### COURT OF APPEALS DECISION DATED AND FILED April 4, 2024

Samuel A. Christensen Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2022AP1735

- CR Cir. Ct. No. 2020CF324 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V . S EAN W. M OORE ,
D EFENDANT - A PPELLANT .

APPEAL from a judgment and an order of the circuit court for
La Crosse County: GLORIA L. DOYLE , Judge. Affirmed

.

Before Kloppenburg, P.J., Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3).No. 2022AP1735

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2 ¶ 1 PER CURIAM. Sean Moore appeals a judgment of conviction and
an order de nying his postconviction motion. The issue is whether his trial counsel
was ineffective. We affirm.

¶ 2 Moore was charged with several felony and misdemeanor offenses. These included charges of false imprisonment, intimidation of a victi m, and battery that were alleged to have occurred in May 2020 , all involving the same
victim. The jury found Moore guilty on ten of the twelve counts. Moore filed a postconviction motion alleging numerous ways in which his trial counsel provided
ineffect ive assistance. The court held an evidentiary hearing and denied the
motion.

¶ 3 To establish ineffective assistance of counsel , a d efendant must show that counsel’ s performance was deficient and that such performance prejudiced his defens e. Strickland v. Washington , 466 U.S. 668, 687 (1984). We
affirm the circuit court’ s findings of fact unless they are clearly erroneous, but the determinations of deficient performance and prejudice are questions of law that we
review without deference t o the circuit court. State v. Pitsch , 124 Wis. 2d 628,
633

- 34, 369 N.W.2d 711 (1985). We need not address both components of the analysis if defendant makes an inadequate showing on one. Strickland , 466 U.S. at 697. The test for deficient performance i s an objective one that asks whether trial counsel’ s performance was objectively reasonable under prevailing professional norms. State v. Kimbrough , 2001 WI App 138, ¶¶31

- 35, 246 Wis. 2d 648, 630 N.W.2d 752.

¶ 4 Moore first argues that his attorney was ineffective by not investigating Moore’s wife as a potential witness. The State responds that counsel’s performance was not deficient because Moore did not provide counselNo. 2022AP1735

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3 with information about how his wife’s test imony could benefit Moore’s defense
such that counsel was required to investigate Moore’s wife as a potential witness

. We conclude that counsel’s performance was not deficient.

¶ 5 We first clarify that, to the extent Moore is claiming tha t counsel made “no” investigation into his wife, that is not consistent with the record. Counsel testified that she “kept asking [Moore] what would be the point” of having his wife testify, and that Moore “couldn’t come up with any reason.” Moore’s testi mony acknowledged as much: “And then when [counsel] asked me why, I told her that, that she would answer that for herself.” From this testimony,
i t is clear that counsel’s decision not to further investigate Moore’s wife was not based on a passive failur e by Moore to offer a reason that counsel should investigate his wife , but instead on Moore’s active refusal to provide a reason
when directly asked by counsel.

¶ 6 Moore nevertheless asserts that defense counsel “must investigate and speak to a [potential trial ] witness even when the only information given to the attorney by their client is the name of the potential witness.” In support, Moore relies heavily on a federal case, Washington v. Smith , 219 F.3d 620 (7 th Cir. 2000). There, in a habeas case arising from a Wisconsin conviction, the Seventh
Circuit determined that counsel’s performance was deficient because counsel did not investigat e fourteen potential witness es whose names the defendant gave to counsel on the day of trial. Id

. a t 630

- 32.

¶ 7 In its response, t he State attempts to distinguish Washington by arguing that counsel’s failure to investigate in that case was not a situation like Moore’s, in which counsel was given only the potential witness ’s name , without
further reason to believe that the potential witness had anything beneficial toNo. 2022AP1735

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4 provide to the defense

. According to t he State , Washington’s counsel also knew
that the names Washington provided were of potential alibi witnesses, and
therefore co unsel should have understood the potential nature of their testimony and significance to the defense case, making the failure to investigate less
reasonable. However, i n his reply , Moore points to po r tions of the Washington opinion that could be read to s uggest that Washington’s counsel did not know why the defendant had given him those names. When asked whether the defendant said why he thought those fourteen people named might be important as witnesses, counsel said: “ We didn’ t even have time to discus s it because the trial started immediately thereafter.” Id. at 630. Counsel also did not discuss those names with the defendant during breaks in the trial. Id. at 631.

