State v. Peter J. Weyker

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 7, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2019AP1140 Cir. Ct. No. 2008CF228
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
PETER J. WEYKER,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Dodge County:
BRIAN A. PFITZINGER, Judge. Affirmed.
Before Fitzpatrick, P.J., Kloppenburg and Nashold, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP1140
¶1 PER CURIAM. In 2009, a jury convicted Peter J. Weyker of eight
counts involving the sexual assault of his then fifteen-year-old daughter in
July 2008 and the taking or attempted taking of videos showing nudity of four
teenagers in June and July 2008. Weyker makes six arguments in this appeal:
(1) Weyker’s trial counsel provided ineffective assistance when he failed to appear
on the morning of the first scheduled trial date; (2) a 2013 change in the
Wisconsin State Crime Laboratory DNA Manual regarding the reporting of DNA
quantities below a certain threshold is newly discovered evidence requiring a new
trial on the sexual assault charges; (3) a 2013 article reporting on the possibility of
speculum contamination of DNA samples is newly discovered evidence requiring
a new trial on the sexual assault charges; (4) alternatively, if the speculum
contamination article is not newly discovered evidence, then trial counsel provided
ineffective assistance for failing to argue possible speculum contamination at trial
and the prosecutor violated Weyker’s due process rights by making a false closing
argument that did not acknowledge possible speculum contamination;
(5) Weyker’s prior appellate counsel provided ineffective assistance for failing to
raise ineffective assistance of trial counsel based on trial counsel’s failure to
appear on the first scheduled trial date and to argue possible speculum
contamination; and (6) Weyker is entitled to a new trial on the sexual assault
charges in the interest of justice. For the reasons stated below, we reject Weyker’s
arguments and affirm.
BACKGROUND
¶2 The following undisputed facts provide context for the issues raised
on appeal. We present additional facts as pertinent to each of Weyker’s arguments
in the Discussion section that follows.
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¶3 In July 2008, Weyker’s daughter reported to law enforcement that
Weyker had sexually assaulted her. In December 2008, the State filed an amended
information charging Weyker with one count of sexual assault of a child and one
count of incest based on a July 11, 2008 incident involving Weyker’s daughter;
one count of repeated sexual assault of a child involving Weyker’s daughter
during the time period between December 1, 2006 and July 10, 2008; and two
counts of making a visual representation of nudity without consent, where the
person depicted has a reasonable expectation of privacy (referred to in this opinion
as “capturing nudity”), involving two teenagers who were not Weyker’s daughter,
in June or July 2008.
¶4 On the morning of July 27, 2009, when Weyker’s jury trial was
scheduled to begin, Weyker’s trial counsel did not appear in court, and after three
telephone calls to the court in which trial counsel explained why he was absent
and unable to return at that time, the court rescheduled the trial to begin
approximately one month later, on August 24, 2009.
¶5 On July 29, 2009, the State moved to file a second amended
information adding to the pre-existing five counts the following eleven counts:
three counts of sexual assault of a child and three counts of incest for incidents
involving Weyker’s daughter in December 2006 and June 2008; and five counts of
capturing, or attempting to capture, nudity involving four teenagers who were not
Weyker’s daughter in June and July 2008. [R.47; 48] The circuit court granted
the State’s motion to file the second amended information over Weyker’s trial
counsel’s objection at a hearing on August 5, 2009.
¶6 The jury trial took place over the five days from August 24 to
August 28, 2009. Trial witnesses included: Weyker’s daughter; her mother, to
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whom she first reported the July 11, 2008 sexual assault; the detective to whom
the daughter subsequently reported that sexual assault; the Sexual Assault Nurse
Examiner (“SANE nurse”) who examined the daughter when she reported that
sexual assault; the State of Wisconsin Crime Laboratory forensic scientist who
analyzed DNA samples associated with that sexual assault; the officers who found
and processed the cameras containing the video recordings of nudity at Weyker’s
residence; and the teenagers depicted in the video recordings of nudity.
