State v. Anderson

• Decision Date: 10 December 1987
• Docket Number: No. 86-0612-CR,86-0612-CR
• Citation: 416 N.W.2d 276,141 Wis.2d 653
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. John Mann ANDERSON, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 276

416 N.W.2d 276

141 Wis.2d 653

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. John Mann ANDERSON, Defendant-Appellant.

No. 86-0612-CR.

Supreme Court of Wisconsin.

Argued Sept. 9, 1987.

Decided Dec. 10, 1987.

John J. Glinski, Asst. Atty. Gen., for plaintiff-respondent-petitioner; Donald J. Hanaway, Atty. Gen., on brief.

William J. Tyroler, Asst. State Public defender, for defendant-appellant.

BABLITCH, Justice.

The State of Wisconsin (State) seeks review of a court of appeals' decision ordering a new trial for the defendant, John Mann Anderson (Anderson).

Anderson was convicted on several counts relating to his possession of a short-barreled shotgun. At trial, Anderson contended that his possession of the gun was privileged. In support of this defense, he sought to introduce two out-of-court statements made by his brother Luther. The statements exculpated Anderson and subjected Luther to criminal liability.

The trial court excluded the statements primarily on the grounds that they lacked sufficient corroboration. The court of appeals reversed, finding sufficient corroboration. We hold that the standard of corroboration required by sec. 908.045(4), Stats., is corroboration sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true. The record discloses such facts. Accordingly, we affirm.

Anderson was found guilty by a jury and convicted of possession of a short-barreled shotgun, sec. 941.28, Stats., possession of a firearm by a felon, sec. 941.29(2), and obstruction of justice, sec. 946.41(1). The conviction arises from an incident occurring on the evening of March 9, 1987, when Anderson and his brother, Luther Anderson (Luther) were at a bar. Anderson, who was the only defense witness at trial, testified to the following sequence of events.

Luther was in the basement of the bar gambling while Anderson was upstairs drinking. A gambling dispute subsequently erupted between Luther and another man whom Luther believed had cheated him of three dollars. Luther pulled a short-barreled shotgun from his briefcase and pointed the gun at the man. Anderson came downstairs, grabbed the gun from Luther, and told the man to run. Luther and Anderson then left the bar, with Anderson carrying Luther's briefcase containing the gun. Anderson refused to give the briefcase to Luther in light of Luther's earlier intentions to use the gun. While walking away, the police spotted Anderson carrying the briefcase, and saw him set the briefcase down. The police seized the briefcase and arrested them both.

Anderson and Luther were arrested two blocks from the bar. When questioned by the police, both brothers denied knowing each other and gave false names. Luther's name, however, was on the brief case and on personal papers inside the case. There was no police investigation of the events at the bar. Anderson was charged with three counts: possession of a short-barreled shotgun, possession of a firearm by a felon and obstructing an officer. Luther was not charged and was released from custody.

At trial, Anderson based his defense on the theory that his possession of the gun was privileged because it was necessary for the protection of a third person. In support of this defense, Anderson attempted to introduce statements made by Luther to their mother a day after the incident and to Anderson's attorney several days later, stating that Anderson had intervened during the gambling dispute and took the gun from Luther to prevent Luther from shooting someone. The court held that Luther's extrajudicial statements were hearsay and were inadmissible as statements against penal interest primarily because the statements lacked corroboration.

The jury found Anderson guilty of all charges. Anderson appealed his conviction on the first two counts, arguing that the statements were admissible under sec. 908.045(4), Stats., which states:

"908.045 Hearsay exceptions; declarant unavailable. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

"...

"(4) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated." (Emphasis added.)

The court of appeals reversed the trial court judgment and ordered a new trial. The court of appeals found that the trial court had erroneously excluded the statement against interest and that such error was not harmless. The State filed a petition for review, challenging the court of appeals' interpretation of the corroboration requirement, which was granted on April 7, 1987.

