Petition for Writ of Certiorari — Piaskowski v. Wisconsin

Supreme Court, U.S.

FILES

981556 mars -19

OFFICE OF THE CLERK

e

In the

Supreme Court of the United States

October Term, 1998

MICHAEL L. PIASKOWSKI,

Petitioner,

V.

STATE OF WISCONSIN,

Respondent.

Petition for Writ of Certiorari to the

Court of Appeals of Wisconsin

¢

PETITION FOR WRIT OF CERTIORARI

T. Christopher Kelly

Counsel of record

Thomas, Kelly, Habermehl &

Mays, S.C.

145 W. Wilson Street

Madison, Wisconsin 53703

Tel. (608) 255-9491

a Se EST 2a ator —

QUESTIONS PRESENTED

l. Is a defendant’s right to due process

violated when an appellate court sustains a conviction

on the basis of evidence that the trial judge considered

to be too incredible to support the conviction?

2. Is the constitutional right to confront

witnesses violated when the unreliable hearsay

statement of a co-defendant is admitted against a

defendant on the theory that the statement was against

the declarant’s social interest, and if so, is the error

cured if the declarant takes the stand on his own

behalf after the prosecution rests?

3 Is the right to due process violated

when the court refuses to grant a new trial on the

basis of a recantation by the only witness who linked

the defendant to the crime?

4. Did the denial of a severance violate

the petitioner’s right to due process?

5. Was the petitioner’s right to confront

witnesses violated when he was precluded from cross-

examining a prosecution witness to elicit the witness’

attempt to negotiate with the district attorney’s office

for favorable treatment?

6. Did the State violate the petitioner’s

right to obtain exculpatory evidence when it failed to

disclose that a key witness told the prosecution prior

to trial that he did not believe his statement to the

police was truthful?

Se (NE AREA ERS ERE AO ESV CRE DPA YE OIA RESO WR REL ERS TN I RR RN A PR CCE SN

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED................ i

Bees Oe PN oink boca dwcew sieve ii

BERRA Or PART PCS os bdo osc cde cee cas ili

tog Sy ERC Race Sie a ee Oe l

pa SSRIS Rin re ap ne 2

CONSTITUTIONAL PROVISIONS ........... 2

Penne RN aw 2

ce GRE SSE TG TRE to 2

STATEMENT OF THE CASE................ 2

REASONS FOR GRANTING THE WRIT...... 5

il

TABLE OF AUTHORITIES

Page

CASES CITED:

California v. Green, 399 U.S. 149 (1970)...... 11

Chambers v. Mississippi, 410 U.S. 284 (1973)... 10

Idaho v. Wright, 497 U.S. 805 (1990) .......... 1]

Jackson v. Virginia, 443 U.S. 307 (1979) ...... 5,6

Kentucky v. Stincer, 482 U.S. 730 (1987)...... 10

Lee v. Illinois, 476 U.S. 530 (1986) ........... 1]

Ohio v. Roberts, 488 U.S. 56 (1980)........... 1]

State v. Pepin, 110 Wis.2d 431, 328 N.W.2d 898

(Ct, Apo. 1962) oe ties oh ee ae 11

State v. Stevens, 171 Wis.2d 106, 490 N.W.2d 753

(3902s ks aha Stee Wee Oe eee 12

Stewart v. State, 83 Wis.2d 185, 265 N.W.2d 489

CRG IB nos a oeen se rce eer teh a

White v. Illinois, 502 U.S. 346 (1992).......... 12

Williamson v. United States, 512 U.S. 594 (1994) 11

No.

a

In the

Supreme Court of the United States

October Term, 1998

a

MICHAEL L. PIASKOWSKI,

Petitioner,

Vv.

STATE OF WISCON SIN,

Respondent.

+

Petition for Writ of Certiorari to the

Court of Appeals of Wisconsin

e

PETITION FOR WRIT OF CERTIORARI

4

Petitioner Michael L. Piaskowski respectfully

requests that a writ of certiorari issue to review the judgment

and opinion of the Court of Appeals of Wisconsin entered in

this proceeding on September 22, 1998.

5

OPINIONS BELOW

The opinion of the Court of Appeals of Wisconsin has

not been published. It is reproduced in the attached

appendix. The Supreme Court of Wisconsin entered an

unpublished order denying the petitioner’s petition for

review.

JURISDICTION

The judgment of Court of Appeals of Wisconsin was

entered on September 22, 1998. The Supreme Court of

Wisconsin entered an order on December 8, 1998 denying the

petitioner’s petition to accept review of the decision of the

court of appeals. This Court’s jurisdiction to consider this

petition from the final judgment by the highest court of the

state in which the decision could be had is invoked pursuant

to 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS

(a) Fifth Amendment, United States Constitution:

No person ... shall be ... deprived of life,

liberty, or property, without due process of

law ....

(b) Sixth Amendment, United States Constitution:

In all criminal prosecutions, the accused shall

enjoy the night ... to be confronted with the

witnesses against him ....

5

STATEMENT OF THE CASE

The Green Bay Police Department received an

anonymous telephone call on November 10, 1992 reporting

an employee theft that was expected to occur at the James

River paper mill. The caller said that Keith Kutska would be

taking a piece of extension cord from the plant. The caller

asked the police to inform plant security.

The police relayed the caller’s tip to James River

plant security. James River security guards tried to stop

Kutska as he left the plant on November 10, 1992. The

guards asked Kutska to open the bag he was carrying. Kutska

said there was nothing in the bag but laundry and left the

plant.

Kutska later learned that the security guards had tried

to stop him because of the anonymous call to the police. He

obtained a copy of the taped call from the police department

on November 20, 1992. Kutska listened to the tape and

recognized Thomas Monfils’ voice.

Kutska contacted Marlyn Charles, the union

president. Kutska wanted to file “union charges” against

Monfils. Charles said charges couldn’t be filed against

Monfils because Monfils didn’t leave his name on the tape.

Kutska suggested that Monfils might admit that he made the

call. Charles told him that the admission would need to be

witnessed by two people before charges could be filed.

Kutska played the tape for Michael Piaskowski and

Randy LePak. They both recognized Monfils’ voice. Kutska

asked them to act as witnesses because he knew they would

be working on the following day, Saturday.

On Saturday, November 21, 1992, prior to 7:00 a.m.,

Kutska played the tape for a large number of people at James

River. Marlyn Charles made a copy of the tape in coop! 8

prior to 6:30 a.m. A number of people who worked in the

area of coops 5 and 8 listened to the tape at that time.

At some point, LePak went to the coop 9 to meet

Kutska. Other employees were also there. While LePak was

in coop 9, Dale Basten and Mike Johnson arrived to repair a

problem with the number 9 paper machine. Kutska played

the tape for the occupants of the coop.

' Control rooms for paper machines are commonly referred to as

“coops.”

Donald Boulanger signaled that Monfils and

Piaskowski had entered coop 7, where they were working.

LePak and Kutska entered coop 7. Kutska played the tape for

Monfils and asked him to admit that his voice was on the

tape. Monfils eventually admitted that the voice was his.

Kutska asked him why he did it. Monfils said he had acted as

a concerned employee. Kutska told Monfils that his actions

had been malicious. Kutska then left. Piaskowski told

Monfils that he couldn’t believe Monfils had done that.

Piaskowski then left the coop. LePak told Monfils that he

had jeopardized Kutska’s job, and that it was a chicken shit

thing to do. LePak then left the coop.

Kutska returned to coop 9, where he continued to play

the tape for people who entered the coop. Piaskowski

eventually entered coop 9 and heard Kutska playing the tape

for various occupants of the coop. At that time, Piaskowski

heard Kutska tell Moore to go “give Monfils some shit.”

Brian Kellner testified that Kutska told him about a

confrontation between Monfils and the six defendants that

took place near a bubbler. Kellner’s testimony about that

confrontation is discussed below.

Soon after the alleged confrontation by the bubbler,

Piaskowski asked Pete Delvoe if he had seen Monfils.

Piaskowski called a supervisor to report Monfils missing

because he wanted to get Monfils in trouble.

After drinking at a wedding reception about six

months after Monfils’ murder, David Wiener suddenly

remembered that he had seen defendants Basten and Johnson

apparently carrying something through the plant. The State

argued that they were carrying Monfils. The State’s

handwriting expert testified that Wiener wrote a suicide note

that purported to have been written by Monfils. However,

Wiener was not charged with Monfils’ murder.

