*1 Plаintiff-Respondent, Wisconsin, State Defendant-Appellant-Petitioner. Joseph Marks, L.
Supreme Court 8, 1995. argument Oral March No. 93-2452-CR. Decided 20, 1995. June 730.) (Also reported in 533 N.W.2d *5 defendant-appellant-petitioner For the there were argument Chandek, briefs and oral William J. Brookfield. argued plaintiff-respondent
For cause by Stephen attorney general, KLeinmaier, W. assistant with whom on brief was James E. Doyle, attorney general. BABLITCH,
WILLIAM A. J. the trial of During *6 L. Marks for his Joseph burglary, accomplice, Scott Meyer, who had and had been con- already pled guilty victed and sentenced on the burglary charge, invoked his privilege against self-incrimination and refused to court, The circuit testify. declaring Meyer unavailable witness, as a allowed Meyer's prior testimony at Marks' examination into preliminary evidence. The court of appeals that agreed, holding Meyer had a real and appreciable fear of self-incrimination as a result of his intention to seek modification of expressed his sen- tence. Marks that appeals, arguing the circuit court erred in declaring Meyer witness, unavailable as a and that the use subsequent of his accomplice's preliminary examination testimony violated his to confrоnt witnesses him. against We conclude that the Fifth Amendment self-incrimination extends beyond sentencing long as as the witness has a real and fear of further self-incrimination. appreciable however, We reverse the court of appeals, and conclude that the circuit court erred in unavail- declaring Meyer able based on Fifth his claim without further into the inquiring basis for the claimed privi- we lege. Accordingly, remand to the circuit court with directions to conduct further as to whether inquiry Meyer's fear of self-incrimination was real and appreciable.
The facts are these. Marks charged with bur- to a room within glary a to sec. building, contrary 943.10(l)(f), Stats. motion During preliminary at (State) trial, Marks' the State of Wisconsin indicated its intent to call an Meyer, accomplice the burglary guilty already pled and had been convicted
who had charge. burglary Meyer pre- had on the sentenced during testimony viously inculpated at Marks hearing. preliminary The State informed Marks' meeting Meyer, Meyer with an earlier court of his sen- he intended seek modification indicated attempted State Public had to contact the tence and appeal. Therefore, he claimed Defender initiate plead testify he not at Marks' trial but would would requested result, that the court Fifth. As a the State Meyer's Meyer testi- unavailable and allow preliminary declare hearing mony read to the to be from jury. objected. attorney He for Marks contended opportunity he had to cross- of the limited because Meyer preliminary hearing, use of his
examine at the testimony Sixth Amend- at trial would violate Marks' right to confront a witness. ment provided upon State, Based the information *7 Meyer a the unavailable as witness court declared 908.Q4(l)(a), determining After that under sec. Stats.1 1 908.04, Stats., provides part: in Section Hearsay unavailable; exceptions; declarant definition (1) unavailability. "Unavailability aas witness" includes sit- of in which uations the declarant: (a) ruling privi- by judge ground of exempted on Is of the the subject lege testifying concerning' of from the matter the statement; declarant's 908.045, Stats., provides that a witness Section when unavailable, following testimony the is not excluded declared hearsay the rule: Testimony. (1) Testimony given Former as a witness at hearing proceeding, or same a different in a
another of the or compliance deposition taken law in of another with the course proceeding, against party оpportu- at the instance of or with an direct, develop cross-, nity testimony by or redirect to the
86 hearing the preliminary earlier statements at Meyer's reliable, declared that the statements were the court violating trial Marks' admissible at without would be was con- subsequently of confrontation. Marks right to in the Wisconsin years victed and sentenced three Prisons, sentences unrelated State consecutive to cases. court of affirmed appeals
Marks
the
appealed,
person
court
that a
the circuit court. The
concluded
not
different
than
was
Meyer's position
aрpreciably
of
sentenced.
court
waiting
appeals
someone
to be
McConnohie,
v.
