Trucker claims State Patrol more concerned with costs than rights

A judge is expected to rule in August on the possible dismissal of charges against a Neillsville truck driver who was involved in a July 2017 traffic crash that killed a Granton man. Lawyers in the case in recent weeks have filed legal briefs on the question of whether Roger Waltemate can develop a proper defense given that the truck he was driving on the day of the crash was not preserved as evidence.

Waltemate, who turned 56 years old this week, was driving a Lynn Dairy tanker truck on July 10, 2017, when the truck failed to slow in time at a Highway 10 construction zone near Granton and crashed into a short line of cars that had been stopped by a flagger. The crash killed 47-year-old Anthony Phipps of Granton and injured several other people in different vehicles.

Waltemate was not charged with any offenses at the time of the accident, and then-Clark County District Attorney Kerra Stumbris waited almost 18 months before filing criminal charges. In February 2019, Stumbris filed one charge of second-degree reckless homicide against him, as well as three counts of first-degree recklessly endangering safety and two counts of second-degree recklessly endangering safety.

Waltemate’s attorney, Roberta Heckes, is seeking to have the charges dismissed because the state did not properly preserve the Lynn Dairy truck for evidence following the crash. Wisconsin State Patrol inspectors had the truck towed to a Marshfield garage and did a post-crash inspection there, but then released the truck to Lynn Dairy only a few days after the crash. As Waltemate claims the truck’s brakes would not engage before the crash, he has no chance to have the truck’s brake system inspected in preparation of his defense at trial.

Judge Thomas Clark presided over a March 6 hearing on Heckes’ motion to dismiss, then ordered the attorneys to file legal briefs supporting their arguments. Heckes filed her brief to show why she believes the state erred in not preserving the truck, while current Clark County District Attorney Melissa Inlow responded with a brief contending that the charges should stand. According to an online court schedule, Clark is to deliver an oral ruling on Aug. 11.

In her brief, Heckes contends the State Patrol was more concerned about avoiding the costs of storing the truck than protecting Waltemate’s constitutional right to prepare a defense. State Patrol inspectors testified at the March 6 hearing that they conducted a post-crash inspection of the truck’s braking components, then agreed to its release back to Lynn Dairy rather than rent space to store it for an indefinite time period awaiting a trial. Heckes also notes in her brief that Clark County has a large evidence storage garage near Neillsville where the truck could have been taken.

The State Patrol inspectors testified on March 6 that the brake system did not show any signs of improper operation, and there was no need to hold the truck. They said they decide on a “case by case basis” when to hold a vehicle for evidence, and did not deem it necessary in this case.

Heckes said the State Patrol’s “cost-driven, arbitrary, vague, undefined policy” of when to preserve a vehicle deprived Waltemate of his right to now inspect the truck to find out why the brakes did not engage before the accident.

“The cost to the State is merely monetary; the cost to Waltemate is the loss of his constitutional due process rights to fundamental fairness,” Heckes wrote in her brief.

Heckes said the State Patrol should have considered the totality of the circumstances before releasing the truck. Factors that should have been considered, she said, were Waltemate’s statements at the crash scene that the brakes did not work, the 20-year-old age of the truck, and various inspection paperwork violations associated with the truck.

“It was apparent from the circumstances that something went horribly wrong when the accident happened, and, to automatically dismiss vehicle failure as a cause, was a denial of justice,” Heckes wrote.

Heckes also notes that the timing of the charges against Waltemate makes it impossible for him to have access to the evidence he needs to prepare a defense. Had he been charged immediately after the crash, he might have had the opportunity to have the truck inspected or demand that it be preserved, but the charges did not come until 18 months later. By that time, the truck was gone.

Heckes said when Waltemate hired her after the charges were filed, she asked Stumbris about the truck’s location and Stumbris did not know.

“Even if its actual disposition were known, it would be impossible for Waltemate to inspect the truck because there was no chain of custody to protect the evidence integrity,” Heckes wrote.

Heckes said Waltemate had no notice for 18 months that he would need to inspect the truck, and had “no control” over its disposition.

“Waltemate was merely a Lynn Dairy employee with no standing to challenge the truck disposal,” Heckes wrote. “However, Lynn Dairy had an incentive to dispose of its truck as quickly as possible to avoid culpability due to any equipment failure. Waltemate never had a chance to investigate or examine the Lynn Dairy truck in order to prepare any defense, whatsoever.”

Another component of Heckes’ motion is that there is no other way other than inspection of the truck for Waltemate to use in preparing a defense that faulty brakes were to blame for the crash.

“No comparable evidence exists that Waltemate can develop to defend the State’s charges as related to the Lynn Dairy truck’s mechanical condition,“ she wrote. “The exculpatory evidence existed only on the Lynn Dairy truck. The State did not fulfill its duty to preserve the critical evidence.”

Heckes also contends the State Patrol acted “in bad faith” by not preserving the evidence.

“The WSP made a deliberate and knowing decision to not impound the Lynn Dairy truck based on its selfserving motives …it is the way ‘we’ handle post-crash investigations and it will cost too much,” Heckes wrote. “That is bad faith by the State that is not only a disservice to the public, it denied Waltemate his constitutional due process rights to present a defense.”

In her response brief to the court, Inlow said the State Patrol inspectors followed protocol in examining brake components of the truck following the crash. They said those components appeared to be functioning, and the truck did not show evidence of brake failure. One inspector, Inlow noted, testified “that if someone had braked three times and the brakes malfunctioned, the post-crash inspections should have found a braking violation.”

Inlow said the State Patrol does decide whether or not to preserve a vehicle in part, on “what the postcrash inspection shows.” Another factor is cost, as “the Wisconsin State Patrol simply does not have the financial resources to store every vehicle involved in every crash.”

One of the inspectors testified, Inlow wrote “that when there is nothing mechanically wrong with the vehicle and that there is braking evidence on the road, as is the case here, there is no reason to hold the vehicle.”

Inlow noted that there was evidence at the scene that the brakes engaged on the truck, with skid marks visible approximately 60 feet after impact. A State Trooper testified that truck drivers have steps they can take if brakes fail, but there was no evidence at the scene that this occurred.

Inlow maintains the truck did not hold apparently exculpatory evidence the State patrol should have noticed. A State Patrol inspector with 26 year experience “testified that nothing in the post-crash inspection report would have alerted WSP that there could be something wrong with the brakes,” she wrote.

Inlow also said Heckes’ assertion that the State patrol acted “in bad faith” is not valid because the inspectors performed the most extensive inspection in its protocols and did not find any mechanical issues that would have suggested exculpatory evidence existed.

“Because the lack of mechanical issues renders inapplicable the defendant’s ‘apparently exculpatory’ argument and no official animus or conscious effort to suppress evidence existed, the State respectfully requests that the Court deny the defendant’s motion,” Inlow wrote.