State v. Anderson

Wisconsin, STATE of Plaintiff-Respondent-

Petitioner, ANDERSON, John Mann Defendant-Appellant.

Supreme Court Argued September No. 86-0612-CR. 1987. Decided December 1987.

(Also 276.) reported in 416 N.W.2d plaintiff-respondent-petitioner For the the cause argued by attorney Glinski, was John J. assistant general, with whom on the briefs was Donald J. Hanaway, general. attorney defendant-appellant

For the was a there brief and argument by Tyroler, oral William J. assistant state public defender. BABLITCH,

WILLIAM A. J. The State of Wis- (State) appeals’ consin seeks of review a court of ordering decision defendant, a new trial for the John (Anderson). Mann Anderson Anderson was on convicted several counts relat- ing possession shotgun. to his of a short-barreled At possession trial, Anderson contended that his gun privileged. support defense, was In of this he sought to two introduce out-of-court statements made by exculpated his brother Luther. The statements subjected liability. Anderson and Luther criminal to primarily The trial court excluded the statements grounds they on the lacked sufficient corrobora- appeals finding reversed, tion. The court of sufficient of that the standard corrobora- We hold corroboration. required by Stats., is corroboration sec. tion permit conclude, a reasonable sufficient light circumstances, all the facts and in of such could be true. The record discloses Accordingly, we affirm. facts. by jury guilty a and convict- found

Anderson was shotgun, possession of short-barreled sec. a ed possession felon, Stats., 941.28, 941.29(2), firearm sec. of a 946.41(1). justice, and obstruction occurring on the arises from an incident conviction evening Anderson and his of March when (Luther) brother, Anderson were at bar. Luther only trial, Anderson, witness at who was the defense following sequence of events. testified to the gambling the bar Luther was the basement upstairs drinking. gambling A was while Anderson subsequently erupted dispute Luther and between Luther believed had cheated him another man whom pulled a shot- of three dollars. Luther short-barreled gun pointed gun at the from his and briefcase gun grabbed downstairs, Anderson came man. Luther, to run. told the man Luther and from carrying bar, then left the with Anderson Anderson gun. containing Anderson re- Luther’s briefcase light give the briefcase to Luther fused to gun. intentions use the While Luther’s earlier police spotted carrying walking away, Anderson briefcase, saw him set the briefcase down. The and police briefcase and arrested them both. seized the Luther were arrested two blocks

Anderson and police, questioned by from the bar. When both knowing gave each other and false denied brothers however, name, names. Luther’s was on brief case personal papers was the case. There no and on inside investigation police of the events at the bar. Anderson charged possession was with three counts: of a short- shotgun, possession by barreled of a firearm a felon obstructing charged an officer. Luther was not custody. and was released from trial, theory At Anderson based his defense on the possession gun privileged that his was because necessary protection person. it was for the of a third support attempted defense, In of this Anderson by introduce statements made Luther to their mother day attorney after the incident and Anderson’s stating days later, several that Anderson had inter- during gambling dispute gun vened and took the prevent shooting from Luther to Luther from some- extrajudicial one. The court held that Luther’s state- ments were and were inadmissible as state- against primarily ments interest because the statements lacked corroboration. jury guilty charges. found Anderson of all appealed

Anderson his conviction on the first two arguing counts, that the statements were admissible 908.045(4), Stats., under sec. which states: Hearsay exceptions; ”908.045 declarant un- following available. The are not by excluded hearsay rule if the declarant is unavailable as a witness:

"(4) against Statement A interest. making which was at the contrary time its so far pecuniary proprietary declarant’s or inter- est, or subject so far tended to the declarant to civil liability or criminal or to render invalid claim the declarant another or to make hatred, ridicule, object declarant an disgrace, or that a position reasonable in the declarant’s unless made the statement not have

