March 27, 2013 – Mark Libecki was convicted of killing a coworker in Germantown 14 years ago. Recently, a state appeals court rejected his appeal for a new trial.
Along the way, the appeals court clarified that a personal colloquy, on the record, is not required for defendants to waive immunized testimony, “though it would generally be a good practice” if the court knows the prosecution is attempting to use such testimony.
In 1999, Theresa Wesolowski was found dead in a ditch with stab wounds. With no suspects, the circuit court initiated John Doe proceedings, which are used to uncover evidence of crimes while protecting innocent persons from frivolous prosecutions.
The proceedings ended with no charges. But in 2006, new DNA analysis allowed investigators to uncover Libecki’s DNA on blood samples taken from the victim’s hands.
Police uncovered the 1993 Ford Explorer that Libecki owned in 1999. They found no blood evidence in the vehicle, but matched the vehicle’s tires to tracks found at the crime scene, as well as bloody boot prints matching the boots Libecki had worn in 1999.
Ultimately, Libecki obtained immunity for his testimony and any evidence derived from it. In 1999, he told police he spoke with the victim briefly after work the night of the murder and they departed separately. Now, in 2006, he said he was present when another coworker killed her in the backseat of Libecki’s Ford Explorer.
Libecki said he bought cocaine from coworker Tommy Thompson, who died in 2003, while the two men were in his car. The victim unexpectedly entered the car while Libecki was doing cocaine in the front seat, he said. At some point, Thompson stabbed her. Libecki said he dragged the victim’s body to the side of the road and sped off.
Investigators found no blood evidence to corroborate Libecki’s story until July 2009 when, at Libecki’s urging, they removed a cover from the Ford Explorer’s backseat. A month later, police arrested Libecki and charged him for as a party to the murder.
Libecki testified to his version of events at trial, asserting that he was present during the crime but Thompson was the one who killed the victim. He wasn’t a party to it.
Before closing arguments, prosecutors amended the complaint to charge Libecki with first-degree intentional homicide. Libecki’s defense counsel did not object to the amendment. A jury found him guilty, and he was sentenced to life in prison.
Libecki filed postconviction motions, arguing that admission of the blood evidence violated his Fifth Amendment right against self-incrimination because his testimony, and any evidence derived from the testimony, was given immunity from use. He also said his defense counsel was ineffective for failing to object to the amended complaint.
The circuit court denied the motions, concluding that Libecki waived a right to exclude the immunized testimony and the resulting blood evidence. It also ruled that his counsel was not ineffective for failing to object to the amended complaint.
Appeals Court Upholds
In State v. Libecki, 2012AP663-CR (March 27, 2013) a three-judge panel for the District II Wisconsin Court of Appeals affirmed the lower court’s ruling.
Libecki argued that he couldn’t waive immunity unless he did so through a personal colloquy with the court, on the record. The appeals panel disagreed.
“Libecki does not cite, and we have not found, any authority holding that the right to exclude immunized testimony or evidence derived from that testimony falls within that narrow class of rights that only the defendant, personally, may waive,” wrote Chief Appeals Court Judge Richard Brown for the appeals court panel.
However, Judge Brown said circuit courts should conduct a personal colloquy if the court knows immunity was given and a party wants to use it anyway. In this case, the circuit court did not know Libecki received immunity in a prior John Doe proceeding.
The panel also rejected the state’s argument that a defendant waives immunity by simply failing to object when immunized testimony is sought to be used.
“A defendant who has a preexisting immunity agreement with the State should be able to rely upon that bargain with the State without having to object should the State intend to violate its promise,” Chief Judge Brown wrote.
The panel explained that an independent source or waiver of immunity must exist, and Libecki’s knowing, intelligent, and voluntary waiver was a strategic decision. That is, he wanted the jury to know that Libecki told officers to check the car again for blood.
“He wanted this evidence before the jury,” Judge Brown wrote. “It supported his story.”
The panel also rejected Libecki’s argument that this strategic choice, and counsel’s failure to object to the amended complaint, rendered counsel ineffective. “A valid strategy is not a ‘deficient performance’ just because it fails,” wrote Judge Brown.
The panel noted that allowing the state to drop the “party to the crime” portion of the charge without objection meant the jury had to find him guilty of killing the victim.
“[T]he amendment meant that the jury had to squarely face the question of whether Libecki, himself, did the crime, or whether he was simply present at the scene,” Brown wrote. “This ‘all or nothing’ amendment benefited Libecki, not the other way around.”
