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State v. Wayerski

Supreme Court of Wisconsin

February 7, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Gary Lee Wayerski, Defendant-Appellant-Petitioner.

          Submitted on Briefs: oral argument: September 5, 2018

          Circuit Court Dunn County, L.C. No. 2011CF186 William C. Stewart, Jr., and Maureen D. Boyle Judge.

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 378 Wis.2d 739, 905 N.W.2d 843 (2017 - unpublished)

          For the defendant-appellant-petitioner, there were briefs filed by Edward J. Hunt and Hunt Law Group, S.C., Milwaukee. There was an oral argument by Edward J. Hunt.

          For the plaintiff-respondent, there was a brief filed by Donald V. Latorraca, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Donald V. Latorraca.

          REBECCA FRANK DALLET, J.

         ¶1 Gary Wayerski seeks review of the court of appeals'[1] decision affirming the circuit court's[2]denial of his postconviction motion.

         ¶2 Wayerski was charged with and convicted of 16 felonies based upon allegations that over several months he had repeated sexual contact with two juveniles, J.H. and J.P., and exposed them to pornography. Wayerski was found guilty by a jury of the following crimes: (1) two counts of child enticement in violation of Wis.Stat. § 948.07(3)(2015-16);[3] (2) two counts of exposing genitals or pubic area in violation of Wis.Stat. § 948.10(1); (3) two counts of exposing a child to harmful material in violation of Wis.Stat. § 948.11(2) (a); (4) two counts of causing a child over the age of 13 to view/listen to sexual activity in violation of Wis.Stat. § 948.055(2) (b); and (5) eight counts of sexual assault of a child by a person who works or volunteers with children in violation of Wis.Stat. § 948.095(3).

         ¶3 Wayerski filed a postconviction motion, asserting claims of ineffective assistance of trial counsel, circuit court errors, and a claim that the State violated its Brady[4]obligations. Brady v. Maryland, 373 U.S. 83 (1963) . The circuit court denied Wayerski's postconviction motion.

         ¶4 The court of appeals affirmed the circuit court's denial of Wayerski's postconviction motion.[5] Wayerski now seeks review of the denial of his ineffective assistance of counsel claim[6] and the denial of his Brady claim.

         ¶5 Wayerski claims that his trial counsel was ineffective for failing to question him about a purported confession that he gave to John Clark, a government witness who testified on rebuttal. We assume without deciding that trial counsel's performance was deficient, in accordance with the first prong of the ineffective assistance of counsel analysis. However, even if trial counsel's performance was deficient, we conclude that there was no prejudice to Wayerski under the second prong of the analysis. Thus, we conclude there was no ineffective assistance of counsel.

         ¶6 Wayerski also alleges that the State violated his due process rights under Brady when it failed to disclose impeachment evidence about Clark's pending charges in Chippewa County. We conclude that there was no Brady violation. While evidence of Clark's pending charges was favorable to Wayerski as impeachment of Clark's testimony and the State suppressed the evidence, Wayerski failed to show that the evidence was material. In analyzing whether the State suppressed evidence under the second component of the Brady analysis, we return to the principles of Brady and ask only whether the evidence was suppressed by the State, rather than the revisionary version of Brady that our court has adopted in the past. Therefore, we modify and, as modified, affirm the decision of the court of appeals.

         I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

         ¶7 In July 2011, the State filed a criminal complaint against Wayerski, which charged nine felony counts. In September 2012, the State was granted leave to file a second amended information which charged 16 felony counts.

         ¶8 The allegations against Wayerski are summarized as follows. In February 2011, Wayerski, who was the police chief of the Village of Wheeler and a part-time police officer for the Village of Boyceville, offered to act as a "mentor" to 16-year-old J.P. after J.P. admitted to breaking into a church.

         ¶9 Wayerski began his "mentorship" with J.P. by taking him on "ride-alongs" in his squad car and talking to him about his sexual experiences. Wayerski invited J.P. to his apartment where he had J.P. take off his shirt and pants so that Wayerski could see his "muscle tone" and assist in his physical fitness. During subsequent visits Wayerski touched J.P.'s genitals, claiming that it was also for workout purposes.

         ¶10 Between March 2011 and July 16, 2011, J.P. alleged that Wayerski masturbated him on more than 20 occasions while they watched pornography. J. P. also claimed that Wayerski made him perform other sexual activities based on Wayerski's sexual interests and fetishes. One night in particular, Wayerski made J.P. ejaculate onto an oval-shaped turquoise plate so that Wayerski could "weigh his sperm."

