Against-Penal Interest Statement Exculpating Defendant, § 908.045(4)

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.