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Diane Kay BORCHARDT

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Convicted of hiring three of her students to murder her estranged husband
Number of victims: 1
Date of murder: April 3, 1994
Date of arrest: September 29, 1994
Date of birth: 1949
Victim profile: Ruben Borchardt, 40 (her estranged husband)
Method of murder: Shooting (shotgun)
Location: Jefferson County, Wisconsin, USA
Status: Sentenced to life in prison, with no possibility of parole until she had served 45 years of her sentence
 
 
 
 
 
 

photo gallery

 
 
 
 
 

Court of Appeals of Wisconsin
District IV

 
State of Wisconsin v. Diane Borchardt
 
 
 
 
 
 

Diane Borchardt was a former teacher's aide/study hall monitor at Jefferson High School in Wisconsin. She was convicted of hiring three of her students to murder her estranged husband, Ruben Borchardt, on Easter morning in 1994.

At her trial, Diane Borchardt was found guilty of first-degree intentional homicide. She was sentenced to life in prison, with no possibility of parole until she had served 45 years of her sentence.

The miniseries Seduced by Madness: The Diane Borchardt Story was broadcast on NBC and CHCH on February 25 and 26, 1996 and starred Ann-Margret as Diane.

 
 

Diane Borchardt loses her appeal for new trial

Ex-teachers aide is serving life sentence for hiring 3 teens to kill her husband

By Kevin Murphy - Milwaukee Journal Sentinel

April 24, 1998

A former teachers aide serving a life sentence for hiring three students to kill her estranged husband in 1994 is not entitled to a new trial, the state Court of Appeals ruled Thursday.

Diane Borchardt, 48, was convicted of being party to the crime of first-degree intentional homicide and of using a child to commit a felony for the shotgun slaying of her husband, Ruben Borchardt, at their rural Jefferson home on Easter 1994.

Diane Borchardt, who becomes eligible for parole in 2035, has maintained her innocence, although she didn't testify at trial. She was convicted of hiring Douglas Vest Jr., then 17, to commit the killing for $600 in cash, a ring and a promise of $20,000 from her husband's life insurance. Vest recruited Joshua Yanke, then 17, and Michael Maldonado, then 16, to assist in the slaying.

The three, who had been students at Jefferson High School where Diane Borchardt worked, were convicted on homicide charges. Vest and Maldonado were sentenced to life in prison. Yanke testified against them and received an 18-year term.

Diane Borchardt appealed the conviction, saying she had ineffective counsel, saying there were errors by the trial judge and alleging the abuse of a John Doe investigation in which witnesses testified in secret.

The appeal claims District Attorney Linda Larson used a John Doe investigation to improperly obtain more information against Diane Borchardt and the three teens. A John Doe probe can be used to learn if uncharged individuals were involved in a crime or if the defendants can be charged in other crimes.

However, the Court of Appeals panel based in Madison said the probe was properly conducted as it resulted in Shannon Johnson, of Waunakee, being charged but later dropped as a co-conspirator in the slaying.

Diane Borchardt's attorney, Richard Auerbach, also unsuccessfully challenged as hearsay testimony from the couple's son about Ruben Borchardt's dying words: "I can't believe she would do this to me."

Charles Borchardt, 16, testified that shots woke him up and that he found his father in a basement bedroom. His father first said two males had shot him and added that he believed his wife was involved, Charles Borchardt testified.

The appeals court upheld Jefferson County Circuit Judge John Ullsvik's decision that the statements were an allowable exception to the hearsay rule.

Auerbach said he and Diane Borchardt were disappointed with the decision and that they would seek to have the state Supreme Court review the case.

"We felt we had raised significant issues alleging prosecutorial abuse of the John Doe proceedings . . . and other errors in the investigation into the Borchardt slaying," Auerbach said. "We did not believe the trial court considered all the evidence that was available and are confident the Supreme Court will take a full look at the matter if the case is accepted."

The appeals court last month rejected Maldonado's request for a new trial.

 
 

Flunking Murder 1

Police Say Teacher's Aide Diane Borchardt Had Her Husband Killed—By a Trio of Teenage Hit Men

By Cathy Breitenbucher, Barbara Sandler - People.com

December 19, 1994

AT 3:35 A.M. LAST EASTER SUNDAY, 17-year-old Chuck Borchardt, asleep in a first-floor bedroom of his Jefferson, Wis., home, was jolted awake by a loud bang. A few minutes later, he heard the sound of moaning. When he approached the living room, Borchardt, an experienced hunter, immediately recognized the reek of burnt gunpowder. Following the sound of the moans, he raced to the cellar stairs. Looking down, he saw his father, Ruben, bleeding and slumped across a chair. Shot in the chest and the back, the elder Borchardt, 40, was still conscious. Chuck called 911, then held his father's hand. Before he died, Ruben Borchardt murmured, "I can't believe she would do this to me."

By "she," Chuck believed, Ruben meant his wife, Diane, 45. At first the notion that the study-hall monitor at Jefferson High School would be involved in her husband's murder seemed outlandish to many of the 6,000 residents of this two-stoplight farming town. True, the Borchardts had been going through a divorce, but "Mrs. B," as she was known, was regarded by many students as a sympathetic figure. "She had feelings for everyone," says Jeremy DeBlare, 14, a Jefferson student. "If a kid was crying, she'd cry too." Nonetheless, on Sept. 29, six months after Ruben Borchardt's death, Diane Borchardt was arrested and charged with first-degree intentional homicide. Equally stunning were the arrests of the hit men she had allegedly hired for the killing: Douglas Vest Jr., 17, who was recently voted "the sweetest boy" at Jefferson High; his friend Joshua Yanke, 16, a member of the school choir; and Vest's cousin Michael Maldonado, 15, a high school dropout.

"This is a town where you can walk in the dark without any concerns," says Raymond Krek, Ruben Borchardt's friend and attorney. "That this did happen here, that kids could be hired for murder, is shocking."

Ruben and Diane Borchardt had met on the rebound. In February 1979, Ruben's first wife, Susan, died in a traffic accident, leaving him with two small children—Chuck, who was then a year old, and his sister Brook, 3. Soon afterward, while working as a foreman at Schweiger Industries, a local furniture manufacturer, he began seeing Diane Pfister, a secretary at Schweiger, who was divorced from her first husband. That October, eight months after Susan's death, they married. Their daughter Regen, now 14, was born eight months later.

If there was a honeymoon period, it didn't last long. "I remember in the third grade, when I wished they would get divorced because they were constantly fighting," says Brook, now 19. "She just argued about anything—whether the sky was blue, anything."

Ruben, according to his friends, was quite different. "He'd walk into a room and light it up with his smile," says John Roth, a local utility employee who had been Borchardt's friend since third grade. Says Raymond Krek: "Ruben was very social. Diane was very antisocial—and very anti-Susan. She did everything she could to obliterate the memory of Susan."