         ¶11 In March 2011, Wayerski issued 17-year-old J.H. a disorderly conduct ticket. Wayerski told J.H. that if he completed his community service and stayed out of trouble for six months, the incident would be removed from his record. Like J.P., J.H. recounted going on several "ride-alongs" in Wayerski's squad car before being invited to Wayerski's apartment. Wayerski also offered to help J.H. improve his physical fitness. J.H. described specific sexual activities that Wayerski made him perform, based on Wayerski's sexual interests, including watching pornography with Wayerski while Wayerski masturbated him.

         ¶12 Additionally, the juveniles detailed how, on occasion, Wayerski would invite both of them to his apartment at the same time for overnight stays. During these overnight stays, Wayerski would allow the juveniles to drink alcohol. The juveniles also claimed that during one of these overnight stays Wayerski simultaneously masturbated both of them while they watched on-demand pornography together. Lastly, the juveniles alleged that Wayerski threatened to send them to "juvie" or jail if they ever told anyone about the sexual contact or about watching pornography at Wayerski's apartment.

         ¶13 Early in the morning on July 16, 2011, after staying overnight at Wayerski's apartment, the juveniles got into an argument with Wayerski about his cable bill and the amount of money spent watching on-demand pornography. The juveniles left Wayerski's apartment on foot and walked several miles to a friend's house. When J.H.'s father picked the juveniles up from their friend's house, they told him that some "weird stuff had been happening for a while" at Wayerski's apartment, and that Wayerski had "molested" them. J.H.'s father stated that he could tell the juveniles had been drinking alcohol. Later that day, the juveniles went to law enforcement to report their allegations.

         ¶14 Eau Claire County[7] Sheriff's Detective Kuehn interviewed J.P. and J.H. separately. Detective Kuehn obtained and executed a search warrant for Wayerski's apartment. Detective Kuehn recovered the following items: multiple computers, alcohol, the oval-shaped turquoise plate that J.P. referenced, and a cable bill containing charges for on-demand pornographic films.

         ¶15 Wayerski's jury trial lasted from October 8 to October 12, 2012. The State called J.H. and J.P. as its primary witnesses. In addition, the State called the parents of J.H. and J.P. to corroborate the juveniles' story about their frequent contact with Wayerski and their overnight stays at his apartment. The jury also heard testimony from Sarah Zastrow-Arkens, a DNA analyst from the Wisconsin State Crime Laboratory. Arkens testified that semen from the oval-shaped turquoise plate in Wayerski's apartment showed a male profile which matched J.P.'s DNA. Arkens further testified that the statistical likelihood that the sample from the plate belonged to anyone other than J.P. was one in 28 quintillion. Detective Kuehn testified that he interviewed the juveniles and their demeanor was consistent with prior victims of sexual assault. Additionally, several other law enforcement officers testified about their involvement in the case.

         ¶16 Wayerski's general defense was that the juveniles had fabricated the allegations because Wayerski was part of a drug investigation involving people connected with J.P. and J.H. Wayerski disputed the number of "ride-alongs" he had with J. P. and J.H. and the number of times the juveniles visited his apartment. Wayerski called four witnesses at trial who claimed that after Wayerski's arrest, J.P. said he was lying and that the allegations were a "set up" or a joke.

         ¶17 Clark, an inmate who occupied a Chippewa County jail cell near Wayerski for six to eight weeks, testified for the State on rebuttal. Clark testified that Wayerski had admitted to masturbating the juveniles, watching pornography with the juveniles, and allowing the juveniles to drink alcohol. Clark testified that he did not ask for, or receive, any benefit for testifying against Wayerski. Instead, Clark testified that he had reported the comments to a sergeant at the jail and to Detective Kuehn because "[t]hey're kids. I think that says it all." On the stand, Clark admitted to the jury that he had been convicted of 20 crimes, including some felonies.

         ¶18 Wayerski's trial counsel recalled Wayerski to the stand after Clark's rebuttal testimony. However, trial counsel did not ask Wayerski about the purported confession. Instead, trial counsel asked several questions that Wayerski insisted he ask, including the number of inmates in jail that Wayerski had been in contact with and whether inmates had access to the media.[8]

         ¶19 The jury saw a substantial amount of evidence, including pornographic photographs from Wayerski's computer, pornography searches, photos of J.H. and J.P. that Wayerski captured on his phone, and messages from Wayerski's computer and cellphone. The pornographic materials on Wayerski's computer reflected an interest in young males between the ages of 16 and 20 and included pictures arranged under titles labelled "milking," "punish," "spanking," and "stances." At trial, Wayerski admitted to these types of sexual interests. In both their trial testimony and in their initial interview with Detective Kuehn, J.P. and J.H. described contact consistent with these types of sexual interests.

