3.Dawn Pliszka — Direct/Cross/Redirect/Direct/Cross
495 linesDIRECT EXAMINATION BY ATTORNEY KRATZ:
MR. KRATZ: Ms Pliszka, this is not your testimony before the Court, but this is -- excuse me -- before the jury, but this is simply retrieving from you some very narrow information about a conversation that you had with Teresa; do you understand that?
DAWN PLISZKA: Yes.
MR. KRATZ: You were a receptionist with Auto Trader during the fall of 2005; is that right?
DAWN PLISZKA: Yes.
MR. KRATZ: And what kind of relationship did you have with Teresa; in other words, did you and Ms Halbach have occasion to discuss matters of a more personal nature?
DAWN PLISZKA: Yes, we did.
MR. KRATZ: During the course of those discussions, did Ms Halbach ever describe for you a contact or incident that she had with the defendant, Steven Avery?
DAWN PLISZKA: Yes.
MR. KRATZ: Could you describe, first of all, the words that she used and then we will describe the circumstances surrounding that. So first tell us what she told you.
DAWN PLISZKA: After she was out there, around October 10th, it was like about a week or so after that, she had stated to me that he had come out in a towel.
MR. KRATZ: He meaning whom?
DAWN PLISZKA: Steven Avery.
MR. KRATZ: Had come out where?
DAWN PLISZKA: She didn't specify, she just said that he had come out, just in a towel.
MR. KRATZ: All right. Did Ms Halbach describe for you anything else about that, any other details about seeing Mr. Avery in a towel?
DAWN PLISZKA: The only -- I just said, really, and she said, yeah, and she said, yeah, and she laughed and just said kind of, ewww, you know.
MR. KRATZ: Okay. You said kind of what?
DAWN PLISZKA: Ewww.
MR. KRATZ: Ewww.
DAWN PLISZKA: Yeah, just that.
MR. KRATZ: I guess not in a positive way?
DAWN PLISZKA: Not in a positive way, no.
MR. KRATZ: Did Ms Halbach -- or was she seeming to describe a specific event; in other words, was she remembering that event when she was describing it for you?
DAWN PLISZKA: Yes.
MR. KRATZ: At least as far as my offer of proof, the rest is argument. I don't have anything further from Ms Pliszka for this offer of proof.
THE COURT: Mr. Strang.
CROSS-EXAMINATION BY ATTORNEY STRANG:
MR. STRANG: Hi. Do you think this was a week or more after October 10th?
DAWN PLISZKA: Yes, that I talked to her. I don't know when the incident exactly was.
MR. STRANG: Okay. But you're probably talking to Teresa Halbach October 17, or some time shortly after that?
DAWN PLISZKA: Mm-hmm. Yes.
MR. STRANG: She did not say that this had happened on October 10 or any specific date?
DAWN PLISZKA: She did not specify the date, no.
MR. STRANG: She didn't call you to tell you about this incident?
DAWN PLISZKA: Not specifically, no, it just came up in conversation.
MR. STRANG: You were chitty chatting with her?
DAWN PLISZKA: Yeah. Mm-hmm.
MR. STRANG: And the reaction was ewww?
DAWN PLISZKA: Yeah, it was unfavorable.
MR. STRANG: Yeah. And then she sort of laughed it off?
DAWN PLISZKA: Right.
MR. STRANG: This was 10 -- 10, 15 seconds of conversation?
DAWN PLISZKA: I would say, yes.
MR. STRANG: How long was the phone call, roughly?
DAWN PLISZKA: Altogether, probably a couple minutes at that time.
MR. STRANG: What sorts of other subjects did you two cover in that conversation?
DAWN PLISZKA: Probably just work related. I don't really remember all the details of the conversation. I just remember her saying that.
MR. STRANG: Do you remember whether she called you or you called her?
DAWN PLISZKA: I think that time she called me, probably she had a question on one of her photos, I think.
MR. STRANG: Okay. So she had some more immediate work purpose for the call?
DAWN PLISZKA: Mm-hmm. Yes.
MR. STRANG: And the two of you got sort of chatting and this is one of the things she brought up?
DAWN PLISZKA: Right.
MR. STRANG: She did not give you any sense of time on when this had occurred?
DAWN PLISZKA: No, she did not.
MR. STRANG: Okay. Thanks. That's all I have.
MR. KRATZ: Judge, one follow up.
REDIRECT EXAMINATION BY ATTORNEY KRATZ:
MR. KRATZ: In the interim, that is, between October 10th and October 17th, or really around that period of time, would you have these kinds of conversations often with Teresa, personal chit chatty conversations?
DAWN PLISZKA: Pretty much every time she called in. I talked to her a couple times a week because I sent out the photo leads and everything, so we talked quite a bit.
MR. KRATZ: That's all I have. If we could excuse Ms Pliszka, Judge, then I'm prepared to make my argument.
THE COURT: All right. I just have a couple of follow up questions.
EXAMINATION BY THE COURT:
MR. KRATZ: You said that the conversation took place a week or so after October 10th?
DAWN PLISZKA: Yes.
MR. KRATZ: And is it your understanding that October 10th is the day that she was describing that this happened?
DAWN PLISZKA: I really can't say for sure.
MR. KRATZ: All right. So you don't know if she was talking about a visit to Mr. Avery's property on October 10th or at some previous unspecified visit?
DAWN PLISZKA: Yeah, I would not know that for sure.
MR. KRATZ: And do you remember how the comment -- or what prompted the comment, what background conversation led up to it?
DAWN PLISZKA: I don't really remember, no. I just remember -- We used to talk about different things that had happened during our day that were unusual, or funny, or different customers and things like that, so.