would tending true. A statement to be believed liability and criminal declarant to expose to is not admissible exculpate the accused to offered ” added.) unless corroborated. (Emphasis appeals court reversed the trial The court judgment The court of a new trial. and ordered erroneously appeals court had found that the trial against and that such interest the statement excluded petition for State filed a harmless. The error was not interpreta- appeals’ challenging court of review, requirement, which was corroboration tion of the April granted 7, 1987. on provides, part, Stats., a Section expose tending crimi- the declarant to "statement exculpate liability is not offered to accused nal issue central unless corroborated.” admissible required by the of corroboration before us is extent presents question of a Because this issue statute. question statutory law, construction, a court independently may and without matter decide the the trial court and determinations of deference appeals. City Donohoo, 118 Wis. Madison v. court of 348 N.W.2d 2d admitting for The various standards exculpate against penal interest, an ac- offered admissibility. along spectrum At one cused, fall spectrum, all statements end of the no whatso- admissible with corroboration interest are approach admissibility permissive is ever. Such any state- on notion that the nature of founded provides against penal per se interest ment for admissibili- sufficient assurance of trustworthiness Against ty purposes. Note, Inter- Penal Declarations Standards Admissibility est: An Under Emerging Rule, Majority 148, (1976). 56 B. U. L. Rev. 176-77 contrast, the

By restrictive end of the spectrum limits admissibility those statements which the show, corroboration, defendant can through to be true. Larsen, See State v. 91 Idaho 415 P.2d 685 (where (1966) prior adoption of federal rule 804(b)(3), Idaho required that "clearly evidence indi- cated” that the declarant was of the crime guilty for trial). which the accused was on Jurisdictions such as Idaho, which have used stringent corroboration for standard have admissibility, done so based on a belief against interest are inherently untrustworthy and should only be admissi- ble when all doubt their has been falsity removed. Note, Declarations Penal Against Interest: What Must Be Corroborated Under The Newly Enacted Federal Evidence, 804(b)(3)?, Rule Rule 9 Val. U. L. Rev. Of 421, 438 case,

In the the State asserts the 908.045(4), Stats., corroboration standard of sec. should be interpreted consistent with the federal clearly standard "corroboration indicating added.) trustworthiness of the statement.” (Emphasis 804(b)(3).1 disagree. Fed. R. Evid. We 804(b)(3): 1Fed. R. Evid. " Hearsay (b) exceptions.— following by

"The rule if the are not excluded declarant is unavailable aas witness: "(3) against Statement interest.— making "A statement which was at the time of its so far interest, contrary pecuniary proprietary declarant’s or or so subject liability, far tended to him to civil or criminal or to render another, invalid claim him that a reasonable man position his would not have made the statement unless he

659 stan federal corroboration of the stringency end of the restrictive close places dard Barrett, States v. See United spectrum. admissibility 1976) (where court, (1st Cir. F.2d 804(b)(3), required corroboration rule federal applying trustworthiness indicated "solidly” Satterfield, United States 572 F.2d statement); denied, (1978) 1978) cert. U.S. 840 (9th Cir. do more than must ("corroborating circumstances statement; the trustworthiness to indicate tend clearly it")(emphasis indicate in original); they must (referring to the federal Note, at 173 B. U. L. Rev. strictest corrobora establishing of the rule as "[o]ne requirements”). tion is, compar- standard

Wisconsin’s corroboration language history of ison, stringent. From the and less 908.045(4), Stats., taking into consideration and sec. regarding exceptions, the hearsay general policies the defense, right to present constitutional a defendant’s in determin- judge and respective jury the roles and we con- assessing credibility, and ing admissibility is corrobora- the standard of corroboration clude that to to a reasonable permit tion sufficient circumstances, conclude, all and light the facts could be true. that the statement 908.045(4), Stats., and of sec. language history restrictive Wisconsin has taken a less suggest standard. than the federal approach admissibility against part, that a statement provides, The statute tending expose the declarant believed to be true. A statement exculpate liability not accused is to criminal and offered the clearly corroborating circumstances indicate admissible unless added.) (Emphasis trustworthiness statement." penal interest offered to exculpate an accused is not admissible "unless corroborated.” This language facially different from the imposes federal rule which requirement of corroborating circumstances "clearly indicate the trustworthiness of the added.) 804(b)(3). statement.” (Emphasis Fed. R. Evid. 908.045(4) Nothing in language suggests federal standard of "clearly” indicating trustworth- iness. it is

