"Hey Mark, it's RJ with TruAssets, um, I'm calling in regards to 1625 County Highway C in Town of Fell or Piel, excuse me. Um, I, I need a statement from you as, um, someone's saying that reports of personal property have been taken from or, excuse me, personal items have been taken from this property and we need to provide a statement of the last time we were at the property and what we were there for. If you can go ahead and give me a call back and maybe, you know, you seen something or someone else taking personal property or if we did a trash out and you accidentally removed this stuff, I do need to know. Ah, give me a call. #602-812-7582. Thank you. Bye."
12/5/2017 7:29:00 AM Post-conviction motion denied
in murder scene break-in case
A 40-year-old Kaukauna man convicted in August 2016 of illegally taking property from the town of Piehl home where a Rhinelander teenager killed her parents in 2015 was in court Nov. 29 seeking a new trial.
Attorneys for Mark F. Spietz filed a motion for post-conviction relief Nov. 20 arguing that new evidence in the form of a voice mail and call log recently recovered from the defendant's cellphone would have demonstrated to the jury that he had tried to get updated instructions on how to proceed in his job securing the property.
Following a two-day trial in late August 2016, Spietz was found guilty of three counts of burglary and one count of theft between $5,000 and $10,000.
District attorney Michael Schiek proved to the jury that Spietz entered the home where Ashlee Martinson killed her mother Jennifer Ayers and her stepfather Thomas Ayers on March 7, 2015 and took numerous items including ATVs, lawn mowers, compound bows and even Jennifer Ayers purse containing her identification, credit cards and a checkbook.
Spietz maintained that he did so under a work order from TruAssets, a Scottsdale, Ariz. company which secures abandoned or foreclosed properties for banks.
The work order that was entered into evidence at trial said Spietz was not to take any property from the Ayers house.
At trial, defense attorney Brian Bennett tried to show that TruAssets would often not send changes to work orders to employees until much later, if at all. Spietz testified that he would sometimes arrive at properties and realize work would need to be done that exceeded the scope of the work order. He would then contact the company and receive verbal authority to do the additional work.
Spietz also testified that he tried to get updated instructions on how to handle the Ayers' home, but never heard back from the company.
Following the guilty verdict, Oneida County Circuit Judge Mike Bloom sentenced Spietz to 18 months probation and 30 days in jail, either in Oneida County or his county of residence.
At the Nov. 29 motion hearing, appellate attorney Greg Petit told Bloom that Bennett was able to obtain Spietz's cellphone from the Oneida County Sheriff's Department just before the start of the trial. However, when he performed a cursory check for any voicemails, text messages or records of any other communication from TruAssets, he was unable to locate any.
He added that a computer forensic expert recently located a voicemail message from the company on the phone. A call log was also generated that showed 65 calls to and from the cellphone to phone numbers associated with the company.
In his motion for post-conviction relief, Petit argued that if this information had been available to Bennett during the trial the jury might have found Spietz not guilty since it would have shown that it was not the defendant's intent to burglarize the house and steal the property, but to secure it as he was instructed to do.
"In this matter, the conviction of the defendant Mark Spietz can best be attributed to his inability to show what his specific orders from the employer, TruAssets, were concerning his entering and taking of items from the residence," the motion said. "The theory of defense that Spietz argued at trial was that Spietz had previously done work for TruAssets (and similar companies) on a number of occasions, that at times the contracts were less than clear, that many times verbal or electronic instructions were given, and that sometimes paperwork (or electronic communication) would follow and sometimes it didn't. TruAssets business practices, and the nature of this line of work, was at times sloppy and an 'on the fly' proposition."
The motion went on to say that because the company was often miles, or in this case, states, away from where the work was being performed, the rules its employees had to follow were flexible. These people with "boots on the ground" were in charge of decision making when it came to securing, removing and storing of assets removed from properties, the defense argued.
"The real controversy in this case wasn't whether entry took place to the property and whether items were removed from the property, but what Spietz's intent was in entering and then removing the property. What wasn't contested at trial was whether any of the items removed from the residence were ever sold, transferred or otherwise moved out of the possession of Spietz while he awaited further orders," the motion said.
After Spietz waived his right to attorney/client privilege, Petit called Bennett to testify at the Nov. 29 hearing. The defense attorney detailed his attempts to get his client's cellphone from the sheriff's department, finally resorting to having Bloom sign an order directing its release. He said he received it on Aug. 18, 2016, six days before the start of the trial.
Under questioning, Bennett said he did a "cursory examination" of the phone looking for emails, texts and other data "but nothing of evidentiary value turned up." He also admitted he did not have the phone checked by a forensic expert.
"And I doubt you would have had time to get that done in that time period," Petit said.
"No, I would not have," Bennett replied.
Under cross-examination by Schiek, Bennett admitted that he had told the district attorney that he had attempted to contact TruAssets numerous times before the trial for information that might assist in Spietz's defense.
"In your efforts to do that, were they ever able to provide any documentation to you about any attempted or contact that they had with Mr. Spietz or he had with them?" Schiek asked.
"TruAssets provided me with absolutely nothing," Bennett replied.
He went on to testify that he was often "rebuffed by them" in numerous attempts to talk to anyone with the company.
Petit then called Spietz to the stand. He, too, admitted that he couldn't find any data that would help Bennett defend him. He also testified that he had worked for two firms similar to TruAssets and said they had the same method of changing work orders over the phone, expecting those in the field to decide how best to secure the property.
Bloom noted there is a problem with some of the items that Spietz removed from the home, which included Jennifer Ayer's purse, credit and debit cards, identification and social security cards.
"He also became aware, before law enforcement came a knocking, that a double homicide had occurred at this residence, which is something that was covered at trial," Bloom said. "That was a blinking light with bells and whistles that there was a problem here. And the absence of a response to that stimulus was relevant; it meant something. And it is my belief that the jury looked at that."
Bloom also said that Spietz did not have all of the property he had removed from the house stored together in one place as would be expected of someone who was awaiting further instructions from his employer.
The judge then ruled that the information recovered from the phone was new information, however he was unconvinced it would have changed the verdict.
"I'm finding that this evidence wouldn't have changed the lay of the land, and arguably, it provides more evidence for the state," Bloom said.
Petit said he would confer with his client to see if he wants to take the case to the Wisconsin Court of Appeals. In the meantime, Spietz's jail sentence has been stayed.
Petit filed a motion April 13 asking Bloom to overrule Oneida County Sheriff Grady Hartman's refusal to let Spietz serve his jail sentence in his home county. However, Bloom said that decision is within the sheriff's authority and he would not overrule it.
Jamie Taylor may be reached via email at firstname.lastname@example.org.
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