noted that under State
57,
121 Wis. 2d
63-68,
(1984), a
to
waiting
87 the 173, 174 184 n.8. Where aff'd, 1992), Wis. 2d obvious, specific the are the objection of grounds Id. Cham- citing not important. is ground objection State, 193 868 751, 758, N.W.2d plain 53 Wis. 2d Bauer, (1972). the initial Wis. 2d at Under 109 of confron- right the determining whether question out-of-court give wаy prior must to allow tation judicial of a hear- prior made in the course statements is under the is whether the evidence admissible ing, Here, Evidence. the court allowed Wisconsin Rules of be the under an jury read to Meyer's testimony 908.045, Stats., hearsay to the rule sec. exception be admissi- provides testimony may which that former defined if a unavailable as a witness as ble declarant 908.04(l)(a). Marks that We are persuaded sec. of confrontation based the upon right an objection to the court's conclusion that encompasses objection an of sec. 908.045. purposes was unavailаble for Meyer ground under confrontation Although specific stated, not obvious. clause was counsel's intent was was Therefore, we address whether Marks denied of confrontation when the circuit court Meyer, declared a witness who had been convicted for an to the for being accomplice sentenced crime tried, which unavailable under sec. being Marks 908.04(l)(a), Stats, Fifth Amendment upon based self-incrimination. in a on the challenge threshold "based question is "whether evidence sought confrontation clause be introduced ... is admissible under the Rules Bauer, Wisconsin, 901-911, Evidence of chs. Stats." Wis. "If the fit 2d аt 210. evidence does not within it must be excluded." Id. recognized hearsay exception, Here, court found the evidence admissible under a former hearsay exception testimony which allows *9 to be unavailable is determined when a declarant 908.04(l)(a), argues Stats. Marks that the sec. under declaring Meyer unavailable circuit court erred 908.04(l)(a) based on his Fifth under sec. Specifically, against Marks self-incrimination.
claim (1) Meyer plead could not the Fifth that contends: already sentenced; been convicted and because he had (2) plead the Fifth even if a defendant can and sentencing, Meyer's intention to have his mere after give enough to rise to a real modified was not sentence appreciable incrimination, and fear of further and enough to a claim based on the thus, was not sustain against privilege Fifth Amendment self-incrimination. Meyer argument Marks' could We first turn to already plead con Fifth because he had been not right against self- sentenced. "The victed and guaranteed by right is a fundamental incrimination by Const., the U.S. I, 8, Const., sec. Wis. and both art. applicable the states is made V, amend. which process clause of the fourteenth reason of the due Grant, 77, 80, 264 In Matter 83 Wis. 2d amendmеnt." (1978). may privilege be invoked 587 N.W.2d appreciable appre "a witness has a real and whenever requested could be used that the information hension proceeding." Id. at 81. him in a criminal authority Although "weighty" for the view that there is upon guilty privilege conviction, or see is lost .the (quoting McConnohie, Reina v. 121 2d at 64 Wis. (1960)), States, 507, 513 courts have 364 U.S. United guilty plea recognized or conviction a that even after a appreciable may possess and fear of a real defendant further incrimination. n Edge People example, case, Illinois For an (Ill. 1993), denied, ston, cert. N.E.2d 339-340 623 Illinois Court of (1994), the Supreme S. Ct. 2766 сonviction the Fifth after recognized plead claiming the person when sentencing motion. In to file a post-conviction an intent indicates to testify an accomplice Edgeston, the defendant called another victim to the murder of guilty who had pled *10 case Edgeston's the in having charges return for on the to based accomplice testify The refused dropped. he feared because self-incrimination if him subsequently incriminate testimony his could challeng- his motion court granted post-conviction the other murder. Id. at 339. to his the ing guilty plea the Fifth Amend- Edgeston upheld accomplice's сourt reasoning: ment claim a post-con- that he intended to file
Sullivan stated of petition challenging validity guilty the the viction charges against of plea upon which the dismissal Further, Bang him in the case was based. the State petition if Sullivan's represented to court that granted, for relief heard and post-conviction was and guilty plea poten- would be vacated "wé could King] charges, [the then tially reinstate we could testimony prospective prosecution use of that Therefore, compelling testify Sullivan to charge." effectively prevent seeking would him from the col- statutorily to he entitled. lateral relief which Id. 339-40. at response Edgeston's
In that request accomplice of the showing make a that collateral attack specific successful, to be court likely conviction was con unnecessary cluded: "such a is where it is showing in the court's there is implicit trial determination see Id. also 340; at danger' a 'real of incrimination." 1987) (Md. State, Ellison v. 1271, 1274 (privi 528 A.2d day 30 lege upheld during period sentencing after
90
or sentence
appellate
available);
when
review
review
States,
(5th
v. United
Holsen
292,
392 F.2d
293
Cir.
