Caccitolo v. State, S

• Decision Date: 16 June 1975
• Docket Number: No. S,S
• Citation: 230 N.W.2d 139,69 Wis.2d 102
• Parties: James J. CACCITOLO, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 182.
• Court: Wisconsin Supreme Court

Page 139

230 N.W.2d 139

69 Wis.2d 102

James J. CACCITOLO, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. State 182.

Supreme Court of Wisconsin.

June 16, 1975.

Howard B. Eisenberg, State Public Defender, Madison, for plaintiff-in-error.

Bronson C. La Follette, Atty. Gen., David J. Becker, Asst. Atty. Gen., Madison, for defendant-in-error.

HEFFERNAN, Justice.

On February 12, 1974, following a trial to a jury, James J. Caccitolo was found guilty of intentionally intercepting a wire communication, in violation of secs. 968.31(1)(a) ¹ and 939.05(1), ² Stats. On March 15, 1974, the judgment of conviction was entered. Sentence weas, however, withheld, and Cacitolo was placed on two years probation. Caccitolo's motion to dismiss the information, or in the alternative for a new trial, was denied. Upon Caccitolo's application, writs of error were issued to review the judgment of conviction and the order denying the motion to dismiss the information and for a new trial.

It is Caccitolo's basic contention that hearsay evidence was improperly admitted at both the preliminary hearing and at the trial. The defendant contends that, without inadmissible hearsay the trial court could not have found probable cause and, therefore, the information should not have issued. He also contends that the only evidence at trial to support his conviction was inadmissible hearsay.

Our examination of the record of the preliminary examination and the trial shows that there was sufficient evidence, free of any hearsay taint, adduced at the preliminary examination to warrant a finding of probable cause and there was sufficient evidence properly admitted at trial pursuant to which the jury could find the defendant guilty beyond a reasonable doubt. Accordingly, we affirm.

This case has its genesis in a marital dispute between Stan McGaw and his wife. It is undisputed that Stan McGaw illegally tapped the telephone line to his wife's residence. That tap was discovered on March 21, 1973. Stan McGaw and his wife were living apart at this time, and Stan McGaw was living at the residence of his brother, Donald McGaw. There is no dispute that the defendant, James J. Caccitolo, provided the electronic equipment used to make the tap after McGaw admittedly hired Caccitolo, a private investigator, to do surveillance work in respect to McGaw's marital problems. Caccitolo denies, however, that he had any intention to tap Mrs. McGaw's phone. He argues that the equipment was given to McGaw only so McGaw could tap his own phone at the residence of his brother, where he lived apart from his wife.

The jury concluded that there was sufficient evidence to show that Caccitolo was guilty of intentionally intercepting a wire communication by participating in the placing of a tap of Mrs. McGaw's telephone line.

The wiretap was discovered on March 21, 1973, after Mrs. McGaw notified the telephone company that she heard a buzzing noise on her phone. An employee of the telephone company found that the telephone pedestal terminal had been connected to a tape recorder, which was found in a shed on the premises of Richard Lee, whose property was near Mrs. McGaw's residence.

Stanley McGaw died on April 13, 1973. Accordingly, some of the evidence adduced at both the preliminary examination and the trial involved statements made by McGaw, who obviously was not subject to cross-examination. The basic question is whether the hearsay statements were admissible into evidence, either because they came within the exceptions to the hearsay rule or because the hearsay rule was otherwise satisfied, or whether they were admissible because they were introduced for other than the assertion of the truth of the matter stated therein and therefore were not hearsay.

Hearsay was defined by this court in Grunwald v. Halron (1967), 33 Wis.2d 433, 439, 147 N.W.2d 543, 547, wherein the court adopted the defintion utilized by McCormick, Evidence, page 460, sec. 225:

"Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter."

The Wisconsin Rules of Evidence provide:

'Hearsay. 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' Sec. 908.01(3), 59 Wis.2d, at R220.

In accordance with those definitions, the hearsay rule is inapplicable to out-of-court assertions, although made by one not present in court for cross-examination, if the statement is not offered to prove the truth of the matter asserted.

Caccitolo was bound over on May 29, 1973, to trial to the circuit court.

A number of statements made by Stan McGaw and testified to by others were introduced at the preliminary examination. Each of these statements was objected to as hearsay.

