State v. Wayerski

• Decision Date: 07 February 2019
• Docket Number: No. 2015AP1083-CR,2015AP1083-CR
• Citation: 2019 WI 11,922 N.W.2d 468,385 Wis.2d 344
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Gary Lee WAYERSKI, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

385 Wis.2d 344

922 N.W.2d 468

2019 WI 11

STATE of Wisconsin, Plaintiff-Respondent,

v.Gary Lee WAYERSKI, Defendant-Appellant-Petitioner.

No. 2015AP1083-CR

Supreme Court of Wisconsin.

Oral Argument: September 5, 2018

Opinion Filed: February 7, 2019

For 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.

For 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.

¶1 Gary Wayerski seeks review of the court of appeals'¹ decision affirming the circuit court's² denial of his postconviction motion.

¶2 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);³ (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).

¶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 Brady ⁴ obligations. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The circuit court denied Wayerski's postconviction motion.

¶4 The court of appeals affirmed the circuit court's denial of Wayerski's postconviction motion.⁵ Wayerski now seeks review of the denial of his ineffective assistance of counsel claim⁶ and the denial of his Brady claim.

¶5 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.

¶6 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.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶7 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.

¶8 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 church.

¶9 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.

¶10 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."

¶11 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.

¶12 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 Wayerski's apartment.

¶13 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 their allegations.

¶14 Eau Claire County⁷ 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 pornographic films.

¶15 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 case.

¶16 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.

¶17 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 some felonies.

¶18 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 media.⁸

¶19 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," "spank...