State v. Patrick D. Bruss

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.
October 26, 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. 2021AP1261-CR Cir. Ct. No. 2018CF567

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PATRICK D. BRUSS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County:
BRAD SCHIMEL, 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).

¶1 PER CURIAM. Patrick D. Bruss appeals a judgment of conviction
for first-degree reckless homicide as party to a crime in connection with the
No. 2021AP1261-CR

overdose death of Warren Stenglein and for obstruction of an officer. He argues
the evidence was insufficient to support his conviction for reckless homicide. He
also argues the circuit court erroneously exercised its discretion when it denied
Bruss’s motion to set aside the verdicts based on a juror’s potential exposure to
extraneous information regarding Bruss’s criminal history. We reject Bruss’s
arguments and affirm.

BACKGROUND

¶2 Stenglein’s father found his body on the evening of
December 15, 2015. Nearby was a syringe that tested positive for heroin and
fentanyl. The parties stipulated that Stenglein had died of acute mixed drug
intoxication involving fentanyl, cocaine, and heroin. Bruss was implicated in the
delivery of the drugs that killed Stenglein based on text messages found on the
victim’s cell phone. Following a jury trial, Bruss was convicted of first-degree
reckless homicide as party to a crime and of resisting or obstructing an officer,
both as a repeater.1

¶3 Before sentencing, Bruss filed a motion for a new trial. As a basis,
Bruss alleged he had a private investigator speak with Juror 12, who had caused
earlier verdicts to be rejected after she expressed reservations during polling.
During the conversation with the private investigator, Juror 12 claimed that
Juror 15 had made a statement about having done his own research into Bruss’s
criminal record. Juror 15’s statement was alleged to have been made after the jury
had delivered its final verdicts, while the jurors were exiting the courtroom.

1
The obstruction conviction is at issue only regarding Bruss’s assertion that he is
entitled to a new trial by virtue of the use of extraneous information by a juror.

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¶4 During an evidentiary hearing, Juror 12 claimed that Juror 19, the
foreperson, had also overheard Juror 15’s statement. Juror 19 denied hearing the
statement, and Juror 15 denied making it. Juror 15 also denied looking up Bruss’s
criminal record during the trial. The court found Jurors 15 and 19 more credible,
and it determined Juror 12 was most likely “conflating things she knew during the
course of the deliberations, that she learned after the deliberations in the jury
room, with things that came after all of this.” Bruss now appeals his conviction,
asserting the evidence was insufficient to support his reckless homicide conviction
and the circuit court erred by denying his motion for a new trial.

DISCUSSION

I. Sufficiency of the Evidence

¶5 Bruss first challenges whether the evidence was sufficient to convict
him of the reckless homicide offense. Reckless homicide by delivery of a
controlled substance is proscribed by WIS. STAT. § 940.02(2)(a) (2019-20),2 and
requires the State to prove, as relevant here, the following four elements: (1) that
Bruss delivered a substance; (2) that the substance contained the controlled
substances heroin and fentanyl; (3) that Bruss knew or believed the substance
consisted of heroin and fentanyl; and (4) that Stenglein used the substance
delivered by Bruss and died as a result of that use. See WIS JI—CRIMINAL 1021.
Bruss was also charged as a party to the crime, which means he could be held
criminally liable if he directly committed the crime, intentionally aided and

2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP1261-CR

abetted the commission of the crime, or was a party to a conspiracy to commit the
crime. See WIS. STAT. § 939.05(2).

¶6 When we review a conviction to determine whether it was based on
sufficient evidence, we give deference to the jury’s determination and view the
evidence in the light most favorable to the State, including reasonable inferences
from that evidence. State v. Coughlin, 2022 WI 43, ¶24, 402 Wis. 2d 107, 975
N.W.2d 179. A defendant bears the heavy burden of showing that the totality of
the evidence could not have reasonably supported a finding of guilt. Id., ¶25.
“We will not substitute our own judgment for that of the jury unless the evidence
is so lacking in probative value and force that no reasonable jury could have
concluded, beyond a reasonable doubt, that the defendant was guilty.” Id., ¶24.

¶7 Bruss has not met the heavy burden placed upon him. Bruss
acknowledges that the evidence showed he helped Stenglein acquire heroin by
driving him to the point of purchase in Milwaukee. Bruss argues that, because
there was “no evidence of exactly what happened once Bruss and Stenglein got to
Milwaukee,” there was no evidence that he was party to the crime of delivery of
the drugs, as opposed to Stenglein’s mere possession of the drugs.

¶8 Contrary to Bruss’s argument, the trial evidence supported
reasonable inferences establishing aider-and-abettor liability for the delivery
offense. The text messages between Bruss and Stenglein show that in the days
preceding Stenglein’s death, Bruss represented to Stenglein that he could get him
good “flame”—a.k.a. heroin—from someone else. On the morning of Stenglein’s
death, Stenglein and Bruss exchanged text messages that suggested Bruss would
pick up Stenglein at around 7:30 a.m. and “go down” somewhere. About three
hours after Bruss was to pick up Stenglein, Stenglein sent a text to Bruss

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No. 2021AP1261-CR

stating: “holy shit dude. That shit is good. Are you doing all right, bro.” That
was his final outgoing message.

¶9 Between 8:00 a.m. and 10:00 a.m. on the morning of Stenglein’s
death, Bruss had multiple communications with individuals identified in his phone
contacts as “Pedro Pizza,” “P,” and “D boy.” Dana Lewein, a former drug user
who admitted that she and Bruss previously purchased heroin together, testified
that their sources in Milwaukee were named “Pedro,” “P,” and “D.”3 Based on the
evidence, the jury could reasonably infer that Bruss arranged to meet one or more
of his dealers, drove with Stenglein to the point of purchase in Milwaukee,
purchased the heroin, and delivered it to Stenglein. Contrary to Bruss’s argument,
it was not necessary for the State to present direct evidence, by witness testimony
or another means, that the heroin entered Bruss’s hands before it entered
Stenglein’s.

