.B. and C.D. as other-acts
witnesses to testify about the 1996 and 1999 cases. Martin testified, denying that
he had sexually assaulted E.F. or exposed himself to her. Martin called as
witnesses his probation officer and a guardian ad litem who had been assigned to
E.F. in family court proceedings involving E.F.’s parents. In its rebuttal case, the
State called C.D. and the detective back to the stand. The jury found Martin
guilty.

¶11 Martin filed a postconviction motion requesting a new trial based on
allegations that he was provided ineffective assistance of trial counsel or
alternatively that a new trial is required in the interest of justice. The circuit court

E.F.’s testimony regarding Martin’s allegedly exposing himself to her on occasions
3

other than the touching incident when she was approximately eight or nine constituted a third
category of other-acts evidence that the circuit court allowed to be admitted. To repeat, Martin
does not challenge this pretrial ruling in this appeal.

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No. 2020AP1575-CR

held a Machner hearing at which Martin’s trial counsel testified. See State v.
Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). The circuit court
denied the motion. Martin appeals.4

DISCUSSION

I. Ineffective Assistance Of Counsel

¶12 Martin argues that his trial counsel rendered ineffective assistance of
counsel by failing to object to: (1) portions of the prosecutor’s cross examination
of him during trial regarding details of the 1999 case; (2) separate portions of cross
examination of Martin and related rebuttal testimony offered by the State on the
topic of whether Martin lied (at some unknown time to an unspecified person or
persons) about the 1999 case and whether he dated a woman with an underage
daughter following his 2015 divorce from E.F.’s mother; and (3) a portion of the
prosecutor’s closing argument in which the prosecutor observed that the alleged
victim in this case was not impeached at trial based on inconsistencies between her
trial testimony and her recorded statement to the child advocacy center employee.

¶13 Our supreme court has summarized pertinent standards for
ineffective assistance of counsel as follows:

Whether a defendant was denied effective assistance of
counsel is a mixed question of law and fact. The factual
circumstances of the case and trial counsel’s conduct and

4
Now represented in this appeal by postconviction counsel, Martin abandons several
additional arguments made to the circuit court specifically alleging that his trial counsel provided
ineffective assistance by: failing to call the other guardian ad litem assigned to E.F.; failing to
impeach E.F. through inconsistencies in her trial testimony and her earlier recorded statement (as
opposed to merely failing to object to the prosecutor’s closing argument based on this omission,
which Martin raises in this appeal); failing to impeach C.D.; and failing to object to part of the
prosecution’s argument as vouching for E.F.

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No. 2020AP1575-CR

strategy are findings of fact, which will not be overturned
unless clearly erroneous; whether counsel’s conduct
constitutes ineffective assistance is a question of law,
which we review de novo. To demonstrate that counsel’s
assistance was ineffective, the defendant must establish that
counsel’s performance was deficient and that the deficient
performance was prejudicial. If the defendant fails to
satisfy either prong, we need not consider the other.

Whether trial counsel performed deficiently is a
question of law we review de novo. To establish that
counsel’s performance was deficient, the defendant must
show that it fell below “an objective standard of
reasonableness.” In general, there is a strong presumption
that trial counsel’s conduct “falls within the wide range of
reasonable professional assistance.” Additionally,
“[c]ounsel’s decisions in choosing a trial strategy are to be
given great deference.”

Whether any deficient performance was prejudicial
is also a question of law we review de novo. To establish
that deficient performance was prejudicial, 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.”

State v. Breitzman, 2017 WI 100, ¶¶37-39, 378 Wis. 2d 431, 904 N.W.2d 93
(citations omitted).

¶14 As to each claim of ineffective assistance, we conclude that Martin
fails to establish one or the other of the required prongs for an ineffective
assistance claim. Before addressing in turn each claimed basis for ineffective
assistance, we note one shared aspect of his arguments that is significant
throughout the analysis. This involves two strategies used by the defense at trial
that involved Martin’s history in the criminal justice system, both of which
appeared to be designed to make the best of the fact that the circuit court granted
the State’s motions in limine to allow other-acts evidence.

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No. 2020AP1575-CR

¶15 One defense strategy was to highlight that, during much of his time
living with E.F., Martin was aware that he was under a high level of scrutiny, or
under a “microscope,” because he had been adjudicated to be a sex offender and
was on probation. For example, the defense highlighted at trial that there were
multiple investigations of Martin’s living arrangements during this time period—
one by the department of corrections, and two by guardians ad litem appointed to
E.F.—each concluding that Martin had not been inappropriate in his interactions
with E.F.

