State v. John H. Bayerl

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.
June 21, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2021AP726-CR Cir. Ct. No. 2019CF244
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JOHN H. BAYERL,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Waukesha County: BRAD SCHIMEL, Judge. Affirmed.
Before Gundrum, P.J., Neubauer and Grogan, 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. 2021AP726-CR
¶1 PER CURIAM. John H. Bayerl appeals a judgment of conviction
for first-degree intentional homicide in connection with the 1979 disappearance of
his wife, Dona. He also appeals an order denying his postconviction motion. On
appeal, Bayerl argues the circuit court erroneously exercised its discretion by
admitting other-acts evidence generally consisting of testimony from former wives
about his alcohol use and verbal and physical abuse of them. He also argues he
received constitutionally ineffective assistance from his trial attorney in various
ways. Finally, he contends he is entitled to a new trial in the interest of justice.
We reject his arguments and affirm.
BACKGROUND
¶2 Bayerl’s wife Dona disappeared in early May 1979 following an
argument between them. Neither she, nor her body, has been found. Bayerl was
charged with first-degree intentional homicide in connection with her death in
early 2019.
¶3 At trial, there was testimony about the couple’s deteriorating
marriage and Bayerl’s admitted physical abuse of Dona and his infidelity prior to
Dona’s disappearance. As described in more detail below, two of Bayerl’s former
wives, A.P. and L.B., testified that he often drank and was physically abusive
toward them.
¶4 There was little physical evidence of a crime; the State’s case was
largely circumstantial.1 Various witnesses testified that after Dona disappeared,
1
We do not endeavor to set forth all of the evidence the State marshaled against Bayerl.
Rather, we confine our recitation to those facts relevant to the issues he raises on appeal.
2
No. 2021AP726-CR
they saw what appeared to be blood on items in the garage and on the garage
structure itself. Some of those items were submitted to the Wisconsin State Crime
Laboratory for testing in 2018 and 2019. Two clothespins and one bottle tested
positive for blood on a presumptive test, but confirmatory testing for blood was
negative. Analysts were able to develop a partial female DNA profile from the
substance on the bottle.2 Dona’s daughter provided law enforcement with one of
her few possessions from her mother, a baby book that at one time had
photographs inserted on pages using adhesive corners that became sticky when
licked. A sample from one of the photograph corners yielded a DNA profile that
was consistent with the substance on the bottle. The State’s DNA analyst testified
that statistically, the shared profile would be found in one person out of every
twelve billion people tested.3
¶5 Bayerl filed a postconviction motion after the jury found him guilty
of first-degree intentional homicide. He alleged various instances of ineffective
assistance of counsel, and the circuit court held a Machner hearing4 at which one
of Bayerl’s trial attorneys testified. The court denied Bayerl’s postconviction
motion, concluding that his trial counsel was not constitutionally ineffective and
that Bayerl’s conviction was based on “admissible and ultimately strong evidence”
of his guilt. Bayerl now appeals.
2
The substance on one of the clothes pins was of insufficient quantity to yield a useable
profile. The sample from the other clothes pin was just barely sufficient to suggest the presence
of female DNA.
3
The analyst declined to identify the profiles as “an exact match,” testifying that
laboratory policy allowed such a conclusion only if the statistical probability met or exceeded
1,000 times the world’s population.
4
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
3
No. 2021AP726-CR
DISCUSSION
I. Admissibility of Other-Acts Evidence
¶6 The admissibility of other-acts evidence is governed by WIS. STAT.
§ 904.04 (2021-22)5 and other generally applicable rules of evidence, such as WIS.
STAT. §§ 904.01 and 904.03. State v. Sullivan, 216 Wis. 2d 768, 772-73, 576
N.W.2d 30 (1998). Using these statutes, Sullivan set forth a three-step framework
for analyzing other-acts evidence, which is generally not admissible to establish a
person’s character in order to show that the person acted in conformity therewith.
Sec. 904.04(2).
