State v. Anderson, No. 2007AP2338-CR (Wis. App. 12/30/2009)
| Decision Date | 30 December 2009 |
| Docket Number | No. 2007AP2338-CR.,2007AP2338-CR. |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Derek N. Anderson, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
APPEAL from a judgment and an order of the circuit court for Jefferson County: WILLIAM F. HUE, Judge. Affirmed.
Before Lundsten, Higginbotham and Bridge, JJ.
Derek Anderson, formerly known as Andrew Krnak, appeals a judgment, entered upon a jury's verdict, convicting him of first-degree intentional homicide. Anderson also appeals the order denying his motion for postconviction relief. Anderson argues: (1) the admission of hearsay evidence violated his right to confrontation; (2) the trial court violated his due process rights by allowing the jury to consider whether the police altered evidence; and (3) the trial court erred by admitting expert testimony regarding mass murderers. Anderson also claims he is entitled to a new trial in the interest of justice. We reject Anderson's arguments and affirm the judgment and order.
¶ 2 Anderson's immediate family, including Allen Krnak (his father), Donna Krnak (his mother), and Thomas Krnak (his brother), disappeared with the family dog on or around July 2, 1998. Anderson claimed he last saw them as they were preparing to leave their home in Jefferson County for their cabin in Waushara County over the Fourth of July holiday. In December 1999, Allen's skeletal remains were found in a remote, wooded area less than ten miles from Western Carolina University, in North Carolina. Anderson had previously attended the university and hiked where Allen's remains were found. Allen died as a result of blunt force trauma to the head and face, inflicted by a club or other similar instrument.
¶ 3 The State charged Anderson with first-degree intentional homicide for the murder of his father. Anderson's pretrial motion to exclude certain evidence was denied. After a jury trial, Anderson was found guilty of the crime charged and sentenced to life in prison. His motion for postconviction relief was denied, and this appeal follows.
¶ 4 Anderson argues that the trial court violated his right to confrontation by admitting hearsay evidence. "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him [or her] ...." U.S. CONST. amend. VI. Whether the admission of evidence violates an accused's right to confrontation is a question of law that this court reviews independently. State v. Williams, 2002 WI 58, ¶7, 253 Wis. 2d 99, 644 N.W.2d 919. The first step in analyzing a confrontation violation claim is to determine whether the challenged statement is testimonial or non-testimonial. See Crawford v. Washington, 541 U.S. 36, 68 (2004).
¶ 5 The Confrontation Clause bars admission of an out-of-court testimonial statement unless the declarant is unavailable and the defendant had a prior opportunity to examine the declarant with respect to the statement. Id. at 68-69; State v. Jensen, 2007 WI 26, ¶15, 299 Wis. 2d 267, 727 N.W.2d 518. The Crawford Court set forth three formulations for determining whether a statement is testimonial. Crawford, 541 U.S. at 51-52. Relevant to this appeal, hearsay is testimonial if the statement was "`made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" Id. at 52 (citation omitted).
¶ 6 Anderson challenges the admission of statements his mother, Donna, made to Karen Anderson (no relation). At the pretrial hearing on Anderson's motion to exclude evidence, Karen testified that she befriended Donna while staying at the same campground. Karen further testified that, after knowing each other for approximately one year, Donna came to her campsite and said: Karen testified that Donna then proceeded to read her a letter from Anderson that included language to the effect of: "If I ever get the money to come back to Wisconsin, I'll do away with you all." Karen testified that, after reading the letter, Donna expressed fear for her life and that of her family, and further made Karen swear she would not tell anybody about the letter.
¶ 7 We conclude that these statements were non-testimonial as they were not made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. See id. Statements made to loved ones or acquaintances, like Karen, are not the memorialized type of statements that Crawford addressed. See Jensen, 299 Wis. 2d 267, ¶32 (citing State v. Manuel, 2005 WI 75, ¶53, 281 Wis. 2d 554, 697 N.W.2d 811). Additionally, Karen was not a governmental agent, and there was no reason to believe that Donna expected Karen to report her statements to the police. See Jensen, 299 Wis. 2d 267, ¶32. On the contrary, Donna pled with Karen not to tell anybody. Donna was simply confiding in Karen about her concerns regarding Anderson. "By all indications, the conversation was confidential and not made with an eye towards litigation." Manuel, 281 Wis. 2d 554, ¶53.
