State v. Terrance L. Millighan

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 24, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP370-CR Cir. Ct. No. 2018CF6044

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TERRANCE L. MILLIGHAN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: MARK A. SANDERS, Judge. Affirmed.

Before White, C.J., Donald, and Geenen, 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. 2024AP370-CR

¶1 PER CURIAM. Terrance L. Millighan appeals the judgment
convicting him of first-degree sexual assault—sexual contact with a person under
age 13. He also appeals the order denying his motion for postconviction relief.
We reject Millighan’s numerous claims of ineffective assistance of counsel and
affirm.

BACKGROUND

¶2 This case involves allegations of sexual assault made by J.H. against
Millighan, who was her mother’s live-in boyfriend and the father of three of her
half-brothers. The State charged Millighan with one count of first-degree sexual
assault of a child—sexual intercourse. J.H.’s mother was charged with knowing
about the abuse and failing to act.

¶3 Milligan and J.H.’s mother’s cases proceeded to trial together. The
jury convicted Millighan of first-degree sexual assault of a child—sexual contact.1
The circuit court sentenced him to 22 years of initial confinement and 10 years of
extended supervision.

¶4 Millighan sought postconviction relief based on ten claims of
ineffective assistance of trial counsel and a potential Brady issue.2 See Brady v.
Maryland, 373 U.S. 83, 87 (1963). In a 16-page written decision, the circuit court
denied six of Millighan’s ineffective assistance claims without a hearing on
grounds that they were insufficiently pled or belied by the record.

1
During trial, the State amended the charge from “sexual intercourse” to “sexual
contact.”
2
Millighan abandons the Brady issue on appeal.

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No. 2024AP370-CR

¶5 Following an evidentiary hearing on Millighan’s remaining claims,
the circuit court denied the motion. This appeal follows. Additional background
information relevant to this court’s analysis is provided below.

DISCUSSION

¶6 To prevail on a claim of ineffective assistance of counsel, a
defendant must prove both that counsel’s performance was deficient and that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). To prove deficient performance, the defendant must show that counsel’s
actions or omissions “fell below an objective standard of reasonableness.” Id. at
687-88. To prove prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. If a defendant fails to make a
sufficient showing on one prong of the Strickland test, a reviewing court need not
address the other. Id. at 697.

¶7 A claim of ineffective assistance of counsel presents a mixed
question of law and fact. State v. Domke, 2011 WI 95, ¶33, 337 Wis. 2d 268, 805
N.W.2d 364. We will uphold the circuit court’s findings of fact, which include
“the circumstances of the case and counsel’s conduct and strategy, unless they are
clearly erroneous.” Id. (citation modified). Whether a defendant carried his or her
burden to establish deficient performance and prejudice is an issue of law
reviewed de novo. Id.

¶8 A defendant who alleges ineffective assistance of counsel must seek
to preserve counsel’s testimony in a postconviction hearing. State v. Machner, 92
Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). The defendant, however, is
not automatically entitled to such a hearing. State v. Allen, 2004 WI 106, ¶14, 274

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No. 2024AP370-CR

Wis. 2d 568, 682 N.W.2d 433. Rather, the circuit court is required to hold an
evidentiary hearing only if the defendant has alleged, within the four corners of the
postconviction motion, sufficient material facts that, if true, would entitle the
defendant to relief. Id., ¶¶14, 23. Whether a postconviction motion alleges
sufficient material facts to require a hearing is a question of law that we review de
novo. Id., ¶9.

¶9 If a postconviction motion “does not raise facts sufficient to entitle
the defendant to relief, or if it presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the circuit
court has the discretion to grant or deny a hearing.” State v. Ruffin, 2022 WI 34,
¶28, 401 Wis. 2d 619, 974 N.W.2d 432. “In other words, if the record
conclusively demonstrates that the defendant is not entitled to relief, then either
option—holding a hearing or not—is within the circuit court’s discretion. We
review discretionary decisions for an erroneous exercise of discretion.” Id.

I. The circuit court properly denied six of Millighan’s claims without
a hearing.

¶10 The circuit court correctly concluded that Claims 1, 4, 6, 8, 9, and 10
failed to meet the requisite pleading standard and, consequently, did not warrant a
hearing. We address each in turn.3

A. Claim 1

¶11 For Claim 1, Millighan argued that trial counsel performed
deficiently by failing to assert that the circuit court improperly relied on the
3
Like the State, we identify the claims by the numbering used in the circuit court’s
written order denying Millighan’s postconviction motion in part and granting the motion in part.