Additionally, notable that Wisconsin never adopted language or approach federal corroboration standard for interest. The limited of sec. history Stats., indicates the State Judicial Council mod- eled the Wisconsin rule after the language of a United Supreme 804(b)(3) States Court draft of federal rule which used language, "unless corroborated.” Min- 17, utes of Wisconsin Judicial Meeting, Council March Comm, 1973, 27,1973; see also House April on the Judiciary, Evidence, on Report the Federal Rules of H.R. Rep. (1973), No. 93rd Cong., 1st Sess. in, reprinted & 1974 U.S. Cong. Code News Ad. 7089. This draft was referred to requiring only as "simple corroboration” of the statement’s trustworth- iness. Id. However, the House Judiciary Committee believed against that statements penal interest excul- pating an accused especially suspect were and re- quired "some provision ensuring further trustworth- iness.” Id. The House Committee concluded that the proposed simple corroboration standard not would accomplish this purpose and subsequently modified by draft rule increasing require- corroboration ment include the language of federal rule 804(b)(3). Id. In the interim, adopted Wisconsin 908.045(4) in June of 1973. Rules of Wisconsin Evi-

661 of the R2. Federal consideration 59 Wis. 2d dence stringent 1973, later in with occurred standard more 804(b)(3)occurring in of rule enactment eventual Rulemaking Tague, generally Perils 1974. See of Development, Application, and Unconsti- The Process: 804(b)(3)’s Exception, tutionality Penal Interest Rule (1981). Notwithstanding 851, 889-92 69 L. Rev. Geo. change language standard, the federal in the the federal initiative followed Wisconsin has not increasing requirement of sec. the corroboration 908.045(4). today of corroboration we enunciate

The standard permit conclude, a reasonable sufficient light circumstances, the facts and in of all general true, is with the could be consistent statement excep- hearsay exceptions. policies represent for evi- the need a balance between tions untrust- ascertain truth and exclusion dence to worthy 429; Note, 9 L. Rev. at Val. U. evidence. (1973); Mississippi, 284, 5 298-99 v. 410 U.S. Chambers Wigmore, (Chadbourn 1422, rev. Evidence secs. Party’s 1974); Note, Third Evidence: Admission of Marq. Against Interest, L. Rev. Penal Declaration (1964);Dillenberg 417, Carroll, v. 259 Wis. 252-53 49 N.W.2d particu- hearsay evidence, in The critical need for especially against penal interest, lar statements apparent of a trials where the exclusion criminal exculpating in an an could result accused Wigmore, generally 5 Evi- erroneous conviction. See (noting a rule which excludes dence sec. exculpating an interest "shocking trial, is, of a criminal accused context Donnelly justice”); States, United senses 662 (1913) J., 228 (Holmes, U.S. 277-78 dissenting). In Chambers v. Mississippi, United Supreme States recognized Court necessity admitting such statements in a criminal trial. Chambers v. Mississip- pi, 410 at 302. U.S. The Court struck down Mississip- pi prevented law the defendant from introduc- ing exculpatory against penal interest. Court noted that the testimony was critical defense and stated that rights are more funda- "[f]ew mental than that of an accused to witnesses in his own defense.” Id. Similarly, this court has histori- cally recognized the need for evidentiary declarations Miller, v. against Truelsch interest. 186 Wis. (1925),

202 N.W. 352 cited in the Judicial Council 908.045(4), Committee’s Notes to Stats., 59 Wis. 2d (where court, R318 when considering precursor exceptions 908.045(4), of sec. noted that state- against ments interest are "sometimes the only mode Carroll, proof ...”); available Dillenberg Wis. cited in the Judicial Council Committee’s (where Notes to sec. 2dWis. R318 court cites with approval that, the statement "'[t]he theory under which against declarations interest are received in evidence are notwithstanding they hear- say is that necessity the occasion renders reception ...’”). of such evidence advisable.

We recognize this need for evidence tempered aby countervailing concern for the exclu- sion of Note, untrustworthy statements. 9 Val. L.U. Rev. at 429. A specific concern associated with state- interest, ments exculpate offered to an accused, declarant, both, is that the accused or the or may have a motive to fabricate the statement. See Fed. 804(b)(3) R. note; Evid. advisory committee’s C. McCor- Law mick, (2d. Evidence sec. 278 1972); ed. Thus, Wigmore, 1477. to circum- secs. Evidence have most state laws risk, law and federal vent this requirement imposed in addition some corroboration subject requirement tends to that the statement liability. generally 4 J. See to criminal the declarant Berger, Evidence: Com- M. Weinstein’s Weinstein & mentary the States Evidence United on Rules for (hereinafter Magistrates to as referred Courts and Weinstein),

