State v. Willie J. Bruce

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.
April 28, 2020
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. 2018AP2364-CR Cir. Ct. No. 2014CF1727

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WILLIE J. BRUCE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Brown County: TAMMY JO HOCK, 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. Willie Bruce appeals a judgment convicting him of
first-degree sexual assault of a child under the age of thirteen and an order denying
No. 2018AP2364-CR

his postconviction motion. The sole issue on appeal is whether Bruce is entitled to
an additional hearing on his claim that his trial counsel provided ineffective
assistance by failing to interview two witnesses present at the scene of the assaults.
We conclude no additional hearing is required because Bruce cannot demonstrate
prejudice resulting from his counsel’s alleged failure. We therefore affirm.

BACKGROUND

¶2 The charge arose from allegations by a six-year-old girl, Anne,1 that
Bruce had touched her on “the part that pees” on multiple occasions. Anne
described three incidents that had occurred in Bruce’s bedroom. During the first
incident, Anne and Bruce were sitting on the bed after Bruce awoke from a nap
while Anne’s cousins, six-year-old Benjamin and five-year-old Charles, were
sitting on the floor playing a wrestling video game on Xbox. According to Anne,
Bruce reached under her underwear and touched her genital area with his finger.
Anne told Bruce to stop because that was not an appropriate thing to do. Bruce
asked Anne, “Please, one more time,” and she refused.

¶3 In the second incident, Anne, Benjamin and Charles were all sitting
on Bruce’s bed playing a Tinkerbell video game on Xbox. Anne alleged Bruce
came into the room and told the boys to sit on the floor, and then he sat next to
Anne on the bed. Bruce proceeded to touch Anne’s genital area under her
underwear for some time while holding a blanket over himself. Anne told Bruce,

1
This matter involves the victim of a crime. Consistent with WIS. STAT. RULE
809.86(4) (2017-18), we use pseudonyms instead of the names of the victim and her minor
cousins.

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No. 2018AP2364-CR

“[T]his is the last time I’m going to tell you, please keep your finger off my
privates.” Bruce again asked, “Please, just one more time,” and Anne refused.

¶4 In the third incident, Anne and Bruce were on the bed while Charles
was on the floor playing on a handheld PlayStation device. Bruce touched Anne
over her clothing “where the pee hole is.” Anne told Bruce to stop, and he
complied. Anne stated that no one had seen any of the touchings occur.

¶5 At trial, Bruce’s defense strategy was to show that he had no
opportunity to commit the assaults. However, his trial counsel, Christopher
Froelich, never interviewed Benjamin or Charles before trial, and Froelich did not
call the boys to testify at trial. During closing argument at trial, the prosecutor
noted the boys had been playing video games during the incidents, but suggested
that they likely would not have paid attention to what was going on between Bruce
and Anne.

¶6 After Bruce was convicted, his postconviction counsel hired a
private investigator to interview the boys. Benjamin told the investigator that
Bruce would not allow Anne into his room, but that sometimes Bruce wrestled
with him, Charles, and Anne. Benjamin remembered an occasion where Anne
jumped on Bruce’s neck while they were wrestling, but he never saw Bruce acting
inappropriately toward Anne. Charles likewise told the investigator that Bruce
would not allow Anne into his room, but that sometimes Bruce wrestled with
Anne and the boys. Charles said he had never seen Anne get upset with Bruce.

¶7 Bruce filed a postconviction motion alleging Froelich had provided
ineffective assistance by failing to interview the boys. The circuit court held an
evidentiary hearing on the motion. Froelich testified that in his experience, it was
risky to put young children on the stand because it was difficult to predict what

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they would say. He did not feel it was necessary to risk putting the boys on the
stand in this case because he believed he could establish the defense’s case that
Bruce did not have the opportunity to commit the assaults through the testimony
of adults who were also present in the house.