¶ 8 Thus, Moore appears to be correct that Washington could be
unders tood as standing for the proposition that counsel rendered deficient performance by not performing the formidable task of investigating fourteen potential witness names on the day of trial, even when counsel had no other information about those persons. 1

1 Based on the description of the timeline in the Washington opinion, it is difficult to see how, as a practical matter, such an investigation could have occurred before the trial started. Washington v. Smith , 219 F.3d 620 , 633 (7 th Cir. 2000). Perhaps the Seventh Circuit’s conclusion could be understood to be that counsel rendered deficient performance by not asking for a postponement of the trial so that an investigation could occur. That conclusion would, in turn, lead to a question about whe ther the defendant established prejudice by showing a reasonable probability that such a delay would have been granted. The court in Washington noted that this court’s affirmance of the conviction had depended in part on “the fact that a mid

trial adjourn ment would have likely been denied.” Id. However, the Washington court then did not discuss that point further in its own prejudice analysis, but apparently just assumed that an investigation would have been permitted, as the court went on to conclude th at this court “looked at the mass of evidence that Washington could have produced but for [counsel’s] errors, and it unreasonably concluded that its absence did not cause prejudice.” Id. at 635.No. 2022AP1735

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5 ¶ 9 However, holdings of the federal Court of Appeals are not binding
on Wisconsin courts. State v. Mechtel , 176 Wis. 2d 87, 94, 499 N.W.2d 662 (1993) (determinations on federal questions by either the federal circuit courts of appeal or th e federal district courts are not binding upon state courts). Moore has not cited any binding authority for the bright

- line proposition that it is unreasonable for counsel to decide not to spend limited time and resources investigating a witness when the defendant does not identify any reason to believe that the witness could provide information that is favorable to the defense.

¶ 10 Instead of that bright

- line proposition, we are left to consider the reasonableness of counsel’s decision bas ed on the specific facts :

The reasonableness of counsel’ s actions may be determined or substantia lly influenced by the defendant’ s own statements or actions. Counsel’ s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitl ess o r even harmful, counsel’ s failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel’ s conversations with the defendant may be critical to a proper assessment of counsel’ s investigation decisions, ju st as it may be critical to a proper assessment of counsel’ s o ther litigation decisions.

Strickland , 466 U.S. at 691.

¶ 11 We first observe that there is nothing about the factual allegations in the complaint that would have led defense coun sel to believe that Moore’s wife might have relevant or helpful testimony. Moore has not pointed to any otherNo. 2022AP1735

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6 source of information, such as police reports or statements of other witnesses, that should have directed counsel’s investigatory focus to Moore’ s wife. Therefore, if counsel was going to have a reason to investigate Moore’s wife, it would most likely need to come from Moore himself. As discussed earlier, counsel attempted to learn from Moore why his wife should be contacted, but Moore refused to provide further information. As a result, counsel made a reasonable decision not to further investigate Moore’s wife in pursuit of unknown potential information of unknown value, despite Moore’s request that counsel do so.

¶ 12 Moore also relies on Toliver v. McCaughtry , 539 F.3d 766 (7 th Cir. 2008). He asserts that it stands for the proposition that, when counsel did not investigate a potential witness out of concern that the witness might be perceived as biased, this was not a reasonable strategic decision unless counsel first interviewed the witness to evaluate his testimony and presentation. However,

even if Toliver stands for that proposition, not every decision that counsel makes when preparing for a case is a “strategic” one. There is no question of strategy involved when counsel decides not to investigate a person who appears to have no meaningful connection to the case.

