State v. Ginger M. Breitzman , 378 Wis. 2d 431 ( 2017 )

2017 WI 100SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1610-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Ginger M. Breitzman,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 371 Wis. 2d 760, 886 N.W.2d 593(2016 – Unpublished)
OPINION FILED: December 1, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 20, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Rebecca F. Dallet
JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs (opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed and an oral argument by Hannah Schieber Jurrs, assistant
state public defender.
For the plaintiff-respondent, there was a brief filed by
Donald V. Latorraca, assistant attorney general, with whom on
the brief were Brad D. Schimel, attorney general, and Maura F.J.
Whelan, assistant attorney general. There was an oral argument
by Donald V. Latorraca.
2017 WI 100NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1610-CR
(L.C. No. 2013CF270)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. DEC 1, 2017
Ginger M. Breitzman, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished decision of the court of appeals, State v.
Breitzman, No. 2015AP1610-CR, unpublished slip op., (Wis. Ct.
App. Aug. 16, 2016), which affirmed the Milwaukee County circuit
court's1 denial of Ginger Breitzman's ("Breitzman")
postconviction motion challenging her convictions for child
neglect under Wis. Stat. § 948.21(1)(2013-14)2 and disorderly
conduct under Wis. Stat. § 947.01(1).
1
The Honorable Rebecca F. Dallet presided.
2
All references to the Wisconsin Statutes are to the (2013-
14) version unless otherwise noted.
No. 2015AP1610-CR
¶2 In a criminal action by the State, Breitzman was
charged with, and convicted of, five crimes relating to her
negative interactions, confrontations, abuse, and neglect of her
son, J.K., during the time period ranging from November 2011
through December 2012: (1) Physical Abuse of a Child
(Intentional Causation of Bodily Harm) under Wis. Stat.
§ 948.03(2)(b); (2) Physical Abuse of a Child (Intentional
Causation of Bodily Harm) under § 948.03(2)(b); (3) Child
Neglect (Bodily Harm) under Wis. Stat. § 921.21(1)(b); (4) Child
Neglect (Misdemeanor) under Wis. Stat. § 948.21(1)(a); and (5)
Disorderly Conduct under Wis. Stat. § 947.01(1).
¶3 In the circuit court, Breitzman filed a postconviction
motion under Wis. Stat. § 809.30(2)(h) seeking judgments of
acquittal for counts three, four, and five. For all three, she
argued that there was insufficient evidence to support a
conviction. Additionally, she argued that defense counsel at
trial had been ineffective because he failed to move for
dismissal of count five for disorderly conduct on free speech
grounds, pursued a defense theory of reasonable parental
discipline in opening remarks that was inconsistent with
Breitzman's plan to deny striking J.K., and failed to object to
testimony regarding other-acts evidence. Following a Machner3
hearing, the circuit court granted the motion for judgment of
acquittal as to count three and denied the motion as to counts
3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
2
No. 2015AP1610-CR
four and five, concluding that there was sufficient evidence to
sustain the convictions on counts four and five and that counsel
had not been ineffective at trial.
¶4 In the court of appeals, Breitzman challenged the
circuit court's denial of her postconviction motion as to counts
four and five, again challenging the sufficiency of the evidence
and asserting that defense counsel at trial had been
ineffective. The court of appeals affirmed the circuit court.
¶5 On petition to this court, Breitzman seeks review of
the denial of her ineffective assistance of counsel claim. In
this regard, we note that Breitzman's claim does not raise a
facial or as-applied challenge to the disorderly conduct
statute, Wis. Stat. § 947.01. A facial challenge would argue
that "profane conduct," as listed in § 947.01(1), is not
actionable as a crime because profanity is protected speech. An
as-applied challenge would argue that Breitzman's profane
conduct in this case was not actionable as a crime because it
was protected speech. Breitzman argues neither. Breitzman only
3
No. 2015AP1610-CR
argues that her trial counsel rendered ineffective assistance.4
Thus, while this case touches on an interesting issue of free
speech law, we reserve full analysis of what constitutes profane
speech and whether profane speech is otherwise protected as free
speech for another day and confine our analysis here to the
ineffective assistance of counsel issue presented, briefed, and
argued by the parties.
¶6 The ineffective assistance of counsel issue raised
requires consideration of whether counsel was ineffective for
any of the following reasons: (1) failing to move to dismiss the
disorderly conduct charge on the basis that it violated
Breitzman's constitutional right to free speech; (2) failing to
4
We further note that the standard for establishing that a
statute is unconstitutional is high; because we assume the
constitutionality of statutes, "the party challenging a
statute's constitutionality must prove that the statute is
unconstitutional beyond a reasonable doubt." See State v.
Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90.
Additionally, where a statute has been authoritatively
interpreted by this court, the party challenging that
interpretation must establish that our prior interpretation was
"objectively wrong." See Progressive N. Ins. Co. v. Romanshek,
2005 WI 67, ¶45, 281 Wis. 2d 300, 697 N.W.2d 417 (noting that
"stare decisis concerns are paramount where a court has
authoritatively interpreted a statute"). Wisconsin Stat.
§ 947.01 has been upheld by this court against facial and as-
applied challenges on free speech grounds on numerous occasions.
See infra ¶52. Moreover, when an authoritative interpretation
of a statute has stood for many years, stare decisis concerns
take on even greater significance. See id., ¶52; see also
Bauman v. Gilbertson, 7 Wis. 2d 467, 469-70, 96 N.W.2d 854(1959) (holding that it was not proper to depart from stare
decisis where the interpretation stood for 11 years). Here, our
interpretation of § 947.01 as constitutional has stood as law
for nearly 50 years. See infra ¶52.
4
No. 2015AP1610-CR
present opening remarks consistent with Breitzman's anticipated
testimony; and (3) failing to object to testimony regarding
other uncharged conduct.
¶7 As to the first, we conclude that trial counsel's
failure to move to dismiss the disorderly conduct charge on the
basis that it violated Breitzman's constitutional right to free
speech was not deficient performance, and thus not ineffective
assistance of counsel, because whether profane conduct that
tends to cause or provoke a disturbance is protected as free
speech is unsettled law.
¶8 As to the second, we conclude that trial counsel's
theory of reasonable parental discipline, as presented in
opening remarks, was not deficient performance, and thus not
ineffective assistance of counsel, because it reflected trial
counsel's reasonable expectations, which were rationally based
on discussions with Breitzman, and it was part of a reasonable
trial strategy.
¶9 As to the third, we conclude that trial counsel's
failure to object to testimony regarding uncharged conduct was
not deficient performance, and thus not ineffective assistance
of counsel, because declining to object was part of a reasonable
trial strategy.
¶10 Because we conclude that trial counsel's performance
was not deficient, we need not address whether, in the context
of ineffective assistance of counsel, there was prejudice to
Breitzman, and we decline to do so.
¶11 Thus, we affirm the decision of the court of appeals.
5
No. 2015AP1610-CR
I. FACTUAL AND PROCEDURAL BACKGROUND
¶12 To give proper perspective on the narrow issues we
address here, it is important to outline the charges,
allegations, and evidence presented to the jury, as well as the
theory of defense and strategy of trial counsel.
¶13 The State charged Breitzman with the following five
counts: (1) Physical Abuse of a Child (Intentional Causation of
Bodily Harm) under Wis. Stat. § 948.03(2)(b), as to striking
J.K. in the face, resulting in a bloody nose, for J.K.'s failure
to wash the floor; (2) Physical Abuse of a Child (Intentional
Causation of Bodily Harm) under § 948.03(2)(b), as to striking
J.K. in the face, resulting in a bruise, for J.K.'s failure to
prepare a meal; (3) Child Neglect (Bodily Harm) under Wis. Stat.
§ 948.21(1)(b), as to Breitzman's failing to seek medical care
for J.K. when he was sick for a week with vomiting and diarrhea;
(4) Child Neglect (Misdemeanor) under § 948.21(1)(a), as to
Breitzman's locking J.K. out of the house during the winter; and
(5) Disorderly Conduct under Wis. Stat. § 947.01(1), as to
Breitzman's engaging in "profane conduct, under circumstances in
which such conduct tended to cause a disturbance."5 Breitzman
entered pleas of not guilty and the case was set for a jury
trial. At trial, the State's primary witness was J.K.,
Breitzman's son.
