State v. Jeffrey L. Hineman

2023 WI 1SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP226-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Jeffrey L. Hineman,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 400 Wis. 2d 274,968 N.W.2d 867(2021 – unpublished)
OPINION FILED: January 10, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 8, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Mark F. Nielsen
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion for a unanimous
Court. KAROFSKY, J., filed a concurring opinion, in which
REBECCA GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Sarah L. Burgundy, assistant attorney general, with
whom on the briefs was Joshua L. Kaul, attorney general. There
was an oral argument by Sarah L. Burgundy, assistant attorney
general.
For the defendant-appellant, there was a brief filed by
Frances Reynolds Colbert, assistant state public defender. There
was an oral argument by Frances Reynolds Colbert, assistant
state public defender.
An amicus curiae brief was filed by Robert R. Henak, Ellen
Henak, and Henak Law Office, S.C., for the Wisconsin Association
of Criminal Defense Lawyers.
2023 WI 1NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP226-CR
(L.C. No. 2015CF1159)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. JAN 10, 2023
Jeffrey L. Hineman, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
ZIEGLER, C.J., delivered the majority opinion for a unanimous
Court. KAROFSKY, J., filed a concurring opinion, in which
REBECCA GRASSL BRADLEY, J., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of
an unpublished decision of the court of appeals, State v.
Hineman, No. 2020AP226-CR, unpublished slip op. (Wis. Ct. App.
Nov. 24, 2021) (per curiam), reversing the Racine County circuit
court's1 judgment of conviction against Jeffrey Hineman for
first-degree child sexual assault, S.J.S., and order denying
Hineman's motion for postconviction relief. We reverse.
¶2 Hineman argues that he is entitled to a new trial
because the State suppressed evidence favorable to his defense
1 The Honorable Mark F. Nielsen presided.
No. 2020AP226-CR
in violation of his due process rights under Brady v. Maryland,
373 U.S. 83 (1963). According to Hineman, the State failed to
disclose a report from Child Protective Services ("CPS") which
contained "material exculpatory impeachment evidence that went
to an issue at the heart of the case." He argues the circuit
court erred in denying his motion for postconviction relief and
that the court of appeals was correct to reverse that decision.
Hineman also argues two alternative grounds for affirming the
court of appeals: "he was denied effective assistance of
counsel," and he "is entitled to a new trial[] and an in camera
review of [S.J.S.'s] treatment records[] in the interests of
justice."
¶3 We conclude that Hineman is not entitled to
postconviction relief. The State did not violate Hineman's due
process rights by failing to disclose the CPS report because the
report was not material. There is no reasonable probability of
a different result if the State had disclosed the CPS report
because Hineman had access to a police report containing the
same information. Hineman's four ineffective assistance of
counsel claims also fail. He was not prejudiced by trial
counsel's failure to request the subject report, and the other
claims fail because counsel's performance was not deficient.
Finally, we decline to exercise our discretion to grant Hineman
a new trial in the interest of justice because there were no
errors at trial that prevented the real controversy from being
tried. The circuit court was correct to deny Hineman's motion
4
No. 2020AP226-CR
for postconviction relief. We therefore reverse the court of
appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 Hineman was in a romantic relationship with S.J.S.'s
mother, S.S., since shortly before S.J.S. was born in 2008 and
until June 2009. Though Hineman is not S.J.S.'s biological
father, he continued to remain in contact with S.J.S. until S.S.
and S.J.S. moved away in September 2009. S.S. eventually lost
custody of S.J.S., and S.J.S. moved in with his biological
father, F.S. In 2013, Hineman contacted M.S., S.J.S.'s
grandmother and F.S.'s mother, requesting to reestablish contact
with S.J.S. because Hineman "cared for [S.J.S.] and wanted to be
a part of [his] life and family." M.S. and F.S. both agreed,
after which Hineman had regular contact with S.J.S. Hineman
would spend time with S.J.S. at F.S.'s home, buy gifts for
S.J.S, and take him out for activities such as shopping or going
to the park.
¶5 On March 12, 2015, CPS received a mandatory report
from a therapist S.J.S. was seeing at the time.2 According to
the report, S.J.S. had been seeing the therapist to address
behavioral issues such as "pulling his pants down in class and
also at home in his room and acting as if he is going to
defecate on the floor." The therapist reported that "during
school . . . [S.J.S.] was observed sucking on his pen cap" and
See Wis. Stat. § 48.981 (2019-20). All references to the
2
Wisconsin Statutes are to the 2019-20 version unless otherwise
indicated.
5
No. 2020AP226-CR
that S.J.S. "told a classmate [it] 'feels good when someone
sucks on your privates.'" S.J.S. initially told the therapist
that he learned this from a Garfield book or movie but later
"indicated that [Hineman] had told him." The CPS report also
states, "Reporter indicated that no information was given by
[S.J.S.] that [Hineman] had touched him or forced [S.J.S.] to
touch [Hineman]." The therapist reported that she told F.S. and
M.S. about her concerns, and that they were no longer permitting
Hineman to have contact with S.J.S.
¶6 CPS received a second report on April 20, 2015, from a
nurse at Aurora Healthcare. The nurse reported that S.J.S.'s
behavioral issues persisted. She spoke with F.S. and M.S. and
reported they "feel that someone must be abusing [S.J.S.] since
his behavior is getting worse." The nurse also reported that
F.S. and M.S. believed either Hineman or "an autistic son, whose
name is not known," abused S.J.S.
¶7 CPS received a third report on May 29, 2015, from both
a teacher and a counselor at S.J.S.'s school. The CPS report
states, "Both reporters feel the concerns today for [S.J.S.] are
his continuation of defiant behaviors at school resulting from
what is believed to be sexual[] abuse by a former family
friend." The teacher and counselor reported their concerns are
based on observations of S.J.S.'s behavior at school as well as
conversations with S.J.S.'s family.