¶7 One capturing nudity count was dismissed at trial, and the jury
convicted Weyker of the remaining six capturing nudity counts, and the one sexual
assault count and one incest count for the July 11, 2008 incident involving
Weyker’s daughter. Judgments of conviction for those counts were entered in
March and May 2010.
¶8 Later in 2010, Weyker’s appointed appellate counsel filed a no-merit
appeal, Weyker filed a response in April 2011, and in 2012 this court affirmed
based on the no-merit report and Weyker’s response. In its decision affirming the
judgments of conviction, this court addressed the circuit court’s decision
regarding: the denial of Weyker’s pretrial motion to sever counts related to three
different victims and to exclude other acts evidence; the sufficiency of the
evidence; the sentence imposed by the circuit court; and, as raised by Weyker in
his response to the no-merit report, whether Weyker’s trial counsel was ineffective
by failing to hire an expert to challenge the DNA evidence.
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No. 2019AP1140
¶9 In October 2013, Weyker pro se filed a motion for postconviction
relief under WIS. STAT. § 974.06 (2017-18),1 which the circuit court denied
without a hearing in 2014. Pertinent to this appeal, the circuit court denied
Weyker’s claim that his trial counsel was ineffective for not appearing on the first
scheduled trial date, concluding that trial counsel’s conduct, while deficient, did
not prejudice Weyker’s defense in that it did not affect the prosecutor’s decision-
making related to adding the new charges, and the additions were “fairly made and
within [the] parameters of the law.” In 2016, this court affirmed, ruling that the
ineffective assistance of trial counsel claim was procedurally barred and that the
reason Weyker offered for failing to raise the claim in the first appeal, ineffective
assistance of appellate counsel, was inadequately pleaded. This court noted in
particular that Weyker’s allegations of ineffective assistance of trial and appellate
counsel were insufficient in the absence of any explanation “why trial counsel was
unable to appear at the scheduled trial.” Weyker’s subsequent motion for
reconsideration was denied.
¶10 In 2016 and 2018, Weyker, represented by new, current counsel,
filed a motion and two subsequent supplemental motions for postconviction relief
under WIS. STAT. § 974.06. The motions sought relief based on arguments
relating to the following five issues: (1) ineffective assistance of trial counsel for
not appearing on the first day of trial, based on new investigation revealing that
trial counsel had provided false reasons for his failure to appear, and for not
seeking independent DNA analysis of vaginal swabs; (2) ineffective assistance of
postconviction counsel for failing to raise the claims of trial counsel’s
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2019AP1140
ineffectiveness; (3) newly discovered evidence consisting of changes in the State
Crime Laboratory’s DNA manual; (4) newly discovered evidence consisting of a
report on possible speculum contamination; and (5) the trial prosecutor’s violation
of Weyker’s due process rights by making an argument based on speculum
contamination that the prosecutor knew, or should have known, was false. The
circuit court denied the motions.
¶11 As summarized in the first paragraph of this opinion, Weyker
appeals.
DISCUSSION
¶12 We address each of Weyker’s arguments in turn.
I. Trial Counsel’s Failure to Appear on the First Scheduled Trial Date
¶13 Weyker argues that his trial counsel was ineffective for not
appearing on the first scheduled trial date, and that appellate (no-merit) counsel
was ineffective for not raising this issue. Specifically, Weyker argues that recent
investigation by his current counsel revealed that trial counsel’s stated reasons for
his failure to appear on the first scheduled trial date were false, and that trial
counsel’s failure to appear resulted in the trial being rescheduled approximately
one month later, during which time the State filed an amended information adding
eleven counts to the five counts previously charged, which in turn resulted in an
increased sentence. The circuit court determined that, while trial counsel was
deficient, Weyker could not show that trial counsel’s failure to appear prejudiced
Weyker. As we explain, we agree that Weyker has failed to show prejudice. We
first state the standard of review and applicable legal principles; we next
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No. 2019AP1140
summarize additional pertinent background; and we then explain why we conclude
that Weyker fails to meet his burden to show prejudice.2
A Standard of Review and Applicable Legal Principles
¶14 To prevail on an ineffective assistance claim, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Thiel, 2003 WI 111, ¶18, 264 Wis. 2d 571, 665 N.W.2d 305. Counsel’s
performance is “constitutionally deficient if it falls below an objective standard of
reasonableness.” Thiel, 264 Wis. 2d 571, ¶19. Deficient performance is
constitutionally prejudicial if “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id., ¶20 (citation omitted). The circuit court’s
findings of fact will be upheld unless they are clearly erroneous, but whether
counsel’s performance satisfies the constitutional standard for ineffective
assistance of counsel is a question of law which we review de novo. Id., ¶21. We
need not address both aspects of the Strickland test if the defendant does not make
a sufficient showing on one of them. See Strickland, 466 U.S. at 697.
