State v. Joseph P. Pamonicutt

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.
November 19, 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. 2018AP459-CR Cir. Ct. No. 2015CF436

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSEPH P. PAMONICUTT,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Outagamie County: VINCENT R. BISKUPIC, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Joseph Pamonicutt appeals a judgment, entered
upon a jury’s verdict, convicting him of one count of aggravated battery and one
No. 2018AP459-CR

count of burglary of a building or dwelling, both counts as a party to the crime.
He also appeals an order denying him postconviction relief. Pamonicutt contends
that his trial attorney provided ineffective assistance by failing to adequately
“safeguard” his constitutional rights to testify in his own defense and to confront a
witness against him. We reject his arguments and affirm.

BACKGROUND

¶2 According to the criminal complaint, on May 26, 2015, Victor1 was
admitted to a hospital with two broken ribs, two broken vertebrae, a broken nose, a
cut lip, and contusions and abrasions to both of his eyes. Victor initially told a
nurse, Sara Womack, that he suffered his injuries when he fell from a roof. Victor
subsequently changed his story, however, and informed a police officer that he
was asleep in his bedroom when four people entered his apartment and assaulted
him. An eyewitness to the assault identified Pamonicutt as being one of these four
men.

¶3 Prior to trial, the State filed a notice of intent to introduce “other
acts” evidence against Pamonicutt. As pertinent here, the State’s proffered
evidence included Facebook messages that were sent from an account bearing
Pamonicutt’s name to a third party on May 26, 2015, stating: “What up
bro..wanna beat up some Mexicans[?]” When the third party questioned why, the
account bearing Pamonicutt’s name responded: “Fucking with my lil brother.”2

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2017-18), we use a
pseudonym to refer to the victim. All references to the Wisconsin Statutes are to the 2017-18
version unless otherwise noted.
2
It is undisputed on appeal that Victor is of Mexican heritage.

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No. 2018AP459-CR

¶4 Three days prior to the start of trial, the circuit court held a hearing
on the State’s motion. At the hearing, the court determined that the Facebook
records were not “other acts” evidence. Rather, the court concluded that they were
“part of the context of the case and the panorama of the evidence surrounding the
incident or alleged incident.” Nonetheless, the court decided to “reserve ruling”
on the ultimate admissibility of the records.

¶5 During the same hearing, the State informed the circuit court that it
had been unable to serve a subpoena on nurse Womack, whom it had included on
its list of trial witnesses. The State explained that the hospital to which Victor had
been admitted “had no record of who she was and checked to see if … anybody
had married or divorced and changed their name back; and they couldn’t figure
out who she was.”

¶6 At this, Pamonicutt’s trial attorney, Michael Petersen, expressed
“concern” about Womack’s unavailability, because until that morning it was his
“understanding that she would be present.” Petersen therefore moved for a
continuance of the trial. After confirming that the State intended to call one of
Victor’s treating physicians, Dr. Thomas Winek, the circuit court made the
following decision regarding Womack’s absence:

[Victor’s] credibility is fair game. The fact that the State
hasn’t been able to or defense hasn’t been able to subpoena
this particular witness doesn’t exclude the evidence in the
Court’s view. It’s a medical record that fits under the
hearsay exceptions of [WIS. STAT. §] 908.03. The State is
given notice of its use. The defendant or [Victor] can be
cross-examined on it. [Dr. Winek] can be questioned about
it, whether on direct or cross, about this historian. So on
that particular issue, the Court is going to let this record be
utilized in a fairly liberal manner by defense counsel at
trial.

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No. 2018AP459-CR

¶7 At trial, the State introduced Victor’s complete medical records
through Winek’s testimony. On cross-examination, Petersen elicited testimony
from Winek that “[t]he [initial] information that I was given … was that he was on
a roof. He had been roofing and had fallen off the roof.” Petersen also asked
Winek if he “recall[ed] whether there was any information that [Victor] had any
fractured ribs in the past?” Winek replied that he “was not aware of that.”

¶8 On redirect, Winek stated that “[it] would be difficult to ascertain”
how Victor could have suffered his above-described injuries in a fall from a
second-story roof. Winek explained that if Victor had fallen from a roof, “I would
have expected him to have some injuries to his forearms and upper arms, to try to
brace himself from the fall. Also I would be somewhat concerned that he had
significant injuries on both his right and left side.”

