State v. Donald J. McGuire
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2010 WI 91 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2007AP2711-CR State of Wisconsin, Plaintiff-Respondent, v. Donald J. McGuire, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 320 Wis. 2d 482, 769 N.W.2d 877 (Ct. App 2009-Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: July 20, 2010 January 5, 2010 Circuit Walworth James L. Carlson JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Robert R. Henak and the Henak Law Office, S.C., Milwaukee, and oral argument by Robert R. Henak. For the plaintiff-respondent the cause was argued by Daniel J. O Brien, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general. 2010 WI 91 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2007AP2711-CR (L.C. No. 2005CF80) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, v. JUL 20, 2010 Donald J. McGuire, A. John Voelker Acting Clerk of Supreme Court Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 DAVID T. PROSSER, J. This is a Affirmed. review of an unpublished decision of the court of appeals, State v. McGuire, No. 2007AP2711-CR, unpublished slip op. (Wis. Ct. App. May 20, 2009), affirming a Court, James Carlson, (McGuire) was L. judgment charged in of the Judge. 2005 Walworth Father with five County Donald counts J. of Circuit McGuire indecent behavior with a child, in violation of Wis. Stat. § 944.11(2) (1965-66). The charges were committed between 1966 and 1968. based on acts that McGuire Although prosecutions under § 944.11(2) are subject to the six-year statute of limitations No. under Wis. Stat. (2007-08),1 § 939.74(1) the 2007AP2711-CR statute of limitations was tolled while McGuire was not publicly a resident Wis. Stat. § 939.74(3).2 of Wisconsin. A jury convicted McGuire on all five counts. ¶2 McGuire filed a postconviction motion that the circuit court denied. The court of appeals affirmed. In this court, McGuire raises four issues: (1) whether the tolling provision of Wis. Stat. § 939.74(3) is unconstitutional as applied to the facts of this case; (2) whether charges were barred by due process because of the roughly 36 years that passed between the offenses and the charges; (3) whether reversal in the interest of justice under Wis. Stat. § 751.06 is appropriate; and (4) whether McGuire was denied effective assistance of counsel. ¶3 We conclude that Wis. Stat. § 939.74(3) constitutional as applied to the facts of this case. is It does not violate the Privileges and Immunities, Due Process, or Equal Protection provisions of the United States Constitution. Section 939.74(3) does not burden a fundamental right, and it is rationally related to the legitimate governmental interests of detecting crimes and apprehending criminals. ¶4 We next conclude that the charges were not barred by due process. McGuire has failed to allege an improper motive or 1 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. 2 Wisconsin Stat. § 939.74(3) has been part of the Wisconsin Criminal Code since December 1955. 2 No. purpose on the part of the State, which 2007AP2711-CR is a necessary prerequisite for dismissal based on pre-indictment delay. ¶5 We also are satisfied that McGuire received a fair trial in which the real controversy was fully tried and justice has not for any reason miscarried. Therefore, reversal in the interest of justice is inappropriate. ¶6 Finally, we reject McGuire's contention that he was denied effective assistance of counsel. trial counsel that McGuire The two decisions of claims constituted deficient performance were part of a reasonable trial strategy. ¶7 For the reasons set forth, we affirm the court of appeals. I. BACKGROUND AND PROCEDURAL HISTORY ¶8 The facts are disputed, but the evidence at trial showed the following: McGuire was a Jesuit priest who taught at the Loyola Academy in Wilmette, Illinois, a suburb of Chicago. The priests attached to who taught the school. at the school Loyola lived Academy in was a not school, and students do not live on the campus. residence a boarding Students were permitted in the Jesuits' residence only for limited purposes, such as helping to carry a package. ¶9 Victor B. was 13 years old when he began attending Loyola in the fall of 1966. McGuire offered to counsel and tutor Victor, who was having trouble in school. McGuire then had Victor live with him in his residence at Loyola. living in the room, Victor would 3 sleep in the same While bed as No. McGuire, often in the nude. 2007AP2711-CR The two began giving each other body massages, which included touching each others' genitals. ¶10 During this time, Victor's uncle, Harry B. McGuire became acquainted with In the spring of 1967, McGuire began visiting Harry's cottage in Fontana, Wisconsin. While McGuire and Victor were in Wisconsin whether they were riding in the car or at the cottage McGuire would give Victor what he referred to as "horse bites," which he would perform by grabbing Victor below genitals. his groin and brushing his hand over Victor's The "horse bites" continued through the summer of 1968. ¶11 Sometime around November of 1967, McGuire visited the Fontana cottage while Victor was there. The only other person at the cottage at that time was Victor's grandmother. Victor was in bed, McGuire pretended to be asleep. entered the room, While and Victor McGuire put his hands down Victor's pants and squeezed his testicles and penis to wake him up. ¶12 but In the fall of 1968, Victor returned to Loyola Academy stopped living in McGuire's room. The sexual contact stopped at that time. ¶13 Loyola Sean Academy problems C. was in getting August to guidance counseling. to avoid the 14 years of school, old 1968. he when he Because was sent to began Sean see attending was having McGuire for McGuire suggested that Sean stay at Loyola problem of getting to school in the morning. McGuire told Sean to tell his father that he was sleeping in McGuire's guidance office, when in fact Sean was staying in bed 4 No. with McGuire. 