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By LeAnn R. Ralph
MADISON — The Wisconsin Supreme Court has upheld a Court of Appeals ruling denying a new trial for former Wheeler police chief Gary Wayerski.
Wayerski, who is now 63 years old, is serving a 14-year prison sentence with 16 years of extended supervision after being convicted by a Dunn County jury in October of 2012 on 16 felonies related to sex crimes involving teenaged boys.
The Wisconsin Supreme Court issued a written decision upholding the Court of Appeals decision on February 7.
Wayerski was sentenced in January of 2013 in Dunn County Circuit Court by Judge William Stewart, who retired from the bench in December of 2013.
In December of 2014, Wayerski filed a motion requesting a new trial.
The Honorable Maureen Boyle, a judge in Barron County, presided over the motion hearing and denied the motion for a new trial.
Wayerski alleged that Lester Liptak, the public defender assigned to represent Wayerski, had provided inadequate counsel, in part for failing to ask Wayerski on the witness stand whether he had confessed to the crimes when speaking with another jail inmate being held in the Chippewa County jail.
Wayerski was held in the Chippewa County jail prior to the 2012 trial to ensure his safety, since he had served as a police officer in Dunn County.
John Clark, the Chippewa County jail inmate, testified at trial that Wayerski had confessed to him about the crimes against the teenaged boys.
While rendering her decision, Judge Boyle wondered, in the face of overwhelming evidence against Wayerski, whether being allowed to say one more time, based on Clark’s testimony, that he did not do what he was accused of doing would have changed the outcome.
Following Judge Boyle’s denial of a new trial, Wayerski filed an appeal with the Court of Appeals.
The Court of Appeals upheld Judge Boyle’s decision to deny a new trial to Wayerski.
Wayerski then filed with the state Supreme Court to review the Court of Appeals decision.
Wayerski worked part-time as a police officer in Colfax for nine months in 2009 and later worked part-time as a police officer in Boyceville. He was initially hired by the Wheeler Village Board for four hours per week. Wheeler increased his time to 20 hours per week in December of 2010.
Not long before Wayerski was arrested in July of 2011 in a cemetery in St. Croix County where he said he had intended to kill himself, a group of Wheeler residents had gone to the village board to ask if it would be possible to increase Wayerski’s hours to full-time since they were feeling uneasy about a series of recent burglaries in the village.
Wayerski initially met one of the teenaged victims at the gas station in Wheeler and met the other teenager after he had burglarized the Nazarene Church. Wayerski also arrested the boy he had met at the gas station for stealing an MP3 player from his employer.
Both boys, who were 16 and 17 at the time they were sexually abused, reportedly had problems with drugs and alcohol, and Wayerski testified at trial that the boys’ parents were “at their wits end” and wondered if Wayerski could supervise them and mentor them.
The sexual abuse occurred at Wayerski’s apartment in Menomonie.
Both boys told investigators Wayerski had spiked their Monster Energy Drinks with alcohol and had shown them pornographic pay-per-view movies on television.
The 16-year-old said there had been approximately 30 instances of sexual contact with Wayerski between March and July of 2011.
The 17-year-old told investigators he had also viewed pornographic images on Wayerski’s computer, specifically a website called Pornhub. He estimated between 10 and 15 incidents of sexual contact with Wayerski.
Investigators found approximately 100,000 pornographic images on Wayerski’s computer.
The Supreme Court decision notes that Wayerski based his appeals to the circuit court and to the Court of Appeals on claims of ineffective counsel, circuit court errors and a violation of the state’s Brady obligation for the prosecution to turn over evidence beneficial to the defense.
The appeal to the state Supreme Court was based on claims of ineffective counsel and a violation by the prosecution of the Brady obligation.
According to the Supreme Court decision, Wayerski contends that his attorney, Liptak, performed deficiently at trial because Liptak failed to ask Wayerski on the witness stand about Wayerski’s supposed confession to another jail inmate.
Wayerski also asserts that since he did not answer questions about the claim of a confession to a fellow jail inmate, “in the eyes of the jury, [it] was tantamount to an admission of guilt.”
The Supreme Court decision notes, “we assume without deciding that trial counsel’s performance was deficient.”
The decision then goes on to say, “we conclude there was no prejudice to Wayerski. Therefore, we conclude that there was no ineffective assistance of counsel.”
To establish that the trial counsel’s performance was prejudicial, Wayerski would have to show there is a “reasonable probability” the result of the trial would have been different if his attorney had asked him on the witness stand about the claim of a confession to an inmate, the Supreme Court decision states.
The decision points out, “there was never any doubt that Wayerski claimed that he was innocent.”
