Opposition Brief — Piaskowski v. Wisconsin

No. 98-1556

In The

Supreme Court of the United States

October Term, 1998

a $

MICHAEL L. PIASKOWSKI,

Petitioner,

V.

STATE OF WISCONSIN,

Respondent.

¢.

CERTIORARI TO REVIEW A DECISION OF THE

WISCONSIN COURT OF APPEALS

e

BRIEF IN OPPOSITION TO PETITION

JAMES E. DOYLE

Attorney General of Wisconsin

THOMAS J. BALISTRERI

Assistant Attorney General

Attorney of Record

Attorneys for Respondent

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-1523

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TABLE OF CONTENTS

ARGUMENT ccsccsncorecscessseconsssecernrowesvososnpesovcuseatvoviaessenssstonness l

I. THE CREDIBLE EVIDENCE WAS

SUFFICIENT TO CONVICT THE

PETITIONER OF FIRST-DEGREE

INTENTIONAL HOMICIDE. ............ccceeseeees l

IT. THE ADMISSION OF THE

EXTRAJUDICIAL STATEMENTS

OF A CODEFENDANT AT THE

PETITIONER'S TRIAL DOES NOT

PRESENT AN ISSUE MERITING

REVIEW BY THE SUPREME

CRTC E « cesincicccescajtanvsnisssshedienisanesantatereinesciess 1]

A. The Petitioner Lacks Standing

To Complain That His Right

To Confrontation Was Denied. ........ 1}

B. Kutska’'s Prior Statements,

Which Were Against His Penal

Interest, Were Sufficiently

Trustworthy That They Were

Admissible Against All The

Other Defendants Even In The

Absence Of Confrontation................ 15

COINCLIUGIOIN sccssieecsscnsicsssssoniscesccccocsesssuvessesnstoahqiiioorvarestont 20

il

CASES CITED

Page

Anderson vy. City of Bessemer City,

© FS Tika SI a Ot iiss diienihaxishiohioesec ues 3,4

Burks v. United States,

RST SEs 0 aE ei ctstatonvataigtintindinipinenteldninsasnmnman 3

Durrett v. CIR,

TE FSG SUS Ca Cah Fe ilies nin richie canteen htitenias 4

Gelosi v. State,

213 Wie. G49, 25S PE Wey. Soe Cee ciiawtatnsssntnbictsicees 9-10

Guerra v. Johnson,

OO FS BTS Co aes Finis bactientathtinieeicncnacesinn 4

Harrison vy. United States,

Sk Sethe BAe wiht class arecictcohcnamieeinseaniaesatelgas 14

Jackson v. Virginia,

GG AIS SOT CS Tai civics kensitet le aicattee nS 3

Kentucky v. Stincer,

Gd SE Fae idle cds aikcellingsnteanennsteshaoncink 12,13

LaChance v. Erickson,

SEG FB: KBs Fae ee et sackcdatbtiscesNadipstiscucgtecthabaiancstasebecks 14

Lee v. Illinois,

O76 TIS. S50 CAPD vintncesesiccehaaciinstadercelies 13, 16, 19

Lockhart v. Nelson,

ROG UF TB, FS Fi Feed ccinsactsctencsaseiccdictatcbdceeadatsteinssae cians 3

PT RNR ET FIR TNR RRR n=

iii

Page

Maryland v. Craig,

Pe Ay PEM iailesissicicidtttinrsicscic sada ie 13

Mitchell v. United States,

WR We OUT GO BO IO yi chcrcccinccesictsneoesecshn ccs 3k 4

O'Neil v. State,

237 Wis. 391, 296 N.W. 96 (1941) ..cccccccecescseeees 9, 11:17

Patton v. United States,

688 A.2d 408 (D.C.),

cert, denied, 117 S. Ct. 1717 (1997) ....0....ecceccocesse.s.,... 14

Pollack v. State,

215 Wis. 200, 253 N.W. 560,

a On a 11,18

Raines v. Byrd,

ee ey MOOR CII FD accensteccantiihetie seins. 11, 12, 14

Rodgers v. Western-Southern Life Ins. Co.,

ie re ATU GRE, APPS eek dis 4

Scaria v. St. Paul Fire and Marine Ins. Co.,

68 Wis. 2d 1, 227 N.W.2d 647 (1975) .o...c.cecccecesescsceees 17

Schlup v. Delo,

ee Rn iis do a ae 3

State v. Bachmeyer,

247 Wis. 294, 19 N.W.2d 261 (1945)... cccccccccscscecceceee. 1]

State v. Denny,

163 Wis. 2d 352, 471 N.W.2d 606

SEG, © Ber SURE TEIRSE so o A a 16

iV

Page

State v. Dyleski,

154 Wis. 2d 306, 452 N.W.2d 794

Se RE. Hae ROSES ey Oe Ve REE RS ED AiO EC NS 18

State v. Glenn,

199 Wis. 2d 575, 545 N.W.2d 230 (1996) 0.0... ...cceceseees 17

State v. Guiden,

46 Wis. 2d 328, 174 N.W.2d 488 (1970)................... 19

State v. Pharr,

115 Wis. 2d 334, 340 N.W.2d 498 (1983).............ccceeee 17

State v. Poellinger,

153 Wis. 2d 493, 451 N.W.2d 752 (1990) ................000 4 ;

State v. Stevens,

171 Wis. 2d 106, 490 N.W.2d 753

CA BOR: TIVE icccienvsisenthaeenniesabae 18-19

State v. Zelenka,

130 Wis. 2d 34, 387 N.W.2d 55 (1986)..............:cccceeceees 9

Steel Co. v. Citizens For A Better Environment,

138 Bi, Ce. BS Cae ckcriienntibcttesecenodee 11

United States v. Bohle, ;

eh Rete Le ABA fk RR eine U nig ms or 14 |

United States v. Powell,

GP AIS BF Ee aiissteckinsiinnsachuisesbisonincacababeiseens 3

Whitmore v. Arkansas,

BOS TF DP Cyr wise cacsnktks ccdha din tacdeleoicisidlaiodel 12,14

Page

Williamson v. United States,

PE rtbe: SIE CE IUD sinisdicaeninsbcilacidachiois dsnlesacetcs 15, 16, 17

Zelenka v. State,

83 Wis. 2d 601, 266 N.W.2d 279 (1978) ....ccccccccscescesees 18

STATUTES AND RULES CITED

POUL. SRM TEVA. DU Bic ccsi dines 15

Wis. Stat. § 908.045(4)

Rules of Evidence (1997-98) .......0..00ccsscscassececssessecseeecs 19

Wis. Stat. § 939.05(2)(c) (1997-98) oo... .cceccccccsceseesescesees 11,17

Wan, Sree, BP EO CTT a co isecea ce eg 8

Wee. Beet, 6 Os £19 oP Oiikd e S

OTHER AUTHORITY CITED

Judicial Council Committee's Note,

PP: WU DOM ALO CGT skiing 17

No. 98-1556

In The

Supreme Court of the United States

October Term, 1998

+

MICHAEL L. PIASKOWSKI,

Petitioner,

V.

STATE OF WISCONSIN,

Respondent.

*

CERTIORARI TO REVIEW A DECISION OF THE

WISCONSIN COURT OF APPEALS

+

BRIEF IN OPPOSITION TO PETITION

¢

ARGUMENT

I, THE CREDIBLE EVIDENCE WAS

SUFFICIENT TO CONVICT THE

PETITIONER OF FIRST-DEGREE

INTENTIONAL HOMICIDE.