denied,
(1969)
1968), cert.
U.S.
393
1029
(privilege
where
is "in
of
witness
upheld
process"
appealing
Statеs,
v.
Ottomano
United
conviction);
468
F.2d
cert,
denied,
(1st
(1973)
1972),
274
Cir.
Our court of appeals recognized a similar right Harris, State 836, 846-47, 92 Wis. 2d 285 N.W.2d (Ct. 1979). Harris, In App. the court determined right witness has the the Fifth plead after if he or still has sentencing she the common law withdraw a has good made a faith expression to do so. Id. at 847. intent of an
Although we have not decided the privi whether *11 against self-incrimination exists after lege sentencing, Amendment we have that the Fifth recognized privi See beyond extends a and conviction. lege guilty plea McConnohie, State McCon 62. In Wis. 2d at nohie, the defendant on trial called a witness who had no contest to the for the pled charge which defendant tried being was as an but not accomplice yet had been sentenced. The witness refused to questions answer the crime concerning and invoked his privilege against at Id. self-incrimination. 63. The defendant was subse convicted. quently
On appeal, defendant the witness' challenged to invoke the Fifth ability privilege where already pled the witness had no and had contest been convicted. We rejected challenge, defеndant's how- at least concluding that continued
ever, privilege on the 62. we focused sentencing. Initially, until Id. at to if were forced harm could ensue the witness which was "Here, witness] sentencing: [the to prior testify . same who judge before . . the testify asked being who to sen- plea [the witness'] had and accepted a later There was potential witness] tence at date. [the result- witness] of an increased sentence danger [the own at 66. ing testimony." from his Id. with-
Further, we recognized potential plea for that the holding privilege as a second reason drawal through at self-incrimination continued least аt that Id. 66-67. We reasoned the witness sentencing. could who no contest to the pled charge McConnohie if the did not plea be forced to withdraw State If that sentencing adhere to its recommendations. occurred, reasonably the witness could fear that might incriminate him if the State subse- testimony McConnohie, 2d at decided to him. 121 Wis. quently try 67. limited
Because the McConnohie was question the Fifth Amendment existed dur- privilege whether ing the of time conviction and period between we did not as far Harris or sentencing, go Edgeston as determining that a retains the Fifth Amend- person or appeal ment while an is befоre pending time has appeal for an as or withdrawal did, expired. however, We there was acknowledge for that Id. at 65 n.3. now so support position. We conclude.
A witness fear may reasonably appreciably incrimination while an appeal pending during or *12 time which a witness his or may, by right, appeal her conviction good and has faith intentions of so. doing
92 MeConnohie, Like where the witness feared the poten- tial for a harsher sentence if he testified at his or her trial, a defendant who rea- accomplice's appeals might fear that his sonably at an trial testimony аccomplice's could if strengthen the State's case he is awarded a new trial. addition,
In
a witness
fear further
might
prosecu-
tion if he or she intends
to withdraw his or her plea,
has the
and still
common law
to do so under State
right
(1979).
