April 3, 2019 at 4:39 p.m.
Judge: Mendez defense free to argue third-party guilt
Trial postponed after defense files late motion for adjournment
Judge: Mendez defense free to argue third-party guilt
By Jamie Taylor and Heather Schaefer-
Following a one-hour motion hearing April 1, Judge Jill Falstad granted defense attorney Peter J. Prusinski's motion to introduce evidence of third-party guilt in the Robin Mendez case.
Mendez was charged with first-degree murder just over a year ago, after the Oneida County sheriffs department re-investigated his wife's death.
The state has theorized Mendez attacked his 33-year-old wife from behind as she performed closing tasks as part of her job at the former Park City Credit Union in Minocqua.
According to the criminal complaint and previous court testimony, the credit union manager found Barbara Mendez dead on the floor of the credit union at approximately 7:30 p.m. April 28, 1982, after Robin Mendez asked her to check on his wife because she was late for a church function.
Following autopsy, the late forensic pathologist Dr. Robert W. Huntington III ruled Mendez died as a result of "multiple blunt injuries, abrasions and lacerations to the head, with extensive skull fractures," the complaint states.
The state has alleged Mendez killed his wife because he feared she had learned that he had sexual contact with a minor female on a number of occasions and divorce was not acceptable in his religion. (Mendez was later convicted of sexual assault involving the minor).
However, in a motion filed in late March, Prusinski argued the defense should be allowed to present evidence the murder was committed in the course of a robbery.
The defense motion lists Thomas Boze, who is now deceased, and Raymond Norris as its suspects.
In a previous story about the defense motion, the River News chose not to use the men's names, as a judge had yet to decide if the evidence could be introduced at trial. The names are included in this story as the judge has now ruled evidence of the defense's theory can be introduced.
While noting the constitutional right to present a complete defense, Prusinski's motion outlines the "legitimacy tendency" test created by Wisconsin courts for the purpose of determining whether evidence of third-party guilt may be admitted.
According to the motion, the legitimacy test consists of the following three prongs:
• First, did the alleged third-party perpetrator have a plausible reason to commit the crime? This is the motive prong.
• Second, could the alleged third-party perpetrator have committed the crime, directly or indirectly? In other words, does the evidence create a practical possibility that the third party committed the crime? This is the opportunity prong.
• Third, is there evidence that the alleged third-party perpetrator actually committed the crime, directly or indirectly? This is the direct connection prong.
"Logically, direct connection evidence should firm up the defendant's theory of the crime and take it beyond mere speculation," the brief explains. "It is the defendant's responsibility to show a legitimate tendency that the alleged third-party perpetrator committed the crime."
In its motion, the defense contends Thomas Boze was unemployed and in financial distress at the time of the murder. The motion further alleges that Boze can be placed at the credit union the day of the murder because witnesses reported seeing him cashing a check there and asking Barbara Mendez how he could become a member.
In addition, a membership card with his name on it, dated April 28, 1982, was located in the credit union during the investigation.
"The signed membership card directly connects Thomas Boze to the crime scene," Prusinski wrote. "(A witness) overheard the conversation where (Boze) was given the membership card to fill out. Boze put that paperwork in his wallet. Boze said he would come back that day with the $5.00 to become a member. Law enforcement found a typed index account card for the suspect on April 28, 1982, on file. They also discovered the signed and completed membership card on file. Yet, Boze denied coming back to the credit union on April 28, 1982, before 5:15 p.m."
The defense further contends that Boze was capable of committing a robbery, as he was previously convicted of armed robbery in another state.
Prusinski also argued Boze knew how to kill because he served in Vietnam.
"This evidence shows how Boze could stomach bludgeoning the victim to death, or how 'something happened,' and he snapped," he wrote. "The Vietnam War conjures images of fierce fighting in dark jungles, grappling in hand-to-hand combat, dodging booby-traps, and finding others bleeding out and dying before one's eyes. That experience traumatizes and can fundamentally change a person. It ruins. The evidence that (the individual) came back 'messed up' from Vietnam suggests it worked evil rather than good in (him)."