The petitioner, Michael L. Piaskowski, asks this

Court to decide whether his right to due process was violated

when the Wisconsin Court of Appeals sustained his

conviction of first-degree intentional homicide on the basis of

2

evidence which the trial court considered too incredible to

support the conviction,

This question is not presented under the facts of this

case because the trial court never made any such finding. 7

The joint trial of all six defendants in this case was to

a jury, not the court.

In deciding the postconviction motion of codefendant

Dale Basten,’ the trial court found that "[a]t the conclusion of

the State's case, there was more than adequate credible

evidence which would have allowed the jury to find all

defendants guilty." Decision and Order, Case No. 95-CF-

00242, at 13-14, Respondent's Appendix at 8.

The trial court further determined that a new trial was

not warranted by the partial recantation of prosecution

witness Brian Kellner's trial testimony recounting statements

of codefendant Keith Kutska about the events which led to

the murder of Thomas Monfils.

In the context of the discussion of this issue, the court

noted that Kellner committed perjury either at the trial when

he gave his testimony or at the postconviction hearing when

he recanted part of that testimony. /d. at 3, Appendix at 3.

The court opined that Kellner's trial testimony was "barely

credible," but credible nevertheless. Jd. Obversely, the court

had difficulty accepting Kellner's recantation as credible, and

doubted that a jury would believe it. /d. at 4-5, Appendix at

-

ia el a cee ae ee

Ce ee

Or Fe

aeRO RAE OR RCA NR Be ENE

Thus, the trial court, while not giving the veracity of

Kellner's trial testimony a solid endorsement, indicated that it :

was sufficiently credible for the jury to believe and rely on in

reaching their verdicts.

‘Basten was the first of the six defendants to file a

postconviction motion. In deciding Piaskowski's separate postconviction

motion, the court for the most part incorporated rulings it had made in the

earlier motions of other defendants. Decision and Order, Case No. 95-CF-

00239, at 7, Respondent's Appendix at 12.

3

But even if the trial court had found Kellner's trial

testimony incredible, any such finding would be irrelevant on

appellate review of the sufficiency of the evidence.

Under standards established by this Court, review to

confirm whether the evidence was sufficient to support a

criminal conviction involves an assessment of whether the

evidence could support any reasonable determination of guilt

beyond a reasonable doubt. See United States v. Powell, 469

U.S. 57, 67 (1984).

The question is not whether the reviewing court

believes the defendant is guilty, but whether any rational trier

of fact could have made that finding under the state law

defining the offense on the evidence viewed in the light most

favorable to the prosecution. See Jackson vy. Virginia, 443 U.S.

307, 319, 324 (1979). All the favorable evidence, even any

which has been admitted erroneously, must be considered. See

Lockhart v. Nelson, 488 U.S. 33, 40-42 (1988).

It is the responsibility of the trier of fact to resolve

conflicts in the evidence, weigh the evidence, and draw

reasonable inferences from it. See Jackson v. Virginia, 443

U.S. at 319.

Thus, a court faced with a record of historical facts

which support conflicting inferences must presume that the

trier of fact resolved any such conflicts in favor of the

prosecution, and must defer to that resolution. See id. at 326.

If there is a plausible account of the evidence which

supports the conclusion of the trier of fact, a reviewing court

may not reverse even though as factfinder it would have

weighed the evidence differently and come to a different

conclusion. See Anderson v. City of Bessemer City, 470 U.S.

564, 573-74 (1985).

More important here, an assessment of the credibility of

the witnesses is generally beyond the scope of the review. See

Schlup v. Delo, 513 U.S. 298, 330 (1995). Even the trial court,

which has heard the testimony itself, is not to assess the

credibility of the witnesses or weigh the evidence in reviewing

the sufficiency of the evidence. See Burks v. United States, 437

U.S. 1, 16 (1978).

4

The credibility of testimony may be second-guessed

only in the very rarest of circumstances, see Durrett v. CIR,

71 F.3d 515, 517 (Sth Cir. 1996), where it is contradicted by

indisputable documentary or physical evidence, or is so

inherently inconsistent or implausible on its face that no

reasonable factfinder could believe it. See Anderson v. City of

Bessemer City, 470 U.S. at 575. See also Mitchell vy. United

States, 141 F.3d 8, 17 (ist Cir. 1998); Guerra v. Johnson, 90

F.3d 1075, 1079 (Sth Cir. 1996); Rodgers v. Western-

Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993).

Piaskowski does not appear to assert that the trial

court ruled Kellner's testimony was incredible as a matter of

law. He asserts only that the court "considered" the testimony

"too incredible" to support his conviction, Petition for

Certiorari, Questions Presented, suggesting that the judge

made his own subjective assessment of Kellner's credibility,

and found it insufficient to convince him.

But applying the rules discussed above, if a trial court

improperly substitutes its own view of the credibility of

testimony which the jury could have lawfully found credible,

an appellate court, in reviewing the sufficiency of the

evidence de novo, may simply ignore the finding which the

trial court had no right to make.

Moreover, even if a trial court concludes in its review

of the jury's verdict that evidence is incredible as a matter of

law, that ruling, like any other legal conclusion of a lower

court, is subject to reversal if the appellate court determines

that it is erroneous.

So even if Piaskowski had asserted that the trial court

ruled Kellner's testimony was incredible as a matter of law,

he would still not have shown any constitutional defect in his

*Wisconsin employs the same standards on appellate review of

the sufficiency of the evidence. See State v. Piaskowski, No. 97-2104-

CR, slip op. at 2-3, Petitioner's Appendix at 2-3 (Wis. Ct. App. Sept. 22,

1998) (citing State v. Poellinger, 153 Wis. 2d 493, 506-08, 451 N.W.2d

752, 757-58 (1990)).

icieecamne Sonathaeta erties ace

5

conviction for he makes no argument that the state appellate

court could not have properly reversed any such ruling.

With Kellner's testimony thus subject to the usual rule

that credibility is no concern of either a trial or appellate

court reviewing the sufficiency of the evidence, the court of

appeals properly concluded that the evidence of record was

sufficient to convict Piaskowski of first-degree intentional

homicide as a party to the crime.

No single witness provided evidence which proved by

itself that Piaskowski was involved in a conspiracy to kill

Thomas Monfils. But sifting and winnowing the testimony of

the various witnesses who testified in this twenty-nine day trial,

drawing reasonable inferences from the testimony they

believed, and putting it all together, the jury could have

reasonably found that the police received an anonymous call

reporting that Keith Kutska, an employee at the James River

paper mill in Green Bay, was going to steal an expensive

electrical cord at the end of his work shift. Transcript (9/28/95)

at 23-26.°

A security guard at the mill tried to stop Kutska when

he left work, but Kutska bolted out the door without letting the

guard inspect his bag. Jd. at 32-33. Because of his evasion, he

was suspended for five days. Transcript (10/12/95) at 217-18.

Kutska was upset about the suspension and decided to

find out who snitched on him. Transcript (10/16/95) at 239-41;

(10/17/95 PM) at 63-65.

Despite the fact that Kutska had stolen the cord,

Transcript (10/12/95) at 214-15, he asked the police for a

recording of the anonymous call so he could "clear his name."

