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READ IT: Transcript of former Kenosha Police Officer Kyle Baars testimony in Kenosha County Court

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STATE OF WISCONSIN: CIRCUIT COURT: KENOSHA COUNTY

STATE OF WISCONSIN, Plaintiff, CASE NO. 14-CF-450

PARTIAL TRANSCRIPT: JOSEPH-JAMAL R. BRANTLEY JURY TRIAL Day 6

THE HONORABLE BRUCE E. SCHROEDER: JUDGE PRESIDING

APPEARANCES:

ATTORNEY ROBERT ZAPF, District Attorney, appeared on behalf of the State of Wisconsin.

ATTORNEY CHRISTOPHER GLINSKI, Attorney at Law, appeared on behalf of the defendant, who appeared
in person, in custody.

DATE OF PROCEEDINGS: March 2, 2015

The following is a partial transcript of proceedings, to wit, testimony of Mr. Kyle Baars, former City of Kenosha police officer, to wit:)

(The following proceedings were had outside the presence of the jury, to wit:)

THE COURT: All right. The appearances are as before, and copies of the email correspondence from the weekend will be put in the file for the record. Where are we at?

MR. ZAPF: Judge, it’s my understanding that the Court had ordered that three subpoenas be authorized for Assistant Chief Miskinis, Lieutenant Brad Hetlet, and former Kenosha police officer, Kyle Baars. My understanding is that they have received their subpoenas and that they are present. Prior to going on the record, I was informed by Attorney Mark Richards, on behalf of Kyle Baars, that the defense wanted to place or put Officer Baars on the stand and testify, and Attorney Richards informs me that his client has decided that he will testify. So I believe that at this point my understanding is that the defense intends on calling Kyle Baars to the stand with regards to the issue of dealing with the photograph depicting a Markese Tibbs ID and the .22-caliber bullet and the backpack.

THE COURT: All right. Is that your understanding?

MR. GLINSKI: That is my understanding, Judge. Also, with regard to the limiting instruction or instruction to the jury about the fact that the defense was not advised that the .22-caliber bullet had been placed at the scene, the fact that the defense was not advised of that fact until Friday, I believe Mr. Zapf does not have an objection to a jury instruction stating that. So I think we’re in agreement that the instruction should be given. I guess it comes down to what the actual wording of the instruction will be.

MR. ZAPF: That’s a fair statement. There was some language that we would object to, but I think if the Court is inclined, we would agree that an instruction would be appropriate.

THE COURT: All right. Either that or a stipulation.

MR. ZAPF: I offered a stipulation. Counsel is not willing to do that.

MR. GLINSKI: No stipulation.

MR. ZAPF: I apologize. My stipulation was with regards to the anticipated testimony of Kyle Baars.

THE COURT: No, I’m talking about a — if you want to stipulate that the defense did not become aware — well, and the state of awareness of either side or both of this particular information, if you want to do a stipulation on that as opposed to an instruction? It just seems to me that it would lend itself better to a stipulation than an instruction.

MR. GLINSKI: We can do it in the form of a stipulation.

THE COURT: Let’s do that. I think it would be better, if you’re willing to do that.

MR. ZAPF: I would consider that, yes.

THE COURT: All right. Well, let’s worry about in the meantime. Right now, who’s your next witness?

MR. GLINSKI: Mr. Baars.

THE COURT: All right. Ready to go?

MR. GLINSKI: Yes.

MR. RICHARDS: Your Honor, I would bring my client in — This is Attorney Mark Richards. I would bring my client in. Obviously, there was some off-the-record discussions with Mr. Glinski and District Attorney Zapf. I would just ask the Court to make a record that my client understands he has a Fifth Amendment right and he’s not asserting it, just so there is no problem to happen.

THE COURT: Okay.

MR. RICHARDS: I’ve discussed it with my client and explained his options, but I think that would be the standing.

THE COURT: That’s fine.

MR. ZAPF: Judge, I would also inform the Court, as I informed counsel and Kyle Baars, that there — the State is considering the matter to be further reviewed, and so he may be aware that there may be potential criminal liability that may exist out there, just that he was aware of that before he took the stand and testified.

THE COURT: Okay. You can have a seat for a moment, sir.

MR. BAARS: Sure.

THE COURT: Would you state your name, please?

MR. BAARS: Kyle Baars, B-A-A-R-S.

THE COURT: Now, it’s reported to me that you’re intending to testify in this case. There has been certainly the suggestion raised that you may have committed unlawful acts, and that you will be questioned about those specific acts here in this trial. You’re under no obligation to answer those questions if you don’t want to.The Constitutions of both the United States14 and this state provide that a person cannot be forced to give evidence against himself either in his own trial or at any other time. And if you wish, you are welcome to simply state that you do not wish to answer any questions that might tend to incriminate you. Once you start answering questions — Well, I’m not going to go into that. Do you understand that you’re not obliged to testify?

MR. BAARS: I understand.

THE COURT: And have you had enough time to discuss this matter with your lawyer?

MR. BAARS: I have.

THE COURT: And what have you decided to do?

MR. BAARS: I want to cooperate and testify.