¶8 After Froelich testified, the circuit court concluded that counsel’s
performance had not been deficient because it was based on a reasonable strategic
decision. The court then decided that because it did not need to reach the question
of prejudice, it would not take testimony from Benjamin and Charles. Bruce
appeals, arguing the court erred by denying his motion without having considered
the boys’ testimony.

DISCUSSION

¶9 In order to obtain a hearing on a postconviction motion, a defendant
must allege material facts sufficient to warrant the relief sought. State v. Allen,
2004 WI 106, ¶¶9, 36, 274 Wis. 2d 568, 682 N.W.2d 433. In the context of a
claim of ineffective assistance of counsel, that means the facts alleged would, if
true, establish both that counsel provided deficient performance and that the
defendant was prejudiced by that performance. State v. Swinson, 2003 WI App
45, ¶58, 261 Wis. 2d 633, 660 N.W.2d 12. No hearing is required when the
defendant presents only conclusory allegations or when the record conclusively
demonstrates that he or she is not entitled to relief. Nelson v. State, 54 Wis. 2d
489, 497-98, 195 N.W.2d 629 (1972).

¶10 Whether defense counsel’s conduct violated the constitutional
standard for effective assistance of counsel is ultimately a legal determination that
this court decides de novo. Id. We need not address both components of the test
if the defendant fails to make a sufficient showing on one of them. Swinson, 261

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Wis. 2d 633, ¶58. We may also affirm on grounds different than those relied on
by the circuit court. State v. Earl, 2009 WI App 99, ¶18, n.8, 320 Wis. 2d 639,
770 N.W.2d 755. Here, we conclude that Bruce is not entitled to an additional
hearing on his claim of ineffective assistance of counsel because the allegations in
his motion are insufficient to demonstrate prejudice arising from counsel’s failure
to interview Benjamin and Charles.

¶11 A defendant proves prejudice by demonstrating there is a reasonable
probability that, but for counsel’s unprofessional conduct, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
694 (1984). The “reasonable probability” standard does not require a showing that
it is “more likely than not” that a jury would have acquitted the defendant. State v.
Sholar, 2018 WI 53, ¶44, 381 Wis. 2d 560, 912 N.W.2d 89. Still, the “reasonable
probability” standard is tied to the reviewing court’s confidence in the outcome,
see id., ¶45, and the “likelihood of a different result must be substantial, not just
conceivable.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011).

¶12 Bruce contends the postconviction statements made by Benjamin
and Charles would create a reasonable probability of a different outcome at trial
by undermining Anne’s credibility. We are not persuaded that is the case for two
reasons.

¶13 First, Benjamin’s and Charles’ statements do not directly contradict
Anne’s testimony. The fact that Anne may have been told she was “not allowed”
to enter Bruce’s room would not preclude the possibility that she had gone in
anyway—particularly as both boys stated that Bruce would sometimes wrestle
with Anne, as well as with them. Neither boy asserted that he had never played
video games with Anne in Bruce’s room, as she testified, and Bruce himself

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No. 2018AP2364-CR

alleged that the boys were present in Bruce’s room with Anne at the time of each
alleged incident. Moreover, Anne did not claim that either boy had actually seen
Bruce touching her. To the contrary, she stated that no one had seen any of the
touching as the boys were playing video games.

¶14 Second, the prosecutor’s comments during closing argument suggest
that the State essentially conceded Benjamin and Charles did not see Bruce
inappropriately touching Anne. Bruce was free to—and did—argue it was not
plausible for him to have committed the acts described by Anne while Benjamin
and Charles were in the same room, without the boys seeing anything. Firsthand
testimony from the boys confirming the uncontested fact that they had not seen
anything would therefore have provided little, if any, assistance to the jury in
assessing Anne’s credibility.

¶15 In sum, we conclude that Bruce fails to show a reasonable
probability of a different outcome had the boys been interviewed and called to
testify at trial. Accordingly, the circuit court properly denied Bruce’s
postconviction motion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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