5
The criminal complaint was filed on January 12, 2013, and
Breitzman entered pleas of not guilty on May 20, 2013. On
January 31, 2013, Breitzman waived her right to a preliminary
hearing. An amended information was filed on May 20, 2013.
6
No. 2015AP1610-CR
¶14 As to the first charge, for physical abuse, J.K.
testified that he had been sweeping the floor while also trying
to keep an eye on his three-year-old little sister. Breitzman
wanted him to hurry up sweeping the floor, but his sister was
running around the house and throwing things on the floor, in
J.K.'s words, "being a three year old." Then, when Breitzman
came into the room and saw that he was not sweeping "right or
fast enough," she grabbed the broom and struck him on the side
of his head with her fist (she could not reach his face because
he had raised his hands defensively when she grabbed the broom),
telling him he never did anything right and calling him a "piece
of shit" and the "dog of the house."
¶15 As to the second charge, also for physical abuse, J.K.
testified that he could not recall the precise date on which
Breitzman struck him, but he remembered clearly the bloody nose
that resulted because it lasted three minutes and he had to go
find something to stem the flow. He said that Breitzman had
seemed angry with him when she came into his room and then
struck him in the face when he would not get out of bed, calling
him a "fuck face" and a "retard." When she left, he remembers
crying and that he did not know what he'd done wrong.
¶16 As to count three, for child neglect, J.K. testified
that, on or about November 18, 2012, he became very ill. He had
been vomiting almost every hour and had diarrhea, both of which
appeared to have blood in them. When he told Breitzman this,
she said she would get him a Gatorade at the end of the week if
he was still sick. He testified that he was sick like this for
7
No. 2015AP1610-CR
six-to-seven days, but when he asked Breitzman if he could go to
the doctor, she refused. This prompted him to call friends and
post on Facebook seeking help.
¶17 As to count four, also for child neglect, J.K.
testified that, in the winter of 2011-2012, he could not get
into the house when he got home from school because his mother
had locked the doors. The weather that morning had been warmer,
so he had not taken a coat with him to school; the weather grew
cooler over the course of the day, however, and it was cold when
he returned home at about 3:30 p.m. Finding the house locked,
he testified that he knocked on the front and back doors and
rang the doorbell for about three minutes to no avail. J.K.
said he could tell that Breitzman was home because her car was
in the driveway, but she did not come to the door so he crawled
under the grill cover on the porch for shelter. He continued to
ring the doorbell every fifteen minutes, but spent approximately
four hours outside, huddling under the grill cover to keep from
freezing.
¶18 As to the fifth charge, for disorderly conduct, J.K.
testified that, when he got home from school on December 4,
2012, he put a bag of popcorn in the microwave, but ended up
burning it and having to throw it away. When Breitzman got home
about a half hour later, he was on the phone with his best
friend, D.M., and, when he heard Breitzman come through the
door, he hid his phone in his pocket because he was afraid she
would be mad. He testified that, when she smelled the burned
popcorn and saw the bag in the trash can, she sought him out and
8
No. 2015AP1610-CR
told him he always messed things up, calling him a "fuck face,"
"retard," and a "piece of shit." He defended himself by saying
that he had not done it on purpose, but Breitzman persisted
saying she "[didn't] give a fuck." He then asked Breitzman to
stop calling him names, which she responded to by threatening to
kick him out of the house. Later that night he called D.M. back
crying and needing someone to talk to.
¶19 Over the course of J.K.'s testimony, he further
testified that it was a daily occurrence to be called "retard"
and "fuck face." He also testified that he had not had glasses
or treatment for his lazy eye since second grade and had not
been to the dentist since he was five; that there was a lock on
the refrigerator at home and he could not get lunch at school
because Breitzman would not complete the paperwork for free
lunches; and that Breitzman struck J.K. once when they were in
the car because he disagreed with her about who had taught him a
song when he was younger. The latter came up during trial
counsel's cross-examination:
Q You just have a problem with frequent nosebleeds?
A From what it appears. But this was after the
incident when she hit me in the car and my nose was
bleeding on me.
Q By the way, was she driving the car at the time?
A Yes, sir.
Q And where were you located?
A I was in the passenger's seat.
9
No. 2015AP1610-CR
Q And so it was her attempt to slap you, she was
hitting you with the back of her hand at that time?
A She hit me with the back of her hand.
Q She couldn't have hit you with the palm of her hand
because there wasn't quite a way to do that, right,
so she actually had to go this way?
A Yes, sir.[6]
¶20 The State also introduced evidence to corroborate
J.K.'s testimony: J.K.'s best friend, D.M., testified that over
the course of about six months, J.K. went from "always happy and
nice" to "more stressed out and tired and just more sad."
Specifically, when J.K. called him back on the night of
December 4, 2012, he said that J.K. seemed "beat down" and that
he had "never heard [J.K.] cry before." D.M. also testified
that J.K. had a bruise for about a week at the time of the
second allegation of abuse; J.K.'s girlfriend, A.G., also
verified this.
¶21 J.K.'s neighbor also testified. She said she had sent
over Gatorade and crackers in response to J.K.'s Facebook post
about being ill——she had had some on hand because her daughter
had been sick with the flu. She was also the one J.K. called
looking for a place to stay when Breitzman kicked him out on
December 4, 2012.
¶22 Additionally, the State called J.K.'s high school
counselor and the West Allis detective who investigated J.K.'s
6
In this exchange, the questions were asked by Breitzman's
trial counsel and were answered by J.K.
10
No. 2015AP1610-CR
claims. The counselor testified that J.K. met with him on
November 29, 2012, and told him about what had been going on at
home, that he was tired of being called "retarded" and a "[f]uck
face" and being "smacked in the head" by his mother. J.K. then
met with a detective from the West Allis Police Department on
December 11, 2012. In investigating J.K.'s claims, the
detective interviewed Breitzman. The detective testified that
Breitzman admitted that she called J.K. names, slapped and
backhanded J.K., and did not allow J.K. to have a key to the
house.
¶23 Breitzman's general defense to these allegations and
charges was that J.K. was lying and that he was a rebellious and
irresponsible teenager. She attributed this behavior to the
fact that his father had rejected him and that J.K. had a new
girlfriend.7 Specifically, as to counts one and two, Breitzman
denied striking J.K., and said that the bruise had been the
result of him dropping a dumbbell on his face. As to count
three, Breitzman testified that J.K. was not sick for a week,
that she told him there were crackers and Gatorade available,
and that the redness in his vomit and diarrhea was fruit punch
Gatorade, not blood. As to count four, Breitzman confirmed that
7
The defense called two additional witnesses, Ramona Smith
and Dan Percifield——both long-time friends of Breitzman. Smith
testified that J.K. had been well-behaved up until the last few
years, when he became more defiant. Percifield also testified
that J.K.'s relationship with Breitzman had deteriorated
recently, attributing it to J.K.'s new girlfriend.
11
No. 2015AP1610-CR
she knew what time J.K. got home from school, that she had
locked the doors to the house, that she did not let J.K. have a
key, and that she chose to take a nap at that time; but she
defended her actions by pointing out that there were any number
of businesses close by where J.K. could have gone to wait. As
to count five, Breitzman said that her conduct was justified
because J.K. had scorched the microwave when he burned the
popcorn and he "was belligerent with [her]."
¶24 Breitzman further testified that she did call J.K.
"retarded," a "piece of shit," and a "fuck face," but not
regularly;8 that she did not get J.K. glasses because she did not
have insurance and because he would not wear them when he did
have them; that J.K. did not have lunch because he could not
remember to bring home the form and did not make his own lunch,
and that J.K. always had the code to the lock on the
refrigerator, which was just in place to make him think before
eating; and that she did strike J.K. in the uncharged incident
in the car. Breitzman also testified that she would generally
discipline J.K. by grounding him or by taking away phone and/or
video game privileges, but would resort to physical violence if
she thought he was lying to her, talking back, being
belligerent, or if he did not check in when he was out. She
testified that she never struck him just to hurt him. In short,
8
Smith characterized this name-calling as "jok[ing]
around." Percifield testified that he had heard Breitzman call
J.K. these names on numerous occasions.