¶ 8 Having concluded that these statements were non-testimonial, we must nevertheless assess them under Ohio v. Roberts, 448 U.S. 56 (1980). Manuel, 281 Wis. 2d 554, ¶¶3, 60.1 To determine admissibility of non-testimonial statements: (1) the declarant must be unavailable at trial; and (2) the declarant's statements must "bear[ ] adequate `indicia of reliability' [, which] could be inferred without more in a case where the evidence fell within a firmly rooted hearsay exception or upon a showing of `particularized guarantees of trustworthiness.'" Id., ¶61 (quoting State v. Hale, 2005 WI 7, ¶45, 277 Wis. 2d 593, 691 N.W.2d 637, in turn citing Roberts, 448 U.S. at 66). Because Donna was unavailable for trial—having disappeared in July 1998—we turn to the second inquiry.
¶ 9 To evaluate whether statements contain particularized guarantees of trustworthiness, this court considers the "`totality of the circumstances, but ... the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief.'" Id., ¶68 (quoting State v. Weed, 2003 WI 85, ¶25, 263 Wis. 2d 434, 666 N.W.2d 485, in turn quoting Idaho v. Wright, 497 U.S. 805, 819 (1990)). "`Some factors that have been considered in assessing the reliability of a statement include spontaneity, consistency, mental state, and a lack of motive to fabricate.'" Id. (citation omitted). Further, "we examine whether the statement is so trustworthy that adversarial testing would add little to its reliability." Id. (internal quotations and citations omitted).
¶ 10 Here, the record reveals no apparent motive for Donna to falsely accuse Anderson of sending her a threatening letter. As the State aptly points out, the admission that one's own son threatened to "do away" with his family could be a source of embarrassment and is not the type of thing one would usually fabricate. The record supports a conclusion that Donna volunteered these statements to Karen in confidence. Moreover, Donna's admission of having initially lied to Karen about Anderson's existence is another indicator of reliability. In light of the totality of the circumstances, we conclude that Donna's statements contain sufficient particularized guarantees of trustworthiness.
¶ 11 To the extent Anderson contends that Donna's statement to Karen on a later occasion rendered all of Donna's statements inadmissible, we are not persuaded. Karen testified that, several months after the conversation in which Donna read her the letter from Anderson, Donna told Karen to remember the letter if something happened to her. When Donna initially read the letter, however, she made Karen swear she would not tell anybody about the letter. The fact that Donna, months later, told Karen to remember the letter if something happened to her cannot retroactively transform Donna's earlier statements from non-testimonial to testimonial.
¶ 12 Although Donna's subsequent request for Karen to remember the letter if something happened to her is arguably testimonial, we conclude that any error in admitting the statement was harmless because the statement itself says nothing about the letter's contents or the identity of its sender. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (). Moreover, any error was inconsequential to the evidence of Anderson's guilt, see id. at 684, and does not undermine our confidence in the conviction, see Williams, 253 Wis. 2d 99, ¶50.
¶ 13 Next, Anderson challenges the admission of statements his father, Allen, made to a co-worker, Patricia Ellifson. Although Anderson concedes the statements are non-testimonial, he claims they lack particularized guarantees of trustworthiness. We are not persuaded. Ellifson testified that she met Allen when she began working at the same company as him in May 1991. According to Ellifson, she knew Allen had a son named Thomas, but never knew he had a second son until a conversation that occurred in January or February of 1998. At that time, Ellifson was complaining to Allen about the moody behavior of her son when Allen remarked, "Makes you want to kill your kid before he kills you." Ellifson also testified that, in April 1998, she again mentioned her son's moodiness, and Allen asked whether her son had ever threatened her. When Ellifson responded, Allen stated that his son had tried to kill him by clubbing him with something when he came home from work one night. When Ellifson inquired whether Allen had told anyone and asked what he was going to do, Allen "just...
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