Richard Lee, the neighbor of Mrs. McGaw, in whose shed the tape recorder was located, stated that he was spoken to by Stan McGaw about a week before the tape recorder was discovered. Over objection of the defendant, Lee was permitted to testify that, 'He (McGaw) asked me if he could use my property to place a recorder so he could record his wife's voice, or telephone conversations.' The trial judge admitted this statement because, he concluded, 'The request to use the shed is not hearsay but is evidence merely of the fact of consent.'

Caccitolo acknowledges that the first portion of the disputed statement is not objectionable, because it only proves that McGaw sought Lee's consent to use the shed. Caccitolo objects to the balance of the statement, because it purports to show that McGaw, in truth, intended the tap for the purpose of intercepting his wife's conversations. The latter portion of this statement is clearly hearsay. However, it is in respect to an undisputed fact. No one contends that Stan McGaw did not intend to intercept his wife's conversations. While the admission of the statement was clearly erroneous, that statement, taken by itself, in no way inculpates Caccitolo. The error is harmless. The testimony admitted was only cumulative to uncontested facts.

The state argues, however, that the testimony was admissible, because it was made by a co-conspirator of Caccitolo. At the time the preliminary examination was held, the Wisconsin rule in respect to the admissibility of hearsay statements by a co-conspirator was that a statement of a co-conspirator is admissible of made in the course of conspiracy. State v. Adams (1950), 257 Wis. 433, 437, 43 N.W.2d 446; State ex rel. Tingley v. Hanley (1946), 248 Wis. 578, 582, 22 N.W.2d 510; and State v. Timm (1944), 244 Wis. 508, 516, 12 N.W.2d 670. While some earlier cases of this court, e.g., Pollack v. State (1934), 215 Wis. 200, 214, 253 N.W. 560, 254 N.W. 471, required that, for a hearsay statement of a co-conspirator to be admissible, it be not only in the course of the conspiracy but in furtherance of it. That portion of the rule requiring that the statement be 'in furtherance of the conspiracy' was not the law of Wisconsin at the time of the preliminary hearing.

The rule in respect to the admission of statements by a co-conspirator was modified by the Wisconsin Rules of Evidence adopted by this court in 59 Wis.2d R1, effective January 1, 1974. Under the code which was in effect during the trial of this case but not at the time of the preliminary hearing, 'a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy' is admissible. (Emphasis supplied.) Sec. 908.01(4)(b)5, 59 Wis.2d R221. ³

McGaw's statement is not admissible, because there is no evidence to show that the conspiracy had begun on that date. Its admission was, however, harmless error.

At the preliminary examination, Lee testified in respect to two other statements made by McGaw. He stated that, on the evening of the same day that McGaw asked for permission to use the metal shed, he saw McGaw and Caccitolo in his backyard. Lee said he went into the yard and McGaw introduced Caccitolo to him. Lee was permitted to testify that McGaw said, 'Everything will be all right.' Lee stated that he then returned to his house, and upon emerging later he went into the backyard and 'Stan said everything was all right.' Lee said he looked into the shed and saw the tape recorder with a wire attached to it.

Neither of these two statements were hearsay. Clearly, they were not introduced for the purpose of proving that in fact 'everything was all right.' However, were these statements hearsay, they would nevertheless be admissible because they were made by a co-conspirator in the course of a conspiracy.

Judge Jackman, in ruling on the bindover, correctly held that these statements were not hearsay; but he did so for the wrong reason. He stated that they were admissible because the statement of McGaw was made in the presence of the defendant Caccitolo. The presence of the defendant, however, does not in itself mean that a statement is not hearsay. McCormick states:

'The presence or absence of the party against whom an out-of-court statement is offered has significance only in a few particular situations, e.g., when a statement spoken in his presence is relied upon to charge him with notice, or when failure to deny a statement spoken in his presence is the basis for claiming that he acquiesced in or adopted the statement.' McCormick, Evidence (2d ed.), p. 586, sec. 246.

Accordingly, when a statement is made in the presence of another, against whom it is desired to use that statement, the out-of-court utterance may be repeated in court and it will be admissible, not because it is not hearsay. It is hearsay. Rather, the hearsay rule has been satisfied by a form of cross-examination, or at least an opportunity to question the declarant. It is reasoned that, if...