At times, in fact, she seemed abnormally possessive of Ruben, who ran a successful cabinetmaking business from their home outside town, and of his children. For as long as she could, Diane tried to hide from Brook and Chuck the fact that Susan was their natural mother. "She was jealous, she wanted us to think she was our real mother," says Brook, who eventually learned the truth from a third-grade classmate. "She would get furious when she even heard I looked like Sue."

For years, say Brook and Chuck, Ruben tried to avoid fights, and for the sake of domestic tranquillity he urged his children to respect Diane. But recently he had begun dating a local woman, a home-maker in her 30s. Diane reacted, say authorities, by asking Jefferson students to spy on the two.

By January 1994, Ruben had filed for divorce and moved into his basement until property and custodial matters could be settled. Diane flatly refused to leave the home that Ruben had built. She also tried to get custody of Chuck, her stepson. Diane became increasingly angry; Ruben, Brook and Chuck all urged her to seek counseling. "Ruben felt she needed help, and he tried to get her help," says his friend John Roth. "She'd turn it around that he needed help."

With divorce impending, quarrels between Ruben and Diane reached such a pitch that Brook moved into a friend's home. Chuck remained at home but says, "Mostly I stayed at a friend's house because I didn't want to be there." More than once, says Brook, Diane threatened her father. Ruben took the threats so seriously, she says, that he would routinely line up empty mayonnaise jars in a hallway leading to a cellar door; it was his makeshift alarm system in case anyone tried to sneak up on him. Diane's anger seemed to increase after Ruben won physical custody of Chuck in a court order and she was told to vacate the house by April 15. Ruben, however, became increasingly cheerful. "Divorce is bad," says Krek, "but it can mean a new life. Ruben had lived in a coffin, and now he was going to get possession of his life."

At Jefferson High, students began to notice a change in Diane. While always capable of being either "real nice or a bitch," as one student put it, she now often seemed depressed. "You could tell she was stressed out last year," said Cory Bloomer, 16, a junior who was in her study hall. "She'd be crying in class, and everyone knew about the divorce."

It was soon after Ruben filed for divorce that Diane allegedly put her plot in motion. In a statement given to police, Doug Vest said she contacted him "three, four or five times," claiming she needed his help to get rid of her husband. She said Ruben had physically abused her, Vest told police. Then, in whispered conversations in study hall, she said she would lose everything in the divorce. "Diane picked on vulnerable children," says one Jefferson student's mother. "Every one of them had a single parent or some problem in their life." Diane also promised money: $20,000 from insurance, plus her wedding and engagement rings and two cars. Almost invariably described as "a nice guy" by fellow students, Vest finally agreed. "I can't explain how he got involved," says his friend Jose Villanueva, 19, a senior. "The money must have looked good to a 16-year-old." According to Vest's police statement, Diane gave him around $600 as a down payment, and he recruited Josh Yanke, whom Villanueva describes as "very shy, a chicken. He stutters a lot when he's scared." Rounding out the teen hit squad was Michael Maldonado, who lived nearby, though authorities say at least one other youth claims Diane asked him to help get rid of her husband.

On April 2, just 13 days before Diane was to move out—and one day before his murder—Ruben Borchardt sensed trouble. "He said, 'Something strange is going on,' " recalls Brook. For one thing, Diane was off visiting Susan's parents some 200 miles away—odd in itself, since the relationship had never been close. Odder still, it seemed from Chuck's testimony, was her taking along Regen and Bugsy, the miniature Schnauzer that Diane had never taken on a trip before and that would bark wildly when anyone entered the house.

According to Vest's police statement, he and Maldonado went to Milwaukee and bought a .410-gauge sawed-off shotgun. On the morning of April 3, Vest said, the three made their way up Bear Hole Road to the Borchardts' 20-acre spread. Failing to break in through the cellar, they got into the house through the first floor. Borchardt, in his undershorts, was coming up the cellar steps when he met the gunmen. At the top of the steps he took one shotgun blast. As he scrambled to get away he took another blast, which knocked him down the stairs. "We were all scared," Vest told police, who were able to crack the case after Maldonado told a friend about his role in the murder.

After Ruben's death, Diane's behavior appeared peculiar to Chuck and Brook. William Hue, their attorney, was struck by how bitterly she complained to him when Susan was mentioned in Ruben's obituary. "People say [her motive] was greed," says Roth, "but I think it was obsession. If she couldn't have him, nobody else could."

While she awaits trial, Diane, with Regen, continues to live in the Borchardt home. She has refused to comment about the case. Chuck, now in the permanent custody of his father's sister Barbara Kulow, has transferred to nearby Lake Mills High School to complete his junior year. Brook, on leave from Madison Area Technical College, is working full-time with the mentally handicapped at a group home in Jefferson.

Meanwhile, Jefferson is bracing for the trials of Diane Borchardt and the three teenage suspects, which are expected to begin next March. Even when legal proceedings are concluded, some fear that Ruben's murder will leave deep and lasting scars. "What made the crime so heinous was that it affected the lives of so many kids," says Krek. "It's unlikely the killers were the only three Diane solicited. It's likely others thought about it for a moment, rejected it and are plagued by the idea 'I almost did the dirts' work. I almost did it.'"

 
 

Seduced by Madness: The Diane Borchardt Story is an American television film based roughly on real-life events. It recounts the story of a Jefferson, Wisconsin teacher's aide convicted of hiring teen students first to spy on her cheating husband and later to kill him. The film begins with the murder then traces in flashback the events leading up to it, followed by the subsequent police investigation leading to arrests and eventual criminal convictions of both Borchardt and the teens.

Plot

The film opens with three teenage boys pulling up to the house of Ruben Borchardt (Peter Coyote) early on Easter Sunday in 1994. They break into Ruben's house armed with a shotgun, intending to kill Ruben on the promise of payment. Gathering at the top of the basement steps where Ruben sleeps, the boys draw their shotgun and shoot Mr. Borchardt as he makes his way up the stairs. Having carried out their deed, the three boys flee the scene.

Prologue

The film cuts to seven months before the shooting, during the Fall of 1993. Diane Kay Borchardt (Ann-Margret) is a seemingly ordinary schoolteacher with a normal life. She has a loving husband, three children, and a lovely house. However, it quickly becomes apparent that she harbors deep mental instability and possible psychosis. While she dotes on and spoils her daughter Regan, she is emotionally and physically abusive towards Ruben and his two children, Brook (Hedy Burress) and Chuck (Tobey Maguire). Ruben married Diane fourteen years prior after his beloved wife Susan (Cynthia Lynch) died in a tragic car accident when Brook and Chuck were young. Realizing his children needed a mother figure in their lives, Ruben married to Diane, only to find himself in a loveless marriage in which Diane constantly abuses him.

One day, Ruben goes to a neighbor's house to help him remodel his kitchen, as he is a work-at-home carpenter. There he gets reacquainted with Claire Brown (Leslie Hope), whom he works together with to remodel the kitchen. During the remodeling, Ruben and Claire share their personal stories with each other, becoming increasingly close friends as the project goes on.