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No. 2024AP370-CR

testimony of J.H.’s grandfather when it ruled on how J.H.’s testimony would be
presented.

¶12 At the start of trial, the jury was informed that Millighan was
charged with first-degree sexual assault of a child and that J.H.’s mother was
charged with knowingly failing to protect J.H. from assault. J.H.’s paternal
grandfather was the State’s first witness. He described how J.H. came to stay at
the house in July 2018; J.H.’s grandmother and J.H.’s father also lived there.

¶13 J.H.’s grandfather testified about an incident when he saw J.H. react
with fear to her mother’s arrival, start shaking, and run to hide in a closet. He
testified: “Her mother scared her to death. And she’s still terrified of her mother
to this day.”

¶14 Nine-year-old J.H. took the stand next. The transcript reflects that
the circuit court addressed J.H. and got only a partial answer. The court then
excused the jury and took a short break before describing the events that had
transpired:

So when [J.H.] came in and was stepping on to the
witness stand, she looked over at the defense table and
began to cry—cry fairly heavily. When she got on to the
witness stand, she began to cry even more heavily when
she again looked at the defense table. She was comforted
by the victim witness advocate for about four minutes.

It was [then] that we took a break.… And I began
to chat with her and I asked her to do a couple of things.
And she—that’s when she broke down again. My intent
was going to be to ask her to promise to tell the truth, and
then use the microphone, and so on.

The court added that it had observed, from about three feet away from J.H., “that
her reaction was triggered by seeing the defendants and being in the same room as
the defendants.”

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No. 2024AP370-CR

¶15 The circuit court subsequently sent the jury home for the day. The
following day, the court heard argument from the parties as to the permissibility of
having J.H. provide closed-circuit testimony. See WIS. STAT. § 972.11(2m) (2023-
24).4

¶16 The State argued that this was “an exceptional case with an
exceptional amount of trauma to this child, and having to testify not only about the
sexual assault that the defendant Millighan did to her, but also having to testify
about [sic] her mom sat there and ignored it is exceedingly traumatic for her[.]” In
contrast, trial counsel’s position was that “what everyone saw here is not because
of trauma that actually happened. It’s because [J.H.] didn’t want to lie.”

¶17 The circuit court, without the jury present, set forth the constitutional
and statutory law relevant to its determination. The court stated that it had
considered the following: the content of two videotaped forensic interviews of
J.H., which the court had watched; the testimony of J.H.’s grandfather about J.H.’s
fear of her mother; and “the experience of having seen [J.H.] in the courtroom.”
After making extensive findings concerning the events of the preceding day, the
court additionally found that J.H. “would be traumatized by not the courtroom in
general, but by the presence of the defendants and that some alternate procedure is
necessary to protect her welfare.”

4
The current version of WIS. STAT. § 972.11(2m)(a) (2023-24) is the same as it was at
the time of Millighan’s trial in 2019. That subsection provides that at a trial in a criminal
prosecution, “the court may, on its own motion or on the motion of any party, order that the
testimony of any child witness be taken in a room other than the courtroom and simultaneously
televised in the courtroom by means of closed-circuit audiovisual equipment” if certain
requirements are satisfied.

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No. 2024AP370-CR

¶18 The circuit court concluded: “We will not be able to secure [J.H.’s]
testimony at all if she is required to testify in the courtroom. The only way to
obtain her uninhibited truthful testimony is through the use of a closed-circuit
audiovisual procedure.” J.H. then proceeded to provide closed-circuit testimony.

¶19 In his postconviction motion, Millighan argued that when the court
accepted the testimony of J.H.’s grandfather as proof that J.H. was being
traumatized by her parents, it made a credibility determination “in clear view of
the jury,” who had already heard the grandfather’s testimony at that point in the
trial.

