State v. Bryan L. Urquhart

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.
July 27, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2020AP1589-CR Cir. Ct. No. 2014CF557

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRYAN L. URQUHART,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Sheboygan County: ANGELA W. SUTKIEWICZ, 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. 2020AP1589-CR

¶1 PER CURIAM. Bryan L. Urquhart appeals a judgment of
conviction, entered upon a jury verdict, for first-degree sexual assault of a child as
well as an order denying his postconviction motion. He argues on appeal that he
was denied his constitutional right of confrontation by the admission of his late
daughter’s suicide note at trial. He also argues he received constitutionally
ineffective assistance of counsel as a result of his trial counsel’s handling of a
portion of the victim’s testimony the jury had a hard time hearing as well as
testimony that Urquhart had not been prosecuted for the sexual abuse of his late
daughter that she alleged in her suicide note. We reject his arguments and affirm.

BACKGROUND

¶2 Urquhart was charged in September 2014 with a single count of
first-degree sexual assault of a child. The criminal referral was based on
disclosures made by Urquhart’s youngest daughter, Donna,1 to a social services
worker, in which she alleged that Urquhart had raped her when she was younger.
At trial, Donna described two events of unwanted touching to her vaginal area
over clothing when she was seven or eight years old, then a few weeks after the
second incident, an act of intercourse that occurred on the living room couch. The
act of intercourse was the basis for the charge.

¶3 Prior to Donna’s allegations, her older sister Amanda had
intentionally overdosed on prescription medication while away at college in

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2019-20), we refer to the
victim and her family members using pseudonyms.

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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Indiana. Amanda was found by her roommate while still alive, and she handed her
roommate a suicide note that she had prepared shortly before ingesting the
medication.2 Amanda’s note was a sorrowful goodbye to her friends and family,
and in the course of describing her angst and the reasons for her suicide, Amanda
revealed that Urquhart had repeatedly raped her starting when she was nine or ten
years old and continuing until she was fifteen. When Donna later disclosed her
own sexual abuse to a treatment provider, she mentioned Amanda’s suicide note
and her sister’s claims of having been raped by their father.

¶4 The State filed a pretrial motion seeking to admit the suicide note at
Urquhart’s trial. The circuit court determined the suicide note was admissible as
other acts evidence, but it deferred ruling on hearsay and other issues raised by the
defense. At a subsequent hearing, the court concluded Amanda clearly desired to
write to her loved ones “a goodbye note with a directive for dividing her property
and … an explanation for her suicide.” The court determined the note had
comparable guarantees of trustworthiness that warranted admissibility under the
residual hearsay exception. See WIS. STAT. § 908.045(6). Amanda’s suicide note
was received into evidence at trial. The jury received a limiting instruction that
Amanda’s note was not to be used to assess Urquhart’s character and should be
considered only on the issues of opportunity, motive, intent, and context for
Donna’s allegation of intercourse.

¶5 During the State’s case-in-chief, Donna’s mother described her
efforts to question her other children about Amanda’s sexual assault allegations in
the wake of Amanda’s suicide. When asked if the Sheboygan Police Department

2
Amanda was taken to the hospital and died shortly thereafter.

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No. 2020AP1589-CR

had reached out after Amanda’s passing, Donna’s mother responded that she had
“provided them a copy of the note to see if there was anything that could be done
and they told [her that] because he has the right to face his accuser and she is no
longer here, nothing could be done.”

¶6 Later that day, James Veeser, a Captain with the Sheboygan Police
Department, testified that Donna’s mother had discussed with him whether any
charges could potentially be brought against Urquhart in light of the allegations in
Amanda’s suicide note. Veeser testified that he had talked with the district
attorney, who concurred with Veeser’s assessment that charges could not be
pursued because Amanda was deceased. Veeser also discussed with Donna’s
mother whether she believed anything may have happened to her other daughters,
to which she responded that she was not sure but did not think so. With no
evidence at the time of any abuse involving Donna or her other living sister,
Veeser advised Donna’s mother to focus on grieving and counseled her to contact
the police if she had new information.