2007AP2711-CR Sean testified that McGuire took steps to hide the fact that Sean was living with McGuire. ¶14 began While was give to Sean staying each other in McGuire's massages. During room, these the two massages, McGuire would touch Sean's penis and have Sean touch his. ¶15 McGuire took Sean on several trips. Sometime between Thanksgiving and Christmas of 1968, the two travelled together to the Fontana cottage on a Friday. the time. Sean was 14 years old at On Friday night at the Fontana cabin, McGuire began massaging Sean's penis with baby oil. He then changed positions and told Sean to do the same to him. The next night, the two performed the same acts again. ¶16 Sean freshman year continued at to Loyola. live He with would McGuire stay his McGuire's in during room roughly four nights a week, and sexual contact occurred nearly every day. During the summer, McGuire and Sean traveled to Europe, and sexual contact occurred on this trip. In the fall, Sean returned to living with McGuire, and the sexual contact continued. ¶17 In February of 1970, Sean reported the sexual contact to Father Charles Schlax. Later, several Jesuits Father Renke, the president of Loyola; Father Beall, the principal; and Father Humbert, the headmaster interviewed attended this meeting. told him that transferred to he a Sean. Sean's father After Sean left the meeting, his father would not different return school. Sean's father contacted the police. 5 to Loyola, Neither and the Sean was school nor No. ¶18 2007AP2711-CR In June of 2003, Sean contacted an attorney about the sexual contact with McGuire. On August 1, 2003, Sean filed a civil lawsuit against the Jesuits and McGuire. ¶19 In August of 2003, Victor received a letter from the headmaster of Loyola Academy about reports of sexual misconduct. After he did some research, Victor contacted Sean's attorney, who put him in touch with Sean. According to Victor and Sean, they did not know each other before they spoke on the phone in 2003. During their phone conversation, Sean obtained some information about the Fontana cottage, but both Victor and Sean later denied having discussed what McGuire had actually done to either of them or the layout of McGuire's room at Loyola. ¶20 On February 7, 2005, a criminal complaint was filed in Walworth County charging McGuire with two counts of indecent behavior with a child, in violation of Wis. Stat. § 944.11(2) (1965).3 The complaint was later amended to add three additional counts. ¶21 A four-day jury trial began on February 19, 2006. Victor and Sean both testified at trial; McGuire did not. The jury found McGuire guilty on all five counts. ¶22 McGuire filed a motion for postconviction relief asking for dismissal of charges or, alternatively, a new trial. He argued, inter alia, that the statute of limitations tolling 3 Wis. Stat. § 944.11 (1965-66) provided: "Any of the following may be imprisoned not more than 10 years: . . . (2) whoever takes indecent liberties with the privates of any person under the age of 18." 6 No. provision in reversal was charges Wis. were Stat. warranted barred § 939.74(3) in by the due was interest unconstitutional, of process. 2007AP2711-CR justice, He also and raised the an ineffective assistance of counsel claim based on the decision of his trial counsel, Gerald Boyle, not to investigate Harry B.'s wife, Elita, who would testify regarding Harry's unwillingness to give out keys to the Fontana cottage. Finally, he argued that a new trial was warranted because McGuire discovered after trial that Robert Goldberg, who McGuire had known previously, would have testified that he saw Sean and shortly after they graduated from high school.4 Victor together After a hearing on the ineffective assistance of counsel claim, the court denied the motion. ¶23 McGuire appealed, charging delay received ineffective court violated erroneously raising his arguments: constitutional assistance admitted four other of counsel; acts (1) the rights; (2) (3) circuit evidence; the and circuit court erroneously allowed rebuttal evidence. (4) he the The court of appeals affirmed the circuit court on all four issues. ¶24 McGuire petitioned this court for review, which we granted on September 10, 2009. 4 In response to the State's claim that McGuire's trial counsel knew about Goldberg, McGuire also argued that if trial counsel had known about the evidence, his failure to investigate and call Goldberg constituted ineffective assistance of counsel. 