804(b)(3) (1987); Wig- [03] at 804-157 1987). (Supp. more, 1476 at 354 n. Evidence proper bal- achieves a enunciated standard competing policy concerns. It these ance between acknowledges for the critical need the sometimes subjecting by hearsay not the defendant statement evidentiary hurdle for admissibili- an insurmountable ty. Note, B. L. Note, 440; L. Rev. 56 U. Rev. 9 Val. U. at applying (proposing rule at 174 that courts federal admissibility adopt approach toward should flexible requirement not the corroboration does arbi- so that trarily evidence). It reduces the risk exclude valuable requiring by of fabrication the statement itself light permits to conclude of all a reasonable could the facts and circumstances that statement safeguards other exist for be true. We note also that circumventing judge example, For fabrication. judge may hearsay if exclude the finds outweighed probative tendency by its that its value is jury. 904.03, to mislead to Stats. Section preserves Moreover, an this standard accused’s right right evidence, constitutional estab- Mississippi. Chambers, In lished under Chambers v. process Supreme required Court held that due testimony, admission of excluded the trial hearsay statutes, court under state because testi- mony possessed persuasive assurances of trustworth- iness and was essential to the Chambers, defense. U.S. 302. The Court enunciated a series of factors constitutionally compel which would the admission of hearsay testimony, one which is the existence of corroborating evidence the statement. Id. at 300-01. precise While the contours of this corroboration impliedly unclear, approved standard aré the Court requiring simple the draft of the federal rule corrobo- (where ration. Id. at 299 n. 18 the Court states that against penal [of "exclusion interest] required newly proposed would not be under the [Supreme Federal Rules of Evidence Court draft Rule (Footnote omitted.) 804]”).

Because Wisconsin’s corroboration standard is Supreme modeled after the United States Court draft interpretation rule and our of the standard facilitates ability present rather than restricts the defendant’s constitutionally evidence, it is consistent with Cham- Arguably, may bers. our standard be more consistent right with the defendant’s constitutional stringent evidence than is the more federal standard. argued One commentator has that the is latter suspect appears constitutionally impose because it greater evidentiary burden on the is defendant than permissible Tague, under Chambers. 69 Geo. L. Rev. at 1006.

Finally, the enunciated standard the maintains jury’s assessing determining credibility role and weight limiting properly judge’s while the role to admissibility threshold determination of whether a person light conclude, in reasonable could the of all circumstances, facts and the that statement could be question judge true. The before is the not whether the judge personally the true, believes but