2
The State argues that this claim is procedurally barred from this court’s review. We do
not reach this issue because our rejection of Weyker’s argument based on failure to show
prejudice is dispositive. See Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352
Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised by
the parties when one issue is dispositive.”)
The State also argues that most or all of the other issues that are raised by Wekyer on this
appeal and which we address below are procedurally barred, but we do not reach that argument
because our resolution of each of Weyker’s appellate issues on other grounds is dispositive.
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No. 2019AP1140
B. Additional Pertinent Facts
¶15 On the morning of Weyker’s first scheduled trial date, July 27, 2009,
Weyker’s trial counsel informed the circuit court by telephone that he was unable
to appear in court and explained that, the night before, he unexpectedly had to fly
to Tennessee because a relative had died. The court continued the trial until two
days later. Weyker’s counsel called the court on July 28, 2009 to explain that he
could not return to Wisconsin in time for trial due to flooding in Tennessee. On
July 29, 2009, the State moved to file the second amended information. At a
motion hearing on August 5, 2009, the court granted the State’s motion, and also
rescheduled the trial to start on August 24, 2009. Weyker was convicted as stated
above at the conclusion of the trial on August 28, 2009.
¶16 In November 2009, Weyker filed a pro se motion to terminate his
trial counsel for not appearing on the first scheduled trial date, alleging that
counsel was not prepared and that the result was the filing of the additional
charges and an increased sentence. In his brief supporting his motion to terminate,
Weyker alleged that “it was quite evident that [counsel had] never prepared for
trial.” The circuit court allowed trial counsel to withdraw without reaching
Weyker’s factual allegations.
¶17 In a postconviction motion filed by Weyker’s current counsel in
2016, and twice supplemented in 2018, Weyker asserted, pertinent to this appeal,
that he was denied the effective assistance of trial counsel based on trial counsel’s
failure to appear on the first scheduled trial date, in light of current counsel’s
investigation revealing that trial counsel’s stated reasons for his failure to appear
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No. 2019AP1140
were false. In May 2018, Weyker’s counsel requested a Machner3 hearing. The
circuit court addressed Weyker’s request for a Machner hearing and his 2016 and
2018 motions requesting relief under WIS. STAT. § 974.06 at a non-evidentiary
hearing in November 2018. Regarding the claim of trial counsel’s ineffective
assistance, the court explained that it was “painfully obvious” when trial counsel
called the court that trial counsel’s reasons for not appearing were “inaccurate”
and that he was “clearly seeking adjournment because he was not prepared to
proceed.” The court determined that trial counsel’s conduct was deficient but did
not prejudice Weyker. Specifically, the court explained that the filing of the new
charges between the time of the first scheduled trial and the time of the actual trial
did not prejudice Weyker because the information could have been amended to
include the additional charges “previous to the date of the trial or even on the trial
date itself,” and that the court had the option “to grant additional time to prepare”
in response to any such amendment. Accordingly, the court denied the motion
alleging ineffective assistance of trial counsel.
C. Analysis
¶18 We conclude that Weyker fails to meet his burden to show prejudice
resulting from trial counsel’s failure to appear on the date of the first scheduled
trial. Specifically, he fails to show a “reasonable probability” that the State would
not have amended the information to include the additional charges had his trial
proceeded as originally scheduled. Weyker concedes that the State could have
sought to amend the information to include the additional charges before or at trial
to conform to the proof at trial pursuant to WIS. STAT. § 971.29(2). However, he
3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
9
No. 2019AP1140
argues that it is unreasonable to believe that the State would have done so, and that
the court would have permitted the amendment, in light of the prosecutor’s
statement at the hearing on the State’s motion to amend the information, that the
prosecutor had been prepared to amend the information shortly before the trial was
originally scheduled to start but did not think the circuit court would grant the
motion that soon before trial.
