Mitchell v. State, 76-203-CR

• Decision Date: 30 June 1978
• Docket Number: No. 76-203-CR,76-203-CR
• Citation: 267 N.W.2d 349,84 Wis.2d 325
• Parties: Lugene MITCHELL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 349

267 N.W.2d 349

84 Wis.2d 325

Lugene MITCHELL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 76-203-CR.

Supreme Court of Wisconsin.

Argued April 5, 1978.

Decided June 30, 1978.

Ruth S. Downs, Deputy State Public Defender (argued), with whom on the briefs was Howard B. Eisenberg, State Public Defender, for plaintiff in error.

David J. Becker, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

Lee Edward Wells, Deputy Dist. Atty. for Milwaukee County (argued), for amicus curiae Dist. Atty. for Milwaukee County; E. Michael McCann, Dist. Atty. for Milwaukee County, on brief.

CALLOW, Justice.

The defendant, Lugene Mitchell, was arrested on October 18, 1974, while driving a white, 1973 Mercury Cougar, which he did not own. He was charged with driving a motor vehicle without the owner's consent, contrary to sec. 943.23, Stats. His defense was that he had been given permission to drive the car by a friend who claimed to be the owner. The arresting officers observed at the time that the ignition switch had been tampered with so that any key, including the General Motors key used by defendant, could be used to start the vehicle. The defendant was tried, found guilty, and sentenced to an indeterminate term of imprisonment of up to five years. On review he contends that the State's proof of the true ownership of the car and the owner's lack of consent were insufficient both at the preliminary examination and at trial.

Errors in the Preliminary Examination

The preliminary examination was waived by the defendant's first counsel but was rescheduled at the request of the defendant's subsequent attorney. The owner of the car was Steven Hurst of Minneapolis, Minnesota. While Hurst had been subpoenaed for the first preliminary examination, he was not subpoenaed for the second and did not testify prior to trial. The only direct evidence adduced at the preliminary examination of Hurst's ownership interest and nonconsent to the defendant's use of the car was the testimony of the arresting officer concerning the recovery of the car and his phone conversation with Hurst in Minnesota thereafter. In addition, the judge presiding at the preliminary examination, the Hon. Urban Zievers, admitted into evidence two reports prepared by the arresting officer: (1) a long-distance telephone report, describing the conversation with Hurst; and (2) a Milwaukee police offense report of the theft of Hurst's car. The defendant claims that these two reports contained inadmissible hearsay.

The rules of evidence apply to preliminary examinations. Sec. 911.01(2), Stats.; See also: Caccitolo v. State, 69 Wis.2d 102, 230 N.W.2d 139 (1975). In admitting these reports into evidence at the preliminary examination, the court relied on sec. 908.03(6), Stats., the so-called business records exception. This exception allows the introduction of documents made in the course of a regularly conducted activity, which includes police reports. When the report contains out-of-court assertions by others, an additional level of hearsay is contained in the report and an exception for that hearsay must also be found. Sec. 908.05, Stats. That is, the reports cannot establish more than their maker could if he was testifying in court on their subject matter. Thus, defendant's hearsay objection is not to the details of which the officer had personal knowledge but to the repetition of declarations made by Hurst to the officer over the phone. The business records exception does not allow admission of this second level of hearsay.

The state concedes that these statements attributed to Hurst in the reports are not admissible as a record of a regularly conducted activity. Instead, the state argues that the contents of the reports are admissible under sec. 908.03(24), Stats., the residual exception for hearsay testimony not included among the enumerated exceptions to the hearsay rule but having comparable circumstantial guarantees of trustworthiness. The residual exception to the hearsay rule in sec. 908.03(24) is designed to allow for the growth of the evidence code to provide for "unanticipated situations which demonstrate a trustworthiness within the spirit of the specifically stated exceptions." Federal Advisory Committee's Note, 59 Wis.2d at R302. The defendant points out that the police reports admitted here were of the type covered by the business records exception but do not fit under that exception, and argues that to admit these reports under the residual exception is to circumvent the requirements of the business records exception.

