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Man convicted of assaulting stepdaughter finds no relief from state Supreme Court

A man convicted of sexually assaulting his 12-year-old stepdaughter found no relief from the Wisconsin Supreme Court in his case.

The high court on Wednesday concluded that the Green Lake County man couldn’t support claims that he didn’t receive an impartial jury and effective assistance of counsel.

David Gutierrez was convicted of multiple counts of sexual assault and enticement of his stepdaughter. In a postconviction motion, Gutierrez alleged the denial of his constitutional right to an impartial jury and to effective assistance of counsel. He also appealed his judgment of conviction on the grounds that the circuit court erred in its decision to exclude unidentified DNA evidence.

The DNA evidence came from two pairs of the 12-year-old girl’s underwear taken from a running load of laundry and a dirty laundry pile at her home. The testing excluded Gutierrez as a contributor to either DNA mixture found.

The circuit court precluded Gutierrez from presenting the DNA evidence because the lack of information surrounding the sources of the DNA and when it had been deposited. The court found its probative value “extraordinarily limited.”

The circuit court denied Gutierrez’s motion and affirmed the judgment of conviction. Gutierrez appealed, and by direct appeal, challenged the circuit court’s decision to exclude the unidentified DNA evidence and allow the other acts evidence.

The Court of Appeals reversed the circuit court’s judgment of conviction and remanded the case for a new trial. The appellate court held that the circuit court erroneously exercised its discretion in excluding the unidentified DNA evidence and the error wasn’t harmless. It didn’t reach the juror bias or ineffective assistance claims because the case was remanded.

In its opinion, the state Supreme Court unanimously concluded that the Court of Appeals erroneously reversed the circuit court’s exercise of discretion in excluding the DNA evidence.

“While the court of appeals may have preferred that the circuit court give more weight to the evidence’s probative value, it ‘may not substitute its discretion for that of the circuit court,'” Justice Rebecca Dallet wrote.

The justices also addressed Gutierrez’s claims that he didn’t have an impartial jury or effective assistance of counsel.

During jury selection, a prospective juror who was a school bus driver said she wasn’t sure if she could be impartial. The defense counsel moved to excuse her, but the state objected. The circuit court never ruled, and defense counsel didn’t renew the motion, question the juror further or exercise a peremptory strike on her. The juror ended up serving on Gutierrez’s jury.

Defense counsel later testified that he didn’t remember the juror, her statement or why he used Gutierrez’s peremptory strikes on other prospective jurors.

“(T)he best I can say is I must have felt there were other people that I needed off the jury more than her,” counsel said.

Gutierrez said the defense counsel also should have called his mother as a witness regarding a claim she made a few weeks ahead of the trial. The woman had said the 12-year-old lied about the sexual assault because she was upset with Gutierrez. Defense counsel opted to confront the girl about the allegation on cross-examination, rather than calling on Gutierrez’s mother to testify.

When asked why, the defense counsel called the woman a “loose cannon” who “loved to talk” and couldn’t recall specifics around her conversation with the girl. He was concerned calling the mother as a witness would make the defense look desperate.

The state Supreme Court determined Gutierrez couldn’t establish prejudice in the seating of the juror or demonstrate deficient performance by defense counsel.

“In a trial where credibility is paramount, it is reasonable not to call a witness whose perceived inability to give clear, coherent responses may subject her to a damaging crossexamination,” Dallet wrote. “Defense counsel was legitimately concerned that the jury would view the defendant calling his mother to the stand with an unreliable story as a desperate measure.”

Justice Brian Hagedorn did not participate, and Justice Ann Walsh Bradley withdrew from participation.


About Michaela Paukner, mpaukner@wislawjournal.com

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at mpaukner@wislawjournal.com.

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