Later that day, Ruben drops by Diane's clothes shop on account of the fact that Diane failed to pay for Chuck's new glasses, as she had spent it on new shoes for Regan despite previously agreeing to buy the glasses. Diane then accuses Ruben of spoiling his own children and neglecting Regan, and says that he ought to be making more money. Ruben tries to reason with Diane when suddenly, without provocation, Diane hits him in the head with a label gun. Ruben later admits to Claire that his marriage was a mistake. Claire also reveals that she and her husband have also grown apart in recent years. When the project is finished, Ruben admits that his true feelings for Claire, and kisses her on impulse. He then leaves her confused, only to return and this time, the two proceed to kiss each other passionately. Upon realizing their feelings for each other, Claire and Ruben start meeting each other secretly, and contemplate leaving their spouses in order to marry. Although Ruben is a devout Christian who opposes divorce, his feelings for Claire remain strong and says he believes they can make it work. Claire agrees to make a decision when she is ready

The Divorce

Later, Ruben and the family go to the annual Christmas party at the Church. While Diane is away, Ruben runs into Claire at the dance and the two steal the dance floor, and Claire accepts Ruben's proposal. Diane witnesses this and confronts her husband at home, where he admits he no longer wishes to be married to Diane. Diane makes excuses for her lack of empathy towards Ruben, but Ruben is convinced that their marriage is irreconcilable. Diane drives him away and vows to get even with him. Ruben tells Chuck and Brook about his decision, and the kids admit to their father that Diane has treated them as badly as she treated him, much to Ruben's distress. Ruben goes forth with the divorce proceedings against Diane's wishes.

Meanwhile at school, Diane feigns sadness in front of her students to gain sympathy from them. It becomes apparent that she maintains a close relationship with her students in order to get them to do her bidding when she feels fit. One of her closest students, Doug Vest (Christian Campbell) comforts her and Diane lies that her husband physically abuses her in front of their children, and is turning them against her. Diane hugs Doug in her drive for sympathy, saying that Ruben would not do this to her if he knew she had him. After school, Doug meets with his friends Josh Yanke (Jonah Blechman), Cory (Michael Scott Campbell), and Elgin (Aeryk Egan) to discuss "messing up" Mr. Borchardt. Doug, who's estranged father was physically abusive towards his own mother, says that Ruben's behavior is inexcusable.

One day, Ruben invites Claire to his house while Diane is away, and presents her with a necklace as a token of his affections. Unbeknownst to the couple, Cory and Elgin photograph them in the house, and when Diane shows the pictures to Shannon Johnson (Alanna Ubach), another one of her students who assists her in the shop, she declares that she wants Ruben dead. During Christmas break, Diane coaxes Doug into her car, and lets him take it for a spin. She shows him the house and says she'd be willing to let him have the car. She goes on to explain her situation with Ruben, lying to Doug about the true nature of their divorce. She then says that if she were to have Ruben killed, it would have to be someone she trusted, and to his distress, she refers to him.

Later, Diane's lawyer informs her that Ruben is seeking sole custody of the house, much to her outrage, even though he is the original proprietor. In retaliation, Diane informs the pastor of their church that Ruben has strayed from the church and violated the sacredness of their marriage. Ruben is informed by the pastor that he is not to take communion at the church for committing adultery. After New Year's Day, Ruben learns that Diane is seeking custody of Chuck as part of her ploy to secure the house, prompting Ruben to confront her. Diane reacts violently and proceeds to physically beat Ruben while Chuck and Brook struggle to stop her.

At the divorce proceedings, Ruben gains custody of Chuck and Diane gains sole custody of her shop and Regan. However, to her outrage Ruben gains custody the house. Diane is to vacate the property within one month, and silently promises to enact revenge on Ruben.

Later in March, Diane commissions another student Tim (Johnny Strong) to do away with her husband, telling him that the one person she still trusted let her down. Tim tells this to Doug, who immediately feels guilty for turning his back on Diane. Tim also admits that Diane may be contemplating the murder of her husband. Diane later accuses Ruben of stealing her jewellery, when in reality she plans on paying it to Doug to kill her husband. She also tries to secure title to Ruben's life insurance policy. Later that night, Diane approaches Doug and tells him she wants him to kill Ruben, much to Doug's horror. Once again, she makes out Ruben to be the guilty party, claiming that he is taking everything from her. She bribes Doug with her jewellery and cash to carry out the murder, and he gives in to her demands despite his reservations.

Doug later commissions Josh and his friend Michael Maldonado (Freddy Rodriguez) to help him carry out the murder. Michael rejects the proposal, insisting that he receive higher pay to carry out the deed. Diane begins to harass Claire for stealing Ruben away, going so far as to threaten her with death. Claire becomes uneasy as the harassment persists, and insists Diane is dangerous, but Ruben insists he can handle her. At school, Diane again insists that Doug carry out the murder, and lays out her plan to kill Ruben. Doug refuses to do it, until Diane bribes him with $20,000 from Ruben's life insurance policy. Doug gives in to her demands and agrees to pay Josh and Mike part of it and they agree to help him.

The Murder

While Diane is packing, Ruben confides to Brook that he has a stash of emergency cash for her and Chuck should anything happen to him, and Diane listens in. She also picks a fight with Ruben when she intends to sell Susan's sewing machine, to which Ruben objects. Diane then punches Ruben and beats him when he refuses to fight back. After grabbing her arm in an attempt to disarm her, Diane uses the marks on her arm to claim to the police that Ruben hit her. Ruben denies this and the police tell the couple to separate temporarily. Having planned on this, Diane agrees to leave the house for Easter, and has made plans to stay at Susan's parents' house with Regan. She also takes the family dog away by force. Before leaving, Diane forces Ruben to kiss her in front of the cops, and whispers to him "You're dead".

On the eve of Easter morning, Ruben is wary of Diane's death threat. He tells Claire that should anything happen to him, she is to find another man to make her happy, while insisting that all will be well. Throughout the night, Shannon contemplates warning Ruben of the impending danger, but fails to make the call. In the early morning hours of Easter Sunday, Doug and his two friends break into the house while Ruben prepares for Easter service. They gather at the top of the stairs, where they face Ruben as he goes to wake his son. Mike pulls out a shotgun and fires two rounds into Ruben, fatally wounding him. The boys then flee the scene and dump the shotgun into a vacant lot. Chuck soon wakes up to find his father bleeding to death on the stairs, and calls 911 while Ruben calls Claire. As Ruben fights for his life, he proclaims his love for her and leaves his children in her care. Ruben is rushed to the hospital where the family gathers to learn of his condition. Claire soon shows up to see Ruben, only to discover that he has died.

As the family mourns their loss, Diane also learns of the murder, and feigns shock and sadness in front of Sue's parents. They become suspicious of her when she fails to ask any questions about the murder. Meanwhile, Detectives Burstyn (Cliff De Young) and Pike (Dean Norris) are assigned to track down Ruben's killer. When Diane refuses to talk to the police after the murder, she becomes the primary suspect. In the days that follow, Diane deals further insult to her grieving family by threatening to sue the funeral home for proceeding with Ruben's service without her consent, as she had not been present to arrange it. Brook accuses her of killing her father, a charge Diane immediately denies.

