Brady Violation

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WI Supreme Court

Case Name: State of Wisconsin v. Gary Lee Wayerski

Case No.: 2019 WI 11

Focus: Brady Violation

Gary Wayerski seeks review of the court of appeals’ decision affirming the circuit court’s denial of his postconviction motion.

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).

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 obligations. Brady v. Maryland, 373 U.S. 83 (1963). The circuit court denied Wayerski’s postconviction motion. The court of appeals affirmed the circuit court’s denial of Wayerski’s postconviction motion. Wayerski now seeks review of the denial of his ineffective assistance of counsel claim and the denial of his Brady claim.

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.  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.

Modified and affirmed.

Concur: ZIEGLER, J. concurs and dissents, joined by ROGGENSACK, C.J. (opinion filed). KELLY, J. concurs and dissents, (opinion filed).

Dissent: KELLY, J. concurs and dissents, (opinion filed).

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.