¶8 On June 5, 2015, the Racine County Sheriff's Office
received a copy of the March 12 CPS report. It is undisputed
6
No. 2020AP226-CR
that the sheriff's office never received either the April 20 or
May 29 CPS reports.
¶9 Investigator Tracy Hintz was assigned to the case and
began her investigation by reviewing the March 12 CPS report.
She summarized the CPS report's contents in a police report:
The report indicates that [S.J.S.] was sucking on a
pen at school and told a classmate that it feels good
to have your privates sucked on. He said he learned
it in a Garfield book but then stated it was from the
Garfield 2 movie. The reporter spoke to [F.S.] about
it and [S.J.S.] indicated that [Hineman] had told him.
No specific information was given on if [Hineman]
touched [S.J.S.] or forced [S.J.S.] to touch
[Hineman].
Investigator Hintz interviewed F.S. and M.S. She also
coordinated a forensic interview of S.J.S., which took place at
the Child Advocacy Center ("CAC") on August 4, 2015. During the
forensic interview, S.J.S. disclosed that Hineman had touched
him inappropriately. Investigator Hintz interviewed Hineman the
next day.
¶10 On August 6, 2015, based on this investigation, the
State filed a criminal complaint charging Hineman with first-
degree child sexual assault, sexual contact with a person under
the age 13, contrary to Wis. Stat. § 948.02(1)(e).
¶11 Hineman filed a pretrial discovery demand for the
State to disclose "[a]ll evidence and/or other information which
would tend to negate the guilt of the defendant, including
laboratory reports, hospital records or reports, police reports,
or any other information within the state's possession,
knowledge, or control." The State did not provide the March 12
7
No. 2020AP226-CR
CPS report, but it did provide Investigator Hintz's police
report summarizing the CPS report.
¶12 At trial, defense counsel waived opening statement.
The State called four witnesses: the forensic interviewer from
the CAC, S.J.S., M.S., and Investigator Hintz. The forensic
interviewer, Heather Jensen, testified that she interviewed
S.J.S. and described how a forensic interview is conducted. She
also described the concepts of "piecemeal disclosure" and
"delayed disclosure":
Piecemeal disclosure is where kids tell bits and
pieces of their disclosure at a time. So it's typical
for kids to tell a little bit over extended periods of
time so they might tell the initial reporter just one
detail. Then they might tell more later on to
different people. So some time kids will disclose a
little bit to just gauge you as an adult, the reaction
to see how the adult will react. . . .
[D]elayed disclosure is when a victim reports abuse
after it[']s happened. Research shows that typically
about a third of kids delay disclosing what happened.
About a third of kids will tell what happened right
after it happened. About a third of kids do not
disclose at all. So it's common that kids delay in
their reporting. There is different reasons for it.
Some is that kids are fearful. Some kids have been
told that they could be hurt if they disclose so they
don't disclose initially. Some kids have been hurt by
the maltreater. They are afraid of the maltreater.
They don't disclose immediately or if they don't have
trusted adults to disclose to.
There is lots of different reasons that kids
don't talk right away. A difficult thing for kids to
talk about something that's shameful or embarrassing.
Or even young kids some times don't know at the time
that it's happening; that it's wrong. So they some
times don't disclose until they realize that that's
what happened to them is not right.
8
No. 2020AP226-CR
The State did not notice Jensen as an expert witness. Defense
counsel did not object to this testimony, but she did challenge
its relevance on cross-examination: "Ms. Jensen, this is not a
case of delayed disclosure, correct?"
¶13 After Jensen's testimony, the State next played the
video recording of S.J.S.'s forensic interview. It included the
following exchanges:
[Interviewer]: Did [Hineman] ever do anything
else that you didn’t like? Tell me about that.
[S.J.S.]: He touched my private parts.
[Interviewer]: Okay. Tell me all about
[Hineman] touching your private parts.
[S.J.S.]: Ugh, my mom and dad were sleeping, and
me and him were on the couch and he just touched my
private parts.
[Interviewer]: Uh-hmm. And then what happened?
[S.J.S.]: He laughed at me.
[Interviewer]: He laughed at you? Okay. Then
what happened?
[S.J.S]: I woke my mom and dad up and I told
them.
[Interviewer]: Okay. And then what happened?
[S.J.S.]: Um, he kicked [Hineman] out again, and
he told him that -- to never come back.
. . . .
[Interviewer]: Okay. And did [Hineman] touch on
your clothes or your skin?
[S.J.S.]: My clothes.
. . . .
9
No. 2020AP226-CR
[Interviewer]: . . . Did [Hineman] ever want you
to do something to his privates?
[S.J.S.]: Yeah, but I didn't do it.
[Interviewer]: What did [Hineman] want you to
do?
[S.J.S.]: Touch his privates, but I didn't do
it.
S.J.S. said in the interview that this incident occurred during
the "wintertime." He first told the interviewer that Hineman
touched him four times but later said it was six.
¶14 After the State played the video, S.J.S. testified.
S.J.S. initially responded "No" or "I can't remember" to most of
the State's questions regarding whether Hineman had touched him,
but S.J.S. became more responsive after saying that he felt
nervous. S.J.S. testified, "I think [Hineman] touched me on my
private part." He said this happened "the day right after
trick-or-treating," nobody else was in the house at the time,
and he told M.S. and F.S. about it the same day. On cross-
examination, S.J.S. said he told M.S. and F.S. "[a] few weeks
after it happened" and at different times. M.S. later testified
that no such disclosure took place: "[S.J.S.] claims that he
told his daddy but he didn't come right out and say what
anything was. He just didn't want to be around [Hineman] any
more. . . . I knew something was wrong. I kept saying [S.J.S.]
what's wrong. Tell grandma. He kept saying nothing."
