State v. Gary R. Schumacher ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing.
If published, the official version will
appear in the bound volume of the Official
May 7, 2020 Reports.
Sheila T. Reiff A party may file with the Supreme Court
Clerk of Court of Appeals a petition to review an adverse decision by
the Court of Appeals. See WIS. STAT. §
808.10 and RULE 809.62.
Appeal No. 2019AP1261-CR Cir. Ct. No. 2017CF132
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
GARY R. SCHUMACHER,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Monroe County: TODD L. ZIEGLER, Judge. Affirmed.
¶1 KLOPPENBURG, J.1 Gary Schumacher was convicted, upon a jury
verdict, of operating a motor vehicle with a prohibited alcohol content (OWI-
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1261-CR
PAC) in connection with an accident between Schumacher and another motor
vehicle.2 Schumacher filed a motion for postconviction relief, alleging that his
trial counsel was ineffective for failing to adequately cross-examine the State’s
expert witness who had calculated Schumacher’s blood alcohol content (BAC) at
the time of the accident, approximately two hours before Schumacher’s blood was
drawn. The circuit court held a Machner3 hearing and denied the motion, ruling
that Schumacher had failed to meet his burden of showing either that trial counsel
performed deficiently or that counsel’s performance prejudiced Schumacher.
Schumacher appeals. I conclude that Schumacher’s ineffective assistance claim
fails because he has not met his burden to show deficient performance. Therefore,
I affirm.
BACKGROUND
¶2 The following facts are undisputed and, except for procedural facts,
taken from the testimony at trial.
¶3 At approximately 8:45 p.m. on February 7, 2017, Schumacher was
involved in a two-vehicle accident in Sheldon, Monroe County. Schumacher
drove away from the scene of the accident to his residence a short distance away.
Approximately forty-five minutes later, Sergeant Ryan Lee of the Monroe County
Sheriff’s Office arrived at the scene of the accident. Lee talked to the occupants of
the second vehicle and then went to Schumacher’s residence and talked with
Schumacher.
2
Schumacher was also convicted of a hit and run offense and three non-criminal traffic
violations, none of which are at issue in this appeal.
3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
2
No. 2019AP1261-CR
¶4 Schumacher told Lee that he had consumed one or two beers before
the accident and that he had also consumed alcohol after the accident, but he did
not say how much or what kind, and Lee saw no evidence of open intoxicants in
the residence. Lee ultimately arrested Schumacher for operating a motor vehicle
while intoxicated and took him to the hospital, where Schumacher’s blood was
drawn at 10:56 p.m. Schumacher’s BAC at the time his blood was drawn was
0.171 grams per 100 ml of blood, above the legal limit applicable to him of 0.08.
¶5 The State charged Schumacher with operating a motor vehicle with a
prohibited alcohol concentration of 0.08 or more, and Schumacher, represented by
counsel, proceeded to a jury trial. Among those who testified at trial were the
State’s expert witness Kristin Drewieck, a chemist with the Wisconsin State
Laboratory of Hygiene, and Schumacher. Pertinent details of Drewieck’s
testimony will be set forth in the discussion below. Summarizing here, Drewieck
provided three estimates of Schumacher’s BAC at the time of the accident, based
on three different sets of assumptions.
¶6 The first estimate: Before Schumacher testified, Drewieck testified
as to her estimate that Schumacher’s BAC at the time of the accident was between
0.190 and 0.210, using a process called “retrograde extrapolation” to extrapolate
from the result of the test when the blood was drawn at 10:56 p.m., 0.171, to the
time of the accident approximately two hours earlier. She calculated this estimate
using an average rate of alcohol elimination and assumptions that the blood was
drawn from a man who weighed 200 pounds and that the man had consumed no
alcohol between the time of the accident and the time the blood was drawn.
¶7 After Drewieck testified, Schumacher testified that he consumed
three Pabst Blue Ribbon beers between 6:00 and 7:30 before the accident, and then
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No. 2019AP1261-CR
after the accident he consumed three or four, or maybe seven, beers and two shots
of whiskey “right before” Lee arrived. Schumacher testified that he threw the beer
cans in the sink and pointed to the sink when he told Lee he had consumed more
alcohol since the accident.
¶8 The second estimate: The State called Drewieck to testify as a
rebuttal witness, where, again using retrograde extrapolation, Drewieck estimated
that Schumacher’s BAC at the time of the accident was between 0.08 and 0.11,
based on assumptions that the man from whom the blood was drawn at 10:56
weighed 200 pounds and had consumed three to four beers and two shots of
whiskey between 8:45, the time of the accident, and 9:30, when Officer Lee
arrived at Schumacher’s residence.
