State v. Scott L. Nutting

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 2, 2019
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. 2017AP2049-CR Cir. Ct. No. 2013CF402

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SCOTT L. NUTTING,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Fond
du Lac County: RICHARD J. NUSS, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

¶1 NEUBAUER, C.J. Scott L. Nutting appeals from a judgment of
conviction for second-degree sexual assault of a child and an order denying his
postconviction motion for relief. Nutting seeks a new trial on the ground that the
trial court record does not reflect which portions of an audio custodial interview of
No. 2017AP2049-CR

him were played to the jury. We conclude that the circuit court was able to
sufficiently reconstruct what was played to the jury and did not err in determining
that nothing prejudicial was played. Because we conclude that Nutting was not
denied his right to a meaningful appeal and we reject his other challenges, we
affirm.

BACKGROUND

The Background Facts and Charges

¶2 In December 2011, Nutting met, via a website, P.K., who claimed
that she was eighteen but was actually fourteen. Nutting picked up P.K. from her
home and drove her to a Fond du Lac motel. Nutting claimed that, once she said
she was only fourteen, he told her to get out of his car, they never went into the
motel, and the last time he saw her she was walking across the parking lot. He
denied ever having sexual contact with her.

¶3 P.K. asserted that they went into the motel room and had sex for
three hours. Evidence showed that P.K. told him that she was fourteen.

¶4 In June 2013, Nutting was charged with one count of second-degree
sexual assault of a child, with a repeater enhancer based on his past conviction for
attempting to possess child pornography.

¶5 During the investigation, Detective Brian Bartelt conducted a
custodial interview of Nutting, which was recorded. The recording was over an
hour long. As explained later, most, but not all, of the recording was played to the
jury.

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¶6 During the interview, Nutting also offered to take a lie detector test,
which was not given.

The Trial

¶7 On the first day of trial, the court and parties reviewed the matter of
the audio recording. Nutting’s counsel, Timothy Hogan, noted that if the State
were to play the entire interview, they would need to “redact[] the portions that are
overly prejudicial to Mr. Nutting,” and the court should require the State to play
the portion where Nutting offered to take a polygraph.

¶8 The court asked whether the parties agreed about which portions
would be redacted. Hogan responded that before trial he and the State “discussed
redacting portions [in which] Mr. Nutting indicated he was in custody and
[mentioned] some of his prior convictions.”

¶9 Prior to the second day of trial, Hogan indicated concern that playing
the beginning of the recording with references to Miranda1 could alert the jury
that Nutting was in custody at the time of the statement and that fact would be
prejudicial. That issue was generally resolved.

¶10 Counsel for the State explained it would redact at least two sections
of the interview. He stated that he would read into the record the relevant time
frames that were played.

¶11 During a break in front of the jury, the following exchange took
place as they were setting up the recording:

1
Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 2017AP2049-CR

[THE STATE]: It’s my intent with the agreement of
Mr. Hogan to play the majority of the recorded interview
that took place between Bartelt and Mr. Nutting. I just
need a minute or two to set that up. It’s a little— It’s right
about an hour.

[THE COURT]: Okay. Why don’t we try to make that
work. He’s going to need about ten minutes to set it up.
Why don’t we do that before lunch.

I think in the recording as I understand it, not to steal
anybody’s thunder here, but there might be some—a couple
portions that quite frankly are unrelated issues, have
nothing to do with anything, so we’re jumping by that.
And so if you happen to sense that there’s a break or there’s
a pause or we’re doing something, that’s the reason for that.

¶12 The State called Bartelt, who testified Nutting stated that he told
P.K. to get out of his car once she told him she was fourteen and he never had
sexual intercourse with her, while P.K. stated they had sex in the motel room for
three hours.

¶13 After Bartelt testified, the State played what he described as the
“majority of” the audio recording of Bartelt’s interview with Nutting. No
transcription or other record was made of which portions were played for the jury.
The State, defense counsel, and court did not notice the omission.

¶14 The jury found Nutting guilty of second-degree sexual assault of a
child.