The decision also points out the credibility of Clark, the fellow jail inmate, had been called into question when he testified that Wayerski had confessed to him because the jury heard Clark had been convicted of 20 crimes, some of them felonies.
The questions Wayerski’s attorney asked also called into question whether Clark had heard the details of the case from Wayerski or had gathered the details from access to media accounts at the Chippewa County jail.
The Supreme Court decision notes, too, that the evidence against Wayerski was overwhelming.
The two teenaged boys gave consistent, detailed testimony, and their parents corroborated the amount of time they spent with Wayerski doing “ride-alongs” in his police squad and spending time at his apartment.
The jury also heard testimony from a police detective, who described the teenagers’ demeanor as consistent with that of sexual assault victims in other cases he had investigated.
The detective testified as well about items recovered from Wayerski’s apartment, including an oval-shaped turquoise plate that one of the boys said Wayerski had told him to ejaculate onto, a cable bill for on-demand pornography, vodka and the contents of Wayerski’s computer.
In addition, the Supreme Court decision points out, the jury heard testimony from a DNA analyst that the semen on the plate matched one of boy’s DNA profile, and “the likelihood the sample belonged to anyone other than [the teenager] was one in 28 quintillion.”
“Therefore, we conclude that even if Wayerski’s trial counsel’s performance was deficient for failure to question him about the purported confession he gave to Clark, the deficiency was not prejudicial, and thus there was no ineffective assistance of counsel,” the Supreme Court decision states.
The Brady obligation refers to a case, Brady vs. Maryland in 1963, in which the United States Supreme Court concluded that to ensure due process and a fair trial, the prosecution is obligated to turn over evidence to the defense that could be helpful to the defendant.
In Wayerski’s case, the prosecution — a special prosecutor from Eau Claire County, assistant District Attorney Ben Webster — had obtained, before trial, the criminal complaint filed against Clark and knew Clark had been accused of the same kind of crimes as Wayerski.
The prosecution did not turn over the criminal complaint against Clark to Wayerski’s defense attorney.
The state Supreme Court decision — which three of the seven Wisconsin Supreme Court justices in dissenting opinions described as going against 55 years of settled law — concludes the prosecution did suppress evidence.
The state Supreme Court decision rejects the idea, from the past 55 years of Wisconsin and federal case law, that evidence is only suppressed when it is in the prosecution’s “exclusive possession and control” and that evidence was only suppressed if Wayerski’s attorney could not have obtained the evidence through “reasonable diligence” and it would be an “intolerable burden” to obtain the evidence.
At issue is that criminal complaints are public information and can be obtained by any member of the public from the clerk of courts office in any Wisconsin county and information about pending charges is available to any member of the public online through the Wisconsin Circuit Court Access website.
Even though Wayerski’s attorney could have easily obtained a copy of the criminal complaint against Clark from Chippewa County and could have easily discovered the pending charges by doing an online search, the Supreme Court decision concludes that while the prosecution did suppress evidence, either willfully or inadvertently, there was no Brady violation because Wayerski failed to demonstrate the evidence was “material.”
Citing another court case, the Supreme Court decision concludes, “the evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different … we conclude that the suppressed evidence was not material. There is no reasonable probability that, had evidence of Clark’s pending charges been disclosed, the result of the proceedings would have been different … the state provided compelling evidence of Wayerski’s guilt.”
All of the evidence, the Supreme Court decision states, “was presented prior to Clark’s rebuttal testimony about an alleged jailhouse confession from Wayerski … Therefore, we conclude that Wayerski cannot demonstrate that, had evidence of Clark’s pending charges been disclosed, the result of the proceeding would have been different. Since the evidence was not material, Wayerski’s Brady claim must fail.”
Concerning the Brady analysis, the Supreme Court decision concludes, “the decision of the court of appeals is modified and, as modified, affirmed.”
The Supreme Court justices who dissented in relation to the majority’s analysis of the Brady component agreed with the overall decision to uphold the Court of Appeals decision to deny a new trial to Wayerski.
Dissenting opinions included on parts of the Supreme Court decision were written by Supreme Court Justices Annette Ziegler and Daniel Kelly. Chief Justice Patience Roggensack joined Ziegler’s opinion.
Justice Kelly wrote, “I join all of the court’s opinion except for the piece that turns a logical impossibility into a potential violation of our state and federal constitutions. I refer, of course, to the proposition that the state ‘suppresses’ publicly-available evidence if it does not proactively provide the information to the defendant. The State’s passivity, however, cannot ‘suppress’ information in the public domain, so there can be no Brady violation.”
Justice Rebecca Dallet wrote the majority opinion.
Other justices serving on the state Supreme Court are Justice Shirley Abrahamson, Justice Ann Walsh