December 1, 2017 at 4:43 p.m.
Standoff suspect's preliminary hearing postponed
One felony charge dismissed
Standoff suspect's preliminary hearing postponed
Mathew E. Smith appeared before Branch II judge Michael Bloom on an amended complaint alleging two counts of disorderly conduct (domestic abuse), one felony count of failure to comply with officer's attempt to take person into custody, three counts of misdemeanor bail jumping, possession of drug paraphernalia, a felony count of manufacture or delivery of THC under 200 grams (distribution to minors) and contributing to the delinquency of a child.
Assistant district attorney Mary Sowinski amended the complaint just prior to the 4 p.m. hearing and Smith's public defender Chad Lynch told the court he did not have time to review the changes.
He also told Bloom that he might have a conflict involving one of the witnesses involved in the case who has since been charged with drug offenses.
Lynch asked that the preliminary hearing be adjourned to allow his office to find another attorney, either locally or from another office, who doesn't have a conflict.
He did, however, make a motion to dismiss the felony count of failure to comply with officer's attempt to take person into custody because the information in the probable cause statement of the amended complaint does not state that Smith was armed or threatened to use a dangerous weapon when he was initially seen outside the building by sheriff's deputies and then went inside, or at any time during the rest of the six-hour standoff.
According to the criminal complaint, a woman called the sheriff's department at 9:49 a.m. Nov. 16 to report Smith was threatening to kill himself and others in a residence on U.S. Highway 8 West in the town of Crescent. The caller said Smith had a knife and possibly a gun.
When members of the sheriff's department arrived at the residence, they were told Smith had been arguing with his girlfriend when he made the threats. The deputies saw Smith exit the rear of the building and ordered him to surrender, but he ran back inside the residence.
A perimeter was then established and the Oneida County Special Response Team (SRT) and officers from other area law enforcement agencies were called to assist in taking Smith into custody. The complaint says officers made over 20 attempts to contact Smith by telephone and numerous times by public address system, but he did not respond. This took place over the course of approximately 6 hours, according to the complaint.
After a warrant was obtained, the SRT entered the residence and took Smith into custody, recovering a knife and drug paraphernalia, the complaint states.
Smith's girlfriend later told detectives that he had become enraged over a perceived infidelity and that he had repeatedly threatened her with the knife.
While a knife was recovered, Lynch argued the state cannot show that Smith ever had it. This is one of the elements of the charge that a jury has to find Smith committed in order to find him guilty.
While there is probable cause to believe that Smith intentionally refused to comply with an officer's lawful attempt to take him into custody, that he did retreat or remained in a building and through action or threat, attempted to prevent his arrest, Bloom said the complaint does not adequately show probable cause as to the last element.
Bloom said the jury instructions for the charge clearly state that Smith had to be found to have committed all three elements beyond a reasonable doubt to be found guilty. Based on that, he dismissed that charge, but noted that Sowinski could refile the charge before the preliminary hearing, which was rescheduled to Dec. 7.
In general, one or more police reports are attached to a criminal complaint in order to demonstrate probable cause to support the charge(s). In Smith's case, Sowinski relied on a narrative summation of the reports.
"I did that because the report was over 30 pages long," she said after the hearing, adding that she will be filing another amended complaint with additional evidence to support the dismissed charge.
This is the second felony charge dismissed in this case. At Smith's adjourned initial appearance Nov. 11, Lynch convinced Bloom to dismiss a charge of intentionally contacting a victim, witness or co-actor after a court order for a felony conviction. Bloom ruled that the California charge that Smith was convicted of did not meet Wisconsin statutory requirements.
On Nov. 27, charges were filed against three adults in the residence where the alleged standoff occurred.
Pamela A. Kubesh, 48, of Rhinelander, was charged with contributing to the delinquency of a child and possession of drug paraphernalia, both misdemeanors.
Bloom set a $1,000 signature in her case and scheduled an adjourned initial appearance for Jan. 22, 2018.
Joseph J. Timreck, 18, of Rhinelander, was charged with a felony count of manufacture or delivery of THC under 200 grams and misdemeanor counts of contributing to the delinquency of a child and possession of drug paraphernalia. Bloom set a $2,000 cash bond in that case and scheduled an adjourned initial appearance for Jan. 14, 2018.
Torin J. McGuane was charged with manufacture or delivery of THC under 200 grams and misdemeanors for contributing to the delinquency of a child and possession of drug paraphernalia and misdemeanor bail jumping, however there was no proof of service of the complaint and he was not in custody.
He appeared Friday afternoon, after being properly served.
A preliminary hearing in McGuane's case is set for Jan. 12. He is free on a $3,000 signature bond.
Jamie Taylor may be reached via email at [email protected].
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