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Hearsay – Against-Interest Statement

State v. Devon A. Sheriff, 2009AP3095-CR, District 1, 11/16/10 

court of appeals decision (3-judge, not recommended for publication); for Sheriff: Jeffrey W. Jensen; Sheriff BiC; State Resp.

Sheriff, convicted at jury trial of participating in drug sale, unsuccessfully appeals trial judge’s refusal to admit into evidence codefendant’s statements.

¶12      We conclude that the statements that Sheriff sought to admit were properly excluded because they were irrelevant. See Wis. Stat. §§ 904.01, 904.02.[3] The proffered statements, at best, would allow a jury to infer that Sheriff did not supply Stepney with the cocaine sold to the undercover officer.  They do not, however, make it more or less likely that Sheriff aided and abetted Stepney in possessing the crack cocaine while intending to distribute or deliver it, see Wis. Stat. §§ 961.41(1m)(cm), 939.05, and they do not make it more or less likely that Sheriff distributed or delivered the cocaine, see Wis. Stat. § 961.41(1)(cm).  Contrary to what Sheriff argues, these statements do not “totally exonerate” him.  Nor are they—as Sheriff argues—inconsistent with the State’s theory that Sheriff and Stepney conspired to deliver or distribute cocaine; therefore, they could not be admitted as impeachment testimony.  Furthermore, they do not show that “Stepney told [the questioning detective] that Sheriff had nothing to do with the delivery of [the] cocaine.”  They also do not show that “[a]ccording to Stepney, Sheriff had nothing to do with the drug transaction.”  Indeed, Sheriff’s offer of proof regarding the materiality of these statements was incomplete.  See Haskins v. State, 97 Wis. 2d 408, 422-423, 294 N.W.2d 25 (1980) (trial court’s evidentiary rulings will not be reversed where offer of proof is inadequate to support evidentiary hypothesis set forth by defense).

An infrequent, though hardly unheard of, application of § 908.045(4) to admit an against-interest hearsay statement to exculpate the defendant. The key statutory condition is that such a statement be “corroborated,” as to which, see such cases as State v. Guerard, 2004 WI 85 and State v. Anderson, 141 Wis. 2d 653, 416 N.W.2d 276 (1987). Given the conclusion here that the statements, while contrary to the declarant’s penal interest were simply irrelevant to Sheriff’s defense, the court “need not consider whether the statements were corroborated,” ¶16.

Separate but related: the tape of the statements at issue wasn’t made part of the record on appeal; the transcript reflects that a key exchange was inaudible, and the court notes that it can’t draw its own conclusion about what was said given omission of the recording. ¶8 n. 2, citing State v. Aderhold, 91 Wis. 2d 306, 314, 284 N.W.2d 108 (Ct. App. 1979) for the idea that reviewing courts are limited to and bound by the record. It is incumbent on the litigant pressing the relevant point to ensure a complete record, id.

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