¶19 We disagree with Weyker’s argument. What the prosecutor thought
does not refute what the law is, which is that the State could have sought to add
the charges on the day of trial and that the circuit court could grant the request,
and, if necessary, provide the defense additional time to respond. Weyker points
to no factual record to support the premises on which his arguments are based.
Regardless of the prosecutor’s statement regarding reluctance before trial, Weyker
has failed to show that there is a reasonable probability that, had the trial
proceeded as originally scheduled, the State, given that the evidence to be
presented at trial included evidence of the additional criminal conduct at issue,
would not have sought to amend the information to include the additional charges.
Nor has Weyker shown a reasonable probability that the court would not have
granted such a request. In sum, Weyker fails to show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Thiel, 264 Wis. 2d 571, ¶20. Weyker’s
failure to show prejudice from trial counsel’s failure to appear defeats his
ineffective assistance of trial counsel claim.
II. Newly Discovered Evidence—Changes in Lab Manual Language
¶20 Weyker argues that a 2013 change in the State Crime Laboratory’s
DNA Manual regarding the reporting of DNA quantities below a certain threshold
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No. 2019AP1140
is newly discovered evidence requiring a new trial on the sexual assault charges.
We first present the standard of review and applicable legal principles; we next
summarize the pertinent facts; and we then explain why we conclude that Weyker
fails to show that the change in the Manual language meets the “newly discovered
evidence” test.
A. Standard of Review and Applicable Legal Principles
¶21 The test for reviewing a request for a new trial based on newly
discovered evidence is well established:
In order to set aside a judgment of conviction based
on newly-discovered evidence, the newly-discovered
evidence must be sufficient to establish that a defendant’s
conviction was a manifest injustice. When moving for a
new trial based on the allegation of newly-discovered
evidence, a defendant must prove: (1) the evidence was
discovered after conviction; (2) the defendant was not
negligent in seeking the evidence; (3) the evidence is
material to an issue in the case; and (4) the evidence is not
merely cumulative. If the defendant is able to prove all
four of these criteria, then it must be determined whether a
reasonable probability exists that had the jury heard the
newly-discovered evidence, it would have had a reasonable
doubt as to the defendant’s guilt.
A reasonable probability of a different outcome
exists if ‘there is a reasonable probability that a jury,
looking at both the [old evidence] and the [new evidence],
would have a reasonable doubt as to the defendant’s guilt.
A court reviewing newly-discovered evidence should
consider whether a jury would find that the newly-
discovered evidence had a sufficient impact on other
evidence presented at trial that a jury would have a
reasonable doubt as to the defendant’s guilt. This latter
determination is a question of law. Manifest injustice has
been shown and a new trial must be ordered when: (1) the
four factors of newly-discovered evidence are established;
and (2) a court determines that had a jury heard the newly-
discovered evidence, it would have had a reasonable doubt
as to the defendant’s guilt.
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No. 2019AP1140
State v. Plude, 2008 WI 58, ¶¶32-33, 310 Wis. 2d 28, 750 N.W.2d 42 (internal
quotations and citations omitted).
B. Additional Pertinent Facts
¶22 At trial, Wisconsin State Laboratory Forensic Scientist Catherine
Kohl testified as to her analysis of DNA evidence found on vaginal swabs taken
by the SANE nurse during the nurse’s examination of Weyker’s daughter in
July 2008. Kohl testified that there was a “very small” amount of DNA on the
vaginal swabs and that Weyker was included as a possible source of the male
DNA on the vaginal swabs.