Monfils’ body was eventually found in a pulp vat. A

weight had been tied around the neck. Medical testimony

established that Monfils died from asphyxiation by inhaling

the pulp that was in the vat and/or by strangulation from the

rope around his neck. He had been beaten before he died.

Six defendants, including Piaskowski, were jointly

tried for murder as a result of Monfils’ death. All six were

convicted. Piaskowski appealed to the Court of Appeals of

Wisconsin. The court of appeals affirmed his conviction.

Piaskowski filed a petition for review with the Supreme

Court of Wisconsin, seeking discretionary review of the

Court of Appeals’ decision. The Supreme Court did not

grant review.

The federal questions presented on appeal were raised

in the court of appeals by the petitioner’s initial brief. The

sufficiency of evidence question (issue I below) was raised in

the trial court by a post-conviction motion seeking a

judgment of acquittal. The confrontation question (issue II

below) was raised in the trial court prior to trial by pretrial

motion and after trial by a post-conviction motion. Both

issues are addressed by the trial court’s order denying post-

conviction motions.

¢

REASONS FOR GRANTING THE WRIT

I. A DEFENDANT’S RIGHT TO DUE PROCESS

IS VIOLATED WHEN AN APPELLATE

COURT SUSTAINS A CONVICTION ON THE

BASIS OF EVIDENCE THAT THE TRIAL

JUDGE CONSIDERED TO BE TOO

INCREDIBLE TO SUPPORT THE

CONVICTION

Criminal defendants have a constitutional right to

reversal of convictions that are not supported by proof

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 318 (1979). That constitutional standard is diminished,

— ne

if not lost, when an appellate court disregards a trial judge’s

conclusion that the only evidence against the defendant was

so incredible that it could not support a guilty verdict. The

Wisconsin court of appeals held that it lacked the power to

overturn a conviction even if it believed that the trier of fact

should not have found guilt based on the evidence before it.

State v. Piaskowski, No. 97-2104-CR, slip op. at 3 (Wis. Ct.

App. Sept. 22, 1998) In the ordinary case, that standard of

review provides a dubious safeguard of the right to be free

from conviction when the evidence fails to establish guilt

beyond a reasonable doubt. This, however, is not an ordinary

case. The trial judge concluded that the only evidence

offered against Piaskowski was so lacking in probative value

that it would not support a conviction. The court of appeals

nonetheless relied on that very evidence in affirming

Piaskowski’s conviction. The standard of review adopted by

the court of appeals — a standard that affirms convictions on

the basis of evidence that the trial judge found to be patently

incredible — is inconsistent with the constitutional standard

of appellate review required by Jackson.

The court of appeals found the evidence sufficient to

establish that Piaskowski conspired with his five co-

defendants to do away with Monfils. The State didn’t argue

to the jury that Piaskowski engaged in a conspiracy. Rather,

the State argued that Piaskowski aided and abetted the

murder. Because there wasn’t a shred of evidence to support

that theory, the State abandoned the “aid-and-abet” theory on

appeal. The court of appeals adopted the conspiracy theory,

citing a 1934 case for the proposition that a murder

conspiracy continues during the time that the conspirators

take action to prevent the discovery of the crime to conceal

the identities of the perpetrators. (Slip op. at 6) The court of

appeals cited no evidence, however, that Piaskowski agreed

to take any action whatsoever to hide the crime. In fact, as

the court of appeals noted, Piaskowski called attention to the

fact that Monfils was missing.

To conclude that the evidence Supported Piaskowski’s

participation in a conspiracy to murder Monfils, the court of

appeals relied on the following evidence.

Although there is no evidence that

Piaskowski_ directly killed Monfils by

throwing him into the vat, the jury could

reasonably infer that Piaskowski was part of

the conspiracy to beat Monfils and cover up

his death. The evidence establishes that

Piaskowski was present at the confrontation

and told the foreman that Monfils was missing

and that “some heavy shit” was “coming

down.” There was also evidence that

Piaskowski and the other defendants kicked

and beat Monfils. From this evidence, it was

reasonable for the jury to infer that

Piaskowski played a larger role than that of

mere observer, that he took overt action to

beat Monfils and cover up the murder when he

reported Monfils as missing. The jury could

reasonably infer that Piaskowski knew that

Monfils was missing because he knew

Monfils had been dumped into a vat.

Piaskowski, slip op. at 6. No witness ever claimed to have

seen Piaskowski kick or beat Monfils. One inmate witness

testified that one of Piaskowski’s co-defendants told him that

some individuals were striking Monfils, but that witness

didn’t identify Piaskowski as a person who did so. That

witness, in fact, didn’t identify Piaskowski as a person who

was present during the beating. Thus, the only evidence

upon which the court of appeals could have relied in the brief

analysis cited above was the testimony of Brian Kellner, who

claimed that Keith Kutska (one of the co-defendants) told

him during a drunken discourse in a bar that a confrontation

with Monfils had taken place and that Piaskowski had been

present at the confrontation. Kellner did not testify, however,

that Kutska identified Piaskowski as someone who either

struck Monfils or encouraged anyone else to do so. In fact,

Kutska supposedly told Kellner that he left the scene before

the confrontation with Monfils escalated into violence.

The court of appeals apparently bootstrapped the

hearsay testimony of the inmate who claimed to have heard

that some participants in a confrontation beat Monfils (but

didn’t identify Piaskowski as being present) to the hearsay

testimony of Kellner, who said Kutska told him that

Piaskowski was present at a confrontation with Monfils. The

court of appeals’ implicit conclusion that the two pieces of

hearsay added up to proof beyond a reasonable doubt

overlooked the trial court’s assessment of Brian Keliner. The

trial court expressly ruled that Kellner’s testimony (which

Kellner later recanted), recounting Kutska’s drunken

ramblings, was not credible. The trial court ruled that

defense counsel correctly argued that a conviction could not

be based on Kellner’s evidence, and opined that if Kellner’s

testimony were the only evidence in the case, “the Court

would never have allowed this case to go to the jury.” The

trial court mistakenly upheld Piaskowski’s conviction on the

theory that the jury may not have believed Piaskowski’s

exculpatory testimony and that it was allowed to infer from

its disbelief of Piaskowski’s testimony that he committed the

crime — a theory that everyone concedes is contrary to

Wisconsin law, see Stewart v. State, 83 Wis.2d 185, 193, 265

N.W.2d 489 (1978) — and that the court of appeals did not

rely upon in sustaining the conviction.

The court of appeals thus upheld Piaskowski’s

conviction on the basis of testimony that the trial judge

viewed as too incredible to support a conviction. The court

? The trial judge described Kellner’s testimony in these terms:

“He recounted an instance which occurred after an all-day

drinking bout. Mr. Kutska was intoxicated when the events

occurred. Mr. Kellner was close behind him in his level of

intoxication.”

of appeals did so because it felt bound to accept any evidence

of guilt upon which the jury might have relied — even

evidence that the trial judge ruled out as a possible basis for

conviction. Had the trial judge not been mistaken about his

alternate theory for sustaining the conviction, he would have

thrown out the conviction as unsupported by proof beyond a

reasonable doubt. When a trial judge views the only

evidence of guilt as insufficient to support a conviction,

Sustaining a conviction on the basis of that evidence

frustrates Jackson and deprives a defendant of his right to

have his conviction reversed if the evidence against him does

not prove guilt beyond a reasonable doubt.

The Supreme Court should grant review to decide

whether the rule announced in Jackson is violated by a state

appellate court that rejects a trial judge’s decision that

evidence in support of guilt is too incredible to justify a

conviction. Wisconsin’s deviation from the constitutional

standard threatens the integrity of convictions statewide, and

— if the Supreme Court does not decide the issue — is likely

to result in appellate courts in Wisconsin and elsewhere

sustaining convictions despite the trial judge’s belief that the

evidence supporting a conviction did not prove guilt beyond

a reasonable doubt. The unique issue presented by this case -

— whether an appellate court reviewing a sufficiency of

evidence claim is free to disregard the trial judge’s

conclusion that the evidence relied upon by the appellate

court was too incredible to prove guilt beyond a reasonable

doubt — is an important issue of constitutional law.

Appellate courts in Wisconsin and elsewhere need guidance

in shaping standards of review that are mindful of the

“beyond a reasonable doubt” standard.