¶7 Sullivan requires that the proponent of the evidence first
demonstrate that the evidence is offered for an acceptable purpose under
§ 904.04(2)—permissible purposes include proof of motive, intent, identity, or
absence of mistake or accident. The proponent must then establish the two facets
of relevance under WIS. STAT. § 904.01. If the proponent satisfies those
requirements, the burden shifts to the opposing party to demonstrate that the
evidence should be excluded because its probative value is substantially
outweighed by the danger of unfair prejudice, confusion, or other considerations
under WIS. STAT. § 904.03.
¶8 A circuit court’s evidentiary decisions are reviewed for an erroneous
exercise of discretion. See Sullivan, 216 Wis. 2d at 780. We will uphold the
court’s determination if it examined the relevant facts, applied a proper standard of
5
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
4
No. 2021AP726-CR
law, and used a demonstrated rational process to reach a reasonable conclusion.
Id. at 781. We will search the record for reasons to sustain a circuit court’s
exercise of discretion. State v. Salas Gayton, 2016 WI 58, ¶20, 370 Wis. 2d 264,
882 N.W.2d 459.
¶9 Bayerl’s primary appellate argument regarding the other-acts
evidence is that the incidents testified to were too dissimilar to the first-degree
intentional homicide charged here. See id. at 786. This argument permeates
through each step of Bayerl’s Sullivan analysis; for example, Bayerl asserts that
because the other acts involving A.P. merely featured bodily harm rather than
homicide, they could not help establish his identity as Dona’s killer, nor were they
probative of any of the elements of first-degree murder. See WIS. STAT.
§ 940.01(1)(a) (defining first-degree intentional homicide).
¶10 The circuit court concluded evidence of Bayerl’s abusive conduct
toward his wives was admissible to prove “intent, absence of mistake, identity,
[and] context or background.” In doing so, the court noted that given the absence
of a body and the largely circumstantial case against Bayerl, the similarities
between the other acts and the homicide were difficult to assess. The court
compared “what we know of the relationship between the Defendant and Dona” to
the proffered other-acts evidence and determined that there were significant
commonalities: aggressive behavior toward a spouse that was seemingly
enhanced by alcohol use; a tendency to become enraged over relatively trivial
home matters; and violent eruptions that occurred whenever the spouse attempted
to leave the situation or get the last word.
¶11 We conclude the circuit court did not erroneously exercise its
discretion when it admitted the challenged other-acts evidence. We begin with the
5
No. 2021AP726-CR
other-acts evidence regarding Bayerl’s prior assaultive conduct toward Dona and
his infidelity. The court concluded such evidence was proffered for the
permissible purposes of proving the identity of the murderer, the absence of
mistake regarding Dona’s death, the existence of the requisite intent, and as
context or background relating to her disappearance. “The state was entitled to
show what had been the relations between defendant and his wife prior to the
alleged uxor[i]cide.”6 Runge v. State, 160 Wis. 8, 12-13, 128 N.W. 80 (1915).
Such evidence was both relevant to and probative of the alleged homicide.
¶12 We also conclude the circuit court did not erroneously exercise its
discretion when it admitted the evidence regarding A.P. and L.B. In analyzing the
admissibility of this evidence, it is important to note that, by Bayerl’s own account
to authorities, he was in a bad marriage and a lengthy argument immediately
preceded Dona’s disappearance. Bayerl told a detective he had been drinking and
Dona was doing most of the talking during the argument. Bayerl additionally told
police that Dona said to him, “I can’t live like this anymore or I will go crazy,”
and “I would be better off with a boyfriend.” The State’s theory at trial was that
the argument had escalated into violence that ultimately ended with Dona’s
murder.