¶9 After Winek was excused, but before he was released from his
subpoena, Petersen moved for a mistrial. As grounds, he observed that Womack’s
treatment notes stated that Victor told her he had fractured his ribs one month prior
to his hospital admission. Because Winek had testified that he was not aware of
any such patient history, Petersen argued that “at this point we’re safer to have a
mistrial now and find Ms. Womack, if she exists or doesn’t exist.”

¶10 The circuit court denied the motion. The court explained that rather
than declare a mistrial, it would “allow the doctor to be recalled …. Records have
already been received. If there’s inconsistencies in those records, they can be
brought out. Like I said, I’m going to give liberal cross-examination.”
Accordingly, Winek was recalled, and he read the relevant portion of Womack’s
notes to the jury.

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No. 2018AP459-CR

¶11 Victor testified that the day before he was assaulted, Aaron Smith
(Pamonicutt’s brother) and a woman were involved in an altercation during a
gathering in Victor’s apartment. Victor stated that Smith “started beating on” the
woman, which led to Victor telling Smith that “if he felt like hitting someone he
could hit a man, not a woman.”

¶12 Victor then testified that, after returning home from work the
following afternoon, he fell asleep in his bedroom and was woken up by a “kick to
[his] face.” Victor stated that multiple individuals kicked and punched him
repeatedly, and he identified one of his attackers as Pamonicutt. When asked
whether he suffered his injuries in a fall from a roof, Victor
responded: “Absolutely not.”

¶13 On cross-examination, Victor confirmed that he initially told
hospital staff that he suffered his injuries in a fall. When asked why he
subsequently told law enforcement a different story, Victor stated that he initially
“didn’t want nobody to get in trouble.” He explained, however, that he “changed
[his] mind when I talked to my daughter; and she, you know, pretty much begged
me to tell the truth.”

¶14 Prior to the State resting, the circuit court heard the State’s offer of
proof regarding the admissibility of the Facebook records. City of Appleton
police officer Michael Medina testified that he secured the Facebook records after
uploading a warrant authorizing him to search Pamonicutt’s Facebook records to a
“Facebook for law enforcement website.” He stated he had used the same process
approximately seventy times to execute similar warrants. After the “search
warrant [was] satisfied,” Facebook sent Medina a link to download a file with
“[m]ost of the messages” associated with Pamonicutt’s Facebook account.

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No. 2018AP459-CR

Medina stated that the downloaded file bore a watermark stating the messages
were a “Facebook business record.”

¶15 The circuit court ultimately decided against allowing the State to
introduce the Facebook records, based upon authentication concerns. The court
explained:

[A]t least on direct exam of Officer Medina [the court’s
decision] is to not admit these records at this point because
of the failure of Facebook to provide an appropriate
certification consistent with our statutes. There are some
indications of trustworthiness, but at this point it’s a close
call. At least at this time we are going to defer final ruling
on whether it can come in in some other capacity.

For example, if the defendant takes the stand and the State
wants to cross-examine him with his entries, ask him some
questions about whether he had a Facebook page at that
time. Ask him questions. Isn’t it true at that time, at least
during the months leading up to that, you did have a
residence in the Fox Lake area? Any other thing that
would confirm the reliability of those records, I think, is
fair game on cross-examination of the defendant.

¶16 Pamonicutt did not call any witnesses at trial, and he chose not to
testify. Instead, attorney Petersen argued to the jury that the State had failed to
prove beyond a reasonable doubt that Pamonicutt assaulted Victor. The jury
ultimately returned guilty verdicts on both counts.

¶17 Pamonicutt filed a pro se postconviction motion alleging that
Petersen rendered ineffective assistance by failing to: (1) contest the admissibility
of the Facebook records on other acts evidence grounds; (2) inform the court that
its decision regarding the admissibility of the Facebook records significantly
impacted Pamonicutt’s decision not to testify; and (3) secure Womack’s presence
at trial. Postconviction counsel subsequently appeared for Pamonicutt, and the
circuit court held an evidentiary hearing on the motion.

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No. 2018AP459-CR

¶18 At the hearing, Petersen testified that when the trial began “the
understanding was that Mr. Pamonicutt would testify. However, based upon the
Court’s ruling on the second day of trial that the Facebook records would not be
admitted, unless Mr. Pamonicutt could testify and essentially authenticate them,
that’s when the decision changed.” Petersen also acknowledged that he never
informed the circuit court that Pamonicutt’s decision not to testify was driven
primarily by the court’s decision regarding the admissibility of the Facebook
records.