THE COURT: All right. You are excused from the courtroom for a few minutes. Mr. Kratz.
MR. KRATZ: Thank you, Judge. As this Court knows, this statement is being offered pursuant to the hearsay exception of a statement of a recent perception. It is important, Judge, to note the different admissibility standards for recent perception, compared to present sense impression, or even excited utterance where time is important; that being time -- the time sensitive nature.
Because of the nature of this particular conversation, it's clear that the three factors that are required for recent perception have been established. First of all, the issue of whether or not the event or condition that's being described was recently perceived is a factor, but recently is in a much, much broader term.
1988 Court of Appeals decision of Kluever vs. Evangelical Reform Congregation, cited at 143 Wis. 2d, 806, was a 8 to 10 week period between the event and its description. The recent perception admissibility theory was satisfied by that 8 to 10 week period.
But here, Judge, I think we can infer that the -- because it only occurred a short time after the October 10th meeting, that it was of recent perception; at least more recent or recent enough to satisfy that particular prong.
Again, Judge, the statement -- or, secondly, I should say, the statement must be made where the declarant is recalling something clearly and that it's not in response to some litigation or investigation.
The second and third prongs aren't really, I believe, at issue in this case. So I believe the State has met, through this offer of proof, the foundation under 908.045 (2) with the declarant, that is, Ms Halbach, being unavailable, that this is a statement of recent perception and would ask the Court allow its admissibility.
THE COURT: Mr. Strang.
MR. STRANG: Thank you, your Honor. I agree that if this statement fits anywhere it would fit under Section 908.045 (2). Wisconsin's unusual, I think not taken directly from a uniform rules of evidence or model rules of evidence, but Wisconsin's exception for statements of recent perception.
Clear out the under brush first. There's -- if there's no gainsay in the fact that Teresa Halbach is unavailable, so the State meets that threshold requirement. And I, like Mr. Kratz, view this statement as not in contemplation of litigation.
I have no reason to question Teresa Halbach's recollection being clear at the time. And this statement was not in response to instigation of a person who was investigating or litigating a claim. So the question does come down to the recency requirement.
Going to back up just a little bit, if you think about the basic rationales of hearsay exceptions, most of them are either because the out of court statement is of a type that's extraordinarily reliable and courts have recognized that over the last several centuries. Or that the hearsay statement is of a type where we have a high necessity to have something like that. And, of course, reliability and necessity are not poles.
All of the exceptions, at least where un -- unavailability are concerned, have both a necessity component and then some assurances of reliability. And because we're under the unavailability exceptions, the necessity interest presumably would be higher. And that's why we see a relaxation of the reliability requirement, with a little bit more expansive tolerance for a period of time than, for example, under the excited utterance exception where there's a lower presumptive necessity showing because the availability of the declarant doesn't matter.
So, with that focus, let's look, first, at necessity. Very, very low necessity here. The State originally sought this type of evidence because it had added a sexual assault allegation to the Information. That now has been dismissed, so sexual assault is not in play.
And the State conceded, in its opening statement, that it can't answer the motive question, can't explain for a jury why and won't attempt to prove motive here. So even where sexual assaults go into play, the original reasons the State offered in pursuing this bit of evidence originally as uncharged misconduct, both have fallen away and necessity is very low.
Reliability, though, also is quite low here. As -- as my question suggested and I think the Court's question cemented, we have no way of knowing here whether this statement related back as far as June 20 or as recently as October 10, which itself would have been about a week or perhaps more after the incident.
Mr. Kratz cited Kluever, K-l-u-e-v-e-r, vs. Evangelical Reformed Immanuel Congregation. And it's true that there was an 8 to 10 week period of time at issue in Kluever, but the facts of Kluever are worth noting. The statement was made while the declarant was in a hospital bed recovering from a bad fall.
And the Court noted, in accepting the 8 to 10 week time period that the statement was one of his few "islets", i-s-l-e-t-s, of memory in the time period since his fall. So there was sort of a compression, or at least an amorphous quality of time for the declarant there, kind of a foreshortening, if you will, of recency given the injuries that the man had sustained and was recovering from in the hospital bed.
So, I don't know in the end that Kluever gives a whole lot of help here. I do concede that we don't need the immediacy or quite the recency that an excited utterance would require for the reasons I explained concerning the underlying rationale for these hearsay exceptions.
But I don't think the State has shown that this had any real recency. It certainly wasn't the purpose of the call, no sense of immediacy, casual chit chat, at least a week and perhaps four months after the incident at issue.
So coupled with a very low necessity for this, at this point, and a dubious showing of recency, whether we look just to 908.045 (2) or the Court also considers the 904.03 analysis, again, with necessity and how -- how probative really, is this of any relevant or material issue; I think for both those reasons this just ought not be admitted. There is some prejudice to it too. It's got a little bit of a salacious quality. I'm not saying it couldn't be dealt with on cross, but I don't think the State has met the threshold to fit it within this hearsay exception. The State has offered no other; and, on balance, I also think that 904.03 would suggest exclusion.
THE COURT: Mr. Kratz.
MR. KRATZ: Just very briefly, Judge. The uniqueness of this statement, that is, the event of a man of Mr. Avery's stature showing up, or coming out, as the term is, in just a towel, we can infer would have drawn some comment if it would have happened sooner, perhaps as early as June 20th as counsel may have suggested.
But I think the fact that this was in the course of business chit chat and this statement comes out of the blue, if you will, as far as Mr. Avery goes, adds to its reliability and to its credibility. And for those reasons, Judge, and for the other reasons that I have mentioned, we'll ask the Court allow this as admissible.
THE COURT: All right. I'm going to take a few minutes to check a few things. I will be back, probably within about 10 minutes with a decision.
