State v. Pepin

• Decision Date: 27 December 1982
• Docket Number: No. 82-1147,82-1147
• Citation: 328 N.W.2d 898,110 Wis.2d 431
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Norman Paul PEPIN, Defendant-Appellant. *
• Court: Wisconsin Court of Appeals

Page 898

328 N.W.2d 898

110 Wis.2d 431

STATE of Wisconsin, Plaintiff-Respondent, v. Norman Paul PEPIN, Defendant-Appellant. ^*

No. 82-1147.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 11, 1982.

Opinion Released Dec. 27, 1982.

Opinion Filed Dec. 27, 1982.

Mark Lukoff, First Asst. State Public Defender, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Kirbie Knutson, Asst. Atty. Gen., for plaintiff-respondent.

Before DECKER, C.J., MOSER, P.J., and WEDEMEYER, J.

DECKER, Chief Judge.

Norman Pepin appeals from an order denying his postconviction motion for a new trial on the ground that he was denied due process of law when the trial judge erred in excluding Pepin's out-of-court statement on hearsay grounds. We agree with the trial court that the statement was properly excluded, and accordingly affirm.

Pepin was found guilty of three counts of armed robbery, two counts of first-degree murder, and one count of attempted murder, ¹ arising out of an incident in which Pepin and another robbed three men whom they ordered to lie face down. Two of the victims were then shot and killed. The third was not injured, but was apparently left for dead. Although the third victim saw Pepin brandish the weapon prior to the shooting, he did not see the shooting itself.

The day after the shooting, Pepin made a statement to Milwaukee county deputy sheriffs in Chicago in which he implicated himself in the robberies, but denied doing the actual shooting. At trial, Pepin pled no contest to the robbery charges, and not guilty to the murder and attempted murder charges. Pepin's attorney attempted to enter Pepin's Chicago statement into evidence over the state's objection. Judge Marvin C. Holz, presiding in the trial court, ruled the statement to be inadmissible as hearsay. ² The jury found Pepin guilty on all counts.

Pepin's postconviction motion for a new trial was denied by Judge John F. Foley on the ground that his Chicago statement was without trustworthiness. We agree with Judges Holz and Foley that Pepin's Chicago statement was hearsay and inadmissible, secs. 908.01(3) and 908.02, Stats., unless it was an exception to the hearsay rule, sec. 908.045(4), Stats. ³

The inculpatory statement of Pepin implicating him in the robberies can only be viewed as an admission pursuant to sec. 908.01(4)(b)(1) or (5), Stats., if it had been offered by the state against Pepin. In this case, Pepin proposes to offer the statement in support of his position; it is not an admission. If admissible, the statement must qualify as an against-interest exception to the rule against hearsay. Pepin proposes to piggyback the exculpatory portion of the statement into evidence to prove the truth of his assertion that he did not do the actual shooting.

The state does not dispute that the inculpatory portion of the statement is against Pepin's penal interest, but contends that the trustworthiness of the inculpatory statement does not extend to the exculpatory part of the statement.

The Judicial Council Committee's Note to sec. 908.045(4), Stats., refers to Meyer v. Mutual Service Casualty Insurance Co., 13 Wis.2d 156, 108 N.W.2d 278 (1961), and reads in part as follows:

This sub. does not modify the rule of Meyer that evidence of so much of a hearsay declaration is admissible as consists of a declaration against interest and such additional parts thereof, including matter incorporated by reference, as the judge finds to be so closely connected with the declaration against interest as to be equally trustworthy. 13 Wis.2d at 164, 108 N.W.2d at 282. 40L W.S.A. 530 (1975).

The test for the admissibility of such an against-interest statement is whether the exculpatory portions are sufficiently closely connected to the inculpatory portion so as to be equally trustworthy. This test was not applied by the trial court in determining whether to admit or exclude the statement.

Pepin urges this court to regard the question of admissibility under a hearsay exception as a question of law based on the principle in Nottelson v. DILHR, 94 Wis.2d 106, 115-16, 287 N.W.2d 763, 768 (1980), that "whether the facts fulfill a particular legal standard is a question of law." The issue as Pepin would have it framed is: "Do the exculpatory sections of the against-interest statement fulfill the particular legal standard of sufficient indicia of trustworthiness to justify the admission of the statement under a hearsay exception?" The issue as thus framed, would be one in which this court could review the question de novo under the familiar doctrine that a reviewing court need not give special deference to a trial court's determination of a question of law. ⁴ First National Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).