12
No. 2015AP1610-CR
Breitzman's defense was that J.K. could not be believed, and
that, as a single parent, she "did what [she] thought [she] had
to do."
¶25 At trial, the testimony was bookended by attorneys'
arguments. As pertains to the ineffective assistance of counsel
issue presented here, Breitzman's trial counsel argued in his
opening remarks as follows:
[W]hat's really at the base of this is the question of
the instructions that the Court gives you, have any of
these been met or not? You will also be getting later
on an instruction which is very important to this
case, and it is going to be very important when you
get to the defense case, and that is the question of
reasonable parental discipline privilege, it's a jury
instruction, number 950, 950, that's very important
because this is eventually what this comes down
to. . . .
Was she intentionally trying to inflict pain beyond
the right of a parent to inflict pain and, yes, read
chapter or read Jury Instruction 950 when you get it,
it actually refers to a parent's right to inflict,
that means cause pain, and we know you can cause pain
a million ways. You can slap someone if they are
disrespectful to you. You can smack someone hard on
the back of their butt. You can hit them on the side
of their head. . . . You are going to have a couple of
days of evidence to consider as to whether my client
is a criminal or just a struggling parent, and I
believe the evidence will show that she is not a
criminal . . . .9
As is general practice, the circuit court instructed the jury
that attorney arguments are not evidence:
9
We note that, although Breitzman was present for opening
remarks and trial, neither the trial nor the Machner hearing
transcripts reflect that she expressed any dissatisfaction with
trial counsel's statement.
13
No. 2015AP1610-CR
Remarks of the attorneys are not evidence. If
the remarks suggested facts not in evidence, disregard
the suggestion.
Consider carefully closing arguments of the
attorneys but their arguments and conclusions and
opinions are not evidence.
¶26 On May 23, 2014, the jury convicted Breitzman of all
five counts. After the verdict, the circuit court entered the
judgments of conviction.
¶27 On February 6, 2015, Breitzman filed a postconviction
motion, seeking judgments of acquittal for counts three, four,
and five. For all three, she argued that there was insufficient
evidence to support a conviction. Additionally, she argued that
defense counsel at trial had been ineffective because he failed
to move for dismissal of count five for disorderly conduct on
free speech grounds, pursued a defense theory of reasonable
parental discipline in opening remarks that was inconsistent
with Breitzman's plan to deny striking J.K., and failed to
object to testimony regarding other-acts evidence. On May 29,
2015, the circuit court held a Machner hearing on the motion, at
which both trial counsel and Breitzman testified.
¶28 As to his failure to challenge the disorderly conduct
charge on free speech grounds, trial counsel testified that he
had contemplated moving to dismiss count five for disorderly
conduct on free speech grounds, but decided not to because it
was "too shallow and there wasn't enough guts to it."
¶29 As to his assertion of the reasonable parental
discipline theory of defense, Breitzman's trial counsel
testified as follows:
14
No. 2015AP1610-CR
Q Prior to the commencement of the actual jury trial,
you asked for the Court to include within the
opening statements the reasonable discipline
defense; isn't that true?
A . . . yes.
Q Why did you ask for that?
A Because it was the only major defense position I
believed we could take, regardless of all the
charges, because jurors . . . [are] really trying
to decide which side is telling the truth in the
end . . . and the major morality of this case was
whether he had a struggling mother doing the best
she could or whether we had a mother engaged in
abuse . . . .
That's why I included the recommendation
originally, and the client saw the wisdom of
it. . . .[10]
¶30 As to his failure to object to other-acts evidence,
Breitzman's trial counsel further testified as follows:
Q Was there a reason why you did not file a motion in
limine pretrial to preclude any reference to these
other allegations of her bad behavior?
A The heart of her defense was that she had a
rebellious child. She was a single mom with very
limited economic resources. She had another child
she had to take care of. She had had a very
difficult set of circumstances she was dealing
with. She had loved her son and had had a good
relationship with him until a point in time, a year
or two before where he suddenly became rebellious,
which she attributed to either school friends or
girlfriends, and things had gone downhill from
there.
10
In this exchange, the questions were asked by Breitzman's
appellate counsel and were answered by Breitzman's trial
counsel.
15
No. 2015AP1610-CR
When we talked about how to approach the defense,
her concern was that a jury would see that she was
doing the best she could. She did not think in
advance that anything she did to him was
wrong. . . . And I believed her that she didn't at
the time believe that she was engaged in criminal
activity. She was just doing her best as a parent.
Q Was there any reason, other than that then, why you
did not object when discussion of the things we've
just talked about, these allegations of bad
behavior on her part, were then brought up at
trial?
A The plan for the defense is that we believe the
son's story, or expression of these things, would
go to such an extended or aggravated or aggrandized
extent that he would lose credibility, and then she
would take the stand and show what really happened,
that she cared for her son, that these were
difficult, times of rebellion.
. . .
So the best approach would be to be very
transparent about it with the jury and to not sit
there and make lots of objections on things that
would be overruled and become obvious and rather
let the jury see what is the other side here. . . .
The facts were what they were, and we would
approach the defense very transparently.[11]
¶31 Breitzman also testified at the Machner hearing; her
testimony focused on her understanding of the reasonable
parental discipline defense and the other acts that might come
up. As to the reasonable parental discipline defense, she
testified as follows:
11
In this exchange, the questions were asked by Breitzman's
appellate counsel and were answered by Breitzman's trial
counsel.
16
No. 2015AP1610-CR
Q Did [trial counsel] ever talk to you about arguing
reasonable parental discipline in this case?
A Yes.
Q Okay. Did he tell you this is what he intended to
argue?
A Yes.[12]
Breitzman said, however, that she told trial counsel she had not
struck J.K. on the two charged occasions. She also said that
she told him she would admit to striking J.K. in the uncharged
incident in the car if it came up, but that she did not want it
raised. On cross-examination, Breitzman confirmed that she
agreed to trial counsel's reasonable parental discipline
defense:
Q And did you agree to asserting the reasonable
discipline defense at trial?
A Yes . . . .[13]
¶32 As to other acts, Breitzman testified that she knew
her statements about striking J.K. to discipline him——which she
made in the interview with the detective——would likely come up,
and that she discussed with trial counsel the fact that the
trial would likely come down to her word against J.K.'s. She
also confirmed that, although she was present during opening
remarks, she never voiced any objection to the court regarding
12
In this exchange, the questions were asked by Breitzman's
appellate counsel and were answered by Breitzman.
13
In this exchange, the questions were asked by the State
and were answered by Breitzman.
17
No. 2015AP1610-CR
her trial counsel's introduction of the reasonable parental
discipline defense.
¶33 On July 17, 2015, the circuit court granted
Breitzman's motion as to count three14 but denied Breitzman's
motion as to counts four15 and five.16 As to count four, the
circuit court held that there was sufficient evidence to sustain
the conviction because it is the "parent's responsibility to
provide shelter. It's not a child's responsibility to find
alternative shelter." As to count five, the circuit court held
that there was sufficient evidence to sustain the conviction
because there was ample testimony that Breitzman's profane
conduct did tend to cause a disturbance, and in fact did cause a
disturbance.
14
Count three was the charge for Child Neglect (Bodily
Harm) under Wis. Stat. § 948.21(1)(b), as to Breitzman's failure
to seek medical care for J.K. when he was sick for a week with
vomiting and diarrhea. The circuit court found that there was
insufficient evidence to sustain a conviction because the State
had not proven Breitzman's inaction was a substantial factor in
harming J.K., specifically that there was no evidence that, had
Breitzman taken J.K. to the doctor, it would have made a
difference. Judgment of acquittal on count three was entered on
July 24, 2015.
15
Count four was for Child Neglect (Misdemeanor) under Wis.
Stat. § 948.21(1)(a), as to Breitzman's locking J.K. out of the
house during the winter.
