2020 WI 52
SUPREME COURT OF WISCONSIN CASE NO.: 2017AP2364-CR
COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. David Gutierrez, Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 388 Wis. 2d 312,933 N.W.2d 133 PDC No:2019 WI App 41 - Published
OPINION FILED: June 3, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 10, 2020
SOURCE OF APPEAL: COURT: Circuit COUNTY: Green Lake JUDGE: Andrew E. Voigt
JUSTICES: DALLET, J., delivered the majority opinion for a unanimous Court. NOT PARTICIPATING: HAGEDORN, J., did not participate. ANN WALSH BRADLEY, J., withdrew from participation.
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs filed by Daniel J. O’Brien assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Daniel J. O’Brien.
For the defendant-appellant, there was a brief filed by Chris A. Gramstrup and Gramstrup Law Office, Superior. There was an oral argument by Chris A. Gramstrup. 2020 WI 52 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2017AP2364-CR (L.C. No. 2012CF115)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED JUN 3, 2020 v. Sheila T. Reiff David Gutierrez, Clerk of Supreme Court
Defendant-Appellant.
DALLET, J., delivered the majority opinion for a unanimous Court.
HAGEDORN, J., did not participate. ANN WALSH BRADLEY, J., withdrew from participation.
REVIEW of a decision of the Court of Appeals. Affirmed in
part, reversed in part.
¶1 REBECCA FRANK DALLET, J. This is a review of a
published decision of the court of appeals1 reversing the judgment
of conviction entered against David Gutierrez.
¶2 Gutierrez was convicted of multiple counts of sexual
assault and enticement of his stepdaughter. In a postconviction
1State v. Gutierrez, 2019 WI App 41, 388 Wis. 2d 312, 933 N.W.2d 133. No. 2017AP2364-CR
motion, Gutierrez alleged the denial of his constitutional right
to an impartial jury and to effective assistance of counsel.
Gutierrez appealed the denial of his postconviction motion. He
also appealed his judgment of conviction on the grounds that the
circuit court2 erred in its decision to exclude unidentified DNA
evidence and to admit "other acts" evidence. The court of appeals
reversed the circuit court's decision to exclude the unidentified
DNA evidence and affirmed its decision to admit other acts
evidence. The judgment of conviction was vacated and the case was
remanded for a new trial. The State petitioned for review.
¶3 We conclude that the court of appeals erroneously
reversed the circuit court's exercise of discretion in excluding
unidentified DNA evidence. We further conclude that the court of
appeals properly affirmed the circuit court's admission of other
acts evidence. Lastly, we conclude that Gutierrez was not denied
his right to an impartial jury or his right to effective assistance
of counsel. Accordingly, we reverse the court of appeals' decision
as to the unidentified DNA evidence and affirm its decision as to the other acts evidence. We also affirm the circuit court's denial
of Gutierrez's postconviction motion.
I. BACKGROUND
¶4 On November 2, 2012, twelve-year-old A.R. told her
cousin she was afraid to return home because her stepfather,
Gutierrez, touched her the night before. In a forensic interview
conducted later that day, A.R. alleged that the prior evening,
2The Honorable W. Andrew Voigt of the Green Lake County Circuit Court presided. 2 No. 2017AP2364-CR
November 1, Gutierrez removed her clothes, touched her genitals,
made her touch his genitals, performed oral sex on her, forced her
to perform oral sex on him, ejaculated in her mouth, and attempted
to penetrate her with his penis. A.R. further alleged that
Gutierrez first sexually assaulted her when she was six years old
by luring her into a closet and performing oral sex on her. A.R.
also provided specific details about an alleged sexual assault
that took place in a van some time between May and October 2011
and in a garage some time between September 2011 and May 2012.
¶5 After her forensic interview, A.R. submitted to a sexual
assault forensic exam where she indicated that in the 24 hours
since the assault she had urinated, defecated, washed her genital
area, taken a shower, drank liquid, brushed her teeth, swished out
her mouth, and changed her clothes. The nurse collected a perioral
swab from A.R. to test for DNA.3
¶6 Additional DNA swabs were taken from two pairs of A.R.'s
underwear seized during the execution of a search warrant on
November 3. One pair, which A.R. indicated she wore during the November 1 assault, was pulled mid-cycle from the washing machine.
It did not match the description A.R. had initially given to the
police. The second pair, which was purportedly the underwear A.R.
wore on November 2, was retrieved from a pile of soiled laundry.
