*1 Plaintiff-Respondent, Wisconsin, State
v. Defendant-Appellant-Petitioner. Paul J. Stuart,
Supreme Court
6, argument December
No. 2001AP1345-CR. Oral
21, 2005.
April
Decided
An amicus curiae brief was Tjader Tjader LLC, Madison, on Chirafisi, & of Criminal Defense Association behalf Wisconsin Lawyers. petitioner, BRADLEY,J. The 1. WALSH ANN unpublished of Stuart, of an decision
Paul seeks review affirming judgment appeals of conviction the court of denying postconviction relief.1 Stuart was and order first-degree intentional homicide convicted Gary Reagles. shooting This is the third for the death this court. time that Stuart's case has come before to reexamine our decision now asks us Stuart, 2d in State v. 2003 WI 262 Wis. rejected pre claim that the There, we N.W.2d impli liminary hearing brother, who of his improperly murder, admitted at cated Stuart in the testify on Fifth trial after the brother refused grounds. the use of Amendment Stuart asserts *4 right testimony confrontation, as such violated his guaranteed by I, Amendment and Article the Sixth of the Constitution. Section 7 Wisconsin 1 (Wis. Stuart, 01-1345, unpublished slip. op. State v. No. 10, 2003) (affirming judgment and order of December App. Ct. Fisher, Judge). County, for Kenosha Michael S. the circuit court 662 light Washington, ¶ 3. In v. 541 U.S. Crawford (2004), agree 36 we with Stuart that the in question should not have in been admitted his case.2 right Such evidence violated Stuart's to confrontation, opportunity question as he did not have the his potential testify falsely. brother about a motive to We also conclude that the error was not harmless. Accord- ingly, appeals we reverse the decision court of remand for a new trial.
I—I Gary Reagles ¶ 27, 1990, 4. On March was found apartment single gunshot dead in his with a wound to gun lay the chest. A Berretta nine-millimeter on the body. Reagles history floor near his problems, including prior had a of emotional attempts. girl-
suicide
His
police
threatening
friend told
that he had been
suicide
impending breakup. Reagles
because
their
co-
used
night
caine on the
of his death and had a blood alcohol
Initially,
content of
death
.393%.
was ruled a suicide.
charged
¶
In 1998,
Stuart was
with the first-
degree
Reagles.
prelimi-
intentional homicide of
At the
doctrine,"
legal
Under the law of the case
'a decision on a
case,
an appellate
issue
court establishes the law of the
which
subsequent proceedings
must be followed
all
in the trial court
Stuart,
State v.
appeal.'"
or on later
2003 WI
262 Wis.
Corp.
Split
Univest
v. General
(quoting
2d
¶ 7. As burglarized in Illinois a short a home that he and Stuart They pocket- Reagles's coins, death. stole time before guns guns. a of the stolen was knives, and One some indicated that Stuart nine-millimeter. John Berretta burglary. following weapon possession of that had "very very confused, dis- to be He described Stuart shooting. talking traught" when about the and "scared" Reagles, he "fixedit to told him that after he shot Stuart look like a suicide." (hereinaf- George testified that Stuart 8. John day George), brother, came over later
ter another Reagles had been found John and Stuart told According apartment. John, Stuart acted dead in his surprised shooting, if he informed as when about nothing John to Later, it. Stuart asked knew about Specifically, provide he an alibi. asked John him with say at John's home at the time that he had been shooting. left the state on John testified Reagles's trip death. to Arizona within week acknowledged cross-examination, John 9. On trip because to Arizona was not unusual that Stuart's police He that he first told their mother lived there. said regarding Reagles's had death the information he about stopped traffic offense in he for a routine when 1992 or 1993.3 He indicated that he another gave *6 statement police June of 1998. Defense counsel then asked about the circumstances under which John this which gave statement, objection drew an from the State. The exchange that regarding June 1998 state- ment was as follows:
Q: you give Did have occasion to [information you today] testified to to Detective Tappa June of year? this
A: Did I?
Q: Yes.
A: Yes.
Q: And under you what circumstances did do that? Objection. [Prosecutor]: Irrelevant. very
[Defense Counsel]: It's relevant under cir- what cumstances the statements that he has testified to as they relate complaint to the criminal in the statement in June Honor, discovery.
[Prosecutor]: It's Your pertains it credibility, plausibility. but not to goes Court: I think credibility certainly, it to the issue certainly discovery. and it objection is So the is sus- tained. 10. After objection, defense counsel contin-
ued his cross-examination. John admitted that he was "stoned" when Stuart told him about the shooting. He
3 Detective trial Tappa stopped testified at that he John's thought vehicle in 1992 because he John Larry, was his brother for whom there an outstanding warrant. marijuana smoking five or six additional
testified cigarettes after his conversation with Stuart. John during he was confused the conversation stated him. He was and did not believe what Stuart told also George when came over with the confused news Reagles's he death Stuart acted like had no because knowledge prior of it. acknowledged telling police Finally,
¶ 11. John told him that there were two shots fired. He that Stuart lying admitted for Stuart when he told officers further day shooting. was at his home hearing testimony from John and another After wit- ness, Parramoure, Arthur who testified that Stuart *7 shooting Reagles, to court confessed bound the over defendant for trial.4 February began. 8,1999, 12. On the trial On the day trial, of the took stand
third John the witness right against his Amendment asserted Fifth self- questions, to incrimination. He refused answer despite persisted in the offer of refusal State's use testimony immunity and the circuit court's his warning contempt that he held in of could be court. According attorney, he to his John believed that had a bargain exchange cooperation plea in for his with the keep part police, and that the State did its not Parramoure, niece, Arthur whose ex-wife is Stuart's testi days fied that he and Stuart drove to Arizona a few after the Reagles. they driving death of He stated that while were Oklahoma, through Reagles during that an Stuart said he shot According Parramoure, argument gun. over to Stuart told him day "bullshitting" killing the next that he was him about trial, in his Reagles. When Stuart testified own defense at he trying that he Parramoure so explained was scare Parramoure would not mistreat Stuart's niece.