7 No. 2007AP2711-CR II. STANDARD OF REVIEW ¶25 The constitutionality of a statute is a question of law, which we review de novo. State v. Cole, 2003 WI 112, ¶10, 264 Wis. 2d 520, 665 N.W.2d 328. constitutional, and a Statutes are presumed to be party challenging a statute's constitutionality must demonstrate that it is unconstitutional beyond a reasonable doubt. State v. Baron, 2009 WI 58, ¶10, 318 Wis. 2d 60, 769 N.W.2d 34. This presumption and burden apply to as-applied constitutional challenges to statutes as well as to facial challenges. State v. Wood, 2010 WI 17, ¶15, 323 process was Wis. 2d 321, 780 N.W.2d 63. ¶26 Whether a defendant's right to due violated also presents a question of law that we review de novo. State v. Shiffra, 175 Wis. 2d 600, 605, 499 N.W.2d 719 (1993). ¶27 We review an ineffective assistance of counsel claim as a mixed question of fact and law. State v. Doss, 2008 WI 93, ¶23, 312 Wis. 2d 570, 754 N.W.2d 150. We uphold the circuit court's factual findings unless they are clearly erroneous, but review de novo whether constitutionally deficient. an attorney's performance was Id. III. DISCUSSION ¶28 McGuire raises four issues, which we address in turn. First, we address whether the statute of limitations tolling provision of Wis. Stat. § 939.74(3) applied to the facts of this case. is unconstitutional as Second, we address whether due process barred the filing of charges roughly 36 years after McGuire committed the offenses. 8 Third, we address whether No. 2007AP2711-CR reversal is appropriate in the interest of justice. Fourth, we address whether McGuire was denied effective assistance of counsel at trial. A. Constitutionality of Wis. Stat. § 939.74(3) ¶29 tolling McGuire first argues that the statute of limitations provision unconstitutional contained as applied in to Wis. the Stat. facts of § 939.74(3) this case. is He argues that it violates the Privileges and Immunities, Equal Protection, and Due Process provisions of the United States Constitution and their analogues in the Wisconsin Constitution.5 ¶30 must be With certain commenced thereof." exceptions, within 6 "prosecution years . . . after Wis. Stat. § 939.74(1). for the a felony commission However, "[i]n computing the time limited by this section, the time during which the actor was not publicly a resident within this state . . . shall not be included." Wis. Stat. § 939.74(3). It is undisputed that McGuire was not publicly a resident of Wisconsin at any point since the commission of the offenses. 5 "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const. art. IV, § 2. The Fourteenth Amendment reads in relevant part: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. IV; see also Wis. Const. art. I, §§ 1, 8. 9 No. ¶31 Stat. This court § 939.74(3) N.W.2d 878 (1989). addressed in State the v. 2007AP2711-CR constitutionality Sher, Wis. Wis. 2d 1, 149 of 437 The defendant in Sher, a public resident of Florida, was charged with theft two years after the six-year statute of limitations had run. Id. at 7. He argued that § 939.74(3) was unconstitutional as applied to the facts of his case because it violated both the Privileges Clause and the Equal Protection Clause. ¶32 The court immunities claim. "absolute first and Immunities Id. at 10. addressed Sher's privileges and It noted that the clause does not require and nonresidents nonresidents "may present special problems for the administration of state laws." Id. at permits equality" between disparate treatment residents because and 11 (citing Taylor v. Conta, 106 Wis. 2d 321, 329, 316 N.W.2d 814 (1982)). The court then applied a three-part test to determine whether a statute is constitutional under the Privileges and Immunities Clause: First, this court must consider whether the statute disadvantages nonresidents as compared to residents. If there is a disadvantageous treatment of nonresidents, then this court examines the statute under the second step; whether the discrimination violates a fundamental right. Finally, if a fundamental right is infringed, this court must decide if the means employed [by the statute] bear a substantial relation to legitimate state objectives. Id. at 11 (alteration in original) (internal citations and quotation omitted). ¶33 The "disadvantages" court acknowledged nonresidents because 10 only that public § 939.74(3) residents of No. 2007AP2711-CR Wisconsin could claim the benefit of the statute. Id. at 12. It § 939.74(3) then burdened rejected a the fundamental defendant's right, argument reasoning that that limitations defenses are not fundamental rights. statute of Id. (citing Bendix Autolite Corp. v. Midwesco Enters., 486 U.S. 888, 893 (1988)). See also Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945). ¶34 went on Although the court did not need to inquire further, it to explain that a "substantial reason discrimination" between nonresidents and residents existed: We find the provision is substantially related to several legitimate state objectives: the identification of criminals, the detection of crimes, and the apprehension of criminals. Investigation of crimes is easier for law enforcement officials when people central to the incident, and who may have vital information, are located within the state. . . . Even if suspects are located, local law enforcement agencies may not possess enough resources to send someone to question or investigate the suspect who resides outside of Wisconsin. In such cases, Wisconsin authorities might have to rely on the resources of other state's police and could burden those other departments. In addition, cases which would be important here, may be given less attention if other authorities were responsible for investigation. Furthermore, if a suspect is charged, apprehension of them is easier if they are public residents than if they reside out of state. 