State v. Daniel C. Lieske

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.
March 23, 2023
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. 2021AP163-CR Cir. Ct. No. 2018CF152

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DANIEL C. LIESKE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dane County:
JILL KAROFSKY, Judge. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Fitzpatrick, 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. 2021AP163-CR

¶1 PER CURIAM. Following a jury trial, Daniel C. Lieske was
convicted of first-degree intentional homicide.1 On appeal, Lieske argues that the
circuit court erred by: (1) denying Lieske’s motion to suppress statements; and
(2) ruling that Lieske could not impeach his own witnesses as to their opinion of
the victim’s character for violence or peacefulness with specific instances of the
victim’s alleged violent conduct. For the reasons that follow, we affirm the
judgment.

BACKGROUND

¶2 The criminal complaint alleged as follows. Lieske lived with his
girlfriend, Meichelle Goss, in a duplex next door to Goss’s son and daughter. On
January 15, 2018, Goss’s son hosted a party at his house with some friends.
Shortly before midnight, Lieske and Goss went next door to break up the party.
Goss and her son drove most of the partygoers home. Due to cold weather,
partygoer Jesse Faber planned to spend the night at Goss’s son’s house. Faber
went next door with Lieske from Goss’s son’s house to the duplex that Goss and
Lieske shared. Goss later told law enforcement officers that she believed Faber
was going to sleep at her duplex after the party ended. Lieske said that Faber left
their duplex after the party while Goss and her son were driving people home.

¶3 Goss returned home and she saw Lieske pointing a gun at Faber,
who was lying on the floor. After she left the room, she heard a “weapon fired
approximately four times” and, when she returned, she saw Faber lying on his side
and “moaning,” with blood coming from him.

1
Lieske also pled guilty to one count of hiding a corpse. That conviction is not being
appealed.

2
No. 2021AP163-CR

¶4 In reviewing video surveillance from exterior video cameras in the
vicinity of Lieske’s duplex, officers saw Faber enter Lieske’s unit but did not see
Faber or any vehicle leave the property during the relevant time period. On the
video, officers saw Lieske walking out of his doorway toward the parking lot early
on the morning after the party. Lieske was slowly walking backward, dragging a
dark object about five to eight feet long. He placed the object into a dark colored
minivan.

¶5 When confronted with inconsistencies in her initial version of
events, Goss told officers that she saw Lieske shoot Faber, then Lieske told her
that Faber was “gone,” and she declined Lieske’s request to help remove Faber’s
body from their duplex. She further told police that the next morning she noticed
a 5x7 rug missing from the duplex. Goss said that after Lieske shot Faber, she
heard what sounded like rustling plastic and duct tape, and she believed that
Lieske had secured Faber’s body in plastic, rolled it up in the rug, and then put the
body in a work van. Goss said that she followed behind while Lieske drove the
van to a farm outbuilding. She said that Lieske took Faber’s body to a storage
shed in Rio. Police obtained a search warrant and found Faber’s body in Lieske’s
storage unit, wrapped in plastic and the rug. An autopsy confirmed that Faber died
from gunshot wounds to the head, torso, and left upper extremity.

¶6 The State charged Lieske with first-degree intentional homicide and
one count of hiding a corpse. By counsel, Lieske moved to suppress incriminating
statements he made to law enforcement while in custody at the Marshall Police
Department and, later, at the Dane County Jail. Following a hearing, the circuit
court suppressed the statements that Lieske made at the Marshall Police
Department, but declined to suppress Lieske’s statements to officers at the Dane
County Jail, which were made while the officers executed a search warrant of

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No. 2021AP163-CR

Lieske’s body. As to the latter, the court ruled that Lieske’s statements were not
the result of an interrogation and, therefore, did not run afoul of the requirements
of Miranda.2

¶7 Lieske proceeded to jury trial on the homicide charge. Relying on
WIS. STAT. §§ 904.04(1)(b) and 904.05(2) (2021-22),3 Lieske renewed an earlier
request seeking permission to impeach his own witnesses as to their opinion of
Faber’s character for violence or peacefulness with specific instances of Faber’s
conduct. The circuit court denied the motion. Lieske was convicted, and this
appeal follows.