¶16 Another strategy was to contrast the fact that Martin admitted to
authorities that he had committed the alleged sexual assaults in the 1999 case with
the fact that he denied to authorities the allegations in both the 1996 case and this
case. According to defense counsel, this showed that Martin owns up to child
sexual assaults he has committed when confronted about them.

¶17 In none of his ineffective assistance arguments does Martin contend
that trial counsel’s choice of either of these defense strategies was deficient in
itself. Instead, Martin’s arguments on appeal assume that the strategies were not
deficient to pursue, but he purports to show how counsel’s failure to object at
certain points of trial was ineffective and not justified by any aspect of pursuing
these strategies as part of the overall theory of defense, which was that he never
sexually assaulted E.F. and that she had become falsely convinced of assaults that
never happened.

A. Cross Examination On Specific Facts Regarding 1999 Case

¶18 Martin argues that his trial counsel was deficient for failing to object
to the prosecutor’s cross examination of Martin regarding certain facts relating to
the 1999 case. Martin contends that the testimony elicited on cross examination

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No. 2020AP1575-CR

was inadmissible under WIS. STAT. §§ 904.01 and 904.03 and that this contributed
to the cumulative prejudice caused by the other claimed instances of counsel’s
deficient performance taken together. Specifically, Martin points to counsel’s
failure to object to the prosecutor eliciting testimony about: the length of Martin’s
1999 sentence; how much of the 1999 sentence he served before release on parole;
and his comments to police investigating this case regarding his attorney (“I had
the worst lawyer ever”) and the length of his sentence (“I was fucking fucked”) in
the 1999 case. Regarding prejudice, Martin argues that counsel’s failure to object
allowed the jury to learn that he went to prison in the 1999 case and that, though
he did not serve his entire sentence in prison, Martin believed “that the six-year
sentence he received for impregnating a 14-year-old was harsh and excessive.” In
an undeveloped argument, he further contends that this testimony allowed the
prosecutor to argue in closing that Martin thought of himself as a victim and had
lied to police about his sentence. We conclude that Martin fails to show that this
cross examination and the resulting testimony undermine confidence in the
outcome of the trial.

Additional Background

¶19 Martin’s direct testimony in this case included the following. He
made several references to his being on “probation” or “supervision” during the
time period when he lived with E.F., which he explained was due to “the sexual
assault that I did,” as an adult, in having sex with the underage C.D. He
acknowledged that his having sex with C.D. “was completely inappropriate,
unlawful and a crime.” As noted, he also made several references to his being
truthful with investigators who interviewed him in the 1999 case by admitting to
them that he had had sex with C.D. Martin testified that, at the time he faced the
charges, his 1999 attorney told him “there is really no choice” but that he would be

9
No. 2020AP1575-CR

convicted, given his admissions to police, but that if he entered a plea of guilty he
would probably get probation.

¶20 As noted, Martin also testified in this case that he: was truthful with
investigators of the 1996 case by denying guilt; rejected offers of plea bargains in
that case; and proceeded to a trial in that case at which he testified accurately that
he “did nothing wrong.”

¶21 On cross examination, the prosecutor prompted Martin to discuss
aspects of the 1999 case that Martin had related to a detective who was then
investigating this case. This included the prosecutor asking Martin if he had told
the detective that he had been sentenced to six years in prison and that he had
served all of that time in prison. In response, Martin clarified, for the first time on
cross examination, that his sentence included six years of incarceration, of which
he served 42 months before release to parole, followed by ten years of probation.
The prosecutor asked if Martin told the detective investigating this case that he
“had the worst lawyer ever” in the 1999 case. Martin responded by testifying, as
he had on direct examination, that the lawyer had told him he would receive a
probationary disposition. The prosecutor asked if Martin told the detective “‘I
ended up just pleading guilty and rolling my dice and I got fucking fucked, like
fucked,’” to which Martin replied that he had said that and added that “I got a very
harsh sentence.” Martin’s counsel did not object to this questioning.

