Summary
In State v. Sharlow, 61 Wis.2d 388, 212 N.W.2d 591 (1973), the Wisconsin Supreme Court affirmed the judgment, holding that the statements of Henne and McNeal had been properly excluded under the then-existing Wisconsin law on evidence.
Summary of this case from State v. SharlowOpinion
No. State 151.
Submitted under sec. (Rule) 251.54 October 31, 1973. —
Decided December 10, 1973.
APPEAL from a judgment of the county court of Waukesha county: WILLIAM G. CALLOW, Judge. Affirmed.
For the appellant the cause was submitted on the brief of Neal P. Nettesheim and Love, Brown Nettesheim of Waukesha.
For the respondent the cause was submitted on the brief of Robert W. Warren, attorney general, and Christine M. Wiseman, assistant attorney general.
Facts.
The defendant-appellant, Allerd Sharlow, was charged with first-degree murder, party to a crime, contrary to secs. 939.05 and 940.01, Stats. Trial commenced on September 11, 1972. On September 15, 1972, the jury returned a verdict of guilty. On September 19, 1972, the defendant was sentenced by the court to a mandatory term of life imprisonment. On September 19, 1972, defendant's motion for a new trial was denied.
Sec. 939.05, Stats., providing: "Parties to crime. (1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although he did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.
"(2) A person is concerned in the commission of the crime if he:
(a) Directly commits the crime; or
"(b) Intentionally aids and abets the commission of it; or
"(c) Is a party to a conspiracy with another to commit it . . . ."
Sec. 940.01, Stats., providing: "First-degree murder. (1) Whoever causes the death of another human being with intent to kill that person or another shall be sentenced to life imprisonment.
"(2) In this chapter `intent to kill' means the mental purpose to take the life of another human being."
On May 3, 1972, the body of Edwin Harry Frahm, Jr., was discovered in a creek in New Berlin, Wisconsin. A spent cartridge and red spots were found on a nearby driveway. An autopsy showed that the victim had been shot five times in the head. The bullets were fired at close range — one to five inches. Any of three of the five wounds could have caused death. All of the wound trajectories angled downward and to the right.
On the night of May 1, 1972, Thomas Blanchette and Jerry Kruschke were at Sally's Tavern in the city of Milwaukee. At about 11 p. m., Edwin Harry Frahm, Jr., walked into the bar and conversed with Blanchette and Kruschke. The three then left Sally's, telling the bartender, Randall Lydolph, that they were going to the Driftwood Tavern. The bartender went to the Driftwood at about 1:15 a.m. after closing Sally's Tavern. At the Driftwood, Lydolph testified that he overheard a conversation in the men's room between defendant and Blanchette, during which the two discussed "getting" Frahm. The defendant stated, "Let me do it; I want him." Blanchette replied, "No, he's mine." Lydolph observed Kruschke leave the bar and return three times, speaking to Blanchette on each return. Kruschke had left the tavern to secure a revolver belonging to Blanchette, locating it on his third departure and returning with it to the Driftwood. The gun was given to Kruschke by one Arthur McConkey, a neighbor of Blanchette; later it was returned to McConkey who threw the gun into Lake Michigan; McConkey told the police of the disposing of the gun, and the police recovered the gun from the lake.
Under a grant of immunity, Kruschke testified as to his being with Blanchette and Frahm at the Driftwood, and of his three trips to get the revolver. Kruschke testified as to Blanchette and defendant going into the men's room together. Kruschke testified that he, Blanchette, Frahm and the defendant left the Driftwood, driving off in the defendant's car. Kruschke was driving; Frahm was in the front seat; Blanchette and the defendant were in the rear seat. Kruschke testified that he heard a shot ring out and Frahm slumped in his seat, that he saw the defendant holding a gun, the observation made by means of the rearview mirror. Defendant, according to Kruschke, then asked Blanchette if "he should give me [Kruschke] a couple." Blanchette answered in the negative and told defendant to "Give him [Frahm] another one." Additional shots were fired, and defendant handed Blanchette the gun. Blanchette then directed Kruschke to drive to the spot where the body was found and, according to Kruschke, defendant and Blanchette dragged the body from the car to the creek.
The defense called Thomas Blanchette as a witness. He declined to answer any questions, invoking the fifth amendment. Thereafter, the defense proffered the testimony of a Sharon Henne who, if permitted to testify, would have testified that Blanchette told her that "he was the one that had shot this person six times in the head," and that Blanchette asked her "if I would believe him if he told me that he had not actually done the shooting but that Al [Sharlow] did and he wasn't going to `sit' any more for something he didn't do." Additionally, the defense proferred the testimony of a James McNeal who, if allowed to testify, would have testified that he shared a cell in the Waukesha county jail with Blanchette and that Blanchette told him that he [Blanchette] attempted to solicit defendant to shoot Frahm, that Blanchette drew his gun and, despite efforts by defendant to stop him, shot and killed Frahm. The trial court refused to allow admission of the proffered testimony on the ground that statements against penal interest, hearsay in nature, are not admissible as evidence in this state. It is this ruling that is the basis of appeal in this case.