Postconviction Motion and Hearing

¶15 Nutting moved for postconviction relief. He asserted his trial
counsel was ineffective in failing to have the recording excluded or, in the

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alternative, the circuit court erred in failing to ensure that the recording complied
with SCR 71.01(2)(e) (2019) and related statutes.2

¶16 Nutting further argued that the prosecution violated Brady v.
Maryland, 373 U.S. 83 (1963), when it failed to turn over P.K.’s October 2013
victim impact statement from another case in which P.K.’s mother, S.K., pleaded
no contest to failure to protect a child. According to the complaint in that case,
P.K. told S.K. in June 2013 that she was going to have sex in her home with two
men; S.K. told P.K. that she should “just not get pregnant.” In the victim-impact
statement, P.K. wrote, “I [P.K.] do not listen to my mother and she tryed (sic) to
stop me. [A]nd she did not do anything wrong. [I]t was all me.” When prompted
for her view on sentencing, P.K. asked for probation: “she is a good mother and I
am the one that mass (sic) up by lieing (sic), and talking to old men when I was
told not to. So I am asking just for probation that is it.”

¶17 Nutting also sought a new trial in the interest of justice.

¶18 In support of his challenge based on the audio recording, Nutting
identified several portions that were arguably prejudicial and that, if they were
played to the jury, could support a claim that counsel was ineffective for failing to
object or seek exclusion. Those statements included:

2
In the postconviction motion, Nutting had also asserted his trial counsel was ineffective
for failing to fully investigate the case and, in particular, by failing to obtain testing of a sexual
assault nurse examination kit and underwear collected from P.K. Relatedly, Nutting sought DNA
testing of the kit and underwear. Additional testing occurred, and Nutting does not raise the DNA
issue on appeal.

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No. 2017AP2049-CR

(1) Nutting indicates he was in prison for forty-three months for two
cases, two years for theft, two years for attempted possession of
child pornography, and he is now on parole;

(2) Nutting states, “I had just got done doing 43 months in prison
for something that I did not do. Okay. I never sat down and
searched for child porn. I never looked at it” and “I’m telling the
truth now again. I already know what is going to happen. I’m going
to go right up the damn river this time and I did nothing this time. I
did it the right way.”

(3) Nutting refers to his “sex offender rules” and that he is not
allowed to have sex unless approved by an agent, also
acknowledging that having placed profile pictures on a website was
probably a probationary violation; and

(4) Nutting states, “Because I’m already a sex offender, so my
credibility is just shot. You know, I’m just a—I’m just a piece of
shit, you know, I’m just a pedophile. I’m—that’s a fear that I have
when people look at me because of my track record, you know.”

¶19 In an effort to reconstruct the recording played to the jury, the court
held an evidentiary hearing at which Nutting’s trial counsel, Hogan, testified.
Hogan testified that he reviewed the audio recording in his trial preparation, he
discussed the recording with the State, and they agreed in principle as to which
portions of the recording would be played and which would not.

¶20 The State then offered as an exhibit its note sheet reflecting the
redacted portions of the audio recording. When first asked if he was familiar with
it, Hogan testified, “I know I’ve seen it.... I remember you had a sheet of paper

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No. 2017AP2049-CR

and it had some numbers on it, I don’t recall if this was it or not.” But Hogan
agreed that the State’s note sheet had the following notations:

1:00 - 5:35

25:00 - 26:20

33:40 - 35:00

1:05:49

When to Stop

Those notations reflect time spans during which the potentially prejudicial
comments were made, except for the portion where Nutting referenced child
pornography and having served forty-three months, which was at the fifteen
minute mark.

¶21 Hogan further elaborated on his discussions with the State. He
compared his notes of portions to be redacted against the State’s, and remembered
seeing the State’s notes about start and stop times. “I remember comparing them
to the specific time notations in [my notes] to make sure that the points that I
specifically knew were improper” matched with the notes for those portions that
would not be played.

