State v. Fencl , 109 Wis. 2d 224 ( 1982 )

WILLIAM G. CALLOW, J.

This is an appeal from a Manitowoc county circuit court judgment convicting Ronald Fencl of first-degree murder in violation of sec. 940.01, Stats., and an order denying a new trial. This appeal was certified to this court by the court of appeals, pursuant to sec. 809.61. We affirm the judgment of conviction and order of the circuit court.

Debra Sukowaty disappeared on September 24, 1977. On October 1, 1977, the police received a purse containing Sukowaty’s identification and several other items which were found in a plastic bag in a nearby river. Among the items contained in the bag was a parking ticket, traceable to Ronald Fencl’s car. Detective Geigel of the Two Rivers Police Department visited Fencl that same day to inquire about Sukowaty. Fencl stated that he did not know Sukowaty or anything about the items found in the river.

At approximately 4 p.m. on October 2, 1977, Geigel again visited Fencl. At this meeting Fencl told Geigel that he wanted to talk to his attorney and that he would get back to him. Half an hour later Fencl went to the police station. He told Geigel that he had found the items in his car and threw them into the river in order to avoid any trouble with the police. Geigel had to cut their conversation short because he received a call informing him that a body had been found in a nearby gravel pit. Fencl agreed to meet with him later that evening. In the meantime, the body was identified as Sukowaty. The police then impounded Fencl’s car.

At 7 p.m. that same day, Fencl returned to the police station with his attorney, Steven Alpert. Fencl said nothing. His attorney spoke to Geigel only to ask why Fencl’s car had been impounded. Two Manitowoc Police Department detectives talked to Fencl and gave him his Miranda rights. Fencl was allowed to leave while the investigation continued. On November 4, 1977, a criminal warrant was issued charging Fencl with first-degree murder. He was arrested the next day. Alpert represented Fencl until just after the preliminary hearing. At that time new counsel was substituted because it appeared that Alpert might be called as a witness against Fencl.

During the trial the state made several references to Fencl’s pre- and post -Miranda silence. In his opening statement the district attorney referred to the 4 p.m. meeting on October 2, 1977, between Detective Geigel and Fencl. He said that Fencl did not want to answer too many questions and that Fencl wanted to talk to his attorney. Detective Geigel also testified about this statement. Geigel testified three times about his 7 p.m., October 2, 1977, meeting with Fencl and Alpert. Each time Geigel indicated that Fencl said nothing. In his closing argument the district attorney once again referred to the 4 p.m. meeting of October 2, 1977, between Geigel and Fencl when he stated:

“He [Geigel] said as long as you’re not mixed up in the disappearance of Debbie Sukowaty we’re not interested in prosecuting. As long as your [sic] not interested. As long as you’re not involved in Debbie Sukowaty’s disappearance, that’s alright [sic]. We’re not interested in prosecuting you. He made that quite clear. At that point Fencl said he wanted to talk to his lawyer, so Geigel left.”

The jury found Fencl guilty of first-degree murder, and the court sentenced him to life imprisonment. Fencl moved for a new trial on September 4, 1979. During a hearing on this motion, it was revealed that Fencl’s first attorney, Alpert, had engaged in some questionable practices in connection with his representation of Fencl. Nevertheless, the court denied Fencl’s motion for a new trial by order entered October 27, 1980. Fencl’s appeal of the judgment and the order was certified by the court of appeals and accepted by this court pursuant to sec. 809.61, Stats.

There are two issues presented on this appeal: (1) Did Attorney Alpert’s questionable conduct deny Fencl his constitutional right to effective counsel? (2) Did the district attorney unconstitutionally imply Fencl’s guilt by referring at trial to Fencl’s prearrest silence?

(1) Assistance of Counsel

Fencl contends that Alpert’s conduct deprived him of his constitutional right to effective assistance of counsel. It is well established that a defendant facing a felony charge has a constitutional right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 (1970). Fencl, however, was neither charged with a felony nor arrested at the time Alpert committed several of the alleged errors. Therefore, Fencl’s assistance of counsel argument raises the question of whether a person has a constitutional right to effective counsel during the investigative stage, prior to the commencement of criminal proceedings. We do not reach this issue because we hold that Alpert’s representation was sufficiently effective.

