November 2, 1982

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT

v.

RONALD DENNIS FENCL, DEFENDANT-APPELLANT







Appeal from a judgment of the Circuit Court for Manitowoc County: Charles L. Larson, Circuit Judge for Ozaukee County, Presiding. Appeal from an order of the Circuit Court for Manitowoc County: William H. Carver, Circuit Judge for Winnebago County, Presiding. On certification from Court of Appeals.

William G. Callow, J. Beilfuss, C.j., took no part. Heffernan, J. (concurring). Shirley S. Abrahamson, J. (concurring).

The opinion of the court was delivered by: Callow

This is an appeal from a Manitowoc county circuit court judgment convicting Ronald Fencl of first-degree murder in violation of sec. 940.01, Stats., and an order denying a new trial. This appeal was certified to this court by the court of appeals, pursuant to sec. 809.61. We affirm the judgment of conviction and order of the circuit court.

Debra Sukowaty disappeared on September 24, 1977. On October 1, 1977, the police received a purse containing Sukowaty's identification and several other items which were found in a plastic bag in a nearby river. Among the items contained in the bag was a parking ticket, traceable to Ronald Fencl's car. Detective Geigel of the Two Rivers Police Department visited Fencl that same day to inquire about Sukowaty. Fencl stated that he did not know Sukowaty or anything about the items found in the river.

At approximately 4 p.m. on October 2, 1977, Geigel again visited Fencl. At this meeting Fencl told Geigel that he wanted to talk to his attorney and that he would get back to him. Half an hour later Fencl went to the police station. He told Geigel that he had found the items in his car and threw them into the river in order to avoid any trouble with the police. Geigel had to cut their conversation short because he received a call informing him that a body had been found in a nearby gravel pit. Fencl agreed to meet with him later that evening. In the meantime, the body was identified as Sukowaty. The police then impounded Fencl's car.

At 7 p.m. that same day, Fencl returned to the police station with his attorney, Steven Alpert. Fencl said nothing. His attorney spoke to Geigel only to ask why Fencl's car had been impounded. Two Manitowoc Police Department detectives talked to Fencl and gave him his Miranda rights. Fencl was allowed to leave while the investigation continued. On November 4, 1977, a criminal warrant was issued charging Fencl with first-degree murder. He was arrested the next day. Alpert represented Fencl until just after the preliminary hearing. At that time new counsel was substituted because it appeared that Alpert might be called as a witness against Fencl.

During the trial the state made several references to Fencl's pre- and post- Miranda silence. In his opening statement the district attorney referred to the 4 p.m. meeting on October 2, 1977, between Detective Geigel and Fencl. He said that Fencl did not want to answer too many questions and that Fencl wanted to talk to his attorney. Detective Geigel also testified about this statement. Geigel testified three times about his 7 p.m., October 2, 1977, meeting with Fencl and Alpert. Each time Geigel indicated that Fencl said nothing. In his closing argument the district attorney once again referred to the 4 p.m. meeting of October 2, 1977, between Geigel and Fencl when he stated:

"He said as long as you're not mixed up in the disappearance of Debbie Sukowaty we're not interested in prosecuting. As long as your not interested. As long as you're not involved in Debbie Sukowaty's disappearance, that's alright . We're not interested in prosecuting you. He made that quite clear. At that point Fencl said he wanted to talk to his lawyer, so Geigel left."

The jury found Fencl guilty of first-degree murder, and the court sentenced him to life imprisonment. Fencl moved for a new trial on September 4, 1979. During a hearing on this motion, it was revealed that Fencl's first attorney, Alpert, had engaged in some questionable practices in connection with his representation of Fencl. Nevertheless, the court denied Fencl's motion for a new trial by order entered October 27, 1980. Fencl's appeal of the judgment and the order was certified by the court of appeals and accepted by this court pursuant to sec. 809.61, Stats.

There are two issues presented on this appeal: (1) Did Attorney Alpert's questionable conduct deny Fencl his constitutional right to effective counsel? (2) Did the district attorney unconstitutionally imply Fencl's guilt by referring at trial to Fencl's prearrest silence?