As for Norris, the defense argues he admitted to being the getaway driver while testifying in a 1984 John Doe hearing in the case. (The motion indicates he later recanted the confession).
In court Monday, Oneida County district attorney Mike Schiek argued that while Boze had been in the credit union earlier in the afternoon of April 28, neither he nor Norris had a motive to return to the credit union and kill Barbara.
He filed several exhibits to support his argument, including information about a polygraph test that Robin Mendez failed.
"We'll let the court review this, but it was the opinion that Mr. Mendez did not tell the truth when asked about questions about the death of Barb," Schiek said. "Certainly to refute what was submitted by Mr. Prusinski and also show that law enforcement would not consider Mr. Boze a suspect."
According to sheriff's captain Terri Hook, Boze died in 2006. Norris is still alive, but Hook declined to give his location.
After hearing Schiek's arguments, Falstad reviewed the information outlined in the defense brief as to whether Boze and Norris had motive, opportunity and a direct connection to the killing.
Without ruling on the strength of the evidence, Falstad found the defense had met the three prongs of the legitimacy test.
"In their brief, the defense first charges that Thomas Boze possessed the capacity and ability to rob and kill another human being, based on his particular history which included involvement in a prior armed robbery in Kentucky," Falstad said. "The defense asserts for our use that this prior incident is the test for admissibility under the three steps set forth in the Sullivan case as other acts evidence. The court agrees."
Falstad then explained the similarity of the two robberies, and that a weapon was used in both, reinforced her decision.
"In both cases, relatively minor amounts of money were taken," Falstad said. "$100 from the grocery store in 1977 and in the credit union robbery, while $2,700 approximately was taken, $17,000 cash was left behind."
Because the case will be heard and decided by Falstad rather than a jury, she also noted that she could give the evidence its proper weight upon deliberation.
As for Norris, Falstad found that Prusinski made an convincing argument that he had committed prior criminal acts that would make him a possible suspect, based on police interviews from 1985. This includes being the getaway driver on another robbery.
"Mr. Norris testified under oath in a John Doe hearing making statements against his penal interests, essentially the same details that are provided in his written statement," Falstad said. "Given the gravity of the crime, and the sworn testimony, there is sufficient proof in the statement alone of third party guilt, even if the credibility of the statement is later challenged at trial."
While Prusinski can introduce the evidence at trial, Schiek can also offer evidence to counter both arguments.
Among other witnesses, the state is expected to call an independent forensic consultant, former Georgia Bureau of Investigation agent Chris Robinson, to testify that the injuries to Barbara's head were caused by a pry bar or a Wonder Bar, tools that are routinely used in the furniture upholstery business. At the time of the murder, Robin Mendez's family operated an upholstery shop and he would have had easy access to such a tool, it was noted in the criminal complaint.
The bench trial was set to begin at 8:30 a.m. Monday, however the defense filed a five-page motion late Tuesday requesting an adjournment to allow time for review of information recently submitted by the state, including 298 pages of transcripts of wiretaps of Thomas Boze's telephone from August 1982.
"It is now April 2, 2019, within one week of a three-week murder trial, and defense counsel is being invited to review all of the State's files to make sure defense counsel has all the discovery in this matter, as well as review all of this recent discovery before trial," Prusinski wrote in the motion. "Defense counsel does not have sufficient time to review not only 298 pages and a CD of recently disclosed materials, but also to comb through all of the Sherriff's files to compare it to the original discovery's 20 subfolders of voluminous material, both of which may lead to further investigation by the defense, while yet at the same time being adequately prepared for trial on Monday, April 8, 2019."
Following a brief hearing late Wednesday, Falstad granted the motion to adjourn.
A status conference is scheduled for April 8, at which time the parties may be able to set new a trial date.
Because the charge is based on the homicide statutes in place in 1982, Mendez faces life in prison if convicted.
Jamie Taylor may be reached via email at [email protected].
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