bargain. although Accordingly, plea bargain called him case, trial he upon testify at Stuart's never- theless refused so.5 to do 13. The circuit court held John of contempt
court. The State then moved to have John's preliminary hearing admitted into testimony evidence. Stuart's at- torney objected, claiming that there was no effective John cross-examination allowed at the preliminary hearing. February On after a motion hear- the circuit ruled
ing, court John's preliminary hearing was The State inadmissible. imme- diately dated appealed. By February 16,1999, order court of appeals summarily affirmed the circuit court's trial, At through attorney Stuart's John indicated he a plea bargain "believe[d] there supposedly was that was regard pleading charges made with to his to certain that also him testifying opinion involved in this case. It was his or belief plea bargain that that not was honored at the time of sentenc ing." prosecutor The charges against denied that the John had 2, 1998, been reduced on June as a result of Stuart's case. In doing so, however, admitted, "I you spoke she can tell when I he by [John] told me he shafted personally was me because I the prosecutor was on his He belief case. stated his was that I to come into court and recommend .. .." probation understanding
John's existence of a deal is buttressed letter May County dated 1998 from the Kenosha *8 Attorney, indicating that pursue charges District it would not him against regarding for truthful information he provided Reagles's report by supported by death. It is also Detective 1, 1998, arrangements dated Tappa acknowledging June that Attorney, granting also made Illinois were with the State's John immunity Reagles's from a he burglary committed before death. charge burglary pursued. Ultimately, The Illinois was not we what, any, agreement not need resolve if existed between the parties.
ruling, determining opportunity to cross- the hearing preliminary was examine satisfy insufficient at right to confrontation. the constitutional emergency subsequently filed an 15. The State stayed, petition This ordered for review. court the trial pending trial, Thus, in the middle its decision. of everything stopped from the case to await an answer admissibility John's the issue of the of this court on hearing testimony. parties preliminary The submitted argument February court held oral on briefs and this day, following argument, 23, oral we 1999. The same reversing of decision of the court issued an order appeals. ruling,
¶ 16. resumed. After this court's trial appeals' decision, on reversal of court of Based our preliminary hearing had testi- the circuit court John's mony Defense moved the read into the record. counsel judicial open "to there court take notice" that were two felony County against John at the time Kenosha cases prosecution cooperating he was gation with the in its investi- stating request, of The this Stuart. court refused jury "[t]he will be had four informed John prior we convictions, and that will be the end of what know about John Stuart." trial 17. Additional witnesses were called at
regarding purported confessions Stuart. Michael that in met Stuart Schultz testified March he Reagles. told he had in a bar and Stuart him that to kill Small that when he shared Likewise, David testified jail September cell told Stuart Stuart with Benjamin shooting. Woody also him details killing Reagles in a testified that admitted Finally, October Damian Sim- conversation on during Woody pson present statements to Stuart's killing Reagles. Stuart admitted stated that *9 February 18. On 1999, Stuart was found guilty first-degree of intentional homicide. He filed a postconviction motion for relief, which was denied. appealed, appeals Stuart and the court of certified the identifying specific court, case to this two issues: appellate When an opinion resolving court issues an discretionary court, ruling of the is circuit its decision the law-of-the-case? unpublished
Whether an Supreme Wisconsin Court order reversing a decision of court appeals, providing legal legal authorities, without reasoning or establishes law-of-the-case?
¶ 19. This court held that its 1999 decision estab- regard lished the law of the with case the Confron- Stuart, tation Clause issue. See 262 Wis. 2d extraordinary It also determined that there were no present justify departure circumstances that would from the law the case doctrine because the properly was admitted under Confrontation Clause precedent. id., ¶¶ See However, 32-41. did this court by not decide other issues raised Stuart and re- by appeals. manded for those consideration the court of Id., ¶ 4.6 questions Those included:
1) trial Whether counsel was where he ineffective failed to stipulate pending charge perjury to a subornation of John Stuart? 2) failing jury the trial erred Whether court to inform the concerning significant charges criminal John facing gave at time he a statement? 3) Whether the erred when trial court it barred the defendant arguing from John Stuart's bias? 4) or Whether not new evidence a new trial? warrants *10 rejected appeals of all
¶ remand, the court 20. On judgment of claims affirmed the of other Stuart's denying postconviction relief. Stu- and order conviction petition in for review which he asked then filed a art among things, 2003 to reexamine its court, other this decision. pending, petition
¶ the United 21. While Supreme decision in Crawford, Court issued its States juris- Confrontation Clause 36, 541 U.S. which altered granting petition, prudence. this court Stuart's When impact had on limited its review to the Crawford case.
