The State's Burden of Proof: 2 Cases 25 Years Apart

by Susan Murphy Milano

Robert Dianovsky maintained that his wife Peggy left their home voluntarily and took a bag of clothing with her when she vanished in September of 1982. Peggy Dianovsky left her yellow Chevrolet Nova behind and never picked up her last paycheck from her employer, Dominick's. Blood was found spattered at the top of the stairway in the Dianovsky home, but none of it was ever collected for analysis.

Robert took the boys and moved to Arizona sometime after 1982. He also filed for divorce, claiming Peggy abondoned him and the children. He was charged in 2003 with Peggy's murder. Their three sons went to the police in 2002 after tape recording a conversation with Robert where he made suspicious statement about Peggy's disappearance. One of the Dianovsky children says he witnessed his mother's murder, and all three of them say they saw Robert abuse and threaten Peggy. They claim they repressed the memories of the events but recovered them in therapy sessions as adults. One of Robert's friends also testified that Robert asked him for a gun in 1982 to "get rid of" Peggy. Robert also claimed his wife was having an affair.

In all, six hours of audio were taped when Dianovsky's three sons confronted and accused him of their mother's murder. The sons contend their father killed Peggy Dianovsky on September 12, 1982, in their Schaumburg, Ill., home during a brutal beating.

On the tapes, the accused man says, "I hit her pretty good." He also admits to previously saying his wife would never get out of the marriage alive. Dianovsky also said that he cut off his wife's tennis clothes in a jealous rage, and that his grown sons can tell their kids, "Your dad did something to her."

The trial took place in Cook County, Illinois, before a judge rather than a jury. Judge Robert Porter acquitted Robert after an eight-day trial in November 2004. He stated that Peggy probably had in fact been murdered after her disappearance, but there was insufficient evidence to prove that Robert did it.

The relevance of the Robert Dianovsky case, in my opinion, is important in the upcoming Drew Peterson trial as it pertains to evidence, as well as the State's burden to prove that Peterson murdered Kathleen Savio. Drew Peterson is awaiting trial for the murder of Kathleen Savio, his third wife. The State in this case is working on the admittance of hearsay testimony. Below is my explanation of hearsay as it would apply to the Peterson case.

Hearsay is an out-of-court statement "offered for the truth of the matter asserted" and is not subject to cross-examination, typically because the declarant or speaker is unavailable. This applies to Stacy Peterson because she is not "available." Such statements are deemed unreliable because of the obvious fact that they can easily be fabricated and can not be tested through cross examination.

One basic way to get around hearsay is to seek admission, not for the truth of the statement itself, but for another highly relevant purpose. For example, let's say I am charged with intentionally shooting my daughter's boyfriend (which is not beyond the realm of reason) while the two of them are harmlessly playing tie-up. Prior to bursting into the room and firing, I was told by her ex-boyfriend that the new guy was in the process of raping her. My defense is not intentional murder, but, rather, manslaughter because I believed the ex, who has since fled to Costa Rica and is unavailable at trial. Here I would offer his statement of rape, not because it was true, but because of the effect it had on my mental state, a very relevant fact in the case. Again, I am not offering it for its truth and therefore whether it was fabricated is not in issue. Whether the statement was made and whether my response was reasonable (based upon my credibility) can all be determined by the trier of fact at trial because I, not the ex, would be subject to cross-examination. In any event, statements can be admissible solely for their impact upon the listener (if relevant in a case) and not for the truth of the statement.

This approach should be very relevant to the statement Anna Domain (Kathleen Savio's sister) could testify to, "that Kathleen asked her to care for her kids." This is dynamite. Not offering it for the truth that Peterson said he wanted to kill her, but for the independent impact it had on her and her mental state to seek care for her children. Anna Domain could testify to her observations regarding Kathleen's credible belief that she needed to secure care for her kids because she was going to die soon. This really should have tremendous impact on the State's case, assuming Anna Domain is well prepared on the stand. And fear is hearsay with no subsequent act reflecting impact on her mental state.

Now for the exceptions, which have literally swallowed up the general rule. Since the beginning of time, Courts have recognized certain fact patterns that contain such inherent elements of reliability that they overcome the need for cross-examination. All of this is based on a notion of getting all relevant information to the jury that is subject to a prejudice in the analysis of the defendant. For the State this stuff is worth fighting over because it usually means game over for the defendant. Certain fact patterns below have crystallized into exceptions.

• Dying Declaration - declarant unavailable says just before dying to witness "Mr. X shot me." This is admissible based upon the notion that people who are dying do not typically have a motive to lie. Witness will testify as to demeanor of declarant.

• Excited Utterance - declarant screams "the plane is going to crash into the house" and witnesses doesn't see the plane. Here admission is based on the fact that when people are experiencing a startling event under stress they don't have time to fabricate.

• Present Sense Impression - this is the same as above, except the witness also experiences the same event as the declarant, and therefor the declarant's statement is relevant.

The exception used the most by prosecutors, and the one that is highly relevant for Peterson purposes, is a Statement Against Interest. For example, if I told you that I "did dope and shit," the statement would be admissable based on the theory that people do not make up highly negative evidence against themselves, especially facts that would subject them to criminal prosecution.

This is highly relevant for Stacy's statements to Pastor Neil Schori and Mike Rossetto that she provided an alibi, because it shows that she was willing to obstruct justice at Peterson's direction regarding Kathleen. Now maybe during the admissibility hearing the witnesses were weak on the statement, or just did not provide enough detail regarding the circumstances of the meeting with Stacy to overcome the highly prejudicial impact of the statement.

The state's case has more twists and turns than a tornado. Will Drew Peterson be acquitted? Is the State's case strong enough? No one really knows what the outcome will be. What we do know is what Peterson said in interviews when Stacy vanished. Just as Robert Dianovsky said 25 years earlier, "It's where she wants to be." Drew Peterson echoed those same words in media interviews shortly after Stacy Peterson disappeared October, 28, 2007.