This court set forth the standard for assessing counsel’s effectiveness in State v. Harper, 57 Wis. 2d 543, 557, 205 N.W.2d 1 (1973).

“Effective representation is not to be equated, as some accused believe, with a not-guilty verdict. But the representation must be equal to that which the ordinarily prudent lawyer, skilled and versed in criminal law, would give to clients who had privately retained his services.” A defendant “is not entitled to the ideal, perfect defense or the best defense but only to one which under all the facts gives him reasonably effective representation.”¹

Fencl claims that Alpert made several errors which competent counsel would have avoided. The fact that Alpert should have acted differently, however, does not establish that his assistance was ineffective. State v. Rock, 92 Wis. 2d 554, 560, 285 N.W.2d 739 (1979). This court has long disapproved of this “hindsight-is-better-than-foresight” approach. Weatherall v. State, 73 Wis. 2d 22, 26, 242 N.W.2d 220 (1976); Lee v. State, 65 Wis. 2d 648, 657, 223 N.W.2d 455 (1974); Ameen v. State, 51 Wis. 2d 175, 186, 186 N.W.2d 206 (1971). In evaluating the effectiveness of Alpert’s assistance to Fencl, we must first determine whether there was a basis in reason for Alpert’s actions. State v. Rock, supra at 560; Weatherall v. State, supra at 28. If we find that Alpert’s conduct was unreasonable and contrary to the actions of an ordinarily prudent lawyer, we must then determine whether such action was prejudicial to Fencl.² See Weatherall v. State, supra at 32. We conclude that, although Alpert’s conduct was undesirable, it was not so unreasonable as to render his assistance ineffective.

Fencl’s first contention involves some advice given by Alpert. In late September Fencl told Alpert that he had found items belonging to Sukowaty in his car and asked what he should do with them. Alpert suggested three options: turning the items over to the police, turning them in to the post office lost and found, and disposing of them. Fencl then informed Alpert that he had already thrown the items into the river. Fencl contends that an ordinarily prudent attorney would have advised him to retrieve the items and turn them over to the police. The likelihood that Fencl could have found the items was remote. Therefore, Alpert’s failure to advise Fencl to retrieve them was not unreasonable.

Fencl’s second contention is that Alpert, in order to divert attention from Fencl, passed on to the district attorney unsubstantiated stories involving other possible suspects which he had encouraged Fencl to gather. While this action seems improper at first blush, it was not without basis in reason. According to the record, Alpert thought that Fencl had been a police informant in the past. Thus, it was reasonable for Alpert to believe that Fencl might be able to obtain useful information about Sukowaty’s murder. Therefore, because Alpert believed Fencl was innocent, he had a reasonable basis for advising Fencl to attempt to clear himself from further investigation by assisting the police in the search for the real murderer.

Fencl’s third contention is that Alpert unwisely advised him to take the Fifth Amendment at the John Doe hearing. Fencl maintains that his silence at the hearing cast suspicion upon him. Here, Fencl is clearly using hindsight to judge Alpert’s conduct. Alpert’s decision to advise Fencl to take the Fifth Amendment at his John Doe hearing is similar to a decision regarding trial tactics. We have long held that “[i]n deciding upon trial tactics, ‘ “ ‘. . . [I]t is the considered judgment of trial counsel that makes the selection among available defenses, not the retroactive conclusion of postconviction counsel.’ ” ’ ” Weatherall v. State, 73 Wis. 2d at 26 [quoting Kain v. State, 48 Wis. 2d 212, 222, 179 N.W.2d 777 (1970)]. We conclude that Alpert’s strategy had a sufficient basis in reason. It is not unusual for defense counsel to advise a client to exercise his or her Fifth Amendment rights during criminal proceedings. Indeed, this tactic should not be dismissed without careful consideration, for in many instances silence is the best defense.

