State v. Gary Lee Wayerski, 922 N.W.2d 468

Gary Wayerski, a former police chief, was convicted by a jury of 16 felonies for repeated sexual contact with two juveniles and related offenses; DNA and other physical/corroborating evidence were presented at trial.
An inmate, John Clark, testified on rebuttal that Wayerski had confessed in jail; Clark had a lengthy criminal record and denied receiving a benefit for testifying.
Prosecutor learned days before trial that Clark faced pending child-related charges in Chippewa County and obtained the Chippewa complaint but did not disclose that information to defense counsel.
Trial counsel recalled Wayerski after Clark’s testimony but did not ask Wayerski about the alleged jailhouse confession; Wayerski later claimed he would have denied it.
Postconviction, Wayerski raised (1) ineffective assistance of counsel for failure to elicit Wayerski’s denial of the alleged confession and (2) a Brady claim that the State suppressed impeachment evidence (Clark’s pending charges/complaint).
The Wisconsin Supreme Court assumed deficient performance for Strickland purposes but found no prejudice; it also held the State suppressed the charges but that the evidence was not material under Brady, and it overruled prior Wisconsin precedent imposing ‘‘exclusive possession/control’’ and ‘‘intolerable burden’’ limitations on the suppression inquiry.

Issue	Plaintiff's Argument (Wayerski)	Defendant's Argument (State)	Held
Whether trial counsel was ineffective for failing to ask Wayerski about Clark’s testimony/confession	Failure to question Wayerski allowed jurors to view his silence as acquiescence; counsel should have given Wayerski opportunity to deny the alleged confession	Any omission was not prejudicial given other impeachment avenues and overwhelming evidence of guilt	Assumed deficiency but no prejudice under Strickland; ineffective assistance claim fails
Whether the State violated Brady by not disclosing Clark’s pending Chippewa County charges/complaint	Charges/complaint were favorable impeachment material and were withheld by the prosecutor; nondisclosure was a Brady violation	Evidence was publicly available (CCAP) and thus not suppressed; nondisclosure was harmless if at all	Court held the evidence was favorable and was suppressed, but not material — no Brady violation; court rejected ‘‘exclusive possession/control’’ and ‘‘intolerable burden/reasonable diligence’’ limitations on suppression inquiry

Brady v. Maryland, 373 U.S. 83 (1963) (prosecution’s nondisclosure of favorable, material evidence violates due process)
Giglio v. United States, 405 U.S. 150 (1972) (Brady includes impeachment evidence such as deals or promises to witnesses)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective-assistance test: deficiency and prejudice)
United States v. Bagley, 473 U.S. 667 (1985) (materiality in Brady requires reasonable probability of a different result)
Kyles v. Whitley, 514 U.S. 419 (1995) (prosecutor’s duty to disclose; assessing cumulative effect of suppressed evidence)
Agurs v. United States, 427 U.S. 97 (1976) (Brady duty exists even without specific defense request)
State v. Randall, 197 Wis. 2d 29 (Ct. App. 1995) (prior Wisconsin opinion imposing an "intolerable burden" limit on Brady — discussed and overruled in part)
State v. Cole, 50 Wis. 2d 449 (1971) (historical Wisconsin precedent applying exclusive possession concept to Brady)
Nelson v. State, 59 Wis. 2d 474 (1973) (Wisconsin case establishing exclusive possession/control limitation — overruled in part)
State v. Balliette, 336 Wis. 2d 358 (2011) (discussing right to effective assistance under state and federal constitutions)