Statements must be considered individually

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Hon. Ralph Adam Fine

When determining whether to admit a hearsay statement as a statement against interest, each declaration is to be viewed separately, the Wisconsin Court of Appeals held on Sept. 24.

Conflicting Stories

In September 2000, ninety-two-year-old Constance Anderson had her purse stolen. Jeffery Schmitt, a witness to the crime, identified Shelleen Joyner as the perpetrator. Schmitt said that Joyner got into the front, passenger side door of a car with license plate number VER-456, which was registered to Joyner.

Joyner was charged with robbery with the use of force. Prior to trial, her first attorney, F.M. Van Hecke, moved to withdraw as counsel, claiming he could no longer represent her because he had become a potential witness based upon a statement that Joyner’s sister, Trudy Joyner, made to him.

Trudy did not appear at trial, however, and Joyner’s then-current attorney sought to admit Trudy Joyner’s statement through Van Hecke’s testimony.

The written statement was as follows: "Denise Werchowski did the robbery & I was in the car; Shelleen wasn’t there. I didn’t know Denise was going to do this. [I’m afraid of Frank. Denise was hit by Scrap [sic]. Frank & Scrap are in things together.] Sept. 14 Scrap grabbed keys from Shelleen. ‘Let’s go to get some money’ : Denise. She went all over to get money that day. She wanted to score some crack. We went to her house & she stole some T shirts from her boyfriend & sold `em. Denise’s words I took that she was gonna borrow money from somebody. Denise said

‘Wait a minute, park here, pullup & wait.’ She got out & then I heard a yell & then she ran up ‘come on, come on.’ There was plastic on the back window of the car & I couldn’t see behind. She got in on the passenger side door (front). ‘Take off, come on, come on.’ I thought ‘Oh Man, I’m gone, I’m done, I’m through.’ I heard a white man mumbling & [illegible] Denise had a purse in her hand. When I saw the purse I thought we were in big trouble & I wanted to get out of there. I wanted to tell the police, but how could I? Maybe I’m better in jail than dying."

"Frank" is the father of Trudy’s child, but "Scrap" is not further identified.

Joyner’s new attorney argued that Trudy’s statement was admissible as a statement against penal interest because it implicated her in the robbery. The trial court, however, determined that it did not, and was therefore, inadmissible hearsay.

During the trial, police officer Tracy Becker testified about statements given to him by various persons after the robbery, as follows: "Shelleen Joyner stated that she had gone to that area on the east side to visit friends but had never done any offense. [Shelleen] stated she went with Denise Werchowski and with her sister, Trudy Joyner.

Trudy Joyner denied ever getting in the car and going to that area. Denise Werchowski stated she had gone to the area with both Trudy and Shelleen, so their stories were all conflicting."

Becker also testified later that another person, Wendy Dabney, gave a statement placing all three women in the car shortly before the offense.

Although Joyner’s defense at trial was that she was not present during the crime, her attorney failed to object to the admission of this testimony, and she was convicted. Joyner moved for postconviction relief, arguing that her at
torney was ineffective for failing to object, but Milwaukee County Circuit Court Judge Daniel L. Konkol denied the motion.

Joyner appealed, but the court of appeals affirmed in a decision written by Judge Ralph Adam Fine, and joined by Judge Ted Wedemeyer. Judge Charles Schudson dissented.

Harmless Error

The court first held that admission of the hearsay statements through officer Becker was not prejudicial. The court acknowledged that the statements of Dabney, Werchowski, and Trudy contradicted Joyner’s claim that she was not in the car that day. However, the court concluded that Joyner’s own out-of-court statement to Becker, admitting that she was with the others that day, was admissible non-hearsay under Rule 908.01(4)(b)1.

The court reasoned, "Her admission to Officer Becker that she had ‘gone to that area on the east side to visit friends’ effectively sunk her alibi by itself – and would have even if the statements of the others had been excluded."

Statement Against Interest

The court then held that the written statement of Trudy was properly excluded, because it was not contrary to her penal interest.

The court adopted the following standard for determining the admissibility of a narrative statement under the penal interest hearsay exception: "’a court must break it down and determine the separate admissibility of each "single declaration or remark."’ United States v. Canan, 48 F.3d 954, 959 (6th Cir. 1995)(quoting Williamson v. United States, 512 U.S. 594, 599 (1994)). ‘[E]ach particular assertion in a narrative should be interpreted within the context of the circumstances under which it was made to determine if that assertion is in fact sufficiently against interest.’ Silverstein v. Chase, 260 F.3d 142, 148 (2d Cir. 2001) (citing Williamson, 512 U.S. at 603-604)."

The court broke down Trudy’s statement into two parts: "Shelleen wasn’t there"; and "Denise Werchowski did the robbery [and] I was in the car."

The first part, the court found was not a statement against penal interest, because it did not inculpate Trudy in any way. The court reasoned, "simply saying that Shelleen Joyner did not commit a crime does not expose Trudy Joyner to potential criminal liability any more than a statement that Shelleen Joyner did not commit an unrelated bank robbery would."

The court acknowledged the second part was more complex, but concluded it too was properly excluded, because it did not expose Trudy to any criminal liability.

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Joyner argued that it did, because it implied that Trudy was the getaway driver and that she knowingly helped a robber escape. However, the court interpreted the statement to imply that "Scrap" was the getaway driver, rather than Trudy. Accordingly, the court held it was not a statement against interest, and affirmed its exclusion from trial.

The Dissent

Judge Schudson dissented from both the holding that the admission of officer Becker’s testimony was harmless error, and that Trudy’s statement was not against her penal interest, calling the former "illogical," and the latter, "misleading."

Discussing Becker’s testimony, Schudson concluded, "When a defendant offers an alibi, the defendant’s prior inconsistent statement will often torpedo it. When, in addition, that prior inconsistent statement is further propelled by the corroborating statements of the defendant’s friends or relatives (who ordinarily would be expected to support the alibi), the alibi will almost always be destroyed. That is exactly what we have here. The inadmissible hearsay destroyed Shelleen Joyner’s alibi, thus establishing the ‘reasonable probability’ that, but for her counsel’s failure to object, the result of her trial would have been different."

Turning to Trudy’s statement, Schudson concluded, "while one
could stretch to interpret them differently, Trudy’s words, upon any fair reading, admitted that she was the getaway driver. Thus, the majority’s analysis, entirely dependent on its truncated treatment of Trudy’s confession, fails."

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David Ziemer can be reached by email.