Fencl’s fourth contention is that Alpert informed the police that Fencl had lied to him in the past and might be withholding information about the case. Because we cannot find a reasonable basis for this action, we must determine whether Alpert’s indiscretion prejudiced Fencl. We conclude that it did not. Fencl has failed to persuade us that Alpert’s remarks affected his trial or the police investigation. Fencl had substantial contact with the police prior to this incident. According to Geigel, Fencl acknowledged that he had been in trouble with the police before. Moreover, Alpert testified that Fencl had been an informant with the Two Rivers Police Department. Thus, the police had an independent basis for judging Fencl’s credibility. In any event, by the time Alpert made the remark, Fencl’s veracity had already come into question because of his inconsistent statements relating to his knowledge of the victim. Therefore, it is highly unlikely that Alpert’s comment had any prejudicial impact.

Fencl’s fifth contention is that Alpert’s attempts to sell information to the authorities and his plans to write a book about Fencl’s case created a conflict of interest. Fencl and Alpert collaborated in the preparation of the information and the plan to sell it to the authorities. Notwithstanding the fact that this was a joint effort, Fencl maintains that Alpert’s pecuniary interest in these ventures precluded his undivided loyalty and effective assistance. Where a conflict of interest is alleged, a different analysis applies. Rather than evaluate the reasonableness of Alpert’s conduct, we must determine whether Fencl has shown by clear and convincing evidence that an actual conflict of interest existed.³ The mere possibility or suspicion that a conflict could arise under hypothetical circumstances is not sufficient. State v. Kaye, 106 Wis. 2d 1, 8, 315 N.W.2d 337 (1982); State v. Medrano, 84 Wis. 2d 11, 28, 267 N.W.2d 586 (1978). When an attorney’s misconduct involves a conflict of interest, a defendant need not demonstrate prejudice in order to obtain relief. State v. Kaye, supra at 9.⁴

Although Alpert’s conduct was clearly undesirable, we hold that Fencl has failed to establish by clear and convincing evidence that an actual conflict of interest existed. According to the record, neither of these ventures was consummated. The authorities declined to purchase any information from Alpert, so he gave it to them without charge. Moreover, there is no evidence in the record that Alpert entered into any contract relating to a book. Alpert testified that before Fencl’s preliminary hearing the book had been no more than the “germ of an idea,” taking up only about half an hour of his time. Therefore, the evidence fails to establish an actual conflict of interest.

We hold that Alpert’s representation was sufficiently effective to satisfy Fencl’s right to effective assistance of counsel.

(2) References to Prearrest Silence

Fencl argues that the prosecution violated his due process right to a fair trial and his Fifth Amendment right against self-incrimination by referring at trial to his prearrest silence.⁵ The references in question can be divided into two categories: those involving pre-Miranda silence and those involving post -Miranda silence. Detective Geigel made the post-Miranda references while testifying about his 7 p.m., October 2, meeting with Fencl. Fencl was given the Miranda warning at that meeting.⁶ Detective Geigel testified on three separate occasions that during the 7 p.m. meeting Fencl said nothing. The first questioned reference came on the district attorney’s direct examination of Geigel:

“Q. And did Mr. Fencl — did he come back at that time, at 7? A. Yes. He came back with his Attorney Steve Alpert.

“Q. And at that time did Mr. Fencl make any statements to you in regards to the missing girl? A. No sir.

On redirect Geigel again testified about the 7 p.m. meeting:

“Q. What about the third meeting? A. The third meeting he said nothing.”

Finally, in response to questions from the court, Geigel testified a third time about the 7 p.m. meeting:

“The Court: — You had another meeting with him?

“The Witness: We had prearranged a meeting for 7 p.m., but at this time he came in with his attorney and he didn’t say a word; his attorney did all the talking.”

We hold that the above-cited references constitute constitutional error. It is fundamentally unfair and a denial of due process to assure a defendant through the Miranda warning that he has the right to remain silent and then penalize him for exercising that right. In Doyle v. Ohio, 426 U.S. 610, 618-19 (1976), the United States Supreme Court stated:

“Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Mr. Justice White, concurring in the judgment in United States v. Hale, supra, at 182-183, put it very well:

“‘[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. . . . Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.’ ” (Footnote omitted.)

