STATE OF WISCONSIN, Plaintiff-Respondent, v. BRIAN D. FRAZIER, Defendant-Appellant.
Appeal No. 2023AP418
IN COURT OF APPEALS DISTRICT IV
July 11, 2024
Cir. Ct. No. 2011CF489
TODD J. HEPLER, Judge. Before Blanchard, Graham, and Taylor, JJ.
DATED AND FILED July 11, 2024. Samuel A. Christensen, Clerk of Court of Appeals. NOTICE: This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in
¶2 In 2013, Frazier pled no contest to, and was convicted of, first-degree sexual assault of a child and physical abuse of a child. He unsuccessfully pursued postconviction relief under
¶3 Some of Frazier‘s claims relate to ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that counsel‘s performance was deficient and that such performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
I. New Claims Of Ineffective Assistance By Trial Counsel
¶4 Frazier argues that his trial counsel was ineffective in several ways. These include by not raising issues related to the search warrant and search; by not conducting an investigation of bedsheet evidence, including DNA testing; and by
¶5 The State argues that we should not review these claims because they are barred by
¶6 To show a sufficient reason why he did not raise these claims of ineffective assistance of trial counsel in his first postconviction proceeding, Frazier argues in this appeal that his earlier postconviction counsel was ineffective by not raising them. The State responds that such an ineffectiveness argument requires the defendant to demonstrate that his current claims are “clearly stronger” than his earlier postconviction claims that were actually raised. See State v. Romero-Georgana, 2014 WI 83, ¶4, ¶¶45-46, 360 Wis. 2d 522, 849 N.W.2d 668.
¶7 We conclude that Frazier‘s current claims are not clearly stronger than the one that he raised earlier. In doing so, we rely partly on the history of this case to show that, while Frazier‘s argued ineffectiveness claim involving trial
¶8 Frazier‘s claim in his first postconviction motion was that his trial counsel was ineffective by failing to advise Frazier that he could file a viable suppression motion arguing that a custodial interrogation of Frazier occurred without the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). See State v. Frazier, No. 2019AP2120-CR, ¶9. In Frazier‘s first appeal, we concluded that his trial counsel‘s performance was deficient because “Frazier was in custody at the time of the confession and, because police had not read him the Miranda warnings, a motion to suppress his confession should have been successful.” State v. Frazier, No. 2017AP1249-CR, unpublished slip op. ¶¶1, 9 (WI App August 2, 2018). We remanded for an evidentiary hearing on the issue of prejudice, id., ¶36, but our supreme court vacated our decision and remanded for a hearing on both deficient performance and prejudice. State v. Frazier, No. 2017AP1249-CR, unpublished slip op. (WI February 27, 2019).
¶9 In our second opinion, after that hearing, we assumed, without deciding, that trial counsel‘s performance was deficient in connection with the failure to move for suppression. See Frazier, No. 2019AP2120-CR, ¶16. However, we ultimately rejected the claim on the ground that Frazier did not establish that he would have turned down the plea offer, which he ultimately accepted, if counsel had performed in a non-deficient manner. Id., ¶¶21-35.
¶10 At least as to deficient performance, we conclude that the original postconviction claim was relatively strong. In that light, by comparison, and without attempting to discuss the details of each of Frazier‘s new claims raised in his current motion, we conclude that none of the new claims are clearly stronger
II. Destruction Of Evidence
¶11 Separately, Frazier argues that his rights to due process and equal protection were violated when police disposed of the bedsheet and related blood evidence prematurely in 2016, in violation of
¶12 Frazier‘s equal protection argument appears to be that, if
¶13 As to due process, Frazier relies on cases such as State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 294 (Ct. App. 1994). In that case, the court described the test that applies to the loss or destruction of evidence before trial in a criminal case. Under that test, a due process violation occurs if the evidence either: (1) had exculpatory value that was apparent when the evidence
¶14 The State argues that there is no similar constitutional right regarding evidence that is lost or destroyed after trial. However, for purposes of resolving this appeal, we assume, without deciding, that the above test applies in a post-trial situation.
¶15 Frazier‘s theory is that the destroyed bedsheet evidence, if tested, could have shown an alternate source of the blood that the State claimed was on it. Specifically, testing may have shown it to be menstrual blood of Frazier‘s girlfriend, rather than blood from the victim. This argument fails to satisfy the first part of the above test, because the actual source of the blood would not have been “apparent” at the time the evidence was destroyed. At best, it was only potentially exculpatory.
¶16 As to the second part of the legal test, for potentially exculpatory evidence, Frazier argues that the evidence was lost or destroyed in bad faith. Bad faith is shown if the officers were aware of the potentially exculpatory value or usefulness of the evidence, and then acted with official animus or made a conscious effort to suppress exculpatory evidence. Id. at 69. Frazier‘s argument does not establish either of these components. He does not allege facts showing, or point to evidence that, the officer was aware of Frazier‘s theory that the evidence could be exculpatory because testing of the bedsheet might show an alternate source of the blood.
