No truck, no case?

Accused trucker: Charges should be dropped due to destruction of evidence

A few days after a July 2017 traffic crash in a construction zone near Granton that killed a Granton man, the Wisconsin State Patrol inspected the semi tractor-trailer involved in the crash and then released it back to its owner. Now, more than two years later as the legal case against the truck’s driver proceeds toward a trial, the driver and his attorney are trying to get the case dismissed because they do not have access to the truck to possibly show that the brakes weren’t working at the time of the crash.

After 2 1/2 hours of testimony during a March 6 motion hearing in Clark County Circuit Court, Judge Thomas Clark postponed a decision on the motion to dismiss to give attorneys in the case a chance to file legal briefs to support their arguments. Roger Waltemate, 55, of Neillsville, faces six felony charges — including second-degree reckless homicide — after the truck he was driving smashed into several cars stopped on U.S. Highway 10 at a construction zone flagman’s signal. The rear vehicle in the line of four — driven by 47-year-old Anthony Phipps of Granton — took the brunt of the collision and Phipps died at the scene.

Waltemate told investigating officers that the air brakes on the truck owned by Lynn Dairy did not engage as he approached the line of cars stopped on the highway.

Roberta Heckes, Waltemate’s attorney, filed a motion to dismiss the case in December based on “destruction of evidence” in the handling of the truck following the crash. Heckes said the State Patrol and Clark County Sheriff’s Department erred in not holding the truck for evidence, and now Waltemate cannot properly prepare a defense that might include evidence that the truck’s brakes were faulty.

Clark County District Attorney Melissa Inlow argued otherwise last week, calling three State Patrol officers to the witness stand to document how the truck was inspected after the collision. Their inspections found no issues with the brakes, they testified.

Although the crash occurred in the summer of 2017, charges were not brought against Waltemate until February 2019. The state’s complaint against him includes evidence that he may have been using his cell phone in his truck shortly before or at the time of the crash.

Peter Moe, a State Patrol accident reconstruction specialist, testified last week that evidence at the crash site indicated the Lynn Dairy 1997 International truck pulling a tanker was traveling between 56-62 mph when it hit Phipps’ Jeep in the rear end, and Waltemate had apparently taken no evasive action prior to impact.

“There was no pre-crash evidence on the roadway. There was no braking, no steering, nothing,” Moe said. Moe said there was evidence of the truck’s brakes being engaged after the impact. Skid marks indicating where the brakes locked the rig’s tires were evident on the pavement after the crash had occurred, he said.

Two other State Patrol officers testified about the handling of the truck after the crash.

Inspector David Ecklor said he conducted a brief visual inspection of the truck at the crash scene, and then completed a more thorough inspection after the truck had been towed to a garage in Marshfield. He said the brake’s mechanical parts were within normal adjustments and there was no visual sign of problems with brake lines, etc.

“I didn’t see anything out of the ordinary, brakewise, or that the brakes weren’t working,” Ecklor said.

Ecklor said Waltemate did tell him at the scene that he tried to apply the brakes three times prior to impact. Ecklor said Waltemate told him he tapped the pedal once to disengage the cruise control, then tapped the brakes, “and then he stood on the brakes.”

Ecklor said tests of the brakes in the Marshfield garage showed they were working properly. The inspection did note some issues with the truck’s turn signals and a

“The State Patrol’s inspection was inadequate.” -- Roberta Heckes, attorney for Roger Waltemate tail lamp, but nothing with the braking system.

State Patrol Sgt. Richard Krisher said he also assisted with the truck inspection, and also said the truck’s brakes were not defective. If Waltemate’s statements were true that the brakes did not work, Krisher said an inspection should have revealed a problem.

“I have never found a brake violation that fixed itself,” he said. “I can’t see any condition that would automatically cause brakes to start working again.”

Krisher said the decision was made to turn the truck back over to Lynn Dairy after consultation with the Clark County Sheriff’s Department, the lead agency in the investigation. He said it “would not be uncommon” to release a vehicle from evidence once proper inspections have been completed.

“There’s no set right or wrong on how we conduct business,” Krisher said. “We may impound a vehicle. We may not impound a vehicle … Obviously, we don’t have the money to store every vehicle involved in a crash … We can’t impound every vehicle in every crash. It’s a dollars and cents thing. We try to use common sense.”

In this case, Krisher said if the inspection showed no brake issues, there is no evidentiary value to storing it.

“There is nothing mechanically wrong with the truck … There’s really no reason for us to hold that vehicle,” Krisher said.

Heckes argues otherwise. She said the State Patrol did not go far enough in its inspection of the truck braking system, and since it decided not to preserve it as evidence, no one else can look at it now either.

An expert witness called by Heckes testified that there can be issues with an air braking system that might not be evident in a visual inspection. Gurdev Grewal, a truck driver/mechanic from Ontario, Canada, who is trained to teach others about air braking systems, said air pressure is a key in the proper operation of air brakes. A truck has several valves, he said, and if they are not functioning properly, there may be too little pressure to the brake ends to properly stop a vehicle.

“The air brake system is a very complicated system,” Grewal said. “It is not like a car braking system, which is very simple.”

Grewal did not inspect the Lynn Dairy truck, and he said the reports sent to him by Heckes do not give him enough information to determine if the system was working.

“I don’t have any evidence of all these seven valves, that they are working, they are not working,” he said.

Grewal said issues with an air brake system foot valve (pedal) are a “very common defect.”

“The foot valve, it might work one time, it might not work the second time,” he said.

Clark raised a point of order in the hearing, noting that a motion to dismiss based on destruction of evidence must meet certain criteria to be valid. Clark said it must be proven that the inspectors knew the truck possessed “exculpatory” evidence, but still released it, or that they acted “in bad faith” by releasing the truck with full knowledge that it held evidence that might help the defense.

Heckes said the State Patrol inspectors “should have known that air valves can fail, yet nobody checked the air valves.”

She said further that “almost every truck driver I know” claims that air brakes can fail at times.

“This is a fairly common phenomena,” she said. “The State Patrol’s inspection was inadequate.”

Inlow said there is no indication that the State Patrol inspectors were aware of any more evidence the truck might hold, or that they purposely released it knowing of such evidence.

“Both inspectors testified that they did this in accordance with their training,” Inlow said. “That’s not bad faith. That’s operating within their normal procedures.”

Clark said Grewal’s testimony offered nothing to prove the inspectors knew more evidence existed on the truck. He said his testimony may be appropriate for a jury trial, but not in a motion to dismiss charges.

“Everything you said should be said to a jury,” Clark said. “That’s for a jury. That’s a beyond-a-reasonable-doubt question.”

Clark still did not render a final decision on the motion, opting instead to allow each attorney to file a legal brief to explain their contentions.

“I don’t want to shoot from the hip on this important issue,” Clark said.

Heckes has 30 days to file her brief, and Inlow will then have 30 more days to respond.