Judge rejects defense
motion to dismiss

[What follows is a ruling issued by Dane County Circuit Court Judge Gerald Nichol on Feb. 10, 2003, rejecting a defense motion to dismiss charges against Joseph Bong.]

STATE OF WISCONSIN
CIRCUIT COURT BRANCH 9
DANE COUNTY

Case No. 02 CF 1166

STATE OF WISCONSIN,
Plaintiff,
vs.
JOSEPH J. BONG,
Defendant,

This matter is before the Court on the Defendant’s motion to dismiss the complaint/action based upon Franks v. Delaware, 438 U.S. 154 (1978), State v. Marshall, 92 Wis.2d 101 (1979) and State v. Mann, 123 Wis.2d 375 (1985).

In counsel’s affidavit supporting the motion he sets forth information, known by the authorities but not included in the criminal complaint. The claim is that if the omitted information was included in the complaint, an independent magistrate would not find probable cause and the charge would be dismissed.

Briefly, the facts in the case as plead show the following:

The alleged victim reported to authorities she was sexually assaulted in the bedroom of her residence in the early morning hours of September 4, 1997; she was awakened by a stranger who was holding a knife to her neck. It was dark and she never got a good look at the assailant; the victim is also sight impaired and legally blind; the assailant had rectal and vaginal intercourse with the victim and had her perform fellatio on him; the assailant had conversation with the victim which indicated he was familiar with her and her family; immediately after the assailant left the scene, the victim contacted the police who responded and collected evidence including the bed sheets; in June of 2001 the State Crime Lab through testing Defendant; and the criminal complaint against the Defendant was

signed on April 29, 2002.matched the semen stains on the bed sheets with the DNA of the Defendant; and the criminal complaint against the Defendant was signed on April 29, 2002.

The omitted facts from the affidavit of counsel are from police reports. The state filed nothing with the Court to indicate that the facts did not occur. These are as follows:

The victim recanted her sexual assault report on October 2, 1997 at the Madison Police Department Detective Bureau; the investigation was dropped by authorities, reopened again in 1999, but no complaint was issued; the victim told parties that she thought she recognized the voice of the assailant to be that of her daughter’s boyfriend Dominic Pena; and that the victim’s daughter had sexual intercourse with the Defendant.

None of the additional facts, if included in the complaint, persuade the Court that there should be a Franks hearing and the complaint should be dismissed. At this juncture it is not credibility, but plausibility. The four corners of the complaint and the reasonable inferences to be drawn there from support findings of probable cause of the crimes charged.

The fact the victim recanted, which is not all that uncommon in these types of cases, is an issue of credibility for the jury to decide. Because it was dark and the victim sight impaired, she could not make an identification of the assailant, so the fact the victim thought the voice of the assailant sounded like her daughter’s boyfriend, doesn’t defeat the Court’s finding. Finally, the fact the victims daughter had intercourse with the Defendant, does not negate the evidence of the Defendant’s semen being on the bed sheets of the victim and taken as evidence from the crime scene shortly after the incident happened.

For these reasons, the motion is denied.

Dated this [10th] day of February, 2003.

BY THE COURT:

Gerald C. Nichol, Judge
Circuit Court Branch 9

[End of document.]