¶20 In its postconviction ruling on Claim 1, the circuit court concluded
that the claim failed because it inaccurately represented what happened in the
record. The court explained that the record showed that the jury was excused
during the discussions on the manner of J.H.’s testimony. The court’s reliance on
the testimony thus could not have influenced the jury’s view of the grandfather’s
testimony, which was the basis for Millighan’s assertion of trial counsel’s
deficient performance and prejudice.5 Millighan’s claim fails because the record
conclusively demonstrates that the jury was never exposed to the court’s

5
Millighan included in this claim a separate argument that the circuit court erred when,
“in an effort to make [J.H.] more comfortable as a witness,” the court denied his constitutional
right to confront his accuser. He renews this claim on appeal, asserting that the court should have
ordered a mistrial and secured a new jury panel that was not tainted by “the unusual rulings.” In
denying Millighan’s postconviction motion, the circuit court explained that it had “already
considered but rejected the defense request for a mistrial, as well as the request for a new panel”
and stood by those rulings. Millighan has not convinced us that the circuit court’s rulings were in
error. Modifying the manner of live testimony is allowed in some circumstances. See Maryland
v. Craig, 497 U.S. 836, 855-56 (1990) (holding that if it is “the presence of the defendant that
causes the [courtroom] trauma,” a court may properly deny a defendant the right to face-to-face
confrontation). This claim does not warrant further discussion.

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No. 2024AP370-CR

consideration of the grandfather’s testimony and therefore could not have been
affected by it. See Ruffin, 401 Wis. 2d 619, ¶28.

B. Claim 4

¶21 For Claim 4, Millighan asserted, in a one-paragraph argument, that
trial counsel “erred as a matter of law for not impeaching [J.H.’s grandfather]”
with statements he made about J.H.’s mother to the Division of Milwaukee Child
Protective Services (DMCPS).

¶22 As previously detailed, J.H.’s grandfather testified about an incident
when he saw J.H. react with fear to her mother’s arrival, start shaking, and run to
hide in a closet. Millighan argued that when the matter was originally reported to
DMCPS, “it was stated by the family that J.H. was fearful when her mother came
to the home, but that she was ‘immediately tucked in a corner,’ not a closet in the
bedroom as [the grandfather] testified to.” Millighan additionally alleged that the
grandfather provided false information to DMCPS by informing the investigating
worker that his son, J.H.’s father, had placement of J.H. instead of properly
explaining that J.H.’s parents had shared custody.

¶23 The circuit court concluded that the allegation in the motion “does
not sufficiently allege deficient performance or prejudice.” The motion alleged
nothing more than that counsel did not do something, which is not sufficient to
overcome the strong presumption that counsel performed reasonably. See State v.
Balliette, 2011 WI 79, ¶¶22, 25-28, 67, 78, 336 Wis. 2d 358, 805 N.W.2d 334.
We agree.

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No. 2024AP370-CR

C. Claim 6

¶24 Millighan’s Claim 6 was that trial counsel performed deficiently in
his arguments to the circuit court when certain hearsay testimony was admitted
under the residual hearsay exception. Millighan claimed that counsel “should
have strenuously objected to the admission of this testimony, citing the test in
State v. Sorenson,” 143 Wis. 2d 226, 245-46, 421 N.W.2d 77 (1988), which
requires a circuit court to consider five factors before admitting such evidence.

¶25 The record conclusively demonstrates that Millighan is not entitled
to relief on this claim. The trial transcript shows that trial counsel “directly
challenged” the admissibility of the testimony at issue under the Sorenson factors,
and the circuit court detailed its analysis under the factors before deeming the
testimony admissible. The motion failed to sufficiently allege that counsel
performed deficiently on this point, given that the record shows that counsel
objected and argued the law which the motion alleges he overlooked. See
Balliette, 336 Wis. 2d 358, ¶22 (explaining that deficient performance is not
shown “simply by demonstrating that … counsel was imperfect or less than
ideal”).6

D. Claim 8

¶26 For Claim 8, Millighan argued that trial counsel was ineffective for
not raising a Haseltine objection to forensic interviewer Lynn Cook’s testimony.

6
Millighan included a one-sentence argument that the circuit court erred in additionally
permitting the evidence to be admitted as a prior inconsistent statement. To the extent Millighan
renews this one-sentence argument on appeal, we deem it undeveloped and will not discuss it
further. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

9
No. 2024AP370-CR

See State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984) (“No
witness, expert or otherwise, should be permitted to give an opinion that another
mentally and physically competent witness is telling the truth.”). Millighan
contended that trial counsel performed deficiently by failing to object when, on
redirect examination, the State asked Cook about the significance of a child’s use
of “multiple ways” to communicate, “such as drawing or doing gestures or using
their words and then also writing[.]” Millighan argued that the following answers
by Cook—that “it’s something that helps me know that the child’s retrieving
memories” and “they’re not just repeating statements”—constituted impermissible
Haseltine vouching testimony. According to Millighan, Cook “essentially
testified that [J.H.] was ‘retrieving memories’” when providing her responses
during the interview and at trial, and that Cook “declared [J.H.] credible.”

