Cooperating witness’ sentence irrelevant

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“Defense counsel was able to … question Anderson-El about his charges and whether he expected to get a benefit from testifying. However, … the actual sentence imposed was not relevant to any incentives the prosecution may have given Anderson-El for testifying on behalf of the State.” Judge Daniel P. Anderson Wisconsin Court of Appeals

It did not violate a defendant’s right to confrontation when the trial court prohibited him from cross-examining a witness about the sentence he received in an unrelated case, the Wisconsin Court of Appeals held on May 28.

J. Bryan Hoover was charged with first-degree intentional homicide, as party to a crime, and conspiracy to hide a corpse, based on the murder of Frederick Jones.
At trial, several witnesses testified against Hoover, including Lyda Antia Morris (Antia) and her husband Richard Morris (Morris).

The following evidence was presented: Antia lived with Morris and during that time Hoover was staying with them; the three decided to beat up Jones because he had allegedly sold Morris bad cocaine; the three tried to contact Jones, who eventually came over to the apartment; after Jones’s arrival at the apartment, Hoover and Morris began to beat him up; at some point, Morris put Jones in a bear hug and Hoover hit Jones in the head with a golf club; after Jones was dead, they burned his body in an alley.

The State also presented the testimony of Maurice Anderson-El, who testified that Hoover admitted the homicide to him while both were inmates in jail.

Anderson-El pleaded guilty to an unspecified charge prior to Hoover’s trial. He did not receive a deal in exchange for his testimony, and there was no mention of his cooperation, his statement or his potential testimony, at his plea hearing.

Prior to Anderson-El’s testimony, the trial court held several discussions with defense counsel and the prosecutor concerning the appropriate scope of cross-examination. Hoover argued that he should be able to question Anderson-El about what he characterized as “the break” Anderson-El received at sentencing as a result of his statement.

The trial court disagreed, responding, “The break has to come from the prosecutor, not from the Court. The considerations the Court applies are not a quid pro quo.”

The court disallowed questions concerning the sentence imposed to avoid confusing the jury into believing that the court had participated in plea negotiations and gave Anderson-El a “break” in his sentence in exchange for his testimony.

However, the court did allow Hoover to question Anderson-El about his motivation for testifying and whether Anderson-El thought he might get something out of the prosecutor in the way of a reduced sentence recommendation, even though it was not part of any specific deal.

The court ruled, “Judges do not participate in sentence negotiations. So to the extent that any of your questioning would imply that, that certainly would be inappropriate. What [Anderson-El’s] expectations from the State recommendations are I think you can go into. If he was expecting because of his cooperation to get a break from the State, that’s fine. But I don’t want it implied that because of his cooperation he was anticipating a break from the Court.”

During Anderson-El’s testimony, he denied that he hoped his testimony would help him, stated that he wasn’t concerned by the cases against him, and testified that he expected nothing in return for his information.

The jury found Hoover guilty, and he appealed. In a decision by Judge Daniel P. Anderson, the court of appeals affirmed.

Confrontation Clause

Relying heavily on State v. McCall, 202 Wis.2d 29, 549 N.W.2d 418 (1996), the court held that the trial court did not erroneously exercise its discretion or deny Hoover the right to confront Anderson-El.

In McCall, the Supreme Court upheld a trial court’s decision to prohibit a defendant from cross-examining a State witness about the dismissal of three criminal charges that had been pending prior to McCall’s trial. McCall presented no evidence that there was any agreement between the witness and the State in regard to the witness’s testimony or that the witness believed such an agreement existed.

The court in McCall held that the mere fact that the witness’s pending criminal charges had been dismissed prior to the defendant’s trial did not support a reasonable inference that the witness was testifying in accord with an agreement with the prosecution, “or even that he believed he may have been doing so.”

Applying the same reasoning, the court of appeals concluded, “The rationale of McCall is controlling here. In the absence of any sentencing-for-testimony agreement, it would be irrelevant to question Anderson-El about his sentence. Defense counsel was able to and, in fact, did question Anderson-El about his charges and whether he expected to get a benefit from testifying. However, eliciting information about the actual sentence imposed was not relevant to any incentives the prosecution may have given Anderson-El for testifying on behalf of the State. Moreover, testimony concerning the actual sentence imposed might confuse the jury into believing the court was a party to some unproven sentencing-for-testimony agreement. As in McCall, the record does not support such a speculative theory.”

The court also held that Hoover was not entitled to a new trial in the interest of justice, noting that Anderson-El’s testimony was consistent with that of Morris, Antia, and other witnesses.

Jury Instructions

The court further held that Hoover was not denied his due process right to a fair trial, although the trial court modified the pattern jury instruction on party to a crime liability, Wis JI-Criminal 406.

The court instructed the jury as follows: “A person who intentionally aids and abets the commission of a crime is also guilty of any other crime which is the natural and probable consequence of the intended crime. A crime is the natural and probable consequence of another crime if in the light of ordinary experience it was the result to be expected, not an extraordinary or surprising result. The probability that one crime would result from another should be judged by the facts and circumstances known to the defendant at the time the events occurred.”

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Hoover argued the instruction was deficient because it did not identify what the intended crime or crimes were, thus relieving the State of its burden to prove that Hoover aided and abetted the intended crime.

The court agreed that it would be advisable to give a brief summary of the intended crimes, rather than excising them from the instruction. Nevertheless, the court found that, under the circumstances of the case, there was no prejudice.

The court also cited a Seventh Circuit case with approval, United States v. Elizondo, 920 F.2d 1308 (7th Cir. 1990), in which the Seventh Circuit held that any error in a conspiracy jury instruction is harmless if the government does not rely solely on that theory of criminal liability.

The court stated, “we consider it significant that like the prosecution in Elizondo, the prosecution here did not rely solely on the natural and probable consequence theory of liability — it also relied on a first-degree
intentional homicide theory and an aiding and abetting theory.”

Accordingly, the court affirmed.

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David Ziemer can be reached by email.