         ¶20 A jury found Wayerski guilty of all 16 felony counts and he was subsequently sentenced to a total of 14 years of initial confinement and 16 years of extended supervision. After his trial, Wayerski discovered that Clark had been charged with three crimes against children in Chippewa County one month prior to Wayerski's trial: (1) one count of soliciting a child in violation of Wis.Stat. § 948.08; and (2) two counts of sexual intercourse with a child 16 or older in violation of Wis.Stat. § 948.09.[9] The prosecutor assigned to Wayerski's case admitted that he had discovered Clark's pending charges a few days prior to Wayerski's trial through a basic check of Consolidated Court Automation Programs (CCAP) .[10] After discovering these charges, the prosecutor obtained a copy of the Chippewa County complaint[11]and, after reviewing it, decided that Clark's pending charges did not affect the veracity of his prior statements given to Detective Kuehn. Therefore, the prosecutor did not disclose the pending charges or criminal complaint to Wayerski's trial counsel.

         ¶21 Wayerski filed a postconviction motion asserting claims of ineffective assistance of trial counsel, circuit court errors, and a claim that the State violated its Brady obligations by not disclosing Clark's pending charges. The circuit court held a hearing on Wayerski's postconviction motion and heard testimony from Wayerski and his trial counsel.

         ¶22 As to the claim of ineffective assistance of counsel that is before this court, Wayerski's trial counsel testified that he could not think of a reason why he did not ask Wayerski about Clark's testimony regarding a purported confession. Wayerski's trial counsel admitted that, with "the benefit of 20/20 hindsight," he should have asked Wayerski about the alleged confession. However, Wayerski's trial counsel noted that Wayerski had been talking into his ear during the entire trial, and that he had recalled Wayerski to the stand to ask him several questions that Wayerski directed him to ask. Wayerski testified that, had he been asked at trial, he would have denied giving a confession to Clark.

         ¶23 While the circuit court acknowledged that Wayerski's trial counsel "probably" should have given Wayerski an opportunity to deny Clark's allegations, one more denial by Wayerski would not have changed the outcome of the trial because of the overwhelming amount of evidence. Therefore, the circuit court found that Wayerski had an opportunity to present his defense and that his trial counsel "provided the representation that he was [constitutionally] required to provide."

         ¶24 Regarding Wayerski's Brady claim, trial counsel testified that he recalled performing a CCAP search on Clark, but that he was probably concentrating on Clark's convictions. Wayerski's trial counsel testified that he could not recall with "one hundred percent specificity" whether he performed any CCAP searches of Clark or whether he relied upon information provided to him by the State. The circuit court ordered supplemental briefing on several issues and after two more hearings denied Wayerski's motion.

         ¶25 The circuit court found that the State failed to disclose Clark's pending charges. However, citing Randall, the circuit court found that the failure to inform Wayerski of the pending charges was harmless error because there was compelling evidence of Wayerski's guilt apart from Clark's testimony, including the juveniles' testimony and the DNA evidence. State v. Randall, 197 Wis.2d 29, 539 N.W.2d 708');">539 N.W.2d 708 (Ct. App. 1995) . Further, the circuit court noted that the jury had been alerted to Clark's criminal history and that his credibility had been called into question.

         ¶26 Wayerski filed a notice of appeal on six issues, only two of which he raises on appeal to this court. The court of appeals affirmed the circuit court's denial of Wayerski's postconviction motion. See State v. Wayerski, No. 2015AP1083-CR, unpublished slip op., ¶2 (Wis. Ct. App. Oct. 31, 2017) . The court of appeals determined that "Wayerski failed to demonstrate that his trial attorney's assistance prejudiced his defense on the surrebuttal testimony" and that there was no Brady violation because it was not "'an intolerable burden on the defense' to search CCAP for the State witness's available pending charges." See Wayerski, No. 2015AP1083-CR, ¶2.

