Case 2022CM000213 Document 41 Filed 04-11-2023 Page 1 of 4

FILED
04-11-2023
Clerk of Circuit Court
BY THE COURT:
Calumet County
DATE SIGNED: April 11, 2023 2022CM000213

Electronically signed by Carey J. Reed

Circuit Court Judge

STATE OF WISCONSIN CIRCUIT COURT CALUMET COUNTY

BRANCH II
______________________________________________________________________

STATE OF WISCONSIN,
Plaintiff,
Vs. Case No. 22-CM-213

JOHN C. ANDREWS,
Defendant.
______________________________________________________________________

DECISION AND ORDER ON DEFENDANT’S MOTIONS TO DISMISS

______________________________________________________________________

Mr. Andrews filed, and both parties briefed and wrote additional letters to the
court, regarding the following motions to dismiss1:
I. For Bill of Particulars
II. To Change Venue
III. To Dismiss Pursuant to Plea Agreement
IV. To Dismiss Improper Prosecution

I. Bill of Particulars
Mr. Andrews lists nine statements from the complaint, and questions which of
them forms the basis of the obstruction charge against him. He states he cannot
adequately prepare a defense without knowing what the “state intends to prove was
false.” Mr. Andrews simply states that his motion is brought pursuant to the U.S.
Constitution and the Wisconsin Constitution.
A trial court has discretion to grant a motion for a bill of particulars in a criminal
case. State ex rel. Drew v. Shaugnessy, 212 Wis. 322, 249 N.W. 522 (1933). The
present case follows a distant trial, more recent felony charges that were briefed and
dismissed, as well as a hearing in the present case for which the defendant has
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procured transcripts and provided four separate briefs for dismissal. Mr. Andrews
asked for leave to exceed page limits for his briefs, filed a letter to dismiss based on the
state’s tardy briefs and has since received several response briefs from the state.
There are ample materials on file from which the defendant can ascertain the basis of
the charges with very particular detail. Therefore, there is no reason to exercise
discretion to grant a bill of particulars; Mr. Andrews’ motion for this relief is denied.
II. Change of Venue
Mr. Andrews requests a change of venue based on, among other things, the
subject matter of the case, and the trial, were “big news” in 1983 and 1990 respectively.
Mr. Andrews argues that the facts leading up to the present charge were/are also “big
news”. He argues that this “big news”, coupled with the rural community, results in
potential jurors being familiar with the case. Mr. Swenson makes much of what he
argues is the media’s mistakes in covering the case. He characterizes the coverage as
“inflammatory” and concludes that it will be practically impossible, therefore, to impanel
an impartial jury.
The parties include similar standards that this court must implement when
deciding motions for change of venue. Each cite the following factors:
 The inflammatory nature of the publicity,
 The timing and specificity of the publicity,
 The participation of the state in the adverse publicity
The state references several additional factors, while Mr. Andrews adds
 The size and characteristics of the community from which the jury panel would be
drawn, and the degree to which the adverse publicity permeated that community.
The Wisconsin Supreme Court has provided several more factors to consider. See
State v. Hebard, 50 Wis.2d 408, 184 N.W.2d 156 (1971). The court also instructed that
a showing actual prejudice is not required. Gibson v. State, 55 Wis.2d 110, 197 N.W.2d
813 (1972). Rather, a probability of inherent prejudice must be shown. Id.
Mr. Andrews’s argument, that this case is “big news”, leads him to further argue
“that most, if not all, of the potential jurors ….. would already be familiar with” the names
involved in this case. Mr. Andrews argues that the media coverage, some of it
inaccurate, along with the population of the county, make it practically impossible to
obtain a fair jury. Familiarity with the facts of the case, in and of itself, is not a basis for
a change of venue. Nor can this court conclude, on this record, that there is an inherent
prejudice resulting from the issues raised by Mr. Andrews. Mr. Andrews’ concerns can
certainly be addressed through jury selection process. Accordingly, Mr. Andrews’
motion for change of venue and/or an out-of-county jury are denied.