10

IT. THE CONSTITUTIONAL RIGHT TO

CONFRONT WITNESSES IS VIOLATED

WHEN THE UNRELIABLE HEARSAY

STATEMENT OF A CO-DEFENDANT IS

ADMITTED AGAINST A DEFENDANT, AND IS

NOT CURED WHEN THE CO-DEFENDANT

LATER TESTIFIES ON HIS OWN BEHALF

The case against Piaskowski was built around the

hearsay testimony of Brian Kellner, who claimed that Keith

Kutska, a co-defendant, told him that he and the other co-

defendants confronted Monfils to let him know they were

displeased that Monfils had reported Kutska’s apparent theft

of a cord to the police. According to Kellner, Kutska said

that the co-defendants hollered at Monfils, one of them (not

identified by Kutska) slapped the back of Monfils’ head, and

another (not Piaskowski) shoved Monfils’ in the chest.

Kutska asked “what if’ Monfils had been hit with a wrench

or a board, but didn’t say that actually happened. Kutska told

Kellner that he left at that point, and didn’t see what

happened after he left.

Over objection, Kelliner’s hearsay statement was

admitted against the other co-defendants. The trial court

concluded, and the court of appeals agreed, that the statement

was admissible as a statement against Kellner’s penal and

social interest. The court concluded that the admission didn’t

violate the confrontation clause because these were firmly

rooted hearsay exceptions, and because Kellner later testified

in his defense.

Kellner’s testimony violated the confrontation clause.

The Sixth Amendment guarantees the right to confront

witnesses. Chambers v. Mississippi, 410 U.S. 284, 294

(1973). The right to confront includes the right to cross-

examine. Kentucky v. Stincer, 482 U.S. 730, 737 (1987).

Confrontation permits the jury to assess the credibility of the

person making the statement and forces the witness to submit

1]

to cross-examination, “the greatest legal engine ever invented

for the discovery of the truth.” California v. Green, 399 U.S.

149, 158 (1970).

The confrontation clause restricts the admissibility of

hearsay. Generally, the prosecution must prove that the

declarant is unavailable to testify at trial. The prosecution

must next demonstrate that the hearsay is so reliable that

confronting the witness would essentially be a fruitless

endeavor. Idaho v. Wright, 497 U.S. 805, 822-23 (1990);

Ohio v. Roberts, 488 U.S. 56, 65 ( 1980).

Kellner’s statement wasn’t reliable. As the trial judge

noted, Kellner recounted a statement related to him during

the course of an all-day drinking bout. Kutska didn’t say

anything against his own interest when he claimed that

Piaskowski was present during a confrontation with Monfils.

Rather, Kutska’s statement was exculpatory — he claimed to

have left when pushing started. He denied striking Monfils

himself and denied being present during any act of serious

violence against Monfils.

It is a “time-honored reaching that a co-defendant’s

confession inculpating the accused is inherently unreliable,

and that convictions supported by such evidence violate the

constitutional right of confrontation.” Lee y. Illinois, 476

U.S. 530, 546 (1986). Kutska’s statement that Piaskowski

was present during the confrontation with Monfils inculpated

Piaskowski (at least in the view of the prosecution, which

argued that Piaskowski was part of the crowd and thus must

have had something to do with Monfils’ death). That

Statement was not remotely against Kutska’s interest, and

thus was not reliable.

Wisconsin and federal law both stand for the

proposition that the portion of a co-defendant’s statement that

inculpates another co-defendant is not an admission against

interest. Williamson v. United States, 512 US. 594, 599-600

(1994); State v. Pepin, 110 Wis.2d 431, 438, 328 N.W.2d

898 (Ct. App. 1982). Certainly, Kutska said nothing against

12

his own interest when he said that Piaskowski was present at

a confrontation with Monfils, and that Kutska left Piaskowski

(and the other co-defendants) there before anything happened

to Monfils. Kutska’s admission that he was present at the

confrontation might have been against his interest, but not his

contention that Piaskowski was also present.

In a cursory analysis, the court of appeals concluded

that “Kutska may have subjectively believed he was

exculpating himself by stating he was not actively involved in

the confrontation,” but that his admission was nonetheless

against his interest because a reasonable person would not

“assert his involvement in a verbal and physical confrontation

with a man who was murdered minutes later.” Piaskowski,

slip op. at 18. That analysis begs the question; whether or not

Kutska inculpated himself, his claim that Piaskowski was

present was not a statement against his own interest, and thus

did not provide an exception to the confrontation

requirement. Moreover, if Kutska “subjectively believed he

was exculpating himself,” his statement cannot be viewed as

so reliable that it provides a basis for convicting Piaskowski

of murder.

The court of appeals also viewed the statement as

admissible because it was against Kutska’s societal interest.

Yet only “firmly rooted” exceptions to the hearsay rule will

overcome the constitutional right to confront a witness. White

v. Illinois, 502 U.S. 346, 356 (1992). The “against societal

interest” exception is far from “firmly rooted.” Only ten

states have adopteu the exception. State v. Stevens, 171

Wis.2d 106, 112, 490 N.W.2d 753 (1992). The Federal

Rules of Evidence does not incorporate the “social interest”

exception. /d. at 112-13. In fact, Congress specifically

rejected the exception. The House Report noted that the

social interest exception lacked sufficient guarantees of

reliability. See Report at 16-17, quoted in 2 Moore’s Federal

Rules Pamphlet § 804.12[2] at 432 (1998). A _ hearsay

exception that exists in only ten states, that didn’t exist at

13

common law, and that has been rejected by Congress can

hardly be said to be “firmly rooted.” Since some States are

adopting the exception, however, the time is ripe for the

Supreme Court to decide whether evidence admitted pursuant

to that exception justifies dispensing with the right of

confrontation.

The final question is whether Piaskowski’s

confrontation rights were restored when Kutska took the

stand in his own defense, affording Piaskowski a chance to

cross-examine him. If Kutska’s statement had been barred by

the confrontation clause during the State’s case-in-chief, as it

should have been, a directed verdict for Piaskowski would

have been entered after the State rested, because there was no

other evidence linking Piaskowski to the crime. Thus, the

fact that Kutska was forced by the admission of his statement

into evidence to take the stand and refute the statement

cannot render the error harmless.

The Supreme Court has never decided whether a

denial of the right to confront a witness is rendered harmless

if the witness testifies after the State rests. Given the

circumstances of this case — in which the evidence that

should never have been admitted formed the only basis for

Piaskowski’s conviction — finding the error harmless would

destroy the prophylactic value of the confrontation clause.

The Supreme Court should grant certiorari to clarify how

States are to apply the confrontation clause in situations

where a witness will not take the stand during the State’s

case-in-chief but may testify later.

ITI.

14

DUE PROCESS IS VIOLATED WHEN THE

COURT REFUSES TO GRANT A NEW TRIAL

ON THE BASIS OF A RECANTATION BY THE

ONLY WITNESS WHO LINKED’ THE

DEFENDANT TO THE CRIME

Although this is an important issue, it is not an issue

that is likely to meet the Court’s criteria for a grant of

certiorari. The petitioner raises the issue to preserve it for

further review.

IV.

THE DENIAL OF A SEVERANCE VIOLATED

THE PETITIONER’S RIGHT TO DUE

PROCESS

Although this is an important issue, it is not an issue

that is likely to meet the Court’s criteria for a grant of

certiorari. The petitioner raises the issue to preserve it for

further review.

¥.

THE PETITIONER’S RIGHT TO CONFRONT

WITNESSES WAS VIOLATED WHEN HE WAS

PRECLUDED FROM CROSS-EXAMINING A

STATE’S WITNESS TO ELICIT THE

WITNESS’ ATTEMPT TO NEGOTIATE WITH

THE DISTRICT ATTORNEY’S OFFICE FOR

FAVORABLE TREATMENT

Although this is an important issue, it is not an issue

that is likely to meet the Court’s criteria for a grant of

certiorari. The petitioner raises the issue to preserve it for

further review.

Vi.

15

THE STATE VIOLATED THE PETITIONER’S

RIGHT TO OBTAIN EXCULPATORY

EVIDENCE WHEN IT FAILED TO DISCLOSE

THAT A KEY WITNESS TOLD THE

PROSECUTION PRIOR TO TRIAL THAT HE

DID NOT BELIEVE A STATEMENT HE MADE

TO THE POLICE WAS TRUTHFUL

Although this is an important issue, it is not an issue

that is likely to meet the Court’s criteria for a grant of

certiorari. The petitioner raises the issue to preserve it for

further review.

