2009AP2036-CR State v. Black

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Criminal Procedure
Ineffective assistance; expert testimony

Charles R. Black appeals from a judgment of conviction for two counts of second-degree sexual assault of a mentally ill victim, contrary to Wis. Stat. § 940.225(2)(c) (2007-08), and from the July 30, 2009 order denying postconviction relief.

Black requests a new trial as a result of ineffective assistance of counsel and, under Wis. Stat. § 752.35, on the basis that the real controversy was not fully tried.

Black bases both requests on the following three alleged errors at trial, none of which were objected to by his trial counsel: (1) testimony by Dr. Beth Huebner, the State’s expert, was improperly admitted as Jensen testimony at trial; (2) testimony of witnesses that “telegraphed to the jury” that the witnesses believed the victim’s story to be true was admitted at trial; and (3) multiple witnesses provided testimony which repeated the victim’s version of events. We conclude that trial counsel’s performance was deficient in that he did not object to the admission of the purported Jensen testimony but that this deficiency was not prejudicial to Black. We therefore affirm. Not recommended for publication in the official reports.

2009AP2036-CR State v. Black

Dist IV, Crawford County, Dyke, J., Sherman, J.

Attorneys: For Appellant: Lee, Devon M., Madison; For Respondent: Baxter, Timothy C., Prairie du Chien; Larson, Sarah K., Madison

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