¶23 At the April 2019 hearing on Weyker’s postconviction motion, the
parties stipulated that the amount of DNA discovered on the vaginal swabs was
0.00122 nanograms per microliter (ng/µL). At the hearing, Weyker presented as
exhibits several versions of the State Crime Laboratory DNA Manual. In the
Manual versions effective in 2010, 2011, and 2012, section 8.1.8 of the chapter on
the procedure to “quantitate DNA evidence” stated, “When human DNA is
detected below 0.013 ng/µL the report should state that an insufficient or trace
amount of human DNA was present in the sample.” (Emphasis added.) In the
version effective in 2013, section 8.1.7 stated, “When male DNA is detected
below 0.0013 ng/µL the report should state that an insufficient or trace amount of
male DNA was present in the sample.” (Emphasis added.) In the version
effective at the time of the April 2019 hearing, section 8.7 stated, “When male
DNA is detected less than .002 ng/µL the report should state that a limited amount
of male DNA was present in the sample.”
¶24 Wisconsin State Crime Laboratory Forensic Scientist Kohl testified
at the 2019 hearing that: (1) the 2013 version of the Manual did not ban the
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No. 2019AP1140
testimony she gave at the 2009 trial; (2) if Kohl were to testify again at a new trial,
her testimony would not change from her first trial testimony; and (3) Kohl would
still testify if another trial were held that Weyker is included as a possible source
of the male DNA on the vaginal swabs. Kohl testified that the changed language
in the 2013 Manual reflected the State Crime Laboratory’s experience that many
samples below the .0013 threshold were not giving useful information upon
further testing, especially for mixture profiles, but that for single-source profiles,
such as the profile in this case, further testing could provide useful information,
and it was left to the analyst’s discretion whether to do further testing. In response
to questioning by the court, Kohl confirmed that in this case, with further testing,
Kohl obtained from the sample “information that had probative value.”
¶25 The circuit court concluded that the changed language in the 2013
Manual was not newly discovered evidence. The court found that the policy or
procedure was changed not because the amounts below the threshold would
produce evidence that was unreliable but because further testing in an effort to
generate reliable evidence, especially for mixed samples, “was more than the lab
was prepared to do in every case.” The court found that the changed language did
not preclude further testing, especially for single-source samples, and that Kohl
could, even if she had operated under the updated Manuals, conduct the same
analysis of the DNA sample. Finally, the court found that Kohl’s testimony would
be the same under the 2013 version of the Manual as it was at trial. Accordingly,
the circuit court concluded that the changed language in the Manual was not newly
discovered evidence, and denied the postconviction motion asserting newly
discovered evidence.
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C. Analysis
¶26 We conclude that Weyker’s argument fails under the weight of the
plain language of the Manuals and Kohl’s testimony as to what that language
means.
¶27 At the outset, we question the premise of Weyker’s argument, which
assumes that the 2013 Manual language should have been the language governing
Kohl’s scientific analysis, conduct, and testimony at the 2009 trial. As shown
above, the only difference between the language in effect at the time of trial and
the language in effect in 2013 is the threshold amount of DNA, and the actual
amount present here was below both versions’ stated thresholds. Thus, the
language requiring reporting the amount at issue as “insufficient” existed both at
trial and in 2013, and Weyker fails to explain how the change in threshold amount
is material, not cumulative, or reasonably probable to have yielded a different
result. Nevertheless, we proceed to address Weyker’s argument as presented.
¶28 In the circuit court, Weyker initially argued that Kohl’s testimony
“would be banned” by the language in the 2013 Manual. That argument is easily
rejected, inasmuch as the Manual’s language merely states that the amount of
DNA detected should be reported as “insufficient” or “trace,” not that the DNA
cannot be tested and the results of such testing cannot be reported. Kohl’s
unrebutted testimony clarifies that the language in the 2013 Manual advised the
analysts that no further testing is required, but left to the analysts’ discretion
whether any particular sample should be further tested. Kohl’s testimony is
supported by another provision in each of the Manuals effective both at trial and in
2013, which provides that, “If the analyst deems those samples [below the
threshold] appropriate for further processing they should be processed by hand or
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No. 2019AP1140
re-submitted to the robot.” Kohl’s testimony is also supported by her own
confirmation that further testing of the sample in this case produced useful
information. Thus, Weyker’s argument that the changed language meets the
newly discovered evidence test because it would “ban” Kohl’s trial testimony
fails.
