State v. Lukensmeyer, 86-1068-CR

• Decision Date: 12 May 1987
• Docket Number: No. 86-1068-CR,86-1068-CR
• Citation: 140 Wis.2d 92,409 N.W.2d 395
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Mark LUKENSMEYER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 395

409 N.W.2d 395

140 Wis.2d 92

STATE of Wisconsin, Plaintiff-Respondent, v. Mark LUKENSMEYER, Defendant-Appellant.

No. 86-1068-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 16, 1987.

Opinion Released May 12, 1987.

Opinion Filed May 12, 1987.

Review Denied.

Edmund C. Carns, Oshkosh, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Sally L. Wellman, Asst. Atty. Gen., Madison, for plaintiff-respondent.

Before CANE, P.J., and LaROCQUE and SUNDBY, JJ.

CANE, Presiding Judge.

Mark Lukensmeyer appeals a judgment convicting him of aiding and abetting the kidnapping, aggravated battery, and first-degree sexual assault of a Green Bay woman. ¹ He contends his conviction should be overturned because the state breached an agreement not to prosecute him in return for his truthful cooperation in the investigation of the woman's murder. He further argues that statements he made after signing that agreement were involuntary, and that he was prejudiced at trial by the state's use of double hearsay testimony. Because we resolve each of these issues against Lukensmeyer, we affirm.

The victim was found near death in the early morning of December 27, 1983, near a Green Bay meat packing plant's manure pit. She died minutes later. An autopsy determined that her death resulted from a slash wound to her throat. In addition, the autopsy revealed a "huge number of injuries" to every part of her body, including eighty-nine separate cuts, scrapes, and bruises. The examiner also discovered a billiard ball that had been forced into the victim's vagina.

A few days later, on December 31, Lukensmeyer contacted the Green Bay Police Department, essentially offering to provide information on the murder in return for immunity from prosecution. Lukensmeyer and his attorney negotiated with the police and the Green Bay district attorney for about eight hours and arrived at a written nonprosecution agreement. In this agreement, Lukensmeyer consented to tell "whatever he [knew] about the death and events leading up to the death of" the victim. Lukensmeyer also agreed to testify for the state against anyone charged with involvement in the murder and to "[t]urn over to or reveal the location of any physical evidence requested by the Green Bay Police Department relating to" the victim's death, "or any evidence not presently known about relating to" the victim's death. Lukensmeyer further agreed to "give or testify to the complete truth."

The following clause made the agreement expressly conditional:

I, Mark Lukensmeyer, agree to all of the above and understand that this agreement is explicitly and fully conditional upon the fact that I had no part in the beating of [the victim], had no knowledge that she was going to be killed before it happened, had no involvement whatsoever in her murder, and has [sic] no knowledge of, direct or indirect, the sexual assault of [the victim] and was not present when she was sexually assaulted.

In exchange, the state agreed that:

Mark Lukensmeyer will be granted immunity from prosecution with respect to the events surrounding the death of [the victim], provided he is truthful in his information provided the Green Bay Police Department and in any testimony he may give in this matter and further provided he complies fully with all the terms of this agreement.

The day after Lukensmeyer signed the agreement, he dictated to the police a signed, written statement attesting to the following version of the facts: Lukensmeyer owned a tavern in Green Bay called The Back Forty. At about 1:45 p.m., on December 26, 1983, he opened the tavern and let in three customers who had been waiting at the door. Lukensmeyer knew the three as members of a motorcycle group who went by the nicknames "Gargoyle," "A.D.," and "Bobber." Lukensmeyer and the three began drinking together shortly after he opened the tavern.

At about 6 p.m., Chris Shavlik, a woman who worked for Lukensmeyer, came in and began tending bar. By 11 p.m., with a number of other customers present, the victim arrived accompanied by a man nicknamed "Weasel." Lukensmeyer stated that the victim appeared drunk and became involved in several minor "hair-pulling" scuffles with other women but suffered no apparent injuries. Because of the fights the victim had incited, Shavlik asked Weasel at about 12:30 a.m. to remove the victim from the tavern. Weasel and the victim left, but Weasel returned about fifteen minutes later and spoke with Shavlik. Gargoyle, A.D., and Bobber were still at the tavern drinking.