¶7 During an emotional moment in Donna’s testimony, just after she
had described her reactions upon being asked to recount the alleged assaults, the
circuit court paused for a ten-minute break. When the proceedings resumed, the
court placed on the record that the jury had informed the bailiff that it was unable
to hear Donna. The court requested that the prosecutor have the victim-witness
coordinator discuss with Donna the need to speak more loudly and directly into
the microphone. After the recess, Donna provided specifics about the alleged acts
of sexual abuse.

¶8 Urquhart testified and denied raping Donna or Amanda. Urquhart
presented testimony from social workers and therapists who had interviewed

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No. 2020AP1589-CR

Donna and Amanda over the years indicating that neither of the girls had accused
him of sexual assault. He also presented testimony from social workers that
several domestic-abuse investigations over the years were closed based in part
upon the children’s representations that things were okay at home and that they
were not fearful of their father.

¶9 The jury returned a guilty verdict, and the circuit court sentenced
Urquhart to forty years of initial confinement followed by twenty years of
extended supervision. Urquhart filed a postconviction motion seeking a new trial
based on ineffective assistance of trial counsel. Urquhart alleged that his trial
attorney failed to ensure that the jury heard all material testimony from Donna.
Urquhart also argued his trial attorney should have objected when the State
introduced testimony regarding the State’s inability to prosecute the sexual abuse
alleged by Amanda.

¶10 The circuit court denied Urquhart’s postconviction motion following
a Machner hearing.3 First addressing the jury’s inability to hear a portion of
Donna’s testimony, the court determined that her testimony during that
time period was on background matters and was not material to her allegations
against Urquhart because it did not include any details of the assault. Moreover,
the court noted that Donna was only “speaking very softly during the last few
questions before the break,” and none of the matters she was testifying about
prejudiced Urquhart’s defense theories. Finally, the court credited trial counsel’s
explanation that it did Urquhart no favors to have Donna repeat her testimony.

3
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2020AP1589-CR

Trial counsel believed the issue “either made no difference or was slightly positive
for the defense.”4

¶11 The circuit court also rejected Urquhart’s assertion that his attorney
was constitutionally ineffective for failing to object to testimony that authorities
were unable to prosecute Urquhart based on Amanda’s assertions of abuse in her
suicide note. The court accepted trial counsel’s explanation that he did not feel an
objection was warranted. Trial counsel testified he understood postconviction
counsel’s concern that a jury might be inclined to punish Urquhart for the
unprosecuted assault of Amanda, but he also believed that the jury could more
appropriately focus on the case at hand hearing that the earlier case was not
pursued. The court noted that the evidence showed the police did not investigate
the matter, the family had denied allegations of abuse, and Amanda’s mother had
no reason to suspect that sexual abuse had occurred. Urquhart now appeals.

DISCUSSION

I. Confrontation Right

¶12 Urquhart first argues his Sixth Amendment right of confrontation
was violated by admission of the suicide note at trial.5 The Confrontation Clause

4
This conclusion appears influenced in part by counsel’s observation that Donna was
taking a long time to answer questions at trial and was very soft spoken. Counsel believed that
while the jury could conclude these matters were explained by the troublesome subject matter of
the questioning, her difficulty answering and delayed responses could potentially be regarded as
favorable to the defense “because it shouldn’t take 30 or 45 seconds to answer a fairly
straightforward question.”
5
As the State notes, Urquhart raises no challenge to the admissibility of the suicide note
under the Rules of Evidence. Accordingly, we confine our analysis to the constitutional issue
presented.

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No. 2020AP1589-CR

applies only to statements that are testimonial in nature. State v. Reinwand, 2019
WI 25, ¶22, 385 Wis. 2d 700, 924 N.W.2d 184 (citing Michigan v. Bryant, 562
U.S. 344 (2011)); see also Ohio v. Clark, 576 U.S. 237, 245 (2015). But
statements that “are not made as substitutes for trial testimony, such as ‘casual
remark[s] to an acquaintance,’ do not raise similar concerns about reliability and
legitimacy” and therefore do not violate the Confrontation Clause by their
admission. Reinwand, 385 Wis. 2d 700, ¶23 (alteration in original; citing Bryant,
562 U.S. at 354).

