State v. Brian L. Devroy

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, 2021
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. 2019AP1280 Cir. Ct. No. 2005CF6364

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRIAN L. DEVROY,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MARK A. SANDERS, Judge. Affirmed.

Before Blanchard, Davis and White, 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. 2019AP1280

¶1 PER CURIAM. Brian L. Devroy, pro se, appeals an order denying
his motion seeking postconviction relief pursuant to WIS. STAT. § 974.06 (2019-
20).1 He alleges that the circuit court erroneously rejected his claims of ineffective
assistance of counsel and newly discovered evidence. He also alleges that the
circuit court erroneously permitted the State to file a late response to his
postconviction motion. We conclude that Devroy’s claims of ineffective
assistance of counsel are procedurally barred, he fails to satisfy the five-prong test
required to obtain relief based on alleged newly discovered evidence, and the
circuit court properly exercised its discretion in permitting a late filing.
Accordingly, we affirm.

Background

¶2 The State charged Devroy with first-degree intentional homicide in
the 2005 stabbing death of his roommate. In 2009, the case proceeded to a jury
trial at which Devroy was represented by counsel. The jury found Devroy guilty
as charged. Devroy, represented by successor counsel, pursued a postconviction
motion alleging that his trial counsel was ineffective in numerous ways. The
circuit court denied relief. He appealed and we affirmed, rejecting his claims of
ineffective assistance of trial counsel and his challenge to an evidentiary ruling.
See State v. Devroy (Devroy I), No. 2011AP1704-CR, unpublished slip op. (WI
App June 19, 2012). Devroy next filed a postconviction motion pro se seeking
postconviction discovery. The circuit court denied the motion on August 13,
2018. Devroy did not appeal.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2019AP1280

¶3 Devroy, again pro se, then filed the postconviction motion
underlying the instant appeal. Pursuant to WIS. STAT. § 974.06, he alleged that his
trial counsel was ineffective for failing to pursue certain claims, his postconviction
counsel was ineffective in turn for failing to challenge trial counsel’s effectiveness
in regard to those claims, and that he has newly discovered evidence regarding the
detective who obtained one of his custodial statements. The circuit court denied
relief, and he appeals. Additional facts are discussed as warranted by our analysis.

Discussion

¶4 Devroy first argues that the circuit court should not have accepted
the State’s response to his WIS. STAT. § 974.06 motion because the State moved to
extend its briefing deadline after it had lapsed. We reject this argument.

¶5 The circuit court has broad discretion to extend the time for
performing an act after the deadline has passed. See State v. Elliott, 203 Wis. 2d
95, 106, 551 N.W.2d 850 (Ct. App 1996). We will affirm a circuit court’s
exercise of discretion if the decision has a reasonable basis and the circuit court
reached its conclusion in accordance with accepted legal standards and the facts of
record. See State v. LaCount, 2008 WI 59, ¶15, 310 Wis. 2d 85, 750 N.W.2d 780.
We search the record for reasons to uphold a circuit court’s exercise of discretion.
See State v. Thiel, 2004 WI App 225, ¶26, 277 Wis. 2d 698, 691 N.W.2d 388. In
doing so here, we keep in mind that “the law prefers, whenever reasonably
possible, to afford litigants a day in court.” See Dugenske v. Dugenske, 80
Wis. 2d 64, 68, 257 N.W.2d 865 (1977).

¶6 In this case, the State sought an extension of its briefing deadline
eight days after the deadline had passed. The State thus acted promptly, a material
factor in assessing whether to excuse delay. See Laska v. Steinpreis, 69 Wis. 2d

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No. 2019AP1280

307, 324-25, 231 N.W.2d 196 (1975). To support the extension request, the State
cited the press of other business. In considering the request, the circuit court noted
the State’s competing obligations and found that interests of fairness warranted
granting relief. The record thus shows that the circuit court conducted an
appropriate inquiry and reached a reasonable conclusion. Accordingly, we reject
Devroy’s claim that the circuit court erred by retroactively extending the State’s
briefing deadline.2

¶7 Devroy next contends that the circuit court erred by denying him a
hearing on his claims that his trial counsel was ineffective for: (1) not objecting
during the prosecutor’s closing argument when the prosecutor allegedly vouched
for the credibility of the State’s witnesses; and (2) not raising certain arguments in
support of Devroy’s efforts to obtain the investigating officers’ memo books. We
conclude that the circuit court did not err because these claims are procedurally
barred.