DISCUSSION

A. Any error in denying Lieske’s suppression motion was harmless.

¶8 Lieske argues that the circuit court erred in denying his motion to
suppress inculpatory statements he made to Detectives Cheryl Patty and David
Hall at the Dane County Jail, while they were searching his person pursuant to a
warrant, before they read him his Miranda rights. He asserts that the detectives
knew he was under enormous emotional stress and took advantage of this by
making comments designed to elicit an incriminating response.

¶9 To safeguard a person’s constitutional right against self-
incrimination, law enforcement must provide Miranda warnings before subjecting
that person to a custodial interrogation or its functional equivalent. State v.

2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

4
No. 2021AP163-CR

Harris, 2017 WI 31, ¶¶14-15, 374 Wis. 2d 271, 892 N.W.2d 663. The “functional
equivalent” of a police interrogation that is subject to Fifth Amendment
requirements under Miranda “includes ‘any words or actions ... (other than those
normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.’” Harris,
374 Wis. 2d 271, ¶19 (quoted source omitted). Whether an officer’s words or
actions constitute the functional equivalent of an interrogation turns on an
objective foreseeability test: if an objective observer could foresee that the
officer’s conduct or words would elicit an incriminating response and “could
reasonably have had the force of a question on the suspect, then the conduct or
words would constitute interrogation.” State v. Cunningham, 144 Wis. 2d 272,
¶22, 423 N.W.2d 862 (1988).

¶10 The following facts are taken from Lieske’s suppression hearing.

¶11 Detective Patty testified as follows. After Lieske was arrested and in
custody at the Dane County Jail, Detectives Patty and Hall executed a search
warrant of Lieske’s body. They read the warrant to him, explained that the
warrant was “to recover physical evidence” by taking “photographs [of] him” to
document his physical condition and whether “there was any injury” to him, and
told him several times that they “were not there to reinitiate any kind of
conversation or any kind of questioning.” They did not read Lieske his Miranda
rights because they did not intend to ask him any questions. Although they did not
question Lieske, he “continued to make statements about what had occurred”;
thus, the detectives “activated the recording” and reiterated that they “were there
for the search warrant and that it was his choice to talk to [them] or not.”

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No. 2021AP163-CR

¶12 The following exchange took place between Lieske and the
detectives, quoted by the circuit court in its ruling:

Detective Patty: And I think I had over, I overheard you
letting him know that we don’t reinitiate conversation, um,
I just wanted, that ... one of [the] things I wanted to talk [to]
you about is that, you know, you’re free to talk to us. It’s
your decision to talk to us. Um, we have a search warrant
to execute right now, that’s why we’re back in contact with
you right now.

Mr. Lieske: Search warrant for me?

Detective Patty: For that. Just for those items that you
[that] you have right there, um, which won’t take too long.
But if you … want ... to talk to us, it’s your decision.

Mr. Lieske: Well, I want. I wanna cooperate with ya okay.

Detective Patty: Mmhmm.

Mr. Lieske: I’m trying to hold it together guys, alright. I
am struggling … it’s ... [a] different ... world for me here.
I’m trying ta, I’m trying to grasp all [of] this okay. I’m
having a little bit of difficulty with that. It’s because it was
so surreal what what what, I mean. It’s not like I went out.
It’s not like I went out and ... then ... and did something
bad. This this happened at my house. It was the craziest
frickin’ thing [I have] ever had, that that’s happened. It
was crazy. The guy was nuts. I mean, okay. I’ll do. You
can read it to me.

[Lieske asks some questions about the photographs that the
detectives were taking pursuant to the warrant.]

Detective Hall: We need to document that stuff ya know.

Mr. Lieske: So right now it’s all against me no matter what
correct? Pretty much.

Detective Hall: Our job is to gather facts so we can ... get a
picture of everything that happened.

Mr. Lieske: But not to help me.

Detective Hall: Ya know.

Mr. Lieske: Right.

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No. 2021AP163-CR

Detective Hall: Well our job is to determine the truth. It’s
not to ….

Mr. Lieske: But you don’t know the truth.

