During the week-long examination of witnesses, much of the prosecutor’s effort focused on the fact that Paul Gutierrez Jr.

Tuesday, March 05, 2002

During the week-long examination of witnesses, much of the prosecutor’s effort focused on the fact that Paul Gutierrez Jr. was the sole adult taking care of the victim, Makaio Lynn Radke, around the time of his death in a residence at 505 Johnson St. in Albert Lea.

Defense Attorney Michael A. York had attempted to destabilize the accusations on Gutierrez by raising evidence against Peggy Radke, Makaio’s mother. The evidence, called reverse spriegl, intended to establish the mother’s responsibility for the baby’s death by raising evidence of her past bad acts.

Prior to the trial, Judge James Broberg denied a motion by York to call witnesses for the reverse spriegl, with a condition that the prosecutor would need to prove Peggy Radke was not present at the murder scene.

In response to the order, Prosecutor William F. Klumpp called 34 witnesses.

Dr. Michael McGee, Ramsey County medical examiner, testified that the time of death was 10 to 12 hours before Makaio’s death was confirmed at Albert Lea Medical Center at 10:19 a.m. on April 21.

A defense witness, Dr. Lindsey Carroll Thomas, gave her opinion, as a result of her examination of the autopsy report, that it could have been two to four hours. However, Klumpp pointed out a higher fever from a cold Makaio had at that time and a sleeper that covered his whole body might delay the process of a temperature drop. Body temperature is one of the prime factors in determining the time of death.

Thomas not only admitted Klumpp’s contention, but also stated it might take several hours for the baby to die after being inflicted fatal injuries.

The testimony was crucial since all the evidence showed that Peggy and Kristina Ann Baker, housemates of Gutierrez, were out between 1 p.m. on April 20 and 1 a.m. on April 21. If the time of death was late evening on April 20, then Peggy Radke had no way of being involved in the murder.

The prosecutor filed a receipt from Wal-Mart in Albert Lea as evidence that shows Peggy made a purchase of child bicycle, dog food and shampoo at 12:44 a.m. on April 21 before going back home.

A human resource agent for Baker showed records that prove Baker was working between 2:59 p.m. and 8:12 p.m. on that day at her factory in Austin. And Baker’s mother in Austin testified that Peggy Radke was in her house until Baker came to pick her up around 11 p.m.

In his interview with a Minnesota Bureau of Criminal Apprehension (BCA) agent shortly after the murder, Gutierrez also confirmed that he was alone in the house on that night and no visitors came over.

When all of the testimony by the prosecution witnesses finished last Friday, York moved for a second motion to call seven witnesses for Gutierrez including Thomas, but Judge Broberg ordered to reserve six of them who were intended for reverse spriegl against Peggy.

The testimony by Thomas did not convince Judge Broberg to recognize the relevance of testimony against the mother, so he dismissed the rest of witnesses.

In his summation for his closing argument, York pointed out that the prosecutor did not establish proof that Makaio’s death was caused during sexual conduct or abuse, which was necessary for the charges. Dr. Thomas concluded that the death was as a result of internal breeding associated with lung injuries caused by external pressures. Lacerations on the anal area were presumed to be made beforehand.

York also emphasized there was no biological evidence detected from the baby’s body which reveals Gutierrez’s involvement in the sexual conduct or abuse. He stressed that a DNA test on a sample taken from body fluid on Makaio’s sleeper, which turned out to be a mixture of multiple identities, showed only a partial match with Gutierrez and does not mean he is the owner.

But Klumpp countered that the charges are valid when such assault is imposed in the course of a murder, or even after.

He also indicated that the mixture of DNA in the sample corresponds to the fact that Gutierrez had sex with two different women in the morning on April 20 and did not take shower on that day. The sleeper had been washed the day before.

A member of the jury, who did not want to be identified, said the timeline clarified by the prosecutor convinced many jurors to reach the guilty verdict.

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