Section 908.045(4), Stats., provides, in part, that a "statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated." The central issue before us is the extent of corroboration required by the statute. Because this issue presents a question of statutory construction, a question of law, the court may decide the matter independently and without deference to the determinations of the trial court and court of appeals. City of Madison v. Donohoo, 118 Wis.2d 646, 651, 348 N.W.2d 170 (1984).

The various standards for admitting statements against penal interest, offered to exculpate an accused, fall along a spectrum of admissibility. At one end of the spectrum, all statements against penal interest are admissible with no corroboration whatsoever. Such a permissive approach to admissibility is founded on the notion that the nature of any statement that is against penal interest per se provides sufficient assurance of trustworthiness for admissibility purposes. Note, Declarations Against Penal Interest: Standards of Admissibility Under An Emerging Majority Rule, 56 B.U.L.Rev. 148, 176-77 (1976).

By contrast, the restrictive end of the spectrum limits admissibility to those statements which the defendant can show, through corroboration, to be true. See State v. Larsen, 91 Idaho 42, 49, 415 P.2d 685 (1966) (where prior to the adoption of federal rule 804(b)(3), Idaho required evidence that "clearly indicated" that the declarant was guilty of the crime for which the accused was on trial). Jurisdictions such as Idaho, which have used this stringent corroboration standard for admissibility, have done so based on a belief that statements against penal interest are inherently untrustworthy and should only be admissible when all doubt of their falsity has been removed. Note, Declarations Against Penal Interest: What Must Be Corroborated Under The Newly Enacted Federal Rule Of Evidence, Rule 804(b)(3)?, 9 Val.U.L.Rev. 421, 438 (1975).

In the present case, the State asserts that the corroboration standard of sec. 908.045(4), Stats., should be interpreted consistent with the federal standard of "corroboration clearly indicating the trustworthiness of the statement." (Emphasis added.) Fed.R.Evid. 804(b)(3). ¹ We disagree.

The stringency of the federal corroboration standard places it close to the restrictive end of the admissibility spectrum. See United States v. Barrett, 539 F.2d 244, 253 (1st Cir.1976) (where the court, applying federal rule 804(b)(3), required corroboration which "solidly" indicated the trustworthiness of the statement); United States v. Satterfield, 572 F.2d 687, 693 (9th Cir.1978) cert. denied, 439 U.S. 840, 99 S.Ct. 128, 58 L.Ed.2d 138 (1978) ("corroborating circumstances must do more than tend to indicate the trustworthiness of the statement; they must clearly indicate it") (Emphasis in original); Note, 56 B.U.L.Rev. at 173 (referring to the federal rule as establishing "[o]ne of the strictest corroboration requirements").

Wisconsin's corroboration standard is, by comparison, less stringent. From the language and history of sec. 908.045(4), Stats., and taking into consideration the general policies regarding the hearsay exceptions, a defendant's constitutional right to present a defense, and the respective roles of judge and jury in determining admissibility and assessing credibility, we conclude that the standard of corroboration is corroboration sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true.

The language and history of sec. 908.045(4), Stats., suggest that Wisconsin has taken a less restrictive approach to admissibility than the federal standard. The statute provides, in part, that a statement against penal interest offered to exculpate an accused is not admissible "unless corroborated." This language is facially different from the federal rule which imposes the requirement of corroborating circumstances which "clearly indicate the trustworthiness of the statement." (Emphasis added.) Fed.R.Evid. 804(b)(3). Nothing in the language of sec. 908.045(4) suggests the federal standard of "clearly" indicating trustworthiness.

Additionally, it is notable that Wisconsin never adopted the language or approach of the present federal corroboration standard for statements against penal interest. The limited history of sec. 908.045(4), Stats., indicates that the State Judicial Council modeled the Wisconsin rule after the language of a United States Supreme Court draft of federal rule 804(b)(3) which used the language, "unless corroborated." Minutes of Wisconsin Judicial Council Meeting, March 17, 1973, and April 27, 1973; see also House Comm. on the Judiciary, Report on the Federal Rules of...