¶19 Petersen further testified that he did not subpoena Womack because
it was his “understanding the State was going to subpoena her. She was on the
State’s witness list.” However, once he was informed that the State could not
locate Womack, he testified that he “made efforts to try to contact the … hospital
… to try to find Ms. Womack. When I called, I was given—I was given
information that they couldn’t confirm that she worked there. So I was unable to
find her.” In addition, Petersen stated that although it “would have been beneficial
to find her a few days before trial[,] in my position she had already given a
statement within the medical records.”

¶20 The circuit court denied Pamonicutt’s postconviction motion in a
written order. The court concluded that Petersen did not perform deficiently in
any respect and that, even if he had, Pamonicutt had not shown that he was
prejudiced by any assumed deficiency. Pamonicutt now appeals.

DISCUSSION

¶21 On appeal, Pamonicutt contends that Petersen was ineffective by
failing to “safeguard”: (1) “Pamonicutt’s constitutional right to testify from being
snuffed by the looming threat to admit otherwise inadmissible ‘other acts’

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No. 2018AP459-CR

evidence”; and (2) “Pamonicutt’s constitutional right to confront [a] medical
witness directly related to issues concerning the victim’s credibility.” Whether an
attorney provided ineffective assistance is a mixed question of fact and law. State
v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695. We will uphold
the circuit court’s findings of fact unless they are clearly erroneous. Id. However,
the ultimate determination of whether counsel’s assistance was ineffective is a
question of law that we review independently. Id.

¶22 To prevail on an ineffective assistance claim, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). If a
defendant fails to make a sufficient showing on one prong of the Strickland test,
we need not address the other. Id. at 697. In this case, because we conclude that
Petersen did not perform deficiently in any respect, we only address the first
prong.

¶23 To demonstrate deficient performance, a defendant must show that
his or her trial counsel’s representation fell below an objective standard of
reasonableness, considering all the circumstances. Carter, 324 Wis. 2d 640, ¶22.
There is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id. Accordingly, we are highly deferential to
counsel’s strategic trial decisions. State v. Breitzman, 2017 WI 100, ¶65, 378
Wis. 2d 431, 904 N.W.2d 93. As such, we will not second-guess a reasonable trial
strategy, unless that strategy was based on an irrational trial tactic or based upon
caprice rather than upon judgment. Id.

¶24 We begin with Pamonicutt’s argument that Petersen failed to
adequately safeguard his right to testify. The right to testify on one’s own behalf

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No. 2018AP459-CR

in defense to a criminal charge is a fundamental constitutional right. State v.
Arredondo, 2004 WI App 7, ¶11, 269 Wis. 2d 369, 674 N.W.2d 647 (2003). A
defendant may, however, knowingly and voluntarily waive the right. Id.

¶25 As indicated, Pamonicutt argues that Petersen was deficient because
he failed to adequately address the circuit court’s “looming threat to allow the
uncertified inadmissible Facebook evidence” to be introduced into evidence if
Pamonicutt chose to testify. He fails, however, to develop any argument as to why
the court’s decision regarding the admissibility of the Facebook records was an
erroneous exercise of discretion. See State v. Monahan, 2018 WI 80, ¶30, 383
Wis. 2d 100, 913 N.W.2d 894 (“Circuit court evidentiary decisions are reviewed
for an erroneous exercise of discretion.”). Instead, he deems the merits of the
court’s decision on the ultimate admissibility of that evidence “insignificant.”
(Blue 11)

¶26 We cannot agree with Pamonicutt that the merits of the circuit
court’s evidentiary decision are insignificant. As he concedes, a “battle was won
for the defense when the [circuit] court deemed the Facebook records inadmissible
[during the State’s case-in-chief] for lack of certification.”3 Consequently, when
Petersen advised Pamonicutt not to testify so as to avoid opening the door for the
State to, in the words of the circuit court, “confirm the reliability of those records”

3
Again, the Facebook records corroborated Victor’s version of events insomuch as they
portrayed a Facebook user named Joseph Pamonicutt messaging a third party to ask: “What up
bro..wanna beat up some Mexicans[?]” When the third party questioned why, the account
bearing Pamonicutt’s name responded: “Fucking with my lil brother.”