¶13 Placed in this context, the similarities between the physical abuse of
A.P. and L.B. and Dona’s alleged homicide become such that the circuit court
could reasonably conclude the evidence satisfied Sullivan. For example, as it
relates to identity, “the other-acts evidence should have such a concurrence of
6
Uxoricide is “the murder of a wife by her husband.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 2526 (unabr. 1993)
6
No. 2021AP726-CR
common features and so many points of similarity with the crime charged that it
‘can reasonably be said that the other acts and the present act constitute the imprint
of the defendant.’” State v. Kuntz, 160 Wis. 2d 722, 746-47, 467 N.W.2d 531(1991) (quoting State v. Fishnick, 127 Wis. 2d 247, 263-64, 378 N.W.2d 272(1985)).
¶14 Kuntz is an instructive case for purposes of dissecting Bayerl’s
arguments. There, at the defendant’s trial for arson of an estranged spouse’s
residence and murder of her relative, other-acts evidence was admitted consisting
of the testimony of another of Kuntz’s ex-wives that Kuntz had, approximately
sixteen years earlier, said he was going to set his first wife’s house on fire. Id. at
745. Kuntz also told her after a brief separation that while she was gone he had
made a bonfire out of her and her children’s belongings. Id. Our supreme court
concluded the circuit court properly exercised its discretion when admitting this
evidence for the permissible purposes of proving identity and motive: “The
circumstances in each instance were strikingly similar and the other-acts were not
so remote to attenuate all rational or logical connection between the acts.” Id. at
748.
¶15 Kuntz is inconsistent with the logic Bayerl advances here. After all,
Kuntz had not actually committed a prior arson; he merely told his then-wife that
he intended to do so. And just as Bayerl distinguishes acts of physical abuse from
murder, so too could our supreme court in Kuntz have held that burning household
belongings out of anger was too far afield from setting fire to a home and
shattering the occupant’s skull. See id. at 731-32. But, consistent with Kuntz, we
reject Bayerl’s arguments and uphold the circuit court’s reasonable determination
that the A.P. and L.B. evidence was admissible for the purposes of identity,
7
No. 2021AP726-CR
absence of mistake or accident, and intent as it related to Dona’s murder, and that
the evidence was therefore relevant to the homicide prosecution.
¶16 While Bayerl stresses that his other acts did not result in a homicide,
A.P.’s testimony suggested this lack of consequence was not a basis for materially
distinguishing the acts themselves. A.P. testified that after she told Bayerl she
wanted a divorce, he pushed her down a stairway and “was twisting his hands on
my neck both ways, and I was afraid that he was going to choke me and that I
might die.” The assault terminated only when another person appeared in the
hallway. We reject Bayerl’s assertion that the other-acts evidence could have
probative value only if it resulted in death.
¶17 L.B.’s testimony, too, suggested the possibility of serious physical
harm and escalation. She testified that after Bayerl returned home from a bowling
league, he began screaming at her during dinner for no apparent reason. When she
left the table, Bayerl pursued her down a hallway with a “[look] like a wild
animal.” He punched her and slammed her into a wall. She retreated into a
bedroom, where Bayerl ripped a telephone out of the wall when she tried to grab
it. L.B. testified she was scared during Bayerl’s physical assault and she stood on
a bed to protect herself as best she could. Again, the circuit court could
reasonably conclude there were sufficient commonalities between these
circumstances and the alleged homicide.
¶18 Bayerl relies on State v. Cartagena, 99 Wis. 2d 657, 299 N.W.2d
872 (1981), for the proposition that the dissimilarity in the other acts here to the
charged murder demonstrate an erroneous exercise of discretion. In that case, the
state sought to admit evidence that the defendant had repeatedly fired a gun at a
house in an effort to scare a person into paying back some money. Id. at 666. In
8
No. 2021AP726-CR
holding that evidence was inadmissible during a prosecution for attempted
homicide, our supreme court emphasized that under the state’s theory, the
defendant was motivated by revenge for the victim being a “snitch.” Thus, the
proffered other-acts evidence and the charged crime showcased completely
different motives. Id. at 669. The court held that “[e]vidence of the ‘house
shooting’ is not probative of the defendant’s intent to kill [the victim of the
attempted homicide], nor is it probative of the motive that allegedly led him to
form that intent.” Id. As set forth above, we cannot reach a similar conclusion
here.
