STATE of Wisconsin, Plaintiff-Respondent, v. James L. JOHNSON, Defendant-Appellant, Vonaire T. WASHINGTON, Defendant.
No. 93-0735-CR
Court of Appeals of Wisconsin
December 28, 1993
510 N.W.2d 811
Submitted on briefs November 2, 1993. †Petition to review denied.
On behalf of the plaintiff-respondent, the cause was submitted on the briefs of James E. Doyle, attorney general, and William C. Wolford, assistant attorney general.
Before Sullivan, Fine and Schudson, JJ.
FINE, J. James L. Johnson was convicted of two counts of armed robbery as party to a crime, see
Johnson asserts four claims of trial-court error. First, he contends that the trial court applied the wrong standard under
I.
In the early afternoon of July 15, 1990, three men burst into the Jolly Skot tavern on West Lisbon Avenue in Milwaukee. One of the men was armed with a shotgun; another had a handgun. The tavern owner, who was tending bar at the time, fell to the floor so as not to get shot. The man brandishing the shotgun jumped onto the bar, and aimed the shotgun at the owner/bartender. The bartender heard the man with the shotgun ask: “Should I pop him?” and a reply from one of the other robbers: “Yes, pop him.” The bartender was not shot, but the man wielding the shotgun took his wallet and loose currency. The robbers also took money from the tavern‘s cash register, and robbed three other persons in the tavern at the time.
Three days later, the tavern owner attended a four-man lineup. Although he could not visually identify any of the subjects as the robbers, he recognized Johnson‘s voice as that of the man who had discussed
Although, unlike his co-defendant Washington, Johnson did not testify, Johnson‘s defense was that he was not at the tavern during the robbery, and he called two friends as alibi witnesses. One of these witnesses, Carla J. Bellamy, admitted that she was Johnson‘s girlfriend and the mother of their daughter. She specifically denied knowing where the Jolly Skot tavern was, and denied going to the tavern either on July 15th or at any other time. Yet, both the Jolly Skot‘s owner/bartender and Davis testified that Bellamy walked into the tavern approximatеly ten to twenty minutes before the robbery, apparently used the pay telephone, and then left after about five minutes. They both told the jury that they did not hear Bellamy drop any coins into the telephone.
Both Johnson and Washington were found guilty of two counts each of armed robbery as party to a crime, and one count each of possession of a firearm by a felon.
II.
A. Rule 908.045(4), Stats.
Johnson claims that the trial court erred in not receiving into evidence an out-of-court statement by his brother, Walker B. Johnson, in which Walker Johnson asserted that he, and not the defendant, participated in the Jolly Skot tavern armed robberies. The written statement, given on August 28, 1990, to the private investigator hired by the defendant Johnson, claims that Walker Johnson, Washington, and a man named Gary “Blaine” went to the Jolly Skot tavern on July 15, 1990, to shoot pool, having left the defendant Johnson at a house where they had been eating. According to the statement, Washington claimed that a man who owed him some money frequented the tavern, but was not there that day—although the man‘s brother was. The statement relates what Walker Johnson contended happened next.
And suddenly Washington and Blain [sic] had drawn guns and were demanding people to get on the floor. Washington told me [Walker Johnson] to help get the money, so I went through the pockets of two people who were laying on the floor of the bar. I
collected a wallet from one person, and about $3.00 from the second. I did not have any gun during the robbery. My brother, James Johnson was definately [sic] not present at the robbery. People must have seen me, and later mistook him for me....
My brother had no knowledge that there was going to be a robbery, nor was he any where [sic] near the bar at the time, to the best of my knowledge, he was still at the Bar-B-Que.
(Underlining in original, uppercase omitted.) Walker Johnson asserted his Fifth-Amendment privilege against self-incrimination, and refused to testify. Accordingly, he was “unavailable” as a witness. See
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
. . . .
(4) STATEMENT AGAINST INTEREST. A statement which was at the time of its making . . . so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the declarant‘s position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and
As with all evidentiary questions, the trial court decides whether the jury will hear or see a statement offered under
When the relevancy of evidence depends on the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Under
Johnson argued that sufficient corroboration was shown for the admission of his brother‘s statement because the statement recited facts that only someone who was present during the robbery would know. Johnson also noted that his brother had been convicted of four armed robberies involving a tavern, and that the Jolly Skot tavern robbery was thus consistent with his brothеr‘s criminality. In arguing against admission of the statement, the State pointed out in a representation that Johnson did not contest, that both Walker Johnson and the defendant Johnson were in the county jail at the same time. The State argued, therefore, that there was “no independent corroboration” of Walker Johnson‘s statement because there was an opportunity for the brothers to coordinate their stories. Additionally, the State argued that as a result of the four armed-robbery convictions, Walker Johnson had little to lose by accepting responsibility for the Jolly Skot tavern robbery.