Transcript (9/28/95) at 40, 43. And despite the fact that the

informant called again and pleaded with the police not to

release the recording because he feared his voice would be

*The respondent has included citations to the record to show that

every statement of fact can be documented. Because the transcripts are

voluminous, however, the respondent hesitates to send them unless the

Court deems them necessary to decide this petition. The respondent will

of course promptly provide any and all transcripts needed by the Court.

6

recognized, the police gave Kutska a copy of the tape.

Transcript (9/28/95) at 43, 46, 49-50, 54; (10/16/95) at 241-42.

Kutska immediately recognized the voice on the

recording as that of Thomas Monfils. Transcript (10/16/95) at

243.

Shortly after seven the next morning, Kutska

confronted Monfils with the tape in the control room or "coop"

of the number seven paper machine at the James River mill.

Transcript (10/12/95) at 259-62.‘ Monfils admitted it was his

voice on the recording. Jd. at 262-63.

Kutska then played the tape in the coop of the

neighboring number nine machine for a group which included

Dale Basten, Michael Hirn, Michael Johnson, Reynold Moore,

and Michael Piaskowski. Transcript (10/4/95) at 239-40;

(10/5/95) at 3-6.

Kutska implied that he did not take the cord, and was

falsely accused by Monfils. Transcript (10/17/95 AM) at 46-

47. He told Moore and Hirn, a good instigator, that they should

give Monfils some "shit" for snitching on a fellow union

brother. Transcript (10/5/95) at 8; (10/16/95) at 262; (10/17/95

PM) at 83-84. See Transcript (9/28/95) at 142; (10/6/95) at 300.

The men in the number nine coop became ever angrier

as each of them fed off the comments made by another.

Transcript (10/2/95) at 31, 115; (10/3/95) at 84-85; (10/18/95)

at 33-34; (10/19/95 AM) at 118; (10/19/95 PM) at 66. Finally

they decided to let Monfils know how they felt about Kutska's

suspension. Transcript (10/5/95) at 7, 75-76.

Monfils left the number seven coop to perform a

periodic operation known as a "turnover." Transcript (9/28/95)

at 147-49. When he finished about 7:35 am., he was

surrounded and confronted near the bubbler across from the

paper machines by the entire group from the neighboring

control room. Transcript (9/29/95) at 82; (10/5/95) at 7-8, 63,

*A floor plan of the areas of the paper mill where the events in this

case took place is included in the Appendix at 13.

7

102, 218; (10/12/95) at 276; (10/13/95) at 169-70; (10/14/95) at

38-39; (10/17/95 AM) at 60.

They started hollering and swearing at Monfils.

Transcript (10/5/95) at 9, 77. Hirn shoved him. Transcript

(10/5/95) at 12; (10/13/95) at 130-32. Kutska punched him in

the face. Transcript (10/13/95) at 170. Moore hit him on the

back of the head. Transcript (10/5/95) at 10; (10/13/95) at 131-

32, 170-71. Then everyone joined in kicking and beating him.

Transcript (10/13/95) at 169-70, 182.

Monfils suffered numerous injuries to his head, neck,

chest and abdomen, including a depressed fracture on the back

of his skull. Transcript (10/4/95) at 185-98, 204, 208. At the

end of the attack, he was unconscious but alive, lying there

curled up in a ball. Transcript (10/4/95) at 222; (10/13/95) at

183.

About 7:40 a.m., David Wiener observed Basten and

Johnson in an area which connects the paper machines with the

vat or "dump chest" which supplies paper pulp to the machines.

Transcript (9/29/95) at 225; (10/4/95) at 60; (10/6/95) at 128:

(10/9/95) at 94-97. Johnson was walking backwards, about five

or six feet ahead of Basten. Transcript (10/9/95) at 98. Both

were bent over, and appeared to be carrying something,

although Wiener could not see what it was. Jd. at 98-99. They

were heading south, toward the vat. Transcript (10/4/95) at 60;

(10/9/95) at 100.

About 7:45 a.m., Kutska, Piaskowski and Moore

entered the number seven coop. Transcript (9/28/95) at 156- 57;

(9/29/95) at 21; (10/11/95) at 92-93.

Kutska told Piaskowski to notify a supervisor that

Monfils was missing. Transcript (9/28/95) at 159. Piaskowski

told the supervisor that "[s]ome heavy shit [wa]s coming

down." Transcript (10/3/95) at 207-09, 216; (10/11/95) at 99-

101. A search for Monfils began. Transcript (10/2/95) at 228;

(10/3/95) at 221-29.

Monfils's body was found when the pulp vat was

drained. Transcript (10/4/95) at 16, 157. A weight which had

been kept near the number seven machine was tied around his

ET CORO NOOR SS ie TE ae ee ee

8

neck with a rope from the same location. Transcript (9/29/95)

at 4-7; (10/4/95) at 159-60, 172-73.

Monfils was unconscious but alive when he was

thrown into the vat. Transcript (10/4/95) at 177-78, 222. He

died by asphyxiation due to aspiration of paper pulp and

ligature strangulation. /d. at 177-78, 200.

After the body was found, Basten kept coming to

Wiener’s work area to determine what could be seen from the

table where Wiener had been sitting, and to find out what

Wiener knew. Transcript (10/9/95) at 112-14, 207, 228-33;

(10/10/95 AM) at 60-61. He suggested that Monfils could have

suffered a specific injury which had not been made public.

Transcript (10/10/95 PM) at 26-28.

When Basten was questioned by the police, he started

to cry, and said he did not mean to kill Monfils. Transcript

(10/13/95) at 240.

After his arrest, he called Wiener a "fuckin' squealer,"

Transcript (10/13/95) at 127-28, and said he should have left

town when the police started questioning him because now

they knew for a fact that "we did the shit." Jd. at 124.

Because all six men who participated in the beating

were subject to dismissal from their jobs, see Transcript

(10/10/95 PM) at 17, not to mention prosecution for a serious

felony, see Wis. Stats. §§ 940.19, 940.23 (1997-98), they all

had a strong motive for disposing of the evidence of their rage,

i.e., the person who could tell his employer and the police

about the beating, and whose severely beaten body poner

incontrovertible physical evidence of that fact.

Because two of those men, Basten and Johnson, were

carrying something about the length of a body from the area

where Monfils was beaten toward the vat where his body was

found, in the brief interval between the time he was beaten and

the time he was reported missing, the jury could reasonably

infer that they were carrying the injured and unconscious

Monfils to the vat.

Because Basten and Johnson carried Monfils to the vat,

and because Basten by word and deed virtually admitted his

responsibility for Monfils's death, the jury could reasonably

PINS POEL A ee AE LE RENAE NN NOOR IE ON LT NER Ne ee

NR Te OEY LEAT TIME EM ORR TPE PUPED ye

: 9

infer that they were the ones who threw him in. Since Montfils

was unconscious with a heavy weight roped around his neck,

the jury could reasonably conclude that Basten and Johnson

intended to kill him when they threw him into the mucky pulp.

Although Piaskowski did not directly kill Monfils, he

was equally liable for the homicide as a party to the crime. °

The jury could have reasonably inferred that

Piaskowski was a party to a conspiracy to severely beat

Monfils.

Under substantive Wisconsin law,

"A mere tacit understanding between

conspirators to work to a common purpose is

all that is essential to a guilty actionable

combination. . . . Mutuality in the under-

taking may be secured without any express

agreement and without a spoken or written

word between the conspirators ... or their,

even, all knowing ... the precise thing to be

accomplished or plans for its accomplishment

... being distinctly stated by any member of

the combine to any other member,"

O'Neil v. State, 237 Wis. 391, 404-05, 296 N.W. 96, 102

(1941).

