Appeals court orders review in Kuenzi OWI hit & run case

Rory Kuenzi (Waupaca Co. Jail)
Rory Kuenzi (Waupaca Co. Jail)
The state appeals court ruled in favor of a man convicted in fatal Waupaca County hit & run case, saying the trial court denied his constitutional right to the attorney of his choice - but also affirmed his convictions for drunk driving and hit & run.

Rory Kuenzi was convicted in 2010 for the 2004 death of Kevin McCoy. He was sentenced to 23 years in prison.

On appeal, Kuenzi argued that his trial counsel was ineffective, and that he was denied the right to chose his attorney after hiring private counsel and wanting to dismiss the public defenders.

In its decision Thursday, the appeals court left no doubt it believes there was sufficient evidence to convict Kuenzi.

"We are satisfied that there was overwhelming evidence of Kuenzi’s intoxication. Thus, there is no reasonable probability that the outcome of the case as to the homicide charge would have been different had the jury not learned that Kuenzi had a prior OWI conviction," the court wrote. "We are not persuaded by Kuenzi’s argument that the jury likely believed that Kuenzi fled the scene after discovering he struck and killed a pedestrian because he feared a second OWI conviction.   The types of crimes are simply too dissimilar to support a finding that evidence of the prior OWI offense would have prejudiced Kuenzi’s defense against the hit-and-run charge. Lastly, we reject Kuenzi’s argument that his public defenders were ineffective because they agreed to the circuit court directing a jury finding as to the prior OWI. Contrary to Kuenzi’s assertion, that error is subject to a harmless error analysis."

However, the appeals court did order the case back to the court of Judge Philip Kirk for a review of the decision regarding which lawyers represented him.

"In sum, we reverse the circuit court order as to Kuenzi’s claim that he was denied his constitutional right to counsel of his choice, and remand for a retrospective hearing. As in a retrospective hearing under Kazee and Lomax, the hearing here may include additional factual inquiry into the circumstances at the time of the original motion. We affirm the order as to all other issues," the court said.

That hearing has not been scheduled.

Kuenzi and two other men were also convicted of running down deer with their snowmobiles, killing them.