State v. Cedric Tung, 2021AP1705-CR, 6/20/23, recommended for publication; case activity (including briefs)
In a factually complicated ineffectiveness case that does not involve the usual Strickland analysis, the court of appeals affirms based primarily on a messy factual record.
Tung was charged with first-degree sexual assault of a child based on conduct occurring in 2017. (¶2). According to the criminal complaint, he touched a seven year-old child over her clothing for ten to fifteen seconds. (Id.). Tung admitted to the conduct in an interview with police. (¶3). At the beginning of his trial, counsel for Tung informed the jury that the defense would be a lack of intent and that the touching was accidental. (¶4).
To say that things did not go according to plan is an understatement. After Tung’s confession was played for the jury, Tung took the stand and told the jury that he had “lied” when he admitted to the touching. (¶9). Tung also answered in the affirmative when asked by the prosecutor if he was “coming up again with other stories to help [himself] now[.]” (¶10). Tung otherwise testified consistently with the defense theme, asserting a lack of intent. (¶8). In closing, defense counsel conceded that while Tung may have accidentally touched the child, he did not do so with any criminal intent. (¶11). Tung was then convicted of the charged offense. (¶12).
Tung filed a postconviction motion and claimed that counsel was “ineffective for pursuing a theory of defense that Tung prohibited her from using.” (¶13). Tung testified at a postconviction hearing that he told counsel he would deny any touching when he took the stand at trial. (¶14). Trial counsel remembered their conversations differently, and specifically testified that Tung had told her he had “inadvertently” touched the child. (¶15). Trial counsel believed it would have been “unprofessional” to have denied the touching under these circumstances and therefore pursued the theory of lack of intent. (¶16). The postconviction court found counsel more credible than Tung, determined there had been no concession of guilt, and denied relief. (¶17).
On appeal, Tung raised two claims. First, under McCoy v. Louisiana, Tung argued that his lawyer impermissibly overrode his autonomy to assert innocence at trial. (¶19). As the court of appeals acknowledges, under McCoy the lawyer’s authority to make strategic choices must yield to the client’s ultimate decision as to the objectives of representation, including the decision to maintain innocence even in the face of overwhelming evidence. (¶21). To analyze Tung’s claim under Wisconsin law, COA relies on State v. Chambers, which creates a two-prong test for McCoy claims under which: (1) the defendant must expressly assert that the objective of the defense is to maintain innocence and (2) defense counsel must actually concede guilt. (¶22). On the first prong, the postconviction court’s factual and credibility findings are fatal.(¶24). On the second, the court engages in a close reading of counsel’s closing argument to find that, in context, counsel did not impermissibly concede Tung’s guilt. (¶23).
Tung’s second ineffectiveness claim is raised under the rubric of United States v. Cronic, which requires a new trial when counsel so thoroughly fails to fulfill their role as an advocate such that there has been a breakdown in the adversarial process itself. (¶25). Cronic erects an imposing bar to relief; unsurprisingly Tung fails to meet it. The court of appeals rejects any argument that defense counsel failed to subject the State’s case to meaningful adversarial testing. Noting that Tung’s trial testimony–which was inconsistent with the evidence and what he had told trial counsel–put counsel in something of a potential ethical bind, the court concludes counsel reasonably chose to carry forward with their defense of a lack of intent. (¶31).