¶19 Notably, we uphold the circuit court’s exercise of discretion without
reference to the greater latitude rule. See WIS. STAT. § 904.04(2)(b)1. Though the
circuit court cited the greater latitude rule, Bayerl did not address its application in
his brief-in-chief. After the State relied on the rule in its response brief, Bayerl for
the first time in his reply brief argues that the rule violates the ex post facto clauses
of the United States and Wisconsin constitutions.7 Because we conclude the
other-acts evidence was admissible without reference to the greater latitude rule,
we have no need to address this argument. See Gross v. Hoffman, 227 Wis. 296,
300, 277 N.W. 663 (1938) (stating that if a decision on one point disposes of the
appeal, then this court need not decide the other issues raised).
II. Ineffective Assistance of Counsel
¶20 The Sixth Amendment guarantees a defendant the effective
assistance of counsel. State v. Savage, 2020 WI 93, ¶27, 395 Wis. 2d 1, 951
7
Typically, we do not address arguments raised for the first time in a reply brief. Roy v.
St. Lukes Med. Ctr., 2007 WI App 18, ¶30 n.6, 305 Wis. 2d 658, 741 N.W.2d 256.
9
No. 2021AP726-CR
N.W.2d 838. We review an ineffective assistance of counsel claim using a mixed
standard of review. Id., ¶25. The circuit court’s factual findings, including those
regarding trial counsel’s conduct and strategy, will not be overturned unless they
are clearly erroneous, but we review de novo whether counsel’s conduct
constitutes constitutionally ineffective assistance. Id.
¶21 To prevail on an ineffective assistance claim, the defendant must
show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defendant. Id.; see also Strickland v. Washington,
466 U.S. 668, 687 (1984). If the defendant fails to establish either prong, we need
not address the other. Savage, 395 Wis. 2d 1, ¶25.
¶22 To demonstrate deficient performance, the defendant must show that
his or her attorney made errors so serious that he or she was not functioning as the
“counsel” guaranteed by the Sixth Amendment. Id., ¶28. We presume that
counsel’s conduct fell within the wide range of reasonable professional assistance,
and we will grant relief only upon a showing that counsel’s performance was
objectively unreasonable under the circumstances. Id. Prejudice is demonstrated
by showing a reasonable probability that, but for counsel’s unprofessional
conduct, the result of the proceeding would have been different. Id., ¶32.
A. Expert Testimony Regarding Blood Testing
¶23 Bayerl argues his trial counsel rendered constitutionally ineffective
assistance by failing to exclude the blood evidence. At trial, Ronald Witucki
testified that he peer-reviewed another DNA analyst’s work regarding the Bayerl
10
No. 2021AP726-CR
case.8 Presumptive testing indicated the presence of blood on two clothes pins and
a bottle found in Bayerl’s garage in May 1979, but confirmation testing was
negative. At trial, Witucki explained that it was possible to receive a false positive
on the presumptive test. He also testified that a negative confirmatory test did not
conclusively establish that the substance was not blood; though that was one
possibility, it was also possible that an insufficient amount of the sample had been
used for the testing, or that the sample had suffered degradation or break down.
¶24 Bayerl argues Witucki’s testimony was irrelevant and prejudicial
under WIS. STAT. § 907.02 and Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). He argues Witucki’s testimony regarding the confirmatory
test was misleading because it “caus[ed] the jury to believe that there was
scientific evidence supporting the State’s theory that the tested items contained
blood evidence.” He also argues Witucki’s testimony lacked reliability of both
method and application. Essentially, Bayerl claims that Witucki offered, without
any basis, an opinion that a substance that failed a confirmatory test could
nonetheless be blood.