11 for No. 2007AP2711-CR Sher, 149 Wis. 2d at 14.6 ¶35 The Sher court next addressed the constitutionality of § 939.74(3) Because under the § 939.74(3) Equal did not Protection burden a Clause. Id. fundamental at 15. right, the court inquired into whether the legislature made an "irrational or arbitrary classification." Id. (quoting State v. Bleck, 114 Wis. 2d 454, 468, 338 N.W.2d 492 (1983)). It reasoned that, because § 939.74(3) was "substantially related" to the state's interest in detecting crimes and identifying and apprehending criminals, the statute interests, as the also was "rationally rationally related" related test standard than the "substantially related" test. ¶36 Sher was challenge. was to a those lesser Id. at 16. McGuire argues that Sher is not controlling because decided as a facial challenge, not an as-applied He asserts that this case is distinguishable from Sher for two reasons: (1) in this case, § 939.74(3) burdened his 6 Two decades have passed since the Sher decision, but we see no reason to alter its fundamental conclusions. State v. Sher, 149 Wis. 2d 1, 437 N.W.2d 878 (1989). This court has explained that statutes of limitation promote fair and prompt litigation and protect defendants from stale or fraudulent claims "brought after memories have faded or evidence has been lost." Korkow v. General Cas. Co. of Wis., 117 Wis. 2d 187, 198, 344 N.W.2d 108 (1984) (citation omitted). However, some offenses have never had statutes of limitation; the legislature has lengthened statutes of limitation in certain cases, particularly cases involving minors; and scientific evidence such as DNA has frequently neutralized the argument that claims should not proceed because evidence is unreliable. Because the tolling provision in Wis. Stat. § 939.74(3) long predated the offenses in this case, we see little or no basis for an argument that McGuire has a fundamental right to a statute of limitations defense. 12 No. 2007AP2711-CR fundamental right to present a defense; and (2) on these facts, § 939.74(3) does not accomplish the statutory objectives set out in Sher. the As we see it, the facts of this case are similar to facts in Sher, and, as with Sher, § 939.74(3) is constitutional as applied to these facts.7 ¶37 First, the tolling of the statute of limitations did not deprive McGuire of the right to present a defense. Although McGuire casts the deprivation under the tolling provision as a deprivation of deprived him defense. Id. would only suggest limitation the in right of the to present right to a a defense, statute of § 939.74(3) limitations His argument, if taken to its natural conclusion, that the certain constitution cases, lest requires defendants be statutes of deprived of their right to present a defense. Yet, statutes of limitation are not constitutionally required. Wisconsin has no statutes of limitation for certain crimes,8 while some states statutes of limitations for any criminal offense.9 have no The extent to 7 Although the court in Sher discussed the broad constitutionality of Wis. Stat. § 939.74(3), Sher specifically argued that the statute was unconstitutional as applied to him. Sher, 149 Wis. 2d at 10 ("Sher's counsel contends he is not arguing that the tolling provision is unconstitutional on its face. Rather, he argues that the provision may be unconstitutionally applied in this case."). For a thorough discussion of the difference between "facial" challenges and "as-applied" challenges, see State v. Wood, 2010 WI 17, 323 Wis. 2d 321, 780 N.W.2d 63. 8 These include several forms of homicide and sexual assault of a child. Wis. Stat. § 939.74(2)(a). 9 See, e.g. Bush v. State, 193 P.3d 203, 221 (Wyo. 2008). 13 No. which the passage separate of time constitutional burdens a 2007AP2711-CR fundamental independent question right of is a the constitutionality of § 939.74(3). ¶38 Second, McGuire distinguishes Sher on the grounds that none of the statutory objectives described in Sher applies to him. He argues that the interests of identifying criminals, detecting crimes, and apprehending criminals are not furthered by applying § 939.74(3) to these facts, because McGuire did not flee justice and was easy to locate. ¶39 related In truth, however, the facts in this case are closely to identifying criminals, investigating those crimes. detecting crimes, and When McGuire either transported a minor from Illinois to Wisconsin or met an Illinois minor in Wisconsin, he was able to engage in unlawful sexual activity with minors away from co-workers at Loyola Academy who were more likely to notice impropriety. Correspondingly, because neither McGuire nor the victims were residents of Wisconsin, McGuire's sporadic visits to the state made the detection of his crimes by Wisconsin authorities and the reporting of his crimes by the minor victims to Wisconsin authorities, much less likely. ¶40 Sher. The relevant facts here are analogous to the facts in In Sher, the defendant "never left circuit court Wisconsin in found an as fact attempt to that the conceal or prevent knowledge of his whereabouts" and that "information was available to both private parties and law enforcement officials as to his residency status and whereabouts." 