A trial court‘s decision to admit or exclude evidence is a discretionary determination and will not be upset on appeal if it has “a reasonablе basis” and was made ” ‘in accordance with accepted legal standards and in accordance with the facts of record.’ ” State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498, 501 (1983) (citation omitted). Johnson claims that the trial court applied the more stringent federal standard in excluding Walker Johnson‘s statement. A careful anal-
In announcing its decision to exclude Walker Johnson‘s out-of-court statement, the trial court explained its rationale:
The Court said in State v. Anderson at page 665, “The question before the Judge [sic] is not whether the Judge [sic] personally believes the statement is true, but rather, whether there is sufficient corroboration for a reasonable person to conclude that it could be true. Wisconsin law recognized that it is the juries’ function to assess the credibility of witnesses and to weigh the evidence.” Then, after some citations the Court went on to state, “By not requiring evidence which ‘clearly,‘” and clearly is in quotes, “Indicates [sic] trustworthiness, our standard does not thrust the Judge [sic] into the jury‘s role of assessing credibility and weighing evidence. Thus it preserves the respective roles of the Judge [sic] and the jury.”
So there has to be some corroboration it seems to me which clearly indicates trustworthiness. . . .
. . . .
. . . I agree with you, determining credibility and assessing whether the statement is true or not is what the jury has to decide. I‘m still trying to get over the hurdle of corroboration. I don‘t see it.
. . . .
I don‘t think the statement, at least his statemеnt is self corroborating simply because there are some details of the offense. When it‘s his brother who was the accused, when all of the discovery material goes to the defendant and the statement
was made five or six weeks after the offense in the county jail, the same county jail I assume where the two brothers were kept.
(Intervening argument and some of the trial court‘s comments omitted.) Thus, although the trial court used the forbidden words “clearly indicates trustworthiness,” they were uttered only seconds after the trial court specifically acknowledged that the applicable standard did not require corroboration to that level. We therefore conclude that this was merely a slip of the trial court‘s tongue, especially in light of the trial court‘s later comment that “determining credibility and assessing whether the statement is true or not is what the jury has to decide.”6
The trial court appropriately considered Walker Johnson‘s motive to help his brother, and the total lack of corroborating information that was independent of what Walker Johnson could have learned from his brother while they were both in the county jail.7 Addi-
Although, as is evident by the Dissent, not every judge might have decided the issue as did the trial court here, we cannot say that, viewing the trial court‘s analysis as a whole, it acted outside the proper ambit of its discretion. Accordingly, we affirm the trial court‘s
That is not the issue here, however. The facts recited in Walker Johnson‘s statement that are alleged to be corroborating were not independent of what Walker Johnson could have easily learned from his brother. This was a factor that the trial court could appropriately consider in the exercise of its discretion.
B. Claim of newly-discovered evidence.
The newly-discovered evidence proffered by Johnson was that when Davis, the only tavern patron other than Dornuff to testify, was shown photographs of seven men in July of 1992 by an investigator working for Washington, he identified Walker Johnson, Washington, and Gary Blair as the three men who had burst into the Jolly Skot tavern two years earlier. Although the defendant Johnson was part of this photo array, Davis did not pick him.10 Johnson claims that this entitles him to a new trial for two reasons: 1) the evidence, by itself, puts the verdicts in doubt; and 2) the evidence provides critical corroboration for Walker Johnson‘s
A decision whether to grant a new trial based on new evidence is governed by the following five factors:
(1) The evidence must have come to the moving party‘s knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial.
State v. Boyce, 75 Wis. 2d 452, 457, 249 N.W.2d 758, 760-761 (1977) (citations omitted). All five elements must be met. Id., 75 Wis. 2d at 457, 249 N.W.2d at 761. We will not reverse a trial court‘s denial of a motion for a new trial unless the trial court acted outside the proрer bounds of its discretion. Id., 75 Wis. 2d at 457, 249 N.W.2d at 760. Here, the trial court determined, inter alia, that Johnson‘s proffered new evidence did not entitle him to a new trial, concluding that the new evidence was not enough to “put[ ] the original judgment of conviction in doubt.” We agree.
