State v. Tkacz

• Decision Date: 16 October 2002
• Docket Number: No. 02-0192-CR.,02-0192-CR.
• Citation: 654 N.W.2d 37,258 Wis.2d 611,2002 WI App 281
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Peter G. TKACZ, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

258 Wis.2d 611

2002 WI App 281

654 N.W.2d 37

STATE of Wisconsin, Plaintiff-Respondent, v. Peter G. TKACZ, Defendant-Appellant.¹

No. 02-0192-CR.

Court of Appeals of Wisconsin.

Submitted on briefs August 21, 2002.

Decided October 16, 2002.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark S. Rosen of Rosen and Holzman of Waukesha.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Gregory M. Weber, assistant attorney general.

Before Nettesheim, P.J., Brown and Anderson, JJ.

¶ 1. BROWN, J.

In this case, the prosecuting attorney previously represented Peter G. Tkacz in a civil forfeiture action before joining the district attorney's office. Tkacz sought to remove the prosecutor prior to trial claiming a conflict of interest. As did the trial court, we adopt the "substantial relationship" test when the issue is raised pretrial during criminal cases. Because the prior civil action and this criminal action were not substantially related, we affirm the trial court's denial of Tkacz's motion. We also address and reject Tkacz's two other issues: that Tkacz's trial counsel was ineffective for failing to impeach one of the State's witnesses with regard to the exact number of her prior criminal convictions and that the prosecutor's plea offer after reversal and remand which was less favorable than the plea offer before the first trial constitutes vindictive prosecution.

¶ 2. In April 1995, Tkacz was charged with one count of conspiracy to deliver heroin as a repeater and one count of first-degree reckless homicide for participating in a death by providing the victim with heroin. Prior to the first trial, prosecutor Douglass Jones offered Tkacz a plea bargain recommending a sentence of ten to fifteen years. Tkacz did not accept the plea offer. The case went to trial and a jury convicted Tkacz on both counts. Tkacz received a twenty-year prison sentence on the first-degree reckless homicide charge. Tkacz appealed and we reversed the first-degree reckless homicide conviction. State v. Tkacz, No. 97-0974, unpublished slip op. (Wis. Ct. App. June 3, 1998).

¶ 3. Prior to the second jury trial on the first-degree reckless homicide charge, Jones offered Tkacz a plea bargain recommending the twenty-year maximum sentence, which Tkacz did not accept. Also, before his second trial, Tkacz filed a motion seeking to disqualify Jones alleging an impermissible conflict of interest. While he was in private practice, Jones had represented Tkacz in a civil forfeiture matter in 1989. Tkacz testified at the pretrial motion hearing that during Jones's representation of him, he had a meeting with Jones that lasted one to two hours during which he disclosed confidential information to him concerning drug connections he had in Texas and Arkansas. In his motion, Tkacz claimed that Jones used this information at the bail hearing before his first trial to argue for substantial cash bail. At the bail hearing, Jones had argued:

I can inform the Court, in terms of risk of flight, Mr. Tkacz has on occasion had a prior address in Arkansas. He had been known to travel . . . . At this point in time, I think the risk of flight and the danger he presents to the community, and the seriousness of these charges, which carries 60 years worth of exposure, make Mr. Tkacz a good candidate for significant cash bail.

¶ 4. Jones testified at the motion hearing that he did not have any knowledge of Tkacz ever giving him any confidential information, he did not recollect having discussed the specifics of the case with Tkacz most likely because the need never arose, and he probably had some phone contact and minimal face-to-face contact with Tkacz. Jones also testified that prior to the bail hearing he had discussions with the police about Tkacz's out-of-state contacts and that they supplied him with information about Tkacz's connections with Arkansas. The trial court denied the motion and the case proceeded to trial.

¶ 5. At trial, Jill Wolff, who was present at the time of the homicide, testified as a witness for the State. She testified that she and Tkacz lived together at the time of the homicide and they shared drugs. She testified that at the time of the homicide, she was addicted to various narcotics and heroin and had done heroin that night. She testified that she and Tkacz knew the victim and had given her injections of heroin in the past.