14 Id. at 7. On No. 2007AP2711-CR those facts, this court still concluded that § 939.74(3) bore substantial relation to the objectives described in that case. ¶41 The fact that a defendant was not in hiding and did not flee justice does not render § 939.74(3) unconstitutional as applied to him. Law enforcement agencies still may lack the resources to investigate a suspect outside the state; they may have to rely on the resources of police departments in other states, burdening departments being in given those other to departments; states may investigating result if responsible for the investigation. These state interests would and reliance in lesser other on police importance authorities are See Sher, 149 Wis. 2d at 14. satisfy the constitutional requirements of the Privileges and Immunities Clause regardless of the fact that they may not be compelling in a given case. ¶42 McGuire also argues that Wis. Stat. § 939.74(3) is unconstitutional because it violates the Due Process and Equal Protection Clauses. Because § 939.74(3) neither interferes with a fundamental right nor disadvantages a suspect class, we apply rational basis review to both the equal protection and due process claims. See State v. Jorgensen, 2003 WI 105, ¶¶32-33, 264 Wis. 2d 157, 667 N.W.2d 318 (describing the similarities between due process and equal protection analysis); see also State v. Annala, 168 Wis. 2d 453, 468, 484 N.W.2d 138 (1992). ¶43 McGuire again distinguishes Sher on the grounds that he is bringing an as-applied challenge, not a facial challenge. His argument, however, ignores the fact that the "basic formulation" of the rational basis test is the same in both 15 No. facial and as-applied challenges. F.3d 643, 652 constitution (7th Cir. requires classification objective." be Smith v. City of Chicago, 457 2006). only "rationally 2007AP2711-CR Under that the related this standard, statute to a creating valid the a legislative Jorgenson, 264 Wis. 2d 157, ¶33 (quoting State v. McManus, 152 Wis. 2d 113, 130-31, 447 N.W.2d 654 (1989)). distinction between public residents and public The non-residents set out in Wis. Stat. § 939.74(3) is rationally related to the legitimate detecting government crimes, interests and of apprehending identifying criminals, criminals. Therefore, § 939.74(3) is constitutional under both the Equal Protection and Due Process Clauses. B. Due Process Claim Based on Passage of Time ¶44 McGuire next argues that the charges against him were barred by due process. time between prejudiced the his He argues that the 36-year passage of commission defense of the because offenses critical and the charges witnesses died and is principal evidence was destroyed. ¶45 "The statute of limitations the device . . . to protect against prejudice arising from a lapse of time between the date of an alleged offense and an arrest." State v. Wilson, 149 Wis. 2d 878, 903, 440 N.W.2d 534 (1989) (citing United States v. Lovasco, 431 U.S. 783, 788-89 (1977)). Nonetheless, the statute of limitations is not the sole measure of a defendant's rights with respect to pre-indictment delay, and "the Due Process Clause has a protecting against oppressive delay." 16 limited role to play in Lovasco, 431 U.S. at 789. No. 2007AP2711-CR Wisconsin has adopted a two-part test to determine whether preindictment delay constitutes a due process violation: Where a defendant seeks to avoid prosecution based upon prosecutorial delay, it is clear that it must be shown that the defendant has suffered actual prejudice arising from the delay and that the delay arose from an improper motive or purpose such as to gain a tactical advantage over the accused. Wilson, 149 Wis. 2d at 904-05 (quoting State Wis. 2d 406, 418, 316 N.W.2d 395 (1982)). reaffirmed Wilson, holding that a v. Rivest, 106 This court recently defendant claiming a due process violation based on pre-indictment delay must show: "(1) actual prejudice as a result of delay; and (2) the delay arose out of an improper purpose, [such as tactical advantage over the defendant." to] give the State a State v. MacArthur, 2008 WI 72, ¶45, 310 Wis. 2d 550, 750 N.W.2d 910 (citing State v. Dabney, 2003 WI App 108, ¶30, 264 Wis. 2d 843, 663 N.W.2d 366). ¶46 McGuire acknowledges his inability to "establish that the delay resulted from some improper prosecutorial motive" or purpose. Instead he argues that authorities upon which it relied." Wilson "misconstrued the McGuire cites three United States Supreme Court cases that he claims Wilson misconstrued. A close examination of those cases reveals that Wilson properly interpreted and applied those cases. ¶47 McGuire first argues that Wilson misconstrued United States v. Marion, 404 U.S. 307 (1971). In Marion, the Court explicitly declined to address "when and in what circumstances actual prejudice resulting from pre-accusation delays requires 17 No. the dismissal of the prosecution." 