665 corroboration for a is sufficient whether there rather it could be true. to conclude reasonable recognizes jury’s function that it is the law Wisconsin weigh credibility and to the of witnesses to assess 289, 276, Buchman, 68 2d 228 Wis. Bode v. evidence. (1975); Brown, 96 Wis. 2d N.W.2d 718 State requiring By not 245-47, 291 N.W.2d "clearly” trustworthiness, indicates evidence jury’s judge into the does not thrust our standard weighing assessing credibility and evidence. role of preserves respective judge of the Thus, roles jury. 154; Note, B. U. L. Rev. at United States v. cf. (4th 1982), MacDonald, Cir. cert. 688 F.2d (1983)(where denied, noted the court 459 U.S. jury’s responsibility judge shares the weighing an when he or she makes the evidence 804(b)(3) admissibility rule be under determination fabrication). high contrast, risk In cause federal more restrictive corroboration standard stripping jury of this criticized for rule has been Tague, customary 1000; 69 L. at function. Geo. Rev. 804(b)(3) Weinstein, 804-146. [03] at given Therefore, restrictive corrobora- that a less language history is indicated tion standard purposes Stats., advances the of of sec. hampering unduly preventing fabrication without hearsay statement, is constitutional- admission of usurp ly Chambers, consistent with and does not credibility, judging jury’s that role we conclude of 908.045(4) interpreted consistent with should not be Ryan State, To that 95 the federal rule. the extent v. (Wis. 1979), App. 83, 96, 289 349 Ct. Wis. 2d N.W.2d adopted the federal corroboration standard when determining admissibility of statements overruling interest, it is overruled. In the court adoption appeals’ of the federal corroboration ruling standard, we note that our in this case shall prospective only, except ruling have effect that this apply shall to this case and to other cases which have not been finalized on the date of the release opinion. finalized, For a. case to be there must be a judgment conviction, sentence, and exhaustion of rights appeal. State, La Claw v. 41 Wis. 2d 147, 163 N.W.2d 165 N.W.2d 152 We note that our standard is consistent with the approaches of other courts and commentators who language have not followed the of the federal rule. See People (1978) Settles, 46 N.Y.2d 169-70 (requiring "supportive” evidence sufficient to estab possibility lish a "reasonable the statement might true”); be Goodlow, United States v. 500 F.2d (8th 1974) (where apply Cir. the court did not higher requirement corroboration of the federal required, rule but instead "corroborative circum giving stances an aura of trustworthiness statements”); Wigmore, see also Evidence sec. (who speaks "probability of of trustworthiness” as adequate guarantee hearsay generally); an for Wein stein 804(b)(3) ^[03] at 804-141 (who proposes a stan requires, part, indicating dard which corroboration true”); that the Note, statement "could be 56 B. U. L. ("[bjecause only Rev. 175-76 the defendant need jurors create a reasonable doubt the minds of the acquittal, justify a declaration should be admitted possibility whenever there is a reasonable crime.”). (Footnote omitted.) declarant committed the application We now consider the of the standard undisputed presented facts on review. undisputed application is a facts a statute question Thus, no this court owes deference of law. deciding when such of the lower courts the decision Board, 117 Area Wis. 2d No. matters. Ball v. District 345 N.W.2d Reviewing undisputed facts of the the relevant than sufficient find that there were more record we person to for a reasonable facts and circumstances could true. Luther’s statements be conclude that independent linking Specifically, evidence there was Luther at the scene of the crime: was Luther bar; two from the crime; he was arrested blocks his it and had name on contained his the briefcase gun papers. Additionally, personal handle was protruding arrest, at the time of from the briefcase supporting testimony thus, that Anderson had gun removing placed quickly in the briefcase after it from Luther.2 inadequate suggests this is 2The dissent corroboration Sharlow, previous 2d

light decision in State v. Wis. of our (1983).However, on the dissent’s reliance 327 N.W.2d 692 Sharlow defendant, Sharlow, puzzling. was tried and At time the convicted, exception against penal hearsay for statements and, 908.045(4),Stats., therefore, interest, yet was sec. not effective fact, applied by applied court. In the rules was not under Sharlow, against penal recog interest were not even exception and were unless the nized a inadmissible as was violative of the defendant’s exclusion such evidence Sharlow, rights, as established under Chambers. constitutional provides 2d 232. While the Chambers decision 110 Wis. evaluating constitutionality evidentiary of an for benchmark standard, Supreme Court did not establish the United States Therefore, evidentiary requirement specific for corroboration. our bearing application on our decision in Sharlow has no 908.045(4) in the case. standard corroboration by ruling Therefore, the trial court erred that penal against Luther’s statement interest lacked sufficient corroboration. Given that Luther’s state- ment, believed, if could have resulted in Anderson’s appealing, exoneration from the convictions he is we testimony find that the exclusion of this was not harmless error and warrants new trial. State v. Dyess, 525, 546-47, 124 Wis. 2d 370 N.W.2d 222

Although our conclusion and the facts considered appeals, were identical to that of the court of we note respective that our statements of the corroboration standard Anderson, differ. See State 137 Wis. 2d (Wis. 1987). App. 274, 404 N.W.2d 100 Ct. To the appeals’ extent that the court of standard deviates language from the standard, our it is modified. By ap- the Court.—The decision of the court of peals is affirmed. (concurring).

DAY, J. I concur in the result but opinion. majority not in the I conclude that there was sufficient corroboration under the facts in this case. fact defendant’s brother’s name was on the briefcase and papers that his were inside the briefcase where the weapon was found was sufficient corroboration to hearsay question go allow the statements in jury. probabil- It was for the factfinder to evaluate the ity of truthfulness of those statements. (dissenting.) join

STEINMETZ, J. I Justice Ceci’s express my and, addition, dissent I write to belief majority’s new test for the admissible evi- judges. dence leaves no discretion with the trial Designed, accept- devised and devisive is now All statements under new test.

