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Trial court erred in relying on the abrogated “interlocking confession” doctrine to deny severance of co-defendants’ trials

State v. John M. Navigato, 2012AP2108-CR, District 2, 4/9/14; court of appeals decision (not recommended for publication); case activity

State v. Teddy W. Bieker, 2012AP2693-CR, District 2, 4/9/14; court of appeals decision (not recommended for publication); case activity

The circuit court, relying on the district attorney’s assertion of the so-called “interlocking confessions” doctrine, denied Navigato’s and Bieker’s motions to sever their trials on homicide, armed burglary, and armed robbery charges, even though the state intended to use both defendants’ out-of-court statements implicating each other as evidence in the trial. But the interlocking confessions doctrine was abrogated more than twenty years ago, so the circuit court was wrong to force Navigato and Bieker into a joint trial with all of their out-of-court statements admitted as evidence. The error wasn’t harmless, so Navigato and Bieker get new trials.

Navigato, Bieker and another man, Suchecki, invaded a home while armed. During a confrontation with the man and woman living there, the man, Leydel, was shot. (Bieker slip op., ¶¶5-8). Neither Navigato nor Bieker denied going to the house, having a confrontation with the victim, or that a shot was fired from a .22 caliber rifle Bieker was carrying(Bieker slip op., ¶¶12-13). The issues at trial related to the parties’ intentions—i.e., what were their intentions in going to the victim’s house that night (robbery, or confronting Leydel about selling drugs to Navigato’s daughter), and did Bieker intentionally fire the fatal gunshot? (Bieker slip op., ¶¶9, 12, 19, 22).

Suchecki got a deal in exchange for his testimony, and a fourth co-defendant who drove the others to and from the house had his severance motion granted; but the trial court denied severance to Navigato and Bieker based on the “interlocking confession” doctrine(Bieker slip op., ¶¶16-18). Bieker and Suchecki told police, and testified at trial, that the shooting was accidental. (Bieker slip op., ¶¶11, 13, 22-25, 31-32). Navigato didn’t testify, but his statements to police–that Bieker shot to defend him when he was scuffling with Leydel–were admitted. (Bieker slip op., ¶¶9, 12, 21, 44-45). 

The “interlocking confessions” doctrine was abrogated by Cruz v. New York, 481 U.S. 186, 193-94 (1987). (Bieker slip op., ¶¶1-2, 43). In addition, severance was required under the unambiguous language in § 971.12(3) (if the district attorney intends to use the statement of a co-defendant that implicates another defendant in the crime charged, “the judge shall grant a severance as to any such defendant”). (Bieker slip op., ¶¶2, 45.) The state concedes that the circuit court should have granted the defendants’ motions to sever, but argues the error was harmless. ((Bieker slip op., ¶¶43, 46). The court of appeals’ thorough-going decision explains well why the state is wrong:

¶3        This error had a domino effect. It led to the admission of numerous out-of-court statements by Navigato concerning Bieker’s motive for the crime. It may have compelled Bieker to testify against himself. And it left Bieker unable to confront Navigato, who did not testify. The errors were magnified because Bieker’s trial counsel did not make any hearsay or relevance objections to the admission of Navigato’s statements as evidence against Bieker and did not seek any instructions to the jury alerting them to the fact that some of the evidence was not to be considered in assessing Bieker’s guilt. 


¶46      …. If this trial had been about whether Bieker shot Leydel, we would agree [that the error is harmless]. Bieker has never denied that fact himself. The defendants were caught red-handed, fleeing the scene, the weapon that fired the fatal shot was beside Bieker’s seat in the getaway car, and Bieker admits carrying that weapon to and from the scene. It is no surprise, in view of the evidence, that Bieker all along admitted that the fatal shot came from his weapon. Indeed, had the charge been anything less than first-degree intentional homicide, one wonders if  there would have been any trial at all because Bieker might have pled to what he agreed happened.

¶47      But intent to kill Leydel is what Bieker does not admit. And as to that issue, the error here was not harmless. …

¶48      The error here (reliance on the nontestifying codefendant’s statements) was not only frequent, it was continuous, infecting every portion of the trial, from the opening statements, through the presentation of evidence, and throughout the closing arguments. It makes sense that the evidence was referred to so frequently, given that it was important evidence on the only real issue in the case—intent.

Because the evidence about Bieker’s intent goes both ways, depending on which witnesses a jury believes, the whole case boiled down to credibility. (Bieker slip op., ¶¶49-51). That means the admission of Navigato’s statements could have tipped the scales against Bieker not only on the homicide charge, but also on the armed burglary and armed robbery charges:

¶52      …[A]lthough the error was most prejudicial on the issue of Bieker’s scienter as to the shooting, his credibility was the key to the jury verdicts on all four crimes. And the error makes the jury’s judgment as to his credibility unreliable. Where credibility is a key issue, a constitutional error that undermines credibility “infects” the whole trial. State v. Pitsch, 124 Wis. 2d 628, 646, 369 N.W.2d 711 (1985). This is not a case where we can disentangle some of the verdicts from the others. Bieker’s defense depended upon his credibility with the jury. There is no way to disentangle the jury’s determination of Bieker’s credibility, and the Confrontation Clause violation here undermined him.

As for Navigato, the court of appeals explains in a separate opinion why he is entitled to a new trial:

¶5        If the Bieker verdicts are unreliable, then, necessarily the Navigato verdicts are unreliable too. As the jury instructions explained, to find Navigato guilty of first-degree intentional homicide, even though Bieker pulled the trigger, the jury had to find that (1) the parties committed armed robbery, (2) first-degree intentional homicide was committed, and (3) that the homicide was a “natural and probable consequence of armed robbery.” … The linchpin of such a verdict was a finding by the jury that Bieker committed the crime of first-degree intentional homicide. That finding cannot be trusted because the error in denying the motion to sever the trials yet admitting the codefendants’ out-of-court statements incriminating each other tainted the trial on that very  issue. See Bieker, No. 2102AP2693-CR, ¶51.

The erroneous severance ruling was not solely the fault of the DA and the circuit court: Trial counsel didn’t realize that the interlocking confession law had been overturned, either. (Bieker slip op., ¶40). The situation leaves the court of appeals a bit exasperated: “We have a hard time understanding how law that had been abrogated twenty years before, with the law since then having been codified in our statutes, was relied upon in this trial.” (Bieker slip op., ¶53).

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