OWI-4th Dismissed After Exigent Circumstances Challenge, March 9, 2018
Attorney Richards' client was arrested for OWI-4th offense, a .30 blood-alcohol-level. He challenged that the officers took the client's blood sample without a warrant and without her consent or other exigent circumstances. After a motion hearing, the court determined that the government had no legal basis to take the client's blood, given that they could have obtained a warrant within the three-hour window after the traffic stop.
OWI-2nd Client Found Not Guilty at Jury Trial, December 14, 2017
Attorney Dimmer's client picked up two OWI offenses within 90 days of one another. By the time the client had contacted Richards & Dimmer, the client had already pleaded guilty to one of the OWI offenses. Attorney Dimmer recognized that one of them had a very good defense--no blood or breath sample was ever taken from the client.
Attorney Dimmer reopened the OWI and it proceeded to the circuit court as a second offense. At a jury trial, the defense argued that the police department had failed to prove that the client was intoxicated, despite the incident occurring in the early morning hours of New Year's Day.
Within an hour, the jury returned a not guilty verdict and acquitted the client on the OWI-2nd offense.
OWI Felony Charges Dismissed on Defendant's Motion, September 26, 2017
Attorney Dimmer represented a client, charged with an OWI-Causing Great Bodily Harm, after she collided with a motorcycle during a left-hand turn. The client was found to have minimal amounts of marijuana in her system at the time of the collision. Attorney Dimmer filed a motion to suppress the blood sample test result, as the investigators had threatened to arrest his client unless she gave a blood sample. Without authority to arrest the client, Wisconsin law does not permit investigators to make such threats. The court threw out the blood sample, and the State dismissed the charges.
A Question of the 4th Amendment and Warrantless Searches, July 25, 2016
RACINE — It’s been about five months since the Wisconsin Supreme Court rattled privacy advocates by further broadening law enforcement’s ability to use evidence obtained without a search warrant.
Now, two local lawyers are asking the U.S. Supreme Court to examine what they argue has become an overly expansive use of the “community caretaker” exception — a provision police can use to justify searching private places without a warrant if they believe the search is necessary to protect the public.
Racine Attorneys Mark Richards and Brian Dimmer were first faced with the exception and its application in January 2012 when they were hired to represent Charles V. Matalonis, a Kenosha man charged with manufacturing and delivering marijuana.
According to his criminal complaint, officers with the Kenosha Police Department were called to Matalonis’ home after they found his brother bloodied at a nearby residence and a trail of blood leading from that residence to Matalonis’ home.
When they arrived at Matalonis’ home they allegedly saw blood smeared on the front door and heard two loud “bangs” from inside the home. Charles Matalonis, who was 18 at the time, let police inside the home, stating that he lived alone and had been fighting with his brother.
After searching the residence and reportedly finding blood smears and spatters in various locations, as well as evidence of marijuana use, the officers asked to enter a locked room on the second floor.
The door had a few blood spatters and police later argued that they were concerned that another injured person might be in the room and in need of help. After obtaining a key to the room, the officers found four marijuana plants.
Just how the officers obtained the key to enter the locked room — whether they threatened to kick down the door if Matalonis didn’t give them a key or if Matalonis provided it willingly — was heavily disputed at trial court.
Matalonis moved to suppress the evidence obtained during the search, arguing that the search was illegal because police had no probable cause to believe there was someone in need of help behind the door.
Kenosha County Circuit Judge Wilbur W. Warren III denied the motion to suppress in April 2013. Matalonis appealed that decision.
The state Court of Appeals reversed Warren’s ruling in January 2015, stating that search did not fall within the “community caretaker” exception, but less than a year later the state Supreme Court accepted a state petition to review the case.
In a 4-3 ruling issued in February, the state Supreme Court upheld the lower court’s decision, determining that the evidence was indeed admissible.
In addition to troubling those concerned about 4th Amendment rights, the decision rankled some because Justice Rebecca Bradley — a Gov. Scott Walker appointee who had not heard the oral arguments in the case — joined the majority.
