A newly discovered witness was found just days before Joshua DeRosier was to go on trial facing two counts of first-degree murder.
The prosecution said it was a matter of an ongoing investigation before going to trial in the case surrounding the 2001 Christmas Eve murders of DeRosier's grandparents, Ted and Angie Bieganek. The defense countered that the last-minute addition was prejudicial and the witness could have been found much earlier.
In the end, Crow Wing County District Court Judge David Ten Eyck expressed his own concerns for the late addition, but decided to allow limited testimony from the witness, Paul Karels, Brainerd, and potentially from Karels' girlfriend, Rochelle Mold.
The decision was made Friday in a closed hearing. A transcript of the hearing was made available after the trial began Wednesday. With the potential to add witnesses so close to the start of the trial, Ten Eyck said he felt it was in the interest of justice not to expose the jurors to any publicity about what may or may not be part of the trial testimony. As a result, he closed the hearing.
Present during the closed hearing were Crow Wing County Attorney Don Ryan, defense attorney Charles Halverson, DeRosier, deputies and Minnesota Bureau of Criminal Apprehension Agent Thomas Wyatt.
Ten Eyck denied the defense's motion that the prosecution violated discovery rules by which either side provides information on evidence and witnesses they plan to use for the trial. Ten Eyck said he was taking the approach of newly discovered evidence instead as there was no indication of deliberate suppression of evidence.
Halverson argued the prosecution had plenty of time to find Karels earlier, a man who was served with papers by Crow Wing County sheriff's personnel a year ago when he was in his Brainerd residence.
"And yet we don't find out about him until now, your honor, and that's the problem," Halverson said.
Karels was staying at the Paul Bunyan Inn on Dec. 23, 2001, and the prosecution says he has testimony regarding seeing DeRosier's truck arriving at the motel and later recognizing the same truck in a photo taken at the crime scene and published in The Dispatch Dec. 26, 2001.
Halverson asked the court to consider if there were discovery violations, impose appropriate sanctions and suppress the photo identification of a pickup truck.
Halverson noted the jury was picked and the trial was about to begin and he knew nothing about Karels or Mold.
"It's done at the 11th hour," Halverson said. "It's done with motives I don't know. But it's done. It's not done thoroughly. It's not done accurately. And I think that when we get done with the questioning I'm going to be able to argue it was done suggestively."
Karels was familiar with a family member related to the victims, Halverson said. Ryan said whether the witness was credible or not was up to the jury and the issue for the hearing was whether the court found a discovery violation.
"I don't think it's even close to a discovery violation," Ryan said. "... I can't even fathom the law in this state being, that after the omnibus hearing neither the prosecution nor the defense has any opportunity to continue an investigation or if something new comes up we can't bring in any new information."
Ten Eyck said there also existed an underlying responsibility to pursue a case so this situation does not happen. Ten Eyck said it has been a year and on the eve of trial this witness was located. The judge pointed out the Crow Wing County Sheriff's Department in-house database had the witness' address as far back as a year ago.
In making his decision, Ten Eyck heard testimony that the work to find potential witnesses began just days after the double homicide.
Wyatt, the BCA agent, was given the task of trying to locate 12 people who stayed at the Paul Bunyan Inn on the night of Dec. 23, 2001. He began looking for them in January 2002. Six were located. Three appeared to have used false names or addresses. Three were left to find, including Karels.
An initial address for Karels in Little Falls proved to be out of date. Wyatt worked with other agencies and Morrison County investigators to try to locate Karels. He gained more assistance when the Minnesota Department of Driver and Vehicle Services opened a Web site accessible to law enforcement. At the time, Wyatt also was heavily involved in the Erika Dalquist investigation.
Through the Web site, Wyatt was able to track Karels to a new address in Brainerd. He attempted to locate Karels at that address between 10 and 15 times. On Feb. 12, he was successful. Wyatt also spoke with Mold on the telephone.
Wyatt testified Karels said he was in a vehicle leaving the Paul Bunyan Inn parking lot when a late 1990s model Chevrolet pickup passed by and he later saw what he thought was the same truck in a photo of the murder victims' home in The Dispatch.
In a cross examination of Wyatt, Halverson noted Karels' original statement indicated the truck in question was light in color and green and the vehicle in question was actually gray.
Halverson argued allowing the testimony left little remedy at the last minute when even a continuance may taint the jury and result in a mistrial.
Ten Eyck said he had no problem allowing a continuance if the defense requested it. But between the prosecution and the defense, it was decided Karels will not be called to testify before Monday, giving the defense time to prepare.
Near the end of the hearing, Ten Eyck also ruled on motions regarding hearsay evidence. Ten Eyck went down a detailed and specific list, letting Ryan know what line of questioning he would allow the prosecution to pursue. Items allowed include information regarding the defendant doing laundry at the Bieganek residence and information on DeRosier's purchase of the 2000 Chevrolet pickup.
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