¶22 At the Machner hearing, Martin’s trial counsel testified that he did
not object to the prosecutor asking about the length of the sentence because it fit
into one defense strategy. That strategy was

to contrast the way Mr. Martin dealt with [the 1999]
allegations and the way he was dealing with these false
allegations in this case. Part of that strategy was to

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No. 2020AP1575-CR

[highlight that Martin] acknowledge[d] what happened in
[the 1999] case, and explain to the Jury that when there was
an accusation made, that Mr. Martin took responsibility for
his actions and had faced consequences, in contrast to this
case. Because they were false allegations, he was fighting
them and denying them because they weren’t true.

Counsel further testified that he did not object to the prosecutor’s other
questioning about the 1999 case for the same reason.

Analysis

¶23 The general thrust of Martin’s ineffective assistance arguments on
both the deficient performance and prejudice prongs is based on the notion that the
jury should not have been exposed to allegedly inadmissible evidence that put
Martin’s character in a bad light and in that way aroused “[the] jury’s sense of
horror and provoke[d] its instinct to punish.”5 A significant problem with this
argument is that Martin does not clearly explain what negative reaction the jury
was supposed to have had to each particular piece of allegedly inadmissible
evidence, either in isolation or combination with other pieces.

¶24 Notably, it is not clear what Martin means to argue was prejudicial
about his trial testimony expressing disappointment in the sentence he received in
the 1999 case. As best we understand his argument, it is premised in part on the
idea that the jury might have considered all of Martin’s testimony on cross

5
In one of his arguments regarding prejudice due to ineffective assistance, Martin
appears to paraphrase discussion of a distinct but analogous subject in State v. Sullivan, 216
Wis. 2d 768, 790, 576 N.W.2d 30 (1998) (expanding on the meaning of “unfair prejudice” under
WIS. STAT. § 904.03). See State v. Diehl, 2020 WI App 16, n.12, 391 Wis. 2d 353, 941 N.W.2d
272. Because we resolve this ground and the next ground of Martin’s ineffective assistance of
counsel claim based on the prong of prejudice as defined in the context of that type of claim, we
do not address Martin’s arguments regarding the admissibility of the testimony in terms of “unfair
prejudice” as that concept is applied under WIS. STAT. § 904.03.

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No. 2020AP1575-CR

examination about the 1999 case as establishing that Martin believed that he was
the victim of unjustly harsh punishment because he did not appreciate the gravity
of his conduct in the 1999 case. This premise is highly speculative. We fail to see
any reason to think that a reasonable jury would reach this conclusion.

¶25 Martin may mean to make the following separate argument. When
Martin testified to the length of his prison sentence, this in itself had a prejudicial
effect by emphasizing that he was a convicted criminal and that his 1999 criminal
conduct was serious. However, this potential argument has little weight in light of
evidence adduced at trial, taken as a whole, that Martin does not now challenge as
inadmissible or improper. To repeat, Martin does not challenge the circuit court’s
rulings on other-acts evidence, including in relation to the 1999 case, and there
was no dispute at trial that in the 1999 case Martin had maintained a months-long
sexual relationship with a fourteen-year-old, which he explained on direct
examination provided the basis for his being on probation. In sum, Martin had
already told the jury in direct examination by his trial counsel that he had
committed child sexual assault and that he was under supervision as a result (that
is, that he had been convicted for serious criminal conduct), and he does not now
argue that eliciting this testimony was deficient performance by trial counsel.
Moreover, regarding the fact of Martin’s conviction for a crime, the jury was told
conviction evidence could bear only on his credibility as a witness and that “a
criminal conviction at some previous time is not proof of guilt of the offense now
charged.”6 See State v. LaCount, 2008 WI 59, ¶23, 310 Wis. 2d 85, 750 N.W.2d
780 (“Jurors are presumed to have followed jury instructions.”).