Detective Patty: The more information we have the more
complete picture we have of the facts of what happened.
So ya know that’s why we’re trying to ... document what’s
presented to us. [R.537:9-10; A-App at 5]

Mr. Lieske: [makes incriminating statements]

¶¶13 The parties agree that Lieske was in custody for purposes of
Miranda while the detectives searched him at the Dane County Jail. They also
agree that the detectives did not formally interrogate or expressly question Lieske
during the search of his person. However, the parties dispute whether the
detectives’ statements made during the search of Lieske’s person constituted the
functional equivalent of an interrogation such that Lieske’s statements should have
been suppressed.

¶14 In support of its position, the State emphasizes the circuit court’s
findings and how those findings support a legal conclusion that the detectives’
statements were not the functional equivalent of an interrogation. Lieske points to
the detectives’ knowledge that he was scared and anxious, along with statements
they made that had nothing to do with executing a search warrant and that,
according to Lieske, were designed to elicit an incriminating response.

¶15 We need not decide whether the detectives’ statements while
searching Lieske at the Dane County Jail were the functional equivalent of
interrogation because we conclude that any error in denying Lieske’s suppression
motion was harmless.

¶16 If a statement that should have been suppressed has been
erroneously admitted at trial, that admission is subject to a harmless error analysis.

7
No. 2021AP163-CR

State v. Moore, 2015 WI 54, ¶92, 363 Wis. 2d 376, 864 N.W.2d 827. An error is
harmless if “it is ‘clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error.’” State v. Harvey, 2002 WI 93, ¶49,
254 Wis. 2d 442, 647 N.W.2d 189 (citation omitted). “[T]he burden of proof is on
the beneficiary of the error,” here the State, to show that the error was harmless.
State v. Dyess, 124 Wis. 2d 525, 544 n.11, 370 N.W.2d 222 (1985).

¶17 First, and of primary import, the State at trial in its case-in-chief did
not introduce or in any way rely on Lieske’s incriminating statements to the
detectives during their execution of the search warrant.4 At trial, Detectives Patty
and Hall both testified briefly about the execution of the search warrant, but only
to establish that the pictures of Lieske did not show any injuries and that Lieske
had denied being injured; they did not testify about Lieske’s incriminating
statements. Because Lieske was convicted without the incriminating statements he
complains of, it stands to reason that even if the circuit court had granted the
suppression motion, Lieske still would have been convicted.

¶18 Second, the State introduced a great deal of evidence at trial in
support of Lieske’s conviction for first-degree intentional homicide. See, e.g.,
State v. Nelson, 2014 WI 70, ¶51, 355 Wis. 2d 722, 849 N.W.2d 317 (circuit court
order violating defendant’s right to testify was harmless error because of “the
overwhelming strength of the prosecution’s case”). The State’s evidence included
all of the physical evidence, including Faber’s body being wrapped in Lieske’s rug
and found in Lieske’s storage unit, and supported by Goss’s eyewitness testimony

4
At the suppression hearing, the prosecutor said that the State did not intend to use any
of Lieske’s custodial statements in its case-in-chief.

8
No. 2021AP163-CR

that she saw the confrontation between Lieske and Faber, heard the multiple gun
shots, and assisted Lieske in hiding Faber’s body. Trial testimony established that
Lieske confessed to Goss’s mother that he shot Faber, telling her that he “did
something bad,” that he acted in “self-defense,” and that he had been “threatened”
and “attacked.” Detectives Patty and Hall testified at trial about their observations
that Lieske had no injuries, that Lieske “denied injuries,” and that the photographs
taken of Lieske “to document his physical condition” and whether he had “any
injuries or marks” did not show any injuries. This evidence undermined the theory
of self-defense.

¶19 Lieske asserts that the circuit court’s decision denying suppression
interfered with his right to testify. More specifically, Lieske argues that any error
in denying his suppression motion was not harmless because it prevented him
from taking the stand on his own behalf. We agree with the State that this
argument is without merit. Even if the court had granted his suppression motion
as to the Dane County Jail statements, once Lieske testified, the State could have
introduced the suppressed, incriminating statements for impeachment. See State v.
Mendoza, 96 Wis. 2d 106, 118-19, 291 N.W.2d 478 (1980) (suppressed statement
may not be used in case-in-chief but may be used should defendant testify to the
contrary for impeachment). Thus, the denial of his motion to suppress did not
interfere with Lieske’s right to testify because it had no significant effect on the
ability of the prosecution to use these statements if he testified.