H-I r—i question case we address this The central admissibility evidentiary the one. It concerns is an hearing preliminary trial. at Stuart's John's the of this evidence violated Whether admission right ques is to confrontation Stuart's constitutional subject independent appellate to tion of law review. Williams, 99, 2d 644 58, 7, 2002 WI 253 Wis. State v. (citing Ballos, 495, 504, 2d 919 State v. 230 Wis. N.W.2d (Ct. 1999)). App. 602 117 N.W.2d 5) jury to Whether the failure of defense counsel inform Arthur Parramoure had a criminal conviction would entitle defendant to new trial? 6) failing object trial counsel was ineffective Whether of Paul Stuart's criminal convictions? evidence of nature 7) should he reversed in the Whether Paul Stuart's conviction justice? interest of Stuart, 4, n. 262 2d Wis.
h—I I—I HH
begin
examining
¶ 23. We
the issue of Stuart's
right
constitutional
confrontation. The relevant
principles
precedent guiding
analysis
our
were
recently
Hale,
¶¶
set forth
State v.
WI
43-58,
Although
2dWis.
¶ 24.
At
time
Stuart's trial and first
reliability analysis
Roberts,
of Ohio v.
¶ 25. the framework in Roberts/Bauer previous decision, our we concluded that the admission preliminary testimony hearing of John's did not violate right Stuart, Stuart's to confrontation. See 262 Wis. 2d doing ¶¶ 620, In so, that, 32-41. we reasoned "John's testimony preliminary hearing the at and the circum- surrounding satisfy stances it were sufficient to the requirement reliability." Id., there be indicia of ¶ 41.
¶ ¶ Hale, 593, 26. As noted in 277 Wis. 2d "[w]ith day the a decision, new has dawned Crawford jurisprudence." for Thus, Confrontation Clause the analysis reliability longer good of no is Roberts/Bauer respect law with to the of testimonial hear- admission say Crawford, evidence. Under where hear- testimonial say issue, evidence at the is Sixth Amendment demands (1) unavailability required: the common law
what (2) prior opportunity 541 U.S. a for cross-examination.7 at Hale, the 27. Like defendant in is the change prop-
beneficiary in the law because he of this erly preserved his is confrontation issue and case the appeal. Koch, 2d State v. 175 Wis. still on direct (1993) Kentucky, (citing v. 694, 499 N.W.2d Griffith (1987)). Accordingly, we consider U.S. 479 applicability case. Crawford applying question 28. The threshold proffering is the State is framework whether Crawford "testimonial" Although hearsay evidence. Crawford provide comprehensive definition declined to Court "it evidence, noted that testimonial it what constitutes prelimi- prior testimony applies aat at a minimum to nary hearing. Thus, . 541 U.S. at Crawford, . ." prelimi- dispute that John's at there is no nary hearing hearsay evidence. constituted testimonial hearsay evidence was testi- 29. Because John's requirements of the Con- monial, turn next we (1) interpreted un- as frontation Clause Crawford: (2) prior opportunity availability of the declarant *12 no In there is case, Id. this for cross-examination. parties dispute also John was unavailable. Both agree his limited cross-examination of that Stuart's preliminary hearing to was insufficient brother at the satisfy right too concur with to confrontation. We this conclusion. "
7 'greatest has been described as Cross-examination discovery of engine truth.'" legal ever invented for Califor (1970) Green, Wigmore 5 (quoting 158 nia v. 399 U.S. 1367). § 672 Wisconsin, In a defendant has a statutory at a right preliminary hearing cross-examine wit 970.03(5).8 nesses him. against § Wis. Stat. However, of that cross-examination scope is limited to issues credibility. State ex rel. Huser v. of not plausibility, Rasmussen, (1978). 600, 614, 84 Wis. 2d 267 285 N.W.2d This is because preliminary "is intended to hearing be a summary proceeding determine or essential basic facts" cause, a relating probable not "full evidentiary trial on the a beyond issue guilt reason Dunn, able doubt." State v. 121 389, 396-97, Wis. 2d (1984). N.W.2d 151 31. Cross-examination at a preliminary exami-
nation
not to be
"for the
is
used
purpose
exploring
Huser,
general
trustworthiness
of the witness."
84 Wis.
Indeed,
2d at 614.
kind of attack is off
in
"[t]hat
limits
Sturgeon,
v.
State
a preliminary hearing setting."
1999).
(Ct.
487, 499,
Wis. 2d
(1986), the held a Supreme Court defendant's right to confrontation was violated when he was prohibited a from cross-examining prosecution witness about pos- sible to testify falsely motive as a result of the State's of a charge dismissal him. The pending against Court that" 'the explained exposure of witness' motivation is testifying function of the proper important 8 All references to the to the Wisconsin Statutes are 2001-02 version unless otherwise noted.