2007AP2711-CR Id. at 324. Therefore, Marion neither supports nor contradicts the holding in Wilson it simply did not address the issue decided in Wilson. ¶48 McGuire next argues that Wilson misconstrued Lovasco. In Lovasco, the defendant based his due process claim on a 17month delay during an investigation. Lovasco, 431 U.S. at 787. The Court explained that "investigative delay is fundamentally unlike delay tactical undertaken advantage over by the the Government accused.'" Marion, 404 U.S. at 324). solely at Id. 'to 795 gain (quoting It then held that "to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense prejudiced by the lapse of time." "to the lower principles of courts . . . the due might Id. at 796. task process that have of we have somewhat The Court left applying the discussed particular circumstances of individual cases." ¶49 been settled to the Id. at 797. Thus, although Lovasco explicitly left the application of its rule under specific facts to future courts, it refused to find a due process violation based upon the facts of the case in which the state did not seek a tactical advantage. Court's language supports a distinction between The prosecutions that are delayed because of an improper state motive and those that are delayed for other reasons. ¶50 Finally, McGuire argues that Wilson United States v. Gouveia, 467 U.S. 180 (1984). Court addressed administrative the right segregation to counsel awaiting 18 misconstrued In Gouveia, the for indictment prisoners on in federal No. charges. might Id. at 182. delay charges 2007AP2711-CR Addressing the concern that prosecutors because the defendants were already in prison, the Court noted that a defendant still has a due process claim "if the defendant can prove that the Government's delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense." Id. at 192 (citing Lovasco, 431 U.S. at 789-90). ¶51 Like Lovasco, Gouveia clearly described the basic requirements of the Due Process Clause. The Wilson court did not but "misconstrue" Lovasco and Gouveia, process requirements set out in those cases. applied the due Indeed, Wilson is consistent with Lovasco's refusal to "adopt a rule which would [require prosecutors to charge as soon as they had evidence of guilt] absent a clear constitutional command to do so." Lovasco, 431 U.S. 795. ¶52 correctly Federal circuit court precedent confirms that Wilson interpreted and applied Lovasco and its progeny. Nearly every federal circuit has adopted some variant of the 19 No. test adopted in Wilson.10 2007AP2711-CR The Seventh Circuit has adopted two different tests. See Wilson v. McCaughtry, 994 F.2d 1228, 1233 (7th Cir. 1993). Many Seventh Circuit cases have applied tests similar to that in State v. Wilson, by requiring the defendant to show that the prosecution delayed for advantage"11 or "impermissible purpose."12 either a "tactical In other cases, the Seventh Circuit has applied a test that balances prejudice to the defendant against the government's reason for the delay, but even this test still looks at the government's purpose for the delay.13 Acknowledging the split but declining to resolve it, 10 United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir. 1996); United States v. Hayes, 40 F.3d 362, 367 (11th Cir. 1994); United States v. Engstrom, 965 F.2d 836, 839 (10th Cir. 1992); United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992); United States v. Hoo, 825 F.2d 667, 671 (2d Cir. 1987) ("no showing of an improper prosecutorial motive"); United States v. Sebetich, 776 F.2d 412, 430 (3d Cir. 1985); United States v. Crooks, 766 F.2d 7, 11 (1st Cir. 1985); United States v. Bartlett, 794 F.2d 1285, 1293 (8th Cir. 1986) (in dicta). Only the Fourth Circuit and the Ninth Circuit have adopted different tests. See United States v. De Jesus Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007) (weighing length of delay against reasons for delay); Howell v. Barker, 904 F.2d 889, 895 (4th Cir. 1990) (balancing prejudice against "government's justification for delay"). 11 See, e.g., United States v. Wallace, 326 F.3d 881, 886 (7th Cir. 2003) (quoting United States v. Dickerson, 975 F.2d 1245, 1252 (7th Cir. 1992)). 12 See, e.g., United States v. Wellman, 830 F.2d 1453, 1460 (7th Cir. 1987). 13 See United States v. Doerr, 886 F.2d 944, 964 (7th Cir. 1989) (weighing "actual prejudice . . . against the government's reasons for the delay"); see also United States v. Perry, 815 F.2d 1100, 1103 (7th Cir. 1987). 20 No. 2007AP2711-CR the Seventh Circuit has noted that "were we required to choose between the two tests . . . , Gouveia would be powerful support for adopting a requirement that defendants show actual prejudice caused by a purposeful, tactical delay by the prosecution." McCaughtry, 994 F.2d at 1233 n. 5. ¶53 Because McGuire has failed to identify any improper motive or purpose on the part of the State, we need not address whether McGuire was prejudiced by the delay. In any event, McGuire has failed to meet the requisite showing of prejudice. "The death of a witness alone is not sufficient to establish United States v. Eckhardt, 843 F.2d 989, 995 (7th prejudice." Cir. 1988). The relevance of concrete, not must witness's the defendant testimony; speculative. Id. explain the the (citing substance showing United and must be States v. Antonino, 830 F.2d 798, 804-05 (7th Cir. 1987)). ¶54 he McGuire identifies a number of deceased witnesses that claims would have corroborated his defense and rebutted Sean's and Victor's testimony. These witnesses