6
Martin makes a brief, related prejudice argument that we reject as undeveloped. He
contends that aspects of the cross examination about his 1999 sentence provided a basis for the
(continued)

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No. 2020AP1575-CR

¶26 More broadly, Martin fails to show that the evidence he points to on
this issue would have had more than an “‘isolated, trivial effect’” in the context of
the trial as a whole. See State v. Sholar, 2018 WI 53, ¶34, 381 Wis. 2d 560, 912
N.W.2d 89 (quoting Strickland v. Washington, 466 U.S. 668, 695-96 (1984))
(explaining that ineffectiveness claims are considered under the totality of the
evidence before the jury). Each of the following tends to limit the potential
prejudicial effect of the testimony challenged by Martin. E.F. in particular, and
Martin to a lesser degree, testified to details regarding the alleged offenses,
allowing the jury to assess their respective demeanors in considering the central
question: which one was more credible on the topic of the alleged sexual assaults
in this case. While there was no corroborating physical evidence or other witness
testimony to this particular conduct, E.F.’s mother and brother corroborated some
details of E.F.’s testimony.7 Further, as noted, Martin admitted that he had sex on
multiple occasions with C.D., an underage girl, which the jury could reasonably
consider in assessing his alleged planning of, and motivation for, the charged
sexual assaults. Similarly, the jury had the additional other-acts evidence we have
described.

prosecutor to argue in closing that, as Martin characterizes the argument, Martin “lied about his
sentence [in the 1999 case] to the police” investigating this case and that he viewed himself as a
victim. This argument is undeveloped for at least the reason that Martin does not explain how the
cross examination testimony at issue provided a basis for the particular closing argument
passages he appears to reference.

We do not discern that Martin makes any developed argument about a purportedly
prejudicial effect of the jury learning that he was released from prison on parole beyond any
prejudice he might have suffered from other evidence that we address.
7
For example, E.F.’s brother testified that on one occasion E.F. came into his bedroom,
looking anxious and wanting him to go with her to walk past Martin and go downstairs. This
corroborated at least to a degree E.F.’s testimony about trying to get away from Martin in this
manner when she was approximately ten years old, after he had exposed himself to her.

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No. 2020AP1575-CR

¶27 Martin characterizes the State’s case as “weak,” with the effect that
the presence of distracting or character-damaging evidence should be more likely
to undermine confidence in the outcome. See id. (“‘a verdict or conclusion only
weakly supported by the record is more likely to have been affected by errors than
one with overwhelming record support’” (quoted source omitted)). Martin is
correct that the State’s ability to prove his guilt came down to the weighing of his
credibility versus E.F.’s credibility. However, given the factors noted above, we
are not persuaded that the core issue of Martin’s and E.F.’s credibility was
obscured or confused by digressions into Martin’s expressions of disappointment
regarding the 1999 case and the length of his sentence in that case.

B. Additional Impeachment And Rebuttal Evidence

¶28 Martin argues that his counsel rendered ineffective assistance of
counsel by failing to object to additional areas of cross examination, specifically
relating to Martin’s alleged paternity of C.D.’s child, his alleged failure to make
child support payments for the child, and whether Martin dated a woman after his
divorce from E.F.’s mother in 2015 who was residing with a minor child at that
time. Martin further argues that counsel was also ineffective when he failed to
object to the State presenting rebuttal evidence relating to each of these topics.
Martin argues in part that this cross examination and rebuttal evidence prejudiced
him by demonstrating that Martin did not take his conduct in the 1999 case
seriously and further that he “was a deadbeat father[] and continued to be a risk to
the public.” We assume without deciding that Martin is correct that, if his counsel
had objected to all of this evidence, it would not been admitted at trial. We agree
with the State’s contention that any prejudicial effect from this evidence was
trivial compared to the effect of the “substantial and disturbing” evidence that is

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No. 2020AP1575-CR

not challenged on appeal and, therefore, Martin has not satisfied the prejudice
prong on these topics.

Additional Background

¶29 As noted, Martin testified on direct examination, in the context of
discussing his alleged character for truthfulness, that in the 1999 case he “never
lied to anybody.” He also testified that he was “cautious” about “where [he] went
and who [he] was around” during his time on probation, which covered the time
period he lived with E.F., and that he was “careful” to avoid actual or perceived
violations of probation conditions.

¶30 In cross examining Martin, the prosecutor asked if he had claimed,
after he stopped having sex with C.D., that C.D. had falsely told him during the
period over which they had sex that she was 17. Martin denied having told anyone
that C.D. had lied to him about her age. The prosecutor then asked whether he had
claimed, also “after the fact,” that he was not the father of C.D.’s child. Martin
confirmed having denied that he was the father. As part of this answer, Martin
referenced the idea that he was not responsible for paying child support.