DNA from at least three unidentified males was detected on the
perioral swab, and DNA from at least five unidentified males was
3 "Perioral" refers to the exterior area around a person's mouth. See Perioral, Attorney's Dictionary of Medicine (Oct. 2019).
3 No. 2017AP2364-CR
detected on the underwear swabs. The testing excluded Gutierrez
as a contributor to either DNA mixture. The testing also
determined that none of the DNA was from semen or saliva.
¶7 Based on the three allegations of sexual assault that
took place between 2011 and 2012, Gutierrez was charged with three
counts of sexual assault of a child under the age of thirteen,
three counts of incest with a child by stepparent, three counts of
child enticement, and one count of exposing a child to harmful
material.4 Prior to trial, Gutierrez moved to admit the DNA test
results. The State objected, arguing that the DNA evidence was
not relevant and that any probative value was substantially
outweighed by the danger of undue prejudice, confusion of the
issues, and misleading the jury. See Wis. Stat. §§ 904.01, 904.03.
Additionally, the State asserted that the indication of
unidentified male DNA on the swabs would invite speculation as to
why male DNA would be around A.R.'s mouth and on her underwear, a
purpose barred by Wisconsin's rape shield law, Wis. Stat.
§ 972.11(2)(b). Defense counsel argued that the unidentified DNA evidence was highly probative to rebut the State's theory that
Gutierrez's DNA would not likely be found on A.R. since she had
washed and wiped herself in the time between the assault and when
the swabs were collected, and that this purpose was not contrary
to the rape shield law.
See Wis. Stat. §§ 948.02(1)(e), 948.06(1m), 948.07(1), 4
& 948.11(2)(a) (2017-18). All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated.
4 No. 2017AP2364-CR
¶8 The circuit court ruled that Gutierrez could introduce
evidence only that DNA testing was performed on the perioral and
underwear swabs and that his DNA was not found on those swabs.
While the circuit court "agree[d] with [defense counsel's]
analysis of the rape shield law," it precluded Gutierrez from
presenting the unidentified DNA evidence because the lack of
information surrounding the sources of the DNA and when it had
been deposited rendered its probative value "extraordinarily
limited." The circuit court also raised concerns that expert
testimony on this issue could consume half a day and could take
the trial "down a rabbit hole." As an alternative, the court
allowed defense counsel to generally explore how DNA is
transferred, how long foreign DNA remains viable on another person,
and how easily DNA can be washed or wiped off with the expert
witness.
¶9 The State moved to admit as "other acts" evidence
allegations of prior sexual assaults dating back to when A.R. was
approximately six years old. In light of the greater latitude rule applicable in child sexual assault cases,5 the circuit court
granted the State's motion in part, admitting only the first
incident of alleged assault for the limited purposes of proving
The circuit court initially denied the State's motion to 5
admit the other acts evidence but reversed that decision upon the State's motion to reconsider. Specifically, the circuit court cited the greater latitude rule which permits a greater latitude of proof as to other acts "in sexual assault cases, particularly cases that involve sexual assault of a child . . . ." State v. Davidson, 2000 WI 91, ¶36, 236 Wis. 2d 537, 613 N.W.2d 606.
5 No. 2017AP2364-CR
motive and providing context and background. The court agreed to
instruct the jury that if it believed A.R., it could consider
Gutierrez's other act of child sexual assault for only these
limited purposes.6
¶10 With Gutierrez's trial only weeks away, defense counsel
disclosed a recent claim by Gutierrez's mother that while staying
with her in Texas, A.R. confessed that she fabricated the
allegations because she was upset with Gutierrez. While
Gutierrez's mother appeared on his amended witness list, defense
counsel announced at the outset of Gutierrez's case-in-chief that
The circuit court modeled its cautionary instruction after 6
Wis JI——Criminal 275 (2015). Specifically, the court instructed the jury:
Evidence has been presented regarding other conduct of the defendant for which the defendant is not on trial. Specifically, evidence has been presented that the defendant had sexual contact with [A.R.] in a closet when she was about six years old and living in the State of Texas and that the defendant told [A.R.] not to tell anyone because it was a secret. If you find that this conduct did occur, you should consider it only on the issues of motive, context or background.
You may not consider this evidence to conclude that the defendant has a certain character or a certain character trait and that the defendant acted in conformity with that trait or character with respect to the offense charged in this case.
. . .
You may consider this evidence only for the purposes I have described, giving it the weight you determine it deserves. It is not to be used to conclude that the defendant is a bad person and for that reason is guilty of the offense charged.