Since all six men incited by Kutska participated in the

confrontation and beating of Monfils, it could reasonably be

inferred that all six agreed with each other that he should be

beaten because he was a snitch.

A conspiracy continues while the conspirators take

active measures to prevent discovery of the crime or those

connected with its commission. See Gelosi v. State, 215 Wis.

*The case was submitted to the jury on both the conspiracy and

aiding-and-abetting theories of party-to-a-crime liability. Transcript

(10/26/95) at 10-12. The prosecutor argued that Piaskowski was guilty

under both theories. /d. at 140. Under state law, these are simply different

manners of participating in the same offense about which the jury does

not have to unanimously agree. See State v. Zelenka, 130 Wis. 2d 34, 47,

387 N.W.2d 55, 61 (1986).

10

649, 655-56, 255 N.W. 893, 895-96 (1934). So when a crime is

committed under circumstances where a body must be

disposed of to avoid detection, the conspiracy persists until the

disposition is accomplished. See id.

Here, the jury could have reasonably found that the

conspiracy among those who confronted and beat Monfils

persisted until he was disposed of to avoid detection. All six

contributed to the mass of injuries which provided the same

motive for all of them to erase the evidence of their mutual

misdeeds. They all had a powerful reason to continue to act

together, therefore, after the beating was completed.

It can reasonably be inferred that Kutska, Piaskowski

and Moore, who were there when Monfils was beaten and were

still together afterwards, knew what happened to Monfils. They

returned to the number seven coop a few minutes after Monfils

was dragged to the vat, suggesting they remained at the scene

of the beating while Monfils was removed. When they

returned, Piaskowski told a supervisor at Kutska's direction that

Monfils was missing and some "heavy shit" was coming down.

They could not have known so soon that Monfils was missing

because of some "heavy shit" unless they knew he was dumped

in the vat.

Yet knowing that Monfils was thrown into a pulp vat

where he would surely die, neither Kutska, Piaskowski nor

Moore made any effort to prevent his death by alerting anyone

to the nature of his fate. Their collective silence under these

circumstances suggests they all agreed that Monfils should

killed.

Under these circumstances, it could reasonably be

inferred that all the original conspirators, including Piaskowski,

agreed at least tacitly after the beating to dispose of both the

physical evidence of the beating and the witness who could

cost the persons who beat him their jobs and their freedom by

throwing Monfils into the pulp vat where he would die and his

body would soon decompose into inconspicuous paper pulp.

One who tacitly consents to the object of a conspiracy

is guilty even though he intends to take no active part in the

crime, but stands by while others put the common plan into

11

effect. See O'Neil v. State, 237 Wis. at 405, 296 N.W. at 102.

Each conspirator is criminally responsible for the acts of any

associates, which become the acts of all. See State v.

Bachmeyer, 247 Wis. 294, 299, 19 N.W.2d 261, 263 (1945);

Pollack v. State, 215 Wis. 200, 212, 214, 253 N.W. 560, 565,

254 N.W. 471 (1934).

And although Piaskowski's culpability may not have

been as great as some other members of the conspiracy, he is

still guilty of first-degree intentional homicide since each

conspirator is guilty of the same offense as the direct

perpetrator of the crime. See id; Wis. Stat. § 939.05(2)c)

(1997-98).

The evidence adduced at the trial was sufficient to

permit the jury to find that Basten intentionally killed

Monfils by throwing him into a pulp vat with a weight

around his neck to conceal the severe beating he had suffered

at the hands of Basten and his companions, and that Basten's

companion Piaskowski was a party to this crime.

Il. THE ADMISSION OF _ THE

EXTRAJUDICIAL STATEMENTS

OF A CODEFENDANT AT THE

PETITIONER'S TRIAL DOES NOT

PRESENT AN ISSUE MERITING

REVIEW BY THE SUPREME

~ COURT.

A. The Petitioner Lacks Standing

To Complain That His Right

To Confrontation Was Denied.

The party invoking the jurisdiction of a federal court

has the burden to establish that the court has jurisdiction. See

Steel Co. v. Citizens For A Better Environment, 118 S. Ct.

1003, 1016-17 (1998). This Court has always insisted on

strict compliance with this requirement. See Raines v. Byrd,

117 S. Ct. 2312, 2317 (1997).

12

To establish jurisdiction, the party must show that he

has standing to sue. See id. And to show standing, he must

clearly and specifically set forth facts sufficient to show that

he has personally suffered an injury, fairly traceable to the

opponent's unlawful conduct, and likely to be redressed by

the requested relief. See id.; Whitmore v. Arkansas, 495 U.S.

149, 155 (1990).

The alleged injury must be both qualitatively and

temporally concrete. See Whitmore v. Arkansas, 495 U.S. at

155. The injury must be palpable rather than abstract. See id.

And the harm must be actual rather than hypothetical. See id.

Futhermore, the alleged injury must be legally and

judicially cognizable, so it must be caused by an invasion of

a legally protected interest. See Raines v. Byrd, 117 S. Ct. at

2317.

The Confrontation Clause is violated when hearsay is

admitted as substantive evidence with no opportunity to

cross-examine the declarant at the trial. See Kentucky v.

Stincer, 482 U.S. 730, 737 (1987). Obversely, this provision

is not violated by the admission of an out-of-court statement

as long as the declarant testifies as a witness and is subject to

cross-examination. See id. at 737-38.

Piaskowski has no standing to argue in a federal court

that his right to confrontation was denied when the

extrajudicial statements of codefendant Keith Kutska were

admitted at their joint trial because Piaskowski confronted

and cross-examined Kutska.

Kutska testified at the trial. Transcript (10/16/95) at

232 et seq. Kutska addressed the subject matter of his prior

statements in his testimony. Jd. at 263-70. And Piaskowski

cross-examined Kutska about the statements attributed to

him. Transcript (10/17/95 AM) at 44-45.

Thus, Piaskowski suffered no actual, palpable injury

to his right to confrontation as the result of the admission of

Kutska's extrajudicial statements.

Piaskowski argues that he was prejudiced because he

would have obtained a directed verdict of acquittal at the

close of the state's case if Kutska's statements had been

omnes

13

barred under the Confrontation Clause during the state's case.

But this contention confuses hearsay and confrontation

objections to the admission of evidence.

If evidence is inherently inadmissible under a rule

prohibiting hearsay, the rule is violated as soon as the

evidence is erroneously introduced.

But as noted above, there are two necessary aspects to

a confrontation violation, admission of hearsay and absence

of cross-examination of the declarant. See Kentucky vy.

Stincer, 482 U.S. at 737-38. Thus, there can be no violation

of the right to confrontation unless and until the party against

whom an extrajudicial statement is admitted has been denied

any opportunity to confront and cross-examine the declarant.

See Lee v. Illinois, 476 U.S. 530, 541 (1986). This could

occur if the declarant is subsequently called to the stand and

refuses to testify, see id., or if he is not available to be called

during any portion of the trial.

As long as the declarant testifies and is available for

cross-examination, however, there is nothing in the

Confrontation Clause which distinguishes between

confrontation of the declarant during the state's case or

confrontation during the presentation of the defense

evidence. The critical consideration is that the party against

whom a statement is introduced has a full and fair

opportunity to probe testimonial infirmities such as

forgetfulness, confusion or evasion through cross-

examination of the person who supposedly spoke those

words, under oath, before the jury which can observe the

demeanor of the speaker, at some point during the trial itself.

