State v. Arshpreet Singh

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.
July 26, 2022
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. 2020AP1731-CR Cir. Ct. No. 2018CF836

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ARSHPREET SINGH,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: MARK A. SANDERS and STEPHANIE ROTHSTEIN,
Judges. Affirmed.

Before Donald, P.J., Dugan and White, 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. 2020AP1731-CR

¶1 PER CURIAM. Arshpreet Singh appeals from a judgment and an
order denying his postconviction motion.1 Singh contends that his trial attorney
was ineffective in multiple ways, and that he is entitled to a new trial in the
interest of justice. As discussed below, we reject Singh’s arguments and affirm.

BACKGROUND

¶2 On December 4, 2017, fifty-nine-year-old M.G., who is blind in one
eye, was forced into a stranger’s car and sexually assaulted. Shortly thereafter,
M.G. underwent a sexual assault examination. Singh’s DNA was found on M.G.,
and he was charged with second-degree sexual assault, false imprisonment, and
kidnapping.

¶3 The case proceeded to a jury trial. Relevant to this appeal, the
following evidence was presented. M.G. testified that on December 4, 2017, she
went shopping at Value Village in Milwaukee. As she was waiting for a bus near
27th Street and National Avenue, a white car drove past her and asked her if she
needed a ride. M.G. said “no,” and started walking back towards the store. M.G.
testified that she was nervous because it was dark outside and the white car had
driven around the area a few times. M.G. went into a donut store for food, and
when she came back outside, the man in the white car forced her into the car.

¶4 The man drove M.G. to the Mitchell Park Domes, which was nearby.
There, he pulled down her pants and put his penis inside her vagina and anus.
M.G. said that she tried to fight him off of her, but he was younger, bigger, and

1
The Honorable Mark A. Sanders presided over the jury trial. The Honorable Stephanie
Rothstein issued the order denying the postconviction motion. We refer to Judge Sanders as the
trial court and Judge Rothstein as the postconviction court.

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No. 2020AP1731-CR

stronger. The man used a condom, but the condom broke and his semen spilled all
over her. The man then took her phone and other belongings and threw them out
the door and told her to get out.

¶5 After the assault, M.G. called 911. M.G. stated that she was crying
and screaming for help. M.G. saw a security guard and told him what happened.
After the police arrived, M.G. went to the hospital and underwent a sexual assault
examination.

¶6 M.G. testified that the assailant had a diamond earring, a tattoo on
the left side of his neck, was “kind of slim,” had a complexion that was similar to
hers, was “all shaved off,” and was wearing grey sweatpants and a grey shirt with
a zipper. On cross-examination, she clarified that she meant the assailant’s hair
was recently “shaved off,” or in other words, “very, very short,” and he did not
have any facial hair. M.G. admitted that she had some cocaine and beer the day of
the assault, but that this did not cause her to misinterpret what had happened. She
stated that the assailant did not offer or give her any money.

¶7 A video recording was played of the Mitchell Park Domes parking
lot. The video shows a white car driving towards the area of the Domes where
M.G. said that she was assaulted. Later, the white car is seen leaving and M.G. is
seen walking back from the area on the phone.

¶8 A Milwaukee park enforcement employee testified that M.G. ran up
to him crying, pulling her pants up, and that he had to assist her with her 911 call
because she was “hurting and crying” and having difficulty communicating. M.G.
told him that she “got beat up, and a guy forced me in his car and raped me.”

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No. 2020AP1731-CR

¶9 Detective Nicholas Johnson testified that he interviewed M.G. at the
hospital in the early morning of December 5. Detective Johnson testified that
M.G. was lethargic and sometimes unresponsive and fell asleep during questions.
M.G. described the assailant as “possibly a Puerto Rican male,” bald, clean-
shaven, about five-foot-nine, and in his early twenties with a neck tattoo. M.G.
also stated that the assailant was wearing a blue coat and a grey jumpsuit.