Without Bradley’s vote, the court would have been split on the issue, allowing the Court of Appeals decision to stand.
In their petition to the U.S. Supreme Court in June, Richards and Dimmer asked the justices not only to consider whether the officers correctly applied the “community caretaker” exception, but whether the “community caretaker” exception itself is innately flawed or flies in the face of the 4th Amendment, which protects citizens against unreasonable searches and seizures.
“We’re basically taking 10 steps back and now we’re looking at whether that (exception) in and of itself is constitutional,” Dimmer said, noting the increased use of the provision.
Writing for the majority in the state Supreme Court decision, Justice Annette Ziegler stated that officers correctly applied the exception arguing that “they reasonably concluded based on the evidence before them that their assistance was needed to verify the blood in Matalonis’ house did not belong to an injured person other than (his brother).”
State Supreme Court Justice David Prosser, speaking for the three dissenting justices, wrote that while officers “should not hesitate to assist members of the public when time is of the essence,” the majority’s embrace of a broad, ever-expanding version” of the (community caretaker) exception risks transforming” the provision “into an investigatory sword.”
The question of whether the exception is constitutional becomes of even greater importance given the recent concerns over police use of force, Dimmer said.
“Where do we draw the lines?” he said of the state Supreme Court ruling.
“I am not suggesting that officers are going to take this opinion and do random knocks, but it is not pointing to more privacy, it is pointing to less privacy.
“It is another step toward a society where we are living with basically no right to privacy at all; where the unknown is the basis for the police getting involved.”
The U.S. Supreme Court could decide this fall whether it will accept the case.
“Where do we draw the lines? ... (the state Supreme Court decision) is another step towards a society where we are living with basically no right to privacy at all; where the unknown is the basis for the police getting involved.”— Attorney Brian Dimmer of Racine
Racine Journal Times
Homicide by Intoxicated Driver Charges Dismissed, March 10, 2016
Attorney Richards was retained to defend a client charged with homicide by negligent operation of a vehicle. The firm hired an accident reconstruction expert, who opined that the other driver was at fault. Armed with this defense, Attorney Richards pushed forward to trial. On the day of trial, the State agreed to dismiss the homicide by negligent operation of a vehicle, and the client pleaded to a misdemeanor for driving while revoked. He received a term of probation.
Client Acquitted in Hit-and-Run Case, February 27, 2016
Family and friends of a Wind Point man hugged each other and wept Friday night when jurors acquitted him of striking a pregnant woman with his vehicle while driving home on Election Day 2014.
Jurors deliberated for a little more than 1½ hours Friday before declaring Dean L. Cepukenas, 71, not guilty of three counts of failure to stop and give information or render aid, ending the three-day trial. Cepukenas had initially been charged with stiffer offenses: two counts of hit-and-run causing great bodily harm and one count of hit-and-run causing injury.
He was accused of side-swiping the Racine woman on Nov. 4, 2014, while driving home from a gyros shop after a day of golfing followed by beers at a bar.
“My client has maintained from Day One that he didn’t know he was involved in the accident. He’s very sorry for the injuries he caused,” Cepukenas’ defense attorney, Mark Richards, said after the verdict was read aloud in the packed courtroom. “He put his faith in the jury and believes it was a just verdict.”
Genie Webb and her daughter entered the crosswalk at about 5:56 p.m. at Main Street and Goold Street in Racine and Webb was struck by the sport-utility vehicle. Webb, 36 weeks pregnant, had been with her daughter at Lakeview Community Center to vote while Webb’s boyfriend was across the street buying gas. They were walking to meet him at the gas station when Webb was struck.
“It’s sad that he’s not being held responsible for what he did. (Cepukenas’ family members) don’t have to go through any turmoil,” Webb said after the verdict. Had jurors opted for a conviction, it “wouldn’t have solved anything for us. It wasn’t going to take away our pain,” she said.