See Maryland v. Craig, 497 U.S. 836, 845-47 (1990);

Kentucky v. Stincer, 482 U.S. at 737-38.

Piaskowski also appears to argue that his

confrontation of Kutska somehow does not count because

Kutska was forced to take the stand due to the admission of

his prior statements. But it is hard to see how this fact, even

if true, could endow Piaskowski with standing to claim that

his right to confrontation was violated.

a

14

In Harrison v. United States, 392 U.S. 219, 222-23

(1968), this Court held that the government could not use

against a defendant testimony he had given at a previous

trial, when he testified at that trial only because his illegally

procured confessions had been introduced first, thereby

tainting his testimony as the fruit of a poisonous tree.

Harrison does not apply, however, when there is a

claim that a defendant decided to testify because of the

erroneous admission of hearsay evidence since neither the

exclusionary rule nor its corollary fruits doctrine apply to

alleged procedural error in the admission of evidence as

distinguished from constitutional error in the procurement of

evidence. See Patton v. United States, 688 A.2d 408, 411-12

(D.C.), cert. denied, 117 S. Ct. 1717 (1997) (citing United

States v. Bohle, 475 F.2d 872, 875-76 (2d Cir. 1973), and

other cases).

Besides, even if Kutska's rights had been violated by

forcing him to testify in response to the admission of his

extrajudicial statements, it would not help Piaskowski since,

to establish standing, a defendant must show a violation of

his own rights, not those of some third party. See Raines v.

Byrd, 117 S. Ct. at 2317; Whitmore v. Arkansas, 495 U.S. at

155.

In any event, the record shows that Kutska did not

decide to testify only because his prior statements had been

introduced by the prosecution, but was planning to take the

stand all along.

The introduction of Kutska’s statements at the criminal

trial could not have provided compulsion for him to testify at

the earlier deposition in the civil case brought by Monfils's

widow, yet he did testify there about the subject matter of his

statements, Transcript (10/12/95) at 282-90, despite the fact

that he could have refused to testify at all in reliance on his

privilege against self-incrimination. See LaChance v. Erickson,

118 S. Ct. 753, 756 (1998).

Furthermore, Kutska did not limit his trial testimony to

rebutting the statements the prosecution had introduced.

Rather, he gave a full account of his version of events. See

—$ $$$ $$ $$$

15

Transcript (10/16/95) at 232 et seq. It was only at the end of his

direct testimony that he addressed the assertions which had

been attributed to him by a witness for the state. Transcript

(10/17/95 AM) at 23. The very nature of Kutska's testimony

thus suggests that the introduction of his prior statements

played little if any role in his decision to testify at the criminal

trial.

Moreover, all six defendants took the stand in their own

defense at trial. Transcript (10/16/95) at 232 et seq.; (10/18/95)

at 14 et seq.; (10/19/95 AM) at 81 et seq.; (10/19/95 PM) at

137 et seq.; (10/21/95) at 46 et seq.; (10/24/95) at 63 et seq.

This unanimous decision to testify strongly implies that

Kutska's reason for testifying was not unique, and that all the

defendants had the same motive to get their version of the story

heard.

Piaskowski's claim that he was denied his right to

confrontation presents no case or controversy within the

jurisdiction of this Court.

B. Kutska’'s Prior Statements,

Which Were Against His Penal

Interest, Were Sufficiently

Trustworthy That They Were

Admissible Against All The

Other Defendants Even In The

Absence Of Confrontation.

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

this Court construed the federal rule of evidence which

creates a hearsay exception for statements against interest to

apply only to those parts of a statement which are actually

against the interest of the declarant. Under the Court's

construction, Fed. Rule Evid. 804(b)(3) does not allow

admission of non-self-inculpatory parts of a _ broader

statement which is inculpatory. See Williamson v. United

States, 512 U.S. at 599-601.

a i

ee nn ee ee

16

In Williamson, this Court found it unnecessary to

address the defendant's additional claim that the statements

introduced against him were also inadmissible under the

Confrontation Clause. See id., 512 U.S. at 605. In particular,

the Court declined to decide whether the hearsay exception

for declarations against penal interest was so firmly rooted as

to dispense with the need for confrontation of the declarant,

although it noted that “the very fact that a statement is

genuinely self-inculpatory . . . is itself one of the

‘particularized guarantees of trustworthiness’ that makes a

statement admissible under the Confrontation Clause." /d.

(citing Lee v. Illinois, 476 U.S. at 543-45).

There is no need for the Court to reach the unresolved

constitutional issues in this case for, in addition to the fact

that Piaskowski did confront and cross-examine Kutska

about his prior statements at the trial, all parts of the

statements which were admitted in evidence were sufficiently

trustworthy to dispense with the need for confrontation.°

Kutska's statements were not confessions resulting

from police interrogation of an arrested defendant. Rather,

they were volunteered to a group of friends at a social event.

Transcript (10/4/95) at 237-40. So they are not less credible

than ordinary hearsay because of any motivation of the

declarant to exonerate himself at the expense of another

defendant. See generally Lee v. Illinois, 476 U.S. at 541.

Although they did not amount to an admission that he

killed Monfils, Kutska's assertions that he played the tape of

Monfils's police call for his union brothers, that he encouraged

his brothers to give Monfils "shit," that "they" decided to

confront Monfils about the tape, that "they" surrounded

Monfils at Kutska's direction, that "they" started yelling and

swearing at Monfils, that at least two of the group hit Monfils

*Wisconsin courts have ruled that statements against interest are a

firmly-rooted hearsay exception, so reliability can be inferred. See State v.

Denny, 163 Wis. 2d 352, 358, 471 N.W.2d 606, 609 (Ct. App. 1991). The

respondent agrees with this ruling, but sees no need to have it seconded by

the Supreme Court.

: |

ee ee ee ee

17

while Kutska was present, and that Kutska did nothing to stop

- or even evince disapproval of either the verbal or physical

attacks, Transcript (10/4/95) at 239-40; (10/5/95) at 3-20, 63,

75-76, strongly tended to subject him to criminal liability as a

party to a conspiracy to commit a battery on Monfils.

One who tacitly consents to the object of a conspiracy

and goes along with the other conspirators is guilty although he

takes no active part in the crime but stands by while others put

the conspiracy into effect. See O'Neil v. State, 237 Wis. at 404-

05, 296 N.W. at 102.

Worse, since a party to a conspiracy may also be liable

for any death which results as a natural and probable

consequence of the intended offense, see State v. Pharr, 115

Wis. 2d 334, 349-50, 340 N.W.2d 498, 505 (1983); Wis. Stat.

§ 939.05(2)(c) (1997-98), Kutska's admission of participation

in a conspiracy to commit a battery tended to subject him to

liability for Monfils's death as a party to that naturally

consequential crime. Cf State v. Glenn, 199 Wis. 2d 575, 586-

89, 545 N.W.2d 230, 234-36 (1996) (party to aggravated

battery liable for death caused as natural consequence).

These statements had enough tendency to subject the

declarant to criminal liability that a reasonable person would

not have made them if they were not true, as convincingly

evinced by Kutska's continuing efforts to disavow them in his

own testimony. Transcript (10/17/95 AM) at 23, 44-45. The

applicable reasonable person standard, see Judicial Council

Committee's Note, 59 Wis. 2d at R318 (1973), is objective, see

Scaria v. St. Paul Fire and Marine Ins. Co., 68 Wis. 2d 1, 15,

227 N.W.2d 647, 655 (1975), and objectively Kutska's

statements were inculpatory.