¶15 The State's final witness was Investigator Hintz. She
testified that Hineman's behavior toward S.J.S. "in the totality
of everything that he was doing is often described as what we
10
No. 2020AP226-CR
would refer to as grooming." Defense counsel objected to this
statement as unnoticed expert testimony, and the court sustained
that objection.
¶16 On cross-examination, defense counsel questioned
Investigator Hintz regarding when S.J.S. first disclosed that
Hineman had touched him:
[Defense Counsel:] You first met with [F.S.] and
[M.S.] in July of 2015?
[Hintz:] Correct.
. . . .
[Defense Counsel:] . . . There was no mention
that [Hineman] had inappropriately touched [S.J.S.]?
[Hintz:] From [F.S.] no. There was not.
[Defense Counsel:] And there is no mention from
[M.S.] that there was a[n] allegation that [Hineman]
had touched [S.J.S.]?
[Hintz:] No.
[Defense Counsel:] So the forensic interview of
[S.J.S.] in August of 2015?
[Hintz:] In the beginning, correct.
[Defense Counsel:] And you were present for
that?
[Hintz:] I was.
[Defense Counsel:] And is that the first time
that [S.J.S.] says that [Hineman] touched his
privates?
[Hintz:] I don't know if that's the first time
[S.J.S.] had said that. I know that was the first
time that I had seen that. But I believe in the CPS
report, that there was a statement in there that he
11
No. 2020AP226-CR
said [Hineman] had done that. But I would have to
look at the original report that came from CPS.
[Defense Counsel:] Would that have been anywhere
in your report if you -- if there was a mention that
[Hineman] had inappropriately touched [S.J.S.]?
[Hintz:] I don't know if I documented that.
Whether or not I would have to look at my report
again, in my original narrative to see if I did indeed
write that in there.
[Defense Counsel:] But if you were told that,
you would have then put it in your report?
[Hintz:] I would think I would have but it's
not -- I might have not put it in there but that's why
I would have to look at the report and look at the
original CPS. I believe it does state that he later
says that.
¶17 The defense called no witnesses except for Hineman.
Hineman described his relationship with S.J.S. and his family,
how his communication with them changed after March 2015, and he
denied sexually assaulting S.J.S.
¶18 The jury found Hineman guilty of first-degree child
sexual assault, sexual contact with a person under the age 13.
The court sentenced Hineman to 17 years of initial confinement
and 8 years of extended supervision.
¶19 On March 1, 2019, Hineman filed a motion requesting
postconviction relief and an order compelling postconviction
discovery of the March 12 CPS report. He claimed the State
suppressed material evidence favorable to his defense in
violation of his due process rights under Brady. Hineman also
claimed he received ineffective assistance of counsel because of
his attorney's "failing to obtain the CPS report before trial,"
12
No. 2020AP226-CR
"failing to make an opening statement," "failing to object to
improper expert testimony," and "conceding Mr. Hineman's guilt
at closing."3 Hineman further requested a new trial in the
interest of justice and in camera review of S.J.S.'s treatment
records.
¶20 The circuit court granted Hineman's motion for
postconviction discovery and recommended the release of all
three CPS reports.4 After briefing and oral argument, the court
issued a decision denying each of Hineman's claims for
postconviction relief. The court first held that the March 12
CPS report was not material under Brady because "[t]he
information in Investigator Hintz's report corresponded to the
information in the March [12] report."
¶21 The circuit court also rejected each of Hineman's
ineffective assistance claims. The court did not address trial
counsel's failure to obtain the CPS reports because the March 12
report was "the only report of consequence." It held that trial
counsel's decision to waive opening statement was not deficient
3Hineman also claimed he received ineffective assistance of
counsel because of his attorney's "failing to obtain a defense
expert," "failing to file a Shiffra/Green motion," and "failing
to move for a mistrial." See State v. Shiffra, 175 Wis. 2d 600,
499 N.W.2d 719 (Ct. App. 1993); State v. Green, 2002 WI 68, 253
Wis. 2d 356, 646 N.W.2d 298. The circuit court rejected each of
these claims, and Hineman did not raise them either before the
court of appeals or this court.
4The circuit court recommended to the juvenile court that
it release the CPS reports. The Honorable David W. Paulson of
the juvenile court ordered the release.
13
No. 2020AP226-CR
performance based on counsel's explanation at the Machner5
hearing: "I had some concerns about what [Hineman] would say
when he took the stand. I didn't want to make an opening
statement and commit him to something that he wouldn't then say
in his direct." The circuit court also credited trial counsel's
explanation for not objecting to Jensen's unnoticed expert
testimony. Counsel explained, "I just thought that I would on
my cross cover [the delayed disclosure testimony] because I
didn't think that this was a case of delayed disclosure, if I
remember correctly." The circuit court rejected Hineman's last
claim of ineffective assistance——that trial counsel conceded
guilt in closing argument by stating, "but I believe the sexual
assault happened." The court found the statement was not a
concession of guilt because "[c]learly defense counsel was
speaking ironically. . . . Counsel's point was to criticize the
version of events that had been testified to."
¶22 Finally, the circuit court denied Hineman's request
for an in camera review of S.J.S.'s treatment records. The
court concluded Hineman did not satisfy the standard under State
v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, because
"no one has shown in this record a 'fact specific evidentiary
showing' that the records of [S.J.S.'s] therapy support any
defense to this charge."