During closing arguments on Friday, Racine County Assistant District Attorney Jennifer Tanck-Adams told jurors that Webb had taken nine or 10 steps into the crosswalk with her then-3-year-old daughter when Webb was struck by Cepukenas’ vehicle.
While Cepukenas maintains he didn’t know he struck anyone, Tanck-Adams scoffed at the notion.
Arguing the area was awash in lights from the gas station, street lights and Racine Zoo, Tanck-Adams said Cepukenas pulled his car over for about three seconds after side-swiping them so he could check to see whether anyone saw him. Then he left, she argued, because he had been drinking at Scores Sports Bar & Grill, 4915 Washington Ave.
“He waited 24 hours, after he could be sure that alcohol was out of his system, to call law enforcement and say ‘I think this was me,’ “ Tanck-Adams told jurors.
Richards said Cepukenas didn’t see them or he would have stopped.
Cepukenas testified on Thursday during the trial’s second day that he and a friend split not quite two pitchers of Miller Lite beer while at the bar for about three hours before the incident. That would equate to about 3½ beers consumed in three hours — not intoxicated, Richards told jurors Friday.
Had Cepukenas been concerned about alcohol in his system, he wouldn’t have again gone golfing and to a bar on the day following the incident, Richards said. Cepukenas asked his wife to call police the evening after arriving home and seeing a report on the news, he and his wife testified.
Because of a cataract and detached retina, the vision in Cepukenas’ right eye is a blur, he testified Thursday. The impact occurred on the SUV’s front right quarter panel.
Crash reconstructionist Dennis Skogen, testifying for the defense on Friday, said the incident occurred as Cepukenas turned left onto Main Street from eastbound Goold Street. The SUV was traveling at about 10 to 15 mph, said Skogen, president of Skogen Engineering Group Inc. in Madison.
He said part of the SUV connecting to the windshield and the driver’s side window inside Cepukenas’ Toyota Highlander would have blocked his view of Webb and her daughter at the corner.
Racine Journal Times
False Statement in Warrant results in Dismissal of OWI-3rd, January 19, 2016
Attorney Dimmer represented a client, who had a vehicle collision near the Reef Point Brew Pub. Client was arrested and taken into custody. Client was not read her "Informing the Accused" rights. Client did not agree to provide a blood sample, so a search warrant was obtained. Warrant contained two false statements. The court dismissed the case after Attorney Dimmer filed a motion to suppress the blood based upon the false statements in the search warrant.
Johnson Sentenced to Only 4 Months Jail, June 6, 2014
RACINE – Curt Johnson was sentenced Friday to four months in jail stemming from an accusation that he had inappropriate sexual contact with his stepdaughter.
Johnson must also pay a $6,000 fine. He is to report to the Racine County Jail June 14. He will not be required to register as a sex offender.
Johnson, 59, an heir to the Johnson family household products fortune, pleaded guilty Friday to fourth-degree sexual assault and disorderly conduct, both misdemeanors.
Johnson was accused of molesting his teenage stepdaughter for three years, beginning when she was 12 years old.
Circuit Court Judge Eugene Gasiorkiewicz sentenced Johnson to the jail time and fine Friday, saying, "What you did here was wrong, so very, very wrong.”
Gasiorkiewicz said in sentencing he had to think of the victim and what effect this has had on her. He told Johnson, “The things you do in this life don’t just affect you. They affect those who love you, who care for you, who trust you."
Johnson faced a maximum sentence of one year in the Racine County Jail and $11,000 in fines, or both.
Assistant District Attorney Robert Repischak — the prosecutor on the case — recommended the full year in jail, saying, “this was not a one-time, I'm sorry, I'll never do it again situation.” Rather, the sexual abuse went on for years, he said.
Repischak added Johnson has the means to go anywhere in the world to satisfy his sexual desires but chose his own home.
Johnson’s attorney meanwhile said his client has no prior record and has been cooperative in court. He recommended four months in the Racine County Jail.
Gasiorkiewicz ultimately agreed the maximum sentence was not appropriate.