¶29 At the 2019 hearing and on appeal, Weyker modified his previous
postconviction arguments and argued that, even if the changed Manual language
would not ban Kohl’s trial testimony, the language would provide a basis for the
jury to question the reliability of the results, obtained as they were from a sample
required to be labelled “insufficient.” He bases this argument on the assertion that
“insufficient” does not mean what Kohl testified it means—unlikely to provide
useful information upon further testing, especially for mixture profiles unlike the
single-source profile here, but requiring individual discretion whether to do further
testing—but instead means “insufficient to provide reliable results.” This
argument is unsupported by citation to any authority countering Kohl’s testimony
to the contrary.4
¶30 In sum, there is no support for Weyker’s argument that the changed
Manual language constitutes evidence that is material and not cumulative, or that
its inclusion would be reasonably probable to yield a different result.
Accordingly, we affirm the circuit court’s conclusion that the evidence does not
rise to the legal definition of “newly discovered evidence,” even though the
4
Weyker also argued in the circuit court that the changed language is significant because
the sample in his case was well below the changed threshold, but Weyker appears to acknowledge
on appeal that this aspect of the changed language is merely cumulative of the trial testimony that
the sample was “very small.”
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No. 2019AP1140
Manuals Weyker references are “new” in the sense that they were created after his
trial.
III. Newly Discovered Evidence—Possible Speculum Contamination
¶31 Weyker argues that a 2013 article reporting on the possibility of
speculum contamination of DNA samples is newly discovered evidence requiring
a new trial on the sexual assault charges. Having set out the newly discovered
evidence test above, we next summarize the additional pertinent background and
then explain why we conclude that there is no reasonable probability that, had the
jury heard this new evidence together with the evidence presented at trial, it would
have had a reasonable doubt as to Weyker’s guilt.
A. Additional Pertinent Background
¶32 As stated, Weyker faced separate charges of sexual assault on three
different dates: December 2006; June 11, 2008; and July 11, 2008. The jury
acquitted Weyker of the charges relating to the first two dates and convicted him
of the charges relating to the third.
¶33 Weyker’s daughter testified that Weyker began touching her
inappropriately in December 2006 and had sexual intercourse with her over fifty
times between January 2007 and August 2008. Other than the July 11, 2008
incident, she could not recall any details about any of the sexual assaults other
than that they occurred mostly on sunny days, in either her bedroom, the
bathroom, or Weyker’s bedroom.
¶34 As to the December 2006 sexual assault charges, Weyker’s daughter
testified how Weyker began touching her inappropriately in December 2006, and
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No. 2019AP1140
she also testified about a December 20, 2006 entry in her diary where she wrote
that she was afraid that she might be “pregnant by” her father.
¶35 As to the June 2008 sexual assault charges, the State presented
videos dated June 11, 2008 showing a hand touching someone’s pubic and vaginal
areas and a penis penetrating a vagina. Weyker’s daughter testified that the vagina
in both images was hers, but that she could not identify to whom the hand and
penis belonged.
¶36 The following evidence was presented as to the July 2008 sexual
assault charges. Weyker’s daughter testified as to how she came to be at
Weyker’s home on July 11, 2008, what she did when she arrived, what Weyker
did when he had sexual intercourse with her, what she did afterwards, how she
told her mother about the sexual assault after she returned to her mother’s house,
and that she reported the sexual assault to law enforcement on July 13, 2008.
¶37 The SANE nurse testified that she examined Weyker’s daughter
immediately after Weyker’s daughter talked with law enforcement, approximately
forty hours after the sexual assault. The nurse testified that the daughter told her
that on July 11, 2008, Weyker’s fingers and penis had contact with her external
genitals, and that his penis had penetrated her vagina. The nurse testified that she
used four swabs to take material from the daughter’s vagina. To obtain the
vaginal swabs, the nurse testified that she first opened the vagina with a speculum
and then inserted each of the four swabs through the speculum and applied each
swab around the inside of the vagina, without touching the exterior parts of the
vagina. The nurse acknowledged that DNA from one person’s skin cells could be
transferred from clothing to another person’s skin.
