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Home / Bench Blog / BENCH BLOG: Errors abound in child sexual assault case

BENCH BLOG: Errors abound in child sexual assault case

Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at jeandimotto@gmail.com

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at jeandimotto@gmail.com.

An attorney’s recent representation of a defendant charged with child sexual assault was so ineffective that the defendant’s constitutional right to counsel was violated and his convictions reversed.

The Court of Appeals also ruled that the trial judge made errors of law.

Pre-trial proceedings

Rafael Honig was charged with two counts of first-degree sexual assault in response to allegations made by his 5-year-old and 3-year-old granddaughters. The complaint alleged that the 5-year-old had told her uncle, Raymond Cruz, that Honig had been “touching her cookie (vagina) and it burns.” She also told Cruz that Honig put his mouth on her “cookie” and saw him touching her 3-year-old sister’s “cookie.”

Milwaukee police conducted video-recorded forensic interviews with each girl.

The 5-year-old described an incident in a hotel that began with her grandfather prying her hand away from her mother’s hand one finger at a time, then taking her to a room where he touched her younger sister by “putting his mouth on her private.” She said her mother screamed when she realized her 5-year-old was missing, and “scratched” on the hotel room door until her fake fingernails came off.

She added that her grandfather was “nasty” because “he always like touches little girls — in the privates.” The little girls included “me, my sister, and my … cousin, and my … other cousin.” These two statements are classic examples of other-acts evidence.

Unsurprisingly given her age, the 3-year-old gave inconsistent statements about her grandfather’s actions. She said her grandfather pulled down his pants and her pants and was doing something to her, but later said he did it to her sister and that he “didn’t do nothing” to me.

The prosecutor told the court that she would not be presenting the 3-year-old’s video at trial.

The defense attorney informed the court of a potential witness, George Colon, who could testify about a feud between the girls’ uncle Cruz and Honig. Colon also said that Cruz had told him he “knew ways to frame people” and “had some plan to frame (Honig) by somehow getting kids to say things” about molestation.

Milwaukee County Circuit Judge Ellen Brostrom erroneously ruled that only Cruz could be questioned about Colon’s claims and, if Cruz denied them, Colon could not be called to impeach Cruz.

Trial testimony

The 5-year-old testified about the hotel incident, said that in various locations Honig had put his finger and his mouth on her “private,” and said that she had witnessed him doing the same to her little sister. She told her mother, who “got shocked,” then left the room. Honig repeated his act on her sister and their mother “got shocked again.”

She testified that her mother was the first person she had told, then later testified that Cruz was the first person she had told and that she had talked to Cruz “a lot.”

The prosecutor asked leading questions of the younger sister, requiring only “yes” or “no” answers. Then, using a doll, the prosecutor asked the girl to indicate on the doll where she was touched. The prosecutor touched the doll’s vaginal area, and the girl said, “yes.”

The older sister’s video was presented by the prosecution, including the other-acts statements about Honig’s alleged abuse of other little girls. The younger sister’s video was not shown by the defense.

The girls’ mother, Honig’s daughter, denied her older daughter’s testimony about the hotel incident and testified that she had never observed Honig do anything inappropriate with her daughters.

Cruz’s testimony was consistent with the statements in the complaint. He admitted that he and Honig had a “beef” about a truck and that, as a result, Cruz had sent Honig threatening messages. He denied influencing the girls to accuse Honig.

Colon was not called as a defense witness to impeach Cruz’s denial with prior inconsistent statements.

Honig decided to testify, denied all allegations, and spoke about Cruz’s other resentments and threats.

A jury found Honig guilty of both counts.

Postconviction motion

Honig filed a motion alleging his attorney was ineffective for failing to call Colon as a witness, failing to impeach the younger sister’s testimony with the video in which she denied that Honig had touched her, and failing to object to the portion of the older sister’s video containing other-acts evidence.

At a Machner hearing, trial counsel testified that he had considered calling Colon to the stand, but hadn’t subpoenaed him. Nonetheless, Colon had been at the trial each day. Yet, trial counsel couldn’t recall why he hadn’t called him.

Colon testified at the hearing that Cruz made statements about getting rid of someone by calling the police on the person, including for charges of molestation. He was also aware of the contentious relationship between Cruz and Honig and the dispute over the truck. Colon further testified that trial counsel had told him during the trial that he was not needed.

Trial counsel also testified that he didn’t consider the 3-year-old’s video to be inconsistent with her trial testimony, and that he did not recall the older sister’s other-acts statements in her video. He said he only became aware of them through the post-conviction motion.

Brostrom ruled that the decision to not call Colon was a matter of trial strategy, not a deficiency. She agreed with trial counsel that the 3-year-old’s testimony was generally consistent with her forensic interview, and that the 5-year-old’s other-acts evidence was not prejudicial.

Appeals decision

The Court of Appeals unanimously disagreed with each of Brostrom’s post-conviction rulings.

In an opinion from District 1 Judge Joan Kessler, the court first found that trial counsel’s post-conviction lack of recall about why he had not called Colon did not provide a factual basis for Brostrom’s concluding that it had been a reasonable strategic decision.

Moreover, trial counsel did not even question Cruz about Colon’s claims, which were central to the defense theory that Cruz had manufactured the allegations. Had trial counsel done so, he would have created the evidentiary foundation for calling Colon under sec. 906.13(2)(a)1. The failure to call Colon was magnified by his daily presence at the trial.

As for prejudice, the court found that this credibility-driven trial would probably have had a different outcome if Colon had testified because it would have seriously undermined the testimony of the prosecution’s primary adult witness — Cruz — and added significant support to the defense.

The deficiency in not moving to exclude the propensity evidence from the 5-year-old’s video was demonstrated by Brostrom’s indication that she would have granted the motion. Prejudice stemmed from the stark credibility determination between the girls and Cruz v. Honig. The evidence included the mother’s testimony contradicting the 5-year-old’s “improbable claims.” Thus, the other-acts evidence “could hardly (have) been considered as anything other than” propensity evidence by the jury.

A deficient performance was also shown in trial counsel’s failing to recognize the inconsistent statements provided by the 3-year-old in her video and his resulting failure to impeach her by showing the video at trial.

The video would have allowed the jury to see how she faltered and was confused in describing an incident of abuse and then retracting it. This would have been in sharp contrast to her guided testimony at trial.

The court concluded that trial counsel was deficient in these three ways, “all of which cumulatively deprived Honig of a fair trial.”

Commentary

This decision is a rare victory for the appellate public defender’s office on a claim concerning ineffective assistance of counsel.

Trial counsel’s abysmal performance on the stand at the Machner hearing lets us see how he could make the errors he did during trial. The decision is recommended for publication as an instruction manual on the need for thorough trial preparation; thoughtful, considered defense decisions; and knowledge of the rules of evidence.

The reversal of  the child sexual assault convictions is a bitter pill for the prosecution, but the prosecutor pushed too hard here. Just because you can do something doesn’t mean you should. For example, the prosecutor should have eliminated the two propensity statements from the 5-year-old’s video, even in the absence of an objection. Why jeopardize a potential conviction with two obvious other-acts statements?

The trial court, too, made errors, not least in respect to Colon’s proposed testimony. Not only was his testimony permissible as a prior inconsistent statement, but also as bias evidence against Cruz. Bias is never collateral and can be proved with extrinsic evidence.

All told, errors eroded the integrity of this trial. Although many people made mistakes, the defense attorney committed the most.


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