¶9 The third estimate: Assuming that Schumacher had consumed only
the beers and not the shots between 8:45 and 9:30, Drewieck estimated that
Schumacher’s BAC at the time of the accident was between 0.12 and 0.15.
¶10 The jury found Schumacher guilty of OWI-PAC. Schumacher, by
newly appointed counsel, filed a motion for postconviction relief, alleging that
trial counsel had provided constitutionally ineffective assistance for failing to
cross-examine Drewieck regarding the reliability of retrograde extrapolation and
the assumptions she used to perform her calculations; in support of his motion
Schumacher cited and provided a 1985 article on the reliability of retrograde
extrapolation to calculate BAC. The circuit court held a Machner hearing at
which trial counsel testified. Pertinent details of trial counsel’s testimony will be
set forth in the discussion below. As stated, the court denied the motion, ruling
that Schumacher had failed to meet his burden of showing either that trial counsel
4
No. 2019AP1261-CR
performed deficiently or that his performance prejudiced Schumacher.
Schumacher appeals.
DISCUSSION
¶11 In well-presented briefing, the parties dispute whether Schumacher
has met his burden to show that his trial counsel provided constitutionally
ineffective assistance in his cross-examination of Drewieck. I first summarize the
applicable standard of review and legal principles, next review additional pertinent
background, and then explain why I conclude that Schumacher’s ineffective
assistance of counsel claim fails.
I. Applicable Standard of Review and Applicable Legal Principles
¶12 A defendant claiming ineffective assistance of counsel must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Whether a defendant received ineffective assistance of counsel is a mixed
question of law and fact.” State v. Maday, 2017 WI 28, ¶25, 374 Wis. 2d 164, 892
N.W.2d 611. The circuit court’s findings of fact will not be disturbed unless those
findings are clearly erroneous. Id. “‘[T]he circumstances of the case and …
counsel’s conduct and strategy’ are considered findings of fact.” Id. (quoted
source omitted). However, whether those facts constitute deficient performance
and whether such deficient performance was prejudicial are questions of law that
we review independently. See State v. Tulley, 2001 WI App 236, ¶5, 248 Wis. 2d
505, 635 N.W.2d 807. “[T]here is no reason for a court deciding an ineffective
assistance claim … to address both components of the inquiry if the defendant
makes an insufficient showing on one.” Strickland, 466 U.S. at 697. I decide this
appeal based on the deficient performance prong.
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No. 2019AP1261-CR
¶13 Counsel’s performance is “constitutionally deficient if it falls below
an objective standard of reasonableness.” State v. Thiel, 2003 WI 111, ¶19, 264
Wis. 2d 571, 665 N.W.2d 305. “The question is whether an attorney’s
representation amounted to incompetence under ‘prevailing professional norms,’
not whether it deviated from best practices or most common custom.” Harrington
v. Richter, 562 U.S. 86, 105 (2011) (citation omitted). In other words,
professionally competent assistance encompasses a “wide range” of conduct, and a
reviewing court starts with the presumption that counsel’s assistance fell within
that wide range. Strickland, 466 U.S. at 689. “A fair assessment of attorney
performance requires that every effort be made 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.” Id. A defendant’s
burden is to show that counsel “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. at 687.
II. Additional Pertinent Background
¶14 I now present additional pertinent background comprising the details
of Drewieck’s testimony and Schumacher’s cross-examination at the trial, trial
counsel’s testimony at the Machner hearing, and the circuit court’s ruling.
A. Drewieck’s Testimony and Counsel’s Cross-Examination at Trial
1. Drewieck’s Testimony and Counsel’s Cross-Examination Before Schumacher
Testified
¶15 In her initial testimony, Drewieck testified on direct examination as
to her training and experience, and the procedures and verification used in
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No. 2019AP1261-CR
processing Schumacher’s blood sample. She testified that the BAC of
Schumacher’s blood sample was 0.171.
¶16 On cross-examination, Schumacher’s trial counsel asked, “You don’t
know what his BAC was at 8:45 p.m. [the time of the accident], do you?”
Drewieck responded, “That’s correct. I can make an estimate, but, correct, I do
not know.”
¶17 On redirect, the State asked Drewieck why the BAC was not 0.171
at 8:45. Drewieck responded,
There [are] two processes that are involved in this
type of scenario. The first is that between 8:45 p.m. and
10:56 p.m. any alcohol consumed prior to 8:45 is being
removed, eliminated by the body.