It must be noted that, unlike the instant case, Doyle dealt with postarrest silence. This distinction is, however, immaterial. The Doyle decision was based upon the fact that governmental action (i.e., giving the Miranda warning) encouraged or induced silence by assuring the defendant that such silence is protected. Receipt of the Miranda warning is the important factor in the Doyle analysis, not whether the defendant has been arrested. Therefore, the Doyle rationale protects post-MmwwZa silence whether occurring before or after arrest.

The state contends that even under Doyle the references were not constitutional error because they were not used against Fencl. We disagree. We conclude that the prosecution’s questions were intended to suggest “a tacit admission of guilt on the part of the defendant.” Reichhoff v. State, 76 Wis. 2d 375, 378, 251 N.W.2d 470 (1977). The prosecutor directly asked Geigel whether Fencl made a statement regarding Sukowaty at the 7 p.m. meeting. Geigel responded, no. On redirect, the prosecutor again elicited testimony from Geigel that Fencl said nothing at the 7 p.m. meeting. These references to Fencl’s silence did riot help prove the facts the state contends it was trying to prove. Since the probative value of this testimony was very low, we conclude that it was introduced to tacitly imply Fencl’s guilt. Therefore, these references to Fencl’s silence were used against him and, accordingly, constitute constitutional error.

References to Fencl’s prearrest, pre-Miranda silence were made by the prosecutor during his opening and closing statements and by Detective Geigel during his testimony. The prosecutor asked Geigel how Fencl responded to his inquiry about Sukowaty during their 4 p.m. meeting on October 2, 1977. Detective Geigel’s answer was:

“A. He was very friendly. He said I want to talk to my lawyer and I’ll get back to you later.”

Relating to the same interview, the district attorney stated in his opening statement:

“And this time Ron Fencl didn’t want to answer too many questions. He said I want to talk to my lawyer first and then maybe I’ll talk to you.”

During his closing statement the district attorney argued:

“He said as long as you’re not mixed up in the disappearance of Debbie Sukowaty we’re not interested in prosecuting. As long as your [sic] not interested. As long as you’re not involved in Debbie Sukowaty’s disappearance, that’s alright [sic]. We’re not interested in prosecuting you. He made that quite clear. At that point Fencl said he wanted to talk to his lawyer, so Geigel left.”

Because the preceding references are to Fencl’s pre-Miranda silence, a strict interpretation of Doyle renders the due process rationale inapplicable. Jenkins v. Anderson, 447 U.S. 231, 240 (1980). The question then is whether such references are violative of Fencl’s Fifth Amendment privilege against self-incrimination.⁷ We hold that the protections of the Fifth Amendment do extend to pre-Miranda, prearrest silence.

“Our cases have consistently held it improper to comment upon a defendant’s choice to remain silent at or before trial.” State v. Wedgeworth, 100 Wis. 2d 514, 526, 302 N.W.2d 810 (1981).⁸ The protection from reference to silence arises from the Fifth Amendment guarantee against self-incrimination. Rudolph v. State, 78 Wis. 2d 435, 442, 254 N.W.2d 471 (1977) (Per Curiam) . We have construed the Fifth Amendment to protect a defendant’s silence during the early stages of a criminal proceeding. In Reichhoff v. State, 76 Wis. 2d at 380, we held that reference to a defendant’s silence at the time of arrest was constitutional error. We stated:

“The difference between prosecutorial use of the defendant’s silence at trial and prosecutorial use of the defendant’s silence at time of arrest is miniscule. We believe that in both circumstances reference to the defendant’s silence does ‘no more than turn on the red light of potential prejudice involving the defendant’s fifth amendment rights.’ United States v. Arnold, 425 F.2d 204, 206 (10th Cir 1970).”