able or not must now be interest whether corroborated per- "[the] [is] if corroboration sufficient admitted light conclude, all mit a reasonable circumstances, that the could be facts and 656.) necessary (Majority I believe it first true." is to even have corroboration that statement was made. majority's in similar The word "could" test is to "possible." equally weak determinative word another Anything "possible;" could is that a statement be true standard, not be the but rather the test should be should corroborating that, whether circumstances indicate on probable balance, it is than not that the statement more standard, i.e., even This one of was true or probability, made. majority's strikes a balance between "possibility" stringent and more standard standard requiring clear corroboration. ). (dissenting outset, CECI, I

LOUIS J. J. At the premise position by noting my I have no to wish quarrel with the that there exists a fundamental fact right present under of the accused to evidence Cham (1973), Mississippi, 410 U.S. 284 and that v. bers right must not defeated the "mechanistic” be hearsay e.g., application See, rule. of a State v. McConnohie, 2d 358 N.W.2d 256 121 Wis. (1984); 233, Sharlow, 226, 2d State Wis. (1983); 238, Brown, 2d N.W.2d 692 State v. 96 Wis. denied 449 U.S. 291 N.W.2d cert. contrary

However, rule at issue in to permitted exception which no for declara Chambers against penal interest, Wisconsin, under tions 908.045(4), permits

Stats., the introduction of declara against penal hearsay excep- tions interest under the where the statement tion is corroborated. The Wiscon- precise fluidity sin rule contains the element necessarily application per- avoids mechanistic and proper right mits the balance between the evidence untrustworthy one’s defense the need to exclude preserve jury

evidence order to integrity. opinion’s majority interpretation

The effect of the requirement of the effectively Stats., of sec. is to requirement eliminate the of corroboration destroy statutory and, hence, assurance majority fabrication. The states that the corroboration 908.045(4) requirement of sec. if satisfied corrobora- permit tion is "sufficient a reasonable light conclude, in all the circumstances, facts and 1,1Majority that the statement could be true. at 656. purpose This standard does not further the requirement; person might corroboration a reasonable be "permitted" any conclude, to absent corroboration what- soever, purpose that a statement "could"2be true. The facially proposed 1While a similar standard has been with rule, respect may to the federal this standard not be conformed to rule, 908.045(4), Stats., by merely the Wisconsin the elimina tion Weinstein’s of the term Evidence, "clearly.” U804(b)(3) Cf. 4 ^[03] J. Weinstein and M. at 804-141 (1985) Berger, ("The only court should ask for 'clearly’ sufficient corroboration to permit might a reasonable man to believe that the statement have true”) good (emphasis been made in faith and that it could be original). Moreover, the standard set forth in Weinstein’s treatise unequivocally accepted. See, e.g., has not been United States v. (5th 162, 168 1976), Bagley, 537 F.2d 429 Cir. cert. denied U.S. 1075 modification, permis 2Without the word "could” articulates a requiring only law, by sive standard defined as be "to enabled agreement, custom; right to; permission or have to have to.” (5th 1979) "can”). Dictionary (defining Black’s Law 186 ed.

671 requirement to assure is not corroboration lacking of statements so into evidence admission "permit" credibility reasonable not as indicia they The should focus be true. "could" to believe upon of the statement's the reasonableness not be having possibility made, been but itsof and the content upon wheth- corroboration and the reasonableness state- that the indicates evidence er the corroborative probably minimum, the standard At a was made. ment proffered require to corroborate evidence should relevancy minimum meet a requirements Specifically, 904.01. under sec. set forth corroborating found should at least be circumstances person's support state- that the belief a reasonable probably true. than not ment more express disagreement I with further the court’s upon Miller, v. reliance decision Truelsch 186 (1925).3 239, 202 N.W. 352 Wis. relevance of the Moreover, interchangeably the term "could” is often used with id., "may,” generally interpreted has been to connote nothing See, grant Smith, e.g., than a discretion. more Miller v. 609, 616, (1981); 100 Wis. 2d 302 N.W.2d 468 Hitchcock v. Hitchcock, 214, 220, (1977); Wis. 2d N.W.2d State v. (Ct. 1985) ("The Bauer, 401, 411, App. 2dWis. 379 N.W.2d 895 'may’ generally interpreted permissive, allowing word has been as discretion”). the actor to use significance apparently