¶ 13 Moore next argues that his trial counsel was ineffective by not obtaining the phone that he was carrying at the time of his arrest. A t the postconviction hearing , Moore testified that the phone contained a video sent to him by the victim that would have undercut her testimony , and that he told counsel

to retrieve the phone from the jail, but cou nsel never obtained the phone

. However, the circuit court found that Moore kept from his counsel the nature of the content on the phone that might be significant. Moore does not argue that this finding was erroneous, and we accept it. Accordingly, the r esolution of this issue is similar to that of the previous issue. Counsel could reasonably decline to obtainNo. 2022AP1735

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7 a phone, despite the defendant’s request, when the defendant did not tell counsel that it had any specific evidentiary value.

¶ 14 Moore next argues that his trial counsel was ineffective by not subpoenaing the victim’s phone and phone records. If counsel had done so, he argues, counsel would have obtained the video from the victim that he testified about in support of the previous i ssue. Again, this argument fails because Moore
does not claim that he told his trial counsel that this would be a reason to investigate the victim’s phone.

¶ 15 Moore next argues that his trial counsel was ineffective by calling the victim’ s mother as a witness at trial without first interviewing her or knowing what her testimony would be. He argues that the testimony from the mother was damaging to Moore’s case because the mother describ ed an injury she observed on the victim, which the victim attributed to Moore, and the mother testif ied that the victim was afraid of Moore. The State responds that counsel made a reasonable strategic decision to call the mother as a witness because counsel believed that her
testimo ny would be likely to help Moore ’s case , regardless of how she testified.

¶ 16 More specifically, counsel testified that she “didn’t really care” how
the victim’s mother would testify. Counsel explained that , if the mother testified
that sh e had not heard about the victim’s allegations of injur ies caused by Moore,
that would reinforce Moore’s theory that the victim was “making them up.” However, if the mother testified that she had been aware of the victim’s alleg ed injuries , counsel testif

ied that “then the question becomes why didn’t she do something about them.” We understand counsel to have meant that such testimony would not be credible if the mother had not also taken action to protectNo. 2022AP1735

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8 her daughter, which was the way counsel argued th is point in closing argument at
trial.

¶ 17 Moore argues that his position is supported by State v. Domke , 2011 WI 95, 337 Wis. 2d 268, 805 N.W.2d 364. There, the court held that it was deficient performance for counsel to have called a wit ness without speaking to her. Id. , ¶¶51

- 53. The court stated: “A reasonable attorney, knowing that a witness had been vacillating ” about whether she believed the victim or the defendant,

“ would have done some investigation when faced with the risk of ca lling a witness who may provide either extremely useful or extremely damaging testimony.” Id. , ¶52.

¶ 18 The contrast between Domke and Moore’s case is apparent based on
the above

- quoted language

. In Domke , counsel did not talk to the witn ess under
circumstances where the witness ’s testimony could be extremely damaging. Here, by contrast, although trial counsel’s investigator had told counsel that the mother would be more likely to favor the victim than the defense , counsel’s analysis, as described above, anticipated that possibility and sought to capitalize upon it . We

cannot conclude that counsel’s analysis was an unreasonable one that was outside
the wid e range of professional norms.

¶ 19 Moore next argues that his trial counsel was ineffective by not investigating certain acts by the victim that , in the defense investigator ’s view,
would have showed the victim’s dishonesty in other cases. Moore argues that counsel was ineffective by not filing an other

- acts motion and se eking to haveNo. 2022AP1735

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9 evidence of these acts admitted for the purposes of “motive and intent to lie” under
W IS

. S TAT

. § 904.04(2)(a). 2

¶ 20 This argument fails because Moore does not acknowledge the applicable rule of evidence. At bottom , Moore ’s a rgument is that counsel should
have presented evidence of specific instances in which the victim was allegedly
untruthful in the past to attack her character for truthfulness. However, W IS