¶20 In sum, the State proved beyond a reasonable doubt that Lieske
committed first-degree intentional homicide through admissible evidence at trial,
not by using his incriminating statements at the Dane County Jail, which the State
did not introduce at trial and which, even if they had been suppressed, could have

9
No. 2021AP163-CR

been used to impeach Lieske. Accordingly, any error in denying Lieske’s motion
to suppress was harmless.

B. The circuit court properly exercised its discretion when it ruled that the
proffered specific acts of alleged violent conduct committed by Faber but unknown
to Lieske were inadmissible.

¶21 We review a circuit court decision to admit or exclude evidence for
an erroneous exercise of discretion, upholding such a ruling unless the court failed
to apply the proper legal standard or the record lacks reasonable support for the
ruling. State v. Jackson, 2014 WI 4, ¶43, 352 Wis. 2d 249, 841 N.W.2d 791.

¶22 From the beginning, Lieske’s theory of defense was self-defense.
As part of pursuing this theory, in a motion in limine, Lieske sought to elicit other-
acts evidence regarding acts of Faber from C.I., a witness for the State, about an
alleged incident in which C.I. brandished a pistol in front of Faber and Faber
quickly became enraged, charged at C.I., and knocked C.I. to the floor. Lieske’s
motion asserted that the other acts evidence was admissible to demonstrate that
“Faber had a peculiar and specific emotional reaction to being in the presence of a
firearm.”

¶23 In response to the State’s motion in limine and at two motion
hearings, Lieske clarified that he sought to introduce character evidence about
Faber to show that Faber was likely the first aggressor in his interactions with
Lieske. Lieske argued that “the statutes allow for some leeway in terms of
introducing character of the accused and of the victim as to—as it relates to their
reputation for violence and turbulence[.]” Lieske told the circuit court that he
intended to ask the other partygoers about Faber’s reputation for being violent
when intoxicated in order to show that Faber was the first aggressor in his
interaction with Lieske that resulted in his death.

10
No. 2021AP163-CR

¶24 The circuit court ruled that, if trial counsel laid the proper
foundation, he could ask the State’s witnesses about Faber’s reputation for
violence when drinking. The court added that the State could then impeach these
character witnesses with specific acts tending to show that Faber was peaceful.
Trial counsel responded, “That’s fair.”

¶25 Trial counsel then argued that, if Lieske’s character witnesses
testified that Faber had a reputation for peacefulness, Lieske should be able to
impeach the same witnesses with specific acts of violence under WIS. STAT.
§ 904.05. The circuit court was skeptical, stating that if Lieske’s witnesses
testified that Faber had a reputation for peacefulness, he could not then impeach
his own witnesses with specific acts of violence under § 904.05. The court
withheld ruling, stating that it would take the matter under advisement.

¶26 At the next hearing, the circuit court continued ruling on pending
pretrial motions, explaining that although the court wanted Lieske to be able to
conduct his defense how he pleased, it was “concerned about having a trial within
a trial.” When it came to Lieske’s motion to admit specific instances of Faber’s
conduct as part of the impeachment of witnesses, the court began its ruling by
going through the various statutes regarding the admissibility of character
evidence. After noting that Lieske did not seek to admit Faber’s alleged violent
conduct as other-acts testimony, the court ruled that it would admit reputation and
opinion testimony regarding whether Faber was violent when intoxicated.
However, citing WIS. STAT. § 904.05(1),5 the court ruled that whether a witness
5
WISCONSIN STAT. § 904.05(1) states: “(1) Reputation or opinion. In all cases in
which evidence of character or a trait of character of a person is admissible, proof may be made
by testimony as to reputation or by testimony in the form of an opinion. On cross-examination,
inquiry is allowable into relevant specific instances of conduct.”

11
No. 2021AP163-CR

could be impeached regarding specific instances of conduct by Faber depended on
which side called that witness. The court specified that Lieske could impeach the
State’s witnesses with particular acts of Faber’s violent conduct “[o]n cross-
examination,” but Lieske could not impeach his own witnesses if they testified on
direct that Faber had a peaceful character.