THE COURT: Okay. Any additional questions anybody wants to ask? The district attorney has actually stated that this may be reviewed further for the possibility of a criminal prosecution. Do you understand that?

MR. BAARS: I understand.

THE COURT: Okay. Anything else?

MR. ZAPF: Nothing.

MR. GLINSKI: No.

HE COURT: Mr. Richards?

MR. RICHARDS: No, Your Honor. I’ll just sit back here.

THE COURT: Thank you. I’m going to call the jury down then.

(Whereupon, Court places call to jury room.)

JUROR: Jury room.

THE COURT: Would you come down, please?

JUROR: Yes.

(The following proceedings were had in the presence of the jury, to wit:)

THE COURT: Good Monday, folks.

JURY: Good morning.

THE COURT: Let’s continue. This is the defense. Mr. Glinski?

MR. GLINSKI: The defense calls Kyle Baars.

THE CLERK: Stand, please. Raise your right hand. (The witness is sworn.)

DIRECT EXAMINATION BY MR. GLINSKI:

Q: Mr. Baars, would you please state and spell your name for the record.

A: Sure. First name is Kyle, K-Y-L-E. Last name is Baars, B-A-A-R-S.

Q: Mr. Baars, were you previously employed by the Kenosha Police Department?

A: Yes.

Q: And how were you employed by the Kenosha PoliceDepartment?

A: I was a police officer.

Q: How long were you a police officer with the Kenosha Police Department?

A: Over three years, like three years, four months, five months, something like that.

Q: Did you resign from your position as a police officer in January of this year?

A: Yes, January 18th, I believe.

Q: And did you resign as a result, at least in part, from misconduct that you engaged in while investigating the shooting that occurred on April 14, 2014?

A: Yes.

Q: And, more specifically, did you resign as a result of your misconduct while searching 1208 59th Street?

A: Yes.

Q: Now, I want to take you back to April 14, 2014. Do you recall that date?

A: Yes.

Q: Were you working as a police officer for the Kenosha Police Department on that day?

A: Yes.

Q: Did you participate in the investigation of a shooting that occurred on April 14, 2014, near 58th Street and 11th Avenue in Kenosha?

A: Yes.

Q: As part of your investigation, did you go to 1208 59th Street on the night of the April 14, 2014?

A: Yes. Or early morning the next day. I’m not sure what the time was.

Q: Do you recall what time you initially arrived at 1208 59th Street on April 14, 2014?

A: I would have to review my report. I’m not sure.

Q: Mr. Baars, I’m going to show you a document. Do you recognize that document?

A: Yes.

Q: And what is that document?

A: This appears to be my police report from the investigation.

Q: Do you believe that reading at least a portion of that document would refresh your recollection as to what time you arrived at 1208 59th Street on April 14, 2014?

A: It doesn’t — That’s not the time I arrived there. It doesn’t explicitly state when I arrived on the scene. I believe it would have been the early morning hours of the next day.

Q: Does it state what time you responded to the scene?

A: That’s the time I responded to 65th and Sheridan. I didn’t document what time I arrived at 1208 59th Street, the 1200 block of 59th Street.

Q: Okay. So on April 14, 2014, you first went to 65th and Sheridan; is that correct?

A: That’s correct.

Q: And what time did you respond to that scene?

A: At approximately 22:59.

Q: So it would almost be eleven o’clock?

A: Yes.

Q: Okay. And then later that night or early the next morning, you did respond to 1208 59th 11th Street; is that correct?

A: Yes.

Q: At some point on the morning of April 15, 2014, were you assigned to guard the residence of 1208 59th Street?

A: Not that morning, no.

Q: Officer, I’m going to show you another report — I’m sorry — another document. Do you recognize that document?

A: Yes.

Q: And what is that document?

A: That appears to be a supplementary report I wrote.

Q: Would you please briefly read that report to yourself, and after you finish let me know when you’re done.

A: Okay.

Q: I’m going to take that document back from you. Does looking at your report refresh your recollection as to whether you ever guarded the residence at 1208 59th Street?

A: Yes.

Q: Okay. And is it true that you did, in fact, guard the residence at 1208 59th Street?

A: I did, but it wasn’t in the morning of the 15th. It was later — on my next shift, later that evening, the 15th.

Q: So it was on April 15, 2014?

A: Yes, in the evening.

Q: Okay. Do you recall what you did when you first arrived on the scene of 1208 59th Street on April 14, 2014?

A: On the night of the 14th when I arrived, I observed an officer standing outside the residence with a subject who appeared to be in handcuffs. I stopped my squad car to see what was going on or what he was doing.

Q: And did you have contact with a person by the name of Markese Tibbs?

A: Yes.

Q: Did you transport Mr. Tibbs to the police station?

A: Yes.

Q: And after you transported Mr. Tibbs to the police station, did you then return back to 1208 59th Street?

A: No.

Q: Okay. At some point did you return back to 1208 59th Street?

A: It would have been later that day on my next shift. It wasn’t the same shift. It was a different — my shift for that day, later that evening.

Q: And when you returned back to 1208 59th Street, did you participate in a search of that residence?