3The majority attached reference in the Judicial Council Committee’s Note to Truelsch Carroll, Dillenberg (1951), 259 Wis. 49 N.W.2d 444 misplaced. arguably The Judicial Council Committee’s Note Dillenberg indicates that Truelsch and could be deemed relevant 908.045(4) however, only, adopted to the that sec. extent as was existing However, codification of case law. the inclusion within the exceptions hearsay against penal to the rule statements interest quoted proposition yvas to the for which it cited becomes doubtful where the entire sentence quoted portion from which the was extracted is examined: "The fact the statements are not during admissible the life of the declarant and that only such declarations are sometimes the mode of proof regarded available are as additional for reasons reception of such statements in evidence without by the sanction of an oath the declarant.” Id. at 248. quoted passage respect This was made with to a rule admissibility longer as to the of statements no fol- stringent lowed more than sec. to the specific safeguards against extent fabrication regarding were contained within the rule. The rule against statements interest in effect at the time provided excep- Truelsch was decided as follows: "The persons, tion is that the deceased, declarations of since provided are peculiar admissible evidence the declarant had knowing stated, means of the matter if he misrepresent it, had no interest and if was opposed pecuniary proprietary to his or interest.” Id. exception Hence, at 246. embodied within the there was assurance fabrication since in order for hearsay these admitted, to be it was necessary peculiar to show that the "declarant had knowing contrary Thus, means the matter stated.” present herein, to the facts in Truelsch there was significant operation corroboration to warrant exception rule. bar,

In the case at there was or no evidence testimony independent proffered by of that the de- corroborating proffered fendant statements. Con- exculpate "[c]hanges offered is within the accused effected [908.045(4)].” subsection Wis. 2d at R318. trary Chambers, addressed to the statements hearsay not "offered at in this case were provided that considerable trial under circumstances reliability.” U.S. 300. of their assurance from the Luther arrested two blocks evidence that was it had his name on and and that briefcase bar personal papers merely that establishes contained his of the crime. There was Luther was near the scene establishing ownership of Luther’s neither evidence gun beyond eyewitness testimony that of the nor possession gun of the that defendant as to Luther’s evening. Compare Chambers, 410 U.S. at 300. with correctly questions majority that

While the states interpretation questions statutory are of law re- of this court without deference the courts viewable proposition below, does warrant a total this not disregard well-recognized proposition that it is weigh is best situated to the "'trial court which reliability surrounding [a] of the circumstances decla- (quoting McConnohie, 121 at 73 Wis. 2d ration.’” 245-46). Brown, 2d at also 96 Wis. See Christensen Economy Casualty Co., 2d Fire & Wis. (1977) (admissibility hearsay

N.W.2d 81 not within discretion of court such discretion will premised upon or an unless it is abused is be reversed law). Consequently, of the this court erroneous view regarding should reverse the trial court’s decision not reliability it is statement unless clearly may Therfore, erroneous. Id. while court review the trial court’s decision the extent ab initio upon interpretation premised an portion of the trial decision court’s discretionary merely determination involved a reliability must accorded deference. be Specifically, the trial court in the matter highlighted the fact that "all we had was the defend- happened ant’s statement as to what at the scene. nothing really There was else that corroborated what Luther Anderson had told his mother ...Stated proffered otherwise, the trial court found that the independent evidence not did or corroborate further reliability necessary the of the statements at all. In regard, apparent it becomes that what is clothed statutory in terms of construction in is fact an improper of review the trial court’s discretion. If statutory construction was in involved the trial court’s weight decision, it was not in its determination of the given proffered independent to be the A evidence. determination that the evidence was devoid of corrob- require statutory interpretation orative value did not regarding the extent of corroboration If needed. the presents statutory trial court’s decision an issue of arguably finding construction, it would exist in its testimony that the defendant’s own was unavailable for City Compare use as corroboration under the statute. Donohoo, Madison v. 118 Wis. 2d of (1984); Oostburg N.W.2d 170 and Bank v. United Savings, (1986), 4, 11-12, 130 Wis. 2d 386 N.W.2d 53 McConnohie, However, 2d with Wis. at 73. was aspect in which not the latter of the trial court's decision opinion majority error. the found Consistency with the dictates of Chambers does require not such a broad liberalization of the corrobo- requirement ration to as admit all but those state- possibly ments which a reasonable could not believe. There was no of the trial abuse court’s proper bar, in discretion the case at since with the and necessary testimony, exclusion of the defendant’s own independent remaining testimony only establish- in presence general vicinity

ed the declarant’s However, requirement the incident. the scene of beyond necessitates evidence the declar- corroboration incident; location of an such presence ant’s truthfulness not corroborate the evidence does This distinction both self-evident statement. recognized previously implicitly which has been one Sharlow, example, 110 Wis. 2d the court. For 226,4 presence in the not was the declarant’s only unques- of a crime vicinity immediate scene tioned, position was consistent with the declarant’s angle in which the bullet entered the victim’s