¶27 Lieske raised the issue one more time, on the second day of trial.
Before opening statements, Lieske made an offer of proof regarding alleged prior
acts of violent conduct by Faber. Counsel for Lieske admitted that, at the time of
the charged homicide, Lieske himself was personally unaware of any specific
instances of Faber’s violence, but counsel explained that Lieske sought to
introduce this as impeachment evidence in the event that his own witnesses, in
answering whether Faber had a reputation for violence, testified that Faber had a
peaceful reputation.

¶28 The circuit court reiterated that it would allow Lieske to introduce
testimony about Faber’s reputation for violence or peacefulness, but ruled that any
“specific instances of conduct” by Faber were inadmissible because they were not
known to Lieske at the time of the homicide. In so ruling, the court relied on
McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973). The McMorris court
explained that in a homicide trial in which self-defense is adequately raised,
evidence of “the turbulent and dangerous character or reputation” of the victim is
relevant for two distinct purposes: (1) determining whether the defendant or the
victim was the aggressor; and (2) judging the reasonableness of the defendant’s
apprehension of danger when the incident occurred. Id. at 149. “Admissibility is
not automatic,” and McMorris evidence “may not be used to support an inference
about the victim’s actual conduct during the incident.” State v. Head, 2002 WI
99, ¶128, 255 Wis. 2d 194, 648 N.W.2d 413. McMorris evidence is admissible

12
No. 2021AP163-CR

only with respect to the defendant’s state of mind, to the extent that it “‘bear[s] on
the reasonableness of the defendant’s apprehension of danger at the time of the
incident.’” Head, 255 Wis. 2d 194, ¶128, (quoting McMorris, 58 Wis. 2d at
149).6

¶29 We agree with the State that the circuit court properly exercised its
discretion and applied controlling law to allow Lieske to introduce evidence of
Faber’s reputation for violence, but not evidence of any specific violent acts by
Faber that Lieske was not aware of at the time of the crime. Lieske has not
provided us with persuasive authority for the proposition that specific violent acts
by Faber, of which Lieske was unaware, are admissible under McMorris and its
progeny. Lieske has similarly not provided us with persuasive authority to support
the proposition that the McMorris rule does not apply to “impeachment evidence.”
Lieske points to WIS. STAT. § 904.05(2), which provides, “In cases in which
character or a trait of character of a person is an essential element of a charge,
claim, or defense, proof may also be made of specific instances of the person’s
conduct.” However, as explained above, our supreme court in McMorris and
subsequent cases has limited this proof to specific instances known to the
defendant at the time of the crime.

¶30 Finally, we reject Lieske’s argument that the circuit court’s
evidentiary ruling relying on the McMorris rule interfered with his constitutional

6
Subsequent cases have adhered to McMorris’s holding that only specific acts of
violence known to the defendant at the time of the incident are relevant and admissible. See, e.g.,
State v. Jackson, 2014 WI 4, ¶82, 352 Wis. 2d 249, 841 N.W.2d 791; State v. Boykins, 119
Wis. 2d 272, 350 N.W.2d 710 (Ct. App. 1984). The circuit court discussed all three cases in
ruling that Lieske could not ask witnesses about specific acts of Faber’s violence if Lieske
himself was unaware of the specific acts at the time he shot Faber.

13
No. 2021AP163-CR

due process right to present a defense. The circuit court allowed Lieske to argue
and introduce evidence relevant to Lieske’s theory of self-defense, including
evidence of Faber’s reputation for violence, and it instructed the jury on self-
defense. These rulings allowed Lieske to place his claim of self-defense squarely
before the jury.

¶31 In sum, the record shows that the circuit court applied controlling
law to the facts of record and explained its reasoning to reach a conclusion that a
reasonable court could reach. See McCleary v. State, 49 Wis. 2d 263, 277, 182
N.W.2d 512 (1971) (exercise of discretion depends “on facts that are of record …
and a conclusion based on a logical rationale founded upon proper legal
standards”). Accordingly, Lieske fails to show that the court erroneously
exercised its discretion in excluding evidence of specific instances of violent
conduct by Faber unknown to Lieske at the time of the crime.

By the Court.—Judgment affirmed.

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

14