2008AP1185-CR State v. Carter

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Evidence
Sexual assault; rape-shield statute

Where evidence that a child had previously been sexually assaulted would not be admissible, it was not ineffective assistance of counsel for the attorney not to attempt to present the evidence.

"[W]e conclude that the court of appeals improperly remanded the case to the circuit court for further proceedings. Carter's ineffective assistance of counsel claim fails under the two-part inquiry of Strickland v. Washington. First, his trial counsel's performance was not deficient. His counsel's strategic decision not to introduce evidence that the child victim was previously sexually assaulted was objectively reasonable considering all the circumstances. Second, even assuming that his counsel's performance was deficient, the deficiency did not prejudice Carter's defense.

Evidence that the child victim was previously sexually assaulted would have been inadmissible under Wisconsin's rape shield law, Wis. Stat. § 972.11(2), and the narrow five-part test articulated in State v. Pulizzano. Accordingly, this court reverses the court of appeals' decision and upholds the judgment of the circuit court denying Carter's post-conviction motion for a new trial."

Reversed.

2008AP1185-CR State v. Carter

Ziegler, J.

Attorneys: For Appellant: Wasielewski, John T., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O'Neil, Aaron R., Madison

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