¶22 Hogan’s notes identify the initial portion of the interview in which
Nutting discusses custody in prison and his prior convictions. Hogan testified that
he did not take notes of it “at later parts of the interview.”

¶23 Hogan further testified that he listened to the recording when it was
played at trial and did not hear any objectionable material played to the jury. He
testified that he would have objected if he had heard objectionable material.

[THE STATE]: … Had you heard any portions of the
audio recording that you felt were either overly prejudicial

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No. 2017AP2049-CR

or were completely inadmissible would you have objected
at trial?

[COUNSEL]: Objection.

[THE COURT]: Overruled.

[HOGAN]: Would I have objected to pieces of the
recording that I believed were improper?

[THE STATE]: Yes.

[HOGAN]: Yes.

….

[THE STATE]: You felt that the portions that—as you
and I discussed what portions were to be played, that I was
being more restrictive as to the content that was going to be
played for the jury than your initial concerns were about the
actual content of the recording?

[HOGAN]: Yes.

¶24 Hogan agreed that serving forty-three months and referencing child
pornography were prejudicial, he would have sought exclusion of those
statements, and he had no specific recollection as to whether those statements had
been played to the jury. But Hogan made clear, “had I heard any information that
would have been improper I believe I would have objected to it or made a record
that, hey, this portion was played to the jury and I think it was improper.” And he
confirmed that at trial, he “didn’t take any notes of any statements being admitted
that [he] found to be improper.”

¶25 The presiding circuit court was certain that the jury heard no unduly
prejudicial remarks from the recording. At the initial hearing on the motion on
September 30, 2016, the court noted that it read Nutting’s postconviction
counsel’s motion. The court stated: “I presided over this trial, I know what the

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record is.… And I’m going to tell you flat out there wasn’t one of those
statements that ever came in on the record. None.”

¶26 At the later evidentiary hearing in February 2017, the court ratified
its earlier certainty of whether prejudicial comments from the recording were
played to the jury while he guided the trial: “I presided over this [trial] and I was
the judge and as I indicated previously I’ll reaffirm now that there was nothing
prejudicial that was addressed.”

¶27 The circuit court denied the motion in a written decision and order.
At the outset, the court “accept[ed] responsibility for failing to note on the record
those parts of the audio recording of the Defendant’s interview that were played to
the jury.” It did not make findings as to the exact start and stop times of the
redacted or played material. Rather, it determined that nothing prejudicial to
Nutting was played to the jury: “[T]he testimony of Attorney Hogan, coupled
with the applicable Exhibits, unequivocally establishes those limited portions [of
the recording] played to the jury and clearly demonstrates the absence of any
objectionable or prejudicial statements being played.”3

¶28 The court held that the State did not violate Brady when it did not
provide Hogan “with a copy of P.K.’s victim impact statement from a completely
non-related case.”

3
Although the court opined that “[t]his omission, given the trial record, and the
compelling and persuasive DNA evidence, should be considered harmless error should any be
determined,” the DNA evidence, for a variety of reasons, was never introduced into evidence and
considered by the jury.

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No. 2017AP2049-CR

¶29 Finally, the court held that Nutting failed to demonstrate entitlement
to a new trial based on ineffective assistance or in the interest of justice because
“[t]here is just no basis to support any claim that a new trial would produce any
different result.”

¶30 Nutting appeals.

DISCUSSION

The Law of an Appellate Record and the Standards of Review

¶31 Although Nutting argues the circuit court erred by failing to ensure
that the audio recording was “precisely identified in the record” and therefore out
of compliance with SCR 71.01(2)(e),4 we take this to be a claim alleging a
deprivation of a meaningful appeal. The right to appeal is absolute under the
Wisconsin Constitution. WIS. CONST. art. I, § 21(1); State v. Perry, 136 Wis. 2d
92, 98, 401 N.W.2d 748 (1987). As part of that right, a defendant must be
provided “a full transcript—or a functionally equivalent substitute that, in a
criminal case, beyond a reasonable doubt, portrays in a way that is meaningful to
the particular appeal exactly what happened in the course of trial.” Perry, 136

4
SUPREME CT. RULE 71.01(2)(e) provides as follows:

Audio and audiovisual recordings of any type, if not submitted
under [SCR 71.02 (d)], that are played during the proceeding,
marked as an exhibit, and offered into evidence. If only part of
the recording is played in court, the part played shall be precisely
identified in the record. The court may direct a party or the court
reporter to prepare the transcript of a recording submitted under
this paragraph.