(Recess taken.)
(Jury not present.)
THE COURT: The Court has previously ruled that the statement regarding the brief statement of Teresa Halbach that Mr. Avery had come out in a towel could be admissible subject to appropriate foundation. The appropriate hearsay exception reads in relevant part as follows: The following statements are not excluded, the statement which describes an event or condition recently perceived by the declarant, not in contemplation of pending or anticipated litigation and while the declarant's recollection was clear.
In this case, it's not disputed that the statement was not made in contemplation of any litigation. There does not seem to be a dispute that the statement was made while the declarant's recollection was clear. There is an issue as to whether or not the statement described an event or condition recently perceived.
The situation is complicated somewhat in this case by the fact that, as the Court understands the testimony of the witness, we don't know precisely when the date was that the statement was alleged to have been made.
In the Court's opinion, this is a very close decision. As the parties recognize, the recency requirement does not, in this case, necessarily mean a day or two before. But the Court feels that some specificity is required, and in this case we don't really know within the range of weeks or months exactly when the statement was made. Presumably it could have been -- or when the observation was made, presumably it could have been any time from the middle of June until October 10th.
I'm also concerned by the lack of context in which the decision was made, or it's a very short one sentence description of an event or condition, without any qualifiers, or any solid explanation. And in the Court's opinion, that makes its relevance and certainly potential for prejudice -- relevance, less; potential for prejudice greater.
And for that reason, while the decision is admittedly a close one, the Court is not going to allow the evidence in for the reasons I gave. The lack of specificity and the uncertainty as to exactly when the statement was made and the fact that different inferences could be drawn from it because there is so little information about its background.
Anything else before we bring the jury back in?
MR. KRATZ: No.
THE COURT: Very well, we'll bring in the jury.
(Jury present.)
THE COURT: You may be seated. Mr. Kratz, at this time the State may call its next witness.
MR. KRATZ: State will call Dawn Pliszka, Judge.
COURT CLERK: Raise your right hand.
DAWN PLISZKA, called as a witness herein, having been first duly sworn, was examined and testified as follows:
COURT CLERK: Please be seated. Please state your name and spell your last name for the record.
DAWN PLISZKA: Dawn Pliszka, P-l-i-s-z-k-a.
DIRECT EXAMINATION BY ATTORNEY KRATZ:
MR. KRATZ: Ms Pliszka, I want to direct your attention to the fall of 2005 and ask if you can tell the jury how you were employed at that time?
DAWN PLISZKA: I was a receptionist at Auto Trader.
MR. KRATZ: And what were your duties as a receptionist?
DAWN PLISZKA: I sent out the photography leads. I took incoming phone calls. Sent out t-shirts. Mailed out catalogs.
MR. KRATZ: As part of that employment, did you have the privilege of knowing a young woman named Teresa Halbach?
DAWN PLISZKA: Yes, I did.
MR. KRATZ: Could you tell the jury, please, how you knew Ms Halbach?
DAWN PLISZKA: She was one of our photographers. She started just a little after I did, so we were fairly close.
MR. KRATZ: Ms Pliszka, I'm going to direct your attention, specifically, to October 31st of 2005, ask if you were working on that day?
DAWN PLISZKA: Yes, I was.
MR. KRATZ: Do you remember about what time you started work?
DAWN PLISZKA: I started at 7:00.
MR. KRATZ: Seven in the morning?
DAWN PLISZKA: Mm-hmm. Yes.
MR. KRATZ: At or about 8:12 a.m., do you recall receiving a call that day?
DAWN PLISZKA: Yes, I do.
MR. KRATZ: And could you tell the jury about that call, please.
DAWN PLISZKA: It was from a man. He said that he wanted the photographer who had been out there before. He was selling a mini van and he needed her to take photos.
MR. KRATZ: Did this man identify what name the photography job would be under?
DAWN PLISZKA: I couldn't quite make him out because he was very hard to understand. The closest I got was the initial B. Janda.
MR. KRATZ: This man said that he wanted the photographer who had been out there before; did he identify by name that person?
DAWN PLISZKA: No, he did not.
MR. KRATZ: Did he provide you an address where he wanted this photo to be taken?
DAWN PLISZKA: Yes, he did.
MR. KRATZ: Do you remember what that was?
DAWN PLISZKA: I don't remember the exact number, but it was something B Avery Road.
MR. KRATZ: If I showed you a document from that morning, would that help refresh your recollection of that?
DAWN PLISZKA: Yes.
MR. KRATZ: Exhibit 17, Janet, do you have that?
MR. KRATZ: (By Attorney Kratz)~ I have now handed you what has been marked for identification as Exhibit No. 17. Tell the jury, first of all, what is that?
DAWN PLISZKA: This is a photo shoot lead. It's for a same day appointment, which we don't normally do. But if the photographer is able to, we could have written them up and sent them to them.
MR. KRATZ: Whose handwriting is on that form?
DAWN PLISZKA: That's mine.
MR. KRATZ: Would that form have been filled out at the same time that you received this call from this person?
DAWN PLISZKA: It was actually filled out later on, after I had left a message for Teresa to see if she could make it out there that day.
MR. KRATZ: But does that sheet help refresh your recollection as to the information provided by this man?
DAWN PLISZKA: Yes.
MR. KRATZ: What was the address that was given for the photo shoot?
DAWN PLISZKA: 12930A Avery Road.
MR. KRATZ: Now, when this man said that he -- Let me start again. Remind me of the language, the specific language the man used in requesting the photographer?
DAWN PLISZKA: He had wanted the photographer that had been out there before.
MR. KRATZ: Did he say why he wanted that same photographer?
DAWN PLISZKA: Because he had a mini van for sale.