CONCLUSION

For all the reasons stated, petitioner, Michael L.

Piaskowski, requests that this Court grant a Writ of Certiorari

to review the decision of the Court of Appeals of Wisconsin.

Respectfully submitted,

THOMAS, KELLY,

HABERMEHL & MAYS, S.C.

Attorneys for petitioner

T. Christopher Kelly

State Bar No. 1012740

App. |!

[Filed September 22, 1998]

IN COURT OF APPEALS

FOR STATE OF WISCONSIN

DISTRICT III

Case No. 97-2104-CR

STATE OF WISCONSIN,

Plaintiff-Respondent,

V.

MICHAEL L. PIASKOWSKI,

Defendant-Appellant.

DECISION

[1] APPEAL from a judgment and order of the

circuit court for Brown County: JAMES T. BAYORGEON,

Judge. Affirmed.

Before Cane, C.J., Myse, P.J., and Hoover, J.

CANE, C.J. Michael L. Piaskowski appeals the

judgment of conviction and postconviction order as a result

of the November 1992 murder of Thomas Monfils.

Following a joint trial, a jury convicted Piaskowski and five

[2] other defendants’ of first-degree intentional homicide,

' Defendants Dale Basten, Michael Johnson, and Reynold Moore’s

appeals were consolidated and affirmed in February 1998. State v.

Basten, Nos. 97-0918-CR, 97-0919-CR 97-1193-CR, unpublished slip

op. (Wis. Ct. App. Feb. 17, 1998). We affirmed Michael Hirn’s

App. 2

party to a crime, contrary to §§ 940.01(1) and 939.05,

STATS. On appeal, Piaskowski argues that: (1) insufficiency

of the evidence entitles him to a new trial; (2) newly

discovered evidence entitles him to a new trial; (3) the trial

court erred by admitting a codefendant’s hearsay statement;

(4) denial of his severance motion violated his right to a fair

trial; (5) denial of cross-examination of a State witness

violated his confrontation rights; and (6) the State failed to

disclose exculpatory evidence. We reject these arguments.

In addition, Piaskowski requests that we review a State

investigator’s sealed personnel records to determine whether

they impeach the investigator’s credibility. We have

reviewed the personnel records and agree with the trial court

that they contain no relevant evidence. Accordingly, we

affirm the judgment and postconviction order.

1. Sufficiency of the Evidence

Piaskowski argues that he is entitled to a new trial

because the evidence is insufficient to support his conviction.

To support this argument, Piaskowski cites Frankovis v.

State, 94 Wis.2d 141, 148, 287 N.W.2d 791, 794 (1980), for

the proposition that the test of sufficiency is whether the

evidence is “strong enough to exclude to a moral certainty

every reasonable hypothesis of innocence.” Piaskowski

predicates his entire argument on this standard. In State v.

Poellinger, 153 Wis.2d 493, 506-07, 451 N.W.2d 752, 757-

58 (1990), however, [3] our supreme court rejected the

Frankovis standard.” Contrary to Piaskowski’s assertion,

conviction in June 1998. State v. Hirn, No. 97-3518-CR, unpublished

slip op. (Wis. Ct. App. June 30, 1998).

? Poellinger provides that “[t]o the extent that prior decisions of this court

have suggested that these hypothesis of innocence rule is in any way

applicable in reviewing the sufficiency of the evidence to support a

conviction, we disapprove of those decisions and take the opportunity

presented in this case to clearly state that it is not.” State v. Poellinger,

App. 3

Poellinger governs our review, which is the same whether

the evidence is direct or circumstantial. Id.

We may not reverse a conviction “unless the

evidence, viewed most favorably to the state and the

conviction, is so lacking in probative value and force that no

trier of fact, acting reasonably, could have found guilty

beyond a reasonable doubt.” Jd. at 507, 451 N.W.2d at 757-

58. “If any possibility exists that the trier of fact could have

drawn the appropriate inferences from the evidence adduced

at trial to find the requisite guilt, [we] may not overturn a

verdict even if [we] believe that the trier of fact should not

have found guilt based on the evidence before it.” Id. at 507,

451 N.W.2d at 757. We need only decide if the “theory of

guilt accepted by the trier of fact is supported by sufficient

evidence to sustain the verdict rendered.” Id. at 508. 451

N.W.2d at 758.

The State presented evidence that on November 10,

1992, the police received an anonymous call reporting that

Keith Kutska, an employee of the James River Corporation,

intended to steal an expensive electrical cord from his

employer. After Kutska finished his shift, he tried to leave

the premises, but a security guard asked to inspect his bag.

Because Kutska refused to open the bag, [4] he received a

five-day unpaid suspension. Kutska later obtained a tape of

the call from police. On November 20, Kutska approached

Piaskowski near the No. 7 coop’ and told him about his

suspension and tape of the telephone call. About 5:30 p.m.,

after Kutska’s shift was over, he called Piaskowski at work

153 Wis.2d 493, 506, 451 N.W.2d 752, 757 (1990) (footnote omitted).

In short, the supreme court specifically disapproved of Frankovis v.

State, 94 Wis.2d 141, 287 N.W.2d 791 (1980). Poellinger, 153 Wis.2d

at 506 & n.6, 451 N.W.2d at 757, & n.6.

* Located across from each paper machine is a control room or “coop.”

App. 4

and played the entire tape for him, and Piaskowski

recognized the voice as Monfils’. Kutska implied that he had

talked to the union and explained to Piaskowski that because

Monfils did not identify himself on the tape, he needed two

or three witnesses to identify Monfils before he could file

union charges against him. Piaskowski was scheduled to

work the next day, and he agreed to be a witness for Kutska

when he played the tape for Monfils.

On November 21 at approximately 7 a.m., Kutska and

Randy LePak entered the No. 7 coop; Piaskowski and

Monfils were already in the coop. Kutska turned on a tape

recorder, played the tape, and asked Piaskowski to “{name

this tune.” Monfils admitted he had indeed made the call.

Kutska left the coop, and Piaskowski and LePak remained.

On his way out of the coop, Piaskowski said, “Geez, Tom, I

just fuckin’ don’t believe you’d do that.” Piaskowski

admitted that he was upset and disgusted that Monfils had

made the call to police. Kutska then went to the No. 9 coop

and played the tape again for those who entered the coop.

Later, at approximately 7:30 a.m., Monfils performed a

turnover (a change in the paper roll) on his paper machine.

At approximately 8 a.m., Monfils was reported missing. The

State presented evidence that between 7:30 and 8 a.m., a

group of employees, including Piaskowski and the five other

defendants, confronted Monfils. A verbal confrontation

became physical, and Monfils was beaten. A blow to the

back of the head rendered Monfils unconscious. The

following day, [5] Monfils’ partially decomposed body was

found in a pulp vat. A heavy weight was found tied around

Monfils’ neck.

Brian Kellner, a friend of Kutska’s, testified that on

July 4, 1994, while at the Fox Den Bar, Kutska described the

‘November 21 confrontation with Monfils, himself, Basten,

Moore, Johnson, Piaskowski and Hirn. Kutska told Kellner

App. 5

that he stood back and watched as the others shouted at

Monfils and shook the tape in his face. Kutska described the

events in terms of “what if’ somebody had hit Monfils in the

head with a wrench or a board.

James River employee David Wiener testified that on

November 21 at approximately 7:40 a.m., he saw

codefendant Dale Basten and Michael Johnson walking

toward a vat connecting the No. 7 and No. 9 paper machines.

They were walking hunched over, approximately six feet

apart, and appeared to be carrying something. At

approximately 7:45 a.m., Moore and Kutska entered the No.

7 coop. Shortly thereafter, Piaskowski entered the coop, and

Kutska told Piaskowski to notify the foreman that Monfils

was missing. According to Piaskowski, he informed the

foreman that “some heavy shit” was “coming down” and

recommended that the foreman “talk to Keith [Kutska] to

find out what happened.” Piaskowski testified that he called

the foreman to “get Tom in trouble with the company.”

A conspiracy requires a meeting of minds to

accomplish a common purpose. O’Neil v. State, 237 Wis.