A number of revisions with respect to stenographic reporters and related procedures took
effect as of July 1, 2019, none of which affect the above-quoted provision. S. Ct. Order 19-01,
2019 WI 5 (eff. July 1, 2019).

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No. 2017AP2049-CR

Wis. 2d at 99. If a deficiency in the transcript deprives a defendant of a
meaningful appeal, the remedy is a new trial. Id.

¶32 But a new trial is only called for if the defendant can show a
“colorable need,” i.e., “an error which, were there evidence of it revealed in the
transcript, might lend color to a claim of prejudicial error.” Id. at 101 (citation
omitted). The State concedes that a “colorable need” existed for clarification of
which portions were redacted—as there were multiple statements in the audio
recording that, if played to the jury, few would dispute are prejudicial.

The Record Was Sufficiently Reconstructed and No Prejudice Resulted

¶33 Having shown a colorable need, we must look to see whether the
circuit court could adequately reconstruct the record. See State v. Raflik, 2001 WI
129, ¶¶35-36, 248 Wis. 2d 593, 636 N.W.2d 690. We have stated that, when
disputes about the record remain, those disputes will be settled by the circuit court,
relying on its own recollection and notes or materials from the parties as an aid to
reconstruction. Id., ¶36. To this end, the court may also conduct hearings and
consult with counsel. Id. The court’s “duty is to establish what the [missing]
testimony was,” not to “speculate about what the testimony probably was or might
have been.” State v. DeLeon, 127 Wis. 2d 74, 81, 377 N.W.2d 635 (Ct. App.
1985). In a criminal trial, the circuit court must be satisfied beyond a reasonable
doubt that the State met its burden of proof in establishing that the missing
testimony could be properly reconstructed. Id. at 82.

¶34 “Every step of this procedure is reviewable on appeal, and appellate
courts should review errors in the reconstruction itself under the ‘clearly
erroneous’ standard.” Raflik, 248 Wis. 2d 593, ¶36 (citation omitted). But

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No. 2017AP2049-CR

whether reconstruction of the trial court record is adequate is a question of law
reviewed de novo. Perry, 136 Wis. 2d at 97.

¶35 Here, the circuit court was able to reconstruct the record and its
factual conclusion that no prejudicial portions were played is not clearly
erroneous. The defect or problem was not missing exhibits, a corrupted disk drive,
or, as faced by our supreme court in Perry, lost-in-the-mail court reporter notes,
which, once found, “were incomplete and in a jambled mess,” ultimately leaving
one-eighth of the proceedings missing, including the entire testimony of two
witnesses, all closing arguments, and other documentary fragments. See id. at 95-
96, 107.

¶36 Rather, we actually possess the intact evidence—Nutting’s audio
recording. When the evidence is fully available, multiple witnesses can speak to
the issue, and contemporaneous notes or exhibits help to corroborate what was
played and what was not, the circumstances are highly favorable for a sufficiently
reconstructed record.

¶37 Hogan testified that he understood Nutting’s statements regarding
prison time and that prior convictions would be prejudicial. He identified these
topics in his notes. Hogan agreed with the State in principle on what was to be
redacted, and they then compared notes and confirmed that the agreed-upon
portions would be redacted. The State’s notes were introduced at the evidentiary
hearing, identifying all but one of the agreed-upon portions. However, this portion
contained the topics—custody in prison and prior convictions—that they had
agreed would be redacted. Indeed, Hogan listened at trial and did not hear any
objectionable portions, he would have objected had they been played, and he had

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No. 2017AP2049-CR

no notes indicating that objectionable portions were played. The circuit court
confirmed, based on its own recollection, that no prejudicial portions were played.