6 No. 2017AP2364-CR
he would not be calling her to testify. Defense counsel opted
instead to confront A.R. with the claim on cross-examination.
¶11 During jury selection, defense counsel asked whether any
prospective juror felt they could not be fair and impartial given
the nature of the charges. Juror R.G. responded, "I don't know if
I could be impartial. I work with kids. I drive school bus, so
I deal with kids all the time, and I just, I don't know if I can
be impartial." Defense counsel moved the court to excuse Juror
R.G. for cause, but the State objected arguing that there needed
to be a "little more certainty." The circuit court never ruled on
the motion. Defense counsel did not renew the motion, question
Juror R.G. further, or exercise a peremptory strike on her. She
subsequently served on Gutierrez's jury.
¶12 One of the witnesses called by the defense at trial was
State Crime Laboratory DNA Analyst Samantha Delfosse, who
testified that Gutierrez's DNA was not present on A.R.'s perioral
or underwear swabs. On cross-examination, the State elicited her
testimony that DNA can be washed, scrubbed, or wiped off, and the more a person is washing or wiping, "the more likely you are
removing any kind of DNA that was deposited." Defense counsel did
not conduct any redirect examination.
¶13 The jury ultimately found Gutierrez guilty on nine
counts.7
7 The jury found Gutierrez not guilty of exposing a child to harmful material. See Wis. Stat. § 948.11(2)(a).
7 No. 2017AP2364-CR
¶14 Gutierrez filed a postconviction motion, arguing that he
was denied his right to an impartial jury. He also asserted that
his defense counsel was unconstitutionally ineffective because he
did not further question or exercise a peremptory strike on Juror
R.G., or call his mother as a witness.8 At the Machner9 hearing,
defense counsel testified that he did not remember Juror R.G., her
statement, or why he exercised each of Gutierrez's peremptory
strikes on other prospective jurors. He admitted that "the best
I can say is I must have felt there were other people that I needed
off the jury more than her." As for not calling Gutierrez's mother
as a witness, defense counsel stated that he did not make that
decision until the defense's case-in-chief. In making that
decision, he considered that Gutierrez's mother could not recall
specifics surrounding the recantation such as why A.R. was at her
home in Texas, when the recantation was made, or why she did not
immediately report it. Defense counsel described Gutierrez's
mother as a "loose cannon" who "loved to talk" and determined that
these characteristics would allow her credibility to be undermined on cross-examination. Finally, he expressed concern that by
calling the defendant's mother as a witness, the jury might infer
that the defense was desperate.
¶15 The circuit court denied Gutierrez's postconviction
motion and affirmed the judgment of conviction. Gutierrez appealed
8 Gutierrez also claimed his counsel was unconstitutionally ineffective for not properly subpoenaing his wife to testify at trial, but this claim was not pursued on appeal. 9 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). 8 No. 2017AP2364-CR
the denial of his postconviction motion and, by direct appeal,
also challenged the circuit court's decision to exclude the
unidentified DNA evidence and to allow the other acts evidence.
¶16 The court of appeals reversed the circuit court's
judgment of conviction and remanded the case for a new trial. The
court of appeals held that the circuit court erroneously exercised
its discretion in excluding the unidentified DNA evidence and that
the error was not harmless.10 State v. Gutierrez, 2019 WI App 41,
¶¶9-12, 388 Wis. 2d 312, 933 N.W.2d 133. It reasoned that the
exclusion of this evidence "incorrectly led [the jury] to believe
that the underwear and mouth swabs contained no DNA evidence,"
thereby bolstering the State's theory that A.R. washed or wiped
Gutierrez's DNA off and preventing Gutierrez from rebutting that
theory.11 Id., ¶9. For purposes of remand, the court of appeals
also decided that the circuit court did not erroneously admit the
other acts evidence in light of the greater latitude rule. Id.,
The dissent concluded that the majority misapplied the 10
standard of review because the circuit court properly exercised its discretion to exclude the unidentified DNA evidence. Gutierrez, 388 Wis. 2d 312, ¶¶16-38.
