State v. Bayerl
| Docket Number | 2021AP726-CR |
| Decision Date | 21 June 2023 |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. John H. Bayerl, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
APPEAL FROM A JUDGMENT AND AN ORDER OF THE CIRCUIT COURT FOR WAUKESHA COUNTY NO. 2019CF244 BRAD SCHIMEL, JUDGE.
Before Gundrum, P.J., Neubauer and Grogan, 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).
¶1 John H. Bayerl appeals a judgment of conviction for first-degree intentional homicide in connection with the 1979 disappearance of his wife, Dona. He also appeals an order denying his postconviction motion. On appeal, Bayerl argues the circuit court erroneously exercised its discretion by admitting other-acts evidence generally consisting of testimony from former wives about his alcohol use and verbal and physical abuse of them. He also argues he received constitutionally ineffective assistance from his trial attorney in various ways. Finally, he contends he is entitled to a new trial in the interest of justice. We reject his arguments and affirm.
¶2 Bayerl's wife Dona disappeared in early May 1979 following an argument between them. Neither she, nor her body, has been found. Bayerl was charged with first-degree intentional homicide in connection with her death in early 2019.
¶3 At trial, there was testimony about the couple's deteriorating marriage and Bayerl's admitted physical abuse of Dona and his infidelity prior to Dona's disappearance. As described in more detail below, two of Bayerl's former wives, A.P. and L.B., testified that he often drank and was physically abusive toward them.
¶4 There was little physical evidence of a crime; the State's case was largely circumstantial.[1] Various witnesses testified that after Dona disappeared they saw what appeared to be blood on items in the garage and on the garage structure itself. Some of those items were submitted to the Wisconsin State Crime Laboratory for testing in 2018 and 2019. Two clothespins and one bottle tested positive for blood on a presumptive test, but confirmatory testing for blood was negative. Analysts were able to develop a partial female DNA profile from the substance on the bottle.[2] Dona's daughter provided law enforcement with one of her few possessions from her mother a baby book that at one time had photographs inserted on pages using adhesive corners that became sticky when licked. A sample from one of the photograph corners yielded a DNA profile that was consistent with the substance on the bottle. The State's DNA analyst testified that statistically, the shared profile would be found in one person out of every twelve billion people tested.[3]
¶5 Bayerl filed a postconviction motion after the jury found him guilty of first-degree intentional homicide. He alleged various instances of ineffective assistance of counsel, and the circuit court held a Machner hearing[4] at which one of Bayerl's trial attorneys testified. The court denied Bayerl's postconviction motion, concluding that his trial counsel was not constitutionally ineffective and that Bayerl's conviction was based on "admissible and ultimately strong evidence" of his guilt. Bayerl now appeals.
¶6 The admissibility of other-acts evidence is governed by Wis.Stat. § 904.04 (2021-22)[5] and other generally applicable rules of evidence, such as Wis.Stat. §§ 904.01 and 904.03. State v. Sullivan, 216 Wis.2d 768, 772-73, 576 N.W.2d 30 (1998). Using these statutes Sullivan set forth a three-step framework for analyzing other-acts evidence, which is generally not admissible to establish a person's character in order to show that the person acted in conformity therewith. Sec 904.04(2).
¶7 Sullivan requires that the proponent of the evidence first demonstrate that the evidence is offered for an acceptable purpose under § 904.04(2)-permissible purposes include proof of motive, intent, identity, or absence of mistake or accident. The proponent must then establish the two facets of relevance under Wis.Stat. § 904.01. If the proponent satisfies those requirements, the burden shifts to the opposing party to demonstrate that the evidence should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice confusion, or other considerations under Wis.Stat. § 904.03.
¶8 A circuit court's evidentiary decisions are reviewed for an erroneous exercise of discretion. See Sullivan, 216 Wis.2d at 780. We will uphold the court's determination if it examined the relevant facts, applied a proper standard of law, and used a demonstrated rational process to reach a reasonable conclusion. Id. at 781. We will search the record for reasons to sustain a circuit court's exercise of discretion. State v. Salas Gayton, 2016 WI 58, ¶20, 370 Wis.2d 264, 882 N.W.2d 459.