Kutska's incriminating statements could not be

separated into some assertions which exclusively inculpated

him and other assertions which only inculpated others.

Rather, the statements inculpating all the defendants

were inexorably entwined since it was Kutska's involvement as

a party to the criminal acts committed by the other defendants

which incriminated him. See Williamson v. United States, 512

U.S. at 603. It was because the other defendants committed

18

criminal acts in the course of a conspiracy which led to

Monfils's death that Kutska's participation in the conspiracy

tended to subject him to criminal liability. See id. See generally

Pollack v. State, 215 Wis. at 214, 253 N.W. at 566 (each

conspirator criminally responsible for acts of any associates

which become acts of all).

Kutska claimed that he left before the beating of

Monfils was completed. But a party to a conspiracy cannot

absolve himself of liability for the acts of his accomplices so

easily.

"A conspirator cannot escape responsibility

for an act which is the natural result of a

criminal scheme which he has helped to

devise and carry forward because, as the result

either of fear or even of a better motive, he

concludes to run away at the very instant

when the act in question is about to be

committed and when the transaction which

immediately begets it has actually been

commenced."

Pollack v. State, 215 Wis. at 212, 253 N.W. at 565. Accord

State v. Dyleski, 154 Wis. 2d 306, 310, 452 N.W.2d 794, 796

(Ct. App. 1990); Zelenka v. State, 83 Wis. 2d 601, 621, 266

N.W.2d 279, 288 (1978).

A reasonable person in Kutska's position would have

realized that. any criminal acts he _ suggested his

coconspirators committed after he claimed to have left them

still inculpated him as well because he was still a member of

their conspiracy. So when Kutska implied that all the other

conspirators continued beating Monfils after he left,

Transcript (10/5/95) at 218, he was inculpating himself as

well as his companions in the continuation of the assault.

In addition to statements against penal interest,

extrajudicial statements which tend to make the declarant an

object of hatred, ridicule or disgrace are admissible under a

different provision of the Wisconsin hearsay exception for

statements against interest. See State v. Stevens, 171 Wis. 2d

Be Ste ident ’

ee

ee Oe PP, I ee et ee ee ee eh ee

19

106, 112, 490 N.W.2d 753, 756-57 (Ct. App. 1992); Wis. Stat.

§ 908.045(4), Rules of Evidence (1997-98).

A statement admitting responsibility for initiating a

physical confrontation with an innocent man who was horribly

murdered only minutes later would plainly tend to make the

declarant an object of hatred or disgrace in the eyes of the

community at large if it became known. And this additional

reason for not making statements which were not true bolsters

the reliability of Kutska's statements against his penal interest.

The reliability of Kutska's statements was further

supported by the testimony of another witness recounting the

statements of a different coconspirator which corroborated

Kutska's account of the confrontation leading to Monfils's

death. Transcript (10/13/95) at 130-31, 170, 181-83.

Piaskowski suggests that Kutska's statements were not

reliable because they were made while both the declarant and

the witness were drinking.

But the witness, Brian Kellner, testified that he did not

have that much to drink since beer made him sick. Transcript

(10/4/95) at 233-35. Kellner said that by the time Kutska

started talking about the confrontation of Monfils, he had

switched to drinking 7-Up. /d. at 237-38.

As far as the declarant, there is no evidence that Kutska

was so drunk he did not know what he was saying. Rather, it

appears he had reached "the condition of alcohol-induced

incandescence or being well-lit that lowers the threshold of

inhibitions," State v. Guiden, 46 Wis. 2d 328, 331, 174 N.W.2d

488, 490 (1970), so that he lost his natural reluctance to

incriminate himself to his friends.

Kutska's statements against his penal interest were

directly admissible against all the other defendants without

violating anyone's right to confrontation because they carried

particularized guarantees of trustworthiness which permitted

their admission whether or not statements against interest

constitute a firmly rooted hearsay exception. See generally

Lee v. Illinois, 476 U.S. at 543.

: |

CONCLUSION

It is therefore respectfully submitted that the petition 4

for a writ of certiorari should be denied.

JAME$

Aftorer scgnrsin

[ A |

OMAS J. BALISTRERI ;

Assistant Attofney General

Attorney of Record

Attorneys fot Respondent

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-1523

INDEX TO APPENDIX

Document Page of Appendix

Excerpt of Decision and Order

in State v. Dale M. Basten,

Case No. 95-CF-00242 1-9

Excerpt of Decision and Order

in State v. Michael Piaskowski,

Case No. 95-CF-00239 10-12

Floor Plan of Areas of Paper Mill 13

R-App. 1

STATE OF WISCONSIN CIRCUITCOURT BROWN COUNTY

STATE OF WISCONSIN,

Plaintiff(s)

-Vs- Case # 95 CF 00242

DALE M. BASTEN,

Defendant(s)

DECISION AND ORDER

Defendant Basten has requested this Court to grant him a

new trial, setting forth several grounds in reliance thereon.

The Court is also asked to reverse the conviction as it was

unsupported by sufficient evidence. Several of the grounds

have previously been raised, others are new at this time.

After having considered the arguments of counsel and briefs

filed in support of the motions, this Court must deny both

motions. The reasons therefor will be set forth in the same

order as they were advanced in defendant's brief.

NEWLY-DISCOVERED EVIDENCE

The oral argument and testimony presented at the motion

hearing focused heavily on the recantation of Brian Kellner.

It was also~ strenuously argued that newly-discovered

evidence reveals David Wiener, another prosecution witness,

gave false testimony. At trial, Brian Kellner, a co-worker of

the several defendants in the consolidated cases, testified to

an incident which occurred on the July 4th weekend in 1994

at the Fox Den bar. At the motion hearing on February 12

and 13, Mr. Kellner recanted a portion of his trial testimony.

He now says the answers he gave in response to questions as

to the identity of individuals at the "bubbler" confrontation

R-App. 2

were not truthful. He states he gave untruthful testimony

because he had been threatened by one of the investigating

officers, feared that he would go to jail and lose his children

if he did not testify as he did and also felt that his testimony

at the time did not matter. Testimony was presented at the

February motion hearing concerning the reasons for Mr.

Kellner's fears, that testimony being concerned chiefly with

the interrogation methods used by Sergeant Winkler of the

Green Bay Police Department. The State presented

testimony contradicting Mr. Kellner’s present testimony.

Clearly the testimony given at trial and the testimony now

proffered by Mr. Kellner is at odds. The question is does it

constitute such newly-discovered evidence as would justify a

new trial. State v. McCallum, 198 Wis. 2d 149, 542 N.W.2d

184 (Ct.App. 1995) sets forth the guidelines for this Court to

follow in making its determination.

Mr. Kellner's recantation is evidence which has come to

defendant's knowledge after trial and the defendant was not

negligent for failing to discover it prior to the pending

motions. Indeed, it did not exist until the actual change of

heart by Mr. Kellner. The questions this Court must resolve

are whether the evidence is material to the issue, whether it is

merely cumulative to previous testimony and whether it is

reasonably probable that a different result would be reached

in a new trial. It is also necessary that the recantation be

corroborated by other newly-discovered evidence.

Kellner's testimony was the subject of motions prior to trial.