5 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
14
No. 2020AP226-CR
¶23 Hineman appealed the circuit court's order, and the
court of appeals reversed. The court of appeals concluded that
suppression of the March 12 CPS report violated Hineman's due
process rights under Brady. The court reasoned that the report
was material under Brady because Investigator Hintz "could not
be impeached . . . without the report itself, and thus, the
undermining of the investigator's recall of events related to
the investigation and her credibility more generally could not
occur without the report itself." Hineman, No. 2020AP226-CR,
¶47. The court of appeals also concluded Hineman was entitled
to an in camera review of S.J.S.'s therapy records based on the
information the therapist reported to CPS. Id., ¶52.
¶24 The State petitioned this court for review, which we
granted.
II. STANDARD OF REVIEW
¶25 When assessing a Brady claim, "we independently review
whether a due process violation has occurred, but we accept the
trial court's findings of historical fact unless clearly
erroneous." State v. Wayerski, 2019 WI 11, ¶35, 385
Wis. 2d 344, 922 N.W.2d 468. We apply this same standard of
review to claims of ineffective assistance of counsel under the
Sixth Amendment. State v. Dillard, 2014 WI 123, ¶86, 358
Wis. 2d 543, 859 N.W.2d 44 ("An appellate court upholds the
circuit court's findings of fact unless they are clearly
erroneous . . . [and] independently determines whether those
historical facts demonstrate that defense counsel's performance
15
No. 2020AP226-CR
met the constitutional standard for ineffective assistance of
counsel . . . .").
¶26 Regarding Hineman's request for an in camera review of
therapy records, we review such claims de novo. Green, 253
Wis. 2d 356, ¶20. Finally, because neither the circuit court
nor the court of appeals addressed whether to grant a new trial
in the interest of justice, we consider this issue de novo. See
Bosco v. LIRC, 2004 WI 77, ¶22, 272 Wis. 2d 586, 681 N.W.2d 157(analyzing de novo an issue raised below but not addressed).
III. ANALYSIS
¶27 We begin our review by addressing Hineman's Brady
claim and concluding that the State did not commit a Brady
violation because the subject evidence was not material. We
then turn to each of Hineman's claims that he received
ineffective assistance of counsel. In analyzing those claims,
we determine Hineman was not prejudiced by trial counsel's
failure to request the March 12 CPS report and that the
remaining ineffective assistance claims fail for lack of
deficient performance. Finally, we deny Hineman's request to
order a new trial in the interest of justice.
A. Brady Claim
¶28 The United States Supreme Court in Brady, 373 U.S. 83,
imposed on prosecutors a duty under the Due Process Clause of
the Fourteenth Amendment to disclose evidence favorable to the
defense. Brady involved a defendant on trial for murder who
testified he was involved in the murder but that his co-actor
directly committed it. Id. at 84. The jury found the defendant
16
No. 2020AP226-CR
guilty and sentenced him to death. Id. After the defendant was
convicted and sentenced, he learned the prosecution failed to
comply with a pretrial discovery request by withholding a
statement by the defendant's co-actor admitting to the murder.
Id. The Court held that such "suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution." Id. at 87.
¶29 The Supreme Court has since explained, "[t]here are
three components of a true Brady violation: The evidence at
issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued." Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). The parties do not dispute
that the March 12 CPS report is favorable to Hineman's defense
and that the State suppressed the report. We therefore assume
without deciding that the first two requirements of Hineman's
Brady claim are satisfied. The parties do however disagree as
to whether Hineman was prejudiced by the State's suppressing the
report——that is, whether the report is "'material' either to
guilt or to punishment." Wayerski, 385 Wis. 2d 344, ¶35.
¶30 "While previously the standard for materiality varied
depending upon the type of Brady violation, the Supreme Court
has since adopted a uniform standard for materiality . . . ."
State v. Harris, 2004 WI 64, ¶14, 272 Wis. 2d 80, 680 N.W.2d 73717
No. 2020AP226-CR
(citation omitted). The Court explained that standard in United
States v. Bagley: "The evidence is material only if there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different. A 'reasonable probability' is a probability
sufficient to undermine confidence in the outcome." 473 U.S.
667, 682 (1985). In conducting this analysis,6
[t]he reviewing court should assess the possibility
that such effect might have occurred in light of the
totality of the circumstances and with an awareness of
the difficulty of reconstructing in a post-trial
proceeding the course that the defense and the trial
would have taken had the defense not been misled by
the prosecutor's incomplete [discovery] response.
Id. at 683.
¶31 Hineman argues the March 12 CPS report "was material
exculpatory impeachment evidence that went to an issue at the
heart of the case——when and how [S.J.S.] disclosed that
Mr. Hineman had sexually assaulted him, and what the
circumstances of the disclosure indicated about its
reliability." "Generally, where impeachment evidence is merely
cumulative and thereby has no reasonable probability of
affecting the result of trial, it does not violate the Brady
6The State criticizes the court of appeals' analysis for
"reweighing the witnesses' credibility based on a paper record,
displacing the role of the factfinder." The State asks us to
clarify that, "on review, deference to the factfinder's unique
function is warranted in determining whether but for the
complained-of errors, there is a substantial likelihood of a
different result." We see no need to rework the formulation for
assessing Brady materiality that the Supreme Court announced in
Bagley.
18
No. 2020AP226-CR
requirement." United States v. Dweck, 913 F.2d 365, 371 (7th
Cir. 1990). Impeachment evidence is cumulative and therefore
not material when "the witness was already [or could have been]
impeached at trial by the same kind of evidence."7 Conley v.
United States, 415 F.3d 183, 192 (1st Cir. 2005) (alteration in
original) (emphasis omitted) (quoting United States v. Cuffie,
80 F.3d 514, 518 (D.C. Cir. 1996)); see also Ferrara v. United
States, 456 F.3d 278, 294 (1st Cir. 2006) (considering "whether
the sequestered evidence was cumulative of other evidence
already in the defendant's possession"); United States v.
