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Criminal Procedure — ineffective assistance — prejudice

Wisconsin Supreme Court


Criminal Procedure — ineffective assistance — prejudice

Although counsel was deficient, the deficiency was not prejudicial, where the State had a very strong case.

“The circuit court noted in its decision denying Domke’s postconviction motion that Alicia S.’s testimony ‘was very compelling.’ We will uphold the circuit court’s credibility determination unless it is clearly erroneous. Thiel, 264 Wis. 2d 571, ¶23. Our review of the record leads us to agree with the circuit court’s determination in that regard. Alicia S. provided detailed, credible testimony including the details of each assault, details that were consistent with the testimony of L.H., Anderson and BeFay. Alicia S. admitted that she did not disclose the details of all of the alleged assaults to each of these people, and that she initially lied to Anderson and Rank when they interviewed her because she was scared and wanted to protect Domke. The prosecutor established through Anderson that it is not unusual for sexual assault victims to delay reporting or disclosing assaults. He highlighted this point in his closing argument. Woods vigorously cross-examined Alicia S. but failed to establish any inconsistencies other than those she had already admitted to and explained during her direct examination testimony.”

“Other evidence also supported Alicia S.’s credibility. Alicia S. testified that she had loved Domke and initially lied to Anderson and Rank to hide the alleged assaults because she did not want Domke to go to jail. This was confirmed by the testimony of both Anderson and Domke, who admitted that he told Anderson when she interviewed him that he and Alicia S. had a good relationship. The fact that Alicia S. initially lied to protect Domke supports her credibility because it explains the inconsistencies between her testimony at trial and her statements to Anderson. It also provides a potential reason for her delay in reporting the alleged abuse and her reluctance to disclose the full extent of the alleged assaults. The prosecutor noted in closing that Alicia S.’s feelings towards Domke provide a reason for her to lie to Anderson and Rank to protect Domke, and suggest that she had no motive to make up the allegations against him. Additionally, the testimony from L.H., Anderson, David S., and BeFay that Alicia S. was very upset by the alleged sexual assaults supports the conclusion that they actually occurred. Specifically, David S. testified that Alicia S.’s behavior changed after the alleged assaults took place, which was why he took her to see Rusch.”


2009AP2422-CR State v. Domke

Crooks, J.

Attorneys: For Appellant: Askins, Martha K., Madison; For Respondent: Evans, John A., Oconto; Moeller, Marguerite M., Madison

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