constitutionally right protected of cross-examination.'" (quoting Alaska, 415 U.S. Davis v. Id. 678-79 at (1974)). 316-17 Lenarchick, 2d Likewise, v. 74 Wis. in State 33. (1976), this court observed
425, 448, 247 N.W.2d meaningful ingredient of cross- "defendant, an a as subjec- right explore the the examination, must have testimony." There, defense witness' motives for the tive permitted a witness to cross-examine was not counsel charge against had that witness that been a about pending. Id. at defendant's case was dismissed while the Although promises made to the no had been recognized poten- the witness, this court nevertheless testify falsely: motivation to tial may favorably testifying witness] have been [The well the state hope expectation in the and to the state reducing pending by dropping him or would reward absurd, expectation were charges. though Even duty explore right had the and defense counsel criminally a has been When witness witness' motives. state, subject power he is to the coercive charged by the leniency. object its and can also be of the state fact, may it well aware of that The witness is testimony. influence his
Id. at 447-48. jury informed case, In this was criminal convictions. Further-
court that John had four from John's direct examination at more, it learned burglary hearing preliminary that he committed Reagles's he death and that lied time before short police. from admissions Defense counsel also obtained he when he "stoned" "confused" John that killing spoke about the and believed with Stuart shots fired. told him that there were two *14 opportu- However, 35. Stuart did not have the nity preliminary hearing question at the to his brother potential falsely. testify a about Thus, motive to he was facing unable to elicit evidence that John had been charges gave criminal in 1998 when he his statement police implicating Reagles.9 to Stuart in the death of Admittedly,
¶ 36. is record unclear to what, as any, if deal was reached between John and the Kenosha County Attorney. District The facts indicate that while stopped gave a 1992, traffic matter in John a state- impheating agreed ment in a homicide. He to cooperate gave with authorities and another statement jail day appear 1, in on June 1998, one before he towas County pleas in Kenosha Circuit Court to enter a case years prison. where he faced 52 The State an filed day, amended information in that case the next 2, June reducing exposure by years, his from 52 Additionally,charges relating burglary to an Illinois were pursued. place prior not All of these actions took testimony preliminary hearing John's at Stuart's on August 13, very least, 37. At the these facts a demonstrate
potential
testify falsely
part
motivation to
on the
John. Had John testified at trial and Stuart been
precluded
exploring
testify
from
the motivation to
falsely,
such
restriction would he considered a Con-
e.g.,
See,
frontation
Arsdall,
Clause violation.
Van
App
679;
Barreau,
U.S. at
see also State v.
2002 WI
¶ 55,
2d
257 Wis.
9 Although defense counsel problem tried to ameliorate this through judicial notice, the use of attempt proved his unsuccess ful. agree State, we with result, like the 38. As preliminary hearing of his brother's the use
Stuart that right to confrontation. trial violated at properly allow Stuart did not The circuit court hearing preliminary about John at cross-examine charges pending had decision to on his the effect the hearing preliminary Accordingly, cooperate. tes- John's timony at admitted trial. not have been should
IV right Having ¶ to that Stuart's 39. determined next violated, we examine whether confrontation was Con a new trial. Violation the the error warrants reversal, not in automatic Clause does result frontation subject analysis. v. error State rather is to harmless but ¶ Weed, 85, 28, 434, 2d 666 N.W.2d 2003 WI 263 Wis. (quoting Williams, 2, 256 118, 2002 Wis. State v. WI 485 391). 56, 2d 652 N.W.2d
¶ error was set The for this harmless 40. test Chapman Supreme California, in v. forth the Court (1967). (1967), reh'g denied, U.S. 987 18 386 386 U.S. explained that, a federal There, "before the Court harmless, the court error can be held constitutional that it was harmless able to declare belief must be beyond 24. An Id. error is a reasonable doubt." at "beyond beneficiary proves error if the of the harmless complained of did not a reasonable that the error doubt Here, the State the obtained." Id10 contribute to verdict carry proof. the burden must 10 court, and this years, Supreme recent the U.S. Court In test, adhering Chapman have also articulated while the See, States, 1, United 527 U.S. wording. e.g., Neder v. alternative Hale, 593, noted in As 277 Wis. 2d court this has articulated several factors aid its analysis. frequency harmless error These include the importance erroneously error, of the admit- presence evidence, ted or absence of evidence corroborating contradicting erroneously or admit- erroneously evidence, ted whether admitted evi- duplicates dence evidence, untainted the nature of the defense, the case, nature of the State's and the overall strength (citing of the State's case. Id. v. State Nor- man, ¶72, 2003 WI 262 Wis. 2d 664 N.W.2d Billings, 97; State v. 661, 668-70, 110 Wis. 2d (1983)).11 N.W.2d case, In this the State contends that Stuart
is not entitled to a new trial the error in because admitting preliminary hearing testimony John's reasoning harmless. The State's First, is twofold. it submits that Stuart not would have been able to effectively impeach John with the circumstances sur- rounding the 1998 convictions because John testified given police that he had the same information charges pending. 1992 when no Second, were it notes there were five witnesses other than John who *16 shooting Reagles. testified that Stuart admitted Weed, State v. (1999); 85, 29, 434, 2-3 2003 2d WI 263 Wis. ¶ Harvey, State v. 485; 93, 666 48, 14, N.W.2d 2002 n. WI 254 ¶ 442, Wis. 2d 647 189. N.W.2d 11 approach by This multifactor has been utilized other jurisdictions involving in recent cases Confrontation Clause Cox, (3rd E.g., State v. 932, 2004); violations. 876 So. 2d 939 Cir. Newland, (E.D. Richardson v. Supp. 342 F. 15 2d n. (Colo. 2004); People Fry, v. 2004); Jones v. Cal. 92 P.3d 980 U.S., (D.C. State, 146, 153-54 Hannon v. 2004); 853 A.2d 84 P.3d 2004). Gilbert, (Wyo. See also United States v. 320, 332-33 391 (7th 2004). F.3d 882 Cir.