¶10 The sexual assault nurse examiner (SANE), who examined M.G. and
collected evidence, also testified. The SANE nurse testified about M.G.’s
description of the assault, and M.G.’s behavior during the examination. The
SANE nurse described M.G. as maintaining eye contact, quiet, and tearful. M.G.
also reported feeling “very tired.” The SANE nurse further testified that M.G. had
admitted to smoking crack, drinking alcohol, and taking a sleeping pill.

¶11 Testimony was also introduced from a Forensic Analyst with the
Wisconsin State Crime Laboratory. The Forensic Analyst testified that she
performed DNA analysis on a number of items, including an external genital wipe,
an external genital swab, and an anal swab from M.G. A DNA profile was
recovered and entered into the Combined DNA Index System (CODIS) database
resulting in a match to Singh’s DNA profile. The Forensic Analyst further
testified that she was able to determine, to a reasonable degree of scientific
certainty, that Singh was the source of DNA recovered from M.G.

¶12 A video recording of Singh’s police interview was played for the
jury. During the interview, Singh denied having any contact with M.G. and, after
being shown her picture, denied ever having seen her. Singh admitted to having
sex with someone in September 2017, but claimed that was the last time he had

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No. 2020AP1731-CR

sex with anyone, other than his wife. Additionally, he admitted that he had a
white work car.

¶13 Singh presented two witnesses, his mother and his wife. His mother
testified that Singh drove a black car. His wife testified that Singh wore gold ring
earrings, always has a beard, and drove a black car. During his wife’s testimony,
photos were introduced from December 6, 2017, reflecting that Singh had hair on
his head.

¶14 Singh also testified at trial. He explained that he drove a black
Chrysler as his personal car, and admitted that, as part of his employment, he
drove a white Ford Focus. In contrast to his statements in the police interview,
Singh admitted that M.G. was in his car, and he had vaginal and anal sex with her.

¶15 Singh testified that he saw M.G. walking on 20th or 21st Street and
National Avenue. He testified that he was driving his black Chrysler, pulled up
next to her, rolled down his window, and M.G. came to the passenger window and
asked what he was looking for. Singh stated that he was looking for some fun,
which meant that he was looking for sex. According to Singh, M.G. voluntarily
got into the car and agreed to give him oral sex for twenty dollars. He testified
that she then agreed to have vaginal and anal sex with him for free. After M.G.
agreed to have anal sex, the condom ripped and he ejaculated inside her. He
claimed that he had agreed to speak with the police because he did not have
anything to hide. Singh also admitted that he had a tattoo on the left side of his
neck, his wife had earrings that looked like diamonds, and he had pierced ears.
Singh further admitted that M.G. had no reason to lie about being sexually
assaulted.

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¶16 The jury found Singh guilty as charged. Singh filed a motion for
postconviction relief asserting that trial counsel was ineffective on multiple
grounds. Singh’s arguments included that trial counsel should have introduced
prior inconsistent statements of M.G., a security video from Walgreens, and
photos showing a scar on Singh’s head and tattoos on his hands. Singh also
contended that trial counsel should have attacked M.G.’s credibility with her
medical records, objected to the testimony from the SANE nurse, and objected to
the prosecutor’s closing argument. In addition, Singh sought a new trial in the
interest of justice.2

¶17 The postconviction court denied the motion without a hearing. In
regards to Singh’s ineffective assistance of counsel claims, the court found that
Singh had failed to establish prejudice and that some of his claims were
“underdeveloped.” In regards to Singh’s interest of justice claim, the court found
that the controversy was fully tried and that a new trial in the interest of justice
was not warranted. This appeal follows.

DISCUSSION

¶18 On appeal, Singh renews his arguments that trial counsel was
ineffective and that he is entitled to a new trial in the interest of justice. We
address each of his arguments below.

2
Singh also argued that the prosecutor engaged in misconduct. Singh does not raise this
issue on appeal and thus we do not further discuss it. See Young v. Young, 124 Wis. 2d 306, 317,
369 N.W.2d 178 (Ct. App. 1985) (“An issue which has not been briefed or argued on appeal is
deemed abandoned.”).