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III Motion to Dismiss Pursuant to Plea Agreement

Mr. Andrews argues that he entered an Alford plea in 1994 that resulted in a
conviction for homicide by negligent use of a motor vehicle. As a result, the original
charge of intentional homicide was dismissed. He argues that his plea was pursuant to
a plea agreement with the state. Mr. Andrews correctly argues that that agreement
“binds the state perpetually”, such that he cannot be recharged on the same factual
basis.
In 1993, Mr. Andrews was charged with intentional homicide of Starkie Swenson.
Based on the aforementioned plea agreement, the charge was amended to homicide by
negligent use of a motor vehicle. The instant case charges Mr. Andrews with
Obstructing an Officer based on statements he made to them on Monday, June 7, 2021.
The complaint states that law enforcement “… intended on talking with Andrews to see
if [he] would assist with identifying the location of the body of Starkie Swenson …” The
complaint charges that Mr. Andrews obstructed officers at this June 7, 2021 meeting.
The 1993 case was concerned with the death of Starkie Swenson. The instant
case charges obstruction resulting from the conversation Mr. Andrews had with officers
regarding the whereabouts of Starkie Swenson’s body, on or about June 7, 2021. The
instant case is not, about the homicide, but rather about the location of the remains.
This is not, therefore, the same factual basis that would bar the state’s current charge.
Accordingly, Mr. Andrews’ motion to dismiss pursuant to plea agreement, is dismissed.
IV Improper Prosecution
Mr. Andrews final motion requests that this court grant dismissal based on
“improper prosecution”. This section will address Mr. Andrews arguments in the order
they are presented in his brief.
 The court does not find that the state is punishing Mr. Andrews for what the law
allows him to do. The complaint charges obstruction. The law does not allow Mr.
Andrews, or anyone else, to commit obstruction. Therefore, this argument fails.

 The court does not find that the state is bringing a charge pursuing a second
conviction for the same course of conduct that he successfully appealed. There has
been no first conviction for the facts alleged in the instant complaint. Mr. Andrews
successfully defended against a felony charge for hiding a corpse – he is not being
charged with that here. In its oral ruling, the court commented that the facts, if believed,
may support a charge of obstruction, but not hiding a corpse. Indeed, Mr. Andrews
argued that the state may be able to bring misdemeanor charges following dismissal of
the felony case. (See Calumet County case no. 22 CF 79, doc. 34, p. 12, l. 20.) Mr.
Andrews isn’t being charged after successfully appealing the felony conviction. Again,
that case was dismissed pre-trial and the present case was subsequently filed.

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Based on the above, there is no presumption that this prosecution is barred by

the Due Process Clause. Similarly, there is no showing that the charge was actually
motivated by improper reasons. Again, the court dismissed the felony in 21 CF 79 and
stated that the facts might support the current charge; Mr. Andrews also argued that the
state may be able to bring misdemeanor charges, rather than the prior felony charges,
on the instant facts. Perhaps the state took him up on his suggestion, but there is no
showing that it did so by, or for improper reasons. Mr. Andrews' motion to dismiss for
improper prosecution is denied.

1 Mr. Andrews’ letter filed on March 31, 2023 requested that all of his motions be granted since the state
had not yet responded to his briefs. Mr. Andrews cites the scheduling deadline of March 15, 2023 for
filing briefs. The state filed responsive briefs on April 4, 2023 and a letter explaining lateness on April 3,
2023. On March 31, 2023, the court declined Mr. Andrews’ request. Both parties have since provided
more than enough information for this court to decide the motions before it. The trial in this matter is set
for September 6-9, 2023 and this decision will be issued months before the July 26, 2023 hearing that
was originally set to address motions. Neither party, therefore, will be prejudiced by the court deciding
the motions on the briefs and documents on file, well ahead of schedule.