Although the State disputes that Johnson‘s new evidence satisfies factors (1), (2), and (5) of the test mandated by Boyce, we conclude, as did the trial court, that it is not reasonably probable that there would be a different result on a new trial if both Davis’ identification of Walker Johnson and Walker Johnson‘s recanted out-of-court statement were admitted. Accordingly we assume, without deciding, that the new evidence satisfies the other Boyce factors. See Gross v. Hoffman, 227
There are five reasons why it is not reasonably probable that the result of any retrial would be different. First, when Johnson was arrested two days аfter the Jolly Skot tavern robberies, he had identification papers belonging to Dornuff, one of the patrons robbed by the three intruders. Second, his explanation that the documents had been given to him by “Sea Dog” was exposed by his concurrent possession of papers belonging to Kidd, who identified Johnson as the man who had taken them from him during a robbery on the very afternoon of the tavern robberies. Third, the testimony of one of his alibi witnesses was similarly exposed when, despite her testimony to the contrary, two of the Jolly Skot robbery victims identified her as being in the tavern shortly before the robberies. Fourth, the jury could have reasonably concluded, and a reasonable jury could reasonably conclude on any retrial, that this alibi witness was casing the tavern for the robbers, and that, therefore, her exculpatory testimony was part of their overall conspiracy. Fifth, assuming that Walker Johnson‘s out-of-court statement was admitted at any retrial, it is not reasonably probable that a jury would credit that statement in light of all the evidence of record including his subsequent recantation, even though both Davis and Walker‘s statement identified a “Blaine” as the third robber—a de minimis corroboration because of the Johnson brothers’ opportunity to confer.11
The trial court appropriately analyzed the fifth factor set out in Boyce. The denial of Johnson‘s motion for a new trial was thus within the scope of the trial court‘s discretion and must be affirmed.
C. Rule 904.04(2), Stats.
Johnson contends that the trial court erred in admitting Kidd‘s testimony that Johnson robbed him on July 15, 1990. We disagree.
As we have seen, a police officer testified that when Johnson was stopped on July 17, 1990, he told the officers that identification papers belonging to Dornuff and Kidd had been given to him by a man he knew as “Sea Dog.” This testimony was elicited by Johnson‘s lawyer on cross-examination and was a critical explanation as to why Johnson had property belonging to one of the victims of the Jolly Skot tavern robbery.12 The State was, therefore, entitled to rebut this evidence of innocent possession, and Kidd‘s testimony was certainly relevant on that issue. See
The third hurdle to the admission of other-acts evidence is
D. Interests of justice.
Johnson claims that the real controversy between him and the State was not tried, and seeks a new trial in what he contends is the “interests of justice.” Although we may reverse a conviction under the authority granted to us by
By the Court.—Order affirmed.
SCHUDSON, J. (concurring in part; dissenting in part). I agree with the majority‘s analysis in part II. C., and the conclusion that the trial court correctly admitted Kidd‘s testimony that Johnson robbed him. With considerable reservations, I also accept the majority‘s analysis and conclusion in part II. B., regarding the newly-discovered evidence. Although I think it dubious to conclude that “it is not reasonably probable that there would be a different result on a new trial if both
As the majority concedes, the trial court stated, “So there has to be some corroboration it seems to me which clearly indicates trustworthiness.” Majority op. at 485. As the majority further concedes, these are “the forbidden words,” id., because they invoke “the more stringent test of admissibility used by the federal courts,” id. at 482-483, and, as the majority acknowledges, the more stringent test was rejected in State v. Anderson, 141 Wis. 2d 653, 416 N.W.2d 276 (1987). Nevertheless, the majority concludes that the trial court ultimately applied the correct standard and that the trial court‘s declaration of the incorreсt standard “was merely a slip of the trial court‘s tongue.” Majority op. at 486.
I give the trial court more credit. I accept that after discussing Anderson, the trial court clearly, and erroneously, reached its conclusion:
So there has to be some corroboration it seems to me which clearly indicates trustworthiness.
(Emphasis added.) Indeed, the trial court‘s analysis conformed to the erroneous standard it stated. The trial court addressed factors relevant to whether the statement “clearly indicates trustworthiness,” specifically discussing Walker Johnson‘s possible motives to fabricate, his possible communication with the defendant while they were incarcerated, and his recantation of the statement. In addressing these factors, the trial
By not requiring evidеnce which “clearly” indicates trustworthiness, our standard does not thrust the judge into the jury‘s role of assessing credibility and weighing evidence.
Anderson, 141 Wis. 2d at 666, 416 N.W.2d at 281.
Like the admirable character of the Seuss story, the trial judge “meant what he said [a]nd he said what he meant ....” DR. SEUSS, Horton Hatches the Egg (1940). The trial court explicitly invoked the wrong standard and then applied it. In concluding that the trial court‘s explicit error was an inconsequential “slip of the tongue,” the majority itself slips.
Unfortunately, this is not the majority‘s only slip. Without explanation, the majority alters the Anderson standard. As accurately cited in the majority‘s opinion, majority op. at 482, Anderson held that in deciding the admissibility of a statement under
The question before the judge is not whether the judge personally believes the statement is true, but rather whether there is sufficient corroboratiоn for a reasonable person to conclude that it could be true.
Anderson, 141 Wis. 2d at 665-66, 416 N.W.2d at 281 (1987) (emphasis added). One paragraph later, however, the majority inaccurately paraphrases Anderson:
Anderson recognized that a statement against penal interest offered to exculpate the accused must be excluded if the trial court... concludes that... no reasonable jury could find that the statement could be true.