¶31 C.D. testified in part to the following on rebuttal. C.D. did not lie
about her age to Martin, who in any case knew her age at the time they had sex.
Despite this, Martin falsely claimed (at unidentified times to an unknown person
or persons) that she had lied about her age. Martin was the father of C.D.’s child,
but at some point Martin claimed that he was not the father. C.D. did not want
Martin to pay child support.

¶32 In the context of cross examining Martin about his police interview
in this case, the prosecutor asked Martin about a woman whom Martin dated after

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No. 2020AP1575-CR

his 2015 divorce from E.F.’s mother. The prosecutor asked Martin if he told the
investigating detective that he dated only women whose children were “grown
up”—that is, over 18 years old—because Martin “wasn’t even going to put
[him]self in that position” of being in close contact or proximity to underage
children. Martin responded to the prosecutor’s question in pertinent part by
testifying that “I didn’t put myself in [that] position after” his marriage to E.F.’s
mother, in that the children of the women he dated after his divorce from E.F.’s
mother “were grown up.” He testified that this was to protect himself and to be
“cautious.” The prosecutor then asked if the woman Martin dated after 2015 had a
16-year-old daughter. Martin denied that as “wrong, or a lie” because the
daughter “is 18.”

¶33 The State called the detective as a rebuttal witness. He testified in
pertinent part that he spoke with the woman Martin dated and her children as part
of his investigation and learned that during the period when Martin dated this
woman she had a daughter who was underage.8

¶34 The circuit court determined that Martin’s counsel was not deficient
for failing to object to cross examination regarding whether Martin falsely claimed
that C.D. had lied to him about her age or about the age of the daughter of the
woman Martin dated after 2015. The court also determined that the prosecutor

8
Martin’s trial counsel made some objections during the cross examination of Martin,
but did not object to the prosecutor inquiring into the specific topics summarized in the text above
and did not object at all to the calling of the rebuttal witnesses or the specific rebuttal testimony
we summarize. At the Machner hearing, Martin’s counsel testified that he did not recall having a
strategic reason for failing to make additional objections to any of the cross examination of
Martin regarding his alleged statements about C.D.’s allegedly lying about her age and the
paternity of her child, the age of the daughter of the woman Martin dated after 2015, or the
rebuttal testimony related to these topics.

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No. 2020AP1575-CR

went too far in delving into the topics of paternity and child support payments, and
the court further concluded that Martin’s counsel’s performance was deficient
because he failed to object to those lines of inquiry and related rebuttal testimony
specifically. But the court denied Martin’s postconviction motion on the ground
that he failed to meet his burden on the prejudice prong. The court noted “that
there were two or three days of testimony,” and “a lot of evidence presented.” The
court additionally found that A.B. (the 1996 alleged victim) “was [a] pretty
significant witness in the case” given that her allegations were “very similar” to
E.F.’s allegations.

Analysis

¶35 Many of the same reasons noted in section A. above that establish
Martin’s failure to establish prejudice regarding that set of topics also apply here.

¶36 The topics here involved evidence that was tangential at best to the
core issues at trial, and Martin again relies on speculative assumptions that the jury
would draw off-point inferences about Martin’s character. To take one example,
the proposition that Martin resided with a woman, after living with E.F.’s family,
who may have had a minor daughter does not come close to establishing that he
was, as Martin now frames it, a continuing “risk to the public.” In the absence of
any prosecution argument identified by Martin to this effect, we fail to see how the
jury was likely to have leapt to this conclusion. We again note that the jury was
instructed not to consider the much more clearly presented and prejudicial fact that
Martin had been convicted of a child sexual assault crime as direct proof of guilt.
Similarly, the jury was told not to use the evidence presented about Martin’s
“other conduct” (i.e., the other-acts evidence provided by A.B. and C.D.) “to

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No. 2020AP1575-CR

conclude [that] the defendant is a bad person, and for that reason, is guilty of the
offense charged.”

¶37 Having addressed Martin’s first two ineffective assistance claims
based on the prejudice prong—and because, as we address below, we reject his
third ground for ineffective assistance based on the deficient performance prong—
we reject Martin’s argument that the cumulative prejudice that allegedly resulted
from his counsel’s performance as to all grounds was sufficient to undermine
confidence in the outcome of his trial. See State v. Thiel, 2003 WI 111, ¶¶59, 61,
264 Wis. 2d 571, 665 N.W.2d 305 (“prejudice should be assessed based on the
cumulative effect of counsel’s deficiencies”; “each alleged error must be deficient
in law … in order to be included in the calculus for prejudice”). Assuming
without deciding that counsel was deficient with respect to the testimony
identified in the first two grounds of Martin’s ineffective assistance claim, the
potential prejudice presented by these isolated topics does not sufficiently
accumulate to undermine confidence in the trial. See id., ¶61 (“in most cases
errors, even unreasonable errors, will not have a cumulative impact sufficient to
undermine confidence in the outcome of the trial”).