Lee,
239, 246,
88 Wis. 2d
A more difficult is when the question presented invocation of the Fifth Amendment grounded a defendant's intention or actual solely upon expressed of a sentence modification. filing We conclude that a witness may "reasonably fear incrim- appreciably" ination if he or she a faith intent to or is expresses good in the process his or her sentence. moving modify The rationale of MeConnohie this conclusion. compels MeConnohie, In we recognized a witness who has not yet been sentenced might legitimately fear that his at an testimony trial would cause the sen- accomplice's court tencing impose harsher sentence than it would have otherwise without imposed additional This rationale is testimony. both federal supported by and state courts. See U.S. v. e.g., Lugg, F.2d *13 Pardo, 1989) U.S. v. (D.C. 636 (distinguishing Cir.
103 the 99, on the basis that see 535, at concurring op. F.2d Pardo, not in had in unlike the witness Lugg, witness but unsentenced "the convicted yet been sentenced: Fifth protectable a legitimate retains defendant incriminat- not as to testifying interest his an on yet impact that could have matters ing States, v. 741 sentence."); Mills United 736, 281 F.2d 1960). (4th Cir. or who has who intends to a witness
Similarly, legitimately his her may or sentence modify moved to of the deny light the motion that the court would fear the is, That but for incriminating testimony. additional strong is a testimony there incriminating additional the sen- court would reduce sentencing likelihood the incriminating The of the defendant in giving tence. fear it as real in this situation as was testimony is just McConnohie where we said: [the "Here witness] Holz, the same testify Judge asked to before being and who accepted [the witness's] who had judge witness] a later date. There was [the was to sentence at increased sen- danger witness] to an potential [the a 121 at tence testimony." from his own Wis. 2d resulting added). (Emphasis 66.
Further, this contrary concurring opinion, legitimate fear is a fear which warrants the application of the Fifth Amendment self-incrimi- privilege The not a only protect nation. intended conviction, defendant when answers would lead see a 100, protect at but is intended to concurring op. a danger defendant when the defendant "apprehends States, United from a direct answer." 341 Hoffman (1951) added). 479, U.S. 486 (Emphasis Supreme Court of the United States recognized legiti- has
94 incarceration, or the is that of impending mate danger See Allen v. liberty. of one's deprivation threat of In re Gault, Illinois, U.S. (1986); 478 U.S. (1967). fear Here, legitimately a defendant could 1, 50 in the court testimony might denying that his result incar time he spends motion to reduce amount of we see no concurring opinion, Unlike cerated. *14 a this fear and the fear of defendant difference between in both situations the defendant sentencing; to prior directly fear would testimony that may legitimately of he length spends affect the time incarcerated.
However,
ability
a defendant has the
to
because
sen-
his or her
time after
modify
any
move to
sentence
which
if the motion is based on new factors
tencing
sentencing
in existence at the time of
or which
were not
see
the parties,
overlooked
all of
unknowingly
by
were
Franklin,
8,1,
Statе v.
