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Hearsay – Prior Consistent Statement, § 908.01(4)(a)2;

State v. Daniel Buchanan, 2011AP830-CR, District 1, 10/30/12

court of appeals decision (not recommended for publication); case activity

Hearsay – Prior Consistent Statement, § 908.01(4)(a)2

The prior-consistent statement rule allows substantive admissibility of an out-of-court statement if: “(1) the declarant testifies at trial and is subject to cross-examination concerning the statement; (2) the statement is consistent with the declarant’s testimony; and (3) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive,” ¶12. Co-actor Vamonta Ward testified for the state against Buchanan, whose cross-examination sufficiently suggested “recent fabrication” as to allow admission into evidence of  Ward’s pretrial, postarrest statement to the police.

¶14      To use prior consistent statements, the proponent of the statements must also show that the statements predated the alleged recent fabrication and that there was an express or implied charge of fabrication at trial.  State v. Peters, 166 Wis. 2d 168, 177, 479 N.W.2d 198 (Ct. App. 1991); see also State v. Mares, 149 Wis. 2d 519, 527, 439 N.W.2d 146 (Ct. App. 1989).  If the prior consistent statements predate the alleged recent fabrication, then the statements have probative value and are admissible.  Peters, 166 Wis. 2d at 177.

¶15      Buchanan is correct that a deal with the State in and of itself does not necessarily imply fabricated testimony or an improper motive.  However, there was not simply an implication that Ward was motivated to testify as a result of a deal with the State.  There was also an implication that Ward was motivated to testify falsely that Buchanan was involved in Fall’s murder.  By asking Ward whether he was testifying simply out of “the kindness of [his] heart,” and whether he was “expecting anything good to happen from [him] sitting here testifying,” defense counsel presented the jury with the inference that Ward had ulterior motives for testifying the way that he did.  Ward’s statements to police, which were consistent with his testimony, were made before Ward was charged with any offense, before Ward had an attorney, and before Ward received a plea offer.  Therefore, Ward’s prior consistent statements were properly admitted under Wis. Stat. § 908.01(4)(a)2. to rebut the implied charge of recent fabrication.

Point of doctrinal curiosity: it is well-settled that “incriminating extrajudicial statements of a codefendant … (n)ot only are … devastating to the defendant but their credibility is inevitably suspect,” Bruton v. United States, 391 U.S. 123, 136 (1968); Cruz v. New York, 481 U.S. 186, 195-96 (1987) (“a codefendant’s out-of-court statements implicating the defendant are not only hearsay but also have traditionally been viewed with special suspicion”). That is because an in-custody codefendant is already pressurized, to minimize his own culpability and deflect blame elsewhere, regardless of whether or not the prosecutor subsequently offers a deal. That is, such statements are “viewed with special suspicion” without a claim of recent fabrication. In any event, this is a potential minefield, as this case illustrates – challenge, however gingerly, the witness’s motives and his prior statement is likely to come in, to devastating effect; fail to challenge his motives and you may leave the impression he has simply come clean out of remorse.

Buchanan separately argues ineffective assistance, for counsel’s failure “to limit the amount of Ward’s recorded police statements played for the jury.” The court concludes that Ward can’t satisfy the prejudice showing necessary to an IAC claim, given the strength of the evidence against him, ¶¶20-21.

Sentence Review – Harsh and Excessive

¶24      A court may find an erroneous exercise of sentencing discretion “only where the sentence is so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.”  Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975).  However, “[a] sentence well within the limits of the maximum sentence is not so disproportionate to the offense committed as to shock the public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.”  State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983); see also State v. Scaccio, 2000 WI App 265, ¶18, 240 Wis. 2d 95, 622 N.W.2d 449 (“A sentence well within the limits of the maximum sentence is unlikely to be unduly harsh or unconscionable.”).

¶25      The postconviction court, in reviewing the sentencing court’s decision, noted that Magett was charged with a lesser offense, due, in part, to his cooperation with the State, and that Ward was also very cooperative.  A review of the sentencing record demonstrates that the sentencing court addressed the objectives of Buchanan’s sentence, as well as the factors necessary for consideration under State v. Gallion, 2004 WI 42, ¶¶40-43, 270 Wis. 2d 535, 678 N.W.2d 197.  The sentencing court noted that:  (1) Buchanan had a prior juvenile adjudication for sexual assault; (2) Buchanan displayed a pattern of attempting to minimize his culpability for his crimes; (3) Buchanan was a “key part” in Fall’s death; and (4) the community was in need of protection.  The sentencing court also recognized the trauma caused to Fall’s family and co-worker.

¶26      Here, Buchanan was sentenced to twenty-five years, comprised of twenty years of initial confinement and five years of extended supervision, to be served consecutively to any other sentence.  Magett was convicted of aiding a felon and was sentenced to one year and six months of initial confinement, and two years of extended supervision.[3]  Ward was convicted of felony murder and was sentenced to fifteen years of initial confinement followed by five years of extended supervision.[4]  Felony murder, in this circumstance, carries a maximum possible sentence of thirty-five years.  See Wis. Stat. §§ 940.03, 943.32(2), 939.32 & 939.50(3)(c).  Buchanan was convicted of felony murder.  His sentence of twenty-five years is five years longer than Ward’s but ten years less than the maximum possible sentence.  We conclude that the sentencing court considered the appropriate factors and imposed a sentence that is not “so disproportionate to the offense committed as to shock the public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances.”  See Daniels, 117 Wis. 2d at 22.

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