391, 404-05, 296 N.W. 96 (1941). The two elements of a

conspiracy are an agreement among two or more persons to

accomplish a criminal objective and individual intent to

accomplish that objective. State v. Hecht, 116 Wis.2d 605,

625, 342 N.W.2d 721, 732 (1984). Circumstantial evidence

is sufficient to establish that an agreement exists. Id. No [6]

express agreement is required; rather, a “mere tacit

understanding of a shared goal is sufficient.” Jd. Further,

while intent may be inferred from conduct, mere presence

and ambivalent conduct at a crime scene are insufficient to

support a conviction. Jd. at 627, 342 N.W. at 733.

* Piaskowski also argues that each member of the conspiracy must have

an individual stake in the venture. An individual stake is not a third

element of conspiracy; a lack of stake in the venture does not absolve a

App. 6

Although there is no evidence that Piaskowski

directly killed Monfils by throwing him into the vat, the jury

could reasonably infer that Piaskowski was part of the

conspiracy to beat Monfils and cover up his death. The

evidence establishes that Piaskowski was present at the

confrontation and told the foreman that Monfils was missing

and that “some heavy shit” was “coming down.” There was

also evidence that Piaskowski and the other defendants

kicked and beat Monfils. From this evidence, it was

reasonable for the jury to infer that Piaskowski played a

larger role than that of a mere observer, that he took overt

action to beat Monfils and cover up the murder when he

reported Monfils as missing. The jury could reasonably infer

that Piaskowski knew that Mofils was missing because he

knew Monfils had been dumped into a vat.

A conspiracy continues “while the conspirators

continue to be active in taking measures to prevent the

discovery of the crime or the identity of those connected with

its perpetration.” Gelosi v. State, 215 Wis. 649, 656, 255

N.W. 893, 896 (1934) (quoted source omitted). Further,

when murder is committed under circumstances in which the

victim’s body must be disposed of to avoid detection, the

conspiracy continues while the conspirators dispose of the

body. See id. Piaskowski’s role reasonably reflects a tacit

agreement and intent to beat [7] Monfils and cover up the

murder by disposing of Monfils’ body. Sufficient evidence

supports the jury’s verdict, and inferences from that evidence

are not unreasonable as a matter of law.’ We therefore must

party to a crime of liability. State v. Hecht, 116 Wis.2d 605, 627, 342

N.W.2d 721, 733 (1984).

* Because we conclude that sufficient evidence supports a conspiracy, we

do not address whether the evidence is sufficient under Poellinger to

prove that Piaskowski aided and abetted the murder.

ee

App. 7

reject Piaskowski’s request for a new trial based on

insufficiency of the evidence.

2. Newly Discovered Evidence

Piaskowski next asserts that the following newly

discovered evidence entitles him to a new trial: (1) Brian

Kellner recanted his trial testimony; and (2) David Wiener

“virtually admitted” his involvement in Monfils’ death. He

insists the trial court applied the wrong legal standard when it

assessed credibility rather than deciding if the new evidence

would create a reasonable doubt at a new trial. We disagree.

At trial, Kellner testified that Kutska had told him that

Hirn, Moore, Basten, Johnson, Piaskowski, Kutska and

another individual were present at the confrontation with

Monfils outside the No. 7 coop. In contrast, at the

postconviction motions, he recanted this testimony and

testified that Kutska’s identification to him was not of those

present at the confrontation, but of those individuals present

in the No. 9 coop when the tape was being played. Contrary

to his trial testimony, Kellner testified post-trial that the

entire conversation occurred in the context of “what if.”

Kellner testified that he felt the police had badgered

him and that he had not agreed with everything Sergeant

Randy Winkler, the investigating officer, [8] had put in his

statement. At the post-trial hearing, however, Kellner

testified that he gave untruthful answers at trial because the

police threatened him with the loss of his children and job.

Additionally, Kellner testified that he had experienced

difficulties at his job since the trial because he had testified

against fellow union members. He further testified post-trial

that Kutska and Piaskowski were very close friends of his,

and he felt he had been forced to testify against them.

App. 8

Two Wisconsin cases provide the proper standard for

reviewing a defendant’s motion for a new trial based on a

witness’s recantation. See State v. Terrance J.W., 202

Wis.2d 496, 500, 550 N.W.2d 445, 447 (Ct. App. 1996);

State v. McCallum, 208 Wis.2d 463, 473, 561 N.W.2d 707,

710-11 (1997). A motion for a new trial based on a witness’

recantation is entertained with great caution, and we submit

the motion to the trial court’s sound discretion. Terrance

J.W., 202 Wis.2d at 496, 500, 550 N.W.2d at 447. We will

affirm the trial court’s exercise of discretion if it has a

reasonable basis and was made in accordance with accepted

legal standards and the facts of the record. Id.

To obtain a new trial based on newly discovered

evidence, the moving party must establish, by clear and

convincing evidence, that: (1) the evidence was discovered

after trial; (2) the moving party was not negligent in seeking

the evidence; (3) the evidence is material to an issue in the

case; (4) the evidence is not merely cumulative to evidence

introduced at trial; and (5) it is reasonably probable that a

different result would be reached at a new trial. Jd. In

addition, when the newly discovered evidence must

sufficiently corroborate the recantation before the defendant

is entitled to a new trial. Jd. at 500, 550 N.W.2d at 447. In

this case, the trial court found that the first three requirements

were met. In addressing the fourth requirement, the trial

court found Kellner’s reasons for his [9] recantation

cumulative to evidence the jury heard at trial. Regarding the

fifth requirement, the trial court found that the recantation

was not credible and, therefore, concluded that there was no

reasonable probability of a different outcome at a new trial.

Piaskowski maintains that under McCallum, the

question under the fifth prong is whether the jury could find

the recantation sufficiently credible to raise a reasonable

. doubt, not whether the trial judge personally believed the

PUBLISHER’S NOTE:

THE FOLLOWING PAGES WERE UNAVAILABLE

FOR FILMING:

Aop 4 AND Bis \9

App. |1

that Wiener killed his brother, Tim, to prevent him from

revealing Wiener’s role in the murder.

In its postconviction decision and order, the trial court

applied the five requirements set forth in McCallum and

concluded that newly discovered evidence regarding Wiener

did not warrant a new trial court found the evidence met the

first four requirements, it found that the fifth requirement was

not met:

Quite frankly, the testimony and affidavits

submitted both in support of an in denial of

defense’s present contentions might be described

as imaginative, resourceful, and innovative, but in

no event could the word “credible” be attached to

them. [E]vidence presented for that impeachment

would interject a sideshow atmosphere that would

have a tendency to, or indeed result in the creation

of a full three-ring circus. (Emphasis added.)

Following the logic of McCallum, if a trial court finds

newly discovered impeachment evidence not credible, it

likewise leads us to conclude that the impeachment evidence

would not lead to a difference result at a new trial. At

postconviction motions, the trial court heard inmates

Marcum, Wnek, and Grunkowski and had the opportunity to

observe their demeanors and hear them [12] explain the

context and circumstances in which these statements were

made. In the trial court’s opinion, these witnesses’ testimony

not only contained “gratuitous information” having little

probative value, but the witnesses perhaps harbored “suspect

agendas.” The trial court’s findings regarding the credibility

of Wnek, Marcum, and Grunkowski were not clearly

erroneous.

Based on our review of the voluminous record, it does

not appear that Gawryleski gave live testimony at the

App. 12

postconviction hearings. Nonetheless, the trial court did pass

on the credibility of her affidavit. We will affirm the trial

court’s findings regarding Gawryleski’s incredibility if the

inference of incredibility may reasonably be drawn from her

affidavit. See Eau Claire Press Co. v. Gordon, 176 Wis.2d

154, 160-62, 499 N.W.2d 918, 920-21 (Ct. App. 1993).®

Gawryleski was living with Tim Wiener at the time

David Wiener killed Tim. In her affidavit, she states that she

overheard a telephone conversation during which Tim told

David that “he was going to narc on him.” She further states

that she has always believed Tim was referring to David’s

involvement in the Monfils case and that in her opinion, “that

is the reason or part of the reason that David shot him.”

Significantly, however, Gawryleski never heard Tim tell

David [13] that he would “narc” on him specifically for

David’s alleged role in the Monfils’ murder, yet she offers

the opinion that this furnished part of the motive for Tim’s

murder. In contrast, she offers pure speculation that the

potential “narc” dealt with Monfils’ murder. For these

reasons, the trial court could reasonably find her proposed

testimony not only incredible, but also irrelevant. Thus, there

is no reasonable probability that the introduction of such

information at a new trial could lead a jury to have a

* Although there is some dispute whether we should defer to the trial

court’s findings relative to the affidavits, it is our opinion that the better

rule is to defer to the reasonable inferences the trial court drew from these

two affidavits. See Honorable Thomas Cane & Kevin M. Long, Shifting

the Main Event: The Documentary Evidence Exception Improperly

Converts the Appellate Courts Into Fact-Finding Tribunals, 77 MARQ.