16
Count five was for Disorderly Conduct under Wis. Stat.
§ 947.01(1), as to Breitzman's engaging in "profane conduct,
under circumstances in which such conduct tended to cause a
disturbance."
18
No. 2015AP1610-CR
¶34 As to the ineffective assistance of counsel claim, the
circuit court held that there was no ineffective assistance.
With regard to the failure to move for dismissal of the
disorderly conduct charge on free speech grounds, the circuit
court found that there was no prejudice because it would have
denied any motion made on the basis that Breitzman's profanity
had no social value and very clear detrimental effects.17 With
regard to admission of other-acts evidence, the court found that
there was no deficient performance because it was J.K., not
Breitzman's trial counsel, who introduced the uncharged incident
in the car, and that her trial counsel's decision not to object
on that occasion and on others was part of a reasonable strategy
to challenge J.K.'s credibility. Similarly, the circuit court
found that trial counsel's reasonable parental discipline theory
was not prejudicial because his discussion of it was vague and
brief during opening statements. The circuit court further held
that there was no aggregate prejudice, in part because it
specifically instructed the jury on other acts and limited its
instruction on reasonable parental discipline to the context of
other acts.
¶35 On August 3, 2015, Breitzman filed notice of appeal.
On August 16, 2016, the court of appeals affirmed the circuit
17
We note that this type of balancing has been rejected as
a valid method of determining constitutionality under the First
Amendment. See United States v. Stevens, 559 U.S. 460, 470
(2010). Because we affirm on other grounds we need not address
the propriety of the circuit court's reasoning here.
19
No. 2015AP1610-CR
court's denial of Breitzman's postconviction motion. See
Breitzman, unpublished slip op., ¶26. The court of appeals held
that, as to the free speech claim, there was no prejudice
because the motion would have been unsuccessful, id., ¶22; that,
as to trial strategy, there was no prejudice because the
reasonable parental discipline theory was limited to the
uncharged incident where Breitzman did not deny striking J.K.,
id., ¶24; and that, as to other-acts evidence, there was no
deficient performance because counsel's decision not to object
was strategic, deliberate, and reasonable, id., ¶23.
¶36 On September 15, 2016, Breitzman filed a petition for
review in this court. On March 13, 2017, we granted the
petition. Our review here is limited to Breitzman's ineffective
assistance of counsel claim, which argues that her trial counsel
was ineffective for failing to move to dismiss the disorderly
conduct charge on the basis that it violated Breitzman's
constitutional right to free speech, for failing to present a
theory of defense in opening remarks consistent with Breitzman's
anticipated testimony, and for failing to object to other-acts
evidence.
II. STANDARD OF REVIEW
¶37 "Under the Sixth and Fourteenth Amendments to the
United States Constitution, a criminal defendant is guaranteed
the right to effective assistance of counsel." State v.
Lemberger, 2017 WI 39, ¶16, 374 Wis. 2d 617, 893 N.W.2d 232(quoting State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358,
805 N.W.2d 334). The same right is guaranteed under Article I,
20
No. 2015AP1610-CR
Section 7 of the Wisconsin Constitution. Whether a defendant
was denied effective assistance of counsel is a mixed question
of law and fact. See State v. Thiel, 2003 WI 111, ¶21, 264
Wis. 2d 571, 665 N.W.2d 305. The factual circumstances of the
case and trial counsel's conduct and strategy are findings of
fact, which will not be overturned unless clearly erroneous;
whether counsel's conduct constitutes ineffective assistance is
a question of law, which we review de novo. Id. To demonstrate
that counsel's assistance was ineffective, the defendant must
establish that counsel's performance was deficient and that the
deficient performance was prejudicial. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). If the defendant fails to
satisfy either prong, we need not consider the other. Id. at
697.
¶38 Whether trial counsel performed deficiently is a
question of law we review de novo. See State v. Domke, 2011 WI
95, ¶33, 337 Wis. 2d 268, 805 N.W.2d 364. To establish that
counsel's performance was deficient, the defendant must show
that it fell below "an objective standard of reasonableness."
See Thiel, 264 Wis. 2d 571, ¶19. In general, there is a strong
presumption that trial counsel's conduct "falls within the wide
range of reasonable professional assistance." State v. Carter,
2010 WI 40, ¶22, 324 Wis. 2d 640, 782 N.W.2d 695. Additionally,
"[c]ounsel's decisions in choosing a trial strategy are to be
given great deference." Balliette, 336 Wis. 2d 358, ¶26.
¶39 Whether any deficient performance was prejudicial is
also a question of law we review de novo. See Domke, 337
21
No. 2015AP1610-CR
Wis. 2d 268, ¶33. To establish that deficient performance was
prejudicial, the defendant must show that "there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome." See Thiel, 264 Wis. 2d 571, ¶20.
III. ANALYSIS
¶40 In evaluating Breitzman's ineffective assistance of
counsel claim, we consider three acts——or failures to act——of
Breitzman's trial counsel: (A) trial counsel's failure to move
for dismissal of count five for disorderly conduct on free
speech grounds; (B) trial counsel's failure to present opening
remarks consistent with Breitzman's anticipated testimony; and
(C) trial counsel's failure to object to testimony regarding
other uncharged conduct.
¶41 As to the first, we conclude that trial counsel's
failure to move to dismiss the disorderly conduct charge on the
basis that it violated Breitzman's constitutional right to free
speech was not deficient performance, and thus not ineffective
assistance of counsel, because whether profane conduct that
tends to cause or provoke a disturbance is protected as free
speech is unsettled law.
¶42 As to the second, we conclude that trial counsel's
theory of reasonable parental discipline, as presented in
opening remarks, was not deficient performance, and thus not
ineffective assistance of counsel, because it reflected trial
counsel's reasonable expectations, which were rationally based
22
No. 2015AP1610-CR
on discussions with Breitzman, and it was part of a reasonable
trial strategy.
¶43 As to the third, we conclude that trial counsel's
failure to object to testimony regarding uncharged conduct was
not deficient performance, and thus not ineffective assistance
of counsel, because declining to object was part of a reasonable
trial strategy.
¶44 Because we conclude that trial counsel's performance
was not deficient, we need not address whether, in the context
of ineffective assistance of counsel, there was prejudice to
Breitzman, and we decline to do so.
¶45 Thus, we affirm the decision of the court of appeals.
A. Trial Counsel Was Not Deficient For Failing
To Move For Dismissal Of The Disorderly Conduct Count
On Free Speech Grounds.
¶46 We consider first whether trial counsel's failure to
move to dismiss the disorderly conduct charge on the basis that
it violated Breitzman's constitutional right to free speech
constituted ineffective assistance of counsel.
¶47 Breitzman argues that the failure to raise a free
speech claim was ineffective assistance because the disorderly
conduct charge was based on the content of Breitzman's speech in
the privacy of her home, which did not fall within one of the
narrow categories of unprotected speech. The State argues that
the failure to raise a free speech claim was not ineffective
assistance because Breitzman has not demonstrated that, as a
23
No. 2015AP1610-CR
matter of settled law, she had a right to engage in profane
conduct that tends to cause or provoke a disturbance.18
¶48 We conclude that trial counsel's failure to move to
dismiss the disorderly conduct charge on the basis that it
violated Breitzman's constitutional right to free speech was not
deficient performance, and thus not ineffective assistance of
counsel, because whether profane conduct that tends to cause or
provoke a disturbance is protected as free speech is unsettled
law.
¶49 At the outset, we note that, for trial counsel's
performance to have been deficient, Breitzman would need to
demonstrate that counsel failed to raise an issue of settled
law. "[F]ailure to raise arguments that require the resolution
of unsettled legal questions generally does not render a
lawyer's services 'outside the wide range of professionally
competent assistance' sufficient to satisfy the Sixth
Amendment." Lemberger, 374 Wis. 2d 617, ¶18 (quoting Basham v.
