Appeals court orders new hearing in Wausau shooting case

Listen to this article

The Court of Appeals District III ruled a Wausau man convicted on multiple charges, including attempted first-degree intentional homicide, is entitled to a new evidentiary hearing.

Ka Yeng Xiong was arrested and charged following a 2012 shooting. According to the criminal complaint, he shot at two men who were sitting in a vehicle outside his house and that some of the bullets entered nearby houses. He was charged with two counts of attempted first-degree homicide, four counts of reckless endangerment, one count of possession of a firearm by a felon and two counts of damage to property.

At the August 2013 trial, the two people in the car testified that one of them and Xiong exchanged words earlier in the day when their vehicles passed each other. The two individuals reported that Xiong had a gun, so they grabbed brass knuckles and a police baton and drove over to where they believed Xiong lived, looking to fight. After slowly driving by Xiong’s residence several times, they parked out in front. The two men said Xiong approached them carrying a gun and fired several times at the vehicle.

A witness testified after he was awakened by the gunshots, he looked outside and saw two men entering separate vehicles and drive away. The vehicles later matched ones driven by Xiong’s friends, Jason Helding and Kristopher Torgerson. Prior to trial, a jail inmate provided an affidavit saying Helding admitted to the shooting. The inmate was unable to testify at trial since he had been moved to a jail in Iowa and the court ruled the affidavit was hearsay and was not admitted at trial.

At the trial, Helding testified under a grant of immunity that he was at Xiong’s house but left just before the incident and heard gunfire as he drove away. Togerson said that due to heavy drug use, he could not recall the incident. Xiong did not testify at the trial, but his attorney argued in his closing remarks that either Helding or Torgerson was the actual shooter. He was convicted on all counts.

Ten years after his conviction, Xiong submitted 10 affidavits describing Helding’s admission that he was the shooter and his actions following the shooting, including an account by two people who helped Helding hide the gun used in the shooting and later buried it in the woods and another one from the wife of one of victims who said she her heard her husband and the other victim laughing about identifying Xiong because they knew he was not the shooter. She said she didn’t come forward initially due to fears of retaliation.

The legal standards outlined for obtaining a hearing on a post-conviction motion based on newly discovered evidence include that it was found post-conviction and not merely cumulative and there is a reasonable possibility the new evidence would lead to a different trial outcome.

The state argued Xiong should not be granted a new trial since the new affidavits were not new evidence, but the appeals court wrote: “There is nothing in the affidavits to suggest that Xiong was aware, prior to his trial, that any of the [10] people who provided post-conviction affidavits on his behalf had relevant testimony he could use to establish that Helding was the shooter.”

The appeals court also wrote that Xiong sought to find other witnesses prior to the trial, showing his due diligence, but was unable to do so. In addition, the new evidence could potentially undermine the credibility of key witnesses and suggest perjury.

The court ruled an evidentiary hearing should be held in the case, allowing Xiong to present evidence regarding the credibility of the 10 witnesses.