¶25 We conclude Bayerl’s trial counsel did not perform deficiently by
failing to do more to challenge Witucki’s testimony. Witucki repeatedly recited
the results of the presumptive and confirmatory testing. He did not definitively
declare the substances found on the clothes pins and bottle to be blood. In fact, he
declined to offer such an opinion when pressed, acknowledging the substances
could be one of several bodily materials. A partial DNA profile had been
8
Witucki found the testing satisfactory and adopted the other analyst’s conclusions as
his own.
11
No. 2021AP726-CR
developed from one of the clothes pins, and Witucki testified that the presumptive
test and the DNA profile gave a “strong indication” that the substance was human
blood. That was as close as he came to offering an opinion about the composition
of the samples, and it relied on additional testing beyond the presumptive test.
Daubert provides a flexible way to assess an expert’s methodology, Seifert v.
Balink, 2017 WI 2, ¶114, 372 Wis. 2d 525, 888 N.W.2d 816, and Bayerl does not
contend Witucki was unqualified to offer these opinions.
¶26 Nothing Bayerl has presented persuades us that Witucki’s testimony
was “ipse dixit” testimony lacking sufficient indicia of reliability or that Witucki
extrapolated from an accepted premise to reach unfounded conclusions. To
demonstrate that Witucki got it wrong, Bayerl provided during the postconviction
proceedings a report from his retained expert Alan Friedman opining that “a
negative confirmatory test should be reported that blood was not detected.” But
this conclusion is of little aid to Bayerl. As set forth above, Witucki’s testimony
was limited to reciting the test results; he did not opine that the substances were
blood.
¶27 Bayerl seems to argue Witucki was competent to testify only with a
definitive declaration that the substances were not blood. No such declaration was
justified based on the information provided by Friedman, who addressed only the
proper manner of communicating a negative confirmatory test result (i.e., “blood
was not detected.”). Bayerl’s expert did not critique Witucki’s methodology and,
in fact, cited one study supporting Witucki’s testimony that confirmatory testing
may fail to detect decades-old old blood stains. Though the report also cited some
literature to the contrary, “Daubert and WIS. STAT. § 907.02 do not condition the
admissibility of expert opinion testimony on it being unassailable.” State v.
Bucki, 2020 WI App 43, ¶69, 393 Wis. 2d 434, 947 N.W.2d 152.
12
No. 2021AP726-CR
¶28 Bayerl also argues that Witucki’s testimony comparing the DNA on
the baby book and on the bottle was inadmissible as “pure guesswork and
speculation.” We agree with the State’s assertion that our review of this issue was
forfeited by Bayerl’s failure to question his trial counsel about the matter. See
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).
Moreover, further analysis is unnecessary given Bayerl’s failure to do more than
offer conclusory assertions. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992).
B. Expert Rebuttal Testimony
¶29 Bayerl also argues that even if his trial attorney was not deficient for
failing to exclude Witucki’s testimony, he was deficient for failing to call
Friedman as an expert witness to testify consistent with his report’s conclusions.
As explained above, Friedman’s opinion regarding the proper manner of
communicating a negative confirmatory test did little to rebut Witucki’s
testimony. At most, Friedman could have opined that there was not scientific
consensus regarding the accuracy of confirmatory testing when the sample was
decades old.
¶30 In analyzing this allegation of ineffective assistance, we note there
was extensive testimony at the Machner hearing about whether Friedman would
be called to testify at trial. Bayerl’s counsel said that after the Daubert hearing,
Friedman had “complimented the State’s witness that they were forthright and
honest and believed that he had nothing significant to add.” Counsel and
Friedman reached a mutual decision that Friedman would not testify, though the
defense named him as a possible witness anyway.
13
No. 2021AP726-CR
¶31 After Witucki testified at trial, counsel considered calling Friedman,
but the defense team decided that his testimony was unnecessary because they had
sufficiently made the point through Witucki that the samples were not confirmed
as blood. We will not second-guess trial counsel’s strategic assessment. See State
v. Bailliette, 2011 WI 79, ¶26, 336 Wis. 2d 358, 805 N.W.2d 334.