Marashi, 913 F.2d 724, 733 (9th Cir. 1990) (holding officer's
police report contradicting officer's testimony was cumulative
where officer also made a similar inconsistent statement in a
deposition).
¶32 According to Hineman, the March 12 CPS report was not
merely cumulative in two respects: "the CPS report is the only
document that contains the clear exculpatory statement that as
of March 12, [S.J.S.] had not made any disclosures of
maltreatment," and "even more important, the CPS report
7Impeachment evidence may also be cumulative, and therefore
not material, "when the testimony of the witness is
'corroborated by other testimony,' or when the suppressed
impeachment evidence merely furnishes an additional basis on
which to impeach a witness whose credibility has already been
shown to be questionable." United States v. Payne, 63
F.3d 1200, 1210 (2d Cir. 1995)(citation omitted) (quoting United
States v. Petrillo, 821 F.2d 85, 89 (2d Cir. 1987)); see also
State v. Rockette, 2006 WI App 103, ¶41, 294 Wis. 2d 611, 718
N.W.2d 269.
19
No. 2020AP226-CR
clarifies who the mandatory reporter was: [S.J.S.'s]
therapist." We disagree on both counts.
¶33 The March 12 CPS report's use as impeachment evidence
was not material because it fails to create a reasonable
probability of a different result. The CPS report contains the
same information as Investigator Hintz's police report except
for the identity of the reporter, which is not material. The
CPS report states, "Reporter indicated that no information was
given by [S.J.S.] that [Hineman] had touched him or forced
[S.J.S.] to touch [Hineman]." The police report states, "No
specific information was given on if [Hineman] touched [S.J.S.]
or forced [S.J.S.] to touch [Hineman]." The only difference
between the two is that the CPS report includes, "by S.J.S."
Regardless of this difference, both statements make the same
point: At the time Investigator Hintz completed her report,
she had no knowledge from any source that there was an
allegation of touching. The CPS report provided defense counsel
everything she needed to impeach Investigator Hintz's testimony
that there was a prior allegation of touching.
¶34 The report also is not material as evidence that a
therapist was the mandatory reporter. Hineman argues S.J.S.'s
therapist is "a material fact witness," that the patient-
provider privilege does not apply because there is no privilege
"when the therapist makes a mandatory report . . . under Wis.
Stat. § 48.981," and that "[l]ogically, any person trying to
ascertain Mr. Hineman's guilt or innocence would want to know
20
No. 2020AP226-CR
more about how, when, and why the reporter suspected Mr. Hineman
of this crime." These arguments are unpersuasive.
¶35 First, Hineman is mistaken that filing a mandatory
report waives any privilege from testifying. He cites Wis.
Stat. § 905.04 as support. However, the only relevant exception
to the provider-patient privilege is far narrower than Hineman
claims: "There is no privilege for information contained in a
report of child abuse or neglect that is provided under s.
48.981(3)." § 905.04(4)(e)2m. (emphasis added). The only way
Hineman could have accessed information about S.J.S.'s treatment
beyond the CPS reports' contents was to file a Shiffra-Green
motion, which, as we discuss below, would fail.
¶36 Second, and more importantly, nowhere in Hineman's
argument does he explain how the fact that the mandatory
reporter was a therapist creates a reasonable probability of a
different result. He fails to identify any way the mandatory
reporter's identity is relevant to the determination of guilt or
innocence beyond the vague assertion that the jury might "want
to know more." This does not undermine our confidence in the
outcome. Accordingly, such evidence of the mandatory reporter's
identity is not material.
¶37 Because the March 12 CPS report contained no evidence
that creates a reasonable probability of a different result, it
is not material. Its suppression therefore did not violate
Hineman's due process rights under Brady.
21
No. 2020AP226-CR
B. Ineffective Assistance Of Counsel Claims
¶38 For a criminal defendant to succeed on an ineffective
assistance of counsel claim, "[f]irst, the defendant must show
that counsel's performance was deficient." Strickland v.
Washington, 466 U.S. 668, 687 (1984). "To establish that
counsel's performance was deficient, the defendant must show
that it fell below 'an objective standard of reasonableness.'"
State v. Breitzman, 2017 WI 100, ¶38, 378 Wis. 2d 431, 904
N.W.2d 93 (quoting State v. Thiel, 2003 WI 111, ¶19, 264
Wis. 2d 571, 665 N.W.2d 305). "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., ¶65 (quoting State v. Domke, 2011 WI 95, ¶49,
337 Wis. 2d 268, 805 N.W.2d 364) (alteration in original).
¶39 "Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable." Strickland,
466 U.S. at 687. This is the same test used to determine
materiality under Brady. See Bagley, 473 U.S. at 682 ("We find
the Strickland formulation . . . for materiality sufficiently
flexible to cover . . . cases of prosecutorial failure to
disclose evidence favorable to the accused[.]"); Harris, 272
Wis. 2d 80, ¶14 (stating that Brady materiality "is the same
test for ineffective assistance of counsel under Strickland");
Wayerski, 385 Wis. 2d 344, ¶36 ("The materiality requirement of
Brady is the same as the prejudice prong of the Strickland
22
No. 2020AP226-CR
analysis."). A criminal defendant "must prevail on both parts
of the test to be afforded relief." State v. Allen, 2004 WI
106, ¶26, 274 Wis. 2d 568, 682 N.W.2d 433.
¶40 Hineman argues he received ineffective assistance of
counsel in four ways: trial counsel failed to request the March
12 CPS report, waived opening statement, failed to object to
improper expert testimony, and conceded Hineman's guilt during
closing argument. We address each of these claims in turn.