¶27 In its decision, the circuit court explained that the record showed that
Cook “did not vouch for J.H.’s truthfulness or credibility and she did not testify to
whether the charged crimes occurred,” “nor did she label J.H.’s accusations as
truthful or retrieved memories.” Based on the testimony, the court concluded that
“even if an objection had been made, it would have been overruled.” The record
supports the court’s assessment of Cook’s testimony. Counsel is not ineffective
for failing to raise a meritless objection. State v. Berggren, 2009 WI App 82, ¶21,
320 Wis.2d 209, 769 N.W.2d 110.

E. Claim 9

¶28 Millighan additionally asserts in Claim 9 that trial counsel was
ineffective for not raising a Daubert objection to Cook’s testimony. See Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993) (providing that under the
federal equivalent to WIS. STAT. § 907.02, the circuit court serves as a gatekeeper

10
No. 2024AP370-CR

to ensure that scientific testimony is both relevant and reliable). He claims Cook
provided expert testimony, even though the State did not seek to have her qualified
as an expert, regarding the potential for suggestibility in children and the relevance
of certain modes of disclosure.

¶29 Like the circuit court, we conclude that the claims in the motion are
not supported by the testimony in the record. First, Millighan’s claim that Cook
was “a witness with unknown qualifications” is refuted by the testimony
concerning her qualifications. Next, while Millighan’s motion alleged that Cook
made “categorical claims about the susceptibility of children to outside
influences,” the court noted that the motion did not point to any such claims.
Instead, the court concluded that “[t]he record reflects that Cook did not make any
‘categorical claims’ that children are not susceptible to outside influences.”
Having reviewed the record, we again agree with the circuit court’s conclusion.

¶30 The circuit court additionally explained that even if trial counsel had
pursued a Daubert hearing, Cook’s testimony would have been admitted.
Millighan’s postconviction motion failed to allege sufficient facts that trial
counsel’s failure to make a Daubert objection constituted deficient performance.
See Berggren, 320 Wis. 2d 209, ¶21.

F. Claim 10

¶31 In Claim 10, Millighan argues trial counsel was ineffective for not
objecting to the presence of members of the “Guardians of the Children”
motorcycle club at the trial or moving for a mistrial after a mid-trial hallway
disruption by a member of the public.

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No. 2024AP370-CR

¶32 After the State had rested its case-in-chief, during a break when the
jury was out of the courtroom, the circuit court was alerted to a disturbance in the
hallway. The State informed the court that someone seemingly unconnected with
the trial had yelled things while the jury was in the vicinity. The court took
testimony, outside the jury’s presence, from a witness to the incident. The witness
described hearing someone say “he’s guilty, don’t let him go, hang him, you know
he did it.” The witness indicated that he did not know if any of the jurors heard
the remarks.

¶33 Following the witness’s testimony, the circuit court offered two
courses of action for trial counsel to choose from: not do anything, “out of concern
that the jury may not have heard anything”; or, provide a curative instruction.
Trial counsel chose the latter, and the instruction provided:

While you all were walking over here there was some
prankster in the hallway that was yelling stuff out and kind
of being a jerk. I don’t even know if any of you heard it.
It’s not a big deal if you did or if you didn’t, I’m just going
to remind you that of course you have to base your verdicts
just on the evidence that is heard here in court. Anything
you hear or see outside the courtroom is not evidence
and … you’re not allowed to consider anything else in
reaching your verdicts.

Does everybody understand[] that? It was just some
jerk in the hallway that was just causing a ruckus. And it
doesn’t sound like you even heard it[.]

¶34 In its postconviction ruling on Millighan’s claim that trial counsel
should have moved for a mistrial, the circuit court explained that trial counsel
“chose a remedial course of action” and the court’s instruction “erased any
possible prejudice.” See State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432
(Ct. App. 1989) (“We presume that the jury follows the instructions given to it.”).
Given that curative instructions are presumed to be sufficient to ameliorate

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No. 2024AP370-CR

prejudice, we agree that trial counsel was not ineffective on this basis. See State v.
Gary M.B., 2004 WI 33, ¶33, 270 Wis. 2d 62, 676 N.W.2d 475.

