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Hearsay, its exceptions, and harmless error

State v. Christopher Deshawn McGinnis, 2017AP2224-CR, 3/5/19, District 1 (not recommended for publication); case activity (including briefs)

The court of appeals found certain hearsay statements admissible under the “statement against penal interest” and “prior inconsistent statement” exceptions to the hearsay rule. It also held that part of a detective’s testimony qualified as hearsay, but its admission was harmless error.

McGinnis was charged with 1st degree intentional homicide and 1st degree recklessly endangering safety for allegedly shooting and injuring X.A. and killing Williams. According to the State, McGinnis shot Williams as revenge for: (1) using counterfeit money to buy drugs from McGinnis and (2) shooting up the house of McGinnis’s mother.

Statement against penal interest. X.A. testified that Williams (the deceased) told him that he had paid McGinnis with counterfeit money and shot up his mom’s home. McGinnis moved to exclude X.A.’s testimony of what Williams told him on hearsay grounds. The circuit court denied the motion and the court of appeals affirmed. These statements were admissible as statements against penal interest. Williams is unavailable, and the statements he made inculpated him in criminal activity. State v. Buelow, 122 Wis. 2d 465, 476-77, 363 N.W.2d 255 (Ct. App. 1984). Opinion, ¶35. For more posts on statements against interest click here.

Prior inconsistent statements. In addition, a detective testified that the girlfriend of Campbell (a passenger in McGinnis’s car) said that Campbell said (i.e.triple hearsay) that McGinnis shot Williams because Williams shot at McGinnis’s mom’s house.  At trial, Campbell testified that he had no knowledge of any dispute between McGinnis and Williams. Thus, the court of appeals held that the detective’s testimony about what the girlfriend said was admissible as a prior inconsistent statement under §908.01(4)(a)1; State v. Lenarchick, 74 Wis. 2d 425, 436, 247 N.W.2d 80 (1976)(where witness denies recollection of prior statement and judge doubts that the denial was in good father, judge may admite the statement). The girlfriend’s testimony was admissible for the same reason Opinion, ¶39. For more on prior inconsistent statements, click here.

Harmless error. The detective also testified that, during an interview, Campbell said that “people said” that Williams shot into McGinnis’s mom’s house. The court of appeals agreed that the detective’s testimony on this point was inadmissible hearsay but the error was harmless because the very same evidence was “duplicated and corroborated through the untainted testimony” of other witnesses at trial and because the State’s evidence was overwhelming. Opinion, ¶¶45-46.

 

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