¶8 Although WIS. STAT. § 974.06 permits prisoners to raise
postconviction claims after the time for a direct appeal has passed, the statute
contains a limitation. Pursuant to § 974.06(4), a prisoner who wishes to pursue a
second or subsequent postconviction motion must demonstrate a sufficient reason
for failing to raise or adequately address the issues in previous postconviction

2
Devroy also argues that the State’s circuit court brief failed to address one of his
claims, and therefore the State forfeited the right to dispute this claim on appeal. The State
responds that Devroy mischaracterizes its submission and that it did in fact address Devroy’s
various claims. Assuming for the sake of argument that the State did not address one of Devroy’s
claims in the circuit court proceedings, the State is not foreclosed from responding now. “‘[A]n
appellate court may sustain a lower court’s holding on a theory or on reasoning not presented to
the lower court.’” Bauer v. Murphy, 191 Wis. 2d 517, 526, 530 N.W.2d 1 (Ct. App. 1995)
(citation and emphasis omitted).

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No. 2019AP1280

proceedings. See State v. Escalona-Naranjo, 185 Wis. 2d 168, 184-85, 517
N.W.2d 157 (1994). Here, Devroy claims that his postconviction counsel’s
ineffective assistance constitutes a sufficient reason for his failure to challenge
trial counsel’s errors in his first postconviction motion. Assuming without
deciding that postconviction counsel was ineffective for failing to include
Devroy’s current claims in the original postconviction motion, this is insufficient
to explain why Devroy failed to raise his current claims when he litigated his first
pro se postconviction motion for postconviction discovery.

¶9 As we have explained, “[t]here is no exception to the Escalona-
Naranjo rule for postconviction discovery motions.” See State v. Kletzien, 2011
WI App 22, ¶2, 331 Wis. 2d 640, 794 N.W.2d 920. Accordingly, Devroy could
not proceed with his current claims unless he first demonstrated a sufficient reason
for failing to raise them in the postconviction motion that he filed on his own
behalf seeking postconviction discovery. Devroy offered no reason, let alone a
sufficient reason, for that failure. Accordingly, his allegations of trial counsel’s
ineffectiveness are barred, and the circuit court correctly rejected them.

¶10 Last, we consider whether the circuit court erroneously denied the
claim that Devroy has newly discovered evidence warranting a new trial.
Devroy’s claim of newly discovered evidence is related to the theory that he
pursued throughout the trial and in the postconviction litigation underlying
Devroy I. In those proceedings, he contended that he should be permitted to
introduce evidence that Detective Carl Buschmann, who obtained one of Devroy’s
three confessions, used high-pressure tactics in an unrelated case to obtain false
evidence against Chaunte Ott, whose wrongful conviction was subsequently
overturned. See Devroy I, No. 2011AP1704-CR, ¶3 & n.1; see also State v. Ott,
No. 2008AP34, unpublished slip op. (WI App Dec. 23, 2008).

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No. 2019AP1280

¶11 As set forth in Devroy I, Ott was convicted of murdering Jessica
Payne after a trial in which the State relied primarily on testimony from Sam
Hadaway and Richard Gwin, both of whom gave statements implicating Ott. See
Devroy I, No. 2011AP1704-CR, ¶10. Some years after Ott’s conviction, DNA
evidence excluded all three men as the source of the DNA found on Payne’s body,
and the State dropped the charges against Ott when further analysis revealed that
the DNA matched a different man. See id. Hadaway then confessed that he had
falsely implicated Ott due to pressure from Buschmann who, according to
Hadaway, provided him with the details of the murder and threatened to blame
Hadaway for the murder if he did not implicate Ott. See id.

¶12 At Devroy’s trial, Devroy’s counsel sought to cross-examine
Buschmann about his role in the Payne homicide investigation, but the trial court
did not permit the inquiry. On direct appeal, Devroy contended that his trial
counsel was ineffective in pursuit of evidence concerning Buschmann’s role in
that investigation. We rejected Devroy’s claim, concluding that evidence of
Buschmann’s involvement in the investigation constituted inadmissible other acts
evidence under State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30
(1998). See Devroy I, No. 2011AP1704-CR, ¶12. We explained that, assuming
the evidence was offered for a permissible purpose and was relevant, thereby
satisfying the first two steps of the Sullivan analysis, the evidence nonetheless
failed to satisfy the final step because “the probative value [of the evidence] is
substantially outweighed by various other factors.” See Devroy I,
No. 2011AP1704-CR, ¶¶13-14. Specifically, we said:

First, Buschmann’s involvement in the Ott case occurred
ten years prior to his involvement in Devroy’s
investigation. “The probative value of other-acts evidence
depends partially upon its nearness in time, place, and
circumstance to the alleged crime or element sought to be