C. Lay Testimony Regarding Blood in Garage
¶32 Next, Bayerl argues he received ineffective assistance as a result of
his trial counsel’s failure to exclude “lay opinion testimony about the same ‘blood’
in Bayerl’s garage.” Bayerl argues that when various lay witnesses testified that
they saw blood, they were surreptitiously offering expert testimony prohibited by
WIS. STAT. § 907.01.
¶33 The fundamental problem with this argument is that Bayerl’s trial
counsel successfully headed off this issue with a pretrial ruling that prohibited lay
witnesses from saying a particular substance they saw was blood. Instead, the
court required the State’s witnesses to testify that what they saw appeared to be
blood. Each of the witnesses Bayerl mentions complied with this directive,
variously testifying that the substance they saw “looked like blood,” “appeared to
be blood,” “appeared to be dried blood,” and was “dark brown in color” and
consistent with “blood splatter.” We agree with the State that in reaching these
conclusions, the witnesses could rely on their perceptions and experience. There
is no basis on this record for concluding trial counsel was deficient in the handling
of the lay testimony regarding blood.
14
No. 2021AP726-CR
D. Hearsay Testimony
¶34 Bayerl next argues that there were a litany of evidentiary objections
his trial attorney should have interposed at trial, primarily hearsay objections. We
do not need to individually address these matters because Bayerl failed to preserve
his trial attorney’s testimony during the Machner hearing. Trial counsel was
asked only generally whether there was a strategy for objecting if the State
attempted to introduce hearsay evidence. Counsel responded that the defense team
was “open to objecting if we felt that it was appropriate.”
¶35 Bayerl argues this was sufficient questioning to preserve the
multitude of specific hearsay and other objections he argues his trial counsel was
constitutionally required to make. We disagree, as the general testimony reveals
nothing about any strategic considerations that may have prompted counsel to
forego a specific objection. See Machner, 92 Wis. 2d at 804 (observing that
without testimony “w[e] cannot otherwise determine whether trial counsel’s
actions were the result of incompetence or deliberate trial strategies.”). Absent
questioning about the specific instances of alleged deficiency, we must presume
that trial counsel acted within the constitutional parameters of representation. See
State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990).
¶36 Bayerl argues the lack of testimony is immaterial partially because
the circuit court addressed many of the suggested objections when denying
postconviction relief. But the circuit court conducted a lengthy review of the
suggested objections and concluded that they were either meritless or their
absence was not prejudicial under Strickland. On appeal, Bayerl merely offers
general (and conclusory) assertions that the statements were hearsay or were
otherwise objectionable, without engaging with the circuit court’s reasoning to the
15
No. 2021AP726-CR
contrary. See Pettit, 171 Wis. 2d at 646. We perceive no error in the circuit
court’s rejection of these claims.
E. Impermissible Vouching Testimony
¶37 Bayerl next asserts his trial counsel was constitutionally ineffective
for failing to object to Dona’s sister’s testimony about whether she believed
Bayerl’s explanation of the events surrounding Dona’s disappearance. Bayerl
asserts this testimony violated State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d
673 (Ct. App. 1984), which held that “[n]o witness, expert or otherwise, should be
permitted to give an opinion that another mentally and physically competent
witness is telling the truth.” Id. at 96.
¶38 Bayerl also failed to preserve his trial counsel’s testimony on this
issue, and we could affirm on that basis alone. Additionally, the State
persuasively argues that this appears to be an unsettled area of the law under State
v. Smith, 170 Wis. 2d 701, 490 N.W.2d 40 (Ct. App. 1992), and State v. Snider,
2003 WI App 172, 266 Wis. 2d 830, 668 N.W.2d 784, in which law enforcement
officials testified they did not believe a suspect’s explanation. Counsel is not
constitutionally ineffective for failing to raise a novel legal issue. State v.
Lemberger, 2017 WI 39, ¶18, 374 Wis. 2d 617, 893 N.W.2d 232.