Lukensmeyer stated that around closing time, 12:45 a.m., he "staggered" out to his car and left Shavlik to lock up the tavern. Lukensmeyer claims that he then fell asleep in his car and woke up only when A.D. knocked on the window to ask him for a ride. With A.D. were Gargoyle, Bobber, and the victim. Lukensmeyer stated that the victim's face was bloody as if she had been "slapped up." Lukensmeyer drove the four to the packing plant manure pit on the outskirts of the city, as he claimed they requested. He stated that A.D. got out of the car, followed by Gargoyle and the victim. The three walked toward the manure pit. Lukensmeyer reportedly saw nothing until A.D. returned to the car. Then, after fifteen minutes, Gargoyle returned alone and said, "[L]et's go."

Lukensmeyer stated that on the ride back into the city no one mentioned the victim, and he did not ask any questions about her. He drove the other three home, then drove to his house at about 3:30 a.m. Later that day, he returned to the tavern, cleaned it thoroughly, and put all the garbage in a plastic bag outside the tavern.

The rest of Lukensmeyer's statement concerns his actions during the next few days. He had met with A.D., confronted him about getting him involved in a murder, then decided to get rid of the garbage he had cleaned out of the tavern the day after the murder. He and Gargoyle dumped the garbage in a bin outside Lukensmeyer's brother's place of business. In addition, Lukensmeyer admitted that he changed all four tires on the car he had driven the night of the murder in an attempt to avoid being connected with the crime. He also stated that he had cleaned out the interior of the car to remove what he believed were blood spots in the back seat. Finally, Lukensmeyer's written statement contained the following: "[On the night of the victim's death] I was wearing ... the same type coat I have on right now," with the word "type" crossed out. With the deletion, the statement indicated that Lukensmeyer claimed to be wearing the same coat on the night of the crime that he wore while dictating his statement to police.

Several months after Lukensmeyer's statement, he was confronted with two possible discrepancies uncovered during a John Doe investigation. First, the investigation uncovered evidence that later on the day of the victim's death, Lukensmeyer had burned the coat he was wearing at the crime scene. This controverted Lukensmeyer's statement that he was wearing the same coat several days later when he gave his statement. Second, the investigation uncovered evidence that Lukensmeyer had never gone to his car, but had in fact watched the victim being beaten in the alley outside the tavern, had reentered the tavern, and had been present in the tavern while the victim was beaten and raped.

When confronted with these inconsistencies, Lukensmeyer admitted that he had burned his coat, but denied he had gone back into the tavern at closing time. The state told Lukensmeyer that as a result of these apparent lies, the nonprosecution deal was no longer in effect. In contrast, Lukensmeyer claims that the state merely told him that it was possible, as a result of the inconsistencies, that the agreement might be withdrawn. In March, 1985, before the first-degree murder trial of one of the other persons present in Lukensmeyer's car, the state offered him another chance to tell the truth in return for nonprosecution. Lukensmeyer refused to change his version of events. In April, 1985, Lukensmeyer was charged in connection with the victim's beating, kidnapping, and sexual assault.

On August 20, 1985, the trial court held a hearing to determine the nonprosecution agreement's validity. The court heard testimony from Shavlik and from Wayne Kruse, a friend of Lukensmeyer's with whom Lukensmeyer had spoken after the murder.

Shavlik testified that on the night of the murder, after all the customers had left, she and Lukensmeyer briefly cleaned up the tavern, then left together through a side door facing an adjacent alley. Lukensmeyer told her he would lock the door. After leaving the tavern, Shavlik saw Gargoyle, A.D., Bobber, and Weasel in the alley. Weasel pulled the victim, who had been in his car, into the alley and began striking her. She fell to the ground, and Weasel repeatedly kicked her. Shavlik testified that the area was well-lighted and that Lukensmeyer was still standing in the alley near the tavern's side door. Weasel then picked up the victim, pushed her toward A.D., Bobber, and Gargoyle, and said, "[H]ere, you can have her. F--- her brains out." The three began to strike and kick the victim while she cried out for help. Shavlik testified that she heard bones breaking. Lukensmeyer remained near the side door of the tavern and watched.

Shavlik told the three men who were beating the victim to stop. She testified that Lukensmeyer then told her to get "the hell out of there." She again told the men to stop, and again Lukensmeyer ordered her to leave. She got in her car and began to leave. Before she drove off, she saw Lukensmeyer walk toward the part of the alley where the three men were beating the victim. As she left, he was standing about eight feet from where the beating was going on.

Wayne Kruse testified that he talked to Lukensmeyer at The Back Forty on December 27, 1983, the day the victim's body was discovered. Lukensmeyer told him the victim had...