On Point

State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02
For Joyner: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether the pretrial statement of defendant’s sister, who failed to appear at trial, was admissible as a statement against penal interest, § 908.045(4).

Holding: A hearsay statement must be broken into its constituent parts, each viewed separately. ¶18. This statement has two parts. The first — that the defendant “wasn’t there” — isn’t self-inculpatory; merely saying that the defendant didn’t commit a crime doesn’t expose the declarant to criminal liability. ¶19. The second statement — that a named 3rd party committed the crime and the declarant was in the get-away car — presents a closer question. However, the statement implies that yet another individual was the driver, hence effectively absolving the declarant of responsibility for the crime. ¶¶19-20. (Otherwise — the opinion is terse — the declarant was presumably a mere bystander; or more literally, a mere passenger.) Consideration of a postconviction affidavit, tending to incriminate the declarant by explicitly stating that she drove the car, was procedurally barred, because it in effect sought to introduce new evidence without satisfying the test for new evidence. ¶¶21-23, the court stressing that the proffer in this affidavit wasn’t “explicitly” made during the trial.

Oddly, however, the court proceeds to say that even this more explicit statement wasn’t “against … penal interest — indeed, it was consistent with her societal and family interest.” ¶23. In other words, this entire discussion, from start to finish is dicta, because the statement doesn’t come in regardless. It doesn’t matter who was the get-away driver. Or is it that one family member can never make an against-interest statement that clears another? Who knows? But dicta or not, splitting this statement in two seems pretty arbitrary: the declarant could only know that the defendant wasn’t there if the declarant was. No matter. Just remember, next time the state wants a “multi-part” statement admitted, that the methodology should be the same.

State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005)
For Bintz: Elizabeth A. Cavendish-Sosinski

Issue/Holding: Confessions to fellow inmates are sufficiently reliable to allow admissibility without confrontation.

Issue/Holding: The codefendant’s (defendant’s brother) against-penal-interest statement to the police didn’t violate the confrontation clause, where the declarant “was not in custody and there is no indication he was threatened with prosecution or asked leading questions.” Nor was his statement “especially inculpatory in respect to shifting blame toward” the defendant. ¶13.

This result is highly suspect. The court distinguishes Lilly v. Virginia, 527 U.S. 116 (1999), and relies on State v. Murillo, 2001 WI App 11. ¶14. But habeas relief was granted in the latter case. Edward A. Murillo v. Frank, 402 F3d 786 (7^th Cir. 2005). It might still be said that Lilly remains distinguishable, in that the declarant wasn’t under arrest and wasn’t trying to shift blame from himself to his brother — except that such an analysis is no longer viable, Crawford v. Washington: the confrontation clause is violated if an extrajudicial testimonial statement is admitted against the defendant unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. The declarant was unavailable (because he pleaded the Fifth), but Murillo had no prior opportunity to cross-examine. The only question is whether the statement was “testimonial”; and, because it was given to the police (albeit not while in custody) it almost certainly would be regarded as testimonial.

State v. Robert Bintz, 2002 WI App 204, affirmed on habeas review, Robert Bintz v. Bertrand, 403 F.3d 859 (7th Cir 2005)
For Bintz: Elizabeth A. Cavendish-Sosinski

Issue: Whether the codefendant’s noncustodial statement to the police — which, although not acknowledging responsibility for the murder, did admit to threatening the victim and placing both defendants at the scene — was admissible against the defendant as a statement against penal interest.

Holding: Although the Supreme Court held, in Williamson v. United States, 512 U.S. 594 (1994), that the against-interest hearsay exception doesn’t countenance “nonself-inculpatory statements made in generally self-inculpatory narratives,” this statement doesn’t fall in that rule:

¶10. Here, Robert argues the parts of the statement placing him at the scene of the murder were inadmissible under Williamson. We disagree. Although Williamson says while nonself-inculpatory statements are generally inadmissible, it does not establish a hard and fast rule. The court noted, “Even the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor.” Id. at 603. The trial court admitted the whole statement because it saw no attempt by David to shift the blame to Robert. We agree. David’s statement is self-inculpatory. It places him at the scene of the murder, gives him a possible motive, and admits his threat to blow up the bar. At the time he gave the statement, however, David was not under arrest, nor was he told he was a suspect in the murder investigation. He did not attempt to blame his brother for anything, and nothing suggests he was trying to curry favor with the police. These circumstances suggest David was more likely to have been truthful about Robert’s being at the bar that night. We cannot say the trial court erred by admitting David’s statement under Wis. Stat. § 908.045(4).

(Emphasis supplied.)