¶35 Millighan additionally challenged trial counsel’s failure to object to
the presence in the courtroom gallery of a “sizeable” group of individuals
“believed to be” Guardians of the Children members. Like the circuit court, we
conclude that Millighan’s postconviction motion did not raise facts sufficient to
entitle Millighan to relief on his claim that there was an unacceptable risk of
influence on the jury due to the presence of such individuals in the gallery. See
Ruffin, 401 Wis. 2d 619, ¶28.

II. The circuit court properly denied Millighan’s remaining claims
following a Machner hearing.

¶36 We turn our attention to the four ineffective assistance claims that
were the subject of the Machner hearing: Claims 2, 3, 5, and 7. Millighan’s trial
counsel, Millighan, and social worker Scott Ebert provided testimony at the
hearing.

¶37 At the outset we note that “where a lower court determines that
counsel had a reasonable trial strategy, the strategy ‘is virtually unassailable in an
ineffective assistance of counsel analysis.’” State v. Breitzman, 2017 WI 100,
¶65, 378 Wis. 2d 431, 904 N.W.2d 93 (citation omitted). A strategic choice
crosses that line when it is “based on an irrational trial tactic or based upon caprice
rather than upon judgment.” Id. (citation omitted).

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No. 2024AP370-CR

A. Claim 2

¶38 In Claim 2, Millighan challenged trial counsel’s decision not to
object to J.H.’s written testimony on direct examination and the prosecutor’s
procedure of reading J.H.’s answers into the record.

¶39 Following the circuit court’s ruling permitting J.H. to provide
closed-circuit testimony, the prosecutor began her direct examination. Just a few
questions into J.H.’s testimony, the prosecutor inquired of J.H.: “[I]s this
something that’s really hard to talk about? I’m sorry, sweetie, you have to answer
out loud.” Then the State asked J.H. if it would be “easier” for her to write down
her testimony instead of speaking the words. J.H. stated that it would. The court
paused the testimony, and a recess was taken for lunch. When the trial resumed,
the prosecutor again asked J.H. if she preferred to write her answers down. J.H.
confirmed that this was her preference. The prosecutor then asked the court to
permit J.H. to proceed by writing her answers and to allow a victim advocate to
read J.H.’s answers.

¶40 The circuit court implicitly granted the request for written testimony,
advising the prosecutor that the writing would be a “demonstrative exhibit.” The
court said that after the answer was written, it should be shown to the defense, and
then the prosecutor could ask questions about it. The court stated: “I think that
[the] best practice would be to use that approach rather than to have another party
read what was written.” The prosecutor began asking J.H. questions orally again,
with J.H. writing her responses.

¶41 In those answers, J.H. testified that Millighan touched her genitals
with his hand under her clothes, that he touched her “behind” with his penis, and
that he made her “rub” his penis with her hand. During a break in J.H.’s direct

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No. 2024AP370-CR

examination, the circuit court discussed with the parties the written answers,
which were being read aloud by the prosecutor, confirmed with the witness, and
shown to defense counsel. The parties agreed to continue that process. The
prosecutor asked the court to “confirm with [c]ounsel that I have been reading the
answers thus far … accurately.” The attorneys for the defendants confirmed that
she had.

¶42 In his postconviction motion, Millighan argued that “[t]he procedure
that was utilized is even more problematic as it allowed the State, the party
offering J.H. as a witness, the opportunity to both lead the testimony of J.H.
through its questions and then provide that testimony to the jury with its own
reflection [sic] and tone.”

¶43 During the Machner hearing, trial counsel testified about his
rationale for not objecting to the circuit court’s decision to permit J.H. to answer
some questions in writing. Trial counsel referenced the legal authority authorizing
courts to modify procedures in cases involving children. He described the unusual
circumstances presented by J.H.’s reaction to facing the two defendants: “[J.H.] …
looked at the [defendants] and just broke down right after…. That was bad.” He
noted that J.H. answered all questions on cross-examination verbally. Trial
counsel additionally testified that he had objected to the closed-circuit testimony
and was overruled. Trial counsel explained his belief that there was little to gain
from an objection under the circumstances presented.

