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COA reverses trial court’s hearsay ruling but affirms on harmless error

State v. Tyler J. Yost, 2018AP2251-CR, 9/18/19, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

Loose lips sink ships. They can also land you in jail for another year. That’s what happened to Yost when he and other inmates started bad mouthing their probation agent while chilling in the common area of the Waukesha County Jail. Yost allegedly called his agent a “bitch” and said that when he got out he was going to “crimp her brake lines,” and he didn’t care if her kids or family were in the car. 

Guess what? Another inmate reported Yost’s threat, and the State charged him with disorderly conduct.  At trial, Yost testified that he never made the threat, and he wanted to call Holland, an inmate who had been sitting at the table listening when all the guys were complaining about their agents.  Holland would have testified that: (1) if Yost had made the alleged threat, he would have heard it, and (2) Yost never made the threat. The circuit court ruled that this testimony was inadmissible hearsay. The court of appeals held that it wasn’t:

¶11 . . . Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” WIS. STAT. § 908.01(3). Holland’s testimony was that he never heard a certain “statement”/“matter asserted” (i.e., he never heard Yost talk about crimping his agent’s brake lines). The absence of a statement/assertion is not a statement/assertion made to prove the “truth of the matter asserted,” and thus, Holland’s testimony that he did not hear Yost make a statement threatening his probation agent would not meet the statutory definition of hearsay. See § 908.01(3); see also Auseth v. Farmers Mut. Auto. Ins. Co., 8 Wis. 2d 627, 630, 99 N.W.2d 700 (1959) (“If the statement is not offered to prove the truth of the fact asserted, then the only thing material is whether the statement was made. As to that fact, there is no more objection to permitting a witness to testify as to what he heard said than as to what he may have observed, and he may be cross-examined as to both.”); State v. Curbello-Rodriguez, 119 Wis. 2d 414, 427, 351 N.W.2d 758 (Ct. App. 1984) (“The hearsay rule does not prevent a witness from testifying as to what he [or she] heard; it is rather a restriction on the proof of fact through extrajudicial statements.” (quoting Dutton v. Evans, 400 U.S. 74, 88 (1970)).

Although Yost won the hearsay battle, he lost the harmless error war. The court of appeals highlighted “more credible” testimony from other witnesses that supported the conviction. And the court of appeals said that it was “convinced beyond a reasonable doubt that had the court permitted the testimony, it would not have altered the outcome of the trial.” Opinion, ¶13.

Note: There are several different formulations of the harmless error test. They don’t all involve the “beyond a reasonable doubt” standard, and they aren’t all as tough as the one the court of appeals used here. See State v. Travis, 2013 WI 38, ¶71, which lists several variations of the standard. Also see State v. Nieves, 2017 WI 69, ¶17,  which held that an error admitting or excluding evidence is harmless when it does not affect the substantial rights of the party. Nieves explained that an error affects the substantial rights of a party if it creates a reasonable probability of a different outcome.

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