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
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
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
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
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
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 -
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,
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.
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.
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
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
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.
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
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 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.
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
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
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
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.
In Court of Appeals
State of Wisconsin, Plaintiff-Respondent,
Diane Borchardt, Defendant-Appellant
April 23, 1998
APPEAL from a judgment and
an order of the circuit court for Jefferson County:
john m. ullsvik,
Roggensack, and Nichol, JJ.
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,
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.
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.
The John Doe
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
“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)
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,
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
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
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.
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
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
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.
See § 908.03(2),
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.
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),
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
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).
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
The requirements for granting a new trial for newly discovered
(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
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
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
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.
Judge Gerald Nichol is sitting by special assignment pursuant to
the Judicial Exchange Program.
these telephone records were not introduced at trial, Borchardt
seeks no remedy.
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.”
that charge was eventually dropped, it is still relevant regarding
the propriety of the John Doe that Johnson was charged as a
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),
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
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.