Next, the majority slips again by adding a requirement to the statutory prerequisite for corroboration. The majority states that “[t]he trial court appropriately considered... the total lack of corroborating information that was independent ....” Majority op. at 486.
A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated.
Now, the majority implies, the corroboration must be “independent” of what the declarant could have learned from the defendant. Hypertechnically, one could argue that, in some cases, this addition does not conflict with Anderson because it goes directly to the sufficiency of the corroboration rather than to the credibility of the statement. In this case, however, the details of the statement itself provide much of the corroboration for the statement. Thus, to reject the corroboration for lack of sufficiency because it is not “independent” is to reject the statement itself for lack of credibility.
Although the corroboration considered in Anderson was independent of the statement itself, Anderson did not address whether corroboration must be separate from the statement. The majority suggests that perhaps it must be. That suggestion, however, is dubious, particularly in light of the theme of Anderson that
Consider the following two statements under
Under Anderson, although the trial court still rеviews whether the corroboration is “sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true,” Anderson, 141 Wis. 2d at 656, 416 N.W.2d at 277, the trial court must not “thrust [itself] into the jury‘s role of assessing credibility and weighing evidence.” Id. at 666, 416 N.W.2d at 281. In some cases, no doubt, the source of the corroboration will be among the “facts and circumstances” the jury considers.
Some statements offered to exculpate the accused are reliable. Others are not. Their reliability, however, does not necessarily depend on whether the corroborating source is independent. After all, although details within an exculpatory statement may be unreliable,
In this case, understandably, the trial court considered the corroborating details of the statement to be suspect because of the potential collusion between Walker Johnson and the defendant. The trial court‘s suspicion, however, relates directly to the credibility of the declarant and the weight of his testimony, not to its admissibility. Exclusion of the statement because of the trial court‘s suspicion conflicts with the Anderson admonishment that “[t]he question before the judge is not whether the judge personally believes the statement is true....” Anderson, 141 Wis. 2d at 665-66, 416 N.W.2d at 281.
Finally, the majority slips by relying on exactly what Anderson proscribes — the judge‘s personal belief. Basing its decision, in part, on the trial judge‘s “doubt[] [about the declarant] based on the trial court‘s extensive experience with the criminal justice system,” the majority assumes facts beyond this record. Majority op. at 486-87. It further implies that the same declaration of the incorrect standard from a less experienced judge might not be similarly excused as “merely a slip of the trial court‘s tоngue.” That implication would complete the conversion of the Anderson standard to no standard at all or, perhaps, to the very
Under Anderson, the corroboration need not “clearly indicate trustworthiness” of the statement. The corroboration, to be “sufficient,” only requires that it “permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true.” Anderson, 141 Wis. 2d at 656, 416 N.W.2d at 277. Dissenting from that very distinction, Justice Ceci, in an opinion joined by Justice Steinmetz, maintained:
The focus should be not upon the reasonableness of the statement‘s content and the possibility of its having been made, but upon the reasonableness of the corroboration and whether the corroborative evidence indicates that the statement was probably made.
Id. at 672, 416 N.W.2d at 284 (Ceci, J., dissenting). The supreme court rеjected that position. Instead, it adopted the standard that “facilitates rather than restricts the defendant‘s ability to present evidence.” Id. at 665, 416 N.W.2d at 281.
The merits of the distinction defined in Anderson may be fairly debated and, perhaps, the dissenters may prevail some day. The distinction, however, was identified and carefully considered in Anderson and the supreme court chose a standard that differs significantly from the federal standard endorsed by the dissenters. In this case, the majority‘s opinion reasonably could be read to support the dissenting position in Anderson.
In this case, the trial court confronted a difficult evidentiary issue complicated by the fact that Johnson sought to support the admissibility of an exculpatory
Applying Anderson as we must, I would reverse and require a new trial at which both the statement of Walker Johnson and the newly-discovered evidence would be admissible. Accordingly, on this issue, I respectfully dissent.
Notes
The cross-examination of Dornuff on this point is as follows:
Q Did you tell [the officer] that you are positive that number two [in the lineup, that is, Johnson] was the suspect with the shotgun, the suspect that jumped over the bar?
A I don‘t recall that.
Q Okay. You may have told him that?
A I may have.
Q But your testimony is that you‘re sure that it was not James Johnson who had the shotgun; is that right?
A Yes.
Johnson did not introduce evidence to support the inference underlying this line of questions. Thus, the following statement in Johnson‘s appellate brief, although technically accurate, is misleading: “On cross examination Dornuff testified that she may have earlier identified Johnson to [the police officer] as the one with the shotgun.”
(1) “Unavailability as a witness” includes situations in which the declarant:
(a) Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the declarant‘s statement[.]