Defense contests reliability of tapes

By KURT NESBITT

Journal Staff Writer

NEW ULM -- The state's case against a Hanska man accused of molesting a minor could get dismissed if the Brown County District Court grants defense attorney Robert Docherty his client's wish.

Docherty represents Christopher Lee Konakowitz, 20, who is charged with one count of criminal sexual conduct in the first degree for sexual acts he allegedly committed with a five-year old child. Court documents said Konakowitz was living in the victim's mother's house at the time of the alleged incident. He was charged on Dec. 18, 2001 and was released about one month later after posting a $10,000 conditional bond.

Since his release, he has been subject to tracking with a global positioning system and a court order for protection barring him from coming within two blocks of the victim's home or school.

Konakowitz appeared in court Wednesday for a contested omnibus hearing. During the hearing, the court heard testimony from the victim's mother, the mother's boyfriend and the Brown County child protection worker who handled parts of the investigation into the alleged abuse.

Questioning centered around two videotapes. One was made on the day that alleged abuse was reported and the other was made on following day.

The first tape was made by the victim's mother after the victim revealed that the alleged act had happened. The victim offered the information to the mother in early evening hours.

The second tape was made by the child protection worker one day later. Both tapes are said to contain interviews with the victim and detail the alleged molestation.

The tapes were submitted as evidence by Assistant Brown County Attorney Clark Tuttle.

During Wednesday's court session, Tuttle questioned witnesses on how and why the tapes were made.

The victim's mother and mother's boyfriend explained to the court that they videotaped a conversation with the victim about Konakowitz's alleged sexual activities because they "wanted to make sure the evidence was preserved," according to the mother's boyfriend.

After making the tape, they called the New Ulm Police Department and made a report. They later turned their tape over to police.

Docherty responded by questioning the reliability of the first videotape. Under Docherty's questioning, the mother's boyfriend admitted drinking alcoholic beverages before the tape was made and then admitted he wasn't trained to gather evidence.

Tuttle later called Claudia Lewandowski, a Brown County child protection worker, to the stand.

Lewandowski interviewed the victim one day after the alleged incident occurred. She briefly explained the five steps social workers use during interviews with children who are said to be the victims of sexual crimes.

Lewandowski said her interview with the victim was videotaped through a one-way mirror and was the first time she and the victim spoke.

Docherty responded by asking Lewandowski if she thought consuming alcohol was appropriate before an interview with an alleged sexual crime victim.

Lewandowski simply replied, "No."

Docherty then questioned if consuming alcohol would affect the outcome of a conversation; Lewandowski confirmed it would.

When Docherty asked her if children can be coached by adults into giving certain answers, Lewandowski said children can be coached, but aren't necessarily more susceptible to coaching than adults.

"You can tell more easily with children," she said after the hearing ended.

Lewandowski told the court she knew of the videotape the victim's mother and her boyfriend made the night before, but said she didn't see it.

Tuttle and Docherty rested their cases after Lewandowski's testimony.

Docherty then made a motion to dismiss the case on the grounds that it lacks probable cause, saying the victim's statements on both of the tapes "might have been influenced" and "might not be reliable," according to court documents.

Docherty also asked the court to release Konakowitz from the global positioning system because it causes him problems at work and Konakowitz "does not intend to have contact with the mother or the victim as he feels it is unnecessary," Docherty said. Konakowitz is also under a restraining order that prevents him from having contact with the victim and the mother.

Tuttle replied, "The state opposes the request. (Konakowitz) opposes it because it's working. That seems to be the reason Mr. Docherty opposes it."

After conferring with the victim's mother, Tuttle told the court she has concerns with releasing Konakowitz from the tracking system, but hasn't had any problems with him since his first court appearance, Tuttle said.

Judge John Rodenberg decided to keep Konakowitz on the GPS, but also said he will consider Docherty's motion and expects to issue a decision by March 26.

If Docherty's motion succeeds, the state may drop its case. And if it fails, the case may go to trial.

If convicted, Konakowitz faces a maximum sentence of 30 years in jail and a $40,000 fine under Minnesota state criminal statutes.