So even if a person continues to drink alcohol, the
process of elimination starts as soon as you have any
alcohol in your bloodstream. So that we have two hours—
approximately two hours of time there where the body is
removing some of the alcohol that was consumed, okay?
The other process that needs to be accounted for is
absorption; if there is still absorption that is ongoing in the
time between 8:45 and 10:56 p.m.
¶18 The prosecutor asked whether Drewieck was able to calculate what
the BAC would have been at the earlier time, knowing what the BAC was two
hours later. Drewieck responded,
I can make an estimate, but the estimate I make is
only as good as the information that goes into the estimate
so it depends on what kind of information we have
available….
I would need to know … as much as possible, what
the drinking consumption was like; was there a lot of
drinking between 8:30 and 8:45; was there any continuing
consumption between 8:45 and 10:56; what—the specific
individual we’re talking about, are they male—in this case,
obviously—what their weight is. Food potentially could
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No. 2019AP1261-CR
have an impact, if they had a full stomach at the time of
consumption. Those are the big things.
¶19 The prosecutor asked Drewieck to calculate the BAC at 8:45 p.m.
for a person who weighed 200 pounds and consumed no additional alcohol
between 8:45, the time of the accident, and 10:56, when the blood sample showing
a BAC of .171 was taken. Drewieck responded, “I can give you an estimate … I
would estimate that the alcohol concentration would be approximately 0.190 to
0.210.”
¶20 Asked by the prosecutor to explain her calculations, Drewieck
testified:
All I did for this calculation was evaluate how much
alcohol had been removed from the body during that
intervening two-hour period, because I was told, assume
no, you know, continuing absorption, no continuing
consumption.
So basically there’s a range of elimination. The
vast majority of people would fall within that range.
Depending on how frequently a person consumes alcohol,
if someone is a teetotaler and consumes alcohol very rarely,
then their body eliminates it much more slowly. A chronic
consumer, even an alcoholic, can eliminate alcohol pretty
quickly because their body has gotten more used to it….
For the purposes of these calculations I use kind of
an average in the middle. I certainly can do a range … but
in this case, I used an average elimination rate, which is
supported by scientific literature, the studies that have been
done that I talked about earlier.
¶21 Schumacher’s trial counsel asked no further questions.
2. Drewieck’s Rebuttal Testimony and Counsel’s Cross-Examination After
Schumacher Testified
¶22 The prosecutor called Drewieck as a rebuttal witness and asked her
if her calculation of an estimate of Schumacher’s BAC at 8:45 p.m. would change
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No. 2019AP1261-CR
based on Schumacher’s testimony of his alcohol consumption between the time of
the accident and the time his blood sample was taken. Drewieck responded that it
would, “Because under those circumstances, then, we need to basically subtract
from my previous number the alcohol that was consumed after the [accident]
because obviously if it’s consumed after the [accident] it doesn’t affect what their
BAC was at the time of [the accident].” She explained that she could make “an
estimate” based on Schumacher’s testimony regarding his alcohol intake after the
accident by starting with the known BAC at the time of the blood draw and then
“accounting for the amount of alcohol that was consumed before the blood was
drawn but after the [accident].” Drewieck further explained that the new estimates
she could calculate would take into account the effect that the drinks consumed
after the accident would have on the test result, because the alcohol consumed
after the accident cannot be “count[ed] against the person.”
¶23 Drewieck calculated the new estimate and testified that, in doing so,
she assumed that the subject of her estimate was a 200-pound man who was
driving a vehicle at 8:45 p.m. and had his blood drawn at 10:56 p.m. showing a
BAC of 0.171, and who between 8:45 p.m. and 9:30 p.m. drank three to four Pabst
Blue Ribbon beers and two shots of whiskey. She further explained that she used
“a standard alcohol concentration for a beer of 4% and … a standard 100 proof
one ounce for each shot, okay, and the beer is 12-ounce cans.” Drewieck testified
that, based on these assumptions, she “would estimate … the blood alcohol
concentration at the time of [the accident] would be somewhere between 0.08 and
0.11.”
¶24 Asked by the prosecutor to calculate an estimate if only the beer and
no whiskey had been consumed, Drewieck did so and testified that, “If the two
shots were not consumed and all we’re subtracting from the blood alcohol
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No. 2019AP1261-CR
concentration is what the three to four beers would contribute, I would estimate
that the blood alcohol concentration at the time of [the accident] would be
approximately 0.12 to 0.15, with the same assumptions that I stated earlier.”