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¶38 State Crime Laboratory Forensic Scientist Kohl testified as to her
analysis of DNA evidence on the vaginal swabs and on the crotch and waistband
of a pair of underwear that Weyker’s daughter said she was wearing on the day of
the July 11, 2008 sexual assault, and which she gave to law enforcement on
July 17, 2008. Kohl testified that Weyker was a possible source of the DNA on
the crotch and vaginal swabs, and that the DNA on the waistband was from at least
three males including Weyker. As to the DNA profile that was extracted from the
DNA on the vaginal swabs, Kohl testified that one in fifteen males would
statistically share that particular DNA profile. Kohl testified that there was no
semen found on the swabs or underwear and that the DNA found could come from
the sexual assault or, regarding the DNA on the underwear, from someone
shedding skin cells, such as while folding laundry, or from someone sneezing.
¶39 Weyker’s daughter testified that it was not uncommon for Weyker to
take her laundry out of the dryer and put it in her room.
¶40 In its closing argument, the State emphasized the DNA evidence
identifying Weyker as a possible source of the DNA on the vaginal swabs, how
the nurse inserted the swabs through the speculum to obtain the evidence from
inside the vagina, and how the daughter identified only Weyker as having had
sexual intercourse with her on July 11. In his closing argument, Weyker
emphasized the inconsistencies in Weyker’s daughter’s testimony as to the July 11
incident, that one in fifteen males share the DNA profile extracted from the
vaginal swabs, that not all the markers could be detected and so Weyker could not
be eliminated as a source, and that the DNA evidence was minuscule and could
have come from other sources including skin cells, such as when Weyker touched
his daughter’s clothing when moving her laundry from the dryer to her room. In
its rebuttal argument, the State argued that Weyker’s emphasis on the possibility
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No. 2019AP1140
of the DNA coming from something other than sexual intercourse “ignore[d] the
place where this particular DNA was found,” and the absurdity of the DNA
coming from other sources like sneezing or touching when the nurse demonstrated
how she inserted the swabs through the speculum and did not touch the exterior of
the vagina.
¶41 In the postconviction motion at issue here, Weyker presented a 2013
article that reported on studies showing the possibility of contamination from use
of a speculum to obtain DNA evidence in a vagina with cells originating from the
external genital area. In the motion, Weyker noted that at trial his trial counsel
had an “innocent” explanation of how the DNA evidence could have got onto the
underwear and the exterior of the vagina, but did not have an explanation for how
the DNA could have got on the vaginal swabs taken from inside the vagina.
However, Weyker argued, had Weyker’s trial counsel had the information from
the 2013 article, he could have also had an alternative explanation of how
Weyker’s DNA was found inside the vagina, namely, by speculum contamination.
Therefore, according to Weyker, because the DNA corroboration from the vaginal
swabs was the only distinction between the July 11 sexual assault, of which
Weyker was convicted, and the December 2006 and June 2008 sexual assaults, of
which Weyker was acquitted, there was a reasonable probability of a different
result had the jury heard this new information. The circuit court determined that
the studies regarding speculum contamination did not rise to the level of newly
discovered evidence both because at trial Weyker did probe the possibility of
speculum contamination, in response to which the nurse testified that the swabs
could not have picked up cells on the outside of the vagina, and because it was
“far too speculative” to prove that the result of trial probably would have been
different.
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No. 2019AP1140
¶42 Weyker renews his contaminated speculum argument on appeal.
¶43 We assume, without deciding, that the possibility of contamination
by use of the speculum itself is new evidence. However, as we explain, we agree
with the circuit court that, even if this evidence were introduced at trial, there
would not have been reasonable probability of a different result.
