March 15, 2013 at 5:30 p.m.
Judge denies DeRosier's motion for new trial
Judge denies DeRosier's motion for new trial
Friday, a judge denied DeRosier's motion filed three months ago alleging that his attorney was ineffective at the December 2011 jury trial where DeRosier, 63, was convicted of sexual assault, battery and intimidation. He was sentenced to 30 months in prison, followed by 30 months of extended supervision.
The basis of DeRosier's argument for a new trial revolved around hearsay testimony presented at trial. He claimed his trial attorney, Mike Schiek (now Oneida County's district attorney), should have objected to hearsay from several state witnesses including Rhinelander Police Chief Mike Steffes, a neighbor of the victim and the victim's daughter. Those witnesses testified about what the victim had told them (a.k.a. hearsay).
"These mattered," DeRosier's attorney, Peter Heyne, said Friday about the hearsay statements. "It bolstered the victim's testimony."
But state prosecutor Karie Cattanach argued that allowing the hearsay was part of Schiek's trial strategy, and noted it was successful in getting acquittals on three of the charges against DeRosier.
"Just because it wasn't successful on all charges, doesn't make counsel (Schiek) deficient," Cattanach said.
Lincoln County Circuit Judge John Yackel agreed and denied DeRosier's motion. The first consideration has to be whether or not Schiek's performance at trial was deficient, Yackel said. He decided that wasn't the case.
Heyne argued that the hearsay in and of itself made it an unfair trial for DeRosier.
"Why have the test about hearsay if you can say (not objecting to) it is strategic?" Heyne said. "We have rules about hearsay to ensure a fair trial."
Judge Yackel noted that in every trial there is hearsay that is objected to as well as hearsay that isn't.
"Just because the hearsay statute exists doesn't mean counsel has to object to (hearsay) every time," Yackel said.
Schiek testified at Friday's motion hearing and said he made a point not to object to the hearsay.
"I honestly didn't care if hearsay came in," Schiek said.
He said his goal at trial was to create doubt in the jury members' minds about the credibility of the victim. He described the theme of his strategy as the "woman scorned," and attempted to portray the victim's claims about DeRosier as lies said out of jealousy because of his involvement with someone else.
"Generally, the strategy was to make (the victim) look like she was so mad she would do or say anything to get Mr. DeRosier in trouble," Schiek said.
He said he felt the hearsay testimony helped his case and gave him information he used later in the cross-examination of the victim to question her credibility.
"Whatever (hearsay) came in I could use later against (the victim) to show what she didn't say," Schiek said, noting that the victim's story changed and more details about the allegations against DeRosier emerged as the trial date neared. Schiek said he didn't think the victim's testimony at trial was in line with some of the things she had said earlier in the case to witnesses like Chief Steffes.
"I needed the statement from (Chief Steffes) to use against (the victim)," Schiek said. "Let me argue credibility and what she didn't tell him."
"I also didn't want to object to every question and make it seem to the jury like I was trying to hide something," Schiek added.
DeRosier testified briefly and said he didn't recall talking about any specific trial strategy with Schiek. He said he had a legal pad in front of him at trial and in a few cases wrote words like "hearsay" and "objection" on it and tried to get Schiek's attention.
"I was trying to subtly let him know that I knew what was going on and it was getting out of hand," DeRosier said of the hearsay testimony presented by witnesses. He said he felt it helped the credibility of the victim's testimony.
Schiek said he felt DeRosier was aware of the "theme" of the trial strategy and added that he didn't recall receiving any objections from his client about the strategy.
"I don't know what they were thinking," Schiek said of how the jury perceived his case. "I don't know what worked and what didn't work. It was a strategy. For the most part, it went how I planned it."
Kyle Rogers may be reached at [email protected].
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