¶25 In response to further questioning by the prosecutor, Drewieck
testified that it would take “12 to 13 [standard] drinks for a 200-pound male to
reach 0.171” between 6:30 p.m., approximately when Schumacher testified he
drank three beers before the accident, and 10:56 p.m., when his blood was drawn.
¶26 Drewieck testified that her BAC calculations were “just an estimate.
The solid number that we have is the blood alcohol concentration that was
reported on the sample that was tested in our laboratory.” The prosecutor asked,
“Is it fair to say that your calculations are only as good as the information is that is
put into those calculations?” Drewieck responded, “Absolutely.” Drewieck
concluded her direct examination on rebuttal by testifying,
[Retrograde extrapolation is] widely used to
evaluate drinking situations like this. As I’ve stated all
along, and you [the prosecutor] said yourself, the
calculation, the estimate is only as good as the information
that goes into it, and it’s absolutely nowhere near as
reliable and as solid as the test result itself.
But this type of calculation is based on scientific
principles of absorption and elimination and how alcohol
spreads throughout your body. So it’s based on science.
Depends on how good the information is that I am given.
¶27 On cross-examination, Schumacher’s trial counsel asked Drewieck
about the different factors that go into the calculation, and she responded, “There
are lots of factors that go into the calculations like these.” Counsel asked
Drewieck whether it would make a difference if any of the drinks consumed were
a twenty-ounce “tall boy” rather than a twelve-ounce can, and she responded, “that
would certainly make a difference,” as would changing the number of beers
10
No. 2019AP1261-CR
consumed from three or four to a higher number like seven. Counsel asked
Drewieck how she arrived at the standard alcohol concentration of 4% for one
beer, and she responded, “It’s just the number that we use in doing these types of
calculations. Certainly, beers are higher; some beers are lower. I can use a
different number … I just did not know what Pabst Blue Ribbon was offhand.”
Counsel asked a similar question about the use of 100 proof for the whiskey, and
she responded that that was also just a number, arrived at by “consider[ing] a
standard drink [as] one ounce of 100 proof or one and a quarter ounces of 80
proof” or, in other words, “a perfectly poured shot.”
B. Trial Counsel’s Testimony at the Machner Hearing
¶28 At the Machner hearing, Schumacher’s trial counsel acknowledged
that the key element of the OWI-PAC offense at trial was Schumacher’s BAC at
the time of the accident. He testified that he anticipated the expert using
retrograde extrapolation to calculate Schumacher’s BAC at the time of the
accident; that he was familiar with the retrograde extrapolation process, with the
criticisms of its use, and with the variables used in the calculations; that he had
reviewed books and articles on retrograde extrapolation; that he had consulted
with his colleagues in the public defender’s office about the expert’s use of the
process; and that he had tried unsuccessfully to speak to the expert before trial.
¶29 Counsel testified that, when Drewieck initially testified, counsel did
not on cross-examination ask Drewieck about the BAC calculation because,
I thought the expert had actually done a pretty good
job herself of qualifying how she had come to the
conclusions in … her testimony. It was … the fact that she
had brought up that there were a number of variables, she
was making guesses. So I didn’t want to beat a dead horse.
I thought it would be apparent to the jury.
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No. 2019AP1261-CR
¶30 Counsel further testified,
I believe [Drewieck] had actually addressed why
the calculation she was making [was] pure conjecture [and]
if I went up and doubled down on the things that she
already said, that I didn’t think that would come across well
… there was nothing for me to—anything new for me to
elicit, and I really just thought she went over the issues
herself.
¶31 Counsel testified that he asked Drewieck on cross-examination about
the effect on the calculations of the size and alcohol content of the drinks
Schumacher consumed, but that he did not ask her about the effect of any food
consumption by Schumacher or Schumacher’s rate of alcohol elimination. He
testified that he did not ask Drewieck about these variables because,
I think the single factor that I was keyed in on is it
was very late; the trial had gone on for a long time. And,
being honest, I don’t think it looked like the jury was
paying attention at all at that point … I figured I had maybe
a few questions that they would pay attention to, so I just
tried to focus on the things that I thought someone in the
jury would know, like, you know, that’s a really low
assumption for an alcohol content for a beer or that a shot
was poured perfectly or in that amount, things like that. I
figure I had a really limited window to actually make an
impression on the jury.