The court of appeals, in a footnote, formulated a 11
constitutional argument for Gutierrez based on the Confrontation Clause and Compulsory Process Clause found in the United States Constitution and Wisconsin Constitution. Gutierrez, 388 Wis. 2d 312, ¶8 n.4 (citing U.S. Const. amend. VI; Wis. Const. art. I, § 7). As the court of appeals notes, however, this argument is gleaned from a single reference in Gutierrez's reply brief to the fundamental right of a criminal defendant to present a defense. This amounts to a forfeiture of the issue and we do not address it further. See A.O. Smith Corp. v. Allstate Ins. Companies, 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) ("[A] party has to adequately, and with some prominence, argue an issue in order for this court to decide it."). 9 No. 2017AP2364-CR
¶¶13-15. The court of appeals did not reach the juror bias or
ineffective assistance claims raised in Gutierrez's postconviction
motion since it remanded the case for a new trial. Id., ¶12 n.8.
The State petitioned for review, which we granted.
II. STANDARD OF REVIEW
¶17 A decision to admit or exclude evidence is within the
circuit court's discretion. State v. Warbelton, 2009 WI 6, ¶17,
315 Wis. 2d 253, 759 N.W.2d 557. This court will reverse that
decision only if the circuit court erroneously exercised its
discretion. Id.
¶18 When reviewing a claim of juror bias, we "uphold the
circuit court's factual finding that a prospective juror is or is
not subjectively biased unless it is clearly erroneous." State v.
Lepsch, 2017 WI 27, ¶23, 374 Wis. 2d 98, 892 N.W.2d 682.
¶19 Finally, whether a defendant received ineffective
assistance of counsel is a mixed question of fact and law. State
v. Wayerski, 2019 WI 11, ¶32, 385 Wis. 2d 344, 922 N.W.2d 468.
The circuit court's factual findings, including the circumstances of the case and trial counsel's conduct and strategy, will be
upheld unless they are clearly erroneous. Id. Whether counsel's
performance satisfies the constitutional standard for ineffective
assistance of counsel is a question of law we review de novo. Id.
III. ANALYSIS
¶20 We first address whether the circuit court properly
exercised its discretion in excluding unidentified DNA evidence
and admitting other acts evidence of a prior child sexual assault. Next we consider Gutierrez's postconviction claims that he was 10 No. 2017AP2364-CR
denied the right to an impartial jury and effective assistance of
counsel.
A. Unidentified DNA Evidence
¶21 The State argues that the court of appeals erred in
second-guessing the circuit court's discretionary decision to
exclude the unidentified DNA evidence found on A.R.'s perioral and
underwear swabs. An appellate court upholds a circuit court's
exercise of discretion to admit or exclude evidence where it
"examined the relevant facts, applied a proper legal standard,
and, using a demonstrated rational process, reached a reasonable
conclusion." State v. Chamblis, 2015 WI 53, ¶20, 362 Wis. 2d 370,
864 N.W.2d 806.
¶22 Here, the proper legal standard is the balancing test
set forth in Wis. Stat. § 904.03: "Although relevant, evidence
may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence." Applying this proper legal standard to all of the relevant facts using a
demonstrated rational process, it was reasonable for the circuit
court to conclude that the probative value of the unidentified DNA
was "extraordinarily limited."
¶23 First and foremost, Gutierrez was not the source of the
DNA and no known male was identified as a contributor. The DNA
was not semen or saliva as might be expected where the allegations
include oral sex, attempted vaginal penetration, and ejaculation. As recognized by the circuit court, the DNA could have come from 11 No. 2017AP2364-CR
a skin cell, hair follicle, or some other source deposited during
an innocuous interaction.
¶24 Moreover, there was no evidence of when the DNA had been
deposited. The perioral and underwear samples were not collected
until roughly 24 and 48 hours after the alleged assault,
respectively. Neither party could say whether the DNA found on
those samples was deposited before the time of the alleged assault,
or during the extended interim period afterwards. As the State
emphasized, the time gap also presented the potential for
contamination of the underwear, as one pair was pulled still wet
from a running washing machine and the other was taken from a pile
of soiled laundry. The circuit court could reasonably conclude
that without knowing the critical timeframe for when the
unidentified DNA evidence was deposited, the evidence had limited
probative value in rebutting the State's theory that A.R. washed
or wiped off Gutierrez's DNA.
¶25 Finally, A.R.'s initial description of the underwear
worn during the alleged assault was inconsistent with the underwear tested. The questions regarding the timeframe, source of and
contributors to the DNA, and the high potential for contamination
of the underwear all gave the circuit court reasonable grounds to
conclude that the DNA had low probative value.
