COURT OF APPEALS

DECISION

DATED AND FILED

November 3, 2021

Sheila T. Reiff

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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP598-CR Cir. Ct. No. 2017CF408

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

ROBERT J. STYNES,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Kenosha County: DAVID M. BASTIANELLI, Judge. Affirmed. 

Before Gundrum, P.J., Neubauer and Reilly, 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 WIS. STAT. RULE 809.23(3). 
No. 2020AP598-CR

2

¶1 PER CURIAM. Robert J. Stynes appeals the judgment of 

conviction, following a jury trial, of one count of second-degree reckless 

homicide. Stynes also appeals the order denying his postconviction motion for 

relief. Stynes contends that he received ineffective assistance of trial counsel and 

that the cumulative effect of counsel’s errors prejudiced his defense. We disagree 

and affirm. 

BACKGROUND

¶2 On April 20, 2017, the State charged Stynes with one count of 

second-degree reckless homicide. The charges related to the death of Stynes’s

two-month old son, Cameron. According to the criminal complaint, on April 11, 

2017, medical personnel responded to Stynes’s 911 call reporting that his infant 

son was not breathing. Stynes told one of the responding officers that he placed 

Cameron in his bassinet on his back, and then took a nap. Stynes stated that when 

he awoke from his nap he found Cameron on his stomach, not breathing, and with 

spit up all over his body. Stynes attempted to resuscitate his son, but was 

unsuccessful. According to the complaint, Stynes then proceeded to give 

inconsistent statements to law enforcement. An autopsy later showed that 

Cameron suffered a skull fracture and internal hemorrhaging consistent with blunt 

force injury to the head.

¶3 The matter proceeded to trial where multiple witnesses testified.

Cameron’s mother, A.J., testified that when she was holding the infant at the 

hospital after he died, she discovered a bump on the back of the skull that had not 

been there the previous day. The medical examiner who conducted the autopsy 

testified that the autopsy revealed a skull fracture as well as both subdural and 

subcranial hemorrhaging, but that he could not form a definitive opinion about the 
No. 2020AP598-CR

3

cause of death. Accordingly, the medical examiner’s report states Cameron’s 

cause of death as “undetermined.” Two forensic pathologists gave expert 

testimony stating that the cause of death was impact trauma.

¶4 The defense presented evidence from a forensic pathologist who 

opined that Cameron’s cause of death was undetermined. Specifically, the defense 

expert testified that there was no visible fracture in the photo of Cameron’s skull 

before it was cut during the autopsy. Rather, he stated that what the medical 

examiner identified as a fracture was actually the result of an autopsy assistant’s 

poor job cutting into the skull with an electrical saw. The defense expert also 

testified that there was no evidence of blunt force trauma, stating Cameron did not 

suffer from any hemorrhaging and that what were identified as hemorrhages was 

actually a “postmortem clot” caused by gravity after Cameron’s death. 

¶5 On cross-examination, the State established that the defense expert:

had been fired from his job at a Florida medical examiner’s office in connection 

with his testimony in the Trayvon Martin case, had surrendered his medical 

license in two states, was self-employed, and was receiving a $5,000 fee for his 

work in Stynes’s case. On redirect, the defense expert testified that he performed 

the autopsy on Martin and was a State’s witness. He stated that he opined that 

Martin’s death was a homicide and that he stated so on the witness stand. The 

defense expert further testified that after the defendant was acquitted, he and 

others were asked to resign their positions. The jury ultimately found Stynes 

guilty as charged.

¶6 The matter proceeded to sentencing, where the trial court addressed 

the presentence investigation report (PSI), letters submitted to the court, and a 

statement from Cameron’s mother. Stynes also exercised his right of allocution, 
No. 2020AP598-CR

4

telling the court that he did not kill his son. The sentencing court noted that the 

PSI had “some holes in it” because Stynes had not provided any information to the 

writer. The sentencing court then discussed the relevant sentencing factors and 

objectives and sentenced Stynes to fifteen years of confinement and ten years of 

extended supervision. 