(1) Assistance of Counsel

Fencl contends that Alpert's conduct deprived him of his constitutional right to effective assistance of counsel. It is well established that a defendant facing a felony charge has a constitutional right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 (1970). Fencl, however, was neither charged with a felony nor arrested at the time Alpert committed several of the alleged errors. Therefore, Fencl's assistance of counsel argument raises the question of whether a person has a constitutional right to effective counsel during the investigative stage, prior to the commencement of criminal proceedings. We do not reach this issue because we hold that Alpert's representation was sufficiently effective.

This court set forth the standard for assessing counsel's effectiveness in State v. Harper, 57 Wis. 2d 543, 557, 205 N.W.2d 1 (1973).

"Effective representation is not to be equated, as some accused believe, with a not-guilty verdict. But the representation must be equal to that which the ordinarily prudent lawyer, skilled and versed in , would give to clients who had privately retained his services." A defendant "is not entitled to the ideal, perfect defense or the best defense but only to one which under all the facts gives him reasonably effective representation." *fn1

Fencl claims that Alpert made several errors which competent counsel would have avoided. The fact that Alpert should have acted differently, however, does not establish that his assistance was ineffective. State v. Rock, 92 Wis. 2d 554, 560, 285 N.W.2d 739 (1979). This court has long disapproved of this "hindsight-is-better-than-foresight" approach. Weatherall v. State, 73 Wis. 2d 22, 26, 242 N.W.2d 220 (1976); Lee v. State, 65 Wis. 2d 648, 657, 223 N.W.2d 455 (1974); Ameen v. State, 51 Wis. 2d 175, 186, 186 N.W.2d 206 (1971). In evaluating the effectiveness of Alpert's assistance to Fencl, we must first determine whether there was a basis in reason for Alpert's actions. State v. Rock, supra at 560; Weatherall v. State, supra at 28. If we find that Alpert's conduct was unreasonable and contrary to the actions of an ordinarily prudent lawyer, we must then determine whether such action was prejudicial to Fencl. *fn2 See Weatherall v. State, supra at 32. We conclude that, although Alpert's conduct was undesirable, it was not so unreasonable as to render his assistance ineffective.

Fencl's first contention involves some advice given by Alpert. In late September Fencl told Alpert that he had found items belonging to Sukowaty in his car and asked what he should do with them. Alpert suggested three options: turning the items over to the police, turning them in to the post office lost and found, and disposing of them. Fencl then informed Alpert that he had already thrown the items into the river. Fencl contends that an ordinarily prudent attorney would have advised him to retrieve the items and turn them over to the police. The likelihood that Fencl could have found the items was remote. Therefore, Alpert's failure to advise Fencl to retrieve them was not unreasonable.

Fencl's second contention is that Alpert, in order to divert attention from Fencl, passed on to the district attorney unsubstantiated stories involving other possible suspects which he had encouraged Fencl to gather. While this action seems improper at first blush, it was not without basis in reason. According to the record, Alpert thought that Fencl had been a police informant in the past. Thus, it was reasonable for Alpert to believe that Fencl might be able to obtain useful information about Sukowaty's murder. Therefore, because Alpert believed Fencl was innocent, he had a reasonable basis for advising Fencl to attempt to clear himself from further investigation by assisting the police in the search for the real murderer.

Fencl's third contention is that Alpert unwisely advised him to take the Fifth Amendment at the John Doe hearing. Fencl maintains that his silence at the hearing cast suspicion upon him. Here, Fencl is clearly using hindsight to Judge Alpert's conduct. Alpert's decision to advise Fencl to take the Fifth Amendment at his John Doe hearing is similar to a decision regarding trial tactics. We have long held that "n deciding upon trial tactics, '"'. . . t is the considered judgment of trial counsel that makes the selection among available defenses, not the retroactive Conclusion of post-conviction counsel.'"'" Weatherall v. State, 73 Wis. 2d at 26 [quoting Kain v. State, 48 Wis. 2d 212, 222, 179 N.W.2d 777 (1970)]. We conclude that Alpert's strategy had a sufficient basis in reason. It is not unusual for defense counsel to advise a client to exercise his or her Fifth Amendment rights during criminal proceedings. Indeed, this tactic should not be dismissed without careful consideration, for in many instances silence is the best defense.

