State v. Kutska
| Decision Date | 22 September 1998 |
| Docket Number | No. 97-2962-CR,97-2962-CR |
| Citation | 222 Wis.2d 218,587 N.W.2d 214 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Keith M. KUTSKA, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Brown County: JAMES T. BAYORGEON, Judge. Affirmed.
Before Cane, C.J., Myse, P.J., and Hoover, J.
Keith Kutska appeals his judgment of conviction and postconviction order. Kutska and five other defendants 1 were tried jointly for the November 21, 1992, murder of Thomas Monfils. A jury convicted Kutska and the other defendants of first-degree intentional homicide, party to a crime, contrary to §§ 940.01(1) and 939.05, STATS.
On appeal, Kutska makes thirteen arguments: (1) insufficiency of the evidence entitles him to a new trial; (2) the trial court erroneously refused to grant his request for severance; (3) "the prosecution exceeded the limits of proper arguments at trial," denying his right to a fair trial; (4) the trial court's admission of Monfils' November 17 phone call to police was error; (5) he is entitled to a new trial based on newly discovered evidence; (6) the prosecution failed to provide exculpatory evidence; (7) the trial court's refusal to allow discovery of police investigative and personnel files was error; (8) the trial court failed to properly instruct the jury on the limited purpose of "other act" and character evidence; (9) exclusion of certain evidence unfairly restricted his right to present his defense; (10) the prosecution's theory of the case violated his right to a unanimous verdict; (11) perjured testimony tainted his trial; (12) he received ineffective assistance of counsel; and (13) our court should reverse for plain error and exercise its powers of discretionary reversal. For the reasons discussed below, we reject these arguments and affirm the judgment and postconviction order.
Kutska argues that he is entitled to a new trial because the evidence is insufficient to support a conviction. While Kutska does not dispute that the State proved Monfils was the victim of a brutal murder, he argues that the evidence against him is insufficient to establish beyond a reasonable doubt that he was guilty as a party to the crime of first-degree intentional homicide. Specifically, he alleges that there was "no evidence" that he committed the crime, aided or abetted the crime, or conspired to commit the crime.
State v. Poellinger, 153 Wis.2d 493, 500, 451 N.W.2d 752, 755 (1990), governs our review, which is the same whether the evidence is direct or circumstantial. 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 the jury's. 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 the jury's reasonable inferences 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. Here, it is the State's burden to prove 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 on November 10, 1992, the Green Bay Police Department police received an anonymous tip that Keith Kutska intended to steal an expensive electrical cord from his employer, the James River Corporation, a paper manufacturer. At the end of Kutska's shift, a security guard stopped him and asked to search his bag. Kutska hurriedly left the premises before the guard could check his bag and, as a result, he received a five-day suspension without pay. Kutska obtained a tape of the anonymous tip and determined that the caller was Monfils.
On November 21, 1992, Kutska arrived at work and played the tape for various co-workers. Kutska, Michael Piaskowski, and Randy LePak went to the No. 7 coop 3 and played the tape for Monfils, at which time Monfils admitted he had made the call. Later, at 7:30 a.m., Monfils performed a turnover (a change in the paper roll) on his paper machine. Between 7:30 and 8 a.m., a group of employees, including Kutska and the five other defendants, confronted Monfils. A verbal confrontation became physical, and Monfils was beaten.
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 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 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. Hirn shoved Monfils in the chest. Kutska admitted telling Hirn, whom Kutska considered to be a "good instigator," to "go give [Monfils] some shit." The record also contains evidence that Kutska punched Monfils in the face with his fist.
James River employee David Wiener testified that on November 21, 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. At approximately 8 a.m., Piaskowski informed the supervisor that "some heavy shit was coming down." On November 22, Monfils' partially decomposed body was found in a pulp vat; a heavy weight was tied around his neck. He died from asphyxiation from inhaling paper pulp and strangulation by a rope tied to a weight.
Without reciting all of the evidence, 4 we are satisfied that the jury could reasonably infer that Kutska was present at the confrontation and participated in the verbal and physical assault of Monfils, and that he took action, independently and collectively, to dispose of the evidence of his actions. The jury could reasonably infer from this evidence that Kutska intended to permanently dispose of Monfils' body. Evidence that Kutska was subject to immediate dismissal for participating in the assault on Monfils, as well as his exposure to criminal charges, coupled with evidence that the confrontation escalated to violence rendering Monfils unconscious, provides the basis for a reasonable inference that Kutska and the other 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' 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 Kutska put in motion the actions necessary to cause Monfils' death and dispose of the body.
Kutska argues that Kellner's testimony regarding his July 1994 conversation with Kutska at the Fox Den Bar was "inherently incredible." Likewise, he argues that Wiener's testimony 5 was not worthy of belief. A verdict based on the testimony of both Kellner and Wiener, he argues, cannot be sustained. We disagree. The jury determines the credibility of the witnesses, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from the evidence. Poellinger, 153 Wis.2d at 503, 506, 451 N.W.2d at 756, 757. It is free to choose among conflicting inferences and may, within the bounds of reason, reject an inference that is consistent with the innocence of the accused. Id. at 506, 451 N.W.2d at 757. It was the jury's province, not the court's or the defendant's, to pass on the credibility of Wiener and Kellner.
We conclude that the evidence in support of the jury's verdict has such probative value and force that a reasonable jury could have drawn the inferences that Kutska committed the offense of first-degree intentional homicide 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. See § 939.05(2), STATS.
Kutska contends that the trial court erroneously refused to grant his request for severance. He asserts that the following "antagonistic" arguments of counsel for co-defendant Michael Hirn were prejudicial: (1) in his opening statement, he espoused a different theory regarding how Monfils died; (2) he referred to this different theory during presentation of the evidence; and (3) he discredited witnesses whose testimony was consistent with Kutska's, "essentially" accusing Kutska of perjury.
At the jury instruction conference, Kutska's counsel moved for severance, and alternatively, for an opportunity for rebuttal before the State's rebuttal. In denying the motion, the trial court concluded that there had been no "clear presentation of antagonistic defenses" and noted that "some...
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