Ineffective Assistance of Counsel

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Richard A. Boie

Case No.: 2019AP520-CR

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Ineffective Assistance of Counsel

Richard Boie appeals a judgment of conviction for repeated sexual assault of the same child (including at least 3 violations of first degree child sexual assault) in violation of WIS. STAT. § 948.025(1)(d) (2017-18). 1 He also appeals the circuit court order denying his postconviction motion for a new trial. Boie argues that the circuit court erroneously exercised its discretion in granting the State’s motion, made pursuant to WIS. STAT. § 908.08, to admit at trial a video recording of a statement given by the victim, B.H. Specifically, Boie contends that the court failed to make two findings required for admission. We conclude that the circuit court implicitly made these findings.

Separately, Boie argues that his trial counsel provided ineffective assistance by failing to move for a mistrial after B.H. testified multiple times during in-person trial testimony that she could not remember the sexual assaults or details regarding the assaults. Boie argues that counsel had three valid grounds to request a mistrial, all based on B.H.’s lack-of-memory responses during her inperson testimony: (1) the responses violated the specific requirement in WIS. STAT. § 908.08(3)(e) that the circuit court find that admission of a recording will not deprive the defendant “of a fair opportunity to meet allegations made in the statement”; (2) the responses violated Boie’s constitutional right to confront B.H as a trial witness; and (3) it was “evident” from the responses that the prosecution had “likely failed to disclose” to the circuit court, before the court decided the recording admissibility issue, that the prosecution was aware that B.H. “lacked memory of the alleged assaults.” We conclude that trial counsel did not perform deficiently in failing to move for mistrial because: (1) § 908.08(3)(e) is exclusively an admissibility standard; (2) there was no Confrontation Clause violation under the reasoning of State v. Rockette, 2006 WI App 103, 294 Wis. 2d 611, 718 N.W.2d 269, and United States Supreme Court precedent discussed in Rockette; and (3) Boie fails to identify a valid basis for a mistrial based on an “evident” lack of disclosure that the prosecution had been obligated to provide. Accordingly, we affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.