The funeral soon takes place and the family pays their final respects to Ruben as he is laid to rest. Once again, Diane feigns sorrow in front of the open casket to preserve her innocence. Claire watches the burial from nearby, and soon collapses from shock.

The Investigation

The police soon discover that the murder weapon was a shotgun, and deduce that the shooter was an amateur, as the gun was of a cheap design. They are later tipped off about the photographs taken by Cory and Elgin, and question the boys about their activities. They learn that Diane shares her personal problems with her class, and is thus able to manipulate them to do as she pleases.

Meanwhile, Doug struggles to acquire the money promised to him by Diane. Due to her increasingly suspicious behavior in the case, Diane is denied access to Ruben's life insurance policy. Having grown impatient with Doug, Mike threatens Diane at knife-point and demands that she pay up. Frantic, Diane searches her husband's bedroom for the money he had hidden away, and soon finds a package containing $6,000. She gives $1500 to the boys, who are still not satisfied with their payment.

As the case remains at a standstill, Brook meets Claire in the hospital and pleads that she come back to them, as she was more of a mother to them than Diane ever was. Claire blames herself for Ruben's death, but Brook tells her that he was more alive with Claire than he had ever been before. Upon hearing this, Claire is soon able to overcome her personal guilt and becomes an adoptive mother to Chuck and Brook. Meanwhile, Brook has moved to Madison, Wisconsin, where she starts over without Diane in her life. Eventually, she meets a boy named Nick at her new job, and the two soon fall in love. After a night in bed, Brook discovers she is pregnant with Nick's son, and the two agree to marry each other.

Doug soon realizes that Diane will never be able to pay up, and informs his friends that he cannot obtain anymore money. Meanwhile, Mike admits to his best friend Jeb (Andrew Kavovit) that he had a hand in Ruben's death, albeit without any noteworthy remorse. Jeb is unable to bring himself to confess to the police.

Five months after the murder, it becomes apparent to Diane that the cops are on to her, and tries to conceal her guilt. Shannon meets with Doug, and forces him to confess his role in the murder so that she can turn in all evidence to the cops before she commits suicide, making herself out to be the killer in an effort to protect Diane. Diane dissuades her from doing this as it will only lead the police back to her regardless. By the time school restarts, the boys are frustrated by their lack of payment, and struggle to conceal the truth about Ruben's murder.

Arrest and Trial

Six months into the case, Jeb breaks down and admits to his friend Jay that Mike and Doug were responsible for Ruben's murder. Rather than force Jeb to turn in his best friend, Jay goes to the cops himself and implicates Doug as an accomplice. Doug is brought in for questioning, where he accidentally lets slip that he was in fact involved in Ruben's murder. When Burstyn confronts him on this, Doug makes a full confession, and provides him with the names of his accomplices. Mike and Shannon are arrested, and the two detectives rush to the high school. There, amidst the air of shock and outrage among the students, the police arrest Josh and Diane, with the latter desperately protesting her innocence as she is dragged away in handcuffs.

Six months later, Diane has been set free on bail as the court proceeds with the trials. Doug and Mike are both charged with first-degree murder as adults, and face life imprisonment. Josh pleads guilty to his crime in exchange for his testimony, and Shannon is charged with perjury. Josh admits his role in the conspiracy, as well as Doug's role in organizing the attack. Doug reveals the full details of the murder before the trial, and after his testimony, he is sentenced to life imprisonment. Diane is soon rearrested and brought forth to face a series of witnesses, who implicate her as the mastermind of the plot against Ruben. Among these witnesses is Shannon, who feels betrayed by Diane's reluctance to come forth to her defense. Doug also testifies against Diane, admitting that she commissioned him to carry out the murder.

After the conclusion of the testimonies, the jury makes its final verdict. To Diane's horror, she is found guilty of first-degree intentional homicide, and breaks down in front of the courtroom as her daughter Regan looks on in despair.

Having finally received justice for their father, the Borchardt family, along with Brook's husband and newborn son Ruben, visit Ruben's grave along with Claire. The family reflects on the better days of Ruben's life and welcome Brook's son, named in honor of his grandfather, into their family.

Epilogue

The end of the film is followed by an epilogue outlining the sentences faced by the conspirators:

SHANNON JOHNSON is found guilty of perjury, and receives an eighty-day jail sentence along with two years probation.

JOSHUA YANKE pleaded guilty to second-degree intentional homicide and is sentenced to eighteen years in prison.

MICHAEL MALDONADO is found guilty of first-degree murder and sentenced to life in prison. He will not be eligible for parole until he has served fifty years of his sentence.

DOUGLAS VEST JR. is found guilty of first-degree murder and sentenced to life in prison. He will not be eligible for parole until he has served twenty-five years of his sentence.

DIANE BORCHARDT is found guilty of first-degree murder and sentenced to life in prison, and will not be eligible for parole until she has served 45 years of her sentence, by that time being no less than eighty-six years of age.

Wikipedia.org

 
 

In Court of Appeals
District IV

No. 96-3616-CR

State of Wisconsin, Plaintiff-Respondent,
v.
Diane Borchardt, Defendant-Appellant

April 23, 1998

APPEAL from a judgment and an order of the circuit court for Jefferson County:  john m. ullsvik, Judge.  Affirmed. 

Before Vergeront, Roggensack, and Nichol, JJ.[1]

NICHOL, J.  Diane Borchardt appeals from a trial verdict in which she was convicted of party to a crime first-degree homicide with the use of a dangerous weapon, in violation of §§ 939.05 and 939.63, Stats., respectively, in the death of her husband Ruben Borchardt, and using a child to commit a Class A felony, in violation of § 948.36, Stats., for which she was sentenced to life in prison, with a parole eligibility of forty years.  Borchardt also appeals an order by the trial court denying postconviction relief.  On appeal, Borchardt contends that the trial court committed error in finding that the John Doe session on October 13, 1994, was for the purpose of learning about other potential co-conspirators.  Borchardt further contends that the trial court erred in admitting a statement by the decedent, Ruben Borchardt, implicating Borchardt under the excited utterance hearsay exception; that her trial counsel was ineffective; that she was denied due process because the John Doe transcripts were not produced in a timely manner; that the trial court erred in denying a new trial based on newly discovered evidence; and that a new trial is warranted in the interest of justice.  For the reasons stated in this opinion, the decision of the trial court is affirmed.

BACKGROUND

At approximately 3:35 a.m. on April 3, 1994, Ruben Borchardt was shot two times with a shotgun at his rural residence in Jefferson County.  Ruben’s son, Charles, age sixteen, who was upstairs, was awakened.  Charles found his father still conscious and able to state that two males had shot him.  Ruben also stated twice, “I can’t believe she would do this to me.”  After being conveyed to the hospital a short time later, Ruben died.