¶13 Four factors guide the analysis of whether the primary purpose of a
statement is testimonial: (1) the formality of the situation in which the out-of-
court statement was produced; (2) whether the statement was given to law
enforcement; (3) the declarant’s age; and (4) the context in which the statement
was made. Id., ¶25. Whether a defendant’s Sixth Amendment Confrontation
Clause rights were violated by the admission of evidence presents a question of
constitutional law subject to de novo review. State v. Nieves, 2017 WI 69, ¶15,
376 Wis. 2d 300, 897 N.W.2d 363.

¶14 We thus examine the suicide note at issue to determine whether it
was made for the primary purpose of creating prosecutorial evidence. See State v.
Jensen, 2021 WI 27, ¶18, 396 Wis. 2d 196, 957 N.W.2d 244, cert. denied, 142
S. Ct. 1187 (2022). The suicide note was addressed “To all those who are dear.”
It began with Amanda stating:

This has been a process in the making. I have been
planning this for awhile. Dad, I wanted to prove you
wrong. I wanted to live to 25. And prove I was better. But
you caused it! You beat and raped me. That is something I
couldn’t handle[.] Why? WHY did you do that to your
own child? Is that why I was your favorite?

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No. 2020AP1589-CR

Addressing her mother specifically, Amanda wrote, “Help [Donna]. She is
[taking] my path. Save her.” Amanda then addressed her younger sisters and
friends by name, expressing love, consolation, regret, and advice. For many of
these individuals, Amanda specified which items of her personal property they
should receive. Later, Amanda added, “But Dad, what he did weighs me down[.]”
Then she stated her desires for cremation and to have her organs donated. Toward
the end of the note, Amanda wrote: “But it got to me. Here is why[.] From the
time I was 9 or 10 till I was 15 my dad raped me. I couldn[’]t forgive him[.]”
Amanda then alleged that other individuals had also abused her, and she wrote that
she “can’t handle it. My future goes nowhere. I won’t ever be anything.” The
note concluded with Amanda expressing her love for her family and friends and
again apologizing to them.

¶15 Urquhart argues the suicide note was testimonial because it was
planned,6 accusatorial, and broadly addressed “[t]o all those who are dear.”
Urquhart rejects the notion that the suicide note was “written to one private party
or close family member,” asserting that the statements were “public or at least,
semi-public.” Urquhart additionally argues that the “statements were formalized
into a written document that the trial court deemed akin to a [W]ill.”

¶16 We reject these characterizations and conclude Amanda’s suicide
note was nontestimonial.7 Contrary to Urquhart’s assertion that the note

6
Urquhart argues that the suicide note’s reference to planning applied to the writing of
the note itself. To the contrary, in our view, it is apparent from the context and circumstances
that Amanda was referring to the act of ending her life as being planned.
7
It appears to be undisputed that Amanda’s age (a twenty-year-old college student) is a
neutral factor.

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No. 2020AP1589-CR

functioned as a Will, the note was written on lined notebook paper with no
apparent regard for whether it complied with any formalities generally
accompanying the disposition of property at death. The note was deeply personal
and specifically addressed to friends and family. It was not, as Urquhart claims, a
“public” or “semi-public” accusation. The note was not directed to law
enforcement, nor is there any indication in the note that Amanda contemplated it
would find its way into law enforcement hands. It was created in a situation of
undoubtedly high stress and vulnerability when Amanda was either contemplating
ending her own life or had already made the decision to do so.8 In sum, we agree
with the State’s assessment that “[t]he letter was not a legal directive but a
heartfelt expression of pain and sorrow and, relative to Urquhart’s actions, an
expression of anger, grief, and resignation.”