¶17 And, more importantly, Frazier does not point to evidence of official animus or a conscious effort to suppress exculpatory evidence. The officer who authorized destruction of the bedsheet testified that it was destroyed because “[t]he
III. Ineffective Assistance Of Postconviction Counsel
¶18 Frazier argues that his postconviction counsel was ineffective at the evidentiary hearing that was held in the first postconviction proceeding. The basis for the claim is that postconviction counsel failed to ask him the questions that would have elicited from Frazier testimony as to why Frazier would have rejected the plea offer if his trial counsel had informed him about a potential Miranda-based suppression motion. This claim regarding postconviction counsel differs from Frazier‘s other current arguments about ineffective assistance by postconviction counsel, because it relates to the issue that counsel actually raised and litigated, rather than to issues that postconviction counsel did not raise, and that Frazier is now attempting to raise for the first time.
¶19 The State responds to this claim of postconviction counsel‘s ineffectiveness by arguing that Frazier‘s claim that his trial counsel was
¶20 The State is correct that, in some general linguistic sense, Frazier is seeking relitigation of the claim that his trial counsel was ineffective. However, he is doing so in the same way that all ineffectiveness claims seek relitigation of the part of the case that was allegedly marred by ineffectiveness. Rather than being a flaw in Frazier‘s pleading, relitigation would be the proper remedy if he were to prevail now on his claim that his postconviction counsel was ineffective in litigating the issue raised in the first postconviction motion. The State‘s argument that an ineffectiveness claim is merely a “re-theorizing” of the original claim would render many ineffective assistance claims not “justiciable,” and is not supported by any case law that is cited or that we know of.
¶21 In addition, the procedural bar of
¶23 Frazier‘s claim is made in response to what we identified in an earlier appeal as omissions from his postconviction testimony on the subject of whether he would have rejected the plea offer if trial counsel had properly advised him about the potential suppression motion. In our most recent opinion, we concluded that Frazier‘s postconviction claim regarding the suppression motion was properly denied because his testimony failed to establish prejudice. See Frazier, No. 2019AP2120-CR, ¶¶35. We concluded that the circuit court had made an “implicit finding” that Frazier was not credible in testifying that he would have rejected the plea offer. Id., ¶¶21-22. Among other reasons for our reaching that conclusion, we noted that, at the evidentiary hearing, Frazier was asked only whether he would have accepted the plea offer and gone to trial. In response, he gave only “conclusory” answers without describing any factors that were part of his considerations, and thus he “said absolutely nothing in his testimony about why he would have passed on the plea offer.” Id., ¶29 (emphasis in original).
¶25 Frazier‘s current postconviction motion provided some detail about what his additional testimony would have been, but not much. He averred in his affidavit:
“Had [counsel] asked, I would have testified about my girlfriend‘s period blood being the cause of any Luminol reaction.”
The reference to a Luminol reaction is to police having sprayed Luminol on the bedding and floor area around Frazier‘s bed, which indicated the presence of blood, as described in the criminal complaint. He further averred the following in a sentence fragment:
“Also the impeachable statements of [the victim] at his interview.”
The reference to impeachable statements was explained in his brief supporting the motion:
“This interview had issues which would make it impeachable, for example the claim that there was ‘blood everywhere.‘”
In sum, this proposed additional testimony is about what Frazier believes were weaknesses in the State‘s evidence. We understand his argument as being that these weaknesses, if combined with suppression of his own statement due to a Miranda violation, would have led him
¶26 However, Frazier still does not propose to testify about his views at that time on another point that we discussed in our opinion. This point was how he viewed, when he was considering the plea offer, the fact that the offer would allow him to avoid the risk of a mandatory minimum sentence of twenty-five years of initial confinement by reducing the charge from sexual intercourse to sexual contact with a child. Id., ¶33.
¶27 On this point, instead of describing proposed testimony, Frazier appears to respond by arguing that the mandatory minimum sentence statute is unconstitutional as a violation of separation of powers and as vague or overbroad. However, the constitutionality of the statute is not relevant to the question now before us, which is how Frazier viewed this potential penalty at the time he was considering the plea offer that allowed him to avoid it. Frazier does not present us with any reason to conclude that, at that time, he operated under the understanding that he was at little or no risk of having the mandatory minimum sentence imposed because the statute could not lawfully be applied to him.
¶28 Thus, the only new information we have from Frazier appears to be his limited, somewhat generic view about the evidence on the points above, together with his continued silence about his views on the value of the plea offer, including the potentially highly significant plea offer to avoid the mandatory minimum imprisonment sentence. This proposed testimony, even if believed by the factfinder, is not sufficient to create a reasonable probability that the result of a new evidentiary hearing, at which Frazier would testify as described above, would
By the Court.—Order affirmed.
This opinion will not be published. See