At the time of the murder, Diane and Ruben Borchardt were in the middle of a highly contentious and very bitter divorce.  Borchardt knew that Ruben was having an affair with another woman throughout part of their marriage and throughout the divorce proceedings.  Borchardt worked at Jefferson High School as a teacher’s aide and was in charge of study hall periods.  It was here that she became acquainted with students Doug Vest, a co-defendant, and Tim Quintero.  Vest and Quintero were friends with co-defendants Josh Yanke and Michael Maldonado.  In addition to being friends, Vest, Quintero, and Maldonado also had familial ties and were cousins.  Besides working at Jefferson High School at the time of the homicide, Borchardt also had her own silk-screening t-shirt business in Jefferson, which was in financial difficulty.

An investigation into Ruben’s murder began and eventually led to a John Doe proceeding pursuant to § 968.26, Stats., which was convened on May 5, 1994.  After numerous witnesses were called in May and June of 1994, the John Doe investigation had little activity until September 28, 1994, when Vest was interrogated and eventually confessed to Ruben’s murder, and implicated Borchardt, Yanke and Maldonado as well.  Vest stated that Borchardt had solicited his assistance in murdering her husband, and offered him or whoever would carry out the murder $20,000 from an insurance policy, two rings, and a car.  Vest was charged on September 28, 1994, and Borchardt, Yanke, and Maldonado were charged on September 29, 1994.

On October 13, 1994, the John Doe reconvened.  A number of witnesses were called, including Tim Quintero.  Prior to October 13, police had interviewed Quintero twice and at each interview he had provided them written statements implicating Borchardt, Vest, Maldonado and Yanke in Ruben’s homicide.  Quintero also furnished law enforcement with a map Borchardt had drawn with directions to her home.  Quintero’s testimony at the John Doe was virtually the same as his answers in the police interview the previous day, which involved some discussion regarding another potential conspirator, Shannon Johnson.  In a pretrial motion, Borchardt claimed Quintero should not be allowed to testify because the John Doe hearing was improperly continued for the purpose of building a case against her and the three co-defendants after they had been charged.  In denying the motion, the trial court found that the primary purpose for calling Quintero to testify in the John Doe was to determine whether or not there were other parties involved in Ruben’s murder.  The court held this was a proper purpose, and that a substantial portion of Quintero’s testimony was simply to confirm his two previous statements for which he was given immunity.  As Quintero was given immunity, the court held that the State received no benefit from having him make statements under oath rather than not under oath.

On December 5, 1996, a postconviction motion hearing was held in front of the trial court.  The same issues were argued to the trial court that are now pending on this appeal and the trial court denied defendant’s motion for a new trial. 

DISCUSSION

The John Doe Investigation.

The first issue to address is whether or not the district attorney’s use of the October 13, 1994, John Doe was for the improper purpose of obtaining evidence against Borchardt and/or obtaining evidence against Borchardt and her co-conspirators.

“The purpose of a John Doe proceeding is to determine if a crime has probably been committed and who probably committed it, not whether a specific person committed a specific crime.”  State v. Brady, 118 Wis.2d 154, 157, 345 N.W.2d 533, 535 (Ct. App. 1984) (citations omitted).  The goal throughout the proceeding is “toward issuing a complaint or determining that no crime has occurred.  To the extent that the judge exceeds this limitation, there is an abuse of discretion.”  State v. Hoffman, 106 Wis.2d 185, 204, 316 N.W.2d 143, 155 (Ct. App. 1982) (citations omitted).

The Supreme Court decided the limited circumstances when a John Doe proceeding may be continued after a criminal complaint has been filed against a defendant in State v. Cummings, 199 Wis.2d 721, 546 N.W.2d 406, (1996).  The proceeding may be continued only in order to:  (1) investigate other possible defendants related to the crimes that will be charged in the information filed against the original defendant; and (2) investigate other crimes that cannot be charged in the information, but may have been committed by the defendant.  Cummings, 199 Wis.2d at 745-46, 546 N.W.2d at 415.

Borchardt argues that neither circumstance listed above in Cummings is applicable to her case.  She cites the testimony of two witnesses at the October 13, 1994, John Doe in making the argument that the primary purpose behind the proceeding was to continue investigation of Borchardt and the three juvenile co-conspirators on the pending criminal charges. 

The first witness at the John Doe was Detective Brunk, who testified seeking the renewal of a subpoena for phone records of co-defendant Maldonado’s sister, among others.[2]  Borchardt argues that the prosecutor could not suggest any reason why the subpoena was directed at anyone other than Maldonado, who was already charged.  The record reflects that Brunk was asked by the court whether he believed that the phone records would provide information into the conspiracy to murder Ruben, to which he answered yes.

Second, Borchardt argues that final witness Tim Quintero’s testimony was primarily regarding Borchardt and the other co-conspirators.  Borchardt presented a charted breakdown of Quintero’s substantive John Doe testimony, pointing out the low number of questions asked about anyone else other than Borchardt and the other charged co-conspirators.

The State responds to Borchardt’s arguments by stating that the John Doe was permissibly continued despite charging Borchardt and the three co-conspirators because the investigation was focused on the possible involvement of at least one other co-conspirator, Shannon Johnson, thus meeting Cummings’s exception (1).  Although at the time Cummings had yet to be published, the trial court also made the finding that the purpose of Quintero’s testimony was to learn the identity of others who may have been involved in Ruben’s murder, which is a proper purpose under Cummings.  The court further held that a majority of Quintero’s testimony was to confirm what he had said in his two previous statements to police, but since he was given immunity, the state received no benefit by having Quintero make his statements under oath.

The trial court did find that the purpose underlying Detective Brunk’s testimony requesting a subpoena for phone records was not clear in the transcript.  The purpose could have been for an already-charged individual or someone not yet charged.  The court concluded that since the phone records involved persons already charged, that the John Doe was used improperly in this regard.  However, the court also found that the State received no benefit, as they could have obtained the same information through a search warrant.

Borchardt did not argue that the testimony of the second witness, Detective Lee, was improper.  This is with good reason, as Detective Lee testified that based on his interviews with Vest, there was a possibility of Shannon Johnson having previously perjured herself and that more investigation was required to see if she was involved in the murder as yet another co-conspirator.  Upon review of the John Doe transcript, the trial court held that Lee’s testimony was proper and of no advantage to the State because all Lee did was relate his beliefs regarding Vest’s statements in relation to Johnson, which was discoverable by the defense.

As a result of the pretrial motion, the court ordered the entire October 13, 1994, John Doe proceeding transcript to be made available to the defense.[3]  Despite the subpoena of the phone records, the trial court found that the overall purpose of identifying other possible co-conspirators at the proceeding was proper.