¶7 Stynes filed a postconviction motion alleging numerous instances of 

ineffective assistance of counsel. Stynes alleged that the cumulative effect of 

counsel’s errors prejudiced his defense. The motion alleged that counsel: failed to 

have a psychologist testify that Stynes’s grief caused him to make inconsistent 

statements after Cameron’s death; failed to impeach A.J.’s testimony about 

Cameron’s ability to roll over and whether Cameron “was healthy or was on 

medication at the time”; failed to object to the use of a video recording created by 

A.J. the night before Cameron’s death; failed to review the autopsy report with the 

defense expert; failed to enter an x-ray of Cameron’s head prior to the autopsy, 

which showed no fracture; failed to send the autopsy report back with the jury; 

failed to interview and call the autopsy assistant as a witness; failed to question the 

defense expert witness about the x-rays taken of Cameron’s skull; failed to have 

Stynes testify in order to render his videotaped statement to police admissible; 

failed test swabs of a wet spot found on Stynes’s bed; failed to interview Stynes’s

son, age two and one-half at the time, who was present when Cameron died; and 

failed to adequately prepare Stynes for sentencing. 

¶8 At a Machner1 hearing, postconviction counsel elicited testimony 

from trial counsel on most of the alleged deficiencies; however, postconviction 

 

1

 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
No. 2020AP598-CR

5

counsel did not question trial counsel about the video of Cameron taken the night 

before he died, Stynes’ videotaped statement to police, the swabs of a wet spot on 

the bed, and the lack of a defense interview of Stynes’s toddler son.2

Postconviction counsel did, however, raise two new issues: that counsel failed to 

preemptively address the defense expert’s termination from his previous job and 

that trial counsel failed to argue that Cameron’s death was caused by viral 

pneumonia. Following trial counsel’s testimony, the postconviction court denied 

Stynes’s motion. This appeal follows. Additional facts will be included as 

relevant to the discussion.

DISCUSSION

¶9 On appeal, Stynes raises many of the same issues raised either in his 

postconviction motion or at the Machner hearing. Stynes contends that the 

cumulative effect of trial counsel’s alleged deficiencies resulted in prejudice. We 

address each alleged deficiency.

¶10 To prevail on an ineffective assistance claim, a defendant must show 

both that counsel’s performance was deficient and that the deficient performance 

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); 

State v. Thiel, 2003 WI 111, ¶18, 264 Wis. 2d 571, 665 N.W.2d 305. Counsel’s 

performance is “constitutionally deficient if it falls below an objective standard of 

reasonableness.” Thiel, 264 Wis. 2d 571, ¶19. “Counsel’s decisions in choosing a 

trial strategy are to be given great deference.” State v. Balliette, 2011 WI 79, ¶26, 

 

2

 Postconviction counsel had the opportunity to question trial counsel about each of these 

alleged deficiencies at the Machner hearing but did not do so. Because the record is “devoid of 

any testimony from defendant’s trial counsel regarding” these claims, we cannot find deficient 

performance on these issues and do not address them further. See Machner, 92 Wis. 2d at 804.
No. 2020AP598-CR

6

336 Wis. 2d 358, 805 N.W.2d 334. A reviewing court can determine that defense 

counsel’s performance was objectively reasonable, even if trial counsel offers no 

sound strategic reasons for decisions made. State v. Koller, 2001 WI App 253, 

¶53, 248 Wis. 2d 259, 635 N.W.2d 838. This court will sustain counsel’s strategic 

decisions as long as they were reasonable under the circumstances. See Balliette, 

336 Wis. 2d 358, ¶26.

¶11 Deficient performance is constitutionally prejudicial if “there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id., ¶24 (citation 

omitted). The postconviction court’s findings of fact will be upheld unless they 

are clearly erroneous, but whether counsel’s performance satisfies the 

constitutional standard for ineffective assistance of counsel is a question of law, 

which we review de novo. See id., ¶21.