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No. 2018AP459-CR

(i.e., to authenticate the records and thus render them admissible), he was
providing Pamonicutt sound legal advice.4

¶27 This conclusion follows because, absent any developed argument
that the circuit court’s statement that Pamonicutt’s testimony could potentially
authenticate the Facebook records was in error, we must accept that there was, in
fact, a risk that if Pamonicutt chose to testify, the Facebook records would be
entered into evidence. We cannot conclude that Petersen performed deficiently by
advising Pamonicutt of that risk and by recommending that he avoid it by
declining to testify.

¶28 Instead, we agree with the State that Petersen merely presented
Pamonicutt with information that allowed him to make the same choice that all
defendants routinely make: choose to take the stand and waive his privilege to be
free from the full scope of cross-examination permissible under the rules of
evidence or choose not to testify and put the State to its burden to prove him
guilty. See Neely v. State, 97 Wis. 2d 38, 45, 292 N.W.2d 859 (1980). By doing

4
At the postconviction evidentiary hearing, Petersen gave the following relevant
testimony in response to questioning from the State:

Q What did you advise Mr. Pamonicutt, if you recall? To testify
or not?

A I would have—I told him not to testify based upon the issues
of the Facebook posting.

….

Q Was that a strategic decision?

A Of course, yes.

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No. 2018AP459-CR

so, we conclude that Petersen provided Pamonicutt with representation that fell
well within the wide scope of reasonable professional assistance.

¶29 Pamonicutt next argues that Petersen failed to adequately safeguard
his right to confront a witness against him because Petersen failed to “interview or
locate Nurse Womack through a private investigator prior to the State’s reveal that
she could not be found.” In all criminal prosecutions, defendants have a right,
under the Confrontation Clause of the Sixth Amendment, to be confronted with
the witnesses against them. State v. Deadwiller, 2013 WI 75, ¶20, 350 Wis. 2d
138, 834 N.W.2d 362.

¶30 Accordingly, the admission of testimonial statements from witnesses
not present at trial is appropriate only when the declarant is unavailable and the
defendant has had a prior opportunity to cross-examine the absent witness. Id.
“The Confrontation Clause is concerned with ‘a specific type of out-of-court
statement,’ such as affidavits, depositions, custodial examinations, prior
testimony, and ‘statements that were made under circumstances which would lead
an objective witness reasonably to believe that the statement would be available
for use at a later trial.’” Id. (citation omitted).

¶31 As with his argument concerning Petersen’s alleged deficiency in
regards to the admissibility of the Facebook records, Pamonicutt once again fails
to address the underlying merit of the circuit court’s decision to allow Womack’s
out-of-court statements to be introduced into evidence. That is, Pamonicutt fails to
explain how any of the statements attributed to Womack could be considered the

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No. 2018AP459-CR

“specific type of out-of-court statement” that implicates the protections of the
Confrontation Clause.5

¶32 Regardless, Pamonicutt’s claim of ineffective assistance related to
Petersen’s failure to secure Womack’s presence at trial fails for a more
straightforward reason: his claim is purely speculative. See State v. O’Brien, 214
Wis. 2d 328, 349-50, 572 N.W.2d 870 (Ct. App. 1997) (holding that speculation
cannot be a basis for an ineffective assistance of trial counsel claim). Put simply,
Pamonicutt faults Petersen for not locating Womack prior to trial without
establishing that additional efforts on the part of Petersen would have actually
enabled him to find her.

¶33 Again, Pamonicutt argues Petersen performed deficiently because he
failed to “interview or locate Nurse Womack through a private investigator prior
to the State’s reveal that she could not be found.” In so arguing, however, he
ignores the fact that the State’s attempts to locate Womack also proved
unsuccessful. He also fails to recognize the importance of the circuit court’s
factual finding that Petersen “made effort to find Ms. Womack but was not
successful.”6

¶34 As a result, Pamonicutt’s argument regarding Petersen’s alleged
deficient performance is purely speculative—because he does not explain why or

5
We also note that Petersen did, in fact, object to the introduction of Womack’s out-of-
court statements and move for both a continuance and a mistrial based upon the introduction of
those statements.
6
Although Pamonicutt appears to question the veracity of Petersen’s testimony that he
tried to locate Womack prior to trial, he presents no developed argument explaining why the
court’s factual finding was clearly erroneous. We therefore accept that finding, as we must. See
State v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695.

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No. 2018AP459-CR

how a private investigator would have succeeded in locating Womack when both
the State and Petersen were unable to do so. Thus, on this record, we conclude
that Petersen’s representation fell within the wide range of reasonable professional
assistance, and he therefore did not perform deficiently.

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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