MR. KRATZ: Was a phone number provided?
DAWN PLISZKA: Yes, it was.
MR. KRATZ: Could you tell us what that phone number was, please.
DAWN PLISZKA: It is 920-755-8715.
MR. KRATZ: Now, did you know the district or the area from whom this call had come; in other words, what photographer you were going to assign to do this shoot?
DAWN PLISZKA: Yes.
MR. KRATZ: How did you know that?
DAWN PLISZKA: They were assigned by location. When you would type it in the system, it would automatically pop up the photographer's next available date.
MR. KRATZ: Who was the photographer that had that district?
DAWN PLISZKA: Teresa Halbach.
MR. KRATZ: I think that you had said that same day appointments were unusual; is that right?
DAWN PLISZKA: Yes.
MR. KRATZ: Can you tell the jury about that, please.
DAWN PLISZKA: Normally, we had a 24 hour notice for photos, but sometimes if someone wanted to make a deadline and the photographer was in the area, we would leave a message for them and then they would go out to that person's residence, if they could make it.
MR. KRATZ: Ms Pliszka, I'm now going to direct your attention to approximately 9:46 a.m. and ask if you tried to call Teresa Halbach at that time?
DAWN PLISZKA: Yes, I did.
MR. KRATZ: Could you tell the jury about that call, please.
DAWN PLISZKA: I wasn't able to get a hold of her, so I left her a message saying that someone said -- I'm sorry -- that she had been out there before. I couldn't find a record of him in the system, but if she could make it today, that would be fine, otherwise I had scheduled it for the following Monday, which would have been her next available appointment.
MR. KRATZ: Were you notified, Ms Pliszka, any time later that day that Ms Halbach was able to make that appointment?
DAWN PLISZKA: When I came back from lunch, there was a note from Angie Schuster that -- it was said that she had wanted me to fill out one of these lead sheets and fax it to her because she would be able to make it that same day.
MR. KRATZ: She, meaning Ms Halbach?
DAWN PLISZKA: Ms Halbach, yes.
MR. KRATZ: Finally, Ms Pliszka, were you able to and did you, in fact, speak with Teresa Halbach later that day?
DAWN PLISZKA: Yes, she called me at 2:27 and we talked --
MR. KRATZ: Who?
DAWN PLISZKA: Teresa. Called me at 2:27 and we talked for a little while and she said, yeah, I'm able to go get that photo. By the way, it was the Avery brothers and I'm on my way out there right now.
MR. KRATZ: So 2:27 p.m. she told you she was on her way to the Avery property?
DAWN PLISZKA: Yes.
MR. KRATZ: Let me ask you this, Ms Pliszka, how do you remember that call?
DAWN PLISZKA: I remember because I looked at the time, because she didn't normally work, I think, past 1:00 and I thought it was kind of late for her to be going out there. So I happened to look at the clock at that time, so.
MR. KRATZ: All right. Just as an aside, do you remember what else you guys talked about at that time?
DAWN PLISZKA: She needed UPS labels and then I was telling her about my son going trick or treating.
MR. KRATZ: So you remember that being Halloween?
DAWN PLISZKA: Yes.
MR. KRATZ: Finally, Ms Pliszka, after that call, after you hung up and concluded that call with Teresa, did you ever have occasion to talk with her again?
DAWN PLISZKA: We tried to get a hold of her, on I think Thursday morning, but we weren't able to.
MR. KRATZ: Let me ask that again, did you ever talk to Teresa Halbach again after that time?
DAWN PLISZKA: No, I did not.
MR. KRATZ: I would move the admission of Exhibit 17, Judge, and that's all the questions I have for this witness.
THE COURT: Any objection to the exhibit?
MR. BUTING: No objection.
THE COURT: Exhibit 17 is admitted. Who will be doing cross?
MR. BUTING: I will, Judge.
THE COURT: Mr. Buting.
CROSS-EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: Good morning.
DAWN PLISZKA: Good morning.
MR. BUTING: Is it Ms Pliszka?
DAWN PLISZKA: Pliszka.
MR. BUTING: Pliszka, okay.
MR. BUTING: Judge, could you maybe explain to the jury that it's your request that we wear these mikes when we move around?
THE COURT: That's right, the attorneys who stand, we require the attorneys to use these mikes so everybody can hear.
MR. BUTING: So forgive me if I fumble with them a little bit.
MR. BUTING: (By Attorney Buting)~ All right. Now, you still have Exhibit 17 up in front of you, do you not?
DAWN PLISZKA: Yes.
MR. BUTING: All right. Now, I will refer to that in just a minute. But, you mentioned that your duties are answering incoming phone calls?
DAWN PLISZKA: Yes.
MR. BUTING: Calling out to photographers and assignments?
DAWN PLISZKA: Yes.
MR. BUTING: Also faxing out these appointment sheets?
DAWN PLISZKA: Yes.
MR. BUTING: You actually prepare them sometimes yourself, too?
DAWN PLISZKA: Yes.
MR. BUTING: And how many photographers -- And you work in the Hales Corners office, right?
DAWN PLISZKA: I'm no longer employed there.
MR. BUTING: I'm sorry, back in October of 2005 --
DAWN PLISZKA: Yes.
MR. BUTING: -- you were -- Will you wait till I answer -- finish the question so that the reporter is not tripping over us here. October of 2005, you worked in Hales Corners?
DAWN PLISZKA: Yes.
MR. BUTING: And how many photographers did you deal with at that time, around the state?
DAWN PLISZKA: Probably around six.
MR. BUTING: Okay. And most of your communication with them was by email, or fax, or phone?
DAWN PLISZKA: Mostly by fax and phone.
MR. BUTING: Mostly fax and phone, okay.