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No. 2020AP1731-CR

I. Ineffective Assistance of Counsel

A. Legal Standards

¶19 To prevail on a claim of ineffective assistance of counsel, a
defendant must show that his or her attorney’s performance was deficient as well
as prejudicial to his or her defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). To demonstrate deficient performance, the defendant must show that
counsel’s actions or omissions “fell below an objective standard of
reasonableness.” Id. at 688. To demonstrate prejudice, a defendant must show
that counsel’s deficient performance was “so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” Id. at 687. In other words, there must
be a showing 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.” Id. at 694. We need not address both prongs of the Strickland test if
the defendant does not make a sufficient showing on one of the prongs. Id. at 697.

¶20 “Whether a defendant received ineffective assistance of counsel is a
mixed question of law and fact.” State v. Maday, 2017 WI 28, ¶25, 374 Wis. 2d
164, 892 N.W.2d 611. The circuit court’s findings of fact will be upheld unless
they are clearly erroneous. Id. “Questions of whether counsel’s performance was
deficient and prejudicial are questions of law we review de novo.” State v. Fonte,
2005 WI 77, ¶11, 281 Wis. 2d 654, 698 N.W.2d 594 (emphasis added).

¶21 Whether a postconviction motion entitles a defendant to a hearing is
also a mixed standard of review. See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d
568, 682 N.W.2d 433. First, we independently determine “whether the motion on
its face alleges sufficient material facts that, if true, would entitle the defendant to

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No. 2020AP1731-CR

relief.” State v. Ruffin, 2022 WI 34, ¶27, 401 Wis. 2d 619, 974 N.W.2d 432.
“Whether the record conclusively demonstrates that the defendant is entitled to no
relief is also a question of law we review independently.” Id. If the
postconviction motion “does not raise facts sufficient to entitle the defendant to
relief, or if it presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief, the circuit court has the
discretion to grant or deny a hearing.” Id., ¶28. We review discretionary
decisions for an erroneous exercise of discretion. Id.

B. Application

¶22 As a preliminary matter, we note that in his initial brief to this court,
Singh asserts that “the allegations of counsel’s unprofessional errors must be
accepted as true” because the postconviction court only addressed the prejudice
prong. Singh is mistaken. The mere fact that the court did not address deficient
performance does not mean that Singh satisfied this prong of the Strickland test;
rather, it only means that he failed to satisfy the prejudice prong. The court was
not required to address both prongs. See State v. Adamczak, 2013 WI App 150,
¶21, 352 Wis. 2d 34, 841 N.W.2d 311 (“If a defendant fails to satisfy one prong of
the analysis, the reviewing court need not address the other.”). We now turn to
Singh’s specific allegations.

1. Individual Claims of Error

¶23 Singh first contends that trial counsel was ineffective for failing to
point out two inconsistences in M.G.’s statements. Singh’s postconviction motion
alleged that M.G. was not consistent as to how she got into the car or the street
corner on which she was abducted. These inconsistencies, however, only matter if
there was an issue regarding whether M.G. was actually in Singh’s car. Here,

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No. 2020AP1731-CR

Singh admitted that M.G. was in his car. Therefore, we are not convinced that,
had the inconsistencies about how and where she got into the car been introduced,
there is a reasonable probability that the result of the trial would have been
different. See Strickland, 466 U.S. at 694.

¶24 Second, Singh contends that trial counsel was ineffective for failing
to confront M.G. about a scar on Singh’s head and tattoos on his hands. This case,
however, was not about identification. As Singh acknowledges, this case was
about whether M.G. consented. During his testimony, Singh admitted that he had
sexual intercourse with M.G. in his car. Thus, because the case was not about
identification, we are not persuaded that had trial counsel questioned M.G. about
these physical attributes that there is a reasonable probability that the result of the
trial would have been different. Id. Contrary to Singh’s suggestion, we simply
are not convinced that M.G.’s alleged inability to remember specific details of
Singh’s appearance or details of the attack would have impeached her ability to
remember whether she consented.

¶25 Third, Singh contends that trial counsel was ineffective for failing to
introduce a surveillance video from Walgreens. Singh states that the video would
have shown that no abduction occurred at 27th Street and National Avenue, thus
establishing that M.G. was mistaken about where the abduction occurred. The
jury, however, was told this information. Detective Johnson testified that he
watched the Walgreens’ video, which showed the intersection of 27th Street and
National Avenue at the time of the abduction, and the video did not show anything
of significance that helped in the investigation. Thus, we fail to see how playing
the video would have made any difference.