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No. 2019AP1280

proved.” State v. Fishnick, 127 Wis. 2d 247, 261, 378
N.W.2d 272 (1985). That Buschmann conducted the
interrogations in both the Ott case and the case at bar does
not, by itself, offset the ten year gap in time between the
interrogations. Further, in order for the jury to have the
opportunity to draw similarities between Buschmann’s
interrogation methods in the Ott case and in the case at bar,
the jury would have to hear from the primary witnesses in
the Ott case—Hadaway and Gwin—and Buschmann
himself would have to testify as to his methods. Not only
would such testimony involve the witnesses’ attempts at
recalling events from 1995, a time when interrogations
were not recorded, it would also create a trial within a trial
as the defense would have to show that Hadaway was both
pressured and that his statement was false. Proving that
Hadaway’s statement was false would require introducing
proof of Ott’s innocence and Ellis’s guilt. Essentially,
multiple aspects of the Ott case would have to be relitigated
within Devroy’s case, running the risk of confusing the
jury. Additionally, at this point, only Hadaway would
potentially be available to testify, assuming he is found, as
Gwin has since died.

Id., ¶14. Accordingly, we concluded that the probative value of the evidence was
substantially outweighed by competing concerns, including the danger of unfair
prejudice, confusion of the issues, misleading the jury, undue delay, and waste of
time. See id., ¶¶13-14.

¶13 Devroy now claims that he has newly discovered evidence in the
form of a decision by this court in State v. Hadaway, 2018 WI App 59, 384
Wis. 2d 185, 918 N.W.2d 85. There, we granted Hadaway’s petition for a writ of
coram nobis and directed the circuit court to permit Hadaway to withdraw his
guilty plea to attempted robbery, a plea that arose out of allegations that he and Ott
attempted to rob Payne before Ott sexually assaulted and killed her. See id., ¶¶1,
8-10.

¶14 We conclude that Devroy’s newly discovered evidence claim is not
procedurally barred by Escalona-Naranjo. We released our opinion in Hadaway

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No. 2019AP1280

on August 14, 2018, after Devroy litigated his motion for postconviction
discovery, and he therefore could not have raised his newly discovered evidence
claim in that earlier motion. We turn to the substance of his claim.

¶15 “The decision to grant or deny a motion for a new trial based on
newly discovered evidence is committed to the circuit court’s discretion.” State v.
Avery, 2013 WI 13, ¶22, 345 Wis. 2d 407, 826 N.W.2d 60. We treat such
decisions with deference. See State v. McCallum, 208 Wis. 2d 463, 480, 561
N.W.2d 707 (1997).

¶16 A defendant seeking a new trial based on newly discovered evidence
“‘must prove, by clear and convincing evidence, that: (1) the evidence was
discovered after conviction; (2) the defendant was not negligent in seeking
evidence; (3) the evidence is material to an issue in the case; and (4) the evidence
is not merely cumulative.’” State v. Armstrong, 2005 WI 119, ¶161, 283 Wis. 2d
639, 700 N.W.2d 98 (citation omitted). If the defendant satisfies these
requirements, “‘the circuit court must determine whether a reasonable probability
exists that a different result would be reached in a [new] trial.’” Id. (citation
omitted). “A reasonable probability of a different result exists if there is a
reasonable probability that a jury, looking at both the old and the new evidence,
would have a reasonable doubt as to the defendant’s guilt.” Avery, 345 Wis. 2d
407, ¶25. A convicted person must satisfy all five requirements to obtain relief.
See State v. Kaster, 148 Wis. 2d 789, 801, 436 N.W.2d 891 (Ct. App. 1989).

¶17 Like the circuit court, we focus primarily on the third requirement of
the newly discovered evidence test, specifically, materiality. We agree with the
circuit court that Devroy’s proposed new evidence is not material.

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No. 2019AP1280

¶18 Devroy seeks to show a jury that it should disbelieve any confession
about a homicide that he gave to Buschmann because: (1) Hadaway gave a
statement to Buschmann in connection with a different homicide; (2) physical
evidence subsequently refuted Hadaway’s statement; and (3) Hadaway then
claimed that he gave the statement because Buschmann used coercive tactics.3
None of that information, however, is new. Devroy argued throughout his trial,
his first postconviction motion, and his first appeal, that Hadaway gave a false
statement to Buschmann only because Buschmann used unreasonable and coercive
interrogation techniques. See Devroy I, No. 2011AP1704-CR, ¶¶3, 6-15. The
only information that Devroy offers now that did not exist at the time of trial is the
Hadaway decision that permitted Hadaway to withdraw his guilty plea to
attempted robbery. Hadaway’s victory, however, is not material to any issue in
Devroy’s prosecution or defense. This court’s conclusion that Hadaway is entitled
to withdraw his guilty plea is merely a procedural step in Hadaway’s case. That
step adds nothing substantive to Devroy’s allegations that Buschmann used
coercive tactics in questioning suspects.