As the defense brief mentions, the State argued during the

July 9, 1995 motion hearings that Mr. Kellner's testimony

was of great consequence. That underlying assumption is

made throughout the defense's position at this time. It is

suggested the testimony of Kellner was crucial and the

testimony of David Wiener, which will be discussed later,

was the most critical testimony presented.

re

ail AG Me Sb A Se Ae PIE, ME SA LM eGR AN 8 DN LIE ae

R-App. 3

Before addressing the issues presented, the Court should

point out that the testimony of Kellner and Wiener, as

presented during the trial was simply two pieces of thread in

the State's tapestry.

The defendants were not convicted on the basis of the

testimony of Brian Kellner and David Wiener. They were

convicted on the basis of all the testimony and evidence

adduced during the trial; the strongest and most damaging

being the testimony of the defendants themselves. In the

Court's view, when Mr. Kellner's testimony was presented at

trial, it was barely credible. He recounted an instance which

occurred after an all-day drinking bout. Mr. Kutska was

intoxicated when the events occurred. Mr. Kellner was very

close behind him in his level of intoxication. Mr. Kellner's

ex-wife testified she was so drunk she had little recollection

of anything that happened. The Court is satisfied that

Kellner's testimony, as hyped as it may have been prior to its

introduction, had little to do with the ultimate verdict

rendered in these cases.

Mr. Kellner now recants his trial testimony. It is clear he has

committed perjury either at the time of the trial or the

February, 1997 motion hearings. At what time he was lying

is immaterial. His trial testimony established, if believed

then, that certain named individuals were present at a

confrontation near a "bubbler". It does nothing more than

that. It does not establish a crime, it does not establish any

individual as participating in a crime, it simply places those

individuals at a location consistent with testimony given by

many other witnesses. To say his testimony was critical to

the conviction vastly and greatly overestimates its

importance and ignores five weeks of other testimony and

evidence presented. The same is also true of Mr. Wiener's

testimony.

Clearly, Kelliner’s present testimony that he cannot name

individuals who were at the "bubbler" confrontation is

R-App. 4

material. It relates to one of the pieces of circumstantial

evidence upon which the State relied in obtaining a

conviction. While it is material, that simply means that the

testimony would be admitted during the trial; its weight

would be something for the jury to consider.

Testimony concerning the reasons for recantation is indeed

cumulative to the testimony introduced at the trial. The jury

heard, at length, testimony regarding Sergeant Winkler's

techniques, the methods used in obtaining Mr. Kellner's

statement and the other pressures that may have been brought

to bear from other sources. While testimony is now being

recanted, the recantation is not with respect to the incident as

a whole, but rather with respect to the question of

identification of individuals. All other issues regarding

interrogation techniques and tactics were more than

adequately covered during the course of the trial and would

not come as a surprise to any member of the jury.

A recantation would warrant a new trial only when

corroborated by other newly-discovered evidence. The

recantation in this case, together with the explanation of

motives for the claimed original false testimony, affords

sufficient corroboration. Therefore, the requirement of

corroboration is satisfied. The affidavit of Verna Irish filed

as corroboration really does nothing to add or detract with

respect to Mr. Kellner's testimony.

The primary issue which the Court must address is whether it

would be reasonably probable that a different result would be

reached at a new trial based on the recantation by Mr.

Kellner. The Court is of the opinion that Mr. Kellner's

recantation would have no effect whatsoever on the result in

the trial of these cases. The Court is satisfied that in spite of

the publicity attendant upon Mr. Kellner's testimony, it had

little, if any, effect upon the jury's verdict. Counsel for the

defendant ably and effectively muted any damaging effect

that Mr. Kellner may have had by pointing out the varying

R-App. 5

degrees of intoxication among the individuals involved and

establishing that, for the most part, a great deal of the

playacting was of the "what if" variety. This Court has a

great deal of difficulty in accepting that the recantation is in

fact credible and indeed doubts that a reasonable jury would

believe the recantation. However, even if such recantation

were believable and a jury were to accept it as truthful, there

is still no reasonable probability of a different result in the

jury verdict. This previously-mentioned testimony of

Kellner has been vastly overblown insofar as its weight and

importance are concerned. While the State may at one time

have thought such testimony to have been crucial to its case,

that bubble was burst when Mr. Kellner took the stand at

trial. His testimony was not crucial and his present

recantation, or total impeachment, would have little effect on

the result of this trial.

The defense contends David Wiener gave false testimony and

is, in fact, the murderer. The grounds and allegation for the

claim of false testimony by Mr. Wiener are based on

affidavits and testimony presented by fellow prison inmates.

This evidence likewise was not within the moving party's

knowledge at the time of trial, nor has the moving party been

negligent in not having discovered it prior to the presentation

of these motions. This evidence too, insofar as it impeaches

the testimony of Mr. Wiener, is material to the issue. Here,

the defense is presented with a situation which involves

impeachment of a witness. There is no recantation by’ Mr.

Wiener, but there is testimony of witnesses who say Mr.

Wiener made inconsistent statements after the conclusion of

the trial. Mr. Wiener testified and denied such inconsistent

statements were made. The use of "jailhouse testimony" is a

morass into which this court hesitates to descend. However,

the issue must be addressed.

Quite frankly, the testimony and affidavits submitted both in

support of and in denial of defense's present contents might

be described as imaginative, resourceful and innovative, but

R-App. 6

in no event could the word "credible" be attached to them.

While the impeachment of Mr. Wiener certainly would be

material and not cumulative, the evidence 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. The suspect agendas which the various

witnesses may have, together with the gratuitous information

they tend to give in their testimony, would result in a total

waste of time for the little probative value such evidence

might have. Assuming, for purpoes of this decision, that all

the testimony and evidence offered by the defense would be

admissible to impeach Mr. Wiener, the end result would be to

confuse and obfuscate the issues by digression to collateral

matters.

If Mr. Wiener were impeached, that would effectively throw

out his testimony that he saw the defendants Basten and

Johnson hunched over carrying something which seemed to

be heavy. That indeed is damaging evidence, but as

previously mentioned is nothing more than one piece of

evidence presented by the State upon which this case is built.

The entire case as presented by the State, insofar as it

implicates the six defendants in direct involvement in the

murder of the victim, was circumstantial and totally devoid

of any eyewitness or direct testimony. Any of several pieces

of evidence could have been removed without damage to the

State's case and without assaulting the integrity of the jury's

verdicts. Mr. Wiener's testimony fits in that category. To

say a different result would follow by allowing the

impeaching testimony to come in at a trial, is once again to

ignore the reality of the balance of the trial and the other

evidence presented.

R-App. 7

ADMISSION OF KUTSKA'S OUT-OF-COURT

STATEMENTS AS ERROR

This issue was previously addressed in motions prior to trial,

at which time the Court allowed such statements to be

admitted. As a matter of fact, once Mr. Kutska testified

during the trial, those statements were then no longer hearsay

within the statutory definition.

The statements made by the defendant Kutska, in the Court's

view, are against his interest in that they are statements

which would tend to subject him to ridicule or disgrace. One

must bear in mind the background in which such statements

were made. Mr. Kutska was in effect saying that he

instigated a confrontation against an individual who was later

found murdered. While those statements do not implicate

him in the murder, they certainly portray him as an arrogant

bully, enjoying the discomfort to which he subjected another

person. Contrary to the assertions of inculpation or

exculpation, those statements do not involve anyone in a

murder. They do not implicate anyone in the crime charged.