¶44 As stated, Weyker argues that the DNA corroboration was the only
distinction between the July 11 sexual assault charges and the other charged sexual
assaults of which Weyker was acquitted, and that by calling that corroboration into
doubt the article would have led the jury to also acquit Weyker of the July 11
sexual assault charges. Weyker asserts that the jury acquitted Weyker on some of
the charges involving his daughter because the jury did not find Weyker’s
daughter credible, and thus because they found his daughter incredible, the only
reason they convicted Weyker on the July 11, 2008 charges was because of
evidence other than the testimony of his daughter, namely, the DNA evidence.
This string of assertions is without any support beyond Weyker’s pure speculation
as to the jury’s reasons for its acquittals and convictions. Moreover, Weyker’s
argument plainly fails because it disregards other distinctions between the
evidence relating to those sexual assaults and the July 11 sexual assault.
¶45 While Weyker’s daughter provided no specific testimony as to the
December 2006 and June 2008 incidents, she provided specific detail as to the
July 2008 incident, both at the time and at trial one year later. Both when
reporting to law enforcement in July 2018 and at trial, she could not provide any
details of the December 2006 and the June 2008 incidents. There were also
inconsistencies in her statements and the testimony as to the timing of both,
including her own testimony that sexual intercourse began in January 2007 or did
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No. 2019AP1140
not take place until she was fifteen (which would have been after November
2007), and testimony suggesting she was not at Weyker’s house at the time she
alleged the June 2008 assault occurred.
¶46 In contrast, Weyker’s daughter testified at the August 2009 trial, as
she had to law enforcement and to the SANE nurse on July 13, 2008, with great
specificity as to the circumstances surrounding and the details comprising the
sexual assault on July 11, 2008. The July 11 incident was the only one Weyker’s
daughter reported to law enforcement. While there were inconsistencies between
her contemporaneous reports and her trial testimony as to some of the before-and-
after details, her statements in her reports on July 13, 2008 and in her testimony at
trial in August 2009 describing Weyker having sexual intercourse with her
specifically on July 11, 2008 were uncontroverted.
¶47 In sum, there is not a reasonable probability that the “new” evidence
that there may have been speculum contamination, such that the DNA material on
the vaginal swabs may have come from the exterior vaginal area, would have
changed the result at trial given the only specific evidence Weyker’s daughter
provided, through her contemporaneous statements to law enforcement and the
SANE nurse and her testimony at trial, as to the detailed description of Weyker’s
having sexual intercourse with her on July 11, 2008.
IV. Ineffective Assistance of Trial Counsel and Due Process Violation Regarding
Possible Speculum Contamination
¶48 Weyker argues in the alternative that, if the speculum contamination
article is not newly discovered evidence, his trial counsel provided ineffective
assistance for failing to argue possible speculum contamination at trial, and the
prosecutor violated Weyker’s due process rights by making a false closing
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No. 2019AP1140
argument that did not acknowledge possible speculum contamination. Because we
have assumed, without deciding, that the speculum contamination article is newly
discovered evidence, these arguments fall away.
V. Ineffective Assistance of Appellate Counsel
¶49 Weyker argues that prior appellate counsel provided ineffective
assistance for failing to raise ineffective assistance of trial counsel based on trial
counsel’s failure to appear on the first scheduled trial date and failure to argue
possible speculum contamination. Because we have concluded that Weyker fails
to show that trial counsel provided ineffective assistance, and that the speculum
contamination evidence would not have changed the result at trial, Weyker cannot
show that prior appellate counsel’s failure to raise these claims prejudiced him.
VI. New Trial in the Interest of Justice
¶50 Weyker argues that he is entitled to a new trial on the sexual assault
charges in the interest of justice because the absence of the evidence of possible
speculum contamination prevented the real controversy from being fully tried. See
WIS. STAT. § 752.35. However, we have already explained why it was not
reasonably probable that the absence of that evidence had any effect on the
outcome of trial. We therefore decline to exercise our discretion to reverse
Weyker’s convictions on the sexual assault charges in the interest of justice.
CONCLUSION
¶51 For the reasons stated, we reject Weyker’s arguments and affirm.
By the Court.—Order affirmed.
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No. 2019AP1140
This opinion will not be published. See WIS. STAT. RULE
§ 809.23(1)(b)5.
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