State v. Tony A. Wild

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.
January 20, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2021AP1807-CR Cir. Ct. No. 2019CF139

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TONY A. WILD,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Grant
County: CRAIG R. DAY, Judge. Affirmed.

Before Kloppenburg, Graham, and Nashold, 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).

¶1 PER CURIAM. Tony Wild appeals a judgment of conviction for
first-degree sexual assault of a child and an order denying his motion for
No. 2021AP1807-CR

postconviction relief. Wild contends that trial counsel was ineffective by (1) failing
to request a Daubert1 hearing to test the admissibility of expert testimony by a
forensic interviewer who interviewed the victim, (2) failing to object to the
interviewer’s expert testimony at trial, (3) bolstering the interviewer’s credibility on
cross-examination, and (4) failing to impeach the victim with evidence of the
victim’s shoplifting. We conclude that Wild fails to establish that counsel
performed deficiently in any of these respects. Accordingly, we affirm.

¶2 The sexual assault charge against Wild was based on allegations that
he had sexual contact with A.B., a child under the age of thirteen.2 According to
the complaint allegations, Wild reached his hand into A.B.’s pants and rubbed her
“private part” while A.B. was sleeping. A jury found Wild guilty. After being
sentenced, Wild filed a postconviction motion claiming that he received ineffective
assistance of counsel at trial. The circuit court held a Machner3 hearing at which
trial counsel testified. The court denied Wild’s motion.

¶3 To demonstrate ineffective assistance of counsel, a defendant must
establish both (1) that counsel’s performance was deficient, and (2) that the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). “[O]ur review of an ineffective-assistance-of-counsel claim
presents mixed questions of law and fact.” State v. Ward, 2011 WI App 151, ¶9,
337 Wis. 2d 655, 807 N.W.2d 23. “A circuit court’s findings of fact will not be
disturbed unless they are clearly erroneous.” Id. “Its legal conclusions as to whether

1
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
2
We use the initials A.B. to protect the victim’s privacy. See WIS. STAT. RULE 809.86
(2019-20). All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2021AP1807-CR

the lawyer’s performance was deficient and, if so, prejudicial, are questions of law
that we review de novo.” Id.

¶4 We need not address both prongs of this test for ineffective assistance
if the defendant makes an insufficient showing on one prong. See Strickland, 466
U.S. at 697. Here, because we conclude Wild fails to show that counsel performed
deficiently, we do not address prejudice.

¶5 To establish deficient performance, “the defendant must show that
counsel’s representation fell below an objective standard of reasonableness.” Id. at
687-88. “Judicial scrutiny of counsel’s performance must be highly deferential.”
Id. at 689. “A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. The defendant “must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. (quoted source omitted).

¶6 Wild first contends that trial counsel performed deficiently by failing
to request a Daubert hearing to test the admissibility of expert testimony by the
forensic interviewer who interviewed A.B. The interviewer testified regarding her
interview techniques, including how she asks non-leading questions in an attempt
to gather information in a neutral manner. According to Wild, the interviewer’s
testimony relating to her specialized knowledge of forensic interviewing techniques
was expert testimony. We will assume, without deciding, that this testimony was
expert testimony.

¶7 Wild argues that, if counsel had requested a Daubert hearing, the
circuit court would have been required to exercise its gatekeeping function to

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No. 2021AP1807-CR

determine whether the interviewer’s expert testimony was admissible under
Daubert standards. Wild argues that there was no reasonable strategic basis for
counsel not to request a Daubert hearing.

¶8 We reject Wild’s argument that counsel performed deficiently by
failing to request a Daubert hearing because Wild does not explain why some or all
of the interviewer’s expert testimony would have been inadmissible under the
Daubert standards. Absent such an explanation, Wild has not established that a
Daubert hearing would have resulted in the exclusion of any of that testimony. Wild
therefore has also not established that counsel performed deficiently by failing to
request a Daubert hearing. See State v. Pico, 2018 WI 66, ¶28, 382 Wis. 2d 273,
914 N.W.2d 95 (“[A]n attorney does not perform deficiently when [the attorney]
chooses not to pursue tactics that lack factual or legal support.”); 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.”).

¶9 In his reply brief, Wild argues that the forensic interviewer’s expert
testimony was inadmissible because the testimony was not relevant and because one
of the principles of Daubert is that the testimony must be relevant. Putting aside
the fact that this argument comes too late, we reject the argument as lacking in merit.
The testimony was relevant because it had a tendency to show that the interview of
A.B. was reliable and that A.B.’s allegations as disclosed in the interview were thus
likewise reliable. See State v. Maday, 2017 WI 28, ¶28, 374 Wis. 2d 164, 892
N.W.2d 611 (“The forensic interview techniques used today are accepted among
experts and courts as effective tools for investigating child sexual assault allegations
because these methods minimize the risk of false allegations of abuse that result
from a child’s vulnerability to suggestion and coaching.”).

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No. 2021AP1807-CR

¶10 Wild next contends that counsel performed deficiently by failing to
object to the forensic interviewer’s expert testimony at trial. Wild argues that the
testimony should have been excluded because the State failed to timely identify the
forensic interviewer as an expert witness.4

¶11 We will assume, without deciding, that counsel could have
successfully objected to the interviewer’s expert testimony because the State failed
to timely identify the interviewer as an expert witness. Even so, we conclude that
counsel’s failure to object on this ground was not deficient performance because
counsel had a reasonable strategic basis for allowing the testimony to be admitted.

