Fencl v. Abrahamson

• Decision Date: 09 March 1988
• Docket Number: No. 86-1813,86-1813
• Citation: 841 F.2d 760
• Parties: Ronald Dennis FENCL, Petitioner-Appellant, v. Gordon ABRAHAMSON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 760

841 F.2d 760

Ronald Dennis FENCL, Petitioner-Appellant, v. Gordon ABRAHAMSON, Respondent-Appellee.

No. 86-1813.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 22, 1986.

Decided March 9, 1988.

Ruth S. Downs, Asst. State Public Defender, Richard J. Phelps, State Public Defender, Madison, Wis., for petitioner-appellant.

Daniel J. O'Brien, Asst. Atty. Gen., Dept. of Justice, Madison, Wis., for respondent-appellee.

Before COFFEY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

RIPPLE, Circuit Judge.

On June 9, 1978, a jury in a Wisconsin trial court found the petitioner, Ronald Dennis Fencl, guilty of first degree murder. Mr. Fencl was sentenced to life imprisonment. The judgment and order were appealed to the Wisconsin Court of Appeals. That court certified the questions presented to the Wisconsin Supreme Court, and the Supreme Court affirmed the trial court's judgment. State v. Fencl, 109 Wis.2d 224, 325 N.W.2d 703 (1982). After exhausting the available state remedies, Mr. Fencl raised three issues in his petition for habeas corpus: 1) that the prosecutor's references to Mr. Fencl's expressed desire to remain silent violated his fifth amendment privilege against self-incrimination and his sixth amendment right to counsel, 2) that Mr. Fencl's pre-trial counsel was ineffective, and 3) that the trial court erred in giving Wisconsin Jury Instruction No. 1100. The district court denied Mr. Fencl's petition for habeas corpus, 628 F.Supp. 1379. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I Background

The Wisconsin Supreme Court summarized the facts underlying Mr. Fencl's conviction as follows:

Debra Sukowaty disappeared on September 24, 1977. On October 1, 1977, the police received a purse containing Sukowaty's identification and several other items which were found in a plastic bag in a nearby river. Among the items contained in the bag was a parking ticket, traceable to Ronald Fencl's car. Detective Geigel of the Two Rivers Police Department visited Fencl that same day to inquire about Sukowaty. Fencl stated that he did not know Sukowaty or anything about the items found in the river.

At approximately 4 p.m. on October 2, 1977, Geigel again visited Fencl. At this meeting Fencl told Geigel that he wanted to talk to his attorney and that he would get back to him. Half an hour later Fencl went to the police station. He told Geigel that he had found the items in his car and threw them into the river in order to avoid any trouble with the police. Geigel had to cut their conversation short because he received a call informing him that a body had been found in a nearby gravel pit. Fencl agreed to meet with him later that evening. In the meantime, the body was identified as Sukowaty. The police then impounded Fencl's car.

At 7 p.m. that same day, Fencl returned to the police station with his attorney, Steven Alpert. Fencl said nothing. His attorney spoke to Geigel only to ask why Fencl's car had been impounded. Two Manitowoc Police Department detectives talked to Fencl and gave him his Miranda rights. Fencl was allowed to leave while the investigation continued. On November 4, 1977, a criminal warrant was issued charging Fencl with first-degree murder. He was arrested the next day. Alpert represented Fencl until just after the preliminary hearing. At that time new counsel was substituted because it appeared that Alpert might be called as a witness against Fencl.

During the trial the state made several references to Fencl's pre- and post-Miranda silence. In his opening statement the district attorney referred to the 4 p.m. meeting on October 2, 1977, between Detective Geigel and Fencl. He said that Fencl did not want to answer too many questions and that Fencl wanted to talk to his attorney. Detective Geigel also testified about this statement. Geigel testified three times about his 7 p.m., October 2, 1977, meeting with Fencl and Alpert. Each time Geigel indicated that Fencl said nothing. In his closing argument the district attorney once again referred to the 4 p.m. meeting of October 2, 1977, between Geigel and Fencl when he stated:

"He [Geigel] said as long as you're not mixed up in the disappearance of Debbie Sukowaty we're not interested in prosecuting. As long as your [sic] not interested. As long as you're not involved in Sukowaty's disappearance, that's alright [sic]. We're not interested in prosecuting you. He made that quite clear. At that point Fencl said that he wanted to talk to his lawyer, so Geigel left."