include other priests Academy living in the Loyola residences; McGuire's secretary, John Gooch; Victor's uncle and owner of the Fontana cottage, Harry B.; and various relatives of Victor and Sean. McGuire asserts that the priests would testify that Sean and Victor could not have lived with McGuire undetected, Gooch would testify that McGuire was not involved with Victor and Sean, and Harry would testify that he did not give McGuire a key to the cottage. assertions. However, Simply McGuire offers identifying 21 no support deceased for witnesses these and No. describing testimony that they might have 2007AP2711-CR provided does not satisfy the requisite showing of actual prejudice. ¶55 McGuire also argues that Loyola Academy records, including use of fleet vehicles and the reasons for Jesuits' absences Again, from school, McGuire merely would constitute speculates that exculpatory these evidence. documents would rebut Sean and Victor's testimony, but he fails to demonstrate that those documents would actually provide the evidence he claims. ¶56 due In sum, the charges against McGuire were not barred by process prosecutorial because motive. he has failed Furthermore, to allege while he an has improper identified potential witnesses and evidence that might have been relevant to issues at trial, his assertions about what that testimony would prove are speculative. Consequently, he has failed to demonstrate the actual prejudice required to prove a due process violation. C. Reversal in the Interest of Justice ¶57 McGuire next argues that reversal is warranted in the interest of justice under Wis. Stat. § 751.06. He claims that the delay in bringing charges "so undermined" his ability to defend himself that the real controversy was not fully tried. ¶58 Wisconsin Stat. § 751.06 describes this court's power of discretionary reversal: [I]f it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed 22 No. 2007AP2711-CR from . . . and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial . . . . Id. ¶59 We will exercise our discretionary power of reversal "only in exceptional cases." 161, 549 N.W.2d 435 State v. Hicks, 202 Wis. 2d 150, (1996). In doing so, we look at the "totality of circumstances and determine whether a new trial is required to accomplish the ends of justice." Id. (quoting State v. Wyss, 124 Wis. 2d 681, 735-36, 370 N.W.2d 745 (1985)). ¶60 McGuire argues that, because of the delay, a new trial is an insufficient remedy, and asks for outright dismissal of the charges. We conclude that discretionary reversal is inappropriate on these facts. ¶61 not was In support of his argument that the real controversy fully witnesses claim tried, and missing that articulated the McGuire evidence charges earlier, were his points that barred to the he cites by assertions due same to support process. regarding deceased As his we unavailable evidence were too speculative to constitute actual prejudice; for the same reason, we conclude that the real controversy was fully tried and justice has not miscarried. ¶62 McGuire cites State v. Cuyler, asserting that it is analogous to the facts of this case because credibility was a central issue in both cases. State v. Cuyler, 110 Wis. 2d 133, 141-42, 327 N.W.2d 662 (1983). In Cuyler, this court reversed for a new trial because the circuit court excluded evidence that 23 No. was admissible and material to the 2007AP2711-CR "critical issue of credibility," which was "a determinative issue" in the case. Id. at 141. Cuyler does not, however, support the use of our discretionary reversal power in this case. The evidence at issue in Cuyler was the testimony of police officers who would have testified as to the defendant's truthfulness. no analogous situation in this case. Id. Unlike the We have court in Cuyler, we simply have no idea what most of the unavailable witnesses would have said or how their testimony the unavailable might have affected the relevant issues. ¶63 Additionally, have been Sean's meeting relevant claims while to the about with Father major going to Schlax, issues Fontana, and the at the evidence might trial Victor events credibility of of and Sean's Sean and Victor's claims that they lived in McGuire's room those issues were fully tried by available evidence. Father Schlax was available to testify, and the defense put Father Renke's notes of the meeting with Sean into evidence, which were used to impeach Sean's testimony regarding the events of the meeting. Similarly, the defense presented evidence and cross-examined prosecution witnesses to rebut Sean and Victor's testimony that 24 No. they had lived in McGuire's room.14 Victor themselves were both 2007AP2711-CR Most important, Sean and available for trial, and were rigorously cross-examined by McGuire's trial counsel. ¶64 and Based on the evidence presented at McGuire's trial, without would any have indication demonstrated, of what we the unavailable conclude that evidence reversal is unwarranted because the real controversy was fully tried and justice was not miscarried. D. Ineffective Assistance of Counsel ¶65 Finally, effective McGuire assistance of argues that counsel. To he was prove deprived an of ineffective assistance of counsel claim, a defendant must first demonstrate that counsel's performance was deficient, meaning that it "fell below an