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.

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The Common Fear Factor

by Susan Murphy-Milano

One of the major reasons women stay in abusive relationships is fear. They are afraid of what will happen to them and their children if they leave. Sadly, their fears are often justified; statistics show that a woman is at the greatest risk for injury when she announces her plans or leaves an abusive relationship.

To illustrate the danger, let's consider the case of Utah's Susan Powell, a wife and mother who has not been seen or heard from since December 6th. Hers is a familiar scenario, one that occurs in the majority of abused women cases across the country. If one takes a close look at the evidence, in my opinion, the most logical conclusion is that Susan Powell was murdered. 

Susan Powell was a stockbroker with two young sons, a devoted mother and likely the person in the marriage with a larger paycheck than her husband, Josh. Over time, the marriage reportedly turned controlling, with Josh insisting on knowing what Susan was doing when not under his radar. We've all seen the news reports, including that he demanded she tell him how much she spent on herself and for household goods and services. In this type of case, the fights build up from yelling to shoving. A bedroom door is slammed with greater frequency, and the couple drifts apart. 

Many abused women hope that having children will change the behavior of an abusive mate. They hope the abuser will turn his/her life around for the sake of the children and that the result will finally be a happy home life. In the Powell case, that didn't happen. Pregnant with her second child, perhaps under circumstances beyond her control (she could have been forced as some are in the marriage), Susan brings another life into a world three years later where anger and violent outbursts become commonplace. During this time Susan likely announces, the marriage is over. Perhaps making statements such as, "we need to divorce" or "this is not fair to the children and I can no longer go on living this way." 

There is a point for many abused women when they verbally announce the steps to end the abuse that lays the foundation for an abuser to begin thinking about a course of action. Around this time an abused woman begins confiding in co-workers or close friends. As we later learned from authorities, that is exactly what Susan did. 

For the alleged offender, I will use Josh Powell as an example. Now he is formulating a plan no different from the plans of other violent persons: one born of anger and desperation. Anger because the person is leaving and ending the relationship. Desperation over what he (the abuser) will be forced to carry out if the person with whom he is in a relationship cannot be persuaded to stay. 

This plan remains in the abuser's mind, of course, until he see signs of movement. In this case, perhaps Susan was whispering on the phone to someone, and when Josh walked into the room she quickly changed her tone or ended the phone call. Or he learned that Susan set up a bank account and believed she was hiding money so she and the kids could leave. 

The signs of movement spark Josh or any potential abuser to think of the next level. They think to themselves, Okay, she is going to leave me. I will not let that happen. He acts as though nothing is wrong but, when she goes to sleep, Josh rummages through her car looking for evidence of her plan, a bank receipt or an unusual transaction or charge. Maybe in her purse he checks the cell phone for any unusual numbers he does not recognize. Or goes through the computer and checks the browser to see her activity. 

He finds something and his anger is elevated, his heart is racing, but he remains calm and says nothing to Susan. A smile comes to his face because he "caught her," and he figures she will pay one way or the other at a later date. 

Around this time Susan begins sending e-mails about the abuse and threats she has endured by Josh to a trusted circle of friends. Maybe she keeps a detailed log with dates and times of the incidents. 

Now Josh does what I label the "smell change." Susan is acting strange and, like cologne,
Josh can literally (as with most abusers) sense when their environment has shifted. Perhaps Susan is verbalizing her unhappiness with greater frequency. Maybe she stands up for herself during a fight where months before Susan would have backed down and gone to her room without incident. 

It is very difficult for any abused women to hide that spark of empowerment from a clever abuser. They (the abuser) smell it as sure as a fox entering a coop filled with chickens.


It's now that most abusers decide to implement their plans. He has thought about it from the moment it entered his mind. The children are sleeping and the couple gets into a heated argument. At this point possible scenarios vary. Here is one example: Josh in his rage could have knocked her unconscious and carried her out to the car. Then, one at a time, he lifts his sleeping boys into the back seat. The family drives to the desert. Susan wakes up and gets out of the car. Josh and she are arguing and he hits or pushes her off an embankment and into a ravine. Josh drives back with the boys to the house where he is questioned by authorities. 

In many ways, the case of Susan Powell appears no different from the millions of cases of violence we never hear about, until women go missing and their bodies are found. Abuse victims often have no official documentation of the abuse because they were too afraid to contact police or obtain a court order of protection. Why? Because better than anyone they (the victims) know it would do them no good. It would only escalate the level of danger. 

The one thing an abuse victim knows for certain is the fear that has been planted in them over time by an abuser and the likelihood of imminent danger if it is discovered they plan to leave. I believe this is what happened in Susan Powell’s case;  she had only one opportunity to leave and somehow Josh Powell found out. 

On December 7, 2009, I, like a number of you, saw this case on the Internet or on a news broadcast. And, sadly, I bowed my head in prayer, knowing she would never again be seen alive.

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Ten Years Later, Crime Scene Says Murder!

by Susan Murphy- Milano

"The crime scene was staged, rearranged to look like a suicide," according to forensic pathologist Dr. Jeffrey Reynolds.

Ronda Reynolds (pictured left) fulfilled her childhood dream by becoming a Washington State trooper and firearms instructor. She left the patrol a few months after she married to work in private security.

In early 1998, Ronda married Ron Reynolds, an elementary school principal in the small Lewis County town of Toledo, Washington. During their brief marriage, Ronda discovered her husband was having an affair. She confronted him. She told him the marriage was over and that she expected the $15,000 she put into the new marital home to be returned. That night, Ronda booked a flight to her mom's home in Spokane. She made arrangements just after midnight with a friend and veteran police officer to drive her early that morning to the airport. Crime Scene photos show she'd packed her bags and left a message to her husband on the bathroom mirror: "I love you, call me."

Within hours of leaving, Ronda was found dead on the floor of her master bedroom, in the closet,with the door open, just 15 feet away, where her husband claims to have been sound asleep. When Ron Reynolds was questioned, he told police Ronda was distraught and talked about killing herself.

The gruesome crime scene photo's tell a different story. (if you go to the link, please be advised the photo's are on this site are graphic).

Jerry Berry was Lewis County's lead detective on the case and said "this appeared to have the earmarks of a staged homicide."But Berry faced serious evidence problems because he wasn't called to the scene until two hours after Ronda's body was found, and the crime scene had already been disturbed.

But, seven months after Ronda's death, Ron Reynolds' attorney wrote the department insisting they remove the cloud of suspicion and close the case. And "if you do not then we will." Berry says the sheriff's office caved, closing the case as a suicide over his objections. "They just basically wanted me to let it go, leave it as a suicide, and move on and take on other cases and be done with it," Berry said.

Nearly 10 years after Ronda was found shot to death, a television station in Seattle took an interest in the case, launching their own investigation. The ABC affiliate uncovered evidence and found experts who are convinced Ronda's murder was made to look like a suicide.

Her mother, Barb Thompson has fought to have her daughter's case re-opened. With more twists and turns than a tornado, a Washington court finally granted her motion for a judicial review. All she is asking is for the death certificate be changed to state the truth--homicide.

Detective Jerry Berry and Barb Thompson will also be guests on Justice Interrupted radio, Tuesday, January 20, 2009.

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