State v. Kivioja
| Decision Date | 04 May 1999 |
| Docket Number | 97-2933-CR,Nos. 97-2932-C,s. 97-2932-C |
| Citation | 592 N.W.2d 220,225 Wis.2d 271 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Dennis J. KIVIOJA, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant there were briefs by Mark G. Sukowaty and Sukowaty Law Office, Madison and oral argument by Mark G. Sukowaty.
For the plaintiff-respondent the cause was argued by Sandra L. Tarver, assistant attorney general, with whom on the brief was James D. Doyle, attorney general.
These consolidated cases are before the court on certification from the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (1997-98). Defendant-appellant appeals an order by the Honorable Henry B. Buslee, Fond du Lac County Circuit Court.
¶2 The issue in this case, as certified, is the manner in which a circuit court should evaluate recantation testimony when it is offered as new evidence in support of a defendant's plea withdrawal prior to sentencing. The more immediate issue, from the perspective of the defendant-appellant, Dennis J. Kivioja, is whether his offer of the recantation of the State's primary witness in the cases against him was a sufficient "fair and just reason" to support his motion to withdraw his plea.
¶3 This is a consolidated appeal of two 1995 cases in which Kivioja was charged with 37 crimes involving burglary and related matters. Pursuant to a plea agreement, Kivioja entered no contest pleas to five counts of party to the crime of burglary in each of the two cases. Less than two weeks later the State's primary witness, Jody Stehle, recanted his earlier, non-sworn statements implicating Kivioja in the crimes to which Kivioja pled. Kivioja moved to withdraw his pleas, but following an evidentiary hearing wherein Stehle testified under oath for the first time, recanting his accusations against the defendant, the circuit court denied the motion. The defendant appealed, and the court of appeals certified the issue described to this court.
¶4 On the evening of July 6, 1995, an officer of the Fond du Lac County Sheriff's Department observed a vehicle matching a witness-provided description of a car that had been spotted near a home that had been burglarized on July 3. The officer followed the vehicle, which stopped shortly thereafter. When the officer asked for identification, the driver explained that he had none, but stated that his name was John L. Smith. The passenger, the defendant Kivioja, told the officer that the driver's name was really Jody Stehle. The officer arrested Stehle upon determining that he had two active warrants for his arrest. Kivioja was not arrested at that time.
¶5 Stehle subsequently confessed to sheriff's detectives that he and Kivioja together were responsible for many burglaries in Fond du Lac County during the previous two months. In addition, he told detectives that Kivioja acted alone in a May 9, 1995, burglary, a date on which he stated that he himself had been in jail and could not have participated. In this initial statement to detectives, Stehle explained that he had spoken to Kivioja from jail, and that Kivioja had admitted over the phone that he had stolen the $600 reported missing in the burglary.
¶6 In the officers' search of the vehicle in which Stehle and Kivioja had been stopped, they discovered numerous items which had been reported stolen from a home on July 6, the date of the stop. In a search of Kivioja's apartment, officers found four items matching the descriptions of items reported stolen during the previous two months from various Fond du Lac County homes. The serial numbers of the two electronic devices found had been removed.
¶7 Together with Stehle's statements, this evidence was used in support of the probable cause portion of the criminal complaint which led to Kivioja's arrest on July 10, 1995, when he was charged with five counts of party to the crime of burglary, contrary to Wis. Stat. §§ 939.05 and 943.10(1)(a).
¶8 On July 13, 1995, the prosecutor filed an information charging the same five counts of party to the crime of burglary, and also charged five counts of party to the crime of theft, contrary to Wis. Stat. §§ 939.05 and 943.20(1)(a), five counts of party to the crime of criminal damage to property, contrary to §§ 939.05 and 943.01(1), and five counts of bail jumping, contrary to Wis. Stat. § 946.49(1)(b), to which the defendant entered pleas of not guilty.
¶9 A second criminal complaint against Kivioja was served on November 6, 1995, charging him with 16 additional counts of party to the crime of burglary and one count of party to the crime of attempted burglary, contrary to Wis. Stat. §§ 939.05, 939.32, and 943.10(1)(a). As in the earlier complaint, the probable cause portion of this complaint was based in part on Stehle's statement that Kivioja was involved in the burglaries. On December 1, 1995, Kivioja waived his preliminary hearing in regard to this second complaint and on February 5, 1996, Kivioja entered pleas of not guilty to all 17 of the counts.