¶12 Where there are multiple instances of deficient performance, 

“prejudice should be assessed based on the cumulative effect of counsel’s 

deficiencies.” Thiel, 264 Wis. 2d 571, ¶59. When determining prejudice, a 

reviewing court “may aggregate the effects of multiple incidents of deficient 

performance in determining whether the overall impact of the deficiencies 

satisfied the standard for a new trial under Strickland.” Thiel, 264 Wis. 2d 571, 

¶60.

Failure to Retain a Trauma Expert

¶13 First, Stynes contends that trial counsel was ineffective for failing to 

retain an expert witness to testify about the effect Stynes’s grief had on his ability 

to communicate consistently with law enforcement following Cameron’s death. 
No. 2020AP598-CR

7

Whether expert testimony is necessary in a given situation is a question of law, 

which we decide without deference to a trial court’s opinion on the matter. See 

Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, ¶11, 240 Wis. 2d 209, 621 

N.W.2d 633. Our supreme court has explained that “there is a distinction 

‘between matters of common knowledge and those needing expert testimony to 

explain.’” Id., ¶16 (citation omitted). “[E]xpert testimony should be adduced 

concerning matters involving special knowledge or skill or experience on subjects 

which are not within the realm of the ordinary experience of mankind, and which 

require special learning, study, or experience.” Cramer v. Theda Clark Mem’l 

Hosp., 45 Wis. 2d 147, 150, 172 N.W.2d 427 (1969).

¶14 At the Machner hearing, trial counsel testified that he did not retain 

an expert to testify about Stynes’s inconsistent statements because he did not 

believe that the testimony would be admissible. Specifically, counsel stated that 

he did not consider Stynes’s statements to be inconsistent, rather, Stynes was 

speculating about how his son could have died—something any reasonable person 

in Stynes’s position would have done. As the postconviction court noted, it is 

within the realm of ordinary experience that one who suffers from sudden trauma 

may not fully grasp or comprehend questions being asked at the height of his or 

her grief. Indeed, trial counsel explained as much to the jurors. Thus, we agree 

with the postconviction court that counsel was not required to retain an expert to

testify about the effects of Stynes’s grief on his statements to law enforcement and 

did not render deficient performance in this regard.

Failure to Impeach the Mother

¶15 Stynes contends that trial counsel was ineffective for failing to 

impeach A.J. regarding statements she made about Cameron’s ability to roll over 
No. 2020AP598-CR

8

and about whether Cameron was healthy and/or on medications at the time of his 

death. 

¶16 Stynes’s first argument is based on what he perceives to be a 

contradiction between A.J.’s trial testimony and statements she made to the 

Deputy Medical Examiner. At trial, A.J. testified that Cameron was unable to flip 

from his back onto his stomach. A supplemental autopsy report states that A.J. 

indicated that the infant “would roll onto his tummy from a side-laying position” 

in a way that was “more accidental versus purposeful.” We agree with the State 

that the statements are not inconsistent because rolling over from back to front is 

not the same as rolling onto the stomach from a side position. Accordingly, this 

issue did not provide a ground for impeachment.

¶17 A.J. also testified that Cameron did not have any illnesses and stated 

that he was not taking any medications at the time of his death. Stynes asserts that 

both statements are false because medical records indicate that Cameron was 

prescribed Zantac over a month before his death for excessive spitting up. At the 

Machner hearing, trial counsel explained that he had “no proof that any of these 

things like spitting up or any of the other things that are in the records had 

anything whatsoever to do with the cause of death.” Moreover, Stynes admitted to 

investigators that the medication had been discontinued weeks before Cameron’s 

death. In short, any inconsistencies in A.J.’s testimony were irrelevant.

¶18 Further, counsel testified that he chose not to aggressively question 

A.J. because he believed it would have been a “very poor strategy” to attack a 

grieving mother, especially since the theory of defense did not blame A.J. 