The jury found Fencl guilty of first-degree murder, and the court sentenced him to life imprisonment. Fencl moved for a new trial on September 4, 1979. During a hearing on this motion, it was revealed that Fencl's first attorney, Alpert, had engaged in some questionable practices in connection with his representation of Fencl. Nevertheless, the court denied Fencl's motion for a new trial by order entered October 27, 1980. Fencl's appeal of the judgment and the order was certified by the court of appeals and accepted by this court pursuant to sec. 809.61, Stats.

Fencl, 325 N.W.2d at 705-06.

II The District Court Opinion

The district court set forth the facts as found by the Wisconsin Supreme Court and determined that those findings were fairly supported by the record and adequate to rule on the issues presented.

A.

The district court first addressed Mr. Fencl's submission that the prosecution's references to his silence during questioning violated his fifth amendment right against self-incrimination, his sixth amendment right to assistance of counsel, and his fourteenth amendment right to due process. These references, which totaled six in number, took place during opening and closing arguments and during the prosecution's case-in-chief through the testimony of Detective Geigel. The court addressed separately those references to Mr. Fencl's silence that occurred after Miranda warnings had been given and those references that occurred before those warnings had been given.

The court first turned to post-Miranda events. Relying on Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) and Dean v. Young, 777 F.2d 1239 (7th Cir.1985), cert. denied, 475 U.S. 1142, 106 S.Ct. 1794, 90 L.Ed.2d 339 (1986), the district court agreed with the Wisconsin Supreme Court that Detective Geigel's testimony that Mr. Fencl chose to remain silent after he had been given Miranda warnings violated his due process rights. Fencl v. Abrahamson, 628 F.Supp. 1379, 1384 (E.D.Wis.1986).

The district court next considered whether references to Mr. Fencl's prearrest, pre-Miranda silence violated his right not to incriminate himself under the fifth amendment. The district court noted that prearrest silence may be used to impeach the credibility of a defendant who offers an exculpatory story when he testifies at trial. See Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam); Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). The court observed that this case differs from Fletcher and Jenkins because Mr. Fencl chose not to testify at trial. Finding no guidance from the Supreme Court in such a situation, ¹ the district court, without an extended analysis, decided that because Mr. Fencl chose not to testify at trial, references to his prearrest, pre-Miranda silence violated his right not to incriminate himself as guaranteed by the fifth amendment. Fencl, 628 F.Supp. at 1384-85.

The district court then considered whether the references to Mr. Fencl's prearrest silence constituted harmless error. In order to determine whether the references constituted harmless error, the district court considered five factors: 1) the intensity and frequency of the references, 2) which party elected to pursue the line of questioning, 3) the use to which the prosecution put the silence, 4) the trial judge's opportunity to grant a motion for a mistrial or to give a curative instruction, and 5) the quantum of other evidence indicative of guilt. See Phelps v. Duckworth, 772 F.2d 1410, 1413 (7th Cir.), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed.2d 471 (1985). The district court found that the state demonstrated that the references to Mr. Fencl's silence were brief and isolated and mentioned as part of a narrative of the events preceding Mr. Fencl's arrest. The references were not used to prove any element of the crime, nor did defense counsel move for a mistrial. The district court found that there was no reasonable possibility that the references contributed to the conviction. Therefore, the district court concluded that the references constituted harmless error. Fencl, 628 F.Supp. at 1385-87. ²

B.

The district court then addressed the second claim raised by Mr. Fencl--whether ineffective assistance by his pretrial counsel rendered his trial fundamentally unfair in violation of his due process rights. The district court decided that because most of the conduct complained of by Mr. Fencl had occurred prior to the initiation of adversary judicial proceedings, the sixth amendment right to counsel did not attach. The only conduct alleged by Mr. Fencl that violated his sixth amendment right to counsel that occurred after adversary proceedings had been initiated was defense counsel's alleged plan to write a book about the murder. Mr. Fencl also claimed that defense counsel tried to sell information to the district attorney. The district court found that Mr. Fencl did not show how this alleged conflict undermined the reliability of any proceedings prior to the defense counsel's withdrawal from the trial nor could the court find any mention of the book or sale of information in the transcript. The court accordingly held that Mr. Fencl had not met his burden of showing ineffective assistance of counsel under the Strickland v. Washington ³ standard. Fencl, 628 F.Supp. at 1388-89.

C.

The...