99-3084 State v. Koller

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“The prejudice issue here is whether his counsel’s performance resulted in the seating of a biased juror, not whether a differently composed jury would have acquitted him.

…

Accordingly, at the postconviction stage Koller needed to show that if his trial counsel had asked more or better questions, those questions would have resulted in the discovery of bias on the part of at least one of the jurors who actually decided his case. He might have done this by calling suspect jurors as witnesses at his postconviction hearing and asking them the questions he now claims his trial counsel should have asked. There is nothing unusual about this sort of retroactive determination of juror bias. [Citation]. However, Koller made no such showing, and his assertion of possible juror bias is mere speculation.”

Similarly, we reject defendant’s contention that trial counsel was deficient in his closing argument.

“Once again, Koller exerts much energy attempting to show that trial counsel’s performance was deficient, but expends little effort to show resulting prejudice. He does not analyze the strengths and weaknesses of the State’s case or attempt to explain why a different closing argument might have produced different verdicts. His choice of approach is understandable. A review of the trial court record discloses that Koller’s real problem was his own testimony and the credible testimony of two child witnesses. A closing argument stressing the State’s burden and asking for acquittal would have made no difference.”

And, even though defendant further argues that the state did not present sufficient evidentiary detail at trial to support splitting a course of conduct into multiple violations of the same statute, we conclude that defendant has waived his “multiplicity” objection because he did not raise the issue prior to the time the case was submitted to the jury.

“Accordingly, in order to show that he was prejudiced by the omitted objection, Koller needed to show that the State would have been unable to present evidence satisfying the trial judge, by a preponderance of the evidence, that the second penis-to-vagina penetration was a new volitional departure. Koller has not made the attempt, and any such effort would be highly speculative. … In light of Katherine D.’s pretrial statements, it appears the State could have easily met its burden.

“We conclude that, at the close of the State’s case, a reasonably competent defense counsel, mindful of the pretrial record, would have considered a multiplicity challenge to Counts 3 and 5 to be a waste of time. Thus, Koller has not shown deficient performance. Further, we conclude that Koller has not shown resulting prejudice because he has not demonstrated that such a challenge would have been successful.”

Judgments and orders affirmed.

Recommended for publication in the official reports.

Dist IV, Milwaukee County, Gram, Gardner and DiMotto, JJ., Lundsten, J.

Attorneys:

For Appellant: Peter M. Koneazny, Milwaukee

For Respondent: Robert D. Donohoo, Milwaukee; Daniel J. O’Brien, Madison