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Hearsay – Against-Interest Statement, § 908.045(4) — Exculpating Defendant

State v. Sherrie S. Tucker, 2003 WI 12, on certification
For Tucker: Paul LaZotte, SPD, Madison Appellate


¶32. At the postconviction hearing, the circuit court upheld its prior ruling that McCray’s statements were not admissible as either statements against penal interest or under the residual exception to the hearsay rule. The circuit court noted that McCray’s statements attempted to exculpate Tucker without inculpating himself. For example, in McCray’s statements of “I’m fittin’ to go to the penitentiary,” and that Tucker was not involved with the drugs, McCray never actually took responsibility for the drugs. The court noted that nowhere in Kollath’s memo did McCray ever explicitly state that the drugs belonged to him; rather, his statements were only aimed at exculpating Tucker. With respect to McCray’s response of “yeah, right” when asked whether the drugs belonged to him, the court realistically interpreted the statement as meaning “yeah, right, as if I would ever admit to that.” This is a reasonable interpretation in light of the fact that the overriding concern throughout Kollath’s memo was that McCray did not want to be incarcerated regardless of what happened to Tucker. Therefore, the court concluded that McCray’s statements were not clearly against his penal interest, nor were they sufficiently trustworthy to be admissible under the residual exception.

¶34. Upon independent review of the trial transcripts and the postconviction hearing, we agree with the circuit court’s determination that Tucker was not denied the constitutional right to a fair trial. We conclude that the circuit court demonstrated a rational process in making a reasonable evidentiary ruling on the admissibility of McCray’s out-of-court statements. Accordingly, we hold that the circuit court did not err by refusing to admit McCray’s out-of-court statements under either the exception for statements against penal interest or the residual exception to the hearsay rule.


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