By LeAnn R. Ralph
BARRON — A Barron County Circuit Court judge has denied a request for a new trial for Gary Wayerski, the former Wheeler police chief convicted of sex crimes against teenaged boys.
The Honorable Maureen Boyle denied the request in Barron County Circuit Court May 4 during what was the last of three hearings in the matter.
One hearing in late December lasted all day. Another hearing in March took up all of an afternoon, and the hearing in Barron County began at 2 p.m. and concluded at 6 p.m.
Wayerski was convicted on 16 felony counts by a Dunn County jury on October 12, 2012: two counts of child enticement, two counts of a child as actor, two counts of exposing a child to harmful material, two counts of causing a child 13 to 18 years of age to view sexual activity, and eights counts of the sexual assault of a child by a person who works or volunteers with children.
In January of 2013 in Dunn County Circuit Court, the Honorable William C. Stewart Jr. sentenced Wayerski to 14 years in prison and 16 years of extended supervision.
Wayerski, who worked part-time as police officer in Colfax for nine months in 2009 and later worked part-time as a police officer in Boyceville and coached in Boyceville, was arrested July 18, 2011, in a cemetery in St. Croix County where he said he had intended to kill himself.
Edward J. Hunt, who was representing Wayerski in his request for a new trial, alleged that Wayerski’s defense attorney at the time of his trial, Lester Liptak, provided ineffective counsel and was provided ineffective assistance of counsel.
Hunt also argued that a new trial was warranted because of several other issues, including Judge Stewart’s denial of a change of venue.
One issue in Wayerski’s request for a new trial pertained to a Chippewa County jail inmate, John R. Clark, who testified at trial that Wayerski has confessed his crimes to Clark while they were in the Chippewa County Jail together.
Wayerski was being held in Chippewa County because of his occupation as a law enforcement officer in Dunn County.
Hunt alleged that special prosecutor Ben Webster, an assistant district attorney in Eau Claire County, knew that Clark had been convicted of previous felonies and was facing pending charges similar to the crimes with which Wayerski was charged but failed to disclose that information to Liptak.
Clark was arrested on one felony charge of causing a child 18 to 18 years of age to view sexual activity and two misdemeanor charges of sex with a child 16 years of age or older in September of 2012. Wayerski’s trial was in October of 2012. Clark was not formally arraigned on those charges until December of that year.
One of the issues Hunt raised at a court hearing in March was that Liptak was never given a National Crime Information Center (NCIC) report detailing Clark’s convictions.
Webster said he would check to see if any of the law enforcement agencies involved had retained a copy of the NCIC report.
At the May 4 hearing, Webster said he was able to find a report detailing Clark’s convictions and charges from 2009 to May of 2013.
The timeframe in question would have been 2009 until October of 2012.
Webster told the court that he not engaged in a full discussion with Liptak of any pending charges against Clark, only previous convictions.
A report generated seven or eight months later was not the report Webster had available in October of 2012, Judge Boyle said, and ruled that a May of 2013 NCIC report was not relevant.
Liptak testified at a hearing in Dunn County Circuit Court in January that he was unaware of the pending charges against Clark, Hunt noted.
Since Liptak was unaware of pending charges that were of a similar nature to what Wayerski was charged with, Liptak was unable to cross-examine Clark about the pending charges, he said.
Previous convictions for Clark included taking a vehicle without the owner’s consent, traffic violations, escaping arrest, bail jumping, misappropriating identification, disorderly conduct, and domestic battery.
Hunt argued that when Wayerski’s suicide attempt at the time of his arrest came up during the October of 2012 jury trial, it was an error so serious that Liptak should have moved for a mis-trial.
Liptak had tried to keep the suicide information out of the trial and thought the information was prejudicial against Wayerski, but he did not object and ask for a mis-trial, he said.
A suicide attempt could be viewed by the jury as a “consciousness of guilt” act, Hunt said.
Webster pointed out that there was no evidence Wayerski had actually made an attempt to commit suicide.
