June 11, 2024 – It was not prosecutorial misconduct for a prosecutor to ask a probation agent to stall a criminal defendant on the day of trial while the prosecutor attempted to locate a witness, the Wisconsin Court of Appeals (District I) has a ruled in an unpublished opinion.

In State v. Dorgay, 2021AP954 (May 29, 2024), the Court of Appeals also held that an ethics complaint the defendant filed against his attorney did not pose a conflict of interest.

In July 2014, Robert Dorgay assaulted his girlfriend Amber in a hotel room in Milwaukee. Dorgay beat, choked, and restrained Amber and forced her to write a letter recanting a report she made to the police.

In the letter, Amber accused Dorgay of beating her while the pair were on a camping trip in Tomahawk.

In 2016, the Milwaukee County District Attorney charged Dorgay with several crimes relating to the hotel room assault.

Motions at the Eleventh Hour

One day before the trial began, Dorgay’s attorney, Nathan Opland-Dobs, moved to withdraw.

Opland-Dobbs moved to withdraw because Dorgay had filed a complaint against him with the Office of Lawyer Regulation. Opland-Dobs was concerned that given the complaint, his continued representation of Dorgay posed a conflict of interest.

On the same day, Dorgay asked the court for an opportunity to show that Opland-Dobs had a conflict of interest. The circuit court denied Opland-Dobs’ motion and Dorgay’s request.

On the morning of the second day of trial, the prosecutor called Dorgay’s probation agent and told the agent to stall Dorgay, who’d shown up for an appointment, until the police could verify Amber’s whereabouts.

The jury found Robert Dorgay guilty of strangulation and suffocation, battery, intimidation of a victim, false imprisonment, and second-degree sexual assault.

Dorgay filed a motion for a new trial under Wis. Stat. section 809.30. The Milwaukee County Circuit Court denied the motion, and Dorgay appealed.

Prosecutorial Misconduct?

Dorgay based his appeal on the following:

• prosecutorial misconduct;

• denial of his attorney’s motion to withdraw; and

• ineffective assistance of counsel.

Dorgay argued that the prosecutor’s request to stall him at the probation office was an unlawful detention and constituted prosecutorial misconduct.

Dorgay claimed that while he was waiting to meet with his probation agent, he overhead one agent tell another agent that the prosecutor wanted Dorgay placed in custody. That remark, Dorgay claimed, triggered his post-traumatic stress disorder and he left.

But in a per curiam opinion, the Court of Appeals pointed out that Dorgay had presented no medical evidence that his PTSD (or any other condition) was a factor in his decision to flee the probation office.

“There was no evidence presented or allegations made in Dorgay’s post-conviction motion that Dorgay overheard anything at [the probation agent’s] office, let alone a nefarious scheme by the prosecutor to have Dorgay unlawfully detained by officers that had previously assaulted him,” the Cout of Appeals wrote.

No Conflict of Interest

The Court of Appeals concluded that the circuit court had made a sufficient inquiry into the basis of Opland-Dobs’ motion, and pointed out that the circuit court had determined that Dorgay’s motion was an attempt to delay the start of the trial.

“In our view, the circuit considered the proper factors in relation to the facts of record and reached a reasoned and reasonable conclusion,” the Court of Appeals wrote.

‘Bullet’ Testimony

The Court of Appeals concluded that Opland-Dobs had not provided Dorgay with ineffective assistance of counsel.

Dorgay first argued that Opland-Dobs’ representation was deficient because he failed to object to testimony about threats Dorgay had allegedly made.

In particular, Dorgay pointed to testimony by a police officer that Dorgay had called Amber in August 2015 and offered her lots of money to “make all this go away” and threatened to put “a bullet” in another person.

Dorgay argued that Opland-Dobs’ objection had come too late. Dorgay also argued that his attorney should have argued that Dorgay had been denied his Sixth Amendment to confront a former business partner whom he’d allegedly threatened.

But the Court of Appeals noted that Opland-Dobs had objected to the bullet comment, and the circuit court had instructed the jury to disregard the bullet comment.

The Court of Appeals also pointed out that Opland-Dobs had filed and won an in limine motion to bar the State from mentioning the alleged threats against the business partner.

“Counsel did not perform deficiently for failing to raise a constitutional challenge because no out-of-court statements of [the business partner] were admitted into evidence, testimony or otherwise,” the Court of Appeals wrote.

“Counsel does not perform deficiently for failing to raise meritless arguments and objections.”

Testimony About Hotel Room Key

Dorgay also argued that his attorney’s representation was deficient because he’d failed to offer evidence that Amber had a key to the hotel room, as a defense to the false imprisonment charge.

But that was an empty argument, the Court of Appeals concluded.

“Dorgay does not explain how a key to the hotel room would have helped Amber leave the hotel room, and trial counsel thoroughly challenged on cross-examination and closing argument Amber’s testimony that she was not free to leave the room,” the Court of Appeals wrote.

Photographic Testimony

Dorgay argued that Opland-Dobs’ representation was deficient because he failed to point out that photographs taken by the Milwaukee police after the hotel room assault showed the same injuries visible in photographs taken by the police after the incident in Tomahawk.

But the Court of Appeals noted the following:

• several police officers testified that they’d seen new injuries on Amber after the Milwaukee hotel assault;

• the Milwaukee photographs appeared to show new injuries compared to the Tomahawk photographs; and

• the State’s expert witness testified that the injuries depicted in the Milwaukee photographs were consistent with Amber’s version of the hotel room assault.

The Court of Appeals affirmed the circuit court’s judgment and order.