United States, 811 F.3d 1026, 1029 (8th Cir. 2016)). Rather,
"ineffective assistance of counsel cases should be limited to
situations where the law or duty is clear . . . ." Id., ¶33
(quoting State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621(Ct. App. 1994)). Thus, we turn to the question of whether the
18
We note that Wis. Stat. § 947.01(1) is not limited to
public places: "Whoever, in a public or private place . . . ."
Thus, the fact that Breitzman was in the privacy of her home
does not necessarily affect our analysis.
24
No. 2015AP1610-CR
law is clear that profane conduct that tends to cause or provoke
a disturbance is protected as free speech. It is not.
¶50 An individual is guaranteed the right to free speech
under Article I, Section 3 of the Wisconsin Constitution, which
states in relevant part that "[e]very person may freely
speak . . . his sentiments on all subjects, being responsible
for the abuse of that right . . . ." The same right is
guaranteed under the First Amendment of the United States
Constitution, which states in relevant part that "Congress shall
make no law . . . abridging the freedom of speech." "Despite
the differences in language between these two provisions, we
have found no differences in the freedoms that they guarantee."
State v. Robert T., 2008 WI App 22, ¶6, 307 Wis. 2d 488, 746
N.W.2d 564.
¶51 The First Amendment case law applicable to profanity
and disorderly conduct finds root in Chaplinsky v. New
Hampshire, which held:
There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of
which have never been thought to raise any
Constitutional problem. These include the lewd and
obscene, the profane, the libelous, and the insulting
or "fighting" words——those which by their very
utterance inflict injury or tend to incite an
immediate breach of the peace. . . . [S]uch utterances
are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth
that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
morality. "Resort to epithets or personal abuse is
not in any proper sense communication of information
or opinion safeguarded by the Constitution, and its
25
No. 2015AP1610-CR
punishment as a criminal act would raise no question
under that instrument."
315 U.S. 568, 571-72 (1942) (footnotes omitted) (quoting
Cantwell v. Connecticut, 310 U.S. 296, 309-10 (1940)).
¶52 In a series of cases post-Chaplinsky, this court
upheld Wis. Stat. § 947.01 against numerous free speech
challenges. In State v. Zwicker we held that § 947.01 (1967-
68)19 did not violate defendants' free speech rights because
"[i]t rarely has been suggested that the constitutional freedom
for speech . . . extends its immunity to speech or writing used
as an integral part of conduct in violation of a valid criminal
statute." 41 Wis. 2d 497, 513, 164 N.W.2d 512 (1969). In State
v. Maker we again upheld § 947.01 (1967-68), noting that any
challenge to the disorderly conduct statute based on words
spoken or conduct engaged in must balance "the right to maintain
the public peace" with "the imperative to protect
constitutionally assured personal freedoms." 48 Wis. 2d 612,
615, 180 N.W.2d 707 (1970). In State v. Werstein we upheld
§ 947.01 (1971-72) once again, emphasizing that "[i]t is the
combination of conduct and circumstances that is crucial in
applying the statute to a particular situation"; "convictions
for being 'otherwise disorderly' result[] from the
inappropriateness of specific conduct because of the
circumstances involved," namely, where "demeanor could be deemed
19
The operative language of subsection (1) of the statute,
which is at issue here, has not changed substantially since
these cases were decided.
26
No. 2015AP1610-CR
abusive or disturbing in the eyes of reasonable persons." 60
Wis. 2d 668, 672-74, 211 N.W.2d 437 (1973); see also State v.
Becker, 51 Wis. 2d 659, 664-65, 188 N.W.2d 449 (1971); State v.
Givens, 28 Wis. 2d 109, 121-22, 135 N.W.2d 780 (1965).
¶53 The United States Supreme Court, however, soon after
issuing Chaplinsky, narrowed its holding. See Terminiello v.
Chicago, 337 U.S. 1, 4 (1949). In Terminiello, the Court held
that "freedom of speech, though not absolute . . . is
nevertheless protected against censorship or punishment, unless
shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience,
annoyance, or unrest." Id. But see Roth v. United States, 354
U.S. 476, 482-83 (1957) ("[At the time of ratification] all of
[the] States made either blasphemy or profanity, or both,
statutory crimes. . . . In light of this history, it is apparent
that the unconditional phrasing of the First Amendment was not
intended to protect every utterance.").20
20
In response, Breitzman cites to Duncan v. United States,
48 F.2d 128 (9th Cir. 1931), for the proposition that "[t]he
question of what constitutes profane language . . . is usually
dealt with as a branch of the common-law offense of blasphemy."
Presumably, Breitzman cites this case to undermine the
constitutionality of a statute which regulates speech rooted in
archaic norms of propriety. We do not address this issue here,
however, as Breitzman has not raised a claim that her speech was
not profane, or that the statute is facially unconstitutional or
unconstitutional as-applied to her; her claim here is limited to
whether defense counsel was ineffective for failing to make such
a challenge.
27
No. 2015AP1610-CR
¶54 Similarly, while we need not adopt any of the
following tests for the purposes of our review today, we note
that our more recent case law could be read to restrict
statutory regulation of speech to the well-defined categories of
unprotected speech: fighting words,21 speech that incites others
into imminent lawless action,22 obscenity,23 libel and defamatory
speech,24 and true threats25.26 See State v. Douglas D., 2001 WI
47, ¶17, 243 Wis. 2d 204, 626 N.W.2d 725; State v. A.S., 2001 WI
48, ¶16, 243 Wis. 2d 173, 626 N.W.2d 712 ("[The defendant's]
speech can be prosecuted only if [it] is one of the limited
21
See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
22
See Brandenburg v. Ohio, 395 U.S. 444 (1969).
23
See Miller v. California, 413 U.S. 15 (1973).
24
See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
25
See Watts v. United States, 394 U.S. 705 (1969).
26
See also United States v. Alvarez, 567 U.S. 709, 717
(2012) (adding "speech integral to criminal conduct," "child
pornography," "fraud," and "speech presenting some grave and
imminent threat the government has the power to prevent" as
other content-based restrictions that have been permitted).
With regard to content-based restrictions, Breitzman also cites
Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660
(2004) for the proposition that the Constitution "demands that
content-based restrictions on speech be presumed
invalid . . . and that the Government bear the burden of showing
their constitutionality." We express no opinion here, however,
as to the constitutionality of Wis. Stat. § 947.01 with regard
to whether it is a content-based restriction or otherwise,
because Breitzman has not made a facial or as-applied challenge
to the statute; her claim here is limited to whether defense
counsel was ineffective for failing to make such a challenge.
28
No. 2015AP1610-CR
categories of speech that fall outside the protections of the
First Amendment."); cf. Douglas D., 243 Wis. 2d 204, ¶24,
(noting that Wis. Stat. § 947.01 is "a recognition of the fact
that in some circumstances words carry with them proscribable
nonspeech elements," i.e., "conduct"); State v. Schwebke, 2002
WI 55, ¶¶29-31, 253 Wis. 2d 1, 644 N.W.2d 666 (holding that the
disorderly conduct statute does not only apply to public
disruptions). The depth and breadth of these restrictions on
free speech are not so settled in Wisconsin law that counsel's
performance could be deemed deficient in this case.
¶55 Additionally, the United States Supreme Court has
rejected any balancing test that may be inferred from its
historical descriptions of unprotected categories of speech as
being "of such slight social value . . . that any benefit that
may be derived from them is clearly outweighed by the social
interest in order and morality." See United States v. Stevens,
559 U.S. 460, 470 (2010) (quoting R.A.V. v. St. Paul, 505 U.S.
377, 383 (1992) (quoting Chaplinsky, 315 U.S. at 572)); see also
Brown v. Entm't Merch. Ass'n, 564 U.S. 786, 792 (2011); cf.
Brown, 564 U.S. at 792 (quoting Stevens, 559 U.S. at 472)
("'Maybe there are some categories of speech that have been
historically unprotected, but have not yet been specifically
identified or discussed as such in our case law.'").
¶56 This body of case law does not promulgate a clear
standard as to whether a charge under Wis. Stat. § 947.01, based
on profane conduct that tends to cause or provoke a disturbance,
violates the constitutional right to free speech. And, because
29
No. 2015AP1610-CR
Breitzman does not raise a facial or as-applied challenge to the
disorderly conduct statute,27 we are confined to considering the
narrower issue of whether the law was so well settled that
counsel's performance was legally deficient. See State v.
Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) ("An
appellate court should decide cases on the narrowest possible
grounds."). In that regard, trial counsel was not ineffective
for not moving to dismiss the disorderly conduct charge, because
doing so would have required that there be a resolution of an
unsettled question of law. See Lemberger, 374 Wis. 2d 617, ¶18.
¶57 We recognize, however, that the use of profanity alone
is not enough to sustain a charge for disorderly conduct. A
charge for disorderly conduct has two elements: first, that the
defendant "engage[d] in violent, abusive, indecent, profane,
boisterous, unreasonably loud or otherwise disorderly conduct";
second, that the defendant's conduct "tends to cause or provoke
a disturbance." See Wis. Stat. § 947.01(1). Profanity alone
might satisfy the first element, but it does not likely satisfy
the second element. Thus, it is not profanity alone that is
being regulated by the statute.
¶58 We also note that the charge against Breitzman was
not just that she engaged in "profane conduct," but that she
"did engage in profane conduct, under circumstances in which
27
See supra ¶5, n.4.
30
No. 2015AP1610-CR
such conduct tended to cause a disturbance . . . ."28 To be
clear, the crime of disorderly conduct under Wis. Stat. § 947.01requires more than profane speech alone. See Cohen v.
California, 403 U.S. 15, 22 (1971) (holding that wearing a
jacket bearing the words "Fuck the Draft" did not disturb the
peace where the words were the only conduct, in part because
there was "no evidence that persons powerless to avoid
appellant's conduct did in fact object to it"). But, as is
clear from the testimony here, Breitzman was not charged with
disorderly conduct solely because she swore at her son in the
privacy of her home; rather she was charged and convicted of
disorderly conduct because her profane conduct was that which,
under the circumstances presented, tended to cause or provoke a
disturbance. See Werstein, 60 Wis. 2d at 673-74 ("[C]onvictions
for being 'otherwise disorderly' result[] from the
inappropriateness of specific conduct because of the
circumstances involved," namely where "demeanor could be deemed
abusive or disturbing in the eyes of reasonable persons").
¶59 Here, the jury heard evidence of other occasions where
Breitzman called J.K. a "fuck face," "retard," and "piece of
shit"——and on two of the five occasions charged, this profanity
was punctuated by physical abuse. Conviction on count one, for
28
Additionally, we note that the State could have charged
Breitzman with more than "profane conduct," as it is one of many
options under the statute. Had the State done so, Breitzman
acknowledged at oral argument that the constitutional question
here would not be in issue.
31
No. 2015AP1610-CR
physical abuse, was supported by testimony that Breitzman struck
J.K. on the side of the head when he was not sweeping "right or
fast enough," calling him a "piece of shit" and the "dog of the
house." Conviction on count two, also for physical abuse, was
supported by testimony that Breitzman came into J.K.'s room and
struck him in the face when he would not get out of bed, calling
him a "fuck face" and a "retard."
¶60 The jury also heard testimony from J.K.'s best friend
about the impact this had on J.K., who went from "always happy
and nice" to "more stressed out and tired and just more sad."29
A situation need not escalate to violence for the reasonable
person to determine that the profanity tended to cause or
provoke a disturbance.30 Simply stated, were this case about
profanity alone, isolated from the context and conduct out of
which the charge arose, and had Breitzman made a constitutional
challenge to the validity of the statute vis-à-vis profanity
alone, we might be confronted with the need to resolve a free
speech argument. But that is just not this case; rather
29
Additionally, J.K. testified that these interactions with
his mother made him feel worthless, often making him cry,
ultimately causing him to report this home situation to his
counselor at school and to the police.
30
"It is not necessary that an actual disturbance must have
been committed from the defendant's conduct. The law requires
only that the conduct be of the type that tends to cause or
provoke a disturbance under the circumstances as they then
existed. You must consider not only the nature of the conduct,
but also the circumstances surrounding that conduct. What is
proper under one set of circumstances may be improper under
other circumstances." See Wis JI——Criminal 1900 (2016).
32
No. 2015AP1610-CR
Breitzman's conduct, "because [of] the circumstances involved,"
could rightfully "be deemed abusive or disturbing in the eyes of
reasonable persons." Werstein, 60 Wis. 2d at 673-74.
¶61 In sum, Breitzman has failed to demonstrate that
counsel's performance was deficient because the law in this area
is unsettled. Additionally, Breitzman's conduct was more than
just profanity, and the law does not support the notion that,
because Breitzman engaged in profane conduct, she is to be
protected from prosecution regardless of the fact that the
circumstances tended to cause or provoke a disturbance. Thus,
her trial counsel's performance did not fall below the objective
standard of reasonableness.
B. Trial Counsel Was Not Deficient For Failing
To Present Opening Remarks Consistent With
Breitzman's Anticipated Testimony.
¶62 We consider second the issue of whether defense
counsel's theory of reasonable parental discipline at trial
constituted ineffective assistance of counsel in light of
Breitzman's denial that she struck J.K. on the two charged
occasions.
¶63 Breitzman argues that it was inconsistent to argue in
opening remarks that striking J.K. was reasonable parental
discipline where she planned to testify that she did not strike
J.K. on the two charged occasions, and that, but for this
inconsistency, the jury would have been presented with a more
straightforward credibility comparison. The State argues that
Breitzman's counsel's theory of reasonable parental discipline,
33
No. 2015AP1610-CR
as presented in the opening remarks, was not ineffective
assistance because it was short, vague, and struck a careful
balance between Breitzman's plan to deny that she struck J.K. on
the two charged occasions and trial counsel's reasonable
anticipation that the uncharged incident in the car would likely
arise during testimony; moreover, Breitzman agreed with this
strategy and any unfair prejudice was addressed by the circuit
court's jury instruction that attorney arguments are not
evidence.
¶64 We conclude that defense counsel's theory of
reasonable parental discipline, as presented in opening remarks,
was not deficient performance, and thus not ineffective
assistance of counsel, because it reflected trial counsel's
reasonable expectations, which were rationally based on
discussions with Breitzman, and it was part of a reasonable
trial strategy.
¶65 At the outset, we note that, for trial counsel's
performance to have been deficient, Breitzman would need to
overcome the strong presumption of reasonableness of her defense
counsel's trial strategy by demonstrating that counsel's
incorporation of the reasonable parental discipline defense was
irrational or based on caprice. Trial strategy is afforded the
presumption of constitutional adequacy. See, e.g., Balliette
336 Wis. 2d 358, ¶26; State v. Maloney, 2005 WI 74, ¶43, 281
Wis. 2d 595, 698 N.W.2d 583. "Reviewing courts should be
'highly deferential' to counsel's strategic decisions and make
'every effort . . . to eliminate the distorting effects of
34
No. 2015AP1610-CR
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's
perspective at the time.'" See Domke, 337 Wis. 2d 268, ¶36
(quoting Carter, 324 Wis. 2d 640, ¶22). "This court will not
second-guess a reasonable trial strategy, [unless] it was based
on an irrational trial tactic or based upon caprice rather than
upon judgment." Id., ¶49. In fact, where a lower court
determines that counsel had a reasonable trial strategy, the
strategy "is virtually unassailable in an ineffective assistance
of counsel analysis." State v. Maloney, 2004 WI App 141, ¶23,
275 Wis. 2d 557, 685 N.W.2d 620. Thus, we turn to the question
of whether trial counsel's defense theory of reasonable parental
discipline was an irrational trial tactic or based on caprice.
It was not.
¶66 The parties focus their arguments on defense counsel's
opening remarks, which discussed the jury instruction for
reasonable parental discipline and framed the issue as "whether
[Breitzman] is a criminal or just a struggling parent[.] I
believe the evidence will show that she is not a
criminal . . . ."