While we believe that this argument is not without logical integrity, we are also mindful of the proposition that the question of admissibility of hearsay evidence lies within the sound discretion of the trial court. See State v. Lenarchick, 74 Wis.2d 425, 450, 247 N.W.2d 80, 93 (1976). Insofar as the framing of the issue governs our mode of review, ⁵ we believe it appropriate to discuss appellate review of discretionary acts.

"[A]ll appellate Gaul is divided into three parts for review purposes: questions of fact, of law and of discretion." Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L.Rev. 635, 645-46 (1971).

The rationale behind all appellate review may be fairly characterized in two extremes: an appellate court will defer in large part to a trial court's determination where the lower court is in a better position to make that determination than is the appellate court; conversely, little or no deference is accorded where the appellate court is as capable of determining the question as is the trial court. Questions of fact are accorded deference because the trial court was present at the reception of evidence and had an opportunity to view the demeanor of witnesses and assess their credibility. See Grutzner v. Kruse, 87 Wis.2d 38, 42, 273 N.W.2d 373, 375 (Ct.App.1978). Questions of law, on the other hand, are traditionally accorded little or no deference because there is nothing intrinsic to their determination which gives the trial court any advantage over an appellate court. Questions of discretion, however, have not been so clearly delineated.

What an appellate court may do with a misuse of trial court discretion is open to some dispute. One line of authority suggests that misuses of discretion must be remanded to the trial court on the principle that "[t]he court which is to exercise the discretion is the trial, not the appellate, court." Wisconsin Association of Food Dealers v. City of Madison, 97 Wis.2d 426, 434, 293 N.W.2d 540, 545 (1980), quoting Culligan, Inc. v. Rheaume, 269 Wis. 242, 247-48, 68 N.W.2d 810, 814 (1955). Another line of authority suggests that gaps in the reasoning process underlying a discretionary act may be supplied by the appellate court: "In cases where the trial judge has failed to set forth his reasons [for the exercise of judicial discretion in a civil case where damages are disputed in motions after verdict], we examine the record ab initio to resolve the post-verdict damage questions." McCleary v. State, 49 Wis.2d 263, 277, 182 N.W.2d 512, 520 (1971), citing Boodry v. Byrne, 22 Wis.2d 585, 589, 126 N.W.2d 503, 505 (1964). See also In re the Termination of Parental Rights to T.R.M., 100 Wis.2d 681, 688, 303 N.W.2d 581, 583 (1981) [which permits an appellate court faced with inadequate findings, inter alia, to review the record anew]; and State v. Lenarchick, supra [which states that the exercise of discretion in determining admissibility of hearsay will be upheld unless the record demonstrates that the ruling is manifestly wrong].

If conflict exists between these lines of authority, it may be attributable to the wide area which judicial discretion covers. See Rosenberg, supra, at 635. A rational resolution of that conflict may be attempted by an examination of the kinds of discretion entrusted to trial courts.

Wigmore, in his treatise on evidence, ⁶ discusses judicial discretion and divides it into two categories: discretion in the strict sense, which applies when the trial judge is controlled by no fixed rules; and finality of ruling, which means that the trial judge decides according to some rule, but that his decision is final either as to the law, the applicability of the law to the facts, or as to the existence of the facts. The first variety, or strict discretion, "is by our law not conceded to any trial judge on points of evidence, except perhaps in 'ex parte' and interlocutory proceedings." ⁷ It is evident, then, that what is termed trial court discretion in the admissibility of evidence is, by Wigmore's definition, more accurately denominated as "finality of ruling." This is in accord with Wisconsin case law that it is possible for an appellate court to premise a misuse of discretion upon an error of law. State v. Hutnik, 39 Wis.2d 754, 763, 159 N.W.2d 733, 737 (1968). We deem it permissible to separate a trial court's discretionary act into its constituent parts (e.g., law, application of law to facts, and facts) and determine which of them is entitled to deference from an appellate court. ⁸

The trial court determined that Pepin's statement to Chicago police was excludable as hearsay, but failed to analyze the statement in an against-interest hearsay exception context. To do so required it to apply the proper legal standard from Meyer, supra, that the exculpatory portions of the document must be equally trustworthy to the inculpatory portion to be admissible. As such, the trial court misused its discretion by failing to apply the proper rule of law.

There is substantial evidence that at the time Pepin's Chicago statement was made, he knew that one of the robbery victims had survived and could, if...