148 Wis. 2d
Next, we address Marks' if the Amendment extends privilege that even Fifth intent to have his Meyer's mere bеyond sentencing, to rise to a real give modified not enough sentence incrimination, and fear further appreciable claim. thus, sustain a Fifth Amendment enough not that circuit courts should apply The standard a Fifth witness' determining uphold whether claim has been enunciated the United States, v. United States Court Supreme Hoffman (1951): U.S. 486-87 only extends afforded not support that would in themselves a convic
answers criminal statute but likewise tion under federal those which would furnish a link embraces . . But must be protection chain of evidence. . this *15 to where reason confined instances .the witness has danger cause to from a direct apprehend able answer, omitted). (citation witness is not exon answering merely erated from because he declares doing that in so he would incriminate himself —his the say-so does not of itself establish hazard of say for the to whether his incrimination. It is court (citation justified, omitted), and require silence is to clearly appears him to answer if "it to the court Commonwealth, mistaken." Temple v. he is 75 Va. (1881). 892, 899 However, witness, if upon the inter claim, posing required prove were to the hazard usually in sense in a claim to required the which is court, be in he be compelled established would very protection privilege surrender which designed guarantee. privilege, To sustain the it only need be evident from implications of the question, asked, in the setting which it is that a responsive the question explanation answer to or an why might it cannot be answered dangerous be injurious because disclosure could result. The trial judge appraising the claim "must be governed as by personal perception much peculiarities of the actually the case as the facts in evidence." See (C. Irvine, Ex Parte Taft, J., 954, 960 74 F. C. S. D. 1896). Ohio, in McConnohie and con-
We this standard interpreted cluded that when it is clear to the circuit court from the circumstances "that the testimony of the witness be because 'might dangerous injurious disclosure could result,' the need for into the for specific inquiry basis Id. at 69 the claimed is diminished." (quoting 486-87). Hoffman, 341 U.S. at With this our guide, as we consider circumstances at Marks' trial.
When the circuit Meyer's court Fifth upheld it claim, possessed these salient facts: (1) Meyer burglary Mr. was convicted of the same July 27,1992; at issue in Marks' trial on (2) Meyer Mr. indicated to the State that he motion, intended to file a sentence modification he had a letter to written the State Public Defender asking assistance, for their and that he had prison's library; reseаrched the matter at the law (3) going Meyer Marks' about counsel was ask night burglary the incidents on the of the and about *16 his earlier conviction. are insufficient facts alone that these
We conclude Although the State claim. a Fifth sustain Meyer argues trial, time of Marks' at the that appeal, statutory there is limits for time within Meyer support nothing that us to record before appeal by appeal preserved fulfil- his or filed an ling requirements 809.30, Stats. sec. under Meyer good Similarly, made a no evidence that there is guilty expression to withdraw his of an intent faith Finally, timely no evidence there is manner. in a Meyеr office, the Public Defender's had contacted any appreciable a motion to of success on chance or had knowing things, modify these his sentence. Without testimony Meyer's not conclude the court could injurious "might dangerous could disclosure because be result."
Accordingly, did that the circuit court we conclude Meyer's inquiry for into the basis not make sufficient whether it was claim to determine Fifth Amendment declaring under sec. him unavailable before valid testimony 908.04(l)(a), allowing to be his Stats, jury. to the circuit Therefore, we read to the remand appeal Meyer had filed an whether cоurt to determine good rights appeal, expressed preserved faith or timely guilty plea man- in a intentions to withdraw his modify good expressed faith intention to ner, or appreciable had an chance success. sentence and appeals By of the court of the Court.—The decision directions. is reversed and remanded with (concurring). I concur with GESKE, P. J. JANINE holding priv- majority's that "the Fifth Amendment beyond ilege against extends self-incrimination appre- long sentencing a defendant has a real and as as *17 fear of further dable incrimination as may be the case where an appeal pending [or] before an as of appeal or withdrawal has expired ..Majority op. However, at 95-96. whether or not that privilege extends to Meyer this case further requires inquiry the circuit court to if determine he fact filed an or, in the if appeal alternative, he made a good-faith of an intent expression withdraw his in a guilty plea manner. If timely intended to file a Meyer merely motion to sentence sometime in modify future, without also for his challenging grounds conviction, he not was entitled under protection the Fifth Amendment.
The Fifth Amendment privilege against self- incrimination "is one of the cornerstones of the Ameri- can constitutional system procedure criminal must be liberally construed to achieve its protective Pardo, United States v. purpose." 535, 636 F.2d 542 (D.C. 1980) Maness v. Cir. Meyers, (citing 449, 419 U.S. (1975)). 461 However, "the has no privilege application Id. beyond 'protective purpose.'" Accordingly, operates [ t]he interdiction of the Fifth Amendment only where a witness is asked to incriminate him words, give testimony may self —in other which possibly expose charge. him to a criminal But if the criminality already away, has been taken apply. Amendment ceases to Henkel, (1906).