The Court is satisfied the State could not have compelled any

testimony by Mr. Kutska, as he was a named defendant with

pending criminal charges. Therefore, although he may have

been available as a witness for any of the defense counsel

until such time as he actually claimed his Fifth Amendment

privilege, he was not available to the State, and therefore, the

State's position in this case is different than that of a co-

defendant wishing to offer a statement against interest by

another party.

R-App. 8

REVERSAL OF CONVICTION BECAUSE

UNSUPPORTED BY EVIDENCE

As mentioned, the briefs submitted at this time focus on

certain testimony deemed by defendant as prejudicial, that of

Kellner and Wiener. Counsel for defendants have ably,

vigorously and correctly argued that a conviction cannot be

sustained on the basis of such evidence. If indeed that was

the only evidence in this case, the Court would never have

allowed this case to go to the jury. Overlooked is the fact

that a great deal of testimony was presented during a period

of five weeks including, most importantly, testimony of each

of the defendants.

The evidentiary portion of the consolidated trial took a total

of five weeks. During that time the State presented

numerous witnesses and exhibits, a view of the crime scene

was had and the jurors were allowed to take notes during the

course of the testimony. From the Court's observations, the

jury was observant, interested and alert. The State presented

testimony and evidence setting forth time lines and locations

for the defendants and various other individuals working in

the paper mill. Testimony and evidence clearly established,

without any question, that Mr. Monfils had been the victim

of a physical assault and that his death occurred when he was

thrown into the pulp vat. His death was not a suicide nor an

accident. Having laid that groundwork, the State then

presented evidence to show, as best it could, when the attack

occurred and who was in the immediate area who could have

either participated in or observed the events. At the

conclusion of the State's case, there was more than adequate

credible evidence which would have allowed the jury to find

all defendants guilty.

Each of the defendants testified on their own behalf. The

testimony of the defendants was such that the State's case

was buttressed and supported with each passing day. The

jury had the opportunity to listen to the witnesses and

sire. a RC ME ARE Se ee ee Pee ee ce

Astle ba oad

R-App. 9

observe their demeanor. As defense counsel argue at this

time, certainly one cannot be convicted on the basis of

demeanor. No one was. The observation of demeanor is

simply a device by which the jury is assisted in establishing

or assessing the credibility of a particular witness.

Considering the testimony of the defendants together with

the facts which had been established by the State, the jury

could, and undoubtedly did, conclude that the defendants’

testimony was not entirely truthful. Considering the

evidence as a whole, there is no question that there was

sufficient, competent evidence upon which the jury could

return the verdict of guilty with respect to each defendant.

When the defendants testified, the jury had the choice of

believing or disbelieving their testimony. That is peculiarly

the function of the jury and there is an adequate, logical basis

for their decision in this case.

ORDER

Now therefore, for the reasons set forth above;

IT IS ORDERED:

THAT THE DEFENDANT'S MOTION FOR A NEW

TRIAL IS DENIED;

THAT THE DEFENDANT'S MOTION TO SET ASIDE

THE VERDICT IS DENIED.

Dated at Appleton, Wisconsin this 24th day of February,

1997.

BY THE COURT:

/s/

JAMES T. BAYORGEON

Circuit Court Judge

R-App. 10

STATE OF WISCONSIN CIRCUITCOURT BROWN COUNTY

STATE OF WISCONSIN,

Plaintiff(s)

-VS- Case # 95 CF 00239

MICHAEL L. PIASKOWSKI,

Defendant(s)

DECISION AND ORDER

The defendant, Michael Piaskowski, has filed postconviction

motions seeking to have the Judgment of Conviction vacated

or, in the alternative, a new trial. Those motions were heard

on May 8, 1997.

Prior to the commencement of the motion hearing, counsel

for Mr. Piaskowski served a Subpoena Duces Tecum on the

Green Bay Chief of Police. That subpoena required the

Chief to attend the motion hearing and bring with him the

following documents: (1) complaints or concerns about

Randy Winkler's investigation of the Monfils murder; (2) any

investigation undertaken by or on behalf of the Green Bay

Police Department regarding any aspect of Randy Winkler's

conduct of the Monfils murder investigation; (3) all absences

from work (including, but not limited to, leaves of absence,

whether voluntary or involuntary) by Randy Winkler since

the conclusion of the Monfils trial; (4) disciplinary action

taken or considered against Randy Winkler as a result of his

conduct of the Monfils murder investigation.

os OTS ee Le A Me OT ee ee

R-App. 11

Much has been made in previous motions concerning David

Weiner and the alleged favorable treatment he received from

the State in exchange for his testimony. It is clear that many

of the individuals who discussed Mr. Weiner are totally

unacquainted with any of the facts surrounding his

conviction. As an example, inmate Marcum indicates David

Weiner told him that he was charged at first, but the charges

were dropped for his testimony. There is no factual basis for

that statement. There was never any reduction of charges

against Mr. Weiner. He was found guilty of a lesser included

offense and given a substantial sentence. The modification

of his sentence occurred after his testimony in the Monfils

trial and there is absolutely no evidence, nor any evidence

from which an inference can be drawn, that there was any

promise or deal made with Mr. Weiner in return for his

testimony. The other grounds set forth regarding the

exclusion of the nature of David Weiner's conviction, the

hearsay statements of Kutska, the severance motion and the

expert testimony ruling have previously been addressed by

the Court.

As this Court has previously remarked, the Jury returned

verdicts of guilty after a lengthy, concentrated trial. This

Court is satisfied that the verdicts were based upon all the

testimony and evidence heard during the course of the trial

including, most importantly, the testimony of the defendants

themselves. That there were contradictions and

inconsistencies in some of the testimony is to be expected.

The Jury was entitled to and did, in this Court's opinion,

disregard evidence that they felt had no credibility. They

engaged in serious deliberations, considered all the relevant

evidence and arrived at their verdict. At this time, to

impeach those verdicts based upon speculation and surmise

by individuals who have no knowledge of the facts is totally

inappropriate.

As indicated above, this court has previously heard,

considered and ruled on motions filed in companion cases.

R-App. 12

Specifically, motions have been heard and decisions filed in

State of Wisconsin -vs- Reynold C. Moore, 95CF240; State

of Wisconsin -vs- Dale M. Basten, 95CF242; State of

Wisconsin -vs- Michael L. Johnson, 95CF243. Other than

the issue raised by defense in this case concerning the

personnel records, all arguments made at this time have

previously been advanced and argued in the other cases.

Counsel has incorporated the evidence, testimony and

arguments presented in those cases into his motion in the

instant case. Accordingly, this Court will incorporate by

reference in this decision the decisions previously issued in

the companion cases.

ORDER

Now therefore, for the reasons set forth above;

IT IS ORDERED:

THAT THE DEFENDANT'S MOTION FOR A NEW

TRIAL IS DENIED;

THAT THE DEFENDANT'S MOTION TO VACATE HIS

CONVICTION AND SENTENCE IS DENIED.

THAT THE .-PERSONNEL RECORDS FURNISHED

PURSUANT TO THE SUBPOENA DUCES TECUM

SHALL BE PLACED IN THE FILE UNDER SEAL TO BE

OPENED ONLY FOR PURPOSES OF APPELLATE

REVIEW OR BY FURTHER ORDER OF THIS COURT.

Dated at Appleton, Wisconsin this 30th day of May, 1997.

BY THE COURT:

/s/

JAMES T. BAYORGEON

Circuit Court Judge -

R-App. 13

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