¶9 Bayerl's primary appellate argument regarding the other-acts evidence is that the incidents testified to were too dissimilar to the first-degree intentional homicide charged here. See id. at 786. This argument permeates through each step of Bayerl's Sullivan analysis; for example, Bayerl asserts that because the other acts involving A.P. merely featured bodily harm rather than homicide, they could not help establish his identity as Dona's killer, nor were they probative of any of the elements of first-degree murder. See Wis. Stat. § 940.01(1)(a) ().
¶10 The circuit court concluded evidence of Bayerl's abusive conduct toward his wives was admissible to prove "intent, absence of mistake, identity, [and] context or background." In doing so, the court noted that given the absence of a body and the largely circumstantial case against Bayerl, the similarities between the other acts and the homicide were difficult to assess. The court compared "what we know of the relationship between the Defendant and Dona" to the proffered other-acts evidence and determined that there were significant commonalities: aggressive behavior toward a spouse that was seemingly enhanced by alcohol use; a tendency to become enraged over relatively trivial home matters; and violent eruptions that occurred whenever the spouse attempted to leave the situation or get the last word.
¶11 We conclude the circuit court did not erroneously exercise its discretion when it admitted the challenged other-acts evidence. We begin with the other-acts evidence regarding Bayerl's prior assaultive conduct toward Dona and his infidelity. The court concluded such evidence was proffered for the permissible purposes of proving the identity of the murderer, the absence of mistake regarding Dona's death, the existence of the requisite intent, and as context or background relating to her disappearance. "The state was entitled to show what had been the relations between defendant and his wife prior to the alleged uxor[i]cide."[6] Runge v. State, 160 Wis. 8, 12-13, 128 N.W. 80 (1915). Such evidence was both relevant to and probative of the alleged homicide.
¶12 We also conclude the circuit court did not erroneously exercise its discretion when it admitted the evidence regarding A.P. and L.B. In analyzing the admissibility of this evidence, it is important to note that, by Bayerl's own account to authorities, he was in a bad marriage and a lengthy argument immediately preceded Dona's disappearance. Bayerl told a detective he had been drinking and Dona was doing most of the talking during the argument. Bayerl additionally told police that Dona said to him, "I can't live like this anymore or I will go crazy," and "I would be better off with a boyfriend." The State's theory at trial was that the argument had escalated into violence that ultimately ended with Dona's murder.
¶13 Placed in this context, the similarities between the physical abuse of A.P. and L.B. and Dona's alleged homicide become such that the circuit court could reasonably conclude the evidence satisfied Sullivan. For example, as it relates to identity, "the other-acts evidence should have such a concurrence of common features and so many points of similarity with the crime charged that it 'can reasonably be said that the other acts and the present act constitute the imprint of the defendant.'" State v. Kuntz, 160 Wis.2d 722, 746-47, 467 N.W.2d 531 (1991) (quoting State v. Fishnick, 127 Wis.2d 247, 263-64, 378 N.W.2d 272 (1985)).
¶14 Kuntz is an instructive case for purposes of dissecting Bayerl's arguments. There, at the defendant's trial for arson of an estranged spouse's residence and murder of her relative, other-acts evidence was admitted consisting of the testimony of another of Kuntz's ex-wives that Kuntz had, approximately sixteen years earlier, said he was going to set his first wife's house on fire. Id. at 745. Kuntz also told her after a brief separation that while she was gone he had made a bonfire out of her and her children's belongings. Id. Our supreme court concluded the circuit court properly exercised its discretion when admitting this evidence for the permissible purposes of proving identity and motive: "The circumstances in each instance were strikingly similar and the other-acts were not so remote to attenuate all rational or logical connection between the acts." Id. at 748.
¶15 Kuntz is inconsistent with the logic Bayerl advances here. After all, Kuntz had not actually committed a prior arson; he merely told his then-wife that he intended to do so. And just as Bayerl distinguishes acts of physical abuse from murder, so too could our supreme court in Kuntz have held that burning household...
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