Counsel employed a reasonable trial strategy, which we will uphold. See 

Balliette, 336 Wis. 2d 358, ¶26.
No. 2020AP598-CR

9

Failure to Send the Autopsy Report to the Jury

¶19 Stynes argues that because the autopsy report labeled the cause of 

death as “undetermined,” the autopsy report should have gone to the jury when it 

began deliberations. At the Machner hearing, trial counsel testified that he “did 

not ... believe that the autopsy should have gone to the jury” because the 

autopsy’s conclusion was “clear” and there was testimony discussing the autopsy 

report at trial; thus there was no need for the jury to have the physical report.

Counsel also stated that there were “other things in the autopsy that were not 

testified to,” making it inappropriate to submit to the jury during deliberations. 

Counsel employed a strategic decision in deciding not to send the report, which 

contained extraneous information, to the jury. Counsel’s decision was reasonable 

under the circumstances. See Balliette, 336 Wis. 2d 358, ¶26.

Failure to Argue Other Potential Causes of Death

¶20 Stynes argues that trial counsel should have argued that the cause of 

Cameron’s death might have been viral pneumonia. The argument is based on a 

comment in an email from the defense expert to trial counsel, which requested 

tissue slides in order to rule out that possibility. Counsel testified that the defense 

expert tested the slides and determined that pneumonia was not a viable defense. 

Trial counsel explained that there was no medical basis for him to argue other 

potential causes of death. We agree with the postconviction court that 

“possibilities” are not admissible evidence and that counsel employed a reasonable 

strategy by refusing to pursue a defense based on a theory that was negated by a

medical expert. See State v. Allen, 2017 WI 7, ¶46, 373 Wis. 2d 98, 890 N.W.2d 

245 (“[F]ailing to make meritless arguments” cannot be the basis for a claim of 

ineffective assistance of counsel.).
No. 2020AP598-CR

10

Failure to Enter the X-ray of Cameron’s Head Taken Prior to the Autopsy

¶21 Stynes argues that pre-autopsy cranial x-rays showing no visible 

skull fracture should have been submitted to the jury. Stynes contends that trial 

counsel should have “enter[ed] into evidence as many pieces of evidence [as] 

possible that show no fracture existed to begin with until it showed up in the 

autopsy.” At the Machner hearing, counsel stated that the defense expert clearly 

testified at trial that the x-rays did not show a skull fracture. The State did not 

dispute the x-ray findings; instead, the State’s expert opined that the angle of the 

x-ray was the reason a visible fracture did not appear. Because the x-ray was fully 

testified to, counsel did not see a need to submit the x-rays into evidence. 

Counsel’s decision was strategic and reasonable, therefore we conclude that 

counsel did not render deficient performance as to this claim. See Balliette, 336 

Wis. 2d 358, ¶26.

Failure to Preemptively Raise Negative and Controversial Media Coverage 

Regarding the Defense Expert’s Previous Employment and Discharge

¶22 Next, Stynes contends that counsel should have taken “preemptive 

action” to ask the defense expert about “the circumstances concerning his 

termination and put them in a light most favorable” to his credibility, rather than 

“not address[ing] it at all.” At the Machner hearing, counsel stated that the State’s 

attempt to impeach the defense expert did not actually undermine the expert’s 

credibility. Counsel noted that the defense expert was likely fired for “not sid[ing] 

with the State in the prosecution of the Martin case.”

¶23 That trial counsel could have preemptively elicited testimony about 

the defense expert’s termination from a Florida medical examiner’s office does not 

automatically render counsel’s decision not to do so deficient. The defense expert 
No. 2020AP598-CR

11

testified in numerous trials, was aware that his employment history could be raised 

at trial, and explained that he believed his termination was a result of not siding 

with the party that hired him. It was not unreasonable for counsel to assume that 

the expert’s credibility remained intact. Accordingly, Stynes has not overcome the 

strong presumption that counsel acted properly within professional norms. See 

Strickland, 466 U.S. at 689-91.