677 argu- persuaded ¶ not the State's 43. We are begin, testified that the informa- To John never ment. it was Rather, when asked whether tion was the same. responded "pretty affirmative. same," the much the he as of John's 1992 is unclear to substance The record police. trial, to It was not testified at conversation with memorializing police report ever the contact was and no impossible to if Thus, it is know into evidence. entered given in "the same" as that information 1992 was given in 1998. prosecution however, was know, do We against after Stuart until John's second
not commenced to 1998. It is reasonable conversation with authorities police to did not that John's first statement assume charge provide enough The sec- information Stuart. sufficiently apparently differed enable ond statement Contrary prosecution. the commencement provides assertion, fodder State's such circumstance impeachment. for cross-examination and effective Next, contends that the error was the State witnesses, John, other than testi- harmless five because shooting Reagles. At first blush fied Stuart admitted strong, argument. appears conclusive, to be a if not a this However, mony that the witnesses' testi- the record reveals begin, To of the five wit-
had some weaknesses. shooting admitted who testified that Stuart nesses having Reagles, acknowledged criminal records. four Parramoure, had crimi- witness, fifth Arthur also The jury not informed of this fact. record, nal but the witnesses, the number convic- 46. Of four presumes them The law tions between totaled 37.12 convictions, Michael Schultz had David Small had convictions, had 7 and Damian convictions, Benjamin Woody convictions. Simpson had 7
678 the number of criminal convictions is relevant credibility. Smith, witness's State v. 203 Wis. 2d (Ct. 1996). App. assump 297-98, 533 N.W.2d824 "The longer record, tion is that the criminal the less (citing at credible individual." Id. D. Daniel (West's § Blinka, Wisconsin Evidence 609.1 at 311 Wis 1991)). Series, consin Practice 7,Vol. hearing In addition to their criminal jury testimony
records, the heard the of the witnesses challenged by contradicted or witnesses for the defense. Benjamin Woody Simpson Both Damian testified that on October in the while incarcerated County they killing Jail, Kenosha heard Stuart admit to Reagles. Yet witnesses for the Ro- defense, Miroslav during present McCracken, manic and William were alleged Benjamin Woody Stuart's confession to Simpson place. Damian and denied that it ever took ¶ 48. Michael Schultz testified he met Stuart killing in a Reagles. bar Kenosha and that Stuart admitted to testimony
Yet, the of defense witnesses Robert Finely III Landerman and Scott was offered to attack They credibility. they Schultz's testified that overheard previously who Schultz, tell State, testified signed implicating Stuart that he never had statements Reagles's Stuart in death. Small, Stuart, 49. David a former cellmate of killing Reagles.
testified testimony Stuart admitted His was contradicted credibility Furthermore,
defendant. Small's could be prior undermined he had convictions, because any most the State's witnesses. Admittedly, witness, the fifth Arthur Par- truthfully
ramoure, when he testified stated that Stu- killing Reagles. acknowledged art admitted to telling telling subsequently Parramoure and then *18 According Stuart, he told was not true. to
him that it frighten Par- in of murder order to Parramoure the him, afraid of He wanted Parramoure to be ramoure. hoping keep from fear would Parramoure the mistreating ex- Parramoure's niece, Stuart's who was explanation, discrepancies the and wife. Given these testimony impact is dimin- witnesses' several of uncontroverted errone- ished, the effect the while ously enhanced. admitted evidence is analyzing harm- In the error whether was including factors, the less, importance court considers several this erroneously Here, of admitted evidence. the testimony hearing preliminary importance of John's the prosecutor. in the action and words of the is reflected emergency petition filed action, course, The of the was dealt trial, in the middle of which with this court preliminary exclusively with of John's the admission testimony. hearing meanwhile, the words, The were nearly testimony made to John's dur- dozen references ing closing, Specifically, opening, the and rebuttal. jury important prosecutor the "most told the testimony through evidence all came John Stuart's testimony." and Art Parramoure's agreed Apparently, jury judge both the and day prosecutor's A of the evidence. with the assessment testimony jury the deliberations, into the asked that witnesses, Parramoure, to two John and Arthur be read request it. The denied with the admonition that jury in the its collective memories. Later should use jury again testimony. morning, This asked exchange time, it was read back them. The between judge and as foreman was follows: your you All right. You have indicated note Court: personal your exhausted collective memories. have you There are still issues can't resolve. some [Foreperson]: Yes. prepared you
Court: We are to read back testimony given in that was court Mr. Parramoure through John both and the himself tran- script he given preliminary some had at a hearing.
The reporter you. Court will read that back *19 (Record read) Gentlemen, you
Court: Ladies and I advise would transcript you the read preliminary that was hearing August 13, was conducted on That 1998. is the testimony you have asked for we have read you. back to
Lunch may go jury has been ordered. You back to the your room now and continue deliberations. Immediately p.m.,
¶ 53. lunch, after at 1:05 the jury guilty. postconvic- returned a verdict of at Later judge presided tion, the remarked, who at trial "I don't they [John's] think this was a close case after read statement into the record."
