Andrew T. Hayes

Andrew T. Hayes in court for the start of his preliminary hearing Monday, May 6.

Peter Rebhahn/Star-Times

Confusion over a new law sparked the adjournment of a preliminary hearing in Juneau County Circuit Court on Monday in the case of a Portage man charged with first-degree reckless homicide in the drug death of his Mauston girlfriend last year.

“Your honor, I would move to avoid an appellate battle on this,” Juneau County District Attorney Michael Solovey told the court in asking for adjournment part-way through a planned two-hour hearing for Andrew T. Hayes.

Prosecutors say that Hayes, 24, supplied the heroin that killed 24-year-old Samantha M. Funk.

Funk was pronounced dead by a coroner at 4:40 a.m. April 12, 2012, after a Mauston police officer dispatched to an address in the 200 block of West State Street arrived to find her not breathing and cold to the touch.

At issue in court Monday was 2011 Wisconsin Act 285, a new law that took effect April 27, 2012, that allows the admission of hearsay evidence at a preliminary hearing.

At a preliminary hearing, a judge determines whether a crime was committed and whether probable cause exists to show the accused committed the crime.

Hearsay evidence is based on what someone has told a witness and not direct knowledge possessed by the witness.

The hearing snagged on the issue of hearsay evidence when Solovey attempted to elicit testimony from Mauston police officer Richard Lueneburg about heroin use observed by Justin Diorio, Funk’s friend.

Diorio was not subpoenaed to testify at the hearing Monday.

According to the criminal complaint, Diorio told police that he spent time with Funk on April 11, 2012, and that he had seen Hayes, Funk and a third person inject heroin that evening.

Dan Berkos, attorney for Hayes, objected to the hearsay testimony from Lueneburg over uncertainty about when the new law took effect and whether it applied to acts that occurred before the law took effect.

“It seems to me that this is a procedural rule,” Juneau County Circuit Judge Paul Curran said after a brief recess to review the law. “This is a rule concerning how we go about doing preliminary hearings and as such it would apply both retrospectively and prospectively and as such the objection is overruled.”

But Berkos told the court that application of the new law to the hearsay testimony from Lueneburg threatened Hayes’ fundamental rights.

“This deals with the substantive right of my client to confront his accuser,” Berkos said. “That’s a cross examination right, that is a due-process right, not a procedural right.”

Solovey declined Curran’s offer to respond and simply asked for an adjournment to allow time to subpoena Diorio to testify in person.

Curran rescheduled the hearing for June 11.

prebhahn@capitalnewspapers.com 847-7341, ext. 237