II. Juror Misconduct

¶10 We review a circuit court’s decision resolving a motion for a new
trial for an erroneous exercise of discretion. State v. Eison, 194 Wis. 2d 160, 171,
533 N.W.2d 738 (1995). A circuit court must decide underlying issues of both
fact and law when it is alleged that the jury considered extraneous information.
Id. We will affirm the court’s decision “when the record shows that the circuit
court looked to and considered the facts of the case and arrived at a conclusion
consistent with applicable law.” Id. We review a challenge to the circuit court’s

3
Bruss initially implicated Lewein as the driver, but Lewein denied that she was with
Bruss and Stenglein, and her cell-phone records showed she never left Pewaukee Lake during the
relevant time frame.

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No. 2021AP1261-CR

factfinding using the “clearly erroneous” standard of review. Hennessy v. Wells
Fargo Bank, N.A., 2022 WI 2, ¶38, 400 Wis. 2d 50, 968 N.W.2d 684.

¶11 Here, Bruss argues the circuit court’s finding that Jurors 15 and 19
were more credible than Juror 12 is not entitled to deferential review under the
clearly erroneous standard. He observes that WIS. STAT. § 906.06(2) precludes a
juror from testifying about matters or statements occurring during the course of
deliberations or about the juror’s state of mind or reasoning, except that “a juror
may testify on the question whether extraneous prejudicial information was
improperly brought to the jury’s attention or whether any outside influence was
improperly brought to bear upon any juror.” Bruss contends this rule was violated
in two ways; first, because the court “wholly failed to make any rulings
concerning the competency of the testimony that was presented at the motion
hearing,” and second, because the court stated as part of its reasoning for denying
Bruss’s motion that it was surprised to learn that Juror 15 “was one of those who
was a little more on the fence” about Bruss’s guilt.4

¶12 We reject both aspects of Bruss’s argument. First, Bruss cites no
authority supporting the proposition that the circuit court must make explicit
competency determinations under WIS. STAT. § 906.06(2). The fact that the
circuit court held an evidentiary hearing on Bruss’s motion satisfies us that the
court regarded the foundational criteria set forth in § 906.06(2) as being met—that
is, that a juror alleged extraneous prejudicial information had been brought to the
jury’s attention and was not merely providing information about the jury’s

4
Bruss does not argue that the circuit court’s factual findings were otherwise clearly
erroneous.

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No. 2021AP1261-CR

deliberations. We search the record for reasons to sustain the circuit court’s
exercise of discretion, so this implied finding is sufficient. See State v. LaCount,
2008 WI 59, ¶15, 310 Wis. 2d 85, 750 N.W.2d 780.

¶13 The more difficult question is whether the circuit court erred when it
mentioned Juror 15’s testimony about his perceptions regarding the strength of the
State’s case and matters that occurred during deliberations. Such testimony was,
as Bruss points out, likely incompetent under WIS. STAT. § 906.06(2). However,
the record demonstrates that the testimony was elicited by Bruss himself.
Accordingly, we conclude any error on the circuit court’s part was invited by
Bruss’s decision to question the witness on matters to which he could not testify.
See State v. Slater, 2021 WI App 88, ¶40, 400 Wis. 2d 93, 968 N.W.2d 740.

¶14 Juror 15 was the State’s witness. The party alleging the existence of
extraneous prejudicial information has the burden of satisfying all the elements of
that claim, including juror competency. State v. Messelt, 185 Wis. 2d 254, 275,
518 N.W.2d 232 (1994); State v. Searcy, 2006 WI App 8, ¶32, 288 Wis. 2d 804,
709 N.W.2d 497. The defense rested at the beginning of the second evidentiary
hearing, having presented Juror 12 as its only witness. When questioning Juror 15
on direct examination, the State confined its inquiries to the relevant question of
whether a juror had independently researched Bruss’s criminal record as Juror 12
alleged.

¶15 All of the arguably improper testimony occurred during the cross-
examination, when the defense questioned Juror 15 about whether he recalled
“that the jury reached a verdict and then had to go back and reach a verdict again.”
When Juror 15 responded affirmatively, Bruss then asked, “Do you recall whether
or not anybody was frustrated based upon the fact that you needed to continue to

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No. 2021AP1261-CR

deliberate?” That question prompted a narrative statement of considerable length
from Juror 15, who recounted that he and several other jurors had not been in
favor of convicting Bruss initially; that they had been persuaded upon being
reminded of their obligation to follow the law; and that it was an “uncomfortable”
situation when Juror 12 dissented during the polling, but he empathized with her.

¶16 The circuit court acknowledged it was in the “unusual position with
a jury trial [of] having to make a credibility determination.” The credibility issue
could not have been more stark: Juror 12 claimed Juror 15 had made a statement
about researching Bruss’s criminal record, while Juror 15 denied making the
statement or doing any outside research. The circuit court reasonably resolved
that credibility issue using the testimony before it, and was in fact urged to do so
by Bruss, who argued that he feared Jurors 15 and 19 “have a reason to lie today in
that they are very frustrated by the jury deliberation process.” The fact that Bruss
elicited a significant amount of arguably incompetent testimony during the cross-
examination—and then actively invited the circuit court to rely on it in
determining who was telling the truth—persuades us that no error can be ascribed
to the court’s reasoning, to whatever extent that reasoning may have been affected
by the arguably improper testimony elicited by the defense.

By the Court.—Judgment affirmed.

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

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