State v. Hineman

405 Wis.2d 233

983 N.W.2d 652

2023 WI 1

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,

v.Jeffrey L. HINEMAN, Defendant-Appellant.

No. 2020AP226-CR

Supreme Court of Wisconsin.

Oral Argument: November 8, 2022

Opinion Filed: January 10, 2023

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.

ZIEGLER, C.J., delivered the majority opinion for a unanimous Court. KAROFSKY, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined.

ANNETTE KINGSLAND ZIEGLER, C.J.

¶1 This is a review of an unpublished decision of the court of appeals, State v. Hineman, No. 2020AP226-CR, unpublished slip op., 2021 WL 5498719 (Wis.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-sexual contact with person under age 13 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 in violation of his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 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 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 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 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.

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.

[Int

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