¶32 Counsel testified that he agreed in theory that challenging the expert
on cross-examination was important, but that at the trial, he believed that the
expert
seemed very up front about the … issues themselves
regarding retrograde [extrapolation] … I thought she did a
good job of raising the issues herself. And while I likely
planned to go more in depth, by the time I got to cross, like
I said, I just really felt like I had a really limited window to
make an impression on the jury … I was just afraid they
wouldn’t pay attention at all.
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No. 2019AP1261-CR
C. Circuit Court’s Ruling
¶33 The circuit court concluded that Schumacher had not met his burden
to show deficient performance. The court found that the record supported trial
counsel’s belief that Drewieck made “a fair amount of qualifications or indicated
limitations as to her estimates as to what Mr. Schumacher’s blood alcohol level
would be…. And [counsel] didn’t feel it was necessary to point out or to do that
further in front of the jury in concern of potentially alienating the jury.” The court
found that, after Drewieck made additional calculations based on Schumacher’s
testimony, counsel on cross focused on a few questions about the issues that the
jury would have “understood more … rather than, again, potentially alienating the
jury.” The court also found that counsel’s questions on cross-examination
informed the jury that there was no “stipulation to the expert’s calculations.”
¶34 The circuit court found that counsel “clearly understood the issue of
retrograde extrapolation before the trial started. He addressed it.” The court
found that, while other attorneys may have engaged in more or less cross-
examination, counsel here “had … strategic reasons as to why he handled the issue
the way he handled it.” The court concluded that it did not “see anything that was
outside the professional norms for a defense attorney in an OWI case … I do
believe that [counsel’s] actions were within the professional norms.”
¶35 The circuit court also concluded that Schumacher failed to meet his
burden to show prejudice.
III. Analysis
¶36 Schumacher argues that his trial counsel provided deficient
performance by inadequately cross-examining Drewieck regarding the reliability
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No. 2019AP1261-CR
of retrograde extrapolation and the assumptions she used to calculate
Schumacher’s BAC at the time of the accident. As shown above, and as the State
argues in response, the record refutes Schumacher’s argument.
¶37 I first summarize the additional background provided above.
Through counsel’s cross-examination of Drewieck the first time she testified,
counsel elicited testimony that the BAC reported at the time of the blood draw was
not Schumacher’s BAC at the time of the accident two hours earlier, and that
Drewieck could not know, and could only estimate, Schumacher’s BAC at the
time of the accident. On redirect examination, Drewieck explained that her
estimate was only as good as the information that went into the estimate and, thus,
depended on the information that was available. She then calculated an estimate
based only on a 200-pound male who eliminated alcohol at an average rate and
had a BAC of 0.171 two hours after driving. Counsel did not question Drewieck
further at that point because he believed Drewieck had herself qualified her
calculations and sufficiently indicated to the jury that she was making guesses.
¶38 When Drewieck on rebuttal calculated estimates of Schumacher’s
BAC at the time of the accident, based on the alcohol Schumacher testified he
consumed after the accident, Drewieck again testified that her calculations were
just estimates that were only as good as the information going into them and were
“nowhere near as reliable and as solid” as the test result. After Drewieck
calculated two additional BAC estimates based on Schumacher’s testimony about
his alcohol consumption, Schumacher’s counsel questioned Drewieck on cross-
examination regarding her reliance on the variables supporting those two
estimates. Counsel limited his cross-examination to questioning the accuracy of
the key variables that Drewieck relied on, and that were most likely to be
understood by the jury (number, type, and alcohol content of the drinks
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No. 2019AP1261-CR
Schumacher consumed after the accident), in order to keep what he perceived as
the jury’s waning attention and because he believed, again, that Drewieck had
herself identified the limits of her calculations based on those variables.
¶39 I now explain why the record refutes Schumacher’s deficient
performance argument. When Drewieck testified, both initially and on rebuttal,
Schumacher’s counsel made, as the circuit court found, a strategic decision not to
engage in further questioning regarding the reliability of retrograde extrapolation,
because doing so would elicit repetitive answers at the risk of alienating the jury.
In addition, a prudent attorney could reasonably decide that further questioning on
the same points already conceded by Drewieck would also risk Drewieck refining
her answers so as to soften the degree of guesswork and qualification to which she
had already admitted. Given that Drewieck had herself effectively acknowledged
the limits of retrograde extrapolation, both initially and on rebuttal, trial counsel’s
strategic decision not to further question Drewieck regarding the reliability of
retrograde extrapolation was both reasonable and well within professional norms.
