2/7/2012 5:17:00 AM Wisnosky's attorney attempts to cast doubt on informant's credibility Lucareli attempts to call witness who may be the informant
Heather Schaefer of The Northwoods River News
The preliminary hearing of a Minocqua man accused of selling cocaine took a strange turn Thursday when the accused's attorney tried to call to the stand a person he believes may be the confidential informant at the center of the case.
Toward the end of the preliminary hearing, defense attorney Steve Lucareli told the court he had subpoenaed a woman he believes is the confidential informant, whom the state claims bought cocaine from Dane Wisnosky in August and September 2011, and asked that she be allowed to testify.
Wisnosky, 47, is charged with two counts of manufacture/delivery of cocaine (1 to 5 grams) as party to the crime. His alleged girlfriend, Carole J. Schultz, also of Minocqua, is charged with one count of manufacture/delivery of cocaine (1 to 5 grams) as party to the crime. The two were arrested Dec. 1 following an undercover drug operation. According to the criminal complaint, Wisnosky and Schultz sold cocaine to an undercover operative on two occasions. Both sales are alleged to have taken place at the Black Bear Bar property on Hwy. 70 formerly owned by Wisnosky.
During the preliminary hearing, Deputy Lee Lech of the Oneida County Sheriff's Department testified he and two other narcotics officers worked with a confidential informant, identified only as 0SI297, to complete the controlled drug buys.
Lech testified he gave OSI297 $100 on the first transaction and $250 on the second and both times the informant came back with a white, powdery substance later identified as cocaine.
Lech testified the informant was searched prior to both controlled buys and visual surveillance of the informant was conducted during the transaction.
Throughout the hearing, Lucareli attempted to cast doubt on the validity of the alleged drug transactions and the credibility of the informant. During cross-examination, he attempted to ask Lech if the informant is a male or a female but the state objected on the grounds it does not have to identify the informant and the gender of the person goes to identification.
Lucareli argued the sex of the informant is relevant because it's plausible a male officer wouldn't search a female informant in as invasive a manner as he might a male. He argued the parameters of the search are relevant because it's possible an informant could hide drugs somewhere on their person (and later claim to have purchased them from another person) in an attempt to frame an innocent person.
Judge Patrick O'Melia would not allow Lech to answer the question about the informant's gender but did allow Lucareli to ask questions about the search.
Lech testified he did not search under the informant's clothing or undergarments and did not perform a body cavity search of the informant prior to the controlled buy.
"Male or female, I didn't put my hands under anybody's shirt," Lech said.
Lucareli also attempted to find out whether the confidential informant was facing criminal charges at the time of the alleged transactions.
"If we have someone here who is being investigated for first degree homicide as opposed to a parking ticket what it is they were facing could directly impact their willingness to do whatever they had to do to satisfy these officers," he said.
Oneida County District Attorney Mike Bloom objected and O'Melia agreed the line of questioning was not appropriate at a preliminary hearing.
Following Lech's testimony, Lucareli attempted to call a mystery person to the stand.
"I have a person subpoenaed who I believe is OSI297 and this person has represented to my client and others that [the person] personally was not involved in any transactions on Sept. 3, 2011, and Aug. 12, 2011," he said.
Bloom objected to the person's testimony as improper at a preliminary hearing and Judge Patrick O'Melia agreed.
Only the state has the right to waive confidentiality as it relates to an informant, if Lucareli's witness is actually the informant, O'Melia said.
The person was not allowed to testify.
Before the hearing, Lucareli filed a motion to dismiss the complaint on the grounds there is no evidence the information provided by the confidential informant is reliable.
"There's nothing in this complaint that corroborates who was involved, who the transaction occurred with, independent of the word of the confidential informant," Lucareli said.
O'Melia ruled, based on the totality of the circumstances, the information is reliable and denied the motion. After hearing Lech's testimony, O'Melia found there is probable cause Wisnosky committed a felony and bound him over for trial.
"This will make for an interesting trial down the road, when credibility comes into play and when we have more of the evidence, such as tapes, things of that nature, video surveillance whatever we may have, other witnesses. But for today, there is probable cause," he said.
Wisnosky is scheduled to be arraigned Feb. 13.
If convicted, he faces up to 25 years in prison.
Heather Schaefer may be reached at firstname.lastname@example.org.
Posted: Friday, February 17, 2012
Article comment by:
A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed. I'm quoting from sec. 970.03, the preliminary examination statute. Fairness would dictate that evidence from either side would assist the judge in deteriming probable cause. This ruling is not unusal in that it disregards evidence the defense may have from its investigation. If the witness presented by the defense is the informant, then her testimony is not only relevant, but may be dispositive of the case before the expense of further investigation, prosecutin and trial. If the witness is not the informant, neither side is no better or worse off than before, and a blind alley has been elimniated. I would suggest the court turned down a chance to do early justice, not mention saving the taxpayer some money.