¶26 The circuit court could also reasonably conclude that
the limited probative value of the unidentified DNA evidence was
substantially outweighed by the dangers of confusion of the issues,
misleading the jury, and waste of time pursuant to Wis. Stat. § 904.03. Specifically, the circuit court raised concern that the 12 No. 2017AP2364-CR
questions surrounding the unidentified male DNA would lead the
trial down "a rabbit hole" calling for speculative testimony. A
jury could be confused or misled by the collateral issue of why
male DNA was present and therefore distracted from the pertinent
issue of whether Gutierrez's DNA had been present but was washed
or wiped off. The circuit court also expressed apprehension that
the expert testimony on this collateral issue would consume a
significant portion of the trial. The circuit court provided for
an alternative way to elicit the relevant information: defense
counsel could question the expert witness generally on how DNA is
transferred, how long foreign DNA remains viable on another person,
and how easily DNA can be washed or wiped off.
¶27 The court of appeals disagreed with the low probative
value the circuit court assigned to the unidentified DNA evidence.
The court of appeals also dismissed the factors considered by the
circuit court pursuant to Wis. Stat. § 904.03: the dangers of
confusion of the issues, misleading the jury, and wasting time.
Gutierrez, 388 Wis. 2d 312, ¶¶6, 9-10. 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." State v. Rhodes, 2011 WI 73, ¶26,
336 Wis. 2d 64, 799 N.W.2d 850. Instead, appellate courts should
"look for reasons to sustain a trial court's discretionary
decision." State v. Wiskerchen, 2019 WI 1, ¶18, 385 Wis. 2d 120,
921 N.W.2d 730 (quoted source omitted). Our review of the record
shows the circuit court applied the proper legal standard to the relevant facts and reached a reasonable discretionary decision. 13 No. 2017AP2364-CR
The court of appeals thus erred in reversing the circuit court's
decision to exclude the unidentified DNA evidence.
B. Other Acts Evidence of Child Sexual Assault
¶28 Gutierrez argues that the circuit court erroneously
exercised its discretion in admitting evidence that he sexually
assaulted A.R. when she was approximately six years old. We agree
with the court of appeals that the circuit court properly admitted
this other acts evidence of child sexual assault in light of the
greater latitude rule.
¶29 Evidence of other crimes, wrongs, or acts may be admitted
if: (1) offered for an acceptable purpose under Wis. Stat.
§ 904.04(2); (2) relevant under Wis. Stat. § 904.01; and (3) its
probative value is not substantially outweighed by the danger of
unfair prejudice, confusion, or delay under Wis. Stat. § 904.03.
See State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30
(1998). Alongside this general framework, courts accept a "greater
latitude of proof as to other like occurrences" of sexual assault,
particularly against children. State v. Davidson, 2000 WI 91, ¶36, 236 Wis. 2d 537, 613 N.W.2d 606; see also § 904.04(2)(b)1.
(codifying the common law greater latitude rule). The greater
latitude rule liberalizes each of Sullivan's three prongs in favor
of admitting similar acts of child sexual assault. See Davidson,
236 Wis. 2d 537, ¶51. The greater latitude rule, however, does
not relieve a court of the duty to ensure that the other acts
evidence is offered for a proper purpose, is relevant, and its
probative value is not substantially outweighed by undue prejudice. Id., ¶52. 14 No. 2017AP2364-CR
1. Acceptable purposes
¶30 Under Wis. Stat. § 904.04(2)(a), evidence of other
"crimes, wrongs, or acts" is inadmissible unless offered for an
acceptable purpose such as "motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident." Here, the circuit court instructed the jury to consider
the other acts evidence only for the purposes of motive, context,
and background.
¶31 The other acts evidence of sexual assault was offered
for the admissible purpose of proving that Gutierrez's motive was
to intentionally touch A.R. for the purpose of sexual arousal or
gratification. See Wis. Stat. § 948.01(5)(a) (defining the
element of "sexual contact"). "When a defendant's motive for an
alleged sexual assault is an element of the charged crime, we have
held that other crimes evidence may be offered for the purpose of
establishing . . . motive." State v. Hurley, 2015 WI 35, ¶72, 361
Wis. 2d 529, 861 N.W.2d 174 (alteration in original) (emphasis
omitted) (quoting State v. Hunt, 2003 WI 81, ¶60, 263 Wis. 2d 1, 666 N.W.2d 771); see also Davidson, 236 Wis. 2d 537, ¶¶57-59. The
evidence further provided context for A.R.'s delayed disclosure
and a more complete story for the jury. Context and background,
while not expressly listed in Wis. Stat. § 904.04(2)(a), can also
be acceptable purposes. See State v. Marinez, 2011 WI 12, ¶27,
331 Wis. 2d 568, 797 N.W.2d 399 ("We have previously recognized
that context, . . . and providing a more complete background are
permissible purposes under Wis. Stat. § 904.04(2)(a).") (citing Hunt, 263 Wis. 2d 1, ¶58). The circuit court did not erroneously 15 No. 2017AP2364-CR
exercise its discretion by concluding motive, context, and
background were acceptable purposes for the admission of other
acts evidence.