Though the court barely emphasizes it, the key fact is undoubtedly that the declarant was not in custody. Had he been, then the rule of Bruton v. United States, 391 U.S. 123 (1968) should have been triggered. But whether the suggestion in Bintz — that an in-custody statement may be admissible hearsay against another — remains to be seen.

UPDATE: Whatever the merits of the court’s hearsay analysis, admissibility of David’s statement to the police is highly suspect as a matter of confrontation clause analysis, in light of the subsequently decided Crawford v. Washington (confrontation clause violated if extrajudicial testimonial statement is admitted against defendant unless the witness is unavailable and defendant had prior opportunity to cross-examine the witness — David may have been unavailable because he pleaded the Fifth, but Robert had no prior opportunity to cross-examine him).

State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds

Issue/Holding: A line of inquiry that suggests potential bias is relevant; however, the witness’s “real and appreciable apprehension” of self-incrimination trumps the right of confrontation. In such an instance it may be necessary to prevent the witness from testifying or to strike portions of his or her testimony. ¶¶51-52. (No error found here, because the inhibited inquiry would have been largely cumulative. ¶54.)

State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02
For Chu: Andrew Shaw

Issue: Whether defendant was denied his right to exculpatory evidence when the state failed to disclose that a prosecution witness had received favorable treatment in another case.

Holding:

¶37. As the State notes, prosecutions that end in dismissal and ordinance violations are not admissible to impeach a witness because they are not ‘evidence that the witness has been convicted of a crime.’ See Wis. Stat. § 906.09(1). Although Chu may be correct that the jury may have viewed Weiss differently if it had known about the prior incidents, he fails to explain how the evidence would have been admissible. It was not automatically admissible, and Chu does not identify grounds for its admissibility.

¶38. Instead, Chu’s entire argument is based on his premise that Weiss had a motive to lie on the witness stand because of the deferred prosecution agreement. He cites United States v. Croucher, 532 F.2d 1042, 1045 (5th Cir. 1976), for the proposition that prior arrests that have not led to a conviction may be used to demonstrate a witness’s motive to strike a good bargain with the government. In doing so, he appears to argue that Weiss would lie to improve her bargaining position with the State with respect to charges arising from her arrest.

¶39. Here, however, Weiss’s criminal charge had been dismissed with prejudice by the time she testified. Indeed, the charge was dismissed even before Chu made admissions to Weiss. Additionally, Weiss had already paid the forfeiture associated with the ordinance violations by the time of trial. Accordingly, Weiss had no need, and thus no motive, to strike any bargain with the government. To the extent Chu is attempting to argue that evidence of the deferred prosecution agreement would have been admissible to show Weiss’s motive to lie, we reject his argument.

State v. Tito J. Long, 2002 WI App 114, PFR filed 5/23/02
For Long: Ann T. Bowe

Issue/Holding: Evidence of gang affiliation is admissible (if state shows that defendant in fact was affiliated) to show witness’ bias, per United States v. Abel, 469 U.S. 45, 52 (1984). ¶¶17-19.

State v. Jerry L. Parker,  2002 WI App 159, PFR filed 5/20/02
For Parker: William Christopher Rose

Issue: Whether posttrial destruction of potentially exculpatory evidence (taped drug transaction) requires new trial.

Holding:

¶14. A defendant’s due process rights are violated by the destruction of evidence (1) if the evidence destroyed is apparently exculpatory and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means; or (2) if the evidence was potentially exculpatory and was destroyed in bad faith. State v. Noble, 2001 WI App 145, ¶17, 246 Wis. 2d 533, 629 N.W.2d 317, review granted, 2001 WI 117, 247 Wis. 2d 1031, 635 N.W.2d 781 (Wis. Sept. 24, 2001) (No. 99-3271-CR).¶15. Neither condition is present here. The tape can hardly be said to be “apparently exculpatory.” Both Parker and his trial defense counsel reviewed the tape and declined to introduce it as evidence. The inescapable conclusion is that the tape was not “apparently exculpatory.” A defendant may not sit back while evidence is available and then argue for a new trial on the grounds that evidence is no longer available to him or her. SeeState v. Holt, 128 Wis. 2d 110, 134, 382 N.W.2d 679 (Ct. App. 1985).

Additionally: trial counsel testified that the tape contents were consistent with trial testimony; the tape contents could be effectively reconstructed; and the tape’s destruction wasn’t the result of governmental bad faith. ¶¶16-18.

Similar effect, Ferguson v. Roper, 400 F.3d 635 (8th Cir 2005), in sense of its holding that Arizona v. Youngblood, 488 U.S. 51 (1988) applies to pre-trial not post-trial destruction of evidence.