C. Prosecutor’s Closing Argument

¶38 Martin argues that trial counsel performed deficiently by failing to
object to what he contends were “misleading statements” by the prosecutor in
closing argument. The prosecutor’s statements that Martin argues were
misleading consisted of highlighting how E.F. was not impeached at trial by the
defense based on inconsistencies between her trial testimony and her earlier
statement in the recorded interview. Martin argues that this falsely implied to the
jury that E.F.’s testimony was “entirely consistent” with her earlier statement even

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No. 2020AP1575-CR

though there were in fact some inconsistencies and trial counsel could have used
these as the basis to object to the prosecutor’s argument. We conclude that Martin
fails to establish that his trial counsel was deficient because counsel identified a
reasonable strategic reason for not objecting to the prosecutor’s statement about a
lack of a showing of inconsistency.

Additional background

¶39 Martin’s argument begins with the following two inconsistencies
between E.F.’s recorded interview and later trial testimony. First, during the
recorded interview, E.F. stated that Martin touched her vagina before he had her
touch his penis. At trial, E.F. testified that, “[i]f [she] remember[ed] correctly,”
those events happened in the opposite order. Second, in the recorded interview,
E.F. stated that she manipulated Martin’s penis five or six times. At trial, E.F.
testified that had done this “[p]robably like three times.”

¶40 During closing argument, the prosecutor made the point that at trial
E.F. “was not challenged whatsoever” with questions about how her trial
testimony varied from the recorded interview. The prosecutor contrasted this with
how the prosecutor had challenged aspects of Martin’s direct testimony through
questioning on cross examination about inconsistent statements.

¶41 At the Machner hearing, trial counsel indicated that at the time of
trial he had noticed the inconsistencies in E.F.’s testimony now identified by
Martin. Counsel indicated that he did not cross examine E.F. regarding what he
considered “minor” inconsistencies because it would not effectively “impeach[]
her credibility, but on the contrary, would have the effect of just redrawing the
Jury’s attention to … awful allegations.” Moreover, counsel testified that he
viewed E.F. as “coming across [as] credible” and opted to argue that E.F.

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“believed what she was saying, even though it was, in fact, false.” Counsel
testified that he did not object to the State’s argument that there were no
inconsistencies between the recorded statement and the trial testimony “[f]or the
same reason [he] didn’t object to [E.F.’s] testimony regarding the minor
inconsistency.”

Analysis

¶42 Martin’s argument fails for at least the following reason. He fails to
show that it was an objectively unreasonable strategy for counsel to avoid drawing
the jury’s attention back to the disturbing details of E.F.’s allegations in order to
address what were self-evidently minor inconsistencies, inconsistencies that the
prosecutor could have readily attributed to insignificant memory lapses. Martin
does not directly address what we deem to have been counsel’s objectively
reasonable assessment of the risk posed by redrawing the jury’s attention to
“awful” allegations. He also does not directly address the defense strategy of
trying to persuade the jury that E.F. became convinced falsely that Martin had
sexually assaulted her. Rather, he asserts that counsel could have pursued that
strategy and still objected, but fails to clearly explain how this would have averted
the risks identified by counsel, and in any case this assertion is beside the point.

¶43 At best, Martin makes a case that there could have been a potential
benefit in an objection along the lines he now suggests, without showing that his
counsel was objectively unreasonable in weighing that potential benefit against the
risk. Thus, even putting to the side the fact that the prosecutor accurately
observed that E.F. had not been impeached based on inconsistent statements,
Martin’s argument goes nowhere because he fails to take into account the risk side
of the equation faced by trial counsel. Martin argues that “trial counsel’s failure to

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No. 2020AP1575-CR

object cannot be justified without a reasonable strategic explanation,” but fails to
show why we should conclude that trial counsel did not provide an objectively
reasonable strategic basis to decide not to object.

