State v. Basten
| Decision Date | 17 February 1998 |
| Docket Number | Nos. 97-0918-C,97-0919-CR and 97-1193-CR,s. 97-0918-C |
| Citation | 217 Wis.2d 290,577 N.W.2d 387 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Dale M. BASTEN, Defendant-Appellant. STATE of Wisconsin, Plaintiff-Respondent, v. Reynold C. MOORE, Defendant-Appellant. STATE of Wisconsin, Plaintiff-Respondent, v. Michael L. JOHNSON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEALS from judgments and orders of the circuit court for Outagamie County: JAMES T. BAYORGEON, Judge. Affirmed.
Before CANE, P.J., and MYSE and HOOVER, JJ.
Defendants Dale Basten, Reynold Moore and Michael Johnson appeal their judgments of conviction and postconviction orders. 1 This case involves the November 21, 1992, murder of Thomas Monfils, an employee of James River Corporation. Defendants were tried together, along with three additional codefendants, and were found guilty by a jury of first-degree intentional homicide, party to a crime. Postconviction motions were denied and these appeals followed.
All three defendants have at least five issues in common. They claim: (1) their convictions should be reversed because of insufficiency of the evidence; (2) they are entitled to new trials based on newly discovered evidence; (3) the court erroneously admitted hearsay evidence and permitted it to be used against them; (4) the court erred by denying their motions to sever their cases and try them individually; and (5) the court erroneously excluded impeachment evidence of a prosecution witness. These issues are discussed in Part I of the opinion.
Moore raises three additional issues. He claims: (1) the trial court erred by allowing the admission of a videotape showing the recovery of the victim's body from the pulp vat; (2) his conviction should be reversed based on the State's failure to disclose exculpatory and material evidence; and (3) he is entitled to a new trial based on ineffective assistance of counsel. Part II of the opinion addresses these claims.
Johnson raises two additional issues. He claims he is entitled to a new trial (1) because the prosecution failed to disclose a pretrial meeting with a prosecution witness and (2) because his trial counsel had a conflict of interest that denied him effective assistance of counsel. Part III of the opinion addresses these claims. For the reasons set forth in each section, the judgments are affirmed as to each defendant.
Several significant events occurred prior to November 21. On November 10, the police received an anonymous call reporting that Keith Kutska, a James River employee, planned to steal an expensive electrical cord from his employer. When Kutska finished his shift and was leaving the premises, a security guard asked to inspect his bag. Kutska refused to open the bag and, as a result, received a five-day unpaid suspension. Kutska later obtained from the police department a tape of the call, and identified the caller as Monfils.
On November 21, Kutska arrived at work at 5 a.m. and began to play the tape for employees, attempting to garner support for his position that he had been wrongly turned in for actions that should have been handled within the union. Kutska played the tape for Monfils, who admitted it was his voice. Monfils performed a turnover (a change in the paper roll) on his paper machine at 7:30 a.m. At approximately 8 a.m., Monfils was reported missing. The State presented evidence that between 7:30 and 8 a.m., Monfils was confronted by a group of employees, including Basten, Moore and Johnson, and the three other defendants, Michael Piaskowski, Keith Kutska, and Michael Hirn. The verbal confrontation became physical, and Monfils was beaten and rendered unconscious by a blow to the back of the head. The following day, Monfils's partially decomposed body was found in a pulp vat. A heavy weight was tied around his neck. Additional facts will be included as necessary in the discussions below.
Defendants claim their convictions should be reversed because there is insufficient evidence against each of them to support the jury's verdict of guilt. They do not dispute that the State proved Monfils was the victim of a brutal murder, but they argue the evidence against each of them is not sufficient to establish beyond a reasonable doubt that each was guilty as parties to the crime of first-degree intentional homicide.
Our review is governed by State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990), and is the same whether the evidence is direct or circumstantial. Id. at 500, 451 N.W.2d at 755. We may not reverse a conviction "unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." Id. at 501, 451 N.W.2d at 755. We do not substitute our judgment for that of the jury. Id. 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 758. We are bound to accept reasonable inferences drawn by the jury unless the evidence, on which the inferences are based, is incredible as a matter of law. Id. at 507, 451 N.W.2d at 757.
The State has the burden of proving beyond a reasonable doubt that the defendants committed the offense by either directly committing the crime, intentionally aiding and abetting the commission of the crime, or being a party to a conspiracy to commit the crime. Section 939.05(2), STATS. The State presented evidence that Monfils had been the victim of a physical assault and that his death was caused by asphyxiation due to inhaling paper pulp and strangulation by a rope tied to a weight. That evidence is not challenged. The State also presented the following evidence: On November 10, 1992, the police received a tip from an anonymous caller saying Kutska intended to steal an expensive electrical cord from his employer. At the end of Kutska's shift, he was stopped by a security guard who asked to search his bag. Kutska hurriedly left the premises before the guard could check his bag. He received a five-day suspension without pay as a result of his actions.
Kutska obtained a tape of the anonymous tip and determined that the caller was Monfils. On November 21, Kutska arrived at work and played the tape for various co-workers. Kutska, Piaskowski and Randy LePak went to the No. 7 coop 2 and played the tape for Monfils, at which time Monfils admitted he had made the call. The tape was played again in the No. 9 coop for a group that included Basten, Moore, Johnson, Piaskowski, Hirn and Kutska.
Brian Kellner, a friend of Kutska's, testified that on July 4, 1994, while at the Fox Den bar, Kutska described to him the November 21, 1992, confrontation with Monfils, himself, Basten, Moore, Johnson, Piaskowski and Hirn. Kutska told Kellner that he stood back and watched as the others shouted at Monfils, shook the tape in his face, and Hirn shoved Monfils in the chest. Kutska described the events in terms of "what if" somebody had hit Monfils in the head with a wrench or a board. Kutska admitted telling Hirn to "go give [Monfils] some shit."
James River employee David Wiener testified that on November 21, 1992, at approximately 7:40 a.m., he saw Basten and 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. Shortly thereafter, Kutska told Piaskowski to notify a supervisor that Monfils was missing. Piaskowski informed the supervisor that "some heavy shit was coming down." Monfils's body was discovered the next day in a pulp vat with a heavy weight tied to a rope around his neck.
Without reciting all of the evidence, including the testimony of Kellner, Wiener and the defendants, 3 we are satisfied the jury could reasonably infer that the defendants who were present at the confrontation and had participated in the verbal and physical assault of Monfils, which ended with Monfils beaten to unconsciousness, took action, independently and collectively, to dispose of the evidence of their actions. The jury could reasonably infer from this evidence that the defendants intended to permanently dispose of Monfils's body. Evidence that the defendants were subject to immediate dismissal for participating in the assault on Monfils, as well as their exposure to criminal charges, coupled with evidence that the confrontation escalated to violence rendering Monfils unconscious, provides the basis for a reasonable inference that the defendants had the motive and purpose to dispose of the victim to avoid being identified and suffering the likely consequences of their actions. The evidence showed that Monfils's body had suffered decomposition in the hours it had been in the pulp vat, and there was testimony that if the body had not been promptly discovered, it would have been completely decomposed as a result of the chemical processes and propellers in the vat.
Based on evidence of the time frame of the events and the short time between the confrontation with Monfils and the time he was reported missing, the jury could reasonably infer that the defendants put in motion the actions necessary to dispose of Monfils's body, which resulted in his death. The jury could reasonably infer from Wiener's testimony that he saw Basten and Johnson carrying Monfils's body toward the vat during the time period immediately prior to...
To continue reading
Request your trial