Our standard of review is “not to upset the trial court’s findings of historical or evidentiary fact unless they are contrary to the great weight and clear preponderance of the evidence.  This is basically a ‘clearly erroneous’ standard of review.”  State v. Turner, 136 Wis.2d 333, 343-44, 401 N.W.2d 827, 832 (1987) (citing State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457 (1984)).

Upon review of the record, we conclude that the trial court was not clearly erroneous in finding that the John Doe had a proper purpose.  First, as previously discussed above, Detective Lee testified to the court about his concern regarding Johnson’s possible perjury and potential involvement with the murder.  Second, while being interviewed on October 12, 1994, Quintero was asked questions about Johnson.  At that time, he asked to speak to a lawyer and terminated the interview.  The next day at the John Doe, Quintero was questioned about others who may have been involved in the murder, including Johnson.  Third, the simple fact that Johnson was later charged as a co-conspirator[4] also supports the fact that the John Doe was properly continued for her possible involvement.

Borchardt also argues that Quintero’s John Doe testimony was improper and an abuse of discretion because it allowed the prosecutor to “freeze” Quintero’s testimony under oath, thus prejudicing her, citing United States v. Fisher, 455 F.2d 1101, 1104-05, (2d Cir. 1972).  “Locking in” Quintero’s testimony within a John Doe, it is argued, was beneficial to the State because Quintero could be charged with a felony, perjury (§ 946.31, Stats.), whereas he could only be charged with a misdemeanor, obstruction of an officer (§ 946.41, Stats.), if he lied in a statement given to police in the course of an investigation.  It was also argued to be especially helpful in this case to “freeze” Quintero’s testimony, as he was cousins with Vest and Maldonado, giving him a higher incentive to change his testimony in order to protect them later on.  However, prejudice to the defendant’s case must be found in order for the testimony to be improperly “frozen.”  Id.  The state’s receipt of any “incidental benefit” from the John Doe testimony regarding the pending prosecution will not render the proceeding improper.  Hoffman, 106 Wis.2d at 207 n.7, 316 N.W.2d at 156 n.7 (citing United States v. Gibbons, 607 F.2d 1320, 1328, (13th Cir. 1979)).  Although Quintero’s testimony was “frozen” once he testified in the John Doe, Borchardt suffered no prejudice as a result of that testimony.  The entire John Doe transcript was given to her ahead of trial, and furthermore, was found to be consistent with Quintero’s previous statements.  In addition, Quintero’s first two statements occurred before he was given immunity. 

As a remedy, Borchardt requests a new trial based upon the error committed by the trial court in not suppressing Quintero’s testimony as well as the fruits from that testimony because of the improper use of the John Doe on October 13, 1994.  Borchardt also argues that suppression solely of the John Doe transcript is an insufficient remedy.  However, the flaw in Borchardt’s argument is that this is not a case in which the John Doe was continued for building a case against already-charged individuals.  Here, the trial judge found—and we confirm—there was a proper purpose for the continuing John Doe.  Even if we assume, arguendo, that there was an improper purpose for the October 13, 1994 John Doe hearing (freezing the testimony of Quintero), this court would still deny the motion to suppress Quintero’s trial testimony, as no prejudice has been shown, any benefit to the State is minimal and there exists no case authority for the imposition of such a radical remedy.  The only remedy would be to suppress Quintero’s John Doe testimony, which would amount to naught, since he had already given police two written statements prior to the John Doe. 

Admission of the Decedent’s Statement as an Excited Utterance.

The second issue to address is whether or not the trial court erred by admitting Ruben’s statement, “I can’t believe she would do this to me” as an excited utterance exception to the hearsay rule despite defense objections that the exception did not apply because Ruben was not excited when he made it[5]See § 908.03(2), Stats.

The admission or exclusion of evidence is a discretionary determination of the trial court and will be upheld absent any misuse of that discretion.  State v. Patino, 177 Wis.2d 348, 362, 502 N.W.2d 601, 606, (Ct. App. 1993) (citations omitted).  “If the trial court’s decision is supportable by the record, we will not reverse even though the court may have given the wrong reason or no reason at all.”  Id.

An excited utterance under § 908.03(2), Stats., is “[a] statement relating to a startling event ..., made while the declarant was under the stress of excitement caused by the event or condition” and is admissible into evidence as an exception to the hearsay rule.  State v. Boshcka, 178 Wis.2d 628, 639, 496 N.W.2d 627, 630 (Ct. App. 1993).  There are two requirements that must be met in order for a statement to qualify as an excited utterance:  “(1) there must be a ‘startling event or condition’ and (2) the declarant must have made the statement relating to the startling event or condition while ‘under the stress of excitement caused by the event or condition.’”  Id. (citing Muller v. State, 94 Wis.2d 450, 466, 289 N.W.2d 570, 578, (1980)).

We conclude that the trial court’s ruling was supported by the record.  The first element—the existence of a “startling event/condition”—is met by the fact that at the time the statements were made, Ruben had been shot two times and was wounded.  This obviously qualifies as a “startling event/condition.”  The second element was also met, as Ruben’s statement was made while being under the stress of excitement caused by such a startling event/condition.  Since the record supports the trial court’s finding, the court did not erroneously exercise its discretion in admitting the testimony as an excited utterance.  The decision of the trial court is therefore affirmed as to this issue.

Ineffective Assistance of Counsel.

The third issue to address is Borchardt’s claim that her trial counsel rendered ineffective assistance in their defense of her case by not eliciting testimony and making a record to implicate Rubin’s son, and Borchardt’s stepson, Charles, as the person involved in the conspiracy to murder Ruben.  The question of whether counsel’s actions constitute ineffective assistance is a mixed question of law and fact.  State ex rel. Flores v. State, 183 Wis.2d 587, 609, 516 N.W.2d 362, 368-69 (1994) (citing Strickland v. Washington, 466 U.S. 668, 698 (1984)).  The circuit court’s findings of fact will not be reversed, unless they are clearly erroneous.  State v. Pitsch, 124 Wis.2d 628, 634, 369 N.W.2d 711, 714-15 (1985); § 805.17(2), Stats.  However, the ultimate conclusion of whether counsel’s conduct violated the defendant’s right to effective assistance of counsel is a question of law, which this court decides without deference to the circuit court.  State v. (Oliver) Johnson, 133 Wis.2d 207, 216, 395 N.W.2d 176, 181 (1986). 

The right to effective assistance of counsel stems from the Sixth Amendment to the United States Constitution, which guarantees a criminal defendant a fair trial.  See Strickland, 466 U.S. at 684-86.  The test for ineffective assistance of counsel has two prongs:  (1) a demonstration that counsel’s performance was deficient, and (2) a demonstration that the deficient performance prejudiced the defendant.  Id. at 687.  The defendant has the burden of proof on both components of the test.  Id.  To prove deficient performance, a defendant must establish that his or her counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”  State v. (Edward) Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845 (1990) (citing Strickland, 466 U.S. at 687).