II. Plain Error

¶44 Martin argues that the admission of the testimony and arguments
underlying his ineffective assistance of counsel claims constitute plain error
entitling him to a new trial. Under the plain error doctrine, this court may review
errors that were otherwise forfeited by a party’s failure to timely object. See State
v. Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. In order for the
doctrine to apply, the error must be “‘obvious and substantial,’” such as “‘where a
basic constitutional right has not been extended to the accused,’” and the doctrine
is to be used only “sparingly.” Id. (quoted sources omitted). We conclude that
Martin fails to establish this in an appropriate case for the clear error doctrine to
apply.

¶45 As noted above, the prosecutor’s argument about E.F. not being
impeached was accurate, and we agree with the State that the argument did not
necessarily ask the jury to infer that E.F.’s testimony contained no minor
inconsistencies. Thus, we question whether allowing the prosecutor’s argument
constituted an error, much less one that was obvious. See State v. Bvocik, 2010
WI App 49, ¶1, 324 Wis. 2d 352, 781 N.W.2d 719 (“when a prosecutor’s closing
argument asks the jury to draw an inference that the prosecutor knows or should
know is not true, it is improper argument which may require reversal” (emphasis
added)). This leaves the evidence relating to topics covered in Martin’s cross
examination and the rebuttal testimony summarized above.

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No. 2020AP1575-CR

¶46 Assuming without deciding that this evidence was allowed in error,
we are not persuaded that it amounts to a plain error in the context of this case.
See Jorgensen, 310 Wis. 2d 138, ¶22 (“‘the existence of plain error will turn on
the facts of the particular case’” (quoted source omitted)). For the same reasons
we conclude that the rebuttal testimony and related cross examination of Martin
did not prejudice him in the context of his ineffective assistance of counsel claims,
it is insufficient to justify applying the sparingly used plain error doctrine here.
Cf. McClelland v. State, 84 Wis. 2d 145, 161-62, 267 N.W.2d 843 (1978)
(admission of extrinsic evidence on collateral fact constituted plain error because
it prevented the jury from focusing on material issues); see also State v.
Sonnenberg, 117 Wis. 2d 159, 179-80, 344 N.W.2d 95 (1984) (concluding that
erroneous admission of extrinsic evidence regarding collateral fact was harmless
error).

¶47 Martin attempts to bolster his plain error argument by alluding to
two notes submitted to the circuit court by the jury during their deliberations.9 He
may intend to argue that either or both of these notes demonstrate that the jury was
distracted from the core issue—who was telling the truth about the alleged
criminal conduct, Martin or E.F.—or resolved that core issue based on one or
more of the tangential topics of cross examination he identifies. However, he
offers only speculative theories at best.

9
One question was, “Why [the jury] did not get info proving or disproving” Martin’s
paternity of C.D.’s child? The court responded that it “[could] not answer this question.” The
other was a somewhat rambling question written by a juror who, as of that point in the
deliberations, “expressed reasonable doubt” and understood the case to come down to “the eval of
[E.F.’s] testimony vs. [Martin]’s.” The court responded to this note in part by directing the jury
to base its decision “on the evidence presented at trial, and the law provided by the court.”

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No. 2020AP1575-CR

III. Interest Of Justice

¶48 Martin contends that erroneous admission of evidence and improper
argument “clouded a crucial issue in this case” resolving who was more credible,
E.F. or Martin, and therefore the real controversy in this case was not fully and
fairly tried. Accordingly, Martin requests that we exercise our discretionary
power to reverse and grant him a new trial in the interest of justice. See 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, the
court may reverse the judgment or order appealed from, regardless of whether the
proper motion or objection appears in the record and may direct the entry of the
proper judgment or remit the case to the trial court for entry of the proper
judgment or for a new trial”). Our discretionary reversal power “should be used
only in exceptional cases.” State v. McKellips, 2016 WI 51, ¶52, 369 Wis. 2d 437,
881 N.W.2d 258 (emphasis in original omitted). For the reasons noted above, we
conclude that Martin fails to show that the evidence he now identifies as
erroneously admitted prevented the trial from focusing on the credibility issues
that mattered, or that the prosecutor’s argument was improper. We conclude that
this is not an exceptional case meriting reversal in the interest of justice.

¶49 For all these reasons, we affirm the judgment of conviction and the
circuit court’s denial of Martin’s motion for a new trial.

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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