¶12 Counsel testified at the Machner hearing that she believed that the
most damaging part of the State’s case consisted of statements that Wild had made
to a detective under coercive questioning. Counsel testified that she wanted to cast
as much doubt on the detective’s credibility as possible. To that end, counsel sought
to focus on the detective’s coercive interviewing techniques, and to juxtapose those
coercive techniques with the neutral interview techniques that the forensic
interviewer described.

¶13 The circuit court found that although counsel’s strategy was “risky,
perhaps,” the strategy was reasonable given Wild’s incriminating statements to the
detective and the detective’s interview techniques. The court reasoned that it was a
good defense strategy to identify a witness for the jury to dislike more than the
defendant and that, in this particular case, the detective was “a pretty good candidate

4
Wild also argues that counsel could have objected to the interviewer’s expert testimony
at trial as inadmissible under the Daubert standards. However, as discussed in the text, Wild does
not explain why some or all of the interviewer’s expert testimony would have been inadmissible
under the Daubert standards. Therefore, we conclude that Wild has not shown that counsel
performed deficiently by failing to object on this ground at trial.

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No. 2021AP1807-CR

for that.” The court found that the defense needed a way to minimize Wild’s
statements to the detective and to show that, “unlike [the forensic interviewer],
who’s trying to get to the truth, the [detective] is not because they employed two
very different techniques.” The court further found that the interviewer “being on
the stand and having that information that [defense counsel] viewed as helpful to
undermine the [detective]’s credibility was the best way, under the available
options, to try to get that done.”

¶14 Based on the circumstances of this case, counsel’s testimony at the
Machner hearing, and the circuit court’s factual findings, we agree with the court
that counsel’s strategy was a reasonable one. Accordingly, we also agree with the
court that counsel did not perform deficiently by failing to object to the forensic
interviewer’s expert testimony. See State v. Sholar, 2018 WI 53, ¶54, 381 Wis. 2d
560, 912 N.W.2d 89 (“If trial counsel testifies at the Machner hearing that the
choice under attack was based on a trial strategy, which the circuit court finds
reasonable, it is ‘virtually unassailable’ and the ineffective assistance claim fails.”
(quoted sources omitted)).

¶15 Wild argues that counsel’s strategy was not reasonable because,
although his statements to the detective were problematic for his defense, A.B.’s
allegations in the forensic interview were worse. Wild argues that counsel’s strategy
ended up bolstering the forensic interviewer’s credibility and, in turn, bolstering the
credibility of A.B.’s allegations. We are not persuaded by this argument.
Reasonable minds can differ as to which evidence was more damaging to the
defense, and for that reason and the additional reasons already stated we conclude
that counsel chose a reasonable defense strategy.

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No. 2021AP1807-CR

¶16 Wild also argues that counsel’s strategy was not reasonable because
counsel could have attacked the detective’s coercive interview techniques with
expert testimony on false confessions instead of attacking the detective’s techniques
by bolstering the forensic interviewer’s credibility. We reject this argument because
Wild has not identified an expert or explained with any specificity what testimony
the expert would have provided. Without such information, Wild does not establish
that a defense expert was an available or superior option that made counsel’s choice
of strategy unreasonable.

¶17 Wild next contends that counsel performed deficiently when cross-
examining the forensic interviewer. Wild argues that counsel should have sought
to chip away at the reliability of the interviewer’s techniques but counsel instead did
the opposite, using her cross-examination to bolster the interviewer’s credibility.
We reject this argument for the reasons already explained. Counsel’s approach to
cross-examining the interviewer was part of counsel’s reasonable overall strategy.

¶18 Wild’s final contention is that counsel performed deficiently by
failing to impeach A.B. with A.B.’s history of shoplifting. Wild argues that A.B.’s
credibility was obviously a key issue, and that evidence of her previous shoplifting
could have undermined her credibility. Wild argues that this evidence would have
been admissible as opinion or reputation evidence for character of untruthfulness or
as “other acts” evidence. See WIS. STAT. §§ 904.04, 904.05, 906.08.

¶19 There are two reasons why we reject Wild’s argument that counsel
performed deficiently by failing to impeach A.B. with shoplifting evidence. First,
Wild does not persuade us that the evidence would have been admissible under the
theories that he advances.

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No. 2021AP1807-CR

¶20 Second, regardless of whether the evidence would have been
admissible, we conclude that it was objectively reasonable for counsel to decline to
attack A.B.’s credibility with evidence of shoplifting. The theory of defense at trial
did not depend on establishing that A.B. was intentionally lying or had a tendency
to be dishonest. Rather, counsel’s strategy was to leave open the possibility that
A.B. might have been dreaming or that she might have been mistaken, possibly
because one or more adults had unintentionally planted the suggestion that an
assault occurred. Counsel testified at the Machner hearing that it is a “very
common” trial strategy to avoid calling a child a liar. Counsel also testified: “I find
that juries do not react well to attacks on children. It’s difficult to get a jury to
believe a 10-year-old girl is a malicious liar. It happens, but not often.” Any attempt
to impeach A.B. with evidence of shoplifting carried the risk that the jury might
view the defense negatively for using heavy-handed tactics against a young child
victim.

¶21 In sum, for the reasons stated above, we conclude that Wild has not
shown ineffective assistance of counsel because Wild has not established that
counsel performed deficiently in any of the four ways alleged. Accordingly, we
affirm the judgment of conviction and the order denying Wild’s motion for
postconviction relief.

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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