5.Jury-Out Hearing on Remiker Disclosure

MR. STRANG: One thing I want to do is make sure the sound works. But, there were -- there were also three -- I thought there were three things to bring up, uh, out of the jury's presence with Detective Remiker. Turns out I -- I -- I've already talked to Mr. Kratz and checked one off that list.

I -- Mr. Remiker's report does not refer to finding a hair, a glove, or a fiber, and I just wanted to make sure that that -- that wasn't going anywhere, and it's not. Um, that's a non-issue I'm -- I'm informed by the State.

The two remaining issues -- I don't want to make a big deal about this. It wasn't, uh, worth interrupting the direct, but I -- I think when I explain them, Your Honor will understand why we need to do a little bit of, um, you know, correcting here, for want of a better word.

Um, we have -- Detective Remiker wrote reports. Fairly lengthy reports. And on November 4, 2005 we have his report of his meeting with Mr. Avery, and, uh, he recounts Mr. Avery as stating then that the -- the female subject has been on the property numerous times.

Now, today, it -- what we heard today was Steve said that she had been in the residence. That gets to be -- you know, the witness wouldn't have known that necessarily, but that gets to be a fairly significant difference and, um, I -- I -- I expect he did not mean to alter or deviate from his report, um, if -- if he did, and that -- and that's an all together different statement, um, than the one disclosed to us.

Again, I'm assuming it's -- what he meant was Mr. Avery said she'd been on the property. Um, but, you know, the Court's -- the Court's heard the evidence, under -- understands the importance of the distinction of statements.

Um, and then, um, we have his report on the November 6 search where he -- he's asked to retrieve the guns and the vacuum cleaner. And the report, in fact, says -- this is page 15 of the 24-page Manitowoc County, uh, report. Re -- report says that they collected the entire vacuum cleaner.

Today what he says is, I don't remember if it's a vacuum cleaner, or a carpet cleaner, or carpet shampooer. I don't remember if it's a shampooer or cleaner. But he's, you know -- he's now offering the possibility that this wasn't a normal vacuum cleaner, but was a -- a carpet cleaner, and I'm assuming in the sense of suggesting something wet.

Um, the potential importance of that is obvious and, you know, our belief is that this was just a vacuum cleaner, and I thought maybe we ought to take these two points up out of the jury's presence and try to streamline, um, the cross and not create any more problems than we have to.

As I say, the third point I've already cleared up with Mr. Kratz.

MR. STRANG: Thank you, Your Honor. Um, we -- we've addressed, um, a number of issues here in the break, and I appreciate the Court's consideration. The, um -- the witness, Detective Remiker, testified on direct examination by the State to a statement of the defendant that was not disclosed, uh, in discovery materials to the defense, uh, so created a problem of non-compliance with Section 971.23 (1)(b).

However, um, the State -- the State, meaning the prosecution team, also did not have that statement. Uh, for whatever reason the Manitowoc County Sheriff's Department did not share with the prosecution this statement or the report document.

Uh, we -- we now, uh, have been able to obtain copies of that report. Both sides have it. Um, taking the whole of Detective Remiker's testimony in context, uh, the defense is not moving for a mistrial. Um, we discussed that with Mr. Avery. Uh, I believe he understands why we're not seeking a mistrial and accepts that decision.

Uh, collaboratively with the prosecutors, uh, we have agreed on a curative measure, uh, that we think will suffice here in these circumstances, and, um, of course, that handles today's issue.

If -- if, uh, an issue of an undisclosed statement of the defendant elicited by the State should arise again, we, of course, may be in a position of seeking other relief. But, uh, I think we've addressed today's issue, um, with the time that we've had and I appreciate it.