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State v. Falk6/29/2000
en if the foundation were somehow supplied, the inference of Shannon's guilt from changing her in the bedroom is extremely weak. We conclude trial counsel was not deficient in failing to elicit any of this testimony.
Failure to Stipulate
. Richard contends trial counsel should have offered to stipulate that Laura's injuries were intentionally inflicted in order to keep out evidence of the earlier injuries to Cody's ribs for the purpose of proving lack of mistake or accident under Wis. Stat. § 904.04(2). However, the State also argued that such evidence was admissible to show identity-that is, because of the similarity of the injuries, the identity of the perpetrator was the same, and according to Detective Schrank, Richard admitted he did injure Cody's ribs. A stipulation that Laura's injuries were intentionally inflicted would not have entitled Richard to exclusion of the other acts evidence to prove the identity of the person who inflicted those injuries and, of course, Richard would not stipulate that he was the person who inflicted Laura's injuries. Cf. DeKeyser, 221 Wis. 2d at 444 (noting that DeKeyser would have stipulated in order to avoid introducing other acts evidence). For this reason, we conclude Richard has not established deficient performance.
. Richard also argues that trial counsel should have offered to formally stipulate to the element of great bodily harm so as to avoid admission of the photographs. However, we have already held that such a stipulation would not have entitled him to exclusion of the photographs. The failure to stipulate is therefore not deficient performance. See Cleveland, 2000 WI App ___ at .
Failure to Object and Other Deficiencies in Examination and Cross-Examination
. Richard contends trial counsel was ineffective for not objecting to the prosecutor's question to Doug Paul, a witness for the defense, concerning prior convictions, because the court did not make a ruling allowing this as required by Wis. Stat. § 906.09(3) and Gyrion v. Bauer, 132 Wis. 2d 434, 393 N.W.2d 107 (Ct. App. 1986). The issue of impeachment of defense witnesses with prior convictions was raised by pretrial motion, and the court instructed the prosecutor and trial counsel to agree on the number of convictions with which Doug Paul could be impeached. No agreement was placed on the record. Doug Paul's testimony was brief. He testified that he was a good friend and a neighbor of Richard's, that Richard had a peaceful character and was a loving father who never raised a hand to his child. On cross-examination, Paul acknowledged he had two prior convictions.
. Doug Paul's post-conviction affidavit avers he had: "Maybe a drunk driving conviction. I have had two. Or a disorderly conduct for swearing in public, or I may have been convicted of obstructing for giving a wrong name." He adds that the years for the "DUI [were] 1991 and 1996, DC in 1992 and obstructing in 1995." This testimony is insufficient to establish that the trial court would have ruled the prosecutor could not ask Paul about any prior convictions or would have allowed evidence of one, rather than two, prior convictions. Because the 1995 conviction goes to honesty and was only two years before the trial, it is unlikely the trial court would not have allowed at least one conviction. We also conclude it is not reasonably probable that eliciting the answer on direct, rather than cross, would have changed the result of the trial. We consider here that even if the jury would have evaluated Paul's testimony on Richard as being more credible if he admitted to only one offense on direct, other defense witnesses presented the same positive testimony of Richard's character
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