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No. 2020AP1731-CR

¶26 Fourth, Singh contends that trial counsel was ineffective for failing
to object to the SANE nurse’s opinion testimony that there are rarely injuries in
sexual assault victims. Singh asserts that the nurse’s testimony was a discovery
violation because it went beyond what was set forth in the notice of expert witness
testimony. Additionally, according to Singh, the SANE nurse’s testimony
prejudiced him because the testimony explained why M.G. did not have any
injuries despite her allegation that the sexual intercourse was “so vigorous that the
condom broke.”

¶27 In response, the State observes that the notice of expert testimony
specifically states that the SANE nurse “will testify regarding the frequency of
injuries in sexual assault exams[.]” Thus, according to the State, this aspect of the
nurse’s testimony was disclosed, and as a result, trial counsel was not ineffective
in this regard. See State v. Toliver, 187 Wis. 2d 346, 360, 523 N.W.2d 113 (Ct.
App. 1994) (holding that counsel is not ineffective for failing to pursue meritless
arguments).

¶28 The State also points out that Singh admitted the condom broke,
thus, negating any impact the SANE nurse’s testimony may have had as to
whether the condom broke. Further, the State asserts that Singh provides no
evidence of a relationship between the “vigorousness” of the intercourse and the
presence of injuries. Accordingly, the State contends that there is not a reasonable
probability that an objection to the SANE nurse’s testimony would have led to a
different result.

¶29 Singh does not respond to these arguments in his reply brief, which
we accept as a concession that the State is correct. See United Coop. v. Frontier
FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (holding

10
No. 2020AP1731-CR

that an appellant’s failure to dispute respondent’s arguments in a reply brief may
be taken as a concession). Thus, we reject Singh’s argument that trial counsel was
ineffective for failing to object to the SANE nurse’s testimony.

¶30 In addition, Singh contends that trial counsel was ineffective for
failing to highlight the entry in M.G.’s medical records that she had a “flight of
ideas,” and failing to object to the prosecutor’s closing argument, which
referenced a YouTube video.3 Singh also contends that the postconviction court
was wrong in finding that these claims were “underdeveloped.”

¶31 In response, the State asserts that Singh does not explain why the
postconviction court was incorrect that the claims were “underdeveloped” and
therefore we should not consider Singh’s claims. See State v. Pettit, 171 Wis. 2d
627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). The State also contends that we
should reject Singh’s claims on other grounds.

¶32 In regards to Singh’s claim that trial counsel should have introduced
evidence that M.G. had a “flight of ideas,” the State points out that trial counsel
highlighted several other pieces of impeachment evidence, including that M.G.
was under the influence of alcohol, cocaine, and a sleeping pill, and that a trial
attorney is not ineffective for failing to address every conceivable piece of
impeachment evidence. Additionally, according to the State, given the
information regarding M.G.’s substance use, the testimony that M.G. was

3
During closing argument, in rebuttal, the prosecutor referenced a YouTube video that
asks the viewer to count the number of basketball passes made between a group of people. As the
viewer is busy counting the number of passes, a person in a gorilla suit walks through the screen,
which some viewers do not notice. The prosecutor used this video as an analogy to explain why
M.G. may have missed some details about Singh’s personal appearance.

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No. 2020AP1731-CR

lethargic, unresponsive, and repeatedly fell asleep, and that M.G. had just
experienced a traumatic forcible sexual assault, the jury would not have been
surprised to learn that M.G. was having trouble communicating clearly. Thus,
there was not a reasonable probability that the information that M.G. had a “flight
of ideas” would have affected the verdict.