¶39 On the merits, we are skeptical the testimony ran afoul of the
Haseltine proscription given its nature. Dona’s sister’s testimony was not akin to
the testimony in Haseltine, where a psychiatrist testified there was “no doubt
whatsoever” that the defendant’s daughter was an incest victim, see Haseltine,
120 Wis. 2d at 95-96. Dona’s sister testified that she challenged Bayerl’s
explanation to her because it would have been out of character for her sister to go
16
No. 2021AP726-CR
out alone at night and leave her children. She also stated she did not believe
Bayerl could hear a car turning around across the street from his bedroom.
F. Character of Victim
¶40 Bayerl asserts his trial attorney performed deficiently by failing to
object to testimony portraying Dona as a “peaceful and quiet stay-at-home wife
who would never leave her house nor her children, and who did not have any
money of her own nor many friends.” Bayerl also failed to preserve counsel’s
testimony on this issue. In any event, such testimony was plainly admissible to
rebut the defense suggestion that Dona had a habit of leaving after arguments and
may have left of her own accord. See WIS. STAT. § 904.04(1)(b) (permitting
“evidence of a pertinent trait of character of the victim … by the prosecution to
rebut” character evidence of the victim offered by the accused).
¶41 In any event, we cannot conclude Bayerl was prejudiced under
Strickland by the admission of this testimony. Bayerl had made similar
statements to police, and those statements were used by the defense team during
closing arguments to portray Bayerl as a caring husband who was concerned about
his wife’s well-being.
G. Manner of Arrest and Custodial Silence
¶42 Next, Bayerl argues he was denied constitutionally adequate
representation by his counsel’s failure to object to testimony that a tactical unit
apprehended him in Florida, as well as what he contends was impermissible
commentary on his custodial silence during a post-arrest interview. Again, the
State observes that Bayerl failed to preserve his trial counsel’s testimony on this
issue.
17
No. 2021AP726-CR
¶43 In any event, we conclude Bayerl has failed to demonstrate the
testimony was constitutionally prejudicial. The testimony about Bayerl’s
demeanor and response upon being told of his arrest was limited to the arresting
officer’s observation that Bayerl had a “neutral affect” when confronted and did
not ask what he was being arrested for. This evidence, considered in light of the
totality of the evidence admitted, had an “isolated, trivial effect,” particularly
because the arresting officer had extensively discussed the case with Bayerl just
months prior to his arrest. See Strickland, 466 U.S. at 696.
III. New Trial In the Interest of Justice
¶44 Bayerl argues he is entitled to a new trial in the interest of justice
pursuant to WIS. STAT. § 752.35.9 “Discretionary reversal may be warranted if the
court ‘had before it testimony or evidence which had been improperly admitted,
and this material obscured a crucial issue and prevented the real controversy from
being fully tried.’” State v. Klapps, 2021 WI App 5, ¶34, 395 Wis. 2d 743, 954
N.W.2d 38 (citation omitted). Bayerl argues the real controversy was not fully
tried because the “blood” evidence was improperly admitted and because the jury
was not given an opportunity to hear expert rebuttal testimony.
¶45 We exercise our power of discretionary reversal sparingly and only
in exceptional cases. State v. Schutte, 2006 WI App 135, ¶62, 295 Wis. 2d 256,
720 N.W.2d 469. As set forth above, Bayerl has not demonstrated that the circuit
court’s decision to admit the expert testimony regarding blood testing was
erroneous, nor has he demonstrated that his attorney was constitutionally
9
Bayerl also cites WIS. STAT. § 805.15(1) in support of his interest-of-justice argument.
That statute, however, appears directed to circuit court proceedings.
18
No. 2021AP726-CR
ineffective for failing to call his expert at trial. The State’s circumstantial case
was sufficient to allow the jury to fairly adjudicate whether Dona was deceased
and whether Bayerl was the killer, which was the real controversy. We conclude
this is not an exceptional case warranting the exercise of our discretionary reversal
authority.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
19