Fencl's fourth contention is that Alpert informed the police that Fencl had lied to him in the past and might be withholding information about the case. Because we cannot find a reasonable basis for this action, we must determine whether Alpert's indiscretion prejudiced Fencl. We conclude that it did not. Fencl has failed to persuade us that Alpert's remarks affected his trial or the police investigation. Fencl had substantial contact with the police prior to this incident. According to Geigel, Fencl acknowledged that he had been in trouble with the police before. Moreover, Alpert testified that Fencl had been an informant with the Two Rivers Police Department. Thus, the police had an independent basis for judging Fencl's credibility. In any event, by the time Alpert made the remark, Fencl's veracity had already come into question because of his inconsistent statements relating to his knowledge of the victim. Therefore, it is highly unlikely that Alpert's comment had any prejudicial impact.

Fencl's fifth contention is that Alpert's attempts to sell information to the authorities and his plans to write a book about Fencl's case created a conflict of interest. Fencl and Alpert collaborated in the preparation of the information and the plan to sell it to the authorities. Notwithstanding the fact that this was a joint effort, Fencl maintains that Alpert's pecuniary interest in these ventures precluded his undivided loyalty and effective assistance. Where a conflict of interest is alleged, a different analysis applies. Rather than evaluate the reasonableness of Alpert's conduct, we must determine whether Fencl has shown by clear and convincing evidence that an actual conflict of interest existed. *fn3 The mere possibility or suspicion that a conflict could arise under hypothetical circumstances is not sufficient. State v. Kaye, 106 Wis. 2d 1, 8, 315 N.W.2d 337 (1982); State v. Medrano, 84 Wis. 2d 11, 28, 267 N.W.2d 586 (1978). When an attorney's misconduct involves a conflict of interest, a defendant need not demonstrate prejudice in order to obtain relief. State v. Kaye, supra at 9. *fn4

Although Alpert's conduct was clearly undesirable, we hold that Fencl has failed to establish by clear and convincing evidence that an actual conflict of interest existed. According to the record, neither of these ventures was consummated. The authorities declined to purchase any information from Alpert, so he gave it to them without charge. Moreover, there is no evidence in the record that Alpert entered into any contract relating to a book. Alpert testified that before Fencl's preliminary hearing the book had been no more than the "germ of an idea," taking up only about half an hour of his time. Therefore, the evidence fails to establish an actual conflict of interest.

We hold that Alpert's representation was sufficiently effective to satisfy Fencl's right to effective assistance of counsel.

(2) References to Prearrest Silence

Fencl argues that the prosecution violated his due process right to a fair trial and his Fifth Amendment right against self-incrimination by referring at trial to his prearrest silence. *fn5 The references in question can be divided into two categories: those involving pre-Miranda silence and those involving post-Miranda silence. Detective Geigel made the post-Miranda references while testifying about his 7 p.m., October 2, meeting with Fencl. Fencl was given the Miranda warning at that meeting. *fn6 Detective Geigel testified on three separate occasions that during the 7 p.m. meeting Fencl said nothing. The first questioned reference came on the district attorney's direct examination of Geigel:

"Q. And did Mr. Fencl -- did he come back at that time, at 7? A. Yes. He came back with his Attorney Steve Alpert.

". . . .

"Q. And at that time did Mr. Fencl make any statements to you in regards to the missing girl? A. No sir.

On redirect Geigel again testified about the 7 p.m. meeting:

"Q. What about the third meeting? A. The third meeting he said nothing."

Finally, in response to questions from the court, Geigel testified a third time about the 7 p.m. meeting:

"The Court: -- You had another meeting with him?

"The Witness: We had prearranged a meeting for 7 p.m., but at this time he came in with his attorney and he didn't say a word; his attorney did all the talking."