A declaration is against the penal interest of a declarant where the fact asserted in such declaration subjects such declarant to criminal liability.
See: ALI Model Code of Evidence, Rule 509, p. 255.
Courts divide as to whether such statement against penal interest, if hearsay in nature, is admissible in evidence either to inculpate or exculpate a defendant in a criminal trial. A defendant may, of course, exculpate himself by proving, if he can, that someone with whom he was not connected, committed the crime with which he was charged. But a majority of jurisdictions hold that he cannot do so by hearsay. Such jurisdictions hold that the extrajudicial declarations of a person other than the accused, tending to show that such other person committed the crime, if hearsay in nature, are not competent or admissible evidence. Such jurisdictions generally admit into evidence declarations against interest in which the interest militated against is financial or pecuniary in nature, but hold inadmissible into evidence a statement or declaration of a third person against such person's penal interest.
See: Am. Jur. 2d, Evidence, p. 592, sec. 541, stating:
"The general rule followed by most of the authorities on the subject is that a confession by a third person that he committed the crime which the defendant is charged with having committed . . . is not admissible as substantive evidence tending to exculpate the accused unless it constitutes a part of the res gestae. The reason given by the courts for excluding such evidence is that it is hearsay. . . ."
See: 22A C. J. S., Criminal Law, pp. 1189, 1190, sec. 783, stating:
"As a general rule where several persons are charged with the same offense, as codefendants or conspirators, the acts or declarations of one of them, while they may be admissible in his own behalf, are not competent in favor of another, unless they are so closely connected with the actual commission of the crime as to constitute a part of the res gestae. . . . So, the declaration of one of two codefendants that he and not the other committed the offense with which both are charged is not admissible in favor of the other." [Cases cited.]
See: 22A C. J. S., Criminal Law, p. 1116, sec. 749, stating:
"In jurisdictions where the rule that declarations against interest are admissible in evidence is limited to those instances in which the interest militated against is either of a pecuniary or a proprietary nature, as discussed in Evidence, sec. 219, a declaration or statement of a third person against his penal interest only has been held not admissible against accused to inculpate him. . . ." [Cases cited.] As to such statements, exculpatory in nature, see: Donnelly v. United States (1913), 228 U.S. 243, 33 Sup. Ct. 449, 57 L.Ed. 820.
This majority holding as to statements against penal interest being inadmissible as hearsay has been challenged as unsound, and a number of jurisdictions have held that statements by a third person exculpating or exonerating an accused, when voluntary and even if against the penal interest of the declarant and made out of the presence of the accused, are properly admitted into evidence. The rationale of the minority point of view was adopted by the drafters of the ALI Model Code of Evidence in proposed Rule 509, the accompanying comment making clear that the proposal "differs from the generally accepted law" as to admissibility of hearsay statements against penal interest.
Id. at page 1116, stating: "Other authority, however, has held the limitation of the rule to be unsound, and the admissibility of a statement by a third person exculpating or exonerating accused, when voluntary and against the penal interest of the declarant and made out of the presence of accused, has been recognized." [Cases cited.] See also: McCormick, Evidence (2d ed.), pp. 673-675, sec. 278; 5 Wigmore, Evidence, pp. 281-290, secs. 1476, 1477.
See: People v. Lettrich (1952), 413 Ill. 172, 108 N.E.2d 488; Brady v. State (1961), 226 Md. 422, 174 A.2d 167; Deike v. Great Atlantic Pacific Tea Co. (1966), 3 Ariz. App. 430, 415 P.2d 145; State v. Leong (1970), 51 Haw. 581, 465 P.2d 560; People v. Brown (1970), 26 N.Y.2d 88, 257 N.E.2d 16; State v. Larsen (1966), 91 Idaho 42, 415 P.2d 685; Sutter v. Easterly (1945), 354 Mo. 282, 189 S.W.2d 284. See also: Chambers v. Mississippi (1973), 410 U.S. 284, 93 Sup. Ct. 1038, 35 L.Ed.2d 297, holding that, under given circumstances, exclusion of testimony critical to defendant's defense may constitute a denial of due process.
ALI Model Code of Evidence, Rule 509, p. 255.
Id. at page 255, stating: " a. Comparison with existing law. The Rule differs from the generally accepted law in several important respects. The great majority of decisions admit only declarations against pecuniary or proprietary interest. They definitely reject declarations against penal interest. . . ."