2. Relevance
¶32 Other acts evidence is relevant under Wis. Stat.
§ 904.01 if it: (1) "relates to a fact or proposition that is of
consequence to the determination of the action"; and (2) is
probative because it "has a tendency to make a consequential fact
more probable or less probable than it would be without the
evidence." Sullivan, 216 Wis. 2d at 785–86. We consider relevancy
in the context of the greater latitude rule. See Davidson, 236
Wis. 2d 537, ¶51.
¶33 Several of the counts——sexual assault of a child under
the age of thirteen, incest with a child by stepparent, and child
enticement——required the State to prove "sexual contact," defined
under Wis. Stat. § 948.01(5)(a) as intentional touching for the
purpose of sexual arousal or gratification. See Wis. Stat.
§§ 948.02(1)(e), 948.06(1m), 948.07(1). This motive, as an element of the charges, is a fact of consequence. See Hurley, 361
Wis. 2d 529, ¶83 (citing Davidson, 236 Wis. 2d 537, ¶65). The
other acts evidence was also relevant to A.R.'s credibility, a
consequential fact in this case. Id., ¶81 ("A witness's
credibility is always 'consequential' within the meaning of Wis.
Stat. § 904.01.") (quoting Marinez, 331 Wis. 2d 568, ¶34).
¶34 The probative value of the other acts evidence is
measured by the factual similarities it shares with the charged conduct. See Davidson, 236 Wis. 2d 537, ¶67; see also Sullivan, 16 No. 2017AP2364-CR
216 Wis. 2d at 787. Here, the charged conduct and the other acts
evidence share many factual similarities: the same victim and
assailant; similar alleged acts of sexual contact; and the secluded
location of all of the assaults. These strong similarities are
highly probative as to Gutierrez's motive in the charged assaults
and as to A.R.'s credibility.
3. Unfair prejudice
¶35 Lastly, Wis. Stat. § 904.03 requires the circuit court
to determine whether the probative value of the other acts evidence
"is substantially outweighed by the danger of unfair prejudice,
confusion of the issues or misleading the jury, or by
considerations of undue delay, waste of time or needless
presentation of cumulative evidence." Unfair prejudice occurs
when the evidence "influence[s] the outcome by improper means or
if it appeals to the jury's sympathies, arouses its sense of
horror, provokes its instinct to punish or otherwise causes a jury
to base its decision on something other than the established
propositions in the case." Davidson, 236 Wis. 2d 537, ¶73 (quoting State v. Gray, 225 Wis. 2d 39, 64, 590 N.W.2d 918 (1999)).
¶36 The other acts evidence was highly probative as to
motive, context, and background because of the marked similarities
with the charged conduct. See id., ¶¶75-76; supra, ¶34. The
danger of unfair prejudice based on the jury hearing evidence of
other, similar conduct did not substantially outweigh its high
probative value, especially in light of the greater latitude rule.
See, e.g, State v. Veach, 2002 WI 110, ¶91, 255 Wis. 2d 390, 648 N.W.2d 447 (holding that even "graphic, disturbing, and extremely 17 No. 2017AP2364-CR
prejudicial" testimony detailing a similar other act of child
sexual assault is admissible under the greater latitude rule).
Additionally, the cautionary instruction mitigated the possibility
of unfair prejudice. See Hurley, 361 Wis. 2d 529, ¶89 ("Limiting
instructions substantially mitigate any unfair prejudicial
effect.").
¶37 Because the other acts evidence of child sexual assault
was probative as to motive, context, and background and was not
substantially outweighed by unfair prejudice, we affirm the court
of appeals in upholding the circuit court's admission of that
evidence.
C. Juror Bias
¶38 Gutierrez argues that by not further questioning or
excusing an equivocating juror, the circuit court denied him his
constitutional right to an impartial jury. See U.S. Const. amends.