When Wayerski was arrested in a cemetery in St. Croix County, there was a gun nearby, and while Wayerski said he had intended to kill himself, there was no evidence that he had made an attempt, Webster said.
Was it true?
Liptak failed to ask Wayerski if it were true that he had confessed to Clark in jail, Hunt said.
Because Liptak did not ask Wayerski if what Clark said was true, it left the jury with the impression that what Clark said was true, Hunt said.
Hunt alleged that Liptak’s failure to ask Wayerski if he had, in fact, confessed to Clark in the Chippewa County Jail, was grounds for granting a new trial.
Liptak now has the benefit of hindsight, Webster said.
“He could have or should have asked, but he did not ask,” he said.
Wayerski was not entitled to perfect representation, although he was entitled to reasonable representation, Webster said.
In addition, Wayerski did have an opportunity to say that he had not done any of the things he was accused of doing, he said.
Liptak was reasonably effective, although not perfect — but he was not ineffective to the level of requiring a new trial, Webster said.
Hunt also objected to Liptak not challenging two of the jurors who were selected.
Both of the jurors worked in the Chippewa County Jail. One was a jail nurse, and the other was a hair stylist who cut the hair of inmates, he said.
Liptak failed to move for the dismissal of both of the jurors in question, Hunt said.
During jury selection, which lasted an entire day, both of the jurors said they knew Wayerski, but both said they did not know anything about the case and did not talk to Wayerski about the case, Judge Boyle said.
Wayerski was convicted of eight felony counts of the sexual assault of a child by a person who works or volunteers with children.
Hunt alleged that a police officer does not fit the definition included in the state statute of someone who works or volunteers with children.
Liptak failed to move to dismiss those counts and should have pointed to the definition, he said.
There is no definition in the state statutes that covers Wayerski as working or volunteering with children, Hunt said.
The definition applies to high school or middle school principals, teachers, volunteers at school or crossing guards, he said.
“What about a school liaison officer?” Judge Boyle asked, noting that many school districts hire liaison officers.
Wayerski worked in a small village of 300 people, and he was familiar with the residents, she said.
The boys’ parents had asked him to work with their children, and Wayerski had also been a coach, Judge Boyle noted.
Wayerski initially met one of the teenagers, who were 16 and 17 at the time they were sexually abused, at the gas station in Wheeler and met the other teenager after he had burglarized the Nazarene Church in Wheeler. Wayerski also arrested the boy he had met at the gas station for stealing an MP3 player from his employer.
Both boys reportedly had problems with drugs and alcohol, and Wayerski testified at his October trial that the boys’ parents were “at their wits end” and wondered if Wayerski could supervise them and mentor them.
Wayerski said he wanted to make the lives of the teenagers better and chose to work with them, Judge Boyle said.
The statute does not preclude anybody, and in fact, the statute does not list priests or pastors, she said.
Wayerski chose to work in a small village with kids, Judge Boyle said.
Liptak was not deficient in not objecting to the counts related to someone working or volunteering with children, she said.
The number of sexually explicit pictures allowed at trial also was objectionable, Hunt said.
There were photographs of adult homosexual activity, but no nude photographs of the teenaged boys, he said.
Wayerski admitted at trial that he was a “pornography addict” and tens of thousands of pornographic photographs were found on his computer.
Some of the photographs depicted the same conduct of which Wayerski was convicted by the jury.
The number of photographs allowed to be introduced as evidence was substantially fewer than the number of photographs that were found, Judge Boyle said.
The photographs reflected Wayerski’s interest in sexual contact, Webster said.
Judge Boyle denied the motions alleging ineffective counsel and ineffective assistance of counsel.
Hunt is arguing that but for Liptak’s ineffective performance, Wayerski would have not have been convicted, she said.
Webster is arguing that each one of the issues, not taken collectively, would not rise above the overwhelming evidence that convicted Wayerski, Judge Boyle said.
“I can’t find that (Liptak’s representation in court) was deficient performance,” she said.
Any one of the claims of ineffective counsel or ineffectiveness of assistance to counsel, or deficient performance as defense counsel would not be enough to grant a new trial, Judge Boyle said.