DAWN PLISZKA: Yes.
MR. BUTING: In fact, did you ever meet Teresa Halbach?
DAWN PLISZKA: No, I did not.
MR. BUTING: You never met her face to face at all?
DAWN PLISZKA: No.
MR. BUTING: So your relationship with her, when you say you were close, it was just from phone conversations?
DAWN PLISZKA: From phone conversations, yes.
MR. BUTING: And these phone conversations were usually just a couple of minutes or so as you would -- because you had other duties, other calls coming in and all of that?
DAWN PLISZKA: Yes.
MR. BUTING: Okay. So you didn't really know much, personally, about her, other than what would be transmitted in these very brief phone calls?
DAWN PLISZKA: Yes.
MR. BUTING: All right. Now, this phone call that you got on October 31st, you knew the name -- you recognized the name Janda, J-a-n-d-a, right?
DAWN PLISZKA: That's what I could make out --
MR. BUTING: Okay.
DAWN PLISZKA: -- from what he had said.
MR. BUTING: And in fact, you know, then the man gave you the address and it was on Avery Road, right?
DAWN PLISZKA: Yes.
MR. BUTING: And you knew that the Jandas and the Averys were basically the same people, same area, right?
DAWN PLISZKA: No, I did not.
MR. BUTING: You didn't?
DAWN PLISZKA: No.
MR. BUTING: Were you interviewed by an Investigator Wiegert of the Calumet County Sheriff's Department about this incident?
DAWN PLISZKA: I'm not sure. I believe so.
MR. BUTING: Okay. Let's say at about 8:00 or 9:00 on November 3rd, that would be Thursday, do you remember getting a call from an investigator at the Sheriff's Department?
DAWN PLISZKA: Yes.
MR. BUTING: Yes?
DAWN PLISZKA: Yes.
MR. BUTING: And he asked you some questions of what you knew about this phone call on the 31st of October?
DAWN PLISZKA: Yes.
MR. BUTING: And did you tell him that you knew that the Jandas are basically the Avery brothers, that you have done -- they have done work for them before, but does not know why they give the name B. Janda; did you tell him that?
DAWN PLISZKA: No, I did not.
MR. BUTING: So if he wrote that in his report, he was just making it up?
DAWN PLISZKA: I did not know that it was -- she told me -- Teresa told me it was the Avery brothers. At the time I took the call, I had no idea who it was.
MR. BUTING: Okay. Exhibit 17, in front of you there, has an account number, right?
DAWN PLISZKA: Yes.
MR. BUTING: That's the Avery's account, isn't it?
DAWN PLISZKA: I believe that was one that I had just created for this lead.
MR. BUTING: So you created this as a whole new account?
DAWN PLISZKA: Because I couldn't find it in the records. I checked by phone number and the last name and I couldn't find the person in there -- or him in there.
MR. BUTING: I'm going to show you Exhibit 19, see if maybe this refreshes your recollection a little bit. Is that one of the appointment sheets that you, or somebody in your office, prepares and faxes to the photographers?
DAWN PLISZKA: Yes.
MR. BUTING: And at the very, very top, there's a little code that says run by?
DAWN PLISZKA: Yes.
MR. BUTING: And it says D. Plisz -- D. P-l-i-s-z-k, (sic) that would be you, right?
DAWN PLISZKA: Yes.
MR. BUTING: So you actually ran this report yourself?
DAWN PLISZKA: Yes.
MR. BUTING: On --In this particular instance, September 19th, 2005, right?
DAWN PLISZKA: Yes.
MR. BUTING: And the very first name listed there is Tom Janda, is it not?
DAWN PLISZKA: Yes, it is.
MR. BUTING: And the address there, would you read that off, please?
DAWN PLISZKA: It's -- I'm sorry I can't see.
MR. BUTING: I'm sorry.
DAWN PLISZKA: 12930A Avery Road.
MR. BUTING: Is that the same address that you have here on Exhibit 17, the photo shoot that you filled out on October 31st?
DAWN PLISZKA: Yes.
MR. BUTING: So, on October 31st, you did, in fact, know -- or those were records that you had taken an appointment for the Janda's on a prior date?
DAWN PLISZKA: That's not necessarily from me. There were three or four of us that would run appointment photos. It would depend. I ran the reports in the morning. I didn't necessarily read them thoroughly; I just would fax them out to the photographer.
MR. BUTING: (By Attorney Buting)~ If you would look at the screen right there; I'm showing you a zoomed in picture of this Exhibit 19. The date is September 19 of 2005, right?
DAWN PLISZKA: Yes.
MR. BUTING: And that is -- It does indicate that you ran that?
DAWN PLISZKA: I ran the report, but that does not mean that I had taken the original lead.
MR. BUTING: Sure. But you ran the report and the report included Tom Janda, the very first one, very same phone number, very same address, that you have in front of you on the October 31st exhibit, correct?
DAWN PLISZKA: No, the phone number is different.
MR. BUTING: All right. But the address is the same?
DAWN PLISZKA: Yes, but I didn't search by address in the system.
MR. BUTING: You just searched by phone?
DAWN PLISZKA: Right, because we had tried to get people off the phone as quickly as possible. So if I couldn't find it by phone number and last name, and for some reason it didn't come up in the system.
MR. BUTING: For some reason, but it should have because you did have a record of Janda's, correct?
DAWN PLISZKA: From what that is, yes.
MR. BUTING: Okay. And I realize it's been a long time, so you may not remember everything as well 15 months later, but the record speaks for itself.
MR. KRATZ: I'm going to object to this, it's argumentative. It says Tom Janda, not B. Janda, not the phone number. She's answered this. It's argumentative.