objective standard of reasonableness." Washington, 466 U.S. 668, 688 (1984). Strickland v. Courts are "highly deferential" in scrutinizing counsel's performance, and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The performance defendant prejudiced the must also defense. show that Id. 14 at the 692. deficient This requires a For example, Father James Gschwend testified that the Jesuits were expected to be at evening meals and someone would have asked a Jesuit why he was missing meals, contradicting Victor's testimony that he ate with McGuire after the other Jesuits were finished eating. McGuire's physician, Dr. Robert Ryan, testified regarding the layout of McGuire's room. Father James Arimond, who lived in the residences at Loyola from 1964 to 1967, testified that he never saw any young children in the residence in 1966 or 1967. 25 No. 2007AP2711-CR "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. ¶66 McGuire first argues that Attorney Boyle unreasonably decided not to investigate and call Harry B.'s wife Elita, who would have testified that Harry was possessive about his keys and would not give them to just anybody. Boyle explained that because he intended to argue that Sean was never in Fontana, whether McGuire had a key was not an issue in the case and he did not want to make it an issue. Furthermore, he believed that Elita's testimony would have been directly refuted by Harry's sister Gertrude, who would have testified that McGuire had a key and could Elita's come and go testimony at would will. have Finally, been he that speculation both believed and inadmissible hearsay. ¶67 Boyle's decision not to investigate and call Elita was part of a reasonable trial strategy. trial testimony would have added. It is unclear what her She testified that she had "no idea" what Harry did with his keys prior to 1971, the year they were marriage. confirms married. Thus, Boyle's The the offenses in speculative reasoning that this case nature "[t]here of was predated her the testimony nothing to be gained" by presenting it. ¶68 McGuire also he argues failed that to Boyle's investigate performance and call was deficient because Robert Goldberg. Goldberg would have testified that he saw Victor and Sean together at dinner several times in 1972, at a residence 26 No. shared by Gooch and Eugene P. 2007AP2711-CR At the time, Goldberg was 14 years old. ¶69 Boyle's decision not to call Goldberg constituted a reasonable trial strategy. First, Goldberg's testimony would have corroborated Sean's statement to police that he saw McGuire together with Goldberg on the Loyola Academy campus. Goldberg's testimony also would have raised questions about why McGuire was spending time with a 14-year-old boy who was not a student at Loyola. Furthermore, his testimony would have placed Sean and Victor together with Eugene P. who also alleged that McGuire sexually abused him near the time of the offenses. Finally, Goldberg criminal would convictions. have Boyle been came impeachable to the by reasonable prior conclusion that, because Goldberg's testimony corroborated Sean's testimony, it was "the most dangerous thing [he] had heard from the beginning of the case until the end of the case." ¶70 McGuire Goldberg, he argues could not that, have even if reasonably without investigating Goldberg. Boyle did not made that call decision Counsel need not investigate every potential witness, but he "has a duty to make reasonable investigations or to make a reasonable particular investigations unnecessary." decision that makes State v. Thiel, 2003 WI 111, ¶40, 264 Wis. 2d 571, 665 N.W.2d 305 (quoting Strickland, 466 U.S. at 691). outweighed defense. any The inherent danger in Goldberg's testimony potential benefit it might have had to the Boyle made a reasonable decision that rendered further investigation of Goldberg unnecessary. 27 No. ¶71 not Because we deficient, conclude we need that not Boyle's address 2007AP2711-CR representation whether McGuire was was prejudiced by counsel's representation. IV. CONCLUSION ¶72 In sum, Wis. Stat. § 939.74(3) is constitutional as applied to the facts of this case. Privileges and Immunities, Due It does not violate the Process, or Equal provisions of the United States Constitution. does not burden a fundamental right, and Protection Section 939.74(3) it is rationally related to the legitimate governmental interests of detecting crimes and apprehending criminals. ¶73 We also conclude that the delay in filing charges did not deprive McGuire of his due process rights. concedes that he cannot demonstrate an Because McGuire improper motive or purpose on the part of the state, he has failed to allege a necessary prerequisite for dismissal based on pre-indictment delay. ¶74 We are also satisfied that the real controversy was tried and justice has not miscarried for any reason. Therefore, reversal in the interest of justice is unwarranted. ¶75 effective Finally, we assistance conclude of that counsel. McGuire Trial was not counsel denied pursued a reasonable trial strategy in deciding not to investigate or call either Elita or Goldberg. ¶76 For the foregoing reasons, appeals. 28 we affirm the court of No. By the Court. The decision affirmed. 29 of the court of 2007AP2711-CR appeals is No. 1 2007AP2711-CR
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