Johnson was initially charged with repeated sexual assault of the same child, a felony with the potential for prison time. But the teen and her mother have refused to cooperate with prosecutors and a related case seeking the release of Johnson’s medical records from therapy in Arizona is held up in appellate court.
So prosecutors offered Johnson a deal to plead to the two misdemeanors, which he did Friday.
Johnson appeared somber in court, with his mother and other family members seated behind him. He answered the judge’s questions with a quiet, “Yes, your honor.”
He addressed the court just before sentencing and apologized for the “tremendous hurt” he has caused his stepdaughter and her mother.
Johnson, of Wind Point, is the former chairman of Diversey Inc. and a son of the late SC Johnson chairman, Sam Johnson.
The teen told her mother — Johnson’s wife — in January of 2011 that her stepfather had “inappropriate sexual contact” with her. Her mother then confronted Johnson in February of 2011 and Johnson “eventually admitted to inappropriate contact,” court records state.
After being confronted, Johnson agreed to go into counseling, where he told a therapist in Arizona that he inappropriately touched his “daughter,” documents show. Arizona law requires that health care providers, such as therapists, report suspected child sexual assaults, and this allegation was reported to the authorities.
Johnson pleaded not guilty on April 13, 2011. The case has been ongoing since then, while both sides have appealed a series of rulings.
In a justification of the amended charges and plea deal, Repischak detailed how his efforts to prosecute Johnson have been hog-tied.
First, Johnson’s stepdaughter and her mother obtained lawyers, which legally halted communications with Repischak because he can’t talk with them once they have attorneys.
The teen and her mother have repeatedly refused to cooperate with prosecutors, including regarding testifying against Johnson if his case went to trial.
The mother and daughter also have refused to release the girl’s medical records, triggering a Wisconsin Supreme Court decision that the teen could not take the witness stand against Johnson if she didn’t first disclose her medical records for a private judicial review.
Johnson’s attorneys then sought to block the release of Johnson’s medical records from his therapy in Arizona. Arizona Appellate Court records show that case still is pending.
But Repischak said Friday he believes that even if the records were released they would not prove helpful in prosecution. Johnson’s wife told Repischak the Arizona clinic had arranged treatment of Johnson “without the risk of further disclosure,” he said.
"I have reasonable belief that any records that my have been drafted at that point may have been edited, scrubbed," he said.
Therefore, Repischak has stated, “Any hope of successfully prosecuting the defendant on the felony charge is virtually nonexistent.”
He has said: “The only viable option available,” other than dismissing the entire case, “is a misdemeanor resolution.”
Racine Journal Times
White Gets New Trial, February 24, 2009
RACINE - Adrial White's new trial will go forward, without an appeal by the state.
Judge Charles Constantine ordered the new trial for White, 32, after his new attorneys argued that White's trial attorney was ineffective. White was convicted in November 2006 of killing Christopher "Eric" Carbajal, wounding Enrico Serra Jr., and shooting at Phillip Jardina on Jan. 18, 2006, after he caught them breaking into the car of his then-fiancee. The two have since married.
White is serving a life sentence for Carbajal's murder.
After Constantine granted White's motion for a new trial, the state asked for time to pursue an appeal of his decision. The state submitted transcripts and briefs to the Office of the Attorney General for review.
On Tuesday the Attorney General's Office voluntarily dismissed the appeal. Staff assessed the case and decided that an appeal was not warranted, officials said.
Mark Richards, the attorney who has been handling White's appeal, expects to represent White in the new trial, though he has not been formally retained.
At his initial trial, White claimed self-defense. He said that Ruth White, his fiancee at the time, woke him up to tell him someone was breaking into her car.
White grabbed a gun and went out the side door of the home, into the alley between Arthur and Blaine avenues near 15th Street. In his account, he said that he saw the would-be thieves with weapons and feared for his safety.
White then fired the gun several times.
Serra and Jardina told the story differently. They said that while they were trying to remove a speaker box from the car, White came out of the door. They said he was yelling at them, and immediately began to fire the gun.
