# Petition for Writ of Certiorari — Piaskowski v. Wisconsin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1035

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1501%3A1. Public record. Not legal advice.