1. Failure to request the CPS report.
¶41 Hineman's first claim of ineffective assistance is
based on trial counsel's failure to request the CPS report
before trial. This claim fails for lack of prejudice. Because
the test for prejudice under Strickland is here the same as the
test for materiality under Brady, trial counsel's failure to
request the March 12 CPS report was not prejudicial for the same
reasons that it was not material.
¶42 Hineman also asserts he was prejudiced because, "had
counsel filed motions pre-trial to obtain the CPS report, she
likely would have obtained the related April 20 and May 29 CPS
reports." However, neither one of these reports creates a
reasonable probability of a different result.
¶43 According to Hineman, the April 20 CPS report was
"exculpatory" because it "states that [M.S.] and [F.S.] took
[S.J.S.] to be examined by a physician for signs of sexual abuse
and that 'there [was] nothing from his doctor who examined
[S.J.S.] that any type of sexual abuse has taken place.'"
However, the nature of the sexual contact the State alleged
23
No. 2020AP226-CR
likely would not produce the kind of evidence that would appear
in a physician's examination. Hineman also argues the April 20
CPS report "underscores that it was [S.J.S.'s] behaviors, not
Mr. Hineman's, that led to the concern that [S.J.S.] was being
abused." Evidence of S.J.S.'s behavioral issues was presented
at trial. Trial counsel did not need the April 20 CPS report to
support this line of argument.
¶44 The May 29 CPS report's absence also did not prejudice
Hineman. He argues the report impeaches S.J.S. because it
"suggest[s] that [S.J.S.] was repeatedly questioned about
Mr. Hineman and inappropriate sexual touching." But this too
came out at trial. M.S. testified that she repeatedly asked
S.J.S. to tell her what was wrong, and he was nonresponsive.
¶45 Overall, Hineman was not prejudiced by trial counsel's
failure to request the March 12 CPS report because any evidence
derived from that request would have been cumulative.8 Because
we resolve this claim on prejudice, we need not address
deficient performance.
2. Waiving opening statement.
¶46 Hineman next argues that trial counsel was ineffective
for choosing to waive opening statement. He argues trial
8Hineman makes the additional argument that "[h]ad counsel
obtained these CPS reports before trial, a defense expert could
have rebutted the therapist's assumption that [S.J.S.'s] unusual
behaviors meant that he was being sexually abused." Hineman
could have called a defense expert even without first reviewing
the CPS reports. Officer Hintz's report contains the same
information about S.J.S.'s behavior that Hineman alleges raised
suspicion that S.J.S. had been sexually assaulted.
24
No. 2020AP226-CR
counsel performed deficiently because "[f]oregoing an opening
statement because you are not sure what your client is going to
say——when he has a constitutional right to say nothing at all——
is not a reasonable strategy."
¶47 In this case a Machner hearing was conducted. As a
result, we benefit from the testimony and circuit court
findings. We conclude that this claim fails for lack of
deficient performance. Trial counsel explained, "I had some
concerns about what he would say when he took the stand. I
didn't want to make an opening statement and commit him to
something that he wouldn't then say in his direct." The circuit
court concluded, "The failure to give an opening statement, when
supported by a strategic reason, is largely within the
discretion of the trial attorney. I see no reason to disturb
this judgement." As a result, trial counsel's strategic
decision was reasonable. Courts that have addressed this issue
consistently hold that waiving opening statement is an
acceptable trial strategy. See, e.g., United States v. Haddock,
12 F.3d 950, 955 (10th Cir. 1993) (holding that counsel's
uncertainty about what his client might say justified waiving
opening statement); United States v. Salovitz, 701 F.2d 17, 20-
21 (2d Cir. 1983) ("It is common knowledge that defense counsel
quite often waive openings as a simple matter of trial
strategy.") (collecting cases); Moss v. Hofbauer, 286 F.3d 851,
863 (6th Cir. 2002) (holding that counsel's desire not to
disclose trial strategy was a reasonable strategic reason for
waiving opening statement).
25
No. 2020AP226-CR
¶48 Trial counsel did not know how or even whether Hineman
would testify. It was perfectly reasonable for her to waive her
opening statement and avoid making promises to the jury she
could not keep. This decision did not fall below "an objective
standard of reasonableness." Breitzman, 378 Wis. 2d 431, ¶38.
Because we resolve this claim on deficient performance, we need
not address prejudice.
3. Failure to object to improper expert testimony.
¶49 Hineman's third ineffective assistance claim also
fails for lack of deficient performance. He claims that Jensen
presented unnoticed expert testimony on the concepts of
"piecemeal disclosure" and "delayed disclosure" and that trial
counsel's failure to object to this testimony was deficient
performance. Hineman argues this was deficient because trial
counsel's proffered strategy of "attacking Jensen's improper
expert testimony by trying to establish that this case involved
an immediate disclosure——when that testimony could have been
kept out altogether——would have undermined the defense strategy
and bolstered [S.J.S.'s] incriminating statements."
¶50 However, the testimony and the circuit court's
findings at the Machner hearing revealed that trial counsel did
not object because she had a reasonable alternative strategy of
showing Jensen's testimony did not match the State's theory of
immediate disclosure. Trial counsel testified at the Machner
hearing, "I just thought that I would on my cross cover [the
delayed disclosure testimony] because I didn't think that this
was a case of delayed disclosure, if I remember correctly." The
26
No. 2020AP226-CR
circuit court concluded, "The attorney could rely on her
experience in examining such experts to have a moment in front
of the jury of wrenching an admission out of the witness. That
is what the attorney decided to risk and it paid off."