THE COURT: I don't know if it's argumentative, but the last thing the attorney said was a statement, not a question.
MR. BUTING: I will move on, Judge, sorry.
MR. BUTING: (By Attorney Buting)~ Now, you said that the same day appointments that would be called in, were unusual?
DAWN PLISZKA: Yes.
MR. BUTING: Not that unusual, though, they happened, right?
DAWN PLISZKA: Yes, they did.
MR. BUTING: You have a form that's made for that purpose?
DAWN PLISZKA: Or for reshoots, if someone had already had a photo, the same --
MR. BUTING: So particularly repeat customers who knew the photographer's route, knew what day they would be in the area; those are the kind of people that would call the same day. They knew they could still get in before the deadline?
DAWN PLISZKA: Sometimes. Sometimes people just weren't aware of the deadlines and they would see. We could have also ran it for a week, without a photo, and just extended his ad as well.
MR. BUTING: Okay. So, when you got this phone call, though, that morning, there was nothing that unusual about it, about getting this call from this gentleman saying he wanted a photograph taken of the car, was there?
DAWN PLISZKA: No.
MR. BUTING: Okay. And you just followed your regular routine, which is to call, in this case Teresa, leave a message with the name, address, see if she was available, right?
DAWN PLISZKA: I left the name and the phone number and the addresses, yeah; if she could make it that would be great, if not, we could always call the customer back and he was scheduled for the next week after.
MR. BUTING: And that's something that she had done before, right?
DAWN PLISZKA: Yes.
MR. BUTING: You had done same day ones with her, right?
DAWN PLISZKA: Yes.
MR. BUTING: And in your experience, it also would not be unusual that the person calling may not be the person who actually owned and selling the vehicle, right?
DAWN PLISZKA: Yes.
MR. BUTING: In fact, that very day, October 31st, there was a gentleman that called in, left the name, Sippel, I believe; does that ring a bell?
DAWN PLISZKA: No, it does not.
MR. BUTING: Well, you sent out --
MR. BUTING: Let me do this, let me mark this as an exhibit.
(Exhibit No. 20 marked for identification.)
MR. BUTING: (By Attorney Buting)~ Can you identify Exhibit 20 for us, please.
DAWN PLISZKA: This is one of the leads that would have printed because it was done before 24 hours. That would have been one of her normally scheduled leads for the day of the 31st.
MR. BUTING: Okay. And that was run by you?
DAWN PLISZKA: Yes.
MR. BUTING: Once again.
(Exhibit No. 21 marked for identification.)
MR. BUTING: And could you exhibit -- or identify Exhibit 21 also, please?
DAWN PLISZKA: That is also another lead; it appears to be the 29th of October.
MR. BUTING: And at the very top there is a fax date and time; do you see that?
DAWN PLISZKA: Yes.
MR. BUTING: What is it?
DAWN PLISZKA: It says 10/31, 2005, 0093 (sic).
MR. BUTING: So like 12:13 a.m.?
DAWN PLISZKA: Yes, this appears -- I think this is from Teresa because it says rescheduled for Monday.
MR. BUTING: Right. The handwriting. Let me just put these up on the screen for a minute, so we know what we're talking about. Exhibit 20 is the report that you did -- that you ran at 7:08 a.m. on Monday, October 31st, right?
DAWN PLISZKA: Yes.
MR. BUTING: And that's what you would have then faxed to Teresa for her schedule for the day, right?
DAWN PLISZKA: Yes.
MR. BUTING: And that only has one appointment on it, a Mr. George Zipperer, right?
DAWN PLISZKA: Yes.
MR. BUTING: But, in fact, you knew she had more than one appointment on that day, right?
DAWN PLISZKA: Yes.
MR. BUTING: And Exhibit No. 21, which I'm showing you now, is the report that you indicated she faxed on October 31st at 0013 hours, right?
DAWN PLISZKA: Yes.
MR. BUTING: And on that, this is actually an appointment scheduled for a previous day, Saturday, the 29th, I think, right?
DAWN PLISZKA: Yes.
MR. BUTING: On that, she wrote another appointment that was to be rescheduled for Monday, right?
DAWN PLISZKA: Yes.
MR. BUTING: And the name of that individual, can you read -- I don't know if you can read the first name, but the last name is Sippel, right?
DAWN PLISZKA: Yes.
MR. BUTING: So I have one other one I want to show you. I haven't marked this yet, but maybe you can tell me from looking at this; do you know what kind of a form this is?
DAWN PLISZKA: This is the actual lead form that prints along with their schedule.
MR. BUTING: So this is something that you prepare?
DAWN PLISZKA: Yes, or I edit it.
MR. BUTING: I better mark this actually.
(Exhibit No. 22 marked for identification.)
MR. BUTING: And this is Exhibit 22?
DAWN PLISZKA: Yes. This was the one I had originally done. And I believe I changed it for the Monday, the same day appointment for the 31st. I was originally going to schedule it for the following week.
MR. BUTING: Okay. But what's the difference between Exhibit 22 and Exhibit 17?
DAWN PLISZKA: She -- That wouldn't print until the next day. This one here, Exhibit 22, would not have printed until Tuesday.
MR. BUTING: Okay.
DAWN PLISZKA: Because that's why we usually don't do same day appointments, because they don't print until the following day.
MR. BUTING: Okay. So by print, you mean enter the information in your computer and do what? You fax within -- that's not what you fax to the photographers usually, is it?
DAWN PLISZKA: Yes.
MR. BUTING: It is?
DAWN PLISZKA: It is, yes.
MR. BUTING: Okay.
DAWN PLISZKA: They got that actually, as well too, so they could put information on there pertaining to the ad and then photo number and everything so it would match up.