¶10 On August 14, 1996, on motion of the State, the two cases were joined and they were later scheduled for an October 2, 1996, trial. The trial was never held, however, as Kivioja decided to enter a plea. At his October 3, 1996, plea hearing, Kivioja agreed to plead no contest to five counts of party to the crime of burglary in the first case, and five counts of party to the crime of burglary in the second case, in exchange for the dismissal of the remaining charges, which were to be read in for the purposes of sentencing. Sentencing was scheduled for a later date.
¶11 During the 15 months between Stehle's arrest and Kivioja's plea, the State's case against Stehle was also progressing. Following his July 6, 1995, arrest, Stehle was held in the Fond du Lac County jail. At one point, when both he and Kivioja were held there, Stehle requested a transfer, explaining to his attorney that Kivioja had threatened him and that he was concerned for his safety. The request was met and Stehle was transferred to the Green Lake County jail, returning to the Fond du Lac County jail only after Kivioja was no longer there. 1
¶12 On October 17, 1995, nearly one year before Kivioja reached his plea agreement, Stehle reached his own plea agreement with the State pursuant to which Stehle pled no contest to ten of the counts with which he was charged and agreed to testify to Kivioja's involvement in the burglaries in exchange for which the additional charges against him would be dismissed and were to be read into the record for the purposes of sentencing and restitution. The agreement further provided that both Stehle and the State would ask the court to delay Stehle's sentencing until after the completion of Kivioja's case.
¶13 Following his conviction, but prior to Kivioja's case reaching a conclusion, at Stehle's request his attorney filed a number of motions requesting that the circuit court sentence him. In September 1996, contrary to his own agreement with the State and just weeks prior to Kivioja's own agreement, the circuit court sentenced Stehle to a total of 20 years in prison and ten years of probation and ordered him to pay more than $13,000 in restitution.
¶14 On October 14, 1996, less than two weeks following Kivioja's pleas, Stehle wrote a 15-page letter recanting his earlier statements that Kivioja was involved in the burglaries for which Kivioja had pled no contest. This letter was addressed to an investigator in Kivioja's employ who then directed the letter to Kivioja.
¶15 In his recantation, Stehle wrote that he had lied to detectives when he told them that Kivioja had been involved in the burglaries. He offered two explanations for his incriminating statements. First, he wrote that he had believed that placing blame for the burglaries on Kivioja would shift suspicion away from himself. Second, he wrote that he had lied because he was upset that Kivioja had given the officers Stehle's true identity which led directly to his arrest. He further explained that Kivioja had never been with him when he had committed the burglaries.
¶16 In a separate letter to Kivioja's investigator, Stehle expressed what may be characterized as anger in response to the sentence he had received:
[T]hey gave me 20 years with 10 years probation consecutive and ordered me to pay around $13,200.00 worth of restitution, and I told on myself. If I eve[r] get into anymore trouble again I'll know how to tell the cops to kiss my dick. They better not even think of speaking to me again, all their promises of, 'Oh, you'll get of [sic] easy and shit,' it was all bullshit.
On October 23, 1996, Stehle signed a sworn statement reaffirming his recantation.
¶17 Once Kivioja learned of the recantation, he obtained an attorney 2 who, on January 15, 1997, filed a motion and affidavit to withdraw Kivioja's plea. The affidavit which accompanied the motion stated in part that the defendant had entered a plea because he knew that Stehle was going to implicate him in the burglaries, and he had believed that due to his own [criminal] record, a jury would not have believed his protestations of innocence. He further explained that he had entered a plea to reduce the maximum amount of time he would be incarcerated.
¶18 On April 10, 1997, the circuit court held an evidentiary hearing on Kivioja's motion. The defendant explained that his reason for moving to withdraw his pleas and instead proceed with trial was based exclusively on the new evidence that Stehle had recanted his earlier statement implicating him. 3 When asked by the prosecutor if he had any other evidence upon which his motion was based, Kivioja replied that he did not. While he did explain that he had some evidence that would have contradicted Stehle's testimony at trial, Kivioja did not clarify when he found this evidence. We read his motion, as the circuit court and the parties have,...
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