In Rudolph we held that the prosecution may not affirmatively use in its case in chief the fact that the defendant chose to remain silent in the face of accusations during a custodial interrogation. 78 Wis. 2d at 441-42. We have not, however, directly decided whether the protections of the Fifth Amendment also extend to prearrest, pre-Miranda silence.

The privilege against self-incrimination found in the Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.”⁹ The state contends that, unless silence is compelled by arrest or a custodial interrogation, it is not protected by the Fifth Amendment. We disagree. The Fifth Amendment protects a person from compelled self-incrimination at all times, not just upon arrest or during a custodial interrogation. Any time an individual is questioned by the police, that individual is compelled to do one of two things — either speak or remain silent. If both a person’s prearrest speech and silence may be used against that person, as the state suggests, that person has no choice that will prevent self-incrimination. This is a veritable “Catch-22.” Thus the state’s theory places an impermissible burden on the exercise of Fifth Amendment rights. We hold that a person is entitled to the protection of the Fifth Amendment even prior to arrest or a custodial interrogation.¹⁰ Therefore, Fencl’s silence at his first meeting on October 2 with Detective Geigel was protected by the Fifth Amendment.

The state next argues that, even assuming Fifth Amendment protection, there was no constitutional error because Fencl’s silence was not used against him at trial. We conclude, however, that the state’s references to Fencl’s silence were subtle, albeit relatively ineffective, attempts to imply Fencl’s guilt. There is no other plausible reason for these references. Therefore, we hold that the state’s reference to Fencl’s prearrest, pre-Miranda silence was constitutional error.

Because we find constitutional error, we must next determine whether that error was harmless beyond a reasonable dc^bt. A constitutional error is harmless beyond a reasonable doubt if there is no reasonable possibility that the error might have contributed to the conviction. Chapman v. California, 386 U.S. 18, 23-24 (1967). We have considered the following factors in determining whether a constitutional error was harmless beyond a reasonable doubt: (1) the frequency of the error; (2) the nature of the state’s evidence against the defendant; and (3) the nature of the defense. Rudolph v. State, 78 Wis. 2d at 443. In light of the foregoing factors, we hold that the constitutional error in this case was harmless beyond a reasonable doubt.

The unconstitutional references to Fencl’s silence cannot be viewed in a vacuum but, rather, must be examined within the entire context of the trial. The trial in this case ran from June 5 through June 9, 1978. Throughout this five-day period, twenty-nine witnesses testified and numerous exhibits were introduced. While there were six references to Fencl’s silence, these references amounted to only brief, relatively isolated comments. The state did not make a concentrated, overt effort to imply Fencl’s guilt through references to his silence.¹¹ Moreover, trial “counsel’s failure to raise the errors is indicative of counsel’s view of the seriousness of the error.” Odell v. State, 90 Wis. 2d 149, 155, 279 N.W.2d 706 (1979) (Per Curiam). Evidently he viewed the errors to be insufficiently egregious to warrant an objection or motion for mistrial.

Fencl argues that the state’s case was based on weak, circumstantial evidence. A finding of guilt, however, may be based upon circumstantial evidence alone. Rudolph v. State, 78 Wis. 2d at 444; see also Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725 (1971); Bethards v. State, 45 Wis. 2d 606, 612, 173 N.W.2d 634 (1970). We are convinced that there was sufficient evidence to support Fencl’s conviction. In any event, “[e]ven assuming the evidence in this case was less than overwhelming, that is but one factor to be considered in determining whether the constitutional error complained of was harmless.” Rudolph v. State, 78 Wis. 2d at 444. We are also convinced that the references to Fencl’s silence did not have a sufficient impact upon the jury to adversely affect its ability to fairly evaluate his defenses.

We hold that the state’s references to Fencl’s silence were too brief and unobtrusive to be prejudicial. Therefore, the constitutional error was harmless beyond a reasonable doubt.

Fencl’s next contention is that it was prejudicial error to admit testimony concerning the three investigative suggestions which he and Alpert delivered to the authorities. According to Fencl this testimony was irrelevant and prejudicial within secs. 904.01 and 904.03, Stats. This contention is without merit. The trial court properly exercised its discretion in determining that the evidence was admissible because its probative value outweighed its prejudicial impact.