At the postconviction motion hearing, the trial court held that there was no ineffective assistance of counsel by Borchardt’s trial counsel, as the first prong of the Strickland test was not satisfied.  This court agrees with the trial court’s assessment that defense counsel’s performance was not deficient.  There is a presumption that must be overcome in establishing ineffective assistance at trial.  “[T]he case is reviewed from counsel’s perspective at the time of trial, and the burden is placed on the defendant to overcome a strong presumption that counsel acted reasonably within professional norms.”  Johnson, 153 Wis.2d at 127, 449 N.W.2d at 847-48 (1990).  The evidence brought forth at the postconviction hearing did not overcome this presumption.  The court further noted correctly that the defense attorneys’ decision not to pursue a third party theory of defense regarding Charles was a strategic one and was not ineffective.  Thus, counsel’s assistance was not deficient as required under prong one of the test.

A review of the record strongly supports defense counsel’s strategy not to attempt to implicate Charles in the conspiracy to murder his father Ruben.  At the time of trial, the record substantiated few facts that in any way could possibly tie Charles to his father’s murder.  One is that Charles was in the home at the time of Ruben’s murder.  A second fact is that Charles was a schoolmate with co-defendants Vest and Yanke.  A third fact is that Charles, as Ruben’s son, could possibly inherit from his father’s estate if Borchardt stood convicted of Ruben’s murder. 

Nothing in the record indicates Charles had an estranged relationship with his father.  There was no evidence to connect him with the murder weapon.  Co-defendant Vest in his confession, and both Vest and Yanke in their trial testimony, strongly and in detail implicate Borchardt in Ruben’s murder and not Charles.  The fact Charles was awakened by hearing one loud noise at the time his father was shot is irrelevant as is how he outwardly expressed his grief, sorrow and emotions at his father’s funeral.

Borchardt further contends deficient performance was also demonstrated because defense counsel informed her that presenting Charles as a co-conspirator was not an option in presenting her defense.  Trial counsel testified that this trial strategy was discussed with Borchardt and Borchardt expressed her belief to her attorneys that Charles was not involved.  Our measure is the trial court record and nothing indicates trial counsel’s strategy was deficient.  If indeed counsel informed Borchardt that accusing Charles was not an option under their trial strategy, it made no difference in the outcome.  In fact, as was noted in the record, pursuing such a strategy may have actually backfired, due to juror sympathy for Charles.

In short, we agree with the trial court that not presenting Charles as a suspect was a tactical decision and was not exemplary of deficient representation, which is required under Strickland in order to establish counsel was ineffective.  We conclude that there was no ineffective assistance of counsel on this matter.  We therefore affirm the ruling of the trial court on this issue.

Delay in Furnishing the John Doe Transcripts.

The fourth issue to address is whether the State’s not furnishing the John Doe transcripts until after the witness had testified at trial denied Borchardt’s right to due process of law and her right to a fair trial.  Borchardt argues that she should have received these transcripts earlier.  This court already decided in an interlocutory ruling that the State was under no obligation to produce transcripts of the John Doe witnesses who were going to testify at trial until the completion of their direct testimony.  Our decision was controlled by the decision of Myers v. State, 60 Wis.2d 248, 208 N.W.2d 311 (1973).[6]  As only the Supreme Court can modify its own decisions, this issue is raised solely to preserve it for such possible review.    

Motion for a New Trial Based on Newly Discovered Evidence.

The fifth issue to address is whether the trial court erroneously exercised its discretion when it refused to grant Borchardt’s postconviction motion for a new trial based upon an offer of proof of newly discovered evidence.[7]

                        The requirements for granting a new trial for newly discovered evidence are:

(1) The evidence must have come to the moving party’s knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial.

State v. Boyce, 75 Wis.2d 452, 457, 249 N.W.2d 758, 760 (1977) (citations omitted).  A motion for a new trial based on newly discovered evidence is addressed to the sound discretion of the trial court.  Id.  The proper legal standard in assessing the “reasonable probability of a different outcome” criteria is “whether there is a reasonable probability that a jury, looking at [newly discovered evidence], would have a reasonable doubt as to the defendant’s guilt.”  State v. McCallum, 208 Wis.2d 463, 474, 561 N.W.2d 707, 711 (1997).

At the postconviction hearing, defense counsel presented its motion as an offer of proof that had two parts:  (1) a preliminary offer made first in order to determine the plausibility of the evidence; and (2) if found plausible, the offer was then evaluated to see if it was credible.  Defense counsel argued that if the court found the offer of proof to be plausible, it should set another hearing in order to have the witnesses testify and have the trial court make a determination regarding the witnesses’ credibility.  If the testimony was found to be implausible, then the motion would be disposed of and reviewed by this court on that basis.

At the hearing, the trial court accepted defense counsel’s offer of proof and made the following ruling:

The court accepts the offer of proof made by Mr. Auerbach that Gabe Alwin or Alwin and Robert Bergess, Prison mates of Josh Yanke and Doug Vest, would come to court and testify that Yanke told Alwin that Mrs. Borchardt didn’t have anything to do with Ruben Borchardt’s death, and that Mr. Bergess would testify that Douglas Vest said that Mrs. Borchardt didn’t have anything to do with Ruben Borchardt’s death.

The court also accepts the offer of proof that Josh Yanke would say he was involved with Maldonado and Vest in Ruben Borchardt’s death going to the house, if not into the house, when Ruben Borchardt was shot; and that Doug Vest would say he was right there with Maldonado, in fact, passed the gun over to Maldonado just before Ruben Borchardt was shot; and that Diane Borchardt hired him to kill Ruben Borchardt; and Doug Vest would deny saying he said to Bergess that Mrs. Borchardt didn’t have anything to do with this killing; and Josh Yanke would deny saying to Alwin that Mrs. Borchardt didn’t have anything to do with this homicide.

The court understands that Alwin would have his credibility impeached by at least one criminal conviction and Bergess would, too.

The court concludes that upon such evidence the defendant has not met her burden to prove by clear and convincing evidence that there is a reasonable probability that there would be a different result, if she was granted a new Trial.  In other words, the court concludes that such testimony by Alwin and Bergess and Yanke and Vest would certainly in a new Trial again result in a conviction of Mrs. Borchardt as a party to the first-degree intentional killing of Ruben Borchardt beyond a reasonable doubt; and, therefore, defendant’s Motion for a New Trial based on such newly discovered evidence is denied.  (emphasis added)

In her brief to this court, Borchardt argues that the trial court “ultimately ruled that it was unnecessary for him to hear Gabe Alwin’s and Robert Bergess’s testimony ‘live,’ accepting the offer of proof that these two inmates would so testify.”  Borchardt also argues that the “inmates’ testimony was plausible; they had access to Doug Vest and Josh Yanke and their reports of the conversation were consistent with the facts that already pointed to Charles.  [The trial court] erred in ruling as a matter of law that these witnesses were not plausible or credible.”