¶33 Finally, in regards to the closing argument claim, the State asserts
that attorneys have “considerable latitude in closing arguments,” see State v.
Burns, 2011 WI 22, ¶48, 332 Wis. 2d 730, 798 N.W.2d 166, and it is permissible
for prosecutors to ask jurors to consider “matters of common knowledge,
observations and experience in the affairs of life,” see State v. Powell, 2012 WI
App 33, ¶14, 340 Wis. 2d 423, 812 N.W.2d 520. Further, any possible prejudice
was cured when the jury was instructed that closing arguments are not evidence as
jurors are presumed to follow instructions. See State v. Truax, 151 Wis. 2d 354,
362, 444 N.W.2d 432 (Ct. App. 1989).

¶34 Once again, Singh does not respond to these arguments in his reply
brief, thus, we deem this a concession that the State is correct. See United Coop.,
304 Wis. 2d 750, ¶39. Accordingly, we reject Singh’s arguments that trial counsel
was ineffective for failing to highlight the entry in M.G.’s medical records that she
had a “flight of ideas,” and failing to object to the prosecutor’s closing argument.

2. Cumulative Error

¶35 Singh contends that the cumulative effect of trial counsel’s errors
prejudiced him. We disagree. In establishing cumulative prejudice, “each alleged
error must be deficient in law … in order to be included in the calculus for
prejudice.” State v. Thiel, 2003 WI 111, ¶61, 264 Wis.2d 571, 665 N.W.2d 305.
“[I]n most cases errors, even unreasonable errors, will not have a cumulative

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No. 2020AP1731-CR

impact sufficient to undermine confidence in the outcome of the trial, especially if
the evidence against the defendant remains compelling.” Id.

¶36 Here, even if we assume that trial counsel performed deficiently with
respect to the grounds raised by Singh, there is not a reasonable probability that,
but for the errors, the result would have been different. See State v. Domke, 2011
WI 95, ¶61, 337 Wis. 2d 268, 805 N.W.2d 364. The inconsistencies or
inaccuracies raised by Singh primarily relate to the details of the assault and
M.G.’s ability to describe Singh. Once again, however, this case was not about
identification, but whether M.G. consented. Further, in regards to the prosecutor’s
closing argument claim, we agree with the State’s argument, as noted above, that
any possible prejudice was cured when the jury was instructed that closing
arguments are not evidence.

¶37 Moreover, as the State observes, the evidence of Singh’s guilt was
strong. Singh admitted that M.G. was in his car and that he had sexual intercourse
with her. This was corroborated by DNA evidence, the video from the Mitchell
Park Domes, and the testimony from the Milwaukee park enforcement employee
who said that M.G. ran to him crying and needed help communicating to the 911
operator. As Singh admitted, M.G. had no conceivable motive to lie about being
sexually assaulted. Additionally, Singh denied knowing M.G. in his police
interview, but then completely changed his story at trial alleging that they had
consensual sex.

¶38 Thus, whether we examine the alleged errors individually, or
cumulatively, Singh has not established he was prejudiced. See Strickland, 466
U.S. at 694. Accordingly, we conclude that the postconviction court properly

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No. 2020AP1731-CR

denied Singh’s motion without an evidentiary hearing. Allen, 274 Wis. 2d 568,
¶9.

II. New Trial in the Interest of Justice

¶39 Singh argues that we should grant a new trial in the interest of justice
because the real controversy was not fully tried. See WIS. STAT. § 752.35 (2019-
20).4 “The power to grant a new trial when it appears the real controversy has not
been fully tried ‘is formidable, and should be exercised sparingly and with great
caution.’” State v. Sugden, 2010 WI App 166, ¶37, 330 Wis. 2d 628, 795 N.W.2d
456 (citation omitted). We exercise our power to grant a discretionary reversal
only in exceptional cases. Id.

¶40 In short, this is not an exceptional case in which the record suggests
that the real controversy has not been fully tried. As discussed above, we reject
Singh’s arguments, and he has not presented any other basis that would justify the
exercise of our discretionary reversal power. We therefore decline Singh’s request
to grant a new trial in the interest of justice.

CONCLUSION

¶41 For the reasons stated above, Singh’s arguments for a new trial on
the basis of ineffective assistance of counsel and in the interest of justice fail.
Accordingly, we affirm the judgment and the order denying the postconviction
motion.

4
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP1731-CR

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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