4Furthermore, majority opinion while the refers to Truelsch predates support position, adoption of sec. its 908.045(4) decades, by almost five the relevance of those cases 908.045(4) prior subsequent the date of but decided to effective sec. Supreme in has to the United States Court’s decision Chambers justification entirely There is no the refusal been overlooked. for guidance majority to the of and its of the follow Chambers regard, progeny. In noted the Wisconsin the should be that while articulating holding necessity in the of corroboration Chambers provide "reliability” to had been order "considerable assurance” 908.045(4), prior adoption there is decided to Wisconsin’s of sec. 908.045(4) nothing adoption in sec. which indicates Wisconsin’s standard. which a more liberal corroboration Wisconsin decisions reliability "corro have addressed indicia of sufficient establish directly respect instructive with boration” under Chambers are 908.045(4). requirement Consequently, the of sec. "corroboration” prior those which were Chambers and Wisconsin decisions decided 908.045(4) where to the effective date of should be followed sec. analyzed a this court has considered and the extent to which fact, in interest must corroborated. In be Sharlow, inadequate under this court indicated that corroboration 908.045(4). requirement 110 satisfy not of sec. Chambers would at n. 9. that reference Wis. 2d 237-38 It is for these reasons and Wisconsin decisions made this dissent both Chamber process analysis. employing a due

676 skull. Notwithstanding the undisputed presence of the at declarant the scene of the Sharlow, crime in court found that the statement "persuasive lacked assurances of trustworthiness” and indicated that corroboration must be specifically directed toward the Id. statement. Therefore, 235-37. "independent evidence” which conglomerately estab- lished only presence the declarant’s at the time and place of the crime is inadequate to satisfy the corrobo- ration requirement of sec. Stats. I agree would

Finally, with the trial court in this case that the proffered statement "didn’t really take culpability offense away from the defend- ant.” Presuming the privilege for conduct defense of persons third is available aas defense to 941.29, Stats., temporal there are limits beyond which the possession continued of a firearm defeats the privilege. The necessity such limitation has recognized been by those federal courts which have 1202(a)(1) interpreted (1982), 18 U.S.C. app. sec. similarly prohibits possession of a firearm felon, to admit of a self-defense or defense others justification: possession "continued beyond the time exists will defeat emergency defenses.” Gant, (5th United States v. F.2d 1163 n. 9 Panter, United 1982); Cir. States F.2d (5th 1982). Wheeler, See also United States v. Cir. (7th 1986). F.2d 100 Cir. The defendant’s initial possession of the might firearm while in the bar arguably be if the privileged statement were However, believed. difficult conceive how the continued possession defendant’s the firearm was for "necessary protection person” third after [a] the defendant and the away declarant were two blocks from bar where the defendant believed "third 939.48(1) (4). person” is, It remained. See sec. my opinion therefore, if the that even trial court did refusing proffered by erroneously to admit err statements, error harmless since sub- this was not indicate that there is stance of statements does possibility their a reasonable omission contrib- Dyess, conviction. uted defendant’s State 2d 370 N.W.2d 222 Wis. apparent has, in the

It is this court rule today, glaringly most failed in the direc- announced requirement of "[t]he tive to construe corroboration ... purpose in such a manner as its to effectuate circumventing Advisory fabrication.” Federal Com- Note, mittee’s 59 Wis. 2d at R321. For this reason and any arguable refusing to admit because error harmless, I statements would be dissent.

I am authorized to state that DONALD JUSTICE joins dissenting opinion. W. STEINMETZ

Case Details

Case Name: State v. Anderson

Court Name: Wisconsin Supreme Court

Date Published: Dec 10, 1987

Citation: 416 N.W.2d 276

Docket Number: 86-0612-CR

Court Abbreviation: Wis.