VI, XIV; Wis. Const. art. 1, § 7. "To be impartial, a juror must
be indifferent and capable of basing his or her verdict upon the
evidence developed at trial." Lepsch, 374 Wis. 2d 98, ¶21 (citing State v. Faucher, 227 Wis. 2d 700, 715, 596 N.W.2d 770 (1999)).
¶39 There are three disqualifying forms of juror bias: (1)
statutory; (2) subjective; and (3) objective. Faucher, 227 Wis. 2d
at 716. Gutierrez's claim falls under subjective bias because it
turns on "the words and the demeanor of the prospective juror."
Id. at 717. "A prospective juror is subjectively biased if the
record reflects that the juror is not a reasonable person who is
sincerely willing to set aside any opinion or prior knowledge that the prospective juror might have." State v. Williams, 2015 WI 75, 18 No. 2017AP2364-CR
¶79, 364 Wis. 2d 126, 867 N.W.2d 736. "Prospective jurors are
presumed impartial," and it is Gutierrez's burden to rebut this
presumption. Lepsch, 374 Wis. 2d 98, ¶22 (quoting State v. Funk,
2011 WI 62, ¶31, 335 Wis. 2d 369, 799 N.W.2d 421).
¶40 Gutierrez argues that Juror R.G.'s statement "I don't
know if I could be impartial" is enough to establish subjective
bias and cites as support State v. Carter, 2002 WI App 55, 250
Wis. 2d 851, 641 N.W.2d 517. In Carter, the court of appeals
concluded that a juror was subjectively biased based upon his
affirmative response when asked if his brother-in-law's experience
as a sexual assault victim would influence his ability to be fair
and impartial in a sexual assault trial. Id., ¶¶3, 12-13.
¶41 Contrary to Gutierrez's contention, Juror R.G.'s
uncertainty is distinguishable from the juror's definitive "yes"
in Carter. We accept and tolerate that a prospective juror may
honestly equivocate in response to voir dire questions exploring
their fears, biases, and predilections. See State v. Erickson,
227 Wis. 2d 758, 776, 596 N.W.2d 749 (1999) ("[W]e expect a circuit court to use voir dire to explore a prospective juror's fears,
biases, and predilections and fully expect a juror's honest answers
at times to be less than unequivocal."). A circuit court "is in
a far superior position to ascertain bias than is an appellate
court whose only link to the voir dire is through the 'bare words
on a transcript,'" and may properly determine a prospective juror
can be impartial despite a less than unequivocal affirmation of
impartiality. Id. at 775-77 (quoting State v. Ferron, 219 Wis. 2d 481, 508, 579 N.W.2d 654 (1998) (Geske, J., dissenting)). 19 No. 2017AP2364-CR
¶42 Here, the circuit court made no express finding and the
record is devoid of any questions that could clarify whether Juror
R.G. actually harbored any bias or, if she did, whether she was
credibly willing to set it aside.12 See Williams, 364 Wis. 2d 126,
¶79. Gutierrez asks us to speculate as to how Juror R.G. would
answer unasked questions. Such speculation is insufficient to
overcome Juror R.G.'s presumed impartiality. See In re
Gutenkunst's Estate, 232 Wis. 81, 86-87, 286 N.W. 566 (1939) ("It
was for appellant to rebut the presumption . . . in this case, and
it is plain to us that he failed to bring the issue out of the
field of speculation and conjecture. This being true, the
presumption stands . . . ."). Considering the sparse record in
this case and in light of the presumption of juror impartiality,
the circuit court did not err by seating Juror R.G. as a juror.
D. Ineffective Assistance of Counsel
¶43 Lastly, Gutierrez argues that he was denied effective
assistance of counsel based on his counsel's decisions not to
further examine or exercise a peremptory strike on Juror R.G., and not to call Gutierrez's mother as a witness. Implicit in a
criminal defendant's right to counsel is the guarantee that such
counsel provides effective assistance. See U.S. Const. amends.
VI, XIV; Wis. Const. Art I, § 7; see also Strickland v. Washington,
As the circuit court itself recognized in its oral ruling 12
denying postconviction relief, the better practice would have been to follow up with an equivocating juror to elicit more definitive answers to these important questions.
20 No. 2017AP2364-CR
466 U.S. 668, 686 (1984) ("[T]he right to counsel is the right to
the effective assistance of counsel." (quoted source omitted)).
¶44 To demonstrate that counsel's assistance was
ineffective, the defendant must satisfy both prongs of the test
announced by the United States Supreme Court in Strickland, 466
U.S. at 687. First, the defendant must demonstrate that counsel's
performance was deficient, which requires a showing that "counsel
made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Id.