¶44 The circuit court found that “with respect to whether [trial counsel]
should have objected or not, this was uncharted waters for everybody that was
involved[.]” The court found that trial counsel’s approach to the issue was
reasonable. We likewise conclude that Millighan has not shown that trial

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No. 2024AP370-CR

counsel’s decision not to object “fell below an objective standard of
reasonableness.” See Strickland, 466 U.S. at 687-88.

B. Claim 3

¶45 Millighan asserted in Claim 3 that trial counsel was ineffective for
not showing the jury the first forensic interview in which J.H. denied inappropriate
touching by Millighan.

¶46 When asked why he did not show the jury the video of a forensic
interview in which J.H. denied that she had been sexually abused, trial counsel
testified that in that interview J.H. described “pretty graphic and pretty nasty
physical abuse” by Millighan. Trial counsel testified to his belief that it would be
harmful to the defense on several levels:

There was other bad stuff in there and … it wasn’t
sexual, but it was physical abuse, pulling by the hair,
dragging her around, the child said, “Mom doesn’t stop it
because she’s afraid of [her] boyfriend,’ which kind of goes
into the theory of what’s going on with this dynamic with
this family, that there was abuse—physical abuse
happening after drinking bouts[.]

¶47 Trial counsel testified that he was concerned about the impact that
seeing the video of the child describing physical violence would have on the jury.
He also testified that he would have been put in a position of asking the jury to
“[b]elieve part of it, don’t believe other parts of it” by arguing that J.H. was
“telling the truth when she’s denying that [Millighan] is sexually assaulting her,
but she’s lying when she’s saying [Millighan is] beating her up.” Trial counsel
testified that he also was concerned that taking that approach would give the State
the “opportunity to really hammer it home” that J.H.’s early denials and

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No. 2024AP370-CR

nondisclosures were part of “working her way up to making the big disclosures
later on.”

¶48 The circuit court watched the first forensic interview following the
evidentiary hearing and found that “[d]uring the course of that forensic interview,
[J.H.] does not disclose any sexual abuse” and “denie[d] inappropriate touching.”
The court found that J.H. did “disclose physical abuse,” one example of which was
that J.H. “describe[d] an incident where she is dragged up the stairs by her hair by
Mr. Millighan.” The court found that J.H.’s demeanor in the first forensic
interview was, in the beginning portion, “excitedly juvenile,” but during later
portions, it became “more somber” as she discussed the physical abuse. The court
additionally found that J.H.’s statements about the physical abuse in the interview
were credible.

¶49 The circuit court concluded that trial counsel’s decision not to put
into evidence the first forensic interview based on “[h]is professional judgment
that it would have carried lower weight and that it presented risk” was “the kind of
strategic choice lawyers have to make during the course of the trial.” The court’s
findings as to trial counsel’s conduct and strategy are not clearly erroneous. See
Domke, 337 Wis. 2d 268, ¶33. We conclude that Millighan has not carried his
burden to establish deficient performance.

C. Claim 5

¶50 For Claim 5, we address Millighan’s contention that trial counsel
erred by not cross-examining J.H.’s grandmother more extensively. Millighan
argues that trial counsel failed to use several significant inconsistencies in J.H.’s
grandmother’s prior statements to DMCPS to impeach her on the stand and to call

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No. 2024AP370-CR

into question her motivations to provide false testimony and to encourage J.H. to
make allegations of abuse against her mother and Millighan.

¶51 When questioned about this, trial counsel said his strategy was to
“make it seem like Grandma was really driving some of the allegations” and to
show she “was kind of interfering and making this into more than it needed to be
and then the kid was kind of caught up in it[.]” He said she was a “prickly and
combative” witness, and his strategy was to ask questions to provoke her and show
the jury she “get[s] angry and get[s] vengeful,” which he believed he
“got … across” to the jury.

¶52 The circuit court concluded that trial counsel’s approach was based
on his “appropriate strategic choice” to “display [J.H.’s grandmother] through his
questioning as being unpleasant and unlikeable and a challenging witness,” and to
“reduce[] her credibility by showing her bias through her negative personality.”
The court, which presided over the trial, concluded that “he effectively achieved
[this] during the course of her testimony.” The court found that this was “a trial
choice,” which was to be given deference under the law.