L. REV. 475, 488 (Spring 1994). This court is in no better position than

the trial court to pass on the credibility of this documentary evidence. See

generally id. The trial court heard all the testimony in this 28-day trial

and was in a superior position to draw reasonable inferences from these

affidavits than this court. In our opinion, the documentary evidence

exception to the clearly erroneous rule “turns appellate courts into fact-

finding tribunals, wastes judicial resources, and lengthens the already

arduous road to judicial finality.” See id. at 475-76.

App. 13

reasonable doubt as to Piaskowski’s guilt. Accordingly, we

affirm the trial court’s denial of a new trial based upon newly

discovered evidence about Wiener.

3. Admission of Codefendant’s Hearsay Statement

Piaskowski claims Kellner’s trial testimony regarding

his conversation with Kutska at the Fox Den Bar was

inadmissible hearsay. Kellner testified that sometime

between 8 and 10 p.m., Kutska began discussing the events

of November 21, 1992, the day of Monfils’ murder. Kellner

further testified that Kutska described the playing of the tape

in No. 9 coop, including the names of the people present at

the time. The jury heard the following testimony:

Q. Can you tell the jury who Mr. Kutska told you

were present in the No. 9 coop after the tape had

initially been played to Mr. Monfils?

A. Yes, sir. There was Rey Moore, he was the

last man in. There was Mike Johnson, Dale

Basten, Keith, Jon Mineau, Mike Hirn.

Q. Did he indicate anyone else?

A. Yes, sir. He said there was two others, but I

don’t remember who they are.

Q. What did he say occurred?

A. He said that they played the tape. I don’t

know if the guys in the coop were getting would

up about it and that they wanted to go confront

Tom [Monfils] about it.

[14] Q. Do you recall Mr. Kutska telling you that

Mike Piaskowski was in the coop at that time?

App. 14

A ee

A. Yes, sir.

Q. So the people in the coop just after the playing

of the tape or prior to their leaving the coop, the

No. 9 coop, who were they?

A. Dale Basten, Mike Hirn, Rey Moore, Keith,

John Mineau and Mike Piaskowski.

Q. And that’s what Mr. Kutska told you on that

occasion?

A. Yes, sir.

Kellner also testified that Kutska directed himself, Kellner’s

wife, and Kutska’s wife in a role-play of the confrontation

and explained events in the contest of “what if” situations.

Kellner testified as follows:

Q. What did [Kutska] say happened?

A. He said that during this confrontation that

somebody had come up and given Tom [Monfils]

a slap upside the back of his head.

Q. Did Mr. Kutska ever indicate that Tom

[Monfils] had been struck in any other manner at

that time?

A. He did. That what if somebody had used a

wrench or board or something from that area .. .

The trial court rejected the plaintiffs motion to

suppress the testimony as hearsay and found the statements

admissible as statements against interest. For that reason, it

included an accomplice instruction in its preliminary

instructions to the jury at the start of the trial. However, no

cautionary or limiting instruction regarding the jury’s use of

App. 15

Kellner’s testimony against any or all defendants was either

requested or given directly before or after Kellner testified.

Counsel for all defendants cross-examined Kellner regarding

his recollection of the events, his state of intoxication, and

the specifics of what Kutska said. Kutska [15] testified in his

own defense, and counsel likewise examined him at length

regarding his statement to Kellner and the events of

November 21. Kutska denied ever having a conversation

with Kellner at the Fox Den describing a confrontation or

being involved in any role-playing.

Under § 808.01(3), STATS., hearsay is an out of

court statement offered to prove the truth of the matter

asserted. To be admitted, hearsay must satisfy one of the

exceptions to the hearsay rule. Section 908.02, STATS.

Generally, a decision on the admission of hearsay evidence is

a matter within the trial court’s sound discretion. State v.

Stevens, 171 Wis.2d 106, 111, 490 N.W.2d 753, 756 (Ct.

App. 1992). We will not reverse unless there has been a

misuse of discretion or the trial court based its decision on an

erroneous view of the law. Jd. Whether a statement is

admissible under a hearsay exception, however, is a question

of law we review de novo. Id. at 112, 490 N.W.2d at 756.

We now turn to whether Kutska’s statement was

admissible under § 908.045(4), STATS., as an exception t

§908.02, STATS., the hearsay rule. Under this section, an

out-of-court statement is admissible if the declarant is

unavailable and the statement is against the declarant’s penal,

societal, or pecuniary interest. State v. Buelow, 122 Wis.2d

465, 474-76, 363 N.W.2d 255, 260-62 (Ct. App. 1984). The

rationale for admission of statements against interest is that

they possess circumstantial guarantees of trustworthiness

based on the assumption that people do not falsely make

damaging statements about themselves unless true. See Id. at

477, 363 N.W.2d at 262 (citing Advisory Committee Notes

App. 16

on Proposed [16] Rules, 28 U.S.C. Rule 804(b)(3) (1982)),

rev'd on other grounds, Buelow v. Dickey, 847 F.2d 420 (8th

Cir. 1988).”

The trial court found Kutska unavailable because he

was named defendant in a criminal trial, and the State could

not compel him to testify. Relying on State v. McConnohie,

121 Wis.2d 57, 75-76, 358 N.W.2d 256, 265-66 (1984),

Piaskowski argues that the declarant is not deemed

unavailable unless he is called to the stand and actually

invokes his Fifth Amendment privilege.'° We disagree.

McConnohoie was charged, along with codefendant

LaFrance, with party to the crime of armed robbery.

LaFrance pled no contest tot he charge one day before

McConnohie’s trial. McConnohoie testified in his own

defense and sought to introduce evidence that he heard

LaFrance say that LaFrance and an individual named Serio

committed the armed robbery. Jd. at 61, 358 N.W.2d at 258.

The court explained that at the time McConnohie attempted

to testify to LaFrance’s statement, § 908.045(4), STATS.,

was not applicable because there had been “no showing by

the defendant of LaFrance’s unavailability at the time the

defendant testified. Although LaFrance possessed a fifth

amendment privilege, it was not known that he would invoke

that privilege until he as actually called.” McConnohie, 121

Wis.2d at 75-76, 358 N.W.2d at 265-66.

* Wisconsin’s statement against interest exception is essentially the same

as FED. R. EVID. 804(b)(3).

'° The Fifth Amendment to the United States Constitution provides that

“No person ... shall be compelled in any criminal case to be a witness

against himself...” The same protection is provided under the Wisconsin

Constitution by art. I, § 8, which provides, “No person ... may be

compelled in any criminal case to be a witness against himself ...”

App. 17

[17] The declarant, LaFrance, was in a substantially

different situation from Kutska. LaFrance, no longer a

defendant, had entered a no contest plea and was awaiting

sentencing at the time of McConnohie’s trial. See id. at 61-

62, 358 N.W.2d at 259. Importantly, because LaFrance no

longer remained a codefendant, he could be called as a

witness to determine whether he would claim the Fifth

Amendment privilege and therefore be unavailable. In sharp

contrast to McConnohie, Kutska had entered a not guilty plea

and was in the midst of a jury trial on the charge at the time

the statement was offered. It is elementary that under no

circumstances could be State call Kutska as a witness to

determine whether he would assert the Fifth Amendment

privilege without incurring a mistrial. See U.S. CONST.,

AMEND. V. Therefore, he was unavailable.

Given that Kutska was unavailable, we next address

whether Kutska’s statement meets the criteria for a statement

against interest under § 908.045(4), STATS. The statute

provides in part:

The following are not excluded by the hearsay

rule if the declarant is unavailable as a witness:

(4) STATEMENT AGAINST INTEREST. A

statement which ... at the time of its making ... so

far tended to subject the declarant to civil or

criminal liability ... or to make the declarant an

object of hatred, ridicule, or disgrace, that a

reasonable person in the declarant’s position

would not have made the statement unless the

person believed it to be true.

A statement against interest need not amount to a confession,

but it must tend to subject the declarant to criminal liability.

Ryan v. State, 95 Wis.2d 83, 97, 289 N.W.2d 349, 355 (Ct.

App. 1980), overruled on other grounds by State v.