¶ 54. The also the court considers overall strength of the case. the State's Without admission of hearing testimony, preliminary John's the overall strength of the State's case would have diminished appreciably. part, In is this because of the nature of the physical Here, State's case. was no evidence, there no fingerprints, linking shooting. or to the DNA eyewitnesses. result, There were no the As State prove on relied circumstantial evidence to its case. ¶ 55. also consider there We whether was un- duplicates tainted evidence that corroborates or the erroneously Although admitted evidence. the statement, John's corroborates
of the several witnesses hardly reasons as untainted for the it can be described acknowledge that Nevertheless, we listed above. the State's case. cumulative effect benefits Finally, of the de- we examine the nature assessing whether the error was harmless. fense Reagles theory of defense was that Here, Stuart's certainly plausible had committed suicide. This was attempts, given Reagles's prior imme- more suicide his breakup impending an diate threatened suicide due to girlfriend, presence of cocaine with Reagles's Indeed, death alcohol in his bloodstream. initially ruled a suicide. considering factors, facts and we In these impelled that the error in admit-
are to the conclusion testimony, ting preliminary hearing of violation right confrontation, harm- was not the defendant's beyond proving The less. has State burden complained did not that "the error reasonable doubt Chapman, U.S. the verdict contribute to obtained." *20 The failed meet that burden here. at The State to jury judge, prosecutors, of the action and words erroneously importance admitted underscore the that this evidence are unable to conclude evidence. We not to the verdict. did contribute
V light 36, in 541 we sum, Crawford, In U.S. testimony question agree in with that the should in case. evidence not have admitted Such been right confrontation, to he did not as violated Stuart's opportunity question his brother about have the testify falsely. potential also We conclude motive
682 Accordingly, the error was not harmless. we reverse the appeals decision of the court of and remand for a new trial.
By appeals the Court.—The decision of the court of is reversed and the cause is remanded. (concur-
¶ 59. SHIRLEY ABRAHAMSON,
S.
C.J.
ring).
join
Bradley's opinion.
I
Justice Ann Walsh
For
my
Chapman, Neder,
discussion of
error,
harmless
my
Hale,
see
concurrence
State v.
great
I
reluctance,
concur in the decision to reverse the
defendant's conviction and remand for a
I
new trial.
agree with the conclusion that the admission of John
preliminary
testimony
Stuart's
examination
violated
right
the defendant's
to confrontation under Crawford
Washington,
(2004),
v.
WI
Wis. 2d
HH opinion correctly 61. The lead notes that this is op., the third time this case has come to our court. Lead *21 February After an 23, 1999. on ¶ 1. The first time was hearing trial, a emergency in midst of Paul Stuart's majority reverse the court to of this court voted decision appeals, the circuit court's had affirmed which hearing preliminary of John exclude the to Stuart. preliminary at a had testified 62. John Stuart August been cross- 13, 1998. He had on
examination attorney, though not exten- examined sively. his brother's "unavailable" however, he made himself trial, At against by asserting privilege self-incrimination. February testify 10, 1999, John on Called to delay with his that he could consult for a brief so asked attorney. Upon following colloquy oc- return, curred: you intending plead Are
The Court: questions to all regard Fifth in you? asked of Yes, plead I've been advised Mr. sir. Stuart:
the Fifth. I'm the State Okay. not sure what The Court: to do here. intends im- give him use The State would Ms. Karaskiewicz: munity. you willing to offer use The State is
The Court: means whatever immunity, which against you you say cannot be used you regard to those prosecute matters. testify. to refuse to continued 64. John Stuart Attorney prompted Susan District
This Assistant spoke explain I to Mr. that "when Karaskiewicz to *22 personally he told me he shafted me prosecutor pointedly I was the on his case." She because claim. denied this attorney inquired
¶ 65. Paul Stuart's then about immunity" John, for so that if he "transactional testified pre- in a manner different from his liminary at the prosecuted examination, he could not be perjury. request. The State refused that Attorney reasoned 66. District Robert Jambois give that the court could not the defendant a license to [John Stuart] perjury. He "The commit added: witness given brother, has statements that he fears his that he danger- is a homicidal maniac and believes his brother open later, court, ous." A few moments John asserted privilege against the Fifth Amendment self- jury. incrimination before the following morning, February The again. he refused to
court addressed John Stuart Still testify. Attorney permitted to ask District Jambois was person had named the witness whether he met with he had. This Herbst, Art and John admitted that exchange attorney explosive among produced an John's (Robert Henderson), attorney (Douglas Bram- Paul's scher), attorney. and the district make an Perhaps Mr. Jambois should
Mr. Bramscher: why he wants proof offer of why it is rel- question answered evant. I indicate the relevance of this
Mr. Jambois: ... will view, inquiry. line of It the State's is your Honor, asser- this witness's right Fifth Amendment is tion of his conspiracy ruse. . . . He's involved in a involving involving Mr. Art Herbst and Mr. Henderson and Mr. Bramscher. He testify in a manner does not want to having or incriminates his brother degree of first brother convicted intentional homicide. He met with Mr. Saturday Herbst a number of hours on *23 night. and last Sunday. you Mr. It Perhaps Bramscher: was want to get your facts correct. Sunday.