¶ 6. Wolff further testified that she was in prison for her involvement in the death of the victim and that in exchange for her cooperation with the State, she received a favorable parole recommendation. On cross-examination, Wolff admitted that she had not told the truth about the circumstances surrounding the victim's death during a John Doe proceeding and in her statements to police. She also testified that she had tried to set up an alibi for herself, "I was trying to set up a lie at that time to cover up for the truth." Wolff had seven prior criminal convictions, two of which were the result of the homicide. Tkacz's counsel was aware of these convictions, but on cross-examination did not elicit from Wolff the number of her prior convictions.

¶ 7. After a three-day jury trial, the jury convicted Tkacz and the trial court sentenced him to twenty years in prison. Tkacz filed a motion for postconviction relief raising the three issues we address here. The trial court denied the motion and Tkacz appeals.

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¶ 8. We first address Tkacz's claim that the trial court erred when it failed to disqualify Jones based on the alleged conflict of interest. Tkacz asserts that the trial court erred by using the "substantial relationship" test to determine the issue. Whether the trial court used the proper standard is a question of law that we review independently of the trial court. See Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, ¶ 19, 251 Wis. 2d 68, 640 N.W.2d 788

. However, the trial court's decision of whether attorney disqualification is required in a particular case is an exercise of discretion and the scope of our review is limited accordingly. Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37 (Ct. App. 1991). Generally, we will not find that the trial court's exercise of discretion was erroneous if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the trial court's decision. Jesse v. Danforth, 169 Wis. 2d 229, 245-46, 485 N.W.2d 63 (1992).

¶ 9. Our review of the trial court's decision requires us to address two questions. First, we must decide what the proper standard is for determining whether a conflict of interest exists when a prosecuting attorney has previously represented a defendant in a different case and the criminal defendant raises the conflict of interest issue prior to trial. Second, once we set forth the appropriate standard, we must then apply it to the facts of this case to determine whether the trial court erroneously exercised its discretion when it found that a conflict of interest did not exist.

¶ 10. There are no reported Wisconsin decisions setting the appropriate standard for analyzing conflict of interest claims where a criminal defendant raises the conflict of interest issue before trial. We begin our analysis with a discussion of recent cases that have dealt with conflict of interest problems in both the civil and criminal contexts.

¶ 11. In State v. Love, 227 Wis. 2d 60, 82, 594 N.W.2d 806 (1999), our supreme court set the standard for analyzing ineffective assistance of counsel claims based on an attorney's potential conflict of interest where the defendant raises the objection after trial. Love involved an assistant district attorney who had represented the State at the defendant's sentencing hearing and then a few months later represented the defendant in the same case at another sentencing hearing after revocation of his probation. Id. at 64-65. In concluding that no prohibited conflict existed, the court held that in a serial representation case where the defendant does not raise the objection until after trial, the defendant must show by clear and convincing evidence that the attorney had an actual conflict of interest. Id. at 82.

¶ 12. The court distinguished the case from a situation where the defendant raises the conflict of interest objection prior to trial: "[t]he standards to be applied in the Kaye² hearing dealing with a potential or actual conflict of interest before trial, are different from the standards applied in a motion for relief after trial, because both the defendant and the court should be given the opportunity before trial to head off an actual conflict of interest before it happens." Love, 227 Wis. 2d at 73. Although the court made it clear that the "actual prejudice" standard would not apply if the defendant raised the issue before trial, the court did not specify what the standard would be in such a case.

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¶ 13. In Berg v. Marine Trust Co., 141 Wis. 2d 878, 884-85, 416 N.W.2d 643 (Ct. App. 1987), the leading Wisconsin case dealing with the conflict of interest issue in the civil context, we adopted the "substantial relationship" test as the appropriate standard for analyzing conflict of interest claims. We set forth the substantial relationship test as follows: "where an attorney represents a party in a matter in which the adverse party is that attorney's former client, the attorney will be disqualified if the subject matter of the two representations are `substantially related.'" Id. at 885 (citation omitted). The two representations are substantially related "if the lawyer could have obtained confidential information in the first representation that would have been relevant in the second." Id. at 886 (citation omitted). We reasoned that the test was appropriate, in part, because it was consistent with Wisconsin's professional responsibility rules governing an attorney's representation of a...