Motion for Change of Venue Denied and Brady Violation

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Gary Lee Wayerski

Case No.: 2015AP1083-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Motion for Change of Venue Denied and Brady Violation

A jury found Gary Wayerski guilty of sixteen felony offenses based on allegations that, over a several-month span, Wayerski had repeated sexual contact with two teenage boys and exposed them to pornography at his residence. Wayerski raises six issues in this appeal from a judgment entered on the verdicts and from an order denying his postconviction motion.

He argues: (1) the circuit court erroneously denied his motion for a change of venue or selection of the jury from another county; (2) the court erroneously admitted “other acts” evidence consisting of pornographic materials in Wayerski’s possession; (3) he received ineffective assistance of counsel when his attorney failed to ask Wayerski during his testimony about statements he made to a State’s witness and failed to seek a mistrial in response to admission of the pornographic materials; (4) the State committed a Brady violation by not disclosing a State witness’s pending criminal charges; (5) the evidence was insufficient to convict him of eight counts of sexual assault by a person who works or volunteers with children, contrary to WIS. STAT. § 948.095(3) (2015-16), because persons in his then occupation (police officer) are not within the scope of the statute; and (6) he is entitled to a new trial in the interests of justice.

We conclude: the circuit court properly exercised its discretion in denying the change of venue and venire motion and in admitting the challenged pornographic evidence; Wayerski failed to demonstrate his trial attorney’s assistance prejudiced his defense on the surrebuttal testimony or was deficient on the motion for a mistrial; there was no Brady violation because it was not “an intolerable burden on the defense” to search CCAP for the State witness’s available pending criminal charges, see State v. Randall, 197 Wis. 2d 29, 38, 539 N.W.2d 708 (Ct. App. 1995); the evidence at trial was sufficient for a jury to conclude that Wayerski—as a police officer or, in the alternative, as a volunteer who worked with the victims—satisfied all eight counts charged under WIS. STAT. § 948.095(3); and finally, Wayerski fails to show the interests of justice require a new trial. We therefore affirm the judgment and order.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.