State v. Libecki

2013 WI App 49, 830 N.W.2d 271, 347 Wis. 2d 511, 2013 WL 1223144, 2013 Wisc. App. LEXIS 259
CourtCourt of Appeals of Wisconsin
DecidedMarch 27, 2013
DocketNo. 2012AP663CR
StatusPublished
Cited by2 cases

This text of 2013 WI App 49 (State v. Libecki) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Libecki, 2013 WI App 49, 830 N.W.2d 271, 347 Wis. 2d 511, 2013 WL 1223144, 2013 Wisc. App. LEXIS 259 (Wis. Ct. App. 2013).

Opinion

BROWN, C.J.

¶ 1. Mark Libecki appeals from his judgment of conviction of first-degree intentional homi[514]*514cide in the 1999 stabbing death of Theresa Wesolowski and from the order denying his motion for a new trial. The chief issue in Libecki's appeal relates to evidence of Wesolowski's blood, discovered in the back seat of the Ford Explorer that Libecki owned at the time of Wesolowski's murder. This blood evidence was discovered following Libecki's immunized, compelled testimony at a closed hearing in John Doe proceedings1 concerning Wesolowski's murder.

¶ 2. At trial, Libecki's defense hinged on the story he first gave in those John Doe proceedings, that a third party, a since-deceased coworker dealing in drugs, killed Wesolowski in the backseat of Libecki's Explorer. That story provided an alternative explanation for the physical evidence linking Libecki to the scene, and the blood evidence that Libecki now complains about was particularly consistent with his version of the events.

¶ 3. Libecki argues that nonetheless his Fifth Amendment right against compelled self-incrimination was violated because the circuit court was required to establish, in a personal colloquy on the record, that Libecki wished to knowingly and voluntarily waive his immunity as to the blood evidence. In the alternative, Libecki argues that he received ineffective assistance of counsel when his trial counsel advised him not to object to the admission of the blood evidence and advised him to agree to the State's late amendment of the charge [515]*515against him. Libecki also claims that a new trial is required in the interests of justice.

¶ 4. We reject all of Libecki's arguments and affirm.

Facts

¶ 5. Wesolowski and Libecki both worked nights at a manufacturing plant in Germantown. At about 5:30 a.m. on May 28, 1999, a first-shift worker found Wesolowski's body by the side of a road near the plant, lying in a drainage ditch beside her car. She had been stabbed to death. Police interviewed all of the plant employees who worked the night before, including Libecki. At the time of that initial interview, Libecki told police that he left work at the same time as Wesolowski, around 11 p.m., and talked to her briefly, but did not see her leave. He also mentioned a rumor that Wesolowski had a jealous, violent ex-boyfriend.

¶ 6. The initial investigation failed to link anyone to Wesolowski's murder, and in 2001 a John Doe proceeding was convened to gather more evidence. In those 2001 proceedings, Libecki (along with many other people who had some contact with Wesolowski before her death) was called to testify, and in his testimony stated that he did not know Wesolowski well and did not remember what he had said to police in his 1999 interview. The 2001 proceedings ended without any charges.

¶ 7. Little progress was made in the investigation until 2006, when a new DNA analysis technique detected male DNA mixed with Wesolowski's DNA in the blood swabs from her hands. In 2006, investigators, looking for a match, took DNA samples from dozens of males who had been identified during the investigation, [516]*516including Libecki. Analysis determined that Libecki's DNA was present in the blood samples taken from Wesolowski's hands.

¶ 8. Before calling Libecki in for interrogation, officers tracked down and purchased the 1993 Ford Explorer that Libecki had owned at the time of the murder. They searched the vehicle and conducted tests for physical evidence but found no blood evidence in it at that time. They determined that the Explorer's wheelbase measurement matched the measurement of accelerating tire tracks left at the scene. The investigation also established that bloody boot prints at the scene were from "Texas Steer" brand boots and that Libecki had bought that brand of boots to wear to work in 1999.

¶ 9. With the DNA, wheelbase, and boot print evidence in hand, investigators asked Libecki to come in to the Germantown police department, which Libecki did on December 7, 2006. Libecki gave officers essentially the same story as in his initial interview, claiming no knowledge of Wesolowski or her killing. The officers then disclosed the new evidence, i.e., the boot prints and tire tracks, and Libecki's DNA on Wesolowski's hands. When Libecki declined to voluntarily provide his fingerprints, investigators read him his Miranda2 rights and executed a search warrant they had obtained in advance, authorizing them to take fingerprints, DNA, and hair samples. Unbeknownst to Libecki, other officers executed a search warrant on his home. Libecki was not arrested, but pursuant to an agreement his lawyer reached with police, he spent that night at the jail.

[517]*517¶ 10. The next day, December 8, 2006, with his attorney present, after being granted immunity from the use of his testimony and evidence derived from it, Libecki gave a new story about the events on May 27, 1999. For the first time, Libecki admitted being present at the scene of Wesolowski's murder. He testified that Wesolowski was killed by a coworker, Tommy Thompson, who had sat in the backseat of Libecki's Ford Explorer to sell him cocaine after work. Libecki claimed that while he was using some of the cocaine, Wesolowski unexpectedly entered the Explorer and sat beside Thompson in the backseat. He stated that Thompson and Wesolowski remained in the back seat while he did cocaine in the front seat. At some point, according to Libecki, he felt a bump on the back of his seat, and when he opened the driver's-side back door to ask Thompson and Wesolowski to leave, he saw that Wesolowski had been stabbed. Libecki testified that he dragged Wesolowski's body to the side of the road and then sped off in the Explorer.

¶ 11. At the time of Libecki's testimony in 2006, the man he identified as the murderer, Thompson, was already dead, having died from a drug overdose in 2003. Significantly, during his 2006 John Doe testimony, Libecki specifically talked about how there was blood in the backseat of his automobile, which would go to show that the murder occurred there.

¶ 12. Libecki was not arrested in 2006 but was interviewed again by police in January 2007. He reiterated the story he gave when he testified at the John Doe hearing, that Wesolowski was stabbed by Thompson in the backseat of his Explorer. When police responded that they had found no blood evidence in the backseat, Libecki protested that they should look again because Wesolowski's blood had to have soaked into the seat. [518]*518Libecki made similar statements during his testimony at another John Doe hearing held in 2008.

¶ 13. In July 2009, investigators finally removed the cover from the Explorer's backseat and found evidence of Wesolowski's blood soaked into the cushion beneath. Shortly thereafter, in August 2009, Libecki was charged with first-degree intentional homicide as a party to the crime.

¶ 14. Libecki's trial took place in November 2010. The prosecution was based in large part on physical evidence linking Libecki to the scene, including the blood evidence from the Explorer's backseat. Libecki testified in his own defense, telling his version of events, in which he was present as a witness, but not a participant, when Thompson stabbed Wesolowski in the Explorer's backseat and was standing over her body with a knife at the side of the road when Libecki sped away in the Explorer.

¶ 15.

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Bluebook (online)
2013 WI App 49, 830 N.W.2d 271, 347 Wis. 2d 511, 2013 WL 1223144, 2013 Wisc. App. LEXIS 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-libecki-wisctapp-2013.