¶40 Schumacher does not identify what testimony regarding the limits of
retrograde extrapolation further questioning would have elicited. Schumacher
points to the “minimal data” that made Drewieck’s first estimate unreliable, but
the record shows that Drewieck’s testimony offered on direct and redirect and in
response to trial counsel’s cross-examination so strongly qualified her estimate
that the State called her back in rebuttal in an attempt to fill in the gaps she had
initially identified. Schumacher acknowledges that Drewieck’s subsequent
estimates provided on rebuttal were based on additional data derived from
Schumacher’s testimony, but he asserts that certain critical data such as food
consumption and “whether Schumacher was in the absorption or elimination
stage” were still missing. However, at trial counsel did challenge the accuracy of
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No. 2019AP1261-CR
the variables that Drewieck used, and he did so in a way that would focus the jury,
whose attention he believed was waning, on variables that the jury would readily
digest. Schumacher’s assertion that his trial counsel “did not adequately cross-
examine [Drewieck] regarding the accuracy of the assumptions she was relying on
in making her calculations” is belied by the record.
¶41 The circuit court found that counsel made the strategic decision to
focus on that which the jury would most readily understand and pay attention to.
Counsel’s cross-examination focused the jury on the deficiencies most directly
associated with Drewieck’s new estimates, and his strategic decision to do so was
therefore both reasonable and within professional norms.
¶42 Schumacher analogizes this case to State v. Zimmerman, 2003 WI
App 196, 266 Wis. 2d 1003, 669 N.W.2d 762. In that case, a DNA expert’s
testimony suggested that DNA results from samples taken from the scene of a
homicide were inconclusive, when in fact the test results excluded the defendant
as a source of the DNA. Id., ¶40. This court ruled that “[c]ounsel’s failure to
challenge [the expert’s] testimony with this data had the effect of essentially
stipulating that the evidence was inconclusive,” and was therefore deficient
performance. Id. Here, however, Schumacher’s trial counsel did challenge
Drewieck’s testimony, regarding both the unreliability of retrograde extrapolation
generally and the inaccuracy of certain of the significant variables Drewieck
specifically used in this case. Here, the circuit court found that counsel’s conduct
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No. 2019AP1261-CR
did not amount to a stipulation to Drewieck’s calculations, and the record
reviewed above supports that finding.4
¶43 Finally, Schumacher also asserts that trial counsel fell below the
standard of an ordinarily prudent lawyer by failing “to present evidence that
experts in the field question the reliability of retrograde extrapolation,” citing
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (“Vigorous
cross-examination, presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means of attacking shaky
but admissible evidence.”). I do not reach this argument because Schumacher
failed to raise it in his postconviction motion in the circuit court. See Schill v.
Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 2d 572, 786
N.W.2d 177 (explaining that issues not raised in the circuit court are forfeited, and
supporting the proposition that appellate courts generally do not address forfeited
issues); Schwittay v. Sheboygan Falls Mut. Ins. Co., 2001 WI App 140, ¶16 n.3,
246 Wis. 2d 385, 630 N.W.2d 772 (stating that “[a] party must raise an issue with
sufficient prominence such that the [circuit] court understands that it is called upon
to make a ruling”); Schonscheck v. Paccar, Inc., 2003 WI App 79, ¶11, 261
Wis. 2d 769, 661 N.W.2d 476 (“A fundamental appellate precept is that we ‘will
not … blindside [circuit] courts with reversals based on theories which did not
originate in their forum.’” (quoting State v. Rogers, 196 Wis. 2d 817, 827, 539
N.W.2d 897 (Ct. App. 1995)).
4
Schumacher also analogizes this case to State v. Jeannie M.P., 2005 WI App 183, 286
Wis. 2d 721, 703 N.W.2d 694. In that case, the circuit court found that trial counsel was deficient
in “fail[ing] to make any effort whatsoever to impeach [a witness’s] testimony corroborating
[evidence against the defendant].” Id., ¶16. Again, however, here Schumacher’s trial counsel did
make an effort to cast doubt on Drewieck’s expert testimony.
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No. 2019AP1261-CR
¶44 In sum, Schumacher’s argument that trial counsel was deficient for
not adequately cross-examining Drewieck regarding the reliability of retrograde
extrapolation and the accuracy of the assumptions Drewieck used in her
calculations fails.
CONCLUSION
¶45 For the reasons stated, Schumacher’s ineffective assistance of trial
counsel claim fails because he has not met his burden to show that counsel
performed deficiently. Therefore, I affirm.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
18