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.
OF DECISION OF THE COURT OF APPEALS Reported at 378 Wis.2d
739, 905 N.W.2d 843 (2017 - unpublished)
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.
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.
Gary Wayerski seeks review of the court of
appeals' decision affirming the circuit
court'sdenial of his postconviction motion.
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); (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).
Wayerski filed a postconviction motion, asserting claims of
ineffective assistance of trial counsel, circuit court
errors, and a claim that the State violated its
Bradyobligations. Brady v. Maryland,
373 U.S. 83 (1963) . The circuit court denied Wayerski's
The court of appeals affirmed the circuit court's denial
of Wayerski's postconviction motion. Wayerski now
seeks review of the denial of his ineffective assistance of
counsel claim and the denial of his Brady
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.
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.
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
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.
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
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.
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."
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.
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
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
Eau Claire County 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
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
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.
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
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 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
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. 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) . After discovering these
charges, the prosecutor obtained a copy of the Chippewa
County complaintand, 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.
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.
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.
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."
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
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.
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.
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
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.
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.
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.
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. II. STANDARD OF REVIEW
"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).
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.
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.
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) .
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.
Wayerski's Ineffective Assistance of Counsel Claim
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.
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.
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.
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.
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.
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
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.
Wayerski's Brady Claim
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 ...