Serra was shot in the upper back; a bullet was removed from his jaw. Bullets passed through Jardina's clothing. Carbajal was shot in the back.
Jardina, Serra and Richard Carbajal, who remained in a van parked around the corner, said they picked Eric Carbajal up off the ground and took him to the hospital.
The medical examiner who completed the autopsy on Eric Carbajal's body testified that the front of his body was pressed against something hard - like the ground - when he was shot. At the preliminary hearing she called it an "execution-style" shooting.
Richards and Hall retained their own medical examiner to review the evidence. Their expert said the irregular appearance of the exit wound was caused by a tumbling bullet, not because Carbajal was lying face down on the ground.
The state, through a special prosecutor, charged Serra, Jardina and Richard Carbajal with the theft that preceded the homicide. Serra was sentenced to 18 months probation. Jardina and Carbajal were each sentenced to one year probation.
Previously, both sides have said they will be ready to move quickly with the new trial. Richards has said he and his partner, Christy Hall, plan to file an extensive set of motions that would need to be addressed before the new trial.
White's first trial lasted about a week.
Racine Journal Times
Homicide charges against Jaime Rojas dismissed, December 7, 2006
RACINE - Jaime Rojas told police his wife, Ebodia, killed herself. He said she came out of the bedroom with a 9 mm pistol and shot herself in the head.
He called 911 from his cell phone and performed CPR. EMTs and paramedics took his wife to the hospital. One of the couple's three children told police that "Daddy killed Mommy."
That statement and evidence at the scene offered a different picture: Rojas had the gun, put it to his wife's head and fired.
Police arrested Rojas. He wasn't able to go to the hospital, where his wife died. He didn't get to go to her funeral. He lost custody of his three sons, one only 6 months old.
Rojas said his wife suffered from depression. A woman who helped raise her had just died and she could not go back to Mexico for the funeral. She was an illegal alien and worried she would not be able to get back into the United States. Rojas is an American citizen, as are his three children.
"Why would they accuse me and say that happened?" Rojas said. "It was the nightmare of my life. I couldn't sleep. In two weeks I lost 30-something pounds. I couldn't sleep. I couldn't believe in trying to help her they would get me like that."
Missing bullet From April 22, 2005, until Aug. 24, 2006, Rojas was in the Racine County Jail. He was released on electronic monitoring this summer. Since his wife's death, Rojas has repeatedly said he did not kill her, and that the police had details wrong.
The police focused on a bullet hole in the floor, but Rojas said the bullet went into the ceiling. Police never found a bullet in the basement or anywhere else. In October, a few weeks after he retained Mark Richards as his attorney, Rojas convinced him to go to the house and look in the ceiling.
The hole had been patched over, Richards said, but they could tell where it was. They pulled down the attic steps and he and an investigator went up to see what they could find. The attic floor was covered with cellulose insulation.
"We go up there and (it was like) looking for a needle in a haystack," Richards said. "(The investigator) said we're never gonna find this."
They measured things out anyway, trying to locate the spot in the attic floor that matched the hole in the ceiling. There, they found two boards over the hole, covering the insulation.
"He pulls away the cellulose and found the bullet," Richards said.
The police collected the bullet. Testing showed it was fired from the gun recovered the day Ebodia Rojas died. The bullet had her DNA on it. Her DNA was also found on the ceiling, near the plaster patch.
"For Jaime's sake I wanted to find a bullet," Richards said. "For the city I grew up in I'd rather not find the bullet. I'm not going to complain. Nothing happens. Nothing changes. I'm convinced, if I hadn't gone up there, he'd be in prison."
Placing blame Richards and his partner, Christie Hall, got to work on getting the charges dismissed. Ultimately, Richards places blame on the police, not prosecutors, for his client's 16 months in jail.
"I've got no complaints, no beefs with the way (Assistant District Attorney) Randy Schneider handled the case," Richards said. "Where I have the real problem is with the Racine Police Department. There's a question of if it's a homicide or suicide. Immediately, police decided it was a homicide."