. S TAT

. § 906.08(2) precludes the use of such evidence for that pur pose. It provides: “ S pecific instances of the conduct of a witness, for the purpose of

atta cking or supporting the witness’ s character for truthfulness, other than a conviction of a crime or an adjudication of delinquency as provided in [ W IS

. S TAT

. §] 90 6.09, may not be proved by extrinsic evidence.” See § 906.08(2). 3 Moore does not provide any argument showing that this rule may be skirted by reframing the extrinsic evidence as evidence of “other acts. ” 4

¶ 21 Moore next argues that his t rial counsel was ineffective by failing to object to a circuit court ruling that the victim’s sister would not be allowed to testify about the victim’s character for truthfulness. This framing of the issue does not fully take into account the actual recor d from the trial. When the defense called the sister as a witness, the prosecutor objected to her being asked about the

2 All references to the Wisconsin Statutes are to the 2021

- 22 version.

3 W ISCONSIN S TAT

. § 906.0 8 (2), which bars extrinsic evidence , allows specific instances of conduct to be inquired into on cross

- examination of the witness. However, even if Moore were to now reframe his argument to be that counsel was ineffec tive by not cross

- examining the victim about these other incidents, he has failed to show prejudice, because he did not call the victim as a witness at the postconviction hearing to establish what her responses to that cross

- examination would have been.

4 The State’s brief on appeal contained an argument on the topic of other

- acts evidence that it later asked to withdraw. We have not considered that argument here.No. 2022AP1735

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10 victim’s character for truthfulness

. As grounds , the prosecutor explained, the
sister told the State’s investigator that she believed that the victim was not truthful,
but that , to quote the prosecutor’s argument, “she’s just assuming this

. ” In response, Moore’s counsel agreed that she would not ask the sister for such opinion evidence.

¶ 22 In practical effect, then, the re was no “ruling” by the circuit court that barred the sister’s opinion evidence, and Moore’s argument premised on the existence of such a ruling fails. To the extent that the argument might be reframed as one that trial counsel was ineffective by not se eking to ask the sister’s opinion, that would require a factual showing that counsel would have had some basis to dispute the prosecutor’ s description of the sister’s opinion as being merely an assumption. Moore does not point to any specific evidence in the record that would perform that function. The facts that they were siblings and lived together at one point do not suffice.

¶ 23 Finally, Moore argues that his trial counsel was ineffective by not asking several questions of witnesses du ring trial. As to the claim that counsel
should have asked the victim or Moore about the video Moore said she sent to him, it appears that counsel was not aware of this video before receiving a note that Moore handed to counsel during trial. It was not u nreasonable for counsel not to explore a subject during trial about which she lacked significant information in
advance.

¶ 24 As to the claim that counsel should have asked Moore or the officer who questioned him about whether Moore appeared to be intoxicated at th e time
Moore provided a statement to the officer , Moore does not point to any basis in theNo. 2022AP1735

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11 record to conclude that counsel knew about this issue before Mo ore wrote a note raising the issue during the trial.

¶ 25 As to the claim that counsel should have asked Moore or the victim whether they had consensual sex shortly after one of the charged incidents, Moore testified at the postconviction hearing that he neve r told his attorney this fact.

¶ 26 Finally, Moore argues that counsel should have asked Moore or the victim whether they were under the influence of cocaine or other substances during the charged incidents, for the purpose of creating doubt about the reliability of the victim’s memory. The postconv iction testimony of Moore and counsel
differed on whether Moore told her about this before trial. The circuit court did not appear to make a specific finding on this point. However, even if counsel was aware of this assertion by Moore, it was reasonable not to bring this information
out. The victim had already acknowledged that she had been drinking. Furthermore, bringing out to the jury that Moore and the victim were both using cocaine, as Moore stated at the postconviction hearing, would also have und ercut Moore’s own credibility at trial when he testified about what did and did not happen with respect to the charged incidents.

By the Court.

— Judgment and order affirmed

. This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5

.