MR. BUTING: Okay. And this, specifically, is for B. Janda, right?
DAWN PLISZKA: Yes.
MR. BUTING: Is that the address, 12930A Avery Road?
DAWN PLISZKA: Yes.
MR. BUTING: It's got phone numbers over there on the right, correct?
DAWN PLISZKA: Yes.
MR. BUTING: Even got information about the vehicle, 1989 Dodge mini van?
DAWN PLISZKA: Yes.
MR. BUTING: And that is to be -- What is it, run --
DAWN PLISZKA: Run till sold.
MR. BUTING: What does that mean?
DAWN PLISZKA: The ad will run until -- it will run as long as the person needs to, as long as they would have called every three weeks to renew it.
MR. BUTING: Okay. So, all of this information was given to you by the caller on October 31st at 8:12 a.m., right?
DAWN PLISZKA: Yes, it was.
MR. BUTING: Now, did you know that Mr. Avery had -- You did know that Mr. Avery had Teresa's direct phone number, right?
DAWN PLISZKA: No, I did not.
MR. BUTING: Were you aware that he had done a privately arranged shoot with her on October 10th?
DAWN PLISZKA: I wasn't -- Those are called hustle shots and I didn't have any information about those, so I wouldn't have known.
MR. BUTING: Well, let me show you a couple more exhibits.
(Exhibit No. 23 & 24 marked for identification.)
MR. BUTING: (By Attorney Buting)~ I'm showing you Exhibit 23; can you identify that, please.
DAWN PLISZKA: It's another -- It's one of her lead sheets. And it looks like it has -- I think that's her writing on there. This is when she was done with photos.
MR. BUTING: Right.
DAWN PLISZKA: She would fax them in so she could get paid for them.
MR. BUTING: Sure. I understand. And this one also was prepared by you?
DAWN PLISZKA: Yes.
MR. BUTING: Okay. And the date of this one is?
DAWN PLISZKA: 10/10/2005.
MR. BUTING: Okay. And what this does is this lists -- Well, let me put it up on the screen once and we'll talk about what it says. Can you also identify Exhibit 24?
DAWN PLISZKA: This appears to be one of the logs that the photographers did on their own, like a hustle shot, or maybe a call in or something that they would have written up themselves. So this is Teresa's writing.
MR. BUTING: That's looks like Teresa's writing?
DAWN PLISZKA: That looks like Teresa's writing, yeah.
MR. BUTING: And can you tell what date this is at all or where it came from or if it's in anyway associated with Exhibit 23?
DAWN PLISZKA: I really can't be certain.
MR. BUTING: Okay. Well, let me -- let me put them up on the bigger screen and we'll talk about them from there, please. All right. First, Exhibit 23, let's see here. This is the exhibit you mentioned you prepared on October 10th, right?
DAWN PLISZKA: Yes.
MR. BUTING: It's a little bit hard to see there, but there you go, October 10th. And this was a list of Teresa's scheduled appointments that had been made through Auto Trader on that day, right?
DAWN PLISZKA: Yes.
MR. BUTING: And there are just three -- Actually, looks to me like the second one is crossed off; it's a Robert Beaudry?
DAWN PLISZKA: Yes.
MR. BUTING: First one is Robert Beaudry; second one is Roger Pooegle, or something like that.
DAWN PLISZKA: Yes.
MR. BUTING: But Mr. Avery is not on here, correct? He was not a scheduled appointment that day?
DAWN PLISZKA: No, he was not.
MR. BUTING: Yet down below she has written Steve Avery, right?
DAWN PLISZKA: Yes.
MR. BUTING: And done, next to it, right?
DAWN PLISZKA: Right.
MR. BUTING: And, in fact, in your records, you are aware that -- that there's actually a photograph that she took, on that date, of a Pontiac Grand Prix, from Mr. Avery; are you aware of that?
DAWN PLISZKA: I wasn't certain of the vehicle; I did know she had an appointment on the 10th, but I wasn't sure of what the vehicle was.
MR. BUTING: Okay. So that was an appointment that she -- that Mr. Avery apparently arranged privately with her, rather than through your office, correct?
DAWN PLISZKA: It appears to be, yes.
MR. BUTING: And the hustle shot document that you are referring to -- let me zoom out first so the jury can see -- these are forms that the photographers have that they fill out or they may fill out if they are doing hustle shots?
DAWN PLISZKA: Yes.
MR. BUTING: Privately arranged shots, right?
DAWN PLISZKA: Yes.
MR. BUTING: In fact, it says at the top, private party, photo log, right?
DAWN PLISZKA: Yes.
MR. BUTING: I'm sorry, little hard to see. And in this she has got Steve Avery's name?
DAWN PLISZKA: Yes.
MR. BUTING: You recognize this to be her handwriting?
DAWN PLISZKA: Yes.
MR. BUTING: Because you have seen it many times. And then she also says Steve Avery, $45, paid cash, right?
DAWN PLISZKA: That looks like the account number 45800.
MR. BUTING: Oh, okay.
DAWN PLISZKA: That's the account number.
MR. BUTING: I'm sorry. Just says paid cash?
DAWN PLISZKA: Right.
MR. BUTING: And it lists the 1984 Pontiac Grand Prix, T-tops, and Oldsmobile engine, 5.0, make offer? And it has got a phone number, right?
DAWN PLISZKA: Yes.
MR. BUTING: So, would it be fair to say, then, that the records show Mr. Avery must have had some phone number for Teresa in order to make this private arrangement with her on that date?
MR. KRATZ: Objection, speculative, Judge.
THE COURT: I'm going to sustain the objection.
MR. BUTING: All right.
MR. BUTING: (By Attorney Buting)~ This is an example of these hustle shots that are made privately between the photographer and the customer, right?