¶19 Devroy appears to argue that our decision in Hadaway is material
because it refutes our conclusion in Devroy I that the probative value of
information about Buschmann’s interrogation techniques was substantially
outweighed by other considerations. Devroy reminds us that we concluded that
evidence about Buschmann’s investigation of Payne’s homicide was unduly
prejudicial and time consuming because: (1) the witnesses would be required to

3
Devroy argues: “[t]his newly discovered evidence goes to the heart of the detective’s
credibility. What Hadaway says he experienced at the hands of [] Buschmann is also what
Devroy says happened to him. Both say that [] Buschmann wrote statements that they signed
after prolonged harassment.”

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No. 2019AP1280

recall events from 1995; (2) the testimony would create a trial within a trial to
resolve questions about an unrelated murder; and (3) only Hadaway would be
available, “assuming he is found,” because Gwin has died. See Devroy I,
No. 2011AP1704-CR, ¶14. According to Devroy, those determinations are no
longer on point because the recent Hadaway decision shows that Hadaway can be
found and that he both recalls and can testify about the events related to the Payne
homicide investigation. But Devroy misunderstands our decision in Devroy I. As
our opinion expressly states, we reached our conclusions in that case assuming
that Hadaway could be found and that Devroy would seek to present evidence at
trial about the pressure from Buschmann that Hadaway claims to have
experienced. We determined, however, that this scenario would run a substantial
risk of confusing the jury and wasting time. Our decision in Hadaway does not
affect this analysis in any way.

¶20 Moreover, Devroy seeks a new trial so that he may present evidence
about Buschmann’s interrogation of Hadaway in the Payne investigation, but we
determined in Devroy I that Buschmann’s interrogation techniques in a 1995
murder investigation are inadmissible other-acts evidence pursuant to Sullivan.
See Devroy I, No. 2011AP1704-CR, ¶¶14-15. Devroy cannot relitigate that
determination by reframing his argument as a claim of newly discovered evidence.
See State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991)
(explaining that “[a] matter once litigated may not be relitigated in a subsequent
postconviction proceeding no matter how artfully the defendant may rephrase the
issue”). Accordingly, because the evidence of Buschmann’s interrogation
techniques in the Payne investigation is inadmissible under Sullivan, the evidence
is not material to Devroy’s guilt or innocence. See State v. Vollbrecht, 2012 WI
App 90, ¶25, 344 Wis. 2d 69, 820 N.W.2d 443.

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No. 2019AP1280

¶21 Devroy’s failure to satisfy the third element of the test disposes of
his claim. See Kaster, 148 Wis. 2d at 801. For the sake of completeness,
however, we briefly address the circuit court’s conclusion that, even if Devroy
were to satisfy the other elements of the newly discovered evidence test, he cannot
satisfy the final element because no reasonable probability exists that the jury,
looking at the new evidence and the old evidence, would have reached a different
verdict. This component of the analysis presents a question of law, see
Vollbrecht, 344 Wis. 2d 69, ¶18, and we review such questions de novo, see State
v. Robertson, 2003 WI App 84, ¶24, 263 Wis. 2d 349, 661 N.W.2d 105. We agree
with the circuit court.

¶22 As we explained in Devroy I, Detective Scott Gastrow testified that
“Devroy confessed, independent of his confession to Buschmann, that [Devroy]
heard voices telling him to kill” the victim. See Devroy I, No. 2011AP1704-CR,
¶19. Gastrow then prepared a written confession that Devroy signed, admitting
that he committed the homicide. Devroy’s deliberate and considered decision to
sign the confession was confirmed by his initials on the document in several
places where he requested changes to it. See id. An inmate, Jonathan Hogans,
testified that he remembered Devroy “saying ‘something along the lines of doing
something to his best friend.’” Id., ¶¶4, 21. Hogans also recalled talking to a
detective about Devroy’s statements. See id., ¶21. Detective Louis Johnson then
testified that he spoke to Hogans, who said “that Devroy confessed to stabbing his
best friend because he was mad at him and because voices told him to do it.” Id.,
¶22.

¶23 Thus, the evidence against Devroy included three independent
confessions, only one of which involved Buschmann. Accordingly, we agree with
the State that information about Buschmann’s interrogation techniques in the

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No. 2019AP1280

Payne investigation would at most suggest that Buschmann used pressure when
Devroy gave one of several truthful confessions. As a matter of law, such
evidence is not likely to lead to an acquittal. See Vollbrecht, 344 Wis. 2d 69, ¶18.
For all the foregoing reasons, we affirm.

By the Court.—Order affirmed.

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

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