Failure to Interview the Autopsy Assistant

¶24 Stynes argues that trial counsel failed attempt to speak to the autopsy 

assistant who “actually made the saw cut into the skull” that the defense expert 

blamed for the skull fracture. At the Machner hearing, counsel testified that he 

made a deliberate decision not to interview the assistant. Counsel stated that if he 

had interviewed the assistant, the assistant would have simply stated that she did 

not cause the fracture, and the State would have called the witness to the stand to 

attest to the same. Rather, counsel found it strategically preferable to argue to the 

jury that the witness had not been called by the State “to refute what [the defense] 

had alleged.” Counsel’s decision was reasonably based on fact and law and thus 

does not constitute ineffective assistance. See State v. Hubanks, 173 Wis. 2d 1, 

28, 496 N.W.2d 96 (Ct. App. 1992).

Failure to Prepare Stynes for Sentencing

¶25 Finally, Stynes contends that trial counsel failed to prepare him for 

sentencing. Specifically, Stynes contends that:

[n]o one explained to Mr. Stynes what a presentence 

investigation was or to expect a visit from a person from 

the probation department to interview him for sentencing 

purposes. No one counseled Mr. Stynes about the fact that 

the Court needed to know more about his background, as 
No. 2020AP598-CR

12

the Court clearly indicated on the record during the

sentencing.

 [Trial counsel] never made any recommendation to the 

Court for a fair and proper sentence. In fact, [trial counsel]

said only two paragraphs in the transcript that was very 

uninformative.

 Under these circumstances, looking at the charge and 

correctional time Mr. Stynes was facing, his lack of 

remorse due to his denial of doing what was alleged and an 

overall consideration of the trial, it is difficult to believe 

[trial counsel] wouldn’t have had his own defense 

presentence report or at a minimum a sentencing 

memorandum.

(Record citation omitted.) 

¶26 Stynes’s allegations are belied by trial counsel’s testimony at the 

Machner hearing. Counsel testified that he met with Stynes multiple times pretrial and that following the jury verdict, counsel met with Stynes and informed 

Stynes that a presentence writer would also be meeting with him. Counsel stated 

that he advised Stynes not to discuss the facts of the case with the writer, but that 

Stynes chose not to answer other questions pertaining to his education and 

employment because he was “angry.” Counsel also testified that he met with 

Stynes following the completion of the report. Counsel further stated that he 

informed the sentencing court of all of the factors he thought were relevant to the 

court’s decision, including Stynes’s lack of a criminal record, his employment 

history, his lack of a motive, and the fact that he had other children. The 

postconviction court found counsel credible and determined that counsel was not 

deficient as to sentencing.

¶27 We affirm the postconviction court’s credibility determinations 

regarding ineffective assistance of counsel issues unless the determinations are 

clearly erroneous, see State v. Domke, 2011 WI 95, ¶58, 337 Wis. 2d 268, 805 
No. 2020AP598-CR

13

N.W.2d 364. There is no basis in the record for us to overturn the postconviction 

court’s credibility determination. Accordingly, we conclude that counsel did not 

render deficient performance as to sentencing.

Cumulative Prejudice

¶28 Stynes acknowledges that each individual alleged deficiency is 

“[p]robably” insufficient to support a claim of ineffective assistance of counsel; 

rather, Stynes contends that the cumulative effect of the alleged deficiencies taken 

together prejudiced his case. To find cumulative prejudice, we must find that the 

effect of multiple deficiencies prejudiced the defendant and undermined 

confidence in the outcome of the trial. Thiel, 264 Wis. 2d 571, ¶58. Because 

none of the alleged deficiencies fall below an objective standard for 

reasonableness, there is no cumulative prejudice. See id., ¶59 (court must 

calculate cumulative effect by taking together individual deficiencies).

¶29 Taking together trial counsel’s explanations at the Machner hearing, 

the evidence introduced at trial, and the postconviction court’s rulings, we 

conclude that trial counsel did not provide ineffective assistance of counsel.

Accordingly, we affirm the judgment of conviction and the order denying Stynes’s 

postconviction motion.3

 

3

 To the extent Stynes raises issues not addressed by this decision, we conclude that our 

resolution of the issues addressed is dispositive and that the record supports the trial court and the 

postconviction court.
No. 2020AP598-CR

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By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5. (2019-20).