In Wisconsin, under the new Wisconsin Rules of Evidence, patterned after the ALI Model Code of Evidence, it is clear that declarations against penal interest are to be admissible into evidence as exceptions to the hearsay rule. As this court noted in State v. Johnson last month, "These rules are effective January 1, 1974, and apply to actions then pending or commenced thereafter." As to whether declarations against penal interest were admissible as exceptions to the hearsay rule, prior to the effective date of the new rules of evidence, the Johnson Case makes clear that they were not. On the precise point involved in the appeal before us, the Johnson Case controls, holding: "Our conclusion, therefore, is that the hearsay statements . . . are inadmissible since the hearsay exception does not apply prior to January 1, 1974, to declarations against penal interest." It follows that the trial judge properly applied the law of this state to the facts of this case when he held inadmissible the proffered hearsay testimony of Sharon Henne and James McNeal as to statements against penal interest made by Thomas Blanchette.
Ch. 908, Stats., Wisconsin Rules of Evidence (effective January 1, 1974).
Sec. 908.045(4), Wisconsin Rules of Evidence (effective January 1, 1974), 59 Wis.2d R308 (1973), providing: "STATEMENT AGAINST INTEREST. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated."
State v. Johnson (1973), 60 Wis.2d 334, 339, 210 N.W.2d 735.
Id. at page 339. Also stating at pages 339, 340: "As to declarations against penal interest, the state is correct in its position that the former rule in Wisconsin has been limited to declarations against pecuniary or proprietary interest. . . ." See also: Truelsch v. Miller (1925), 186 Wis. 239, 202 N.W. 352; Meyer v. Mutual Service Casualty Ins. Co. (1961), 13 Wis.2d 156, 108 N.W.2d 278; Tarasinski v. State (1911), 146 Wis. 508, 131 N.W. 889.
The state contends that the excluded testimony would not have been admissible, even under the new Wisconsin Rules of Evidence, because of the statutory requirement therein contained that a statement exposing the declarant to criminal liability and tending to exculpate the accused must be corroborated. A similar requirement of corroboration is contained in the new Federal Rule covering the same subject and using the same language. The requirement of corroboration does appear to be a compromise between complete exclusion and automatic admissibility of hearsay statements against penal interest. However, where the new rule, requiring corroboration before statements against penal interest may be admitted into evidence, is not yet effective, we see neither reason nor right to determine what corroboration entails or requires. This case must be decided upon the basis of what the law is now and has been, not on the basis of what it will become on January 1, 1974.
Sec. 908.045(4), provides: ". . . A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated." See also: Judicial Council Committee's note to sub. (4), stating: ". . . Excluded from `statements against interest' are statements of a declarant tending to expose him to criminal liability and offered to exculpate the accused, unless the declarant's statement is corroborated." Wisconsin Rules of Evidence, 59 Wis.2d R318.
Federal Rule 804(b)(4), Rules of Evidence for United States Courts and Magistrates, 56 F. R. D. 183, 321.
Advisory Committee's note, Rules of Evidence for United States Courts and Magistrates, 56 F. R. D., at page 327, states: ". . . The refusal of the common law to concede the adequacy of a penal interest was no doubt indefensible in logic. . . but one senses in the decisions a distrust of evidence of confessions by third persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making of the confession or in its contents, enhanced in either instance by the required unavailability of the declarant. Nevertheless, an increasing amount of decisional law recognizes exposure to punishment for crime as a sufficient stake. . . . The requirement of corroboration is included in the rule in order to effect an accommodation between these competing considerations. . . ."
Additionally, the state contends that the statements to the girl in the apartment and to the cellmate in the jail are not to be characterized as "exculpatory" statements. The reference is to the fact that the defendant was charged and convicted as a party to a crime of first-degree murder. In this state, by statute, anyone who intentionally aids and abets or is a party to a conspiracy to commit a crime is guilty as a principal. Conviction as a party to the crime would not rest, in the case before us, on the question of who pulled the trigger. Believing the testimony of the washroom conversation about "getting" the victim, the trips to get the gun, the driving off in defendant's car with the victim in the front seat, the shots and disposal of the body, all three in the car — the driver and the two in the back seat — could be found guilty as parties to the crime of first, degree murder. However, holding that the statements against penal interest were properly excluded under the hearsay rule makes it unnecessary to consider or determine whether such hearsay statements were in fact completely exculpatory. The defendant here was properly convicted of the crime of murder in the first degree, party to the crime.
Sec. 939.05, Stats. See: State v. Cydzik (1973), 60 Wis.2d 683, 211 N.W.2d 421, as to sufficiency of evidence to sustain conviction for first-degree murder, party to a crime.
By the Court. — Judgment affirmed.