         ¶27 As to Wayerski's ineffective assistance of counsel claim, the court of appeals declined to address the deficiency prong of the ineffective assistance of counsel analysis. Instead, the court of appeals analyzed the prejudice prong and concluded that Wayerski failed to show prejudice for several reasons. First, Clark's credibility was already questioned when the jury was alerted to the fact that he was an inmate in jail and that he had been convicted of 20 crimes, including some felonies. Second, the court of appeals noted that there was never any doubt that Wayerski claimed he was innocent. Wayerski also called four witnesses at trial who testified that they heard J.P. recant the allegations. Finally, the court of appeals reasoned that the evidence of Wayerski's guilt was "overwhelming," including: the juveniles' consistent, detailed testimony, the substantial evidence recovered in Wayerski's apartment, and the parents' testimony about time the juveniles spent with Wayerski.

         ¶28 As to Wayerski's Brady claim, the court of appeals, like the circuit court, looked to the Randall case. Randall, 197 Wis.2d 29. The court of appeals reasoned that the basis of Randall was to avoid placing an "intolerable burden" on the defense to extensively search for hard-to-secure evidence. Wayerski, No. 2015AP1083-CR, ¶55.

         ¶29 However, the court of appeals noted that at the time Randall was decided, "'comb[ing] the public records' for the criminal record of every witness disclosed before trial entailed a trip to a physical site, usually the courthouse (or courthouses), to sift through potentially vast paper records." Wayerski, No. 2015AP1083-CR, ¶55 (citing Randall, 197 Wis.2d at 38). The court of appeals reasoned that since Randall, CCAP has "facilitated efficient use of court resources and greater access to court information by the public," allowing wide access to those records via the internet. Id. (quoting State v. Bonds, 2006 WI 83, ¶47, 292 Wis.2d 344, 717 N.W.2d 133');">717 N.W.2d 133). The court of appeals held that because it was not an intolerable burden on Wayerski's trial counsel to search CCAP for Clark's pending criminal charges, the pending charges were not "suppressed" under Brady.

         ¶30 In the alternative, the court of appeals held that even if it assumed that the evidence was suppressed, Wayerski failed to show a reasonable probability of a different result had the pending charges been disclosed. Wayerski, No. 2015AP1083-CR, ¶57. The court of appeals concluded that nondisclosure of the record was not prejudicial because Clark was already impeached and there was "very compelling evidence" of guilt even apart from Clark's testimony. Therefore, the charges were not "material" pursuant to Brady.

         ¶31 Wayerski presents two claims to this court for review: (1) whether trial counsel was ineffective for failing to question him about a purported confession that he gave to Clark; and (2) whether the State violated its Brady obligation.[12] II. STANDARD OF REVIEW

         ¶32 "Under the Sixth and Fourteenth Amendments to the United States Constitution, a criminal defendant is guaranteed the right to effective assistance of counsel." State v. Balliette, 2011 WI 79, ¶21, 336 Wis.2d 358, 805 N.W.2d 334 (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)). The same right is guaranteed under Article I, Section 7 of the Wisconsin Constitution. Whether a defendant was denied effective assistance of counsel is a mixed question of fact and law. State v. Thiel, 2003 WI 111, ¶21, 264 Wis.2d 571, 665 N.W.2d 305. The factual circumstances of the case and trial counsel's conduct and strategy are findings of fact, which will not be overturned unless clearly erroneous. Id. "Whether counsel's performance satisfies the constitutional standard for ineffective assistance of counsel is a question of law, which we review de novo." Id. To demonstrate that counsel's assistance was ineffective, the defendant must establish that counsel's performance was deficient and that the deficient performance was prejudicial. State v. Breitzman, 2017 WI 100, ¶37, 378 Wis.2d 431, 904 N.W.2d 93 (citing Strickland, 466 U.S. at 687). If the defendant fails to satisfy either prong, we need not consider the other. Id. (citing Strickland, 466 U.S. at 687).

         ¶33 Whether trial counsel performed deficiently is a question of law we review de novo. Breitzman, 378 Wis.2d 431, ¶38. To establish that counsel's performance was deficient, the defendant must show that it fell below "an objective standard of reasonableness." See Thiel, 264 Wis.2d 571, ¶19.

         ¶34 Whether any deficient performance was prejudicial is also a question of law we review de novo. See State v. Domke, 2011 WI 95, ¶33, 337 Wis.2d 268, 805 N.W.2d 364. To establish that deficient performance was prejudicial, the 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., ¶54 (quoting Strickland, 466 U.S. at 694).