¶53 Again, the court’s findings as to trial counsel’s conduct and strategy
are not clearly erroneous. See Domke, 337 Wis. 2d 268, ¶33. Millighan’s claim
that trial counsel failed “to properly cross-examine” J.H.’s grandmother is merely
an argument that there was a different way to approach the witness, but that alone
does not constitute deficient performance.

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No. 2024AP370-CR

D. Claim 7

¶54 Finally, Millighan argues in Claim 7 that trial counsel was
ineffective for not calling Scott Ebert as a witness at trial. Ebert is a social worker
who wrote DMCPS reports deeming J.H.’s allegations unsubstantiated.

¶55 Trial counsel was questioned about why he did not call Ebert, who
wrote reports in 2018 concluding that J.H.’s physical and sexual abuse allegations
could not be substantiated, as a witness at trial. Counsel answered that Ebert’s
report was full of statements by J.H. about violent physical abuse by Millighan: “I
took a look at his report and saw that stuff and I was like, ‘I’m not going near
that.’” Trial counsel specifically noted two damaging aspects of using the
reports: first, the jury would hear that they were “full of accusations that are bad,”
and second, the jury would be “hearing it from another professional person
investigating … that the kid is saying all this stuff’s happening. It makes it
stronger that the kid’s saying it now in different forms and [to] different people.”

¶56 Trial counsel testified that he and Millighan “talked through” the
issue of the DMCPS reports before trial. Millighan, in contrast, testified that trial
counsel did not ask him if he agreed with the strategic decision not to use Ebert’s
DMCPS reports.

¶57 Ebert indicated that he would have been available to testify at trial
about his reports. In terms of being unable to substantiate the allegations of
physical and sexual abuse by Millighan, Ebert testified that it did not necessarily
mean the abuse did not happen.

¶58 The circuit court found that Ebert’s testimony was credible. In
addition, the court found that in September 2018, Ebert wrote an eight-page report

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No. 2024AP370-CR

in response to allegations of physical and sexual abuse by Millighan concluding
that the allegations were unsubstantiated. The circuit court further found that the
second DMCPS report Ebert prepared, following an investigation that spanned
November and December 2018, also concluded that “this case is unsubstantiated
for sexual abuse to [J.H.] by Terrance Millighan.” The report included a statement
by J.H. that Millighan had sexually abused her.

¶59 In ruling on this issue, the court found it “[n]oteworthy” that the
DMCPS report included the observation that J.H.’s claim that Millighan sexually
abused her was “very credible[.]” The court quoted the following excerpt from the
report, which relied on Millighan’s denials and the lack of physical evidence:

While [J.H.] is very credible in her chronicling of the
abuse, there is not a preponderance of evidence to support
[J.H.’s] claim of being sexually abused by Mr. Millighan.
The physical examination did not indicate that sexual abuse
had taken place, and Mr. Millighan continues to
vehemently deny the allegations.

¶60 The circuit court concluded that trial counsel’s decision that Ebert’s
reports were “not helpful to the defense” was based on legitimate strategic
concerns. The court explained that trial counsel “knew what Mr. Ebert’s
testimony was, he had considered the risks of that testimony.”

¶61 The circuit court’s findings as to trial counsel’s conduct and strategy
are not clearly erroneous. See Domke, 337 Wis. 2d 268, ¶33. Trial counsel did
not perform deficiently in not calling Ebert as a witness. See Whitmore v. State,
56 Wis. 2d 706, 715, 203 N.W.2d 56 (1973) (“An attorney’s strategic decision
based upon a reasonable view of the facts not to call a witness is within the realm
of an independent professional judgment.”).

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No. 2024AP370-CR

¶62 “[A] convicted defendant may not simply present a laundry list of
mistakes by counsel and expect to be awarded a new trial. A criminal defense
attorney’s performance is not expected to be flawless.” State v. Thiel, 2003 WI
111, ¶61, 264 Wis. 2d 571, 665 N.W.2d 305. Indeed, “in most cases errors, even
unreasonable errors, will not have a cumulative impact sufficient to undermine
confidence in the outcome of the trial[.]” Id. To the extent Millighan contends
that analyzing his claims one by one “in a vacuum” fails to truly consider the
impact that the evidence had on his trial, we are unpersuaded. See Mentek v.
State, 71 Wis. 2d 799, 809, 238 N.W.2d 752 (1976) (“Zero plus zero equals
zero.”). We conclude that Millighan did not receive ineffective assistance of
counsel.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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