Hale v.
The
43,
201 U.S.
privilege,
therefore, does not extend to a witness who "has been
convicted of
offense with
to which he fears
respect
[an]
Pardo,
see also E. R.
543;
incrimination."
636 F.2d at
Annotation,
"Plea of
or Conviction as
Soeffing,
Guilty
Loss,
Self-Incrimina-
Resulting
Privilege Against
(1966).
Question,"
tion as to Crime in
In this
for
privilege
the
of the Fifth Amendment
scоpe
extends
First,
the
states that
majority
reasons.
following
the conclusion
of McConnohie compels
rationale
and
fear
'reasonably
appreciably'
a
may
"that witness
a
faith intent
expresses
good
if he or she
incrimination
his or her
to
moving
modify
or is in the process
reaches
majority
at 93. The
Majority op.
sentence."
on the
statement
following
conclusion by relying
[the
a
potential danger
in McConnohie: "There was
sentencing]
a
guilty plea
witness who is between
from his own testi-
resulting
an increased sentence
McConnohie,
statement,
[ i]nWisconsin, a defendant withdraw any just plea prior sentencing guilty for 'fair and [defen Incriminating by the statements reason.'... guilty pled or a has no contest entered dant who discretionary may plea] determination of affectthe just existence of a fair and the trial court as to the reason to withdraw testimony [The] plea. . . . practical matter, could, make a defendant's as а agree guilty plea or no contest irrevocable.We amounts to self-incrimination. ... that this (citation omitted). holding By has, it how- as Id. at 68 substantially majority in has ever, this case hold that a from McConnohie to now extended dicta protec- already been sentenced retains who has witness simply if the the Fifth Amendment witness tion under good-faith expresses to file a motion to a future intent majority modify no However, the can cite sentence. holding, authority and I believe that such for such a *19 privilege far extends the Fifth conclusion by beyond McConnohie the what was envisioned court.1 Meyer sentenced bеfore convicted and
Second,
was
Meyer
If
had
a
in this case.
he
called as witness
was
sentencing,
testify prior
he
to his own
to
been asked
protections
right
the
of the
a
to invoke
have had
would
scope of the
majority's expansion of the
example, the
For
following
a
easily
the
result:
could
lead to
Fifth Amendment
and sentenced for a
previously convicted
who has been
witness
testify
a crime
and refuse to
about
may
the
crime
claim
governor's pardon at what
to seek a
the witness intends
because
time.
opportune
to be an
perceives
he or she
would hаve
Further,
that protection
Amendment.
Fifth
the
if
had retained
sentencing Meyer
after
continued
or had
guilty plea
right
common law
withdraw
State
of an intent
to do so.
expression
made a good-faith
(Ct.
Harris,
836, 847,
Finally,
increased sen-
conviction, an
sentence for the burglary
the result. Distinct
that crime could not be
tence for
at a
on a
judge
hearing
sentencing hearing,
from
and
legality
motion to
sentence considers
modify
See State v.
of the sentence imposed.
appropriateness
Franklin,
(1989); see
1, 8,
2d
highly
imposition
relevant
to the
judge
original
at the time
not known to the trial
in exis-
either because it was not then
sentencing,
because,
though it was then
tence or
even
by
existence,
unknowingly
it
overlooked
all of
parties.
State,
Rosado v.
280, 288,
102 McConnohie, 121 Wis. 2d at testimony." own 92). at majority op. (quoted subsequent plea, guilty Meyer's
I conclude his invocation foreclose sentencing conviction, and estab- unless the state privilege, the Fifth (1) filed has been his conviction an appeal lishes that file timely (2) intent a good-faith or Meyer expressed Without his guilty plea. a motion to withdraw Meyer's have compelled court should the circuit proof, testimony. that Justices state
I am authorized S. SHIRLEY concurring this Jon P. Wilcox join Abrahamson opinion.