Taken together as a totality of impact, the question is, would the claims have made a difference in the outcome of the trial, she said.
None of them rise to the level of deficient performance, Judge Boyle said.
One issue did give Judge Boyle pause, however, and that was Liptak’s failure to ask Wayerski whether John Clark’s testimony were true.
Judge Boyle said she had read the entire transcript of Wayerski’s trial, and Wayerski was “uncontrollable” on the witness stand because he volunteered information and offered explanations instead of only answering the questions that were asked of him.
Liptak probably should have given Wayerski the opportunity to say whether Clark’s testimony was true, but if Liptak had asked, would that have changed the jury’s verdict? Judge Boyle asked, noting that because Wayerski was uncontrollable on the witness stand, it might be understandable that Liptak would be hesitant to ask Wayerski more questions.
In the face of overwhelming evidence against Wayerski, would being allowed to say one more time that he did not do what he was accused of doing change the outcome, she wondered.
Judge Boyle noted that the jury may not have considered Clark to be a credible witness in the first place, and that the jury had, in fact, determined the credibility of all of the witnesses.
Wayerski is not entitled to “perfect representation,” and Liptak “fought the good fight,” Judge Boyle said.
Hunt argued that Judge Stewart should have granted a change of venue for Wayerski’s trial, or at the very least, brought in a pool of jurors from another county, because of pre-trial publicity.
Judge Boyle said she had reviewed the news reports and said they were not written in such a way as to influence public opinion.
Each of the news reports cited the criminal complaint, and said, “according to the criminal complaint,” she said.
The news stories were reporting the facts from the criminal complaint, Judge Boyle said.
During the day-long jury selection, people who knew anything about the case were dismissed, and there were still enough people in Dunn County to provide a jury who knew nothing about the case, she said.
Judge Stewart also had additional jurors brought in so there was a bigger pool to select from, Judge Boyle said.
Judge Stewart exercised appropriate discretion in denying Liptak’s motion for a change of venue, she said.
As for the pending charges against Clark, Webster knew about the pending charges, but it was not an intentional withholding of evidence, Judge Boyle said.
At this point, no one has any way of knowing whether Judge Stewart would have allowed the information about the pending charges or whether Clark could have been discredited as a witness, she said.
Clark said he came forward because he was concerned about the teenagers being sexually abused, Judge Boyle said.
Hunt says Clark was not a credible witness because he knew about pending charges against him that were similar to Wayerski’s charges, but Clark had not yet been charged with any crimes at the time of Wayerski’s trial, she said, adding that the legal system in the United States presumes innocence until proven guilty.
Clark’s prior convictions were mentioned, but Webster did not think the pending charges were relevant, Judge Boyle said.
Throughout the entire trial transcript, there is testimony that is both credible and incredible, Judge Boyle said.
Wayerski testified there was a conspiracy and that he had been set up, she said.
The victims’ statements were consistent and were corroborated by friends and parents, Judge Boyle said.
There was DNA evidence of semen found in Wayerski’s apartment that corroborated the boys’ testimony. If Wayerski truly had been set up, the teenagers could have taken an easier route and planted drugs in Wayerski’s apartment, she said.
The overwhelming evidence supports Wayerski’s guilt, and Wayerski could have been convicted without Clark’s testimony, Judge Boyle said.
“The evidence here was substantial of Wayerski’s guilt,” she said.
“I don’t think Mr. Clark was the smoking gun,” Judge Boyle said.
Judge Boyle went on to deny the motion for a new trial based on the prosecutor’s failure to disclose evidence.
Hunt noted that regarding the DNA evidence, the teenager said law enforcement would find “something on a dish” to corroborate his story.
The teenager could have masturbated on the dish to set up Wayerski, he said.
Judge Boyle said she could not believe the teenagers were that sophisticated and wondered why they would be willing to go through testifying in court about sexual acts that were not true.
That they would create a scam so complicated “is beyond belief,” Judge Boyle said.