A: Yes.

Q: And did you search one of the bedrooms at 1208 59th Street?

A: I assisted, yes.

Q: During that search, did you falsely report that you recovered a .22-caliber bullet and an ID card from Markese Tibbs?

A: Yes.

Q: And did you know at that point that your actions caused other officers to believe or you had implied that those items were located by you in that bedroom?

A: Yes.

Q: Now, in November of last year, do you recall contacting Detective Kenesie and stating that you had made a mistake on April 15, 2014?

A: I originally contacted him about it in October, but I also talked to him in November.

Q: And did you tell Detective Kenesie that you, in fact, had Mr. Tibbs’ ID card in your pocket before you arrived to search 1208 59th Street?

A: Yes, that’s accurate.

Q: Did you plant Mr. Tibbs’ ID at the scene of 1208 59th Street?

A: Yes.

Q: And did you allow that ID card to be photographed and collected as evidence even though you had planted that card at the scene?

A: Yes.

Q: And did you also say that you had recovered a .22-caliber bullet in a blue backpack on April 15, 2014, in that same bedroom?

A: Yes. On the 15th. You said the 14th or 15th?

Q: April 15th.

A: April 15th, yes.

Q: Is that correct?

A: Yes.

Q: And that was a lie?

A: It was inaccurate.

Q: Did you lead other officers to believe that you had recovered that .22-caliber bullet from a bedroom at 1208 59th Street?

A: Yes.

Q: And is the truth in fact that you planted that .22-caliber bullet in the bedroom at 1208 59th Street?

A: Yes.

Q: Were you ever charged with a crime for planting evidence in this case?

A: No.

MR. GLINSKI: I have no further questions.

THE COURT: Mr. Zapf?

CROSS-EXAMINATION BY MR. ZAPF:

Q: Can you tell the jury how you came in possession of Mr. Markese Tibbs’ ID?

A: I believe it was when I transported him from the 1200 block of 59th Street to the jail — or I’m sorry — not the jail — to the police department Detective Bureau. I’m not sure at what point — at what time I retrieved that ID, but I believe that’s when I obtained his ID, so at some point during the transport or when I was securing him in the Detective Bureau.

Q: So that ID was on your person when you had searched the residence — Markese Tibbs’ ID was on your person or in your possession when you searched the residence at 1208 59th Street?

A: Yes.

Q:  The bullet that you are referring to, that was a .22-caliber bullet?

A: Yes.

Q: Do you know where the .22-caliber bullet got into your possession?

A: I believe I put it in my pocket before work that day.

Q: Do you know where that came from?

A: My house, my residence.

Q: Did you have any dealings with Joseph Brantley during the course of this investigation?

A: No, I do not believe I did.

MR. ZAPF: No further questions.

THE COURT: Any questions?

MR. GLINSKI: No.

THE COURT: You may step down.

THE WITNESS: Thank you, sir.

THE COURT: Mr. Glinski?

MR. GLINSKI: At this time the defense rests.

THE COURT: Mr. Zapf?

MR. ZAPF: We have nothing further.

THE COURT: Okay. Folks, the evidence is closed; however, it’s not appropriate for you to discuss the case even with the evidence closed. We’re going to attend to some legal matters down here, and I’ll be giving you some instructions after that, and then we’ll hear the final arguments of the lawyers. So please don’t talk about the case during the break. I’m hoping we’ll start at 10:00, but I’m not going to guarantee that. Please don’t talk about the case.

(Jury excused from courtroom.)

(The following proceedings were had outside the presence of the jury, to wit:)

THE COURT: Do you gentlemen want to talk about either an instruction or a stipulation and report back to me as soon as possible?

MR. GLINSKI: Okay.

THE COURT: We’re done.

(Discussion had off the record between Attorney Zapf and Attorney Glinski.)

MR. ZAPF: Judge, we reached a stipulation. I would like to place it on the record for the Court’s approval.

THE COURT: Go ahead.

MR. ZAPF: Thank you. The proposed stipulation between the parties reads as follows: The parties, Attorney Glinski and the State by DA Zapf, stipulate that the defense was not informed that the .22-caliber bullet placed into evidence was planted by former Kenosha police officer, Kyle Baars, until the morning of Friday, February 27, 2015.

THE COURT: Is that an agreeable stipulation?

19 MR. GLINSKI: I would just ask that we move the date, February 27, 2015, to the first part of the stipulation where it says the defense was not informed until February 27, 2015, that the .22-caliber bullet recovered was planted by Officer Kyle Baars. I think it’s more clear that way.

THE COURT: Is that satisfactory, Mr. Zapf?

MR. ZAPF: I will make the amendment.

I, Pamela S. Delany, a Registered Professional Reporter in and for the State of Wisconsin, hereby certify that the foregoing 19 pages comprise a true, complete, and correct transcript of the proceedings had at the Jury Trial held before the Honorable Bruce E. Schroeder, Branch 3, on March 2, 2015, at the Kenosha County Courthouse, Kenosha, Wisconsin. In witness whereof I have hereunto set my hand this 4th day of March, 2015.

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