However, the drafters' note to sec. 908.03(24), Stats., clearly indicates that the drafters did not intend to restrict the use of the residual exception to situations which are completely different from those covered by the specifically enumerated hearsay exceptions. 59 Wis.2d at R301. As illustrations of the hearsay exceptions which can be fashioned under the residual exception, the drafters cite Wirth v. State, 55 Wis.2d 11, 197 N.W.2d 731 (1972), in which we held that the label on a prepacked, sealed bottle of codeine-type cough syrup, although hearsay, was supported by sufficient surrounding circumstances to be admissible in evidence to establish the contents; and Bertrang v. State, 50 Wis.2d 702, 184 N.W.2d 867 (1971), in which we held that a mother's testimony concerning statements made to her by a young child victim of a sexual assault or traumatic experience is an exception to the hearsay rule.

Both of these situations a label attached as part of a regularly conducted activity in Wirth and a spontaneous utterance in Bertrang were of a type normally covered by a specific exception, but the facts presented did not satisfy the requirements of the specific exception. Sufficient trustworthiness was found, however, to allow their admission as evidence. Therefore we cannot accept the defendant's argument that evidence which is similar to an enumerated hearsay exception cannot be a residual exception under sec. 908.03(24), Stats. On the contrary, since the enumerated hearsay exceptions represent types of evidence traditionally considered to have strong circumstantial guarantees of trustworthiness hearsay admitted under the residual exception is more likely than not to have close affinities to the exceptions specifically enumerated by the rules. In State v. Nowakowski, 67 Wis.2d 545, 227 N.W.2d 697 (1975), we held it proper to admit as a residual exception a document indicating the time of the formation of a campaign committee because the document "was a public document, filed under oath, was actually notarized by the defendant, and is one having 'circumstantial guarantees of trustworthiness.' " Id. at 561-62, 227 N.W.2d at 705. Thus we fashioned a hearsay exception similar to the public records exception in sec. 908.03(8), Stats.

To be admitted as a residual exception, the statements contained in the police reports must have circumstantial guarantees of trustworthiness comparable to the other exceptions enumerated in sec. 908.03, Stats. However, such indicia of trustworthiness are not present. Here these reports were drafted an hour after the conversation with Hurst. The only circumstantial guarantee of trustworthiness brought to our attention by the State is that the statements made by Hurst to the police are against his interest, in the sense that Hurst could be charged with obstructing a police officer, contrary to sec. 946.41, Stats., if his statements were false. However, declarations that tend to subject the declarant to criminal prosecution are admissible hearsay only upon proof that the declarant is unavailable. Sec. 908.045(4), Stats. Hurst was never shown to be unavailable at the preliminary examination, and there was no showing that Hurst's live testimony could not have been reasonably procured. On the contrary, the record at the commencement of the preliminary examination suggests that Hurst was not subpoenaed by the State merely because the district attorney assigned to the case erroneously believed that a stipulation as to Hurst's ownership and nonconsent had been obtained when the first preliminary was waived.

The State suggests that Hurst's declarations to the police should be considered a residual hearsay exception under sec. 908.03(24), Stats., only for the purpose of a preliminary hearing and a finding of probable cause. However, this residual exception, by its form, applies to statements determined to have guarantees of trustworthiness comparable to the enumerated hearsay exceptions. The residual exception thus focuses, as do all of the enumerated hearsay exceptions, on the character of the statements and the circumstances under which they are made, not upon the type of judicial forum at which the statement is offered. We do not believe that restricting the forum at which such statements can be used provides the guarantees of trustworthiness contemplated by this rule. Statements made to the police over the telephone by the victim concerning the theft of an automobile have some guarantees of trustworthiness, but they do not have sufficient guarantees of trustworthiness to be admissible under the residual hearsay exception in sec. 908.03(24). We hold that, since the statements did not fall within any of the enumerated exceptions to the rule in sec. 908.03, Stats., their admission was error.

The Milwaukee District Attorney has filed an amicus brief in which he asks that we adopt a rule permitting the admission of hearsay evidence at preliminary examinations in prosecutions for violations of certain property crimes (burglary, sec. 943.10, Stats.; theft, sec. 943.20, Stats.; operating a vehicle without consent, sec. 943.23, Stats.; forgery, sec. 943.38, Stats.; fraudulent use of a credit card, sec. 943.41, Stats.; and receiving stolen property, sec. 943.34, Stats.) to prove (1) ownership or possession of the...