¶17 Amanda’s writing in this case is easily distinguishable from the
statements in, for example, Jensen. There, the deceased wife of Mark Jensen
made statements and wrote a letter prior to her death suggesting that police should
investigate Jensen if she died. Jensen, 396 Wis. 2d 196, ¶2. She also left
voicemails for a police officer two weeks prior to her death stating that if she were
found dead, Jensen should be their first suspect. Id. These statements were
testimonial under Crawford v. Washington, 541 U.S. 36 (2004), as they were
objectively intended to be used by police in any subsequent murder
investigation—a holding our supreme court recently reaffirmed. Jensen, 396
Wis. 2d 196, ¶¶34, 36. By contrast, the note here was not intended as a substitute

8
This is further buttressed by the fact that Amanda made a tearful phone call apologizing
to her mother and sister shortly before she overdosed.

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No. 2020AP1589-CR

for in-court testimony. Urquhart’s Confrontation Clause rights were not violated
by it being received into evidence.

II. Ineffective Assistance of Counsel

¶18 Urquhart also argues his trial attorney was constitutionally
ineffective for failing to further inquire about the jury’s inability to hear a portion
of Donna’s testimony and for failing to object to testimony that the State could not
prosecute Urquhart for Amanda’s alleged sexual abuse. The Sixth Amendment
guarantees a defendant the effective assistance of counsel. State v. Savage, 2020
WI 93, ¶27, 395 Wis. 2d 1, 951 N.W.2d 838; Strickland v. Washington, 466 U.S.
668, 686-87 (1984). 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.

¶19 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. Savage, 395 Wis. 2d 1, ¶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.

¶20 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

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No. 2020AP1589-CR

constitutes constitutionally ineffective assistance. Id. If the defendant fails to
establish either prong, we need not address the other. Id.

A. Jury’s Inability to Hear Donna’s Testimony

¶21 “[I]mplied in the concept of assuring an impartial jury is the
presence of jurors who have heard all of the material testimony. The absence of
this condition, whether it is due to a hearing deficiency or a state of semi-
consciousness, could imperil the guarantees of impartiality and due process.”
State v. Hampton, 201 Wis. 2d 662, 668, 549 N.W.2d 756 (Ct. App. 1996). How
to proceed when confronted with an assertion of jury inattentiveness is a
discretionary determination by the circuit court. Id. at 670.

¶22 Here, after the jury informed the bailiff that they could not hear a
portion of Donna’s testimony, the circuit court requested that the prosecutor have
the victim-witness coordinator confer with her about the need to speak loudly and
into the microphone. This apparently addressed the matter going forward, but
Urquhart argues his trial counsel was constitutionally required to do more “to
correct the error stemming from the jury’s inability to hear the victim’s
testimony.”

¶23 We agree with the circuit court that the record fails to establish that
counsel performed deficiently in this respect. Urquhart has provided no reason for
this court to second-guess the court’s observation that Donna was speaking quietly
only “during the last few questions before the break.” The “cold” transcript before
this court is limited in terms of its ability to convey a witness’s tone and
demeanor. Nonetheless, the trial transcript supports the circuit court’s finding on
this point to the extent it establishes that the State’s questions immediately
preceding the break were deeply personal questions about Donna’s thoughts and

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No. 2020AP1589-CR

emotions whenever she was asked to talk about the assault. In response to those
questions, Donna testified that when asked about the assault, she did not want to
say anything because she “spent so long not telling, not wanting anyone to know.”
Her next reaction if pressed was to “leave and cry,” and speaking about the matter
in any setting made her “[r]eally anxious” and “scared.” It was at that point that
the prosecutor requested a break.

¶24 Donna’s questioning leading up to that moment was not quite so
invasive. Donna discussed her childhood, her family, moving from Texas to
Sheboygan, school, and her daily schedule. Donna testified that she and her sister
tried to be out of the house as much as possible because they were afraid of
Urquhart, and he had threatened them. She briefly talked about her parents’
separation, her anxiety and depression, learning of her sister’s suicide, and her
suicidal ideations and counseling. These general matters, though also personal,
clearly did not engender the same emotions as being asked to directly recall and
recount the details of a sexual assault by one’s parent.