Mr. Jambois: He met with Mr. Art Herbst [Wednesday]. night last I believe Mr. repre- not Bramscher would have his represented sentative meet with' a getting witness without the authori- zation from Mr. Henderson to meet meeting with him. The fact such place took further indicates this wit- good asserting ness is not in faith right. Fifth Amendment Mr. Jambois: ... I believe Mr. Henderson and Mr. working together
Bramscher are in keeping this witness off the stand. legitimately The witness is not pursu- ing privilege. the Fifth Amendment testify against He not does want his brother. think, your Honor, deciding
Mr. Jambois: I in pre- about... admission of his liminary hearing testimony ... a as practical matter the Court would be knowing in whether this interested strongly unavailability was witness's If that encouraged by the defense.... influences his unavail- a factor is be a ability, it would seem would Court would consider factor deciding pre- whether ... to admit his liminary hearing testimony. (Empha- added.) sis Attorney point, Bramseher acknowl- 68. At this meeting
edged he John Stuart but asserted with change testimony. the witness wanted to testify. As a end, In the John would not contempt. After the court denied result, he was held preliminary exami- to admit John's the State's motion testimony, emergency appeal. filed an nation the State appeals affirmed the circuit court. On The court majority February 23, a court reversed after this learning preliminary hear- that John's at the ing subject cross-examination, consis- was to some police, prior he made to and was tent with a statement *24 several other also with the of consistent witnesses. court resumed, the trial the circuit 70. When testimony. Unable to cross-
admitted John Stuart's attorney sought to witness, the defendant's examine testimony by He other means. moved discredit his open judicial notice that there were two court to take County felony against at the John Stuart Kenosha cases prosecution. cooperating The time he was with stating "jury motion, that the will be court denied the prior convictions, had informed that John Stuart four know John the end of what we about and that will be op., ¶ 16. Stuart." Lead eventually convicted. Paul was years later, Two claiming newly discovered
evidence, Paul's attorney for John arranged to be to brought Kenosha from the Waupun Correctional Institution for a post-conviction The hearing. following exchange occurred:
Mr. your McLinden: Did brother Paul you tell at Wau-
pun effect, hey, words to the quote, I you guy, never told that I shot that how you me, could do this to quote? close you And did tell your brother Paul effect, words to the I quote, you know didn't shoot him but it only was the way they charges would drop me, against quote? close Mr. part Stuart: You have right part wrong. The part about Paul stat-
ing that he said to me that I never shot man, say he did the words to me while I walking was back from school... . you And Paul did state what just said, my but comments back to him I'm sorry about hap- what pened but that's what happened you know what happened and I'm not going buy years you to lie for so you go can free and I have to do an- years, other 11 one being years five perjury years and the other six added repeater.... on for my brother, Mr. Stuart: I love going but he's up have to stand to the fact that he did he you what did and cannot continue trying bring others down for him. *25 already I bought years already. two judge The himself knows that he had to court, and I contempt hit me with already bought years trying two for to place help [Paul] him the first going buy I'm ho more. And I'm not a being put my honest. I'll hand on Bible and I'll take a lie detector test. added.) (Emphasis ¶ com later of John Stuart 73. This suspicions pletely about John's confirmed the State's making unavailable at his motivation for himself II brother's trial. Supreme held that In the Court Crawford, qualifies as testimonial
an out-of-court statement Clause, un- under the Confrontation is not admissible (2) (1) defen- unavailable; and the less the witness is opportunity prior to cross-examine dant had dispute no case, In this there is witness. There
witness, Stuart, made himself unavailable. John dispute that the defendant cross-examined is also no preliminary The examination. issue the witness at the presented prior an is whether the cross-examination conformity opportunity adequate cross-examine, Stubbs, v. 408 U.S. described in Mancusi with standards (1972), Green, U.S. v. 204, 213-16 California (1970), Texas, 380 U.S. and Pointer v. 165-68 (1965). 406-08 properly concludes that court 75. This rights because were violated
defendant's confrontation opportunity adequate cross- not have he did examination. hindsight, the State had the benefit In preliminary ruling examination on court's
this testimony. theory develop not have to new It did testimony, admissibility justify it because of John's *26 rely ruling plus Roberts, could on our Ohio v. 448 U.S. (1980), Bauer, 56 and 204, State v. 109 Wis. 2d (1982). N.W.2d857 my argued view, In the State could have preliminary
John Stuart's examination was transparent admissible because of the collusion be- judicial tween the witness and the defendant. The system powerless cannot be rendered to deal with wrongdoing designed to benefit a defendant on trial. Supreme explicitly recog-
¶ 78. The
Court has
Hale,
nized this situation. See State v.
