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State v. Falk6/29/2000
and parenting. Therefore, although it may have been deficient performance for trial counsel not to make a record of the agreement with the prosecutor and not to ask the question on direct, that failure did not prejudice Richard.
. Richard also contends trial counsel failed to make use of the "open door" principle when the prosecutor asked Shannon if she ever hurt Laura and Shannon answered no, and failed to object to that question and the same question asked of David, who also answered "no." We do not understand, and Richard does not explain, why this question to Shannon is improper. The prosecutor asked Shannon to explain on redirect her previous statement that she was a strict disciplinarian of her children. Shannon answered in reference to Cody-that he could not get away with things that other kids did. The prosecutor then asked if she had ever punished Laura or ever hurt Laura, and Shannon answered "no" to both questions. Because these questions were asked in the context of clarifying what Shannon meant by being a strict disciplinarian, which trial counsel had asked about, we do not see why an objection would have been sustained. We also do not see why this question would have opened the door to the other acts evidence of Shannon's treatment of Laura, none of which relate to disciplining her. Richard fails to establish deficient performance.
. As for the question to David-whether he had ever hurt Laura-Richard's defense was that Richard had not injured Laura, that Russell or Shannon had. We are therefore not persuaded trial counsel was deficient in not objecting to this question and, moreover, we are satisfied it is not reasonably probable that the failure to object contributed to Richard's conviction.
Richard's Plan to Confess
. At trial Richard's counsel attempted to introduce testimony that he planned to confess in order to protect his family even though he did not do it. The prosecutor objected based on hearsay and disagreed that it was a prior consistent statement introduced to rebut an express or implied charge of recent fabrication. Trial counsel understood the court to rule against him, but the court found in its written decision a misunderstanding of the ruling. However, the court concluded while this testimony was "potentially usable," it was ambiguous and did not add much because Richard already testified that he falsely confessed and why. It was ambiguous, in the court's view, because the witnesses did not say that Richard told them he was going to invent a false confession; rather, that is how they interpreted his comments. Those comments could also be explained, the court stated, as letting his friends and relatives know he was going to confess, but not being able to tell them directly that he had caused Laura's injuries.
. Richard contends trial counsel was deficient because he misunderstood the court's ruling and did not persist in seeking admission of this evidence. Richard does not explain why this testimony would have been admissible. Although the court's comments at one of the post-conviction hearings indicate the court would have admitted it, the court does not state this in its written decision, and we are doubtful that the testimony of these witnesses-that Richard told them he was going to confess even though he did not do it-comes within Wis. Stat. § 908.01(4)(a)2. Nothing in the prosecutor's cross-examination of Richard or opening or closing argument suggests that the prosecutor was implying that Richard was lying when he testified he told this to his friends and relatives. Of course, the prosecutor expressly charged that Richard was lying when he testified that he had not injured Laura. However, the charge that a person is
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