DAWN PLISZKA: Yes.
MR. BUTING: And you know that that does happen frequently with photographers, correct?
DAWN PLISZKA: Yes, it does.
MR. BUTING: And that it did happen with Teresa?
DAWN PLISZKA: Yes.
MR. BUTING: In fact, more than just this one time we mentioned with Mr. Avery; there were many hustle shots she did, correct?
DAWN PLISZKA: Yes.
MR. BUTING: And when she would do those, you would have no way of knowing that she had gone to one of these private party hustle shots until she faxed back the report at the end of the day; isn't that right?
DAWN PLISZKA: Yes.
MR. BUTING: And, unfortunately, though, on October 31st, you never got a form back that said where she had gone, right?
DAWN PLISZKA: No.
MR. BUTING: So you don't know whether or not Teresa had any hustle shots, privately arranged shots on October 31st, do you?
DAWN PLISZKA: No, I do not.
MR. BUTING: And this phone conversation that you had with her at 2:27 p.m. you had some brief discussion and she said that she was on her way to the Avery's?
DAWN PLISZKA: Yes, she did.
MR. BUTING: She said the Avery brothers; is that what she said?
DAWN PLISZKA: She said the Avery brothers, yes.
MR. BUTING: She seemed very familiar with them?
DAWN PLISZKA: Yes, she did.
MR. BUTING: You don't know whether she meant she was on her way directly or whether she intended to make another stop before she got there?
DAWN PLISZKA: No, I do not. I just assumed -- She said she was on her way there right now, so, I assumed.
MR. BUTING: Okay. So, if she was not there for another hour, you don't know whether she would have made another stop, get a bite to eat, something like that?
DAWN PLISZKA: No, I would not.
MR. BUTING: Or if she had another hustle shot in between?
DAWN PLISZKA: No, I would not.
MR. BUTING: More importantly, you don't know whether after Mr. Avery, Teresa had a private hustle shot where she was going, where she was planning to go to, do you?
DAWN PLISZKA: She didn't mention it but, no, I did not.
MR. BUTING: And she wasn't in the habit of mentioning when her hustle shots were with you, right?
DAWN PLISZKA: Sometimes she would, sometimes she wouldn't, so.
MR. BUTING: Okay. Now, these hustle shots, by the way, sometimes they would be where she would go to a customer for one car and she would hustle a second one while she's there, right?
DAWN PLISZKA: Yes.
MR. BUTING: And, in fact, that happened in this Tom Janda case where she got two photos on the same date; September 19, right?
DAWN PLISZKA: I'm not certain.
MR. BUTING: All right. Well, that was something that happened and those were considered hustle shots too, right?
DAWN PLISZKA: Yes.
MR. BUTING: So, you don't know whether somebody hailed her as she was leaving Steven Avery's residence, somebody else on the Avery salvage property, a brother, customer, whatever, who hailed her and said, hey, let's take a picture, private hustle shot of another vehicle, do you?
MR. KRATZ: Judge, objection, that does calls for speculation.
MR. STRANG: My question was, she doesn't know, I'm trying to establish.
THE COURT: That objection is overruled.
MR. BUTING: (By Attorney Buting)~ Is that correct?
DAWN PLISZKA: I would not know.
MR. BUTING: All right. Now, just a couple of final -- one other point I want to make here. Since it appears that Mr. Avery had made a private hustle arrangement with Teresa Halbach in the past, you don't know of any reason why he couldn't have also done that on October 31st, do you?
DAWN PLISZKA: Unless he would have lost her phone number, no.
MR. BUTING: Okay. And, of course, if he was going to do that -- put it this way, if he had wanted to kill Teresa Halbach, he could have simply called her directly instead of calling your office and leaving a red trail -- easy trail right to his house, couldn't he?
DAWN PLISZKA: Yes.
MR. BUTING: Thank you. I have nothing further.
THE COURT: Mr. Kratz, any other questions?
MR. KRATZ: No.
THE COURT: Very well, you are excused.
Members of the jury, that takes us to noon, so we'll take our lunch break at this time and resume at 1:00. I will remind you, again, do not discuss the case or any of the testimony you have heard this morning or anything else about this case during the noon hour.
(Jury not present.)
THE COURT: All right. Counsel, are there going to be any other outside the presence of the jury matters to address this afternoon that you are aware of?
MR. BUTING: No, Judge.
MR. KRATZ: Not that I can think of.
MR. BUTING: I would and I should have, I move the admission of all those exhibits that I referred to, which are -- looks like 20, 21, 22, 23, 24.
MR. KRATZ: Well, 24 she said she couldn't identify, so we'll object to that. Doesn't seem that he posted it to the jury when she said she couldn't identify it, but it should not be received; it was not identified.
MR. BUTING: She did identify it as Teresa's handwriting. She identified it as a private party log that's used in their business. The only thing she couldn't identify was the date, but that will be linked up by the prior witness who testified that, on October 10th, 2005, a photograph was taken of that very car that's listed there --
THE COURT: Mr. Kratz.
MR. BUTING: -- which is Exhibit 16.
MR. KRATZ: I don't object to the relevance in that it appears to link up, but she couldn't identify it.
THE COURT: I think she identified some elements of it. The date, she couldn't identify, but that's by the nature of the exhibit; though, actually, I think the date's repeated again a little higher where it's easier to see. At any rate, I'm going to move all the exhibits.
MR. KRATZ: Thank you.
THE COURT: See you at 1:00.
MR. BUTING: At 1:00, you said?
THE COURT: Yes.
(Noon recess taken.)
THE COURT: At this time we are back on the record. Mr. Kratz, you may call your next witness.