We do not agree with Borchardt’s characterization of the record—that the trial court ruled that it was unnecessary to hear Alwin’s and Bergess’s live testimony.  Borchardt’s counsel chose to present an offer of proof, rather than just simply putting Alwin and Bergess on the stand and having them testify.  There was nothing preventing defense counsel from doing so.  In fact, the record reflects that defense counsel preferred not to bring Alwin and Bergess based upon their assumption of how the court would rule:

Again the reason we’re doing this via an offer of proof is because we have heard your litany of rather exhaustively detailing the evidence of defense, my client, and your belief it was compelling, and essentially giving you the opportunity to look at this evidence on paper or orally and say:  It’s true, it wouldn’t change my ruling, I would not find it enough to warrant a new Trial as a matter of law.  I don’t need to see them in person, that’s given their status as inmates and the timing of the statements, given what you have indicated, the lack of credibility of attributing to Chuck, it wouldn’t change your ruling.

To this the court replied:

Well, again I think you misunderstood me. ... if people came here to testify, now Gabe Alwin and Robert Bergess in effect saying, Vest lied about Mrs. Borchardt being involved and Yanke lied about whatever he said, how can I, without hearing them testify and seeing them cross-examined, conclude that they would not affect the outcome of the Trial?  Maybe they are very credible and would make Vest and Yanke incredible.

A short time later, defense counsel clarified why they sought a ruling dissecting the offer of proof into a plausibility and credibility determination:

Let me clarify something, if I could, which maybe helps, maybe doesn’t.  The court has properly had some trouble, I believe, understanding how you are being asked to rule on credibility without hearing, seeing the witness.  I agree that’s a concern. ... I felt it was, although I wouldn’t disagree for the record there was a reasonable prospect of your finding their version of it being Chuck not plausible because it would be contradictory of all the other evidence you went through, and that you might choose to deny for relief on the grounds it was not plausible, therefore, avoiding or not getting to the issue of credibility.  If you do that and if the Court of Appeals says it was perfectly plausible, what was [the trial court] thinking of the remedy at that point, obviously would be a remand to determine whether or not they were credible.  So all we will be doing is having a Hearing later instead of now. … So what I was somewhat inviting was a ruling on your part that, if you thought it was implausible, then make that ruling.  That disposes of this Motion and is reviewable on plausibility.  If you think it is plausible, then let’s find out if it is likely to be true by having the witnesses testify and having you make a determination of the credibility.  (emphasis added)

Appellate counsel for Borchardt chose not to have Alwin or Bergess testify.  It is not the trial court’s role or prerogative to direct how parties should present and support their motions and arguments. 

We also do not agree that we should review whether the offer of proof is plausible, as Borchardt asks us to do.  Borchardt has provided no authority for the plausibility/credibility distinction in the context of a motion for a new trial based on newly discovered evidence.  If Borchardt is now at a disadvantage because the trial court did not have the ability to make a determination of Alwin’s and Bergess’s credibility first hand, that is, as we have said, a decision made by Borchardt and not an error of the trial court.

We conclude that the trial court applied the correct legal standard and properly exercised its discretion in deciding that, even with Alwin’s and Bergess’s proposed testimony, there is no reasonable probability that a jury would have a reasonable doubt as to Borchardt’s guilt.

The record is replete with evidence demonstrating Borchardt’s guilt.  Motive evidence existed.  Borchardt was embroiled in a bitter divorce with Ruben, knew Ruben was having an affair with another woman, and wanted undercover pictures and surveillance of Ruben and the woman taken by an investigator and third parties.  Ruben was to receive their home on the Proposed Balance Sheet & Division of Marital Estate for the divorce, which Borchardt contested.  Borchardt’s silk screen t-shirt business was in financial trouble.  Borchardt told Vest and Quintero, as well as many other friends and acquaintances that she wanted to “get rid of him” on more than one occasion.  Evidence was also brought forth showing how Ruben was afraid of Borchardt, and how he stacked empty mayonnaise jars in the doorway of the basement where he slept as an “alarm” in case she tried to harm him while he slept.  Also, Borchardt was a beneficiary under Ruben’s life insurance policy and named in his will.

Regarding the murder itself, Yanke’s testimony corroborated that of Vest, stating that Borchardt had solicited the murder of her husband, offering cash, rings, and a car.  Quintero testified that Borchardt had drawn him a map of directions to her residence, which a handwriting expert verified at trial as being Borchardt’s handwriting.  Shannon Johnson testified that on the day before the murder, she observed Borchardt pass something to Vest.  Borchardt was absent the night of the murder with her daughter visiting the Manthies, the family of Ruben’s first wife.  The Manthies testified that they heard Borchardt say “I’m sorry; I’m sorry, Regen” and “[t]hey’re going to put me in jail” upon finding out that Ruben had been murdered.  In short, the multitude of evidence supporting the jury’s finding that Borchardt was guilty is overwhelming and supports the trial court’s ruling.  Thus, based upon the record, the trial court applied the proper standard in its ruling regarding the newly discovered evidence.  Such a ruling was not erroneous, and we affirm its ruling.

Motion for New Trial in the Interests of Justice.

Finally, Borchardt asks this court for a new trial “in the interest of justice” based upon the “compounded effect of the trial court errors.”  There is enough evidence in the record, see Newly Discovered Evidence section, above, to support the fact that a new trial is not warranted in this matter and that justice was served.  As we affirm the rulings of the trial court, Borchardt’s request for a new trial is therefore denied.

By the Court.—Judgment and order affirmed.

Recommended for publication in the official reports.

[1]  Circuit Judge Gerald Nichol is sitting by special assignment pursuant to the Judicial Exchange Program.

[2]  As these telephone records were not introduced at trial, Borchardt seeks no remedy.

[3]  This was done rather than disclosing only the relevant portions of the John Doe transcript of October 13, 1994.  The court’s rationale was that “if the defense believes that the court has erred in its denials of suppression or finding of propriety, the defense can come again and show how the court is wrong.”

[4]  Although that charge was eventually dropped, it is still relevant regarding the propriety of the John Doe that Johnson was charged as a co-conspirator.

[5]  In her brief, Borchardt makes the argument that the statement was improperly admitted as an excited utterance because it was an opinion and there was no foundation for the opinion.  We do not address this issue and deem it to be waived, as it was not brought to the trial court's attention at the time it made its ruling.   See § 901.03(1)(a), Stats.

[6]  The court accommodated defense counsel by allowing them to review the John Doe transcripts overnight.  In addition, after such review, the “John Doe witnesses” who had already testified at trial were subject to recall if any further examination by defense counsel was needed.

[7]  The newly discovered evidence—presented as an offer of proof at the post-conviction motion hearing—consisted of the testimony of Gabe Alwin, a former cellmate of co-defendant Yanke, and Robert Bergess, a former cellmate of co-defendant Vest.  Alwin and Bergess were cellmates of Yanke and Vest respectively after conviction and sentencing.  It was offered that Alwin and Bergess would each testify that Yanke and Vest made a statement to them, respectively, that Borchardt was not involved in Ruben's death and that Chuck (Charles) was involved in the homicide.

 

 

 
 
 
 
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