¶38 Using the clearly erroneous standard, we conclude that the circuit
court properly determined that the defective record could be reconstructed. See
DeLeon, 127 Wis. 2d at 81. Both the State and trial counsel were available to
reconstruct the record, see State v. DeFilippo, 2005 WI App 213, ¶17, 287 Wis. 2d
193, 704 N.W.2d 410 (availability of witnesses), based on their memories and
notes, see id., ¶16 (contemporaneous documents), and we see nothing in the
testimony that would render the circuit court’s conclusion clearly erroneous.
Further, the evidence here was not a complex array of witnesses or documents, but
rather statements made on an audio recording that were few, simple, and brief, see
id., ¶18 (complexity factor), generally reducing the chance of error. Finally, the
postconviction court, resolving any doubt, confirmed the veracity of the
reconstruction without question, and we cannot find clear error in that
determination. See id., ¶13 (circuit court resolves any dispute).

¶39 Based on the foregoing, we conclude that the reconstructed record
serves to provide for a meaningful appeal as a matter of law. See Perry, 136
Wis. 2d at 97.

As His Defense Did Not Prejudice Nutting, Hogan’s Legal Assistance Was Not
Ineffective

¶40 Nutting also argues that Hogan provided ineffective assistance of
counsel for failing to anticipate that Nutting’s recorded interview would be played
at trial, for failing to object to those parts that were highly prejudicial, and for
failing to keep accurate notes of what was played. We reject his claims.

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¶41 A defendant claiming ineffective assistance of counsel must prove
both that the lawyer’s representation was deficient and that he or she suffered
prejudice as a result of that deficient performance. Strickland v. Washington, 466
U.S. 668, 687 (1984). If the court concludes that the defendant has not proven one
prong of this test, it need not address the other. Id. at 697. To prove deficient
performance, a defendant must show specific acts or omissions of counsel that
were “outside the wide range of professionally competent assistance.” Id. at 690.
To show prejudice, the defendant must prove that the alleged defect in counsel’s
performance “actually had an adverse effect on the defense.” Id. at 693. More
than merely showing that the error had some conceivable effect on the outcome,
“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. Pitsch, 124 Wis. 2d 628, 642, 369 N.W.2d
711 (1985) (quoting Strickland, 466 U.S. at 694).

¶42 Nutting has not shown that Hogan failed to ensure redaction of the
prejudicial comments. Even if we assume Hogan’s oversight in failing to make a
trial court record of what was played was deficient, it was not prejudicial.
Discussed above, the court properly determined that no prejudicial comments were
heard by the jury, and we affirm that determination. For that reason, Nutting
cannot demonstrate prejudice.

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No. 2017AP2049-CR

The Trial Court Did Not Err by Not Giving a Jury Instruction on Nutting’s Offer
to Take the Polygraph Test

¶43 Well before trial, Nutting moved to introduce into evidence his offer
during Bartelt’s interview that Nutting would take a polygraph test. He now
claims the circuit court erred in failing to instruct the jury that his offer may have
been an indicia of innocence. We disagree.

¶44 Nutting failed to ever propose a jury instruction on this point.
During a pretrial hearing, the circuit court expressed skepticism of a request to
introduce evidence of an offer to take a polygraph test in terms of its admissibility,
and it cautioned Nutting about opening the door to impeachment, but the court
deferred ruling on the motion until other evidence was first presented. Nutting
complains about the court’s initial comments, but he fails to establish that his
motion was addressed and denied. Whether Nutting’s offer was played or not,
Nutting does not point out when, if ever, he submitted a proposed instruction. See
WIS. STAT. § 805.13(3) (2017-18) (at the close of evidence, counsel may move the
court for jury instructions or object to others, and a failure to object is a waiver).