¶25 Urquhart’s best argument is that some of Donna’s “background”
testimony arguably went to the issue of delayed reporting, which was one aspect
of the case that his defense wanted to emphasize at trial. But the testimony
Urquhart argues his trial counsel should have ensured the jury heard all occurred
on direct examination by the State. In response to questioning about why she kept
the assault to herself for so long, Donna confirmed that for years she had not told
her family, including her sisters, what Urquhart had done to her. She explained
that she believed the assault was her problem, she was scared, and she thought it
was “safer just not to tell anybody.” This testimony was largely repetitive of what
other witnesses at trial testified Donna had told them. As a result, even if we were
to assume the jury could not hear this portion of Donna’s testimony, Urquhart has

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No. 2020AP1589-CR

failed to establish that the jury did not hear all material testimony. In addition, he
has failed to demonstrate a reasonable probability of a different result, as he fails
to explain how the absence of Donna’s own explanation for delayed reporting
inured to the State’s benefit.

¶26 In sum, the trial transcript supports the circuit court’s determination
that only a few responses during Donna’s testimony were too quiet to hear, as well
as the court’s companion finding that the matters to which Donna testified during
the challenged portion of her testimony were general background matters and not
“material” testimony to the allegation against Urquhart. Following the admonition
to speak up, Donna provided extensive testimony regarding the details of the
unwanted touching and sexual intercourse. The jury had ample opportunity to
evaluate Donna’s credibility during that testimony, which spans more than thirty
transcript pages. As a result, Urquhart has failed to establish both deficient
performance and prejudice in his trial attorney’s handling of the quiet portion of
Donna’s testimony.

B. Testimony About the Lack of Prosecution for Amanda’s Allegations

¶27 Urquhart next argues his trial attorney was constitutionally
ineffective for failing to object to the testimony about law enforcement’s inability
to prosecute Urquhart for the sexual assaults alleged in Amanda’s suicide note.
He argues this testimony was irrelevant, inadmissible, and prejudicial. In
Urquhart’s view, the testimony created a substantial danger that the jury convicted
him of the present offense because it believed he had evaded prosecution for
Amanda’s sexual assault by her suicide.

¶28 The State, on the other hand, argues the testimony was both relevant
and not prejudicial because it placed the suicide note in context and explained that

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there was no follow-up investigation by police. This, in the State’s view,
“eliminated any jury speculation about whether Urquhart was charged with
sexually assaulting [Amanda].” The State therefore regards the lack of an
objection as reasonable trial strategy.

¶29 We agree with the State. It correctly observes that “Urquhart fails to
explain why it was better for his defense that the jury be kept in the dark about
what happened after [Amanda]’s accusations came to light.” Absent this
evidence, the jury might have assumed that Urquhart had been prosecuted and/or
convicted, which had the potential to be far more prejudicial than what actually
occurred. As it stands, counsel’s performance assured that the jury knew there had
been no investigation into the matter and no effort to bring charges against
Urquhart based on Amanda’s allegations.

¶30 Urquhart curiously argues the alleged prejudice stemming from trial
counsel’s failure to object was exacerbated by the lack of “a limiting instruction
pertaining to the suicide note.” The factual basis for this argument is unclear.
Again, the jury was instructed that evidence had been presented that Urquhart was
“alleged to have sexually assaulted” Amanda, and it was to consider that evidence
“only on the issues of opportunity, motive, intent, absence of mistake or accident,”
and for context or background—each of which purpose the court then specifically
described. The jury was cautioned not to consider Amanda’s allegations as
evidence of Urquhart’s character. Based upon the record here, we cannot perceive
any constitutional deficiency with respect to trial counsel’s handling of the
information that police did not investigate or prosecute Urquhart for Amanda’s
allegations of abuse.

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By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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