Second, the defendant must show prejudice by establishing that
"there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 694. "A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Id. A failure to satisfy either prong eliminates the need to
consider the other. Id. at 697.
¶45 As to counsel's decision not to further examine or strike
Juror R.G., Gutierrez cannot establish prejudice. Prejudice requires that counsel's performance resulted in the seating of a
biased juror. See State v. Koller, 2001 WI App 253, ¶14, 248
Wis. 2d 259, 635 N.W.2d 838 (citing State v. Lindell, 2001 WI 108,
¶81, 245 Wis. 2d 689, 629 N.W.2d 223; State v. Traylor, 170
Wis. 2d 393, 400–01, 489 N.W.2d 626 (Ct. App. 1992)). This record
does not support more than "rank speculation" that Juror R.G. was
biased, see supra, ¶42, which is insufficient to establish
prejudice. Erickson, 227 Wis. 2d at 774; see also Lepsch, 374 Wis. 2d 98, ¶37. Because Gutierrez cannot demonstrate that he was 21 No. 2017AP2364-CR
prejudiced as a result of his counsel's conduct, we need not
address whether his counsel's performance was deficient.
Strickland, 466 U.S. at 697.
¶46 Regarding counsel's decision not to call Gutierrez's
mother as a witness, Gutierrez cannot demonstrate deficient
performance. Deficient performance requires that counsel's
performance fell below "an objective standard of reasonableness."
Id. at 688. Gutierrez must overcome "a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance." Id. at 689. Our review is "highly
deferential" and we do "not second-guess a reasonable trial
strategy, [unless] it was based on an irrational trial tactic or
based upon caprice rather than upon judgment." State v. Breitzman,
2017 WI 100, ¶65, 378 Wis. 2d 431, 904 N.W.2d 93 (alteration in
original) (quoting State v. Domke, 2011 WI 95, ¶49, 337
Wis. 2d 268, 805 N.W.2d 364).
¶47 Defense counsel articulated several reasons why he opted
not to call Gutierrez's mother as a witness at trial. Recognizing that "this was obviously a case about credibility," defense counsel
was concerned that Gutierrez's mother's credibility would be
undermined because she did not immediately report A.R.'s
recantation and provided few details surrounding when A.R. made
her recantation and why A.R. was with her in Texas at the time.
Defense counsel stated that he judged Gutierrez's mother to be "a
loose cannon" who "loved to talk" and "would just go off on
something else" in response to any question. Ultimately, he
22 No. 2017AP2364-CR
decided that calling her as a witness would not benefit Gutierrez's
case.13
¶48 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 cross-
examination. 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. Since defense counsel
pursued a strategy within "the wide range of reasonable
professional assistance," Gutierrez has failed to establish his
counsel's performance was unconstitutionally deficient.
Strickland, 466 U.S. at 689. Absent this showing, we need not
address his claim of prejudice. Id. at 697.
IV. CONCLUSION
¶49 We conclude that the court of appeals erroneously
reversed the circuit court's exercise of discretion in excluding
unidentified DNA evidence. We further conclude that the court of
appeals properly affirmed the circuit court's admission of the other acts evidence. Lastly, we conclude that Gutierrez was not
denied his right to an impartial jury or his right to effective
13Gutierrez attempts to rebut defense counsel's articulated rationale, citing his mother's post-trial testimony at the Machner hearing. However, these later statements tell us little about what his counsel observed leading up to trial. See Strickland v. Washington, 466 U.S. 668, 689 (1984) (emphasizing the need to "evaluate the conduct from counsel's perspective at the time" to "eliminate the distorting effects of hindsight"). Moreover, the circuit court noted that Gutierrez's mother's testimony at the Machner hearing was "littered with examples of the witness answering unasked questions, veering away from the question asked to some unrelated or tangential topic all while on direct." 23 No. 2017AP2364-CR
assistance of counsel. Accordingly, we reverse the court of
appeals' decision as to the unidentified DNA evidence and affirm
its decision as to the other acts evidence. We also affirm the
circuit court's denial of Gutierrez's postconviction motion.
By the Court.—The decision of the court of appeals is affirmed
in part and reversed in part.
¶50 BRIAN HAGEDORN, J., did not participate.
¶51 ANN WALSH BRADLEY, J., withdrew from participation.
24 No. 2017AP2364-CR
25 No. 2017AP2364-CR