App. 18

Anderson, 141 Wis.2d 653, 416 N.W.2d 276 (1987).

Piaskowski contends that Kutska’s July 4, 1994, conversation

with Kellner can be distilled to an exculpatory [18]

statement, stating that “he merely watched what other people

did during the confrontation.” We disagree and conclude that

because the statement was against Kutska’s penal and

societal interests, it was admissible."'

Whether a statement is against penal interest is

determined under the circumstances existing at the time the

statement was made. United States v. Hamilton, 19 F.3d

350, 357 (7th Cir. 1994) (citing Advisory Committee Note to

Rule 804(b)(3)). The record reveals that approximately two

years had passed from the date of Monfils’ murder to the

time Kutska made the statements to Kellner. Although police

had questioned Kutska on numerous occasions, they had

made no arrests in the case and the investigation was still

pending. Additionally, James River had discharged Kutska

from his job, an Monfils’ widow and children had named

Kutska as a party in a civil wrongful death actions. Under the

circumstances existing at the time Kutska made his statement

to Kellner, the content and nature of the conversation were of

the kind that would tend to subject Kutska to criminal

charges, at least for party tot he crime of battery, if not

homicide. Although Kutska may have subjectively believed

he was exculpating himself by stating he was not actively

involved in the confrontation, a reasonable person would not

untruthfully assert his involvement in a verbal and physical

confrontation with a man who was murdered minutes later.

We alternatively address whether the statements were

against Kutska’s societal interests. Two requirements must

'' Because we conclude that the statements are admissible under §

908.045(4), we need not address the State’s argument that the statements

are admissible as prior inconsistent statements. See Sweet v. Berge, 113

Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983).

App. 19

be satisfied to admit a statement against societal interests: (1)

the declarant must objectively face the [19] risk of hatred,

ridicule, or disgrace; and (2) the declarant must subjectively

appreciate the statement’s propensity to subject him to such

disgrace. Stevens, 171 Wis.2d at 113-14, 490 N.W.2d at

757. We evaluate the statement from the standpoint of

whether Kutska actually faced a risk of hatred, ridicule, or

disgrace. “[T]he real issue is the extent of the declarant’s

personal connection to the activity reported in his or her

declaration,” as the declarant must have a personal interest in

keeping the statement secret. Id. at 118, 490 N.W.2d at 759.

We have no difficulty concluding that Kutska’s

statement, in which he admitted his role in inciting a

confrontation with Monfils and his presence at the

confrontation, establishes a close personal connection to the

events immediately before Monfils’ murder. This is the type

of statement that would objectively inspire hatred, ridicule, or

disgrace if it became known in the larger community. Kutska

couched his comments in terms of “what if” certain things

had occurred, and this demonstrates that he appreciated the

risk of social disapproval. Accordingly, we conclude that

Kutska’s statement was admissible under § 908.045(4),

STATS., as a statement against both his penal and societal

interests.

4. Severance

Piaskowski claims the trial court erred when it

refused to sever his trial from Kutska’s. He contends that

because the State introduced an entire line of evidence

against Kutska that did not apply to him, the plain language

of § 971.12(3), STATS., mandates severance. Additionally,

Piaskowski argues that Kutska’s hearsay statements were

inadmissible against Piaskowski, and that to the extend that

Kutska’s statements exculpated him by pointing the finger at

App. 20

others, they were inadmissible because they were not

statements against Kutska’s penal or [20] societal interests.

Finally, he argues that the trial court compounded its error by

failing to give a limiting instruction. We affirm the court’s

denial of severance.

A trial court may try defendants together when they

are charged with the same offense arising out of the same

transaction and provable by the same evidence. State v.

Brown, 114 Wis.2d 554, 559, 338 N.W.2d 857, 860 (Ct.

App. 1983). The decision whether to grant or deny a motion

for severance is within the trial court’s discretion, and we

will not disturb its decision unless there has been a misuse of

discretion. Jd. Whether there has been a misuse of discretion

is determined based on the facts of each case. Jung v. State,

32 Wis.2d 541, 545-46, 145 N.W.2d 684, 686 (1966). We

will affirm the trial court if there is a reasonable basis for its

decision. State v. Nelson, 146 Wis.2d 442, 456, 432 N.W.2d

115, 121 (Ct. App. 1988).

If it appears that a defendant is prejudiced by the

joinder of his trial with other defendants, the court may grant

a severance of defendants or provide whatever other relief

justice requires. Section 971.12(3), STATS. If it appears

during the course of trial that “‘an entire line of evidence” is

produced that is only admissible as to one defendant and is

unduly prejudicial to other defendants, then the trial court

may order a severance at that time, or the court may elect to

give the jury a cautionary instruction to the effect that

“evidence against one may not be treated as evidence against

all, simply because they are being tried together.” State v.

Jennaro, 76 Wis.2d 499, 505, 251 N.W.2d 800, 803 (1977)

(quoting State v. DiMaggio, 49 Wis.2d 565, 577, 182

N.W.2d 466, 473 (1971). Further, when evidence is

admissible against all defendants, there is no prejudice

App. 21

because the evidenee could be introduced at separate trials.

Id.

[21] Here, the trial court determined that because all

defendants were charged with the same offense, as party to a

-crime, involving the same victim, the elements of the offense

were provable by the same evidence, and it further concluded

that the bulk of the evidence would have been presented

against each defendant if tried separately. It recognized that

some evidence would not apply to certain defendants and

cautioned the jury as follows:

Some evidence has been received in this trial

which relates to one or more of the defendants,

without having any reference to the remaining

defendants. In considering and evaluating such

evidence, you should exercise the utmost care and

discretion. Such evidence may be used only in

considering whether the individual or individuals

with whom it is concerned are guilty or not guilty.

Such evidence must not be used or considered in

any way against any of the other defendants who

are not implicated by such evidence, either

directly or by inference, except insofar as you may

consider that evidence in connection with the

instructions which have been given you regarding

a conspiracy. (Emphasis added.)

This instruction guarded against the risk that jurors would

apply all evidence in a blanket fashion against all defendants.

State v. Lukensmeyer, 140 Wis.2d 92, 110, 409 N.W.2d 395,

403 (Ct. App. 1987) (we presume jurors follow such

admonitory instructions).

We next address whether Kutska’s hearsay statement

mandates severance because it was admissible at trial only

against Kutska. Under § 971.12(3), STATS., if the State

intends to use the statement of a codefendant that implicates

App. 22

another defendant in the crime charged, the judge shall grant

a severance as to any such defendant. Jd. The purpose of §

971.12(3) is to provide a mechanism to ensuring compliance

with Bruton v. United States, 391 U.S. 123 (1968), which

prevents the use of a codefendant’s statement inculpating

another [22] defendant at a joint trial based on the

codefendant’s Sixth Amendment right to confront witnesses.

Pohl v. State, 96 Wis.2d 290, 301, 291 N.W.2d 554, 559

(1980). We conclude that the trial court did not misuse its

discretion.

Kutska’s statement was self-inculpatory and directly

admissible against all of his codefendants under a firmly-

rooted hearsay exception. See Williamson v. United States,

512 U.S. 594, 601 (1994). The statement was made by a

declarant-defendant ir a social setting to a friend. In

Kutska’s conversation with Kellner, he did not engage in

“finger-pointing” or specifically blame another person. He

described the events of the confrontation in “what if” terms,

saying “what if somebody had used a wrench or board or

something from that area” to strike Monfils. Rather than

making specific incriminating and inculpatory statement

about his codefendants, he emphasized to Kellner that he

knew who had hit Monfils but would not say who had done

it.

The Williamson Court’s comments are instructive:

For instance, a declarant’s squarely _ self-

inculpatory confession . . . will likely be

admissible under Rule 804(b)(3) against

accomplices of his who are being tried under a co-

conspirator liability theory. Likewise, by showing

that the declarant knew something, a self-

inculpatory statement can in some situations help

the jury infer that his confederates knew it as well.

And when seen with other evidence, an

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App. 23

accomplice’s _ self-inculpatory statement can

inculpate the defendant directly: “I was robbing

the bank on Friday morning,” coupled with

someone’s testimony that the declarant and the

defendant drove off together Friday morning, is

evidence that the defendant also participated in

the robbery.

Moreover, whether a statement is self-inculpatory

or not can only be determined by viewing it in

context. ... The question under Rule 804(b)(3) is

always whether the statement was sufficiently

against the declarant’s penal interest “that a

reasonable person in the declarant’s position

would not have made the statement unless

believing it to be [23] true,” and this question can

only be answered in light of all the surrounding

circumstances.