Deputy District Attorney Rich Chiapete said the police are not at fault. The motion to dismiss charges is a result of new information and not negligence by police.
"It's always an ongoing investigation," he said. "Based on new information we couldn't meet the burden of proof. From our standpoint, our duty is to search for truth and justice."
With the bullet in the attic and expert analysis of blood spatter, prosecutors could no longer rule out suicide.
"We think the police did a thorough job," Chiapete said.
He could not say whether the case would have been different had the bullet in the attic been found immediately.
"We wouldn't be able to project back," he said. "We reacted to it once the information came to light."
Racine Police Lt. Ray Knapp refused to comment on the story.
The dismissal doesn't necessarily mean Rojas is completely in the clear, Chiapete said. There is still evidence that points to Rojas as the shooter, especially his son's statement to police. In subsequent interviews, the boy never repeated the statement that his father was responsible for his mother's death.
Rojas is no longer in jail, but remains under electronic monitoring. The homicide charge has been dismissed, but he still faces drug charges for the cocaine and marijuana police found in his home when they searched it following his wife's death. He is looking for a job and does not plan to stay here.
"After everything is done, I'll go to Mexico and do business down there," he said.
Racine Journal Times
Racine Inmate Cleared of Charges, June 22, 1999
RACINE - After what prosecutors characterize as serious credibility issues for a key witness in a homicide case, they dropped charges against a Racine man accused of choking his cellmate to death last April.
Kurtis King was cleared of first-degree intentional homicide charges Monday in the courtroom of Circuit Court Judge Dennis Flynn. The charges stemmed from the death of King's cellmate, Robert C. Thompson.
The basis for dropping the charges came from the recent firing of two Racine Correctional Institution correction officers, Aaron Joseph and Robert Nebel, who were on duty at the time of Thompson's death. Joseph admitted he lied about checking on another inmate, Mark W. Pfeifer of Milwaukee, an hour before Pfeifer was found not breathing in his cell May 25.
"Aaron Joseph was fired and because of the allegations; we felt there were credibility problems,'' said Michael Nieskes, deputy district attorney. "We are also missing two witnesses who are on parole. One can't be found. We have no way of getting the testimony.''
Nieskes said prosecutors do not plan to re-issue charges in the case. But charges could be brought against Joseph and Nebel as early as this week.
"We're reviewing charges this week,'' he said. "There's still other information out there.''
In an independent investigation, Racine County sheriff's deputies recommended prosecutors seek obstruction and misconduct in office charges against Joseph and Nebel. A second investigation was completed by prison officials, and that review resulted in the termination of Joseph and Nebel.
King is scheduled for a parole hearing in September on charges of party to attempted felony theft from a person while armed and masked. He remains in prison at Waupun Correctional Institution.
Defense attorney Mark Richards, of Racine, said King is a victim of the careless work habits of Racine Correctional Institution guards.
According to Richards, King pounded for help for more than 30 minutes after realizing Thompson was dead. The correctional officers failed to respond. Thompson, who suffered from asthma, made a request to have his inhaler and within 15 minutes of receiving it, he strangled himself, Richards said.
One inmate told authorities he overheard King and Thompson arguing about King stealing his cellmate's medication to get high. Richards believes Thompson hanged himself.
Thompson's death was ruled asphyxiation due to strangulation.
"If the guards had answered the emergency buzzer when my client had hit it, he (Thompson) would still be alive today,'' said Richards. "I walked into court and I walked out happy. My client did not kill Robert Thompson. I'm glad the family did not have to suffer through a long court trial.''
No security changes have been implemented at RCI in the wake of the firing of the two guards, said Deputy Warden Gene Dobberstein.
"We have not, at any time in the last year, changed our policy in any way with regard to inmate possession of inhalers,'' he said. "In general population, inmates keep their inhalers.''
Although Dobberstein said the state views the correction officers' violations as a serious matter, they do not believe their actions contributed to the death of Thompson.
Racine Journal Times