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State v. Falk6/29/2000
we agree with the trial court that counsel was not deficient for not presenting an expert at trial to give a psychological profile of Shannon concerning her propensity for child abuse.
. Richard contends trial counsel was deficient in his failure to obtain a copy of the CHIPS psychological evaluation of Shannon. That is dated September 11, 1997, the last day of the trial. The trial court found that another item in the file-the letter concerning Cody's visits with Richard-was not available at the time of trial, but did not make a similar finding with respect to the psychological evaluation of Shannon. However, because there is no dispute on the date of the psychological evaluation, we find as a matter of law it was not available for use at trial and trial counsel was therefore not deficient for not obtaining it.
. We also conclude that Richard has not shown that Ferguson's opinion on Shannon's propensity for child abuse, or the psychological evaluation on which it is in part based, would have been admissible. Such expert opinion testimony on Shannon's character, like other evidence on her character, is inadmissible under Wis. Stat. § 904.04(1)(c). And, as previously stated, Richard has not adequately developed an argument that such evidence is nevertheless admissible because of his constitutional right to present a defense.
Expert Testimony on False Confessions
. Richard contends trial counsel was deficient in failing to present expert evidence that in cases of child abuse, people may falsely confess to protect family members. He offers statements from Ferguson's affidavit on this point, arguing that they would be admissible, and that her testimony-or similar testimony from another expert-was available and should have been presented by trial counsel. However Ferguson's affidavit does not establish that she has expertise on the subject of false confessions in child abuse cases. Moreover, most of her discussion on Richard's confession, including her credibility determination and her more general statements (such as the various motives people have in making false confessions), do not add to what is already within the common knowledge of jurors and is therefore not admissible. See State v. Peters, 192 Wis. 2d 674, 689, 534 N.W.2d 867 (Ct. App. 1995). We therefore conclude that Richard has not established that trial counsel was deficient in not presenting an expert on false confessions at trial.
"Alibi" Testimony
. Richard contends trial counsel failed to interview three people on his witness list regarding the Monday night on which, in his confession, Richard stated he injured Laura. According to Richard this is "crucial alibi testimony." The affidavits of Chuck Rieckman, Nicole Henderson and Doug Paul aver that they went with Richard and Shannon to a bar that Monday night until about 2:30 a.m. (on Tuesday), then went to Richard's and Shannon's trailer house and stayed for a couple hours with Richard while Shannon went to bed. Rieckman stated that he was with Richard from 9:00 p.m. on Monday until about 6:00 a.m. on Tuesday and when he left, Richard was still up playing video games with his brother. Paul stated he was with Richard until about 4:30 or 5:00 a.m. and he remembered the time because his wife was upset that he got home so late.
. We do not agree this testimony provides an "alibi" and we therefore conclude Richard has not shown that trial counsel's performance was deficient. This evidence does not show that Richard could not have inflicted the injuries after his friends went home, after he went to bed and was awakened by Laura. While Richard identified that time as "late Monday night" in his confession, the fact that
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