¶51 The record supports that trial counsel pursued this
strategy. During cross-examination, she asked Jensen, "And
let's say the abuse happens and the child goes and tells the
parent immediately. Is that a delayed disclosure?" By pointing
out that Jensen discussed delayed disclosure despite the State
arguing there was an immediate disclosure, trial counsel
highlighted an inconsistency in the State's case. This was
consistent with trial counsel's overall strategy. During her
closing argument, trial counsel argued the State's witnesses
presented varying accounts of when the assault happened, how
many times it happened, and when S.J.S. disclosed. We cannot
say that trial counsel was deficient for attempting to use
otherwise objectionable testimony to her client's advantage.
Because we resolve this claim on deficient performance, we need
not address prejudice.
4. Conceding guilt during closing argument.
¶52 Hineman's final ineffective assistance claim is that
trial counsel conceded Hineman's guilt during closing argument
by saying, "But I believe the sexual assault happened." At the
Machner hearing, trial counsel explained, "I don't recall
conceding Mr. Hineman's guilt[]. . . . [M]y notes say, if it
happened, what version do you believe. Then I would go into --
the different things." Though the circuit court found trial
27
No. 2020AP226-CR
counsel was "speaking ironically" to explain the competing
versions of events, Hineman argues, "conceding guilt——even in
jest——is not a reasonable strategy in a first-degree sexual
assault of a child trial."
¶53 Hineman misconstrues the circuit court's finding. The
circuit court, who heard the trial and also heard the testimony
at the Machner hearing, concluded that counsel's performance was
not deficient. Contrary to Hineman's argument, the court did
not find that trial counsel conceded guilt "in jest"; it found
she did not concede guilt at all. The court explained, "The
structure of the closing was designed to contrast the version
told in the forensic interview with that coming out at
trial. . . . By attempting to force the jury between two
different theories, the defense obviously played to doubt." The
court found that, in this context, trial counsel's statement was
meant only "to criticize the [State's] version of events that
had been testified to." Accordingly, the statement was ironic
and not a concession of guilt. This is a factual determination
to which we owe deference, and it is not clearly erroneous. See
Dillard, 358 Wis. 2d 543, ¶86. Because trial counsel never
conceded Hineman's guilt, this last claim fails for lack of
deficient performance.9 Because we resolve this claim on
deficient performance, we need not address prejudice.
The
9 parties disagree as to whether there was a
transcription error and the trial transcript should actually
say, "But to believe the sexual assault happened." We need not
resolve this issue because the circuit court found there was no
concession of guilt under the assumption that the transcript was
correct.
28
No. 2020AP226-CR
C. The Interest Of Justice
¶54 Hineman's final claim is that this court should
exercise its discretion to order a new trial in the interest of
justice. Absent other grounds for doing so, this court may
order a new trial "if it appears from the record that the real
controversy has not been fully tried, or that it is probable
that justice has for any reason miscarried." Wis. Stat.
§ 751.06.
¶55 Hineman asserts the real controversy in this case has
not been fully tried because the State improperly presented
unnoticed expert testimony and "in camera review of [S.J.S.'s]
treatment records is necessary to fully try this controversy."
There are two situations where the real controversy has not been
fully tried such that the interest of justice may require a new
trial:
(1) when the jury was erroneously denied the
opportunity to hear important evidence bearing on an
important issue in the case or (2) when the jury had
before it evidence not properly admitted that "so
clouded" a crucial issue that it may be fairly said
that the real controversy was not tried.
State v. Avery, 2013 WI 13, ¶38 n.18, 345 Wis. 2d 407, 826
N.W.2d 60. "However, such discretionary reversal power is
exercised only in 'exceptional cases.'" Id., ¶38 (quoting State
v. Henley, 2010 WI 97, ¶98, 328 Wis. 2d 544, 787 N.W.2d 350).
"We are reluctant to grant a new trial in the interest of
justice, and thus we exercise our discretion only in exceptional
cases." Morden v. Cont'l AG, 2000 WI 51, ¶87, 235 Wis. 2d 235,
611 N.W.2d 659.
29
No. 2020AP226-CR
¶56 Hineman's first argument regarding unnoticed expert
testimony fails. His assertion that Jensen's testimony on the
concepts of "piecemeal disclosure" and "delayed disclosure"
requires a new trial merely repackages his ineffective
assistance claim, which we already rejected, as an interest-of-
justice claim. As for Investigator Hintz's testimony on the
concept of "grooming," it consisted entirely of the following
statement: "Those things, in the totality of everything that he
was doing is often described as what we would refer to as
grooming." Trial counsel immediately objected to this
testimony, and the court sustained that objection. Neither
Jensen's nor Investigator Hintz's testimony on these topics was
so inflammatory or pervasive that it clouded the real issue at
trial: whether Hineman had sexual contact with S.J.S.
¶57 Hineman's second argument also fails because he has
not made the requisite evidentiary showing necessary to obtain
in camera review of S.J.S.'s treatment records. In order to
gain in camera review of treatment records, a defendant must
"make a sufficient evidentiary showing that is not based on mere
speculation or conjecture as to what information is in the
records." Green, 253 Wis. 2d 356, ¶33. "[T]he evidence sought
from the records must not be merely cumulative to evidence
already available to the defendant. A defendant must show more
than a mere possibility that the records will contain evidence
that may be helpful or useful to the defense." Id. Because we
conclude the absence of the CPS reports did not prejudice
Hineman, it follows that the reports do not form an adequate
30
No. 2020AP226-CR
evidentiary basis supporting in camera review of S.J.S.'s
treatment records, and the jury was not "erroneously denied the
opportunity to hear important evidence."10 Avery, 345
Wis. 2d 407, ¶38 n.18.