¶67 Trial counsel testified at the Machner hearing that he
pursued the reasonable parental discipline theory in part
because of his concern about the credibility battle that would
play out at trial. He also testified that he discussed the
reasonable parental discipline theory with Breitzman, and
Breitzman testified that she agreed to it. Trial counsel did
not specifically recall whether Breitzman had categorically
35
No. 2015AP1610-CR
denied striking J.K. on the two charged occasions, but did
recall that it was important to Breitzman to bring up the
uncharged incident in the car to explain J.K.'s level of
animosity toward his mother such that he would falsely accuse
her of abuse and neglect.31
¶68 Given this testimony, defense counsel's decision to
incorporate the theory of reasonable parental discipline in his
opening remarks was not ineffective assistance. First, "[i]n
light of the not uncommon practice of lawyers to argue
inconsistent theories, we cannot say that the decision [to do
so] deprive[s a defendant] of the right to constitutionally
effective assistance, irrespective of whether we or the trial
court view that strategy as the best." State v. Marks, 2010 WI
App 172, ¶17, 330 Wis. 2d 693, 794 N.W.2d 547; see also Brown v.
Dixon, 891 F.2d 490, 494–95 (4th Cir. 1989) (holding that it was
not ineffective assistance of counsel where the defense theory
was that "Brown either did not commit the murders or did so
while drunk" because "the use of inconsistent defenses was
objectively reasonable under prevailing professional norms").
¶69 Second, trial counsel's decision was based on a
discussion with Breitzman about her relationship with J.K. and
the evidence that she expected and wanted to come out at trial;
31
At the Machner hearing, defense counsel testified that
"[s]he also told me that she believed that [the car incident]
was part of the . . . animus [] he had against her to try to
create these other issues such as when he was injured lifting
dumbbells and claimed she had struck him, et cetera."
36
No. 2015AP1610-CR
therefore, it was not based on caprice. Nor was it irrational:
the record reflects that the State pled a number of other acts
in its criminal complaint, including the uncharged incident in
the car; that Breitzman in fact wanted this other act to come in
to establish J.K.'s motive to lie; and that Breitzman never
unequivocally told trial counsel that she intended to deny
striking J.K. on the two charged occasions.32 Thus, it was
rational for her trial counsel to formulate a strategy and argue
a theory of defense with the expectation that some other acts
would come out at trial. Such a strategy had to account for the
possibility that Breitzman's credibility would be undermined by
evidence of other acts, and giving the jury an alternate ground
for acquittal in the event that they had doubts about
Breitzman's credibility and questions about the other acts was a
reasonable means of accommodating such contingency.
¶70 Additionally, there are many aspects of a trial which
make its outcome uncertain and we cannot let our judgment of
trial strategy be clouded by the clarity of hindsight. See,
e.g., Domke, 337 Wis. 2d 268, ¶36 ("Reviewing courts
should . . . make every effort to eliminate the distorting
32
In this regard, we note that the circuit court found that
defense counsel's testimony at the Machner hearing was credible.
In light of Breitzman's bias, both from hindsight and as an
interested party, we cannot hold that such a finding was clearly
erroneous. See State v. Shata, 2015 WI 74, ¶31, 364 Wis. 2d 63,
868 N.W.2d 93 ("[T]his court will not exclude the circuit
court's articulated assessments of credibility and demeanor,
unless they are clearly erroneous.").
37
No. 2015AP1610-CR
effects of hindsight.") We have concluded here that defense
counsel's decision to argue the reasonable parental discipline
defense in his opening remarks was not ineffective based on the
record. We note that the record also reflects that Breitzman's
trial counsel adjusted his strategy based on the development of
evidence at trial: after Breitzman's testimony concluded, her
trial counsel adjusted course, successfully advocating for the
inclusion of reasonable parental discipline as a therapeutic
instruction for other acts and limiting his discussion of
reasonable parental discipline during closing argument to the
other acts.33 These adjustments were appropriate.
¶71 In sum, Breitzman has failed to demonstrate that her
trial counsel's performance was deficient because pursuing a
theory of reasonable parental discipline was rationally based on
counsel's discussions with Breitzman and his expectations for
what evidence would come out at trial. Additionally, when trial
33
After testimony concluded on day two, and before
testimony began on day three, the circuit court conferred with
the parties outside the presence of the jury regarding jury
instructions. The court expressed concern that there was not
enough evidence to give the reasonable parental discipline
instruction because Breitzman was denying striking J.K. on the
two charged occasions. The State agreed. Defense counsel
argued that the instruction was appropriate because the State
had introduced other acts, namely the uncharged incident in the
car, which entitled Breitzman to assert the reasonable parental
discipline defense. The court ultimately agreed to incorporate
part of the jury instruction for the reasonable parental
discipline defense, see Wis JI——Criminal 950 (2014), as a
therapeutic instruction responsive to other acts. See infra
¶78.
38
No. 2015AP1610-CR
did not proceed in accordance with counsel's expectations, he
adjusted course and the court's limiting instructions——discussed
below——appropriately addressed any potential juror confusion.
Thus, trial counsel's performance did not fall below the
objective standard of reasonableness.
C. Trial Counsel Was Not Deficient For Failing To Object To
Testimony Regarding Other Uncharged Conduct.
¶72 We consider third the related issue of whether trial
counsel's failure to object to testimony regarding other
uncharged conduct constituted ineffective assistance of counsel.
¶73 Breitzman argues that the failure to object to
testimony about acts other than those underlying the charges was
ineffective assistance because the testimony was inadmissible
"other acts" evidence under Wis. Stat. § 904.04 and, but for
admission, the jury would have been presented with a more
straightforward credibility comparison. The State argues that
the failure to object was not ineffective assistance because
allowing this testimony was a reasonable means of accomplishing
trial counsel's strategy to undermine J.K.'s credibility by
depicting him as a rebellious teenager who was making grandiose
allegations; moreover, Breitzman agreed with this strategy.
¶74 We conclude that trial counsel's failure to object to
testimony regarding uncharged conduct was not deficient
performance, and thus not ineffective assistance of counsel,
because declining to object was part of a reasonable trial
strategy.
39
No. 2015AP1610-CR
¶75 At the outset, we note that this is again a question
of trial strategy, and, as such, that Breitzman must overcome
the strong presumption of reasonableness afforded to trial
counsel's decisions regarding trial strategy; for trial
counsel's performance to have been deficient, Breitzman would
need to demonstrate that counsel's decision not to object to
other acts was inconsistent with a reasonable trial strategy,
that is, that it was irrational or based on caprice. As noted
above, trial strategy is afforded the presumption of
constitutional adequacy. See, e.g., Balliette 336 Wis. 2d 358,
¶26; Maloney, 281 Wis. 2d 595, ¶43. "Reviewing courts should be
highly deferential to counsel's strategic decisions and make
every effort 'to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective
at the time.'" See Domke, 337 Wis. 2d 268, ¶36 (quoting Carter,
324 Wis. 2d 640, ¶22). "This court will not second-guess a
reasonable trial strategy, [unless] it was based on an
irrational trial tactic or based upon caprice rather than upon
judgment." Id., ¶49. In fact, where a lower court determines
that counsel had a reasonable trial strategy, the strategy "is
virtually unassailable in an ineffective assistance of counsel
analysis." Maloney, 275 Wis. 2d 557, ¶23. Thus, we turn to the
question of whether trial counsel's failure to object to other-
acts evidence was an irrational trial tactic or based on
caprice. It was not.
40
No. 2015AP1610-CR
¶76 Here, the trial strategy was to demonstrate that J.K.
was making false and grandiose allegations against Breitzman.
As a part of this strategy, trial counsel did not object to
other acts involving slapping, failing to provide medical care,
and/or profanity, because he intended for that evidence to
undermine J.K.'s credibility and cast Breitzman as a single
parent doing the best she could with a rebellious teenager. In
other words, the testimony as to other acts was central to the
defense's strategy for bolstering Breitzman's credibility, and
its theory of reasonable parental discipline, because, for the
defense to be successful, the jury needed to understand the
context of the relationship between Breitzman and J.K. so as to
appropriately assess credibility and determine culpability.
Thus, failing to object to other acts testimony was not
deficient performance because it was rational in light of trial
counsel's strategy and theory.