         ¶35 With respect to Wayerski's Brady claim, we independently review whether a due process violation has occurred, but we accept the trial court's findings of historical fact unless clearly erroneous. State v. Lock, 2012 WI.App. 99, ¶94, 344 Wis.2d 166, 823 N.W.2d 378. A defendant has a due process right to any favorable evidence "material either to guilt or to punishment" that is in the State's possession, Brady, 373 U.S. at 87, including any evidence which may impeach one of the State's witnesses. Giglio v. United States, 405 U.S. 150, 154 (1972). A Brady violation has three components: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material. See State v. Harris, 2004 WI 64, ¶15, 272 Wis.2d 80, 680 N.W.2d 737 (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999) .

         ¶36 The materiality requirement of Brady is the same as the prejudice prong of the Strickland analysis. See United States v. Bagley, 473 U.S. 667, 682 (1985) . Evidence is not material under Brady unless the nondisclosure "was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler, 527 U.S. at 281.

         III. ANALYSIS

         A. Wayerski's Ineffective Assistance of Counsel Claim

         ¶37 Wayerski contends that trial counsel performed deficiently because he failed to question Wayerski about giving a purported confession to Clark. Wayerski further asserts that trial counsel's deficient performance was prejudicial because Wayerski's silence, in the eyes of a jury, was tantamount to an admission of guilt.

         ¶38 We assume without deciding that trial counsel's performance was deficient under the first prong of the ineffective assistance of counsel analysis. However, pursuant to the second prong of the ineffective assistance of counsel analysis, we conclude that there was no prejudice to Wayerski. Therefore, we conclude that there was no ineffective assistance of counsel.

         ¶39 To establish that his trial counsel's deficient performance was prejudicial, Wayerski must show that "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." Domke, 337 Wis.2d 268, ¶54 (quoting Strickland, 466 U.S. at 694) . "We examine the totality of the circumstances to determine whether trial counsel's errors," in the context of Wayerski's entire case, deprived him of a fair trial. Id. When we consider whether Wayerski was prejudiced by his trial counsel's deficient performance, we examine Wayerski's ability to present his defense, the other evidence presented that undermined Clark's credibility, and the overwhelming evidence against Wayerski.

         ¶40 First, there was never any doubt that Wayerski claimed that he was innocent. Wayerski denied the juveniles' claims on direct and cross-examination. Wayerski called four witnesses to testify in support of his defense that the juveniles set him up because of his involvement in an ongoing drug investigation. The jury had an opportunity to fully consider and reject Wayerski's defense to the allegations.

         ¶41 Second, Clark's credibility had already been called into question when he testified. The jury heard that Clark had been convicted of 20 crimes, including some felonies. Further, the questions asked by Wayerski's trial counsel called into question whether Clark heard the details of the offenses from Wayerski or from his access to media at the Chippewa County jail.

         ¶42 Lastly, as the prior courts acknowledged, the evidence against Wayerski was overwhelming. There was detailed, consistent testimony from J.H. and J.P. and testimony from the juveniles' parents corroborating the amount of time the juveniles spent with Wayerski doing "ride-alongs" and at Wayerski's apartment. J.H.'s father also testified about what occurred when he picked the juveniles up from their friend's house on the morning of July 16, 2011. The jury heard testimony from Detective Kuehn who described the juveniles' demeanor as consistent with that of sexual assault victims in prior cases he had investigated. Detective Kuehn also testified about the items recovered from Wayerski's apartment, including the oval-shaped turquoise plate, the cable bill for on-demand pornography, vodka, and the contents of Wayerski's computer. In addition, the jury heard from a DNA analyst who testified that the semen on the oval-shaped turquoise plate matched J.P.'s DNA profile and that the likelihood the sample belonged to anyone other than J.P. was one in 28 quintillion.

         ¶43 Therefore, we conclude that even if Wayerski's trial counsel's performance was deficient for failure to question him about the purported confession he gave to Clark, the deficiency was not prejudicial, and thus there was no ineffective assistance of counsel.

         B. Wayerski's Brady Claim

         ¶44 Wayerski additionally seeks review of the denial of his Brady claim. We conclude that the evidence was favorable to Wayerski, satisfying the first component of the Brady analysis. We conclude that the State suppressed the evidence under the second component of the Brady analysis. We renounce and reject judicially created limitations on the second Brady component that find evidence is suppressed only where: (1) the evidence was in the State's "exclusive possession and control"; (2) trial counsel could not have obtained the evidence through the exercise of "reasonable diligence"; or (3) it was an "intolerable burden" for trial counsel to obtain the evidence. Finally, we conclude there was no Brady ...


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