Trucker asks court to toss out 2017 homicide charge
A truck driver who was at the wheel when his semi crashed into a stopped vehicle near Granton in July 2017 and killed a man is asking the court to dismiss criminal charges against him because of an alleged “destruction of evidence.”
A judge next week will consider the motion filed by an attorney for 55-year-old Roger Waltemate of Neillsville, who was driving a Lynn Dairy semi truck on July 10, 2017, when it plowed from behind into a line of cars that were stopped by a flagman at a Highway 10 construction zone. Forty-seven-year-old Anthony Phipps of Granton was killed in the crash, and Waltemate was charged almost 18 months later with six felony charges related to the collision. Now, attorney Roberta Heckes has filed a motion to dismiss the case, alleging that the truck Waltemate was driving was not properly preserved for evidence and that is preventing her client from establishing his defense.
Waltemate told officers following the crash “that he tried at least 3 times to brake the truck, and the brakes would not properly engage,” according to the motion to dismiss. Waltemate was eastbound on Highway 10 just east of Granton, and four vehicles were stopped awaiting a flagman’s direction. Waltemate’s truck struck the last vehicle, driven by Phipps, and that caused a chainreaction that damaged two other vehicles and caused injury to occupants.
After the crash, the motion states, the Wisconsin State Patrol took control of the truck and had it towed to V& H Heavy Truck in Marshfield. Officers inspected it there, and found “multiple truck defects,” the motion states.
On July 12, just two days after the crash, the motion states the State Patrol released the truck to Lynn Dairy “to either repair or dispose of it at its discretion.”
No charges were filed against Waltemate until Feb. 28, 2019. By then, the motion alleges, Waltemate had no opportunity to have anyone examine the truck for the possible brake defects he said were responsible for his failure to stop.
In her motion, Heckes said when she was hired as counsel by Waltemate, she asked the Clark County district attorney about the truck, “and was told that she did not know the location of the truck or its status.”
“The state never provided Waltemate with any information about the disposition of the Lynn Dairy truck,” the motion states. “Even if its disposition were known, it would be impossible to examine the Lynn Dairy truck at this late date because there was no chain of custody to protect the evidence integrity for reliable inspection and investigation.
“(The) state released its possession of the Lynn Dairy truck almost immediately and with complete disregard for the apparent evidentiary value that would have been discovered with sufficient time to inspect and investigate in order to develop and preserve the evidence to use as a defense … The state’s failure to preserve evidence, i.e., Lynn Dairy truck, denied Waltemate his due process right to inspect and examine it with his experts to determine the cause of the brake failure that resulted in the accident.
“The state failed to preserve the Lynn Dairy truck, even though it knew or should have known, that the Lynn Dairy truck contained apparently exculpatory evidence that included, but not limited to, the following factors: age of the truck (20 years old); the Vehicle Examination Report that revealed multiple inspection violations; the skid mark patterns; and, Waltemate’s statements to law enforcement about brake failure.” The criminal complaint filed against Waltemate states that Waltemate told officers he knew of the Highway 10 construction zone because he drove through it often on his daily route, and that he saw the vehicles lined up in the roadway as he approached prior to the crash. Officers stated in the complaint that Waltemate told them that the truck’s brakes did not engage, and that he struck the Phipps’ vehicle at approximately 40-45 mph hour.
The state’s case is based partly on an analysis of Waltemate’s cell phone that shows he was sending messages and engaging in video chat calls shortly before the collision time. An accident reconstructionist calculated the speed of the the Lynn Dairy truck at 56-61 mph at first impact. The reconstructionist found “that it was not the collision that stopped the semi, but rather that sufficient braking occurred after impact to bring the unit to a stop. He noted that there were no visible pre-impact tire marks created by the semi,” the complaint states.
The motion to dismiss claims Waltemate has been denied the chance to present a defense involving malfunctioning brakes.
“Despite the state having actual and/ or constructive knowledge about the real possibility that a mechanical malfunction occurred, the state failed to follow proper protocols to prevent exculpatory evidence from being destroyed,” the motion reads. “The state made it impossible for Waltemate to prepare a defense that the mechanical condition of the Lynn Dairy truck caused or was a contributing factor in the accident. Instead, the state decided to delay charging Waltemate with very serious criminal charges for almost 18 months in addition to its failure to preserve critical exculpatory evidence. As a result the state denied Waltemate his constitutional due process right to fundamental fairness.”
A Jan. 13 motion hearing is scheduled in Clark County Circuit Court. The case is being presided over by Pepin/Buffalo County Circuit Court Judge Thomas Clark as Waltemate requested a substitute judge. Former Clark County District Attorney Kerra Stumbris filed the original charges in February 2018, but has since left for a new position. New District Attorney Melissa Inlow is now handling the case for the state.
The charges against Waltemate include one count of second-degree reckless homicide, three counts of first-degree recklessly endangering safety, and two counts of second-degree recklessly endangering safety.