Id. at 603-04 (citation omitted).

Kutska’s description of the events establishes his

involvement in a confrontation with Monfils close to the time

of Monfils’ murder. Each part of Kutska’s statement to

Kellner was self-inculpatory in nature and not an attempt to

deflect Kutska’s blameworthiness to others. Any of his

statements tending to establish the presence or actions of any

other persons are sufficiently closely connected to the

inculpatory statements and satisfy the requirement of

trustworthiness. Because Kutska’s statement consisted of

self-inculpatory statements, it was properly admissible as

evidence, not only against Kutska, but also against

Piaskowski. The trial court had a proper basis for denying

severance and gave an appropriate cautionary instruction;

App. 24

consequently, there was no misuse of discretion and we

therefore affirm."

[24] 5. Confrontation Clause Violation

Piaskowski next claims that the trial court improperly

denied his request to cross-examine David Wiener regarding

his alleged “deal” with the State and Wiener’s resulting bias.

At the time of trial, Wiener was serving a sentence for an

unrelated homicide conviction. After hearing arguments

outside the jury’s presence, the court set parameters regarding

cross-examination of the alleged deal. First, counsel could

ask whether Wiener had a “deal” with the State, and, if so,

counsel could “inquire into it.” If there was no deal, then

counsel could ask if Wiener expected to receive a deal.

Second, the trial court concluded that the length of his

2 In support of his argument, Piaskowski cites Cranmore v. State, 85

Wis.2d 722, 739-40, 744, 271 N.W.2d 402 (Ct. App. 1978) for the

proposition that defendant's out-of-court statement is inadmissible against

a codefendant. We reject this argument. In Cranmore, the court

recognized that Bruton v. United States, 391 U.S. 123 (1968), stands for

the proposition that “the admission into evidence of a statement by one

defendant, implicating a codefendant in that trial, where the declarant

exercised his fifth amendment privilege not to testify was constitutionally

impermissible.” Jd. at 744-45, 271 N.W.2d at 414. In other words, the

court concluded that the confrontation clause was violated because the

codefendant exercised his Fifth Amendment right; moreover, it noted that

a cautionary instruction could not cure the violation. Jd. Unlike in

Bruton, here Kutska did not exercise his Fifth Amendment privilege;

rather, he took the stand and was cross-examined.

In addition, even if the trial court committed error by denying the motion

to sever, any error under § 971.12(3), STATS., and Bruton was

consequently rendered harmless by Kutska’s eventually testifying in his

own defense and his codefendants’ opportunity to cross-examine him

concerning his alleged statements to Kellner naming them as participants

in the confrontation with Monfils. See State v. King, 205 Wis.2d 81, 94-

95, 555 N.W.2d 189, 194-95 (Ct. App. 1996).

App. 25

sentence and nature of his crime were irrelevant and

collateral. Significantly, in response to the State’s questions,

Wiener testified on both direct and cross-examination that the

State made him no promises in exchange for his testimony.

When Basten’s counsel asked if Wiener had directed his

attorney to continue negotiations on his behalf, the trial court

sustained the State’s relevancy objection.

The scope of cross-examination for impeachment

purposes is within the trial court’s sound discretion, Rogers

v. State, 93 Wis.2d 682, 689, 287 N.W.2d 774, 777 (1980),

and we will affirm if there is a reasonable basis for the trial

court’s determination. State v. McCall, 202 Wis.2d 29, 35,

549 N.W.2d 418, 421 (1996). When a witness believes that

the State may benefit him if he shades his testimony, the

defendant has a constitutional right to explore potential bias.

Lindh v. Murphy, 124 F.3d 899, 901 (7th Cir. 1997).

However, a defendant’s constitutional right to confrontation

does not include the right to present irrelevant, immaterial, or

prejudicial evidence. See McCall, 202 Wis.2d at 44, 549

N.W.2d at 424. Courts should permit inquiry into crimes

unrelated to its case when the State and the witness made a

deal in exchange for the witness’s testimony in the case [25]

then before the court. See id. at 42, 549 N.W.2d at 423 (no

misuse of discretion when the trial court concluded that

“further inquiry into the existence of an alleged, though

unproven agreement, would be wholly distracting and

speculative”). In this case, Wiener’s testimony that he had

made no deal with the State provides a reasonable basis for

the trial court’s decision. The trial court properly prohibited

further inquiry into this alleged, but unproven agreement.

See id. There was no violation of Piaskowski’s right to

confrontation.

App. 26

6. Exculpatory Evidence

Piaskowski argues the State failed to disclose it had

information that a previous statement of Kellner’s contained

inaccuracies. About six weeks before trial, Kellner spoke to

Piaskowski’s investigator and told him that he had

misgivings about the statement he had previously given to

police. As a result, Kellner gave a new statement in which he

indicated that all of Kutska’s statements began with “What

if” or “this is what the police thing.” The State contends that

it obtained a copy of the new statement and disseminated it to

all defendants. Then, about a week before trial, Kellner met

with the State to discuss the differences between the two

statements. The State’s failure to disclose the contents of this

discussion form the basis of Piaskowski’s objection.

Due process requires disclosure of evidence that is

both favorable to the accused and material either to guilt or

punishment. State v. Ray, 166 Wis.2d 855, 870, 481 N.W.2d

288, 294 (Ct. App. 1992) (citing State v. Garrity, 161 Wis.2d

842, 848, 469 N.W.2d 219, 221 (Ct. App. 1991)). Evidence

is material only “if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Jd. A reasonable

probability is one “sufficient to undermine confidence in the

outcome.” [26] Id. While we agree that the new statement is

favorable to Piaskowski, we conclude that it was not

material.

Under the Brady materiality test, there is no

reasonable probability that had the State given the

information to Piaskowski, a different result would have

occurred. Kellner still would have been subject to

impeachment based on his several statements and the

ultimate determination of believability would still have

remained in the hands of the jury, which evaluates the

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App. 27

versions and decides which, if either, to believe. The

inconsistencies in Kellner’s second statement are not

sufficient to undermine our confidence that the outcome

would change. We recognize that disclosure of Kellner’s

misgivings would have been helpful to Piaskowski; however,

the State is not under a constitutional obligation to provide

Piaskowski with discovery of helpful, but nonexculpatory

evidence. See State v. Denny, 120 Wis.2d 614, 628, 357

N.W.2d 12, 19 (Ct. App. 1984).

7. Randy Winkler’s Personnel Records

Finally, Piaskowski asks this court to review Randy

Winkler’s sealed personnel records to determine whether they

impeach his credibility. The trial court conducted an in-

cameral review and determined that the records were

irrelevant to Winkler’s credibility.'® In denying to turn the

file over to the defense, the trial court noted that the file did

not demonstrate any complaints or concerns about Winkler’s

investigation of the Monfils murder, but instead concerns

[27] unrelated personnel matters. Further, the trial court

found that Winkler’s credibility was repeatedly attached

during trial. Under State v. O’Brien, 214 Wis.2d 327, 340,

572 N.W.2d 870, 876-77 (Ct. App. 1997), the party filing the

postconviction request must convince the trial court, among

other things, that the anticipated results of the postconviction

discovery are relevant. Jd. We review the trial court’s

relevancy finding for a misuse of discretion. Id. at 341, 572

N.W.2d at 877-78. As appellant counsel requested in his

'> In his reply brief, Piaskowski argues for the first time that he has

constitutional right to exculpatory evidence (here the personnel records)

in the State’s possession, citing Kyles v. Whitley, 514 U.S. 419, 433-34

(1995), and Giglio v. United States, 405 U.S. 150, 154 (1972). A party

cannot raise an argument for the first time in a reply brief, so we decline

to consider this argument. See Hogan v. Musolf, 157 Wis.2d 362, 381

n.16, 459 N.W.2d 865, 873 n.16 (Ct. App. 1990), rev’d on other grounds,

163 Wis.2d 1, 471 N.W.2d 216 (1991).

App. 28

brief, we have reviewed Winkler’s entire personnel file.

After reviewing the file, we agree with the trial court’s

conclusion that its contents are irrelevant. Accordingly, we

affirm the trial court’s denial of Piaskowski’s request for

postconviction discovery.

By the Court. - Judgment and order affirmed.

Not recommended for publication in the official

reports.