Fencl’s last argument, that the trial court committed reversible error by giving Wis. J I — Criminal 1100, is equally without merit. This court recently approved that instruction in Muller v. State, 94 Wis. 2d 450, 289 N.W. 2d 570 (1980).

Because we find the errors in this case to be harmless, we hold that a new trial is not warranted.

By the Court. — Judgment and order affirmed.

Beilfuss, C.J., took no part.

1 Similar standards have been adopted by the federal courts. The United States Supreme Court used the test of whether an attorney’s advice was “within the range of competence demanded of attorneys in criminal cases” in McMann v. Richardson, 397 U.S. 759, 771 (1970). See also Tollett v. Henderson, 411 U.S. 258, 266 (1973). The seventh circuit has stated that the constitutional guarantee of effective counsel requires a “minimum standard of professional representation.” United States ex rel. Williams v. Twomey, 510 F.2d 634, 641 (7th Cir 1975); United States v. Fleming, 594 F.2d 598, 606 (7th Cir 1979).

2 As will be discussed below, a different analysis applies when a conflict of interest is alleged. Where an actual conflict of interest has been proved, the defendant need not demonstrate prejudice to obtain relief. State v. Kaye, 106 Wis. 2d 1, 9, 315 N.W.2d 337 (1982).

3 The United States Supreme Court has adopted a similar test. In Cuyler v. Sullivan, 446 U.S. 335, 348 (1980), the Court held that, in order to obtain relief, a defendant must prove that an “actual conflict of interest adversely affected his lawyer’s performance.”

4 The United States Supreme Court has also stated that, where an actual conflict of interest is shown, a defendant need not demonstrate prejudice in order to obtain relief. Cuyler v. Sullivan, supra at 349-50; Holloway v. Arkansas, 435 U.S. 475, 487-91 (1978). See also State v. Medrano, 84 Wis. 2d 11, 28, 267 N.W.2d 586 (1978); Hall v. State, 63 Wis. 2d 304, 311-12, 217 N.W.2d 352 (1974).

5 Fencl also argues that the references in question violated his Sixth Amendment right to counsel. Because we hold that these references violated Fencl’s Fourteenth Amendment due process rights and Fifth Amendment right against self-incrimination, we need not reach the question of whether they violate his Sixth Amendment right to counsel.

6 The record does not indicate at what point during this meeting the Miranda, warning was given. Since the parties do not dispute this issue, we assume that Detective Geigel was referring to post-Miranda silence. In any event, any pr e-Miranda silence at this meeting would be covered by the following portion of this opinion dealing with pr e-Miranda references.

7 The United States Supreme Court recently declined to address this issue. See Jenkins v. Anderson, 447 U.S. 231, 236 n. 2 (1980), wherein the Court stated: “Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment.”

8 See Odell v. State, 90 Wis. 2d 149, 152, 279 N.W.2d 706 (1979) (Per Curiam); Rudolph v. State, 78 Wis. 2d 435, 441-42, 254 N.W. 2d 471 (1977) (Per Curiam); Reichhoff v. State, 76 Wis. 2d 376, 379-80, 251 N.W.2d 470 (1977); State v. Johnson, 60 Wis. 2d 334, 342-44, 210 N.W.2d 735 (1973).

9 The same right is granted by the Wisconsin Constitution, Art. I, See. 8.

10 Nor is the Fifth Amendment right against self-incrimination dependent upon a person’s receipt of the Miranda warning. Miranda did not create new rights but, rather, held that the constitutional guarantees already accorded a defendant by the Fifth and Sixth Amendments should be explained to the defendant during a critical stage of the criminal proceeding.

11 This case differs from Reichhoff v. State, supra, wherein the prosecutor made pointed, blatant references to the defendant’s silence in a clear attempt to imply the defendant’s guilt. For example, the prosecutor in Reichhoff directly suggested that, unlike the defendant, an innocent person would not have remained silent. 76 Wis. 2d at 377-78 n. 3. There was no such suggestion in the instant case.