Fencl v. Abrahamson

• Decision Date: 07 February 1986
• Docket Number: No. 83-C-353.,83-C-353.
• Citation: 628 F. Supp. 1379
• Parties: Ronald Dennis FENCL, Petitioner, v. Gordon ABRAHAMSON, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

628 F. Supp. 1379

Ronald Dennis FENCL, Petitioner, v. Gordon ABRAHAMSON, Respondent.

No. 83-C-353.

United States District Court, E.D. Wisconsin.

February 7, 1986.

Ruth S. Downs, Asst. State Public Defender, Madison, Wis., for petitioner.

Daniel J. O'Brien, Asst. Atty. Gen., Madison, Wis., for respondent.

DECISION AND ORDER

I. PROCEDURAL BACKGROUND AND FACTS

CURRAN, District Judge.

Ronald Dennis Fencl, the petitioner in the above-captioned action, was convicted of first degree murder in violation of section 940.01 of the Wisconsin Statutes on June 9, 1978. He is currently serving a life sentence in state prison. He now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After his conviction, the Manitowoc County Circuit Court denied Fencl's motion for a new trial. The judgment and order were appealed to the Wisconsin Court of Appeals which certified the questions presented to the Wisconsin Supreme Court. That court affirmed the judgment and order of the trial court. See State v. Fencl, 109 Wis.2d 224, 325 N.W.2d 703 (1982). The respondent concedes that Fencl exhausted his available state postconviction and appellate remedies before presenting his constitutional claims to this court. See Answer to Petition for Writ of Habeas Corpus at ¶ 2. See also 28 U.S.C. § 2254(b). He filed his petition in 1983. Then, in 1985, after the case was transferred to this court, the parties were allowed to rebrief the issues and address subsequent case law.

The Wisconsin Supreme Court recounted the following facts leading up to Fencl's conviction and sentencing:

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 your'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 Debbie Sukowaty's disappearance, that's alright sic. We're not interested in prosecuting you. He made that quite clear. At that point Fencl said 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.

Id. at 225-27, 325 N.W.2d at 705-06.

Fencl's petition raises three issues in support of his contention that his imprisonment is unconstitutional. They are:

I. Did the conviction in this case violate Mr. Fencl's Fifth Amendment privilege against incrimination, and his Sixth and Fourteenth Amendment rights to counsel because the prosecutor referred both in his opening and closing argument to Mr. Fencl's expressed desire upon being questioned to remain silent and to speak with his attorney, and because the prosecutor elicited multiple responses to the same effect from a prosecution witness, and were those violations reversible error?

II. Did pre-trial counsel's ineffective, incompetent, and disloyal conduct render Mr. Fencl's trial and conviction fundamentally unfair in violation of his due process rights under the Fourteenth Amendment?

III. Did the trial court commit reversible error in giving Wisconsin Jury Instruction # 1100, since that instruction violated Mr. Fencl's constitutional right to have a jury decide each factual issue beyond a reasonable doubt, and it violated Mr. Fencl's due process right to have the prosecution carry the burden of proof beyond a reasonable doubt as to each factual issue?

Brief and Appendix in Support of Petition for Writ of Habeas Corpus at 3.

In ruling on these issues, this court must presume that the findings of fact of the state courts are correct. See 28 U.S.C. § 2254(d). The ineffectiveness of counsel claim, however, involves mixed questions of law and fact; although deference is still to be given to the state findings. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). The petitioner suggests that other findings can be made from the transcripts which would more fully explain the background of his claims. See 28 U.S.C. § 2254, Rule 7(b). However, neither of the parties has requested an evidentiary hearing, and this court finds that the state findings are fairly supported by the record and adequate to rule on the issues raised. See generally Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Rogers v. Israel, 746 F.2d 1288 (7th Cir.1984). When, as here, the issues involve federal constitutional rights, federal law must be applied. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).

II. FENCL'S PREARREST SILENCE

A. State Decision

Fencl claims that his Fifth Amendment right not to incriminate himself, his Sixth Amendment right to assistance of counsel, and his Fourteenth Amendment right to due process were violated when the prosecution mentioned his prearrest silence and employment of an attorney during opening and closing arguments and when it elicited similar testimony from Detective Geigel, a prosecution witness. Fencl's silence was maintained during questioning prior to arrest by the authorities both before and after he had received Miranda warnings. The Wisconsin Supreme Court held that references to the post-Miranda silence was constitutional error, reasoning that: "It is fundamentally unfair and a denial of due process to assure a defendant through the Miranda warning that he has the right to remain silent and then penalize him for exercising that right." State v. Fencl, 109 Wis.2d 224, 233-34, 325 N.W.2d 703, 709-10 (1982). In coming to this conclusion the court relied on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), where the United States Supreme Court stated:

While it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.

Id. at 618-19, 96 S.Ct. at 2245. Doyle dealt with postarrest silence and the prosecution's efforts to impeach a testifying defendant, but the Wisconsin court found the rationale applicable to Fencl's case, saying that: "Receipt of the Miranda warning is the important factor in the Doyle analysis, not whether the defendant has been arrested. Therefore, the Doyle rationale protects post-Miranda silence whether occurring before or after arrest." Fencl, 109 Wis.2d at 234, 325 N.W.2d at 710. The court concluded that the testimony concerning silence was introduced to tacitly imply Fencl's guilt and that because these references were used against Fencl, they constituted constitutional error. Id. at 235, 325 N.W.2d at 710.

Next, the Wisconsin Supreme Court considered the reference to Fencl's pre-Miranda silence. It was the first time the court had directly addressed this issue. The court conceded that "a strict interpretation of Doyle renders the due process rationale inapplicable," then framed the issue as "whether such references are violative of Fencl's Fifth Amendment privilege against...