¶58 The real issue was fully tried. Hineman's
disagreements on whether the jury should or should not have
heard certain evidence does not change that fact. We therefore
deny Hineman's plea for a new trial in the interest of justice.
IV. CONCLUSION
¶59 Hineman argues that he is entitled to a new trial
because the State suppressed evidence favorable to his defense
in violation of his due process rights under Brady. According
to Hineman, the State failed to disclose a report from CPS which
contained "material exculpatory impeachment evidence that went
to an issue at the heart of the case." He argues the circuit
court erred in denying his motion for postconviction relief and
that the court of appeals was correct to reverse that decision.
Hineman also argues two alternative grounds for affirming the
court of appeals: "he was denied effective assistance of
counsel," and he "is entitled to a new trial[] and an in camera
10 We heard argument earlier this term in State v. Johnson,
No. 2019AP664-CR, regarding whether "the court [should] overrule
State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App.
1993)." State v. Johnson, No. 2019AP664-CR, unpublished order,
at 2 (Wis. Oct. 14, 2021). That case remains pending.
Regardless of how we resolve the issue in Johnson, we conclude
that Hineman cannot make the evidentiary showing necessary for
review under the Green standard.
31
No. 2020AP226-CR
review of [S.J.S.'s] treatment records[] in the interests of
justice."
¶60 We conclude that Hineman is not entitled to
postconviction relief. The State did not violate Hineman's due
process rights by failing to disclose the CPS report because the
report was not material. There is no reasonable probability of
a different result if the State did disclose the CPS report
because Hineman had access to a police report containing the
same relevant information. Hineman's four ineffective
assistance of counsel claims also fail. He was not prejudiced
by trial counsel's failure to request the subject report, and
the other claims fail because counsel's performance was not
deficient. Finally, we decline to exercise our discretion to
grant Hineman a new trial in the interest of justice because
there were no errors at trial that prevented the real
controversy from being tried. The circuit court was correct to
deny Hineman's motion for postconviction relief. We therefore
reverse the court of appeals.
By the Court.—The decision of the court of appeals is
reversed.
32
No. 2020AP226-CR.jjk
¶61 JILL J. KAROFSKY, J. (concurring). I write
separately to push back against a pernicious myth about child
sexual assault victims found in the court of appeals opinion.
The court of appeals determined that the child victim in this
case presented credibility issues, in part because he did not
disclose to his therapist that he was a victim of Hineman's
sexual abuse. See State v. Hineman, No. 2020AP226-CR,
unpublished slip op. (Wis. Ct. App. Nov. 24, 2021) (per curiam).
Such reasoning ignores the barriers child sexual assault victims
face in reporting sexual abuse and perpetuates the misguided
notion that delayed disclosures in these cases are the exception
rather than the norm.
¶62 To bolster its conclusion that "[t]he state's case was
not particularly strong," the court of appeals faulted S.J.S.
for not disclosing his abuse to his therapist. The court wrote,
"[S.J.S.] meeting with his therapist around this time would have
provided an obvious opportunity for S.J.S. to reveal if he had
been inappropriately touched by Hineman, yet S.J.S. made no such
revelations." Id. at ¶41 (emphasis added). Assertions such as
this ignore the victim's herculean task of reporting sexual
abuse.
¶63 There are myriad reasons children do not report sexual
abuse——to anyone. These include: an inability to recognize or
articulate sexual abuse, an uncertainty about which adults are
safe, a lack of opportunities to disclose, fear of not being
believed, trauma that results from the abuse, power
differentials between the child victim and adult perpetrator,
1
No. 2020AP226-CR.jjk
and institutional power dynamics. CHILD USA, Delayed
Disclosure: A Factsheet Based on Cutting-Edge Research on Child
Sex Abuse, 2 (Mar. 2020). Additionally, recounting abuse,
particularly for child sexual abuse survivors, "creates new
painful and traumatic memories that compound older pain
associated with the abuse. Recounting the abuse experience,
especially more than once, 'triggers' survivors and can leave
them feeling exhausted, fatigued, and defeated." James Marsh &
Margaret Mabie, Trauma-Informed Advocacy, Trial, Aug. 2022, at
38 (footnotes omitted).
¶64 Importantly, when disclosure does occur, it does not
usually happen in one sitting. Rather, disclosure is a process
that can take decades and may involve "telling through direct
and indirect hints and signs, decisions to tell, re-decisions
and delaying, or withholding until adulthood, and the dependency
on trusted confidants who ask and listen for final disclosure to
occur." CHILD USA at 2 (quoting Maria Larsen Brattfjell & Anna
Margrete Flam, "They Were the Ones That Saw Me and Listened."
From Child Sexual Abuse to Disclosure: Adults' Recalls of the
Process Towards Final Disclosure, 89 Child Abuse Neglect 225
(2019)).
¶65 The truth——as opposed to the myth——is that when it
comes to child sexual assault cases, disclosure is the departure
from the norm. According to data from the U.S. Department of
Justice as much as 86 percent of child sexual abuse may go
unreported altogether. Dean G. Kilpatrick et al., U.S. Dep't
Just., Youth Victimization: Prevalence and Implications, 6 (Apr.
2
No. 2020AP226-CR.jjk
2003). And when disclosure of child sexual abuse does occur, it
is almost always delayed. Strikingly, the average age of
disclosing childhood sexual abuse is 52. CHILD USA at 3.
¶66 In short, there was never an "obvious opportunity" for
S.J.S. to disclose to his therapist or anyone else. There were
only barriers and trauma and uncertainty. In the face of these
obstacles, what should cause us to pause is not that S.J.S.
failed to disclose to his therapist but that he had the courage
to disclose at all.
¶67 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
3