¶77 In general, it can be quite effective for a defendant
to say 'I did this and I did that, but I did not do what the
State has charged me with,' because it tends to establish a
defendant's credibility. But, there are many aspects of a trial
which make its outcome uncertain and we cannot let our judgment
of trial strategy be clouded by the clarity of hindsight. See,
e.g., Domke, 337 Wis. 2d 268, ¶36 ("Reviewing courts
should . . . make every effort to eliminate the distorting
effects of hindsight."). Furthermore, Breitzman agreed to the
defense theory of reasonable parental discipline and "[a]n
accused cannot follow one course of strategy at the time of
41
No. 2015AP1610-CR
trial and if that turns out to be unsatisfactory complain [she]
should be discharged or have a new trial." Cross v. State, 45
Wis. 2d 593, 605, 173 N.W.2d 589 (1970). Thus, Breitzman cannot
now complain just because a strategy that was reasonable at the
outset turned out to be unsuccessful.
¶78 Additionally, the circuit court gave jury instructions
that limited any unfair prejudice that may have resulted from
the other acts testimony. With regard to other acts, the court
instructed as follows:
Evidence has been presented regarding other
conduct of the defendant for which the defendant is
not on trial. . . . If you find that this conduct did
occur, you should consider it only on the issues of
intent and 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.
The evidence was received by [sic] the issues of
intent, that is, whether the defendant acted with the
state of mind that is required for the offense
charged, and to prove context or background that is to
provide a more complete presentation of the evidence
related to the offense charged.
With regard to the uncharged incident in the car, the court
additionally instructed as follows:
As to [the] striking of [J.K.] with the back of
the hand in the car, discipline of a child is an
issue. The law allows a person responsible for the
child's welfare to use reasonable force to discipline
that child. Reasonable force is that force which a
reasonable person would believe is necessary.
Whether a reasonable person would have believed
that the amount of force used was necessary and not
42
No. 2015AP1610-CR
excessive must be determined from the standpoint of
the defendant at the time of the defendant's acts.
The standard is what a person of ordinary
intelligence and prudence would have believed in the
defendant's position under circumstances that existed
at the time of the alleged offense.
These limiting instructions were sufficient to address any
unfair prejudice that may have resulted from the other acts
testimony, and in fact bolstered Breitzman's defense regarding
reasonable parental discipline. See State v. Marinez, 2011 WI
12, ¶41, 331 Wis. 2d 568, 797 N.W.2d 399 ("We presume that
juries comply with properly given limiting and cautionary
instructions, and thus consider this an effective means to
reduce the risk of unfair prejudice to the party opposing
admission of other[-]acts evidence.").
¶79 In sum, Breitzman has failed to demonstrate that
counsel's performance was deficient because admission of other
acts testimony was central to a reasonable defense theory and
strategy. Additionally, any unfair prejudice was appropriately
addressed by limiting instructions from the court. Thus,
defense counsel's performance did not fall below the objective
standard of reasonableness.
D. We Need Not Consider Prejudice Because
Trial Counsel Was Not Deficient.
¶80 To succeed on an ineffective assistance of counsel
claim, a petitioner must establish both that counsel's
performance was deficient and that the deficient performance was
prejudicial. See Strickland, 466 U.S. at 687.
43
No. 2015AP1610-CR
¶81 Where the petitioner fails to satisfy either prong of
the ineffective assistance of counsel analysis we need not
consider the other. See Strickland, 466 U.S. at 697. Because
we conclude that Breitzman has not established that trial
counsel's performance was deficient, we need not address
whether, in the context of ineffective assistance of counsel,
the alleged errors individually or cumulatively prejudiced
Breitzman, and we decline to do so.
IV. CONCLUSION
¶82 On petition to this court, Breitzman sought review of
the denial of her ineffective assistance of counsel claim. In
this regard, Breitzman's claim did not raise a facial or as-
applied challenge to the disorderly conduct statute, Wis. Stat.
§ 947.01. A facial challenge would have argued that "profane
conduct," as listed in § 947.01(1), is not actionable as a crime
because profanity is protected speech. An as-applied challenge
would have argued that Breitzman's profane conduct in this case
was not actionable as a crime because it was protected speech.
Breitzman argued neither. Breitzman only argued that her trial
counsel rendered ineffective assistance. Thus, while this case
touched on an interesting issue of free speech law, we confined
our analysis to the ineffective assistance of counsel issue
presented, briefed, and argued by the parties.
¶83 The ineffective assistance of counsel issue raised
required consideration of whether counsel was ineffective for
any of the following reasons: (1) failing to move to dismiss the
disorderly conduct charge on the basis that is violated
44
No. 2015AP1610-CR
Breitzman's constitutional right to free speech; (2) failing to
present opening remarks consistent with Breitzman's anticipated
testimony; and (3) failing to object to testimony regarding
other uncharged conduct.
¶84 As to the first, we conclude that trial counsel's
failure to move to dismiss the disorderly conduct charge on the
basis that it violated Breitzman's constitutional right to free
speech was not deficient performance, and thus not ineffective
assistance of counsel, because whether profane conduct that
tends to cause or provoke a disturbance is protected as free
speech is unsettled law.
¶85 As to the second, we conclude that trial counsel's
theory of reasonable parental discipline, as presented in
opening remarks, was not deficient performance, and thus not
ineffective assistance of counsel, because it reflected trial
counsel's reasonable expectations, which were rationally based
on discussions with Breitzman, and it was part of a reasonable
trial strategy.
¶86 As to the third, we conclude that trial counsel's
failure to object to testimony regarding uncharged conduct was
not deficient performance, and thus not ineffective assistance
of counsel, because declining to object was part of a reasonable
trial strategy.
¶87 Because we conclude that trial counsel's performance
was not deficient, we need not address whether, in the context
of ineffective assistance of counsel, there was prejudice to
Breitzman, and we decline to do so.
45
No. 2015AP1610-CR
¶88 Thus, we affirm the decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
46
No. 2015AP1610-CR.ssa
¶89 SHIRLEY S. ABRAHAMSON, J. (concurring). The court's
opinion is a very narrow decision limited to the facts of the
case and the issues the defendant raised.
¶90 This case does not decide a facial or as-applied
challenge to the disorderly conduct statute, Wis. Stat.
§ 947.01. Breitzman made no such challenge.
¶91 Additionally, in this court, Breitzman does not
challenge the sufficiency of the evidence supporting the
conviction; Breitzman accepts the jury's finding that her
profane conduct tended to cause or provoke a disturbance within
the meaning of the statute.
¶92 The claim in the instant case is ineffective
assistance of counsel. Breitzman claims that trial counsel was
ineffective because counsel failed to raise a First Amendment
defense to Breitzman's disorderly conduct charge.
¶93 The majority opinion holds against Breitzman on this
claim, relying on the "unsettled law" rubric. The majority
opinion asserts that defense counsel was not ineffective because
"whether profane conduct that tends to cause or provoke a
disturbance is protected as free speech is unsettled law."
Majority op., ¶7.
¶94 I write to make two points: (1) Nothing in the
majority opinion should be read as commenting on the merits of
the underlying First Amendment defense; and (2) The "unsettled
law" doctrine guiding the determination of ineffective
assistance of counsel is not sufficiently protective of a
1
No. 2015AP1610-CR.ssa
defendant's constitutional and statutory rights to effective
counsel.
¶95 The bench and bar should be working for a better
standard for determining the adequacy of representation.
¶96 I write further on a different topic, namely, my
practice in participating or not participating in a case
depending on my participation in various aspects of the
decision-making process. I write on this topic in the instant
case in which I am participating because a majority of the court
insists that a justice who does not participate in a case merely
state on the court record the fact of non-participation or
withdrawal from participation and not state grounds for non-
participation.
¶97 Lawyers and litigants should know that it is my
practice not to participate in a decision when I do not fully
participate in every stage of the decision-making process.
Thus, for example, if I were present at oral argument but did
not participate in the decision conference, I would be shown as
not participating in the decision.
¶98 For the reasons set forth, I write separately.
2
No. 2015AP1610-CR.ssa
1