The Circuit Court Did Not Err in Denying Nutting’s Brady Challenge

¶45 Nutting asserts that promptly giving him P.K.’s victim impact
statement from the failure to protect case against her mother was particularly
important here as the jury’s decision, Nutting believes, turned on credibility and
nothing else. The State did not offer surveillance footage, DNA evidence, any
witnesses (beyond P.K.), and never nudged Nutting toward a confession.
Therefore, the impact statement, which makes P.K. a liar in her own words, was
critical. This was a Brady violation, Nutting claims. See Brady, 373 U.S. 83. We
disagree.

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No. 2017AP2049-CR

¶46 The suppression of evidence favorable to the defendant is a violation
of due process. Id. at 86. To the point, a Brady violation requires that (1) the
State suppressed evidence (2) favorable to the defense and (3) material to the
determination of guilt. State v. Garrity, 161 Wis. 2d 842, 848, 469 N.W.2d 219
(Ct. App. 1991).

¶47 As noted, in the complaint, P.K. told her mother that she was going
to have sex in her home with two men. In her impact statement, P.K. said that she
does not obey her mother, that she takes the blame for what happened to her, that
she is dishonest, and talks to older men when told not to. P.K. had in effect
testified to this behavior at trial. She testified that “she was acting out,” not
following rules, and abusing alcohol. The inattention from her mother caused her
to seek out older men on internet dating sites, using fake names and claiming to be
eighteen. As a result of her conduct with these men and other issues, she was
placed in foster care.

¶48 We fail to see how the redundant, effectively cumulative evidence of
the impact statement would be favorable to Nutting. For Brady to apply, the
“whole case” has to be put in a different light: “Prejudice” encompasses Brady’s
materiality requirement such that the defendant is not prejudiced unless “the
favorable evidence could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.” State v. Harris, 2004
WI 64, ¶15, 272 Wis. 2d 80, 680 N.W.2d 737 (citations omitted). As a practical
matter, if the evidence fails to show a “reasonable probability of a different
result,” it is not material and falls outside of Brady. Banks v. Dretke, 540 U.S.
668, 699 (2004) (citation omitted).

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No. 2017AP2049-CR

¶49 As noted, the impact statement was from P.K.’s mother’s failure-to-
protect case, in which P.K. states she does not obey her mother, she talks to older
men when she should not, and ends up messing things up by lying. 5 It is unlikely
the evidence would have been helpful to Nutting. Indeed, it could cut the other
way, pointing up that P.K. goes behind her mother’s back and talks to strange
men, weakening Nutting’s defense by underscoring that the fourteen-year-old P.K.
was subject to exploitation. In any event, the impact statement is cumulative as to
her behavior and does not constitute a Brady violation. The information of the
statement had no “reasonable probability of [giving Nutting] a different result.”
See Banks, 540 U.S. at 699.

The Interests of Justice Do Not Warrant a New Trial

¶50 Pointing out what he claims are multiple serious errors—the
mismanaged recording, the failure to instruct the jury on the polygraph, and the
Brady violations—Nutting contends that a critical mass of deficiencies can tip the
scales and result in enough prejudice to warrant a new trial. We reject the request
outright. As discussed, the alleged violations are not violations at all and, more to
the point, would not have had any appreciable impact on the outcome. See
Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752 (1976) (no new trial
because of the lack of substance of defendant’s arguments: “Adding them

5
As part of his Brady argument, Nutting alludes to the State’s failure to disclose the
criminal charge against S.K. for failing to protect a child, and he vaguely asserts that having this
information would have been helpful to impeach S.K. because she had a motive to cooperate with
the State. We reject the argument. In his postconviction motion, Nutting did not develop this
barebones argument, effectively depriving the circuit court an opportunity to rule on it. See State
v. Reese, 2014 WI App 27, 14 n.2, 353 Wis. 2d 266, 844 N.W.2d 396 (we need not address
arguments raised for the first time on appeal); State v. Tentoni, 2015 WI App 77, ¶12, 365
Wis. 2d 211, 871 N.W.2d 285 (we need not address undeveloped arguments).

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No. 2017AP2049-CR

together [to claim that justice was not served] adds nothing. Zero plus zero equals
zero”).

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

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