2005 WI
(Prosser,
¶¶ 91-98,
277 Wis. 2d
J.,
N.W.2d637
concurring) (citing
Rey-
Crawford,
¶ 80. Here the witness was defendant's attorney brother. He met with the defendant's and/or representative immediately his for several hours before during trial. He told the court he was "advised" to plead the Fifth Amendment. The State offered use immunity legitimate so that the witness had no fear of prosecution anything perjury. other than Still he testify. very imagine would not It is hard to that the witness would not have if testified the defendant had not been brother whom he either loved or feared. exceptional permits 81. This case is a de- parture yet from the strict rules of Crawford, the circuit impeach court's denial of the defendant's motion to ignore witness an error too serious to under Har- vey. impeach Had the defendant's motion to credibility through parties granted, brother's third been voting differently, I would be not because the error would have been harmless but because there would would un- conclude otherwise no error. To have been judicial system. fact-finding process in our dermine respectfully concur. ¶ 82. I therefore (concurring). I BUTLER, J. JR., B. LOUIS agree join I the court. mandate of and the the decision *27 analysis interpretation of the the court's with of this case. While under the facts Clause Confrontation majority's disagree of the harmless statement I with my part II of in the reasons stated error test for 2d Hale, 7, 277 Wis. 2005 WI in State v. concurrence agree application of the with its 637, I 593, 691 N.W.2d analysis I also conclude in this case. harmless error beyond a meet its burden has failed to the State complained did not the error doubt that reasonable respect I therefore obtained. to the verdict contribute fully concur. (dissenting). I dissent.
¶
WILCOX,
E
J.
84. JON
Hale,
my
2005
explained
in State v.
concurrence
I
in
As
637, the
593,
2d
691 N.W.2d
¶¶
277 Wis.
86-90,
7,WI
assessing
for Con
proper
error
harmless
method for
of Craw
in the aftermath
violations
frontation Clause
(2004),
Washington,
test set
is the
¶ (dissenting). 88. N. CROOKS, PATRICK J. I strongly disagree majority petitioner, with the that the Stuart, Paul J. is entitled to a new trial. In order to holding, majority arrive at that has to dismiss the testimony having consistent witnesses, five each one testified at trial that Paul Stuart admitted that he killed Gary Reagles. Although agree I that the admission of preliminary hearing his brother John Stuart's testi- mony petitioner's right violated the to confrontation Washington, under v. 541 U.S. 124 S. Ct. Crawford (2004), error under the cir- I conclude that the clearly harmless. in this case was cumstances reliability consis- ¶ hallmark of is the 89. "The Zehm, tency United States v. facts and details." 2000). (7th prosecution Here, Cir. five 506, 514 F.3d John, consistent their witnesses, in addition to were shooting Gary testimony Paul Stuart admitted to that testify Reagles. notable witnesses to One of the most against Parramoure. He at trial was Arthur Stuart accompanied trip took Arizona, a which Stuart on Reagles. days place He testified after the death of a few spur moment, on the of the decided, had that Stuart trip. early they Parramoure leave on the should shooting trip, during Stuart admitted to this stated pay gun Reagles, Reagles for a Stuart could not because during at his him. admitted had sold Stuart Parramoure, claimed but trial, that he had confessed frighten Parramoure. he in order to did so at trial that also testified 90. Michael Schultz night shooting Reagles. The after admitted Stuart shooting, in a encountered Stuart bar Schultz Reagles. he had killed admit that overheard Stuart Reagles in the that he saw Stuart with stated Schultz night shooting. bar on the same at trial that Stuart David Small testified shooting two men shared while the talked about jail he was in told Small that cellblock. Stuart in the chest with he had a man murder, and that shot gunpowder gun. talked about millimeter .9 and then feet, the victim's hands found on Reagles' look like a suicide. made death that he had said Woody Benjamin a cellblock also shared *29 that Stuart at the trial He too testified with Stuart. initially Reagles killing had been the stated Woody the commented to about a Stuart ruled suicide. 693 physical against lack of evidence that the State had Reagles, him. Stuart then stated that he shot and that again. he would do it Finally, Simpson
¶ 93.
Damian
testified at the
Simpson
trial that while
shared a
Stuart,
cellblock with
shooting Reagles. Simpson
Stuart admitted to
over-
heard another inmate ask Stuart whether he had shot
jail
murdering.
replied
the man he was in
again.
him,
that he killed
and that he would do it
majority
¶ 94. The
relies on the harmless error
Chapman
test outlined in
v. California,
factors such as the
error,
erroneously
pres-
tance of the
admitted evidence, corroborating
ence or absence of evidence
or contradict-
ing
erroneously
evidence,
admitted
whether the
erroneously
duplicates
admitted evidence
untainted
evidence, the nature
the defense,
the nature of the
strength
case,
State's
overall
of the State's case.
Majority op.,
previously,
¶¶ 41, 43-58. As noted
both
Supreme
this court and the United States
Court have
analyzed
by utilizing
error
harmless
more recent
*30
Weed,
Neder,
1;
527 U.S.
263 Wis.
test. See
alternative
Harvey,
2d 442. Rather than
and
254 Wis.
434;
2d
majority,
lengthy approach
this
of the
the
undertake
jury
only
effect on the
the error's
court should consider
light of the fact that five additional witnesses
verdict
testimony
testimony,
provided
of
the
consistent with
guilt to
admitted his
Stuart,
John
that Paul Stuart
appears 'beyond
doubt that the
If
a reasonable
them.
"it
complained
did not contribute to the verdict
error
of
Weed,263 Wis.
the error was harmless.
obtained,'" then
omitted).
(citation
hold that an
In order to
2d
to conclude
harmless, a court must be able
error was
"
jury
'beyond
that a rational
would
a reasonable doubt
guilty
Id.;
the error.'"
absent
have found the defendant
Neder,
I am satisfied that
P WILCOX and DRAKE PATIENCE ROGGENSACK join this dissent.