State v. Bauer, 81-707-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCALLOW
Citation109 Wis.2d 204,325 N.W.2d 857
Parties, 38 A.L.R.4th 362 STATE of Wisconsin, Plaintiff-Appellant-Cross-Petitioner, v. Daniel J. BAUER, Defendant-Respondent-Petitioner.
Docket NumberNo. 81-707-CR,81-707-CR
Decision Date02 November 1982

Nila J. Robinson, Appleton (argued), for defendant-respondent-petitioner; Mary Lou Robinson and Robinson, Smith & Robinson, on brief.

Thomas J. Balistreri, Asst. Atty. Gen. (argued), for plaintiff-appellant-cross-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

CALLOW, Justice.

This is a review of an unpublished decision of the court of appeals which affirmed in part and reversed in part an order of Outagamie county circuit court Judge Nick F. Schaefer.

On April 25, 1980, at approximately 12:50 a.m., Jacqueline Rastall reported to the authorities that she had been sexually assaulted about three hours earlier. Rastall told the authorities that shortly after she left the Treasure Island department store, located near Appleton, Wisconsin, a man wearing a ski mask rose from the backseat of her car. According to Rastall, the man held a knife to her throat and blindfolded her. He then drove the car to a field where he ordered Rastall to undress. The man allegedly forced Rastall to engage in sexual intercourse and oral sex. After the sexual acts were committed, the man allowed Rastall to dress, forced her to lie down on the front seat so that she would not be seen, and he removed his mask. The record indicates that he took these steps to avoid appearing conspicuous while driving through lighted areas on the way back to town. Sometime during the return trip, Rastall was able to get a look at the man by peeking out from under her blindfold. The man drove Rastall to a parking lot near an apartment complex and an Open Pantry store. He warned Rastall not to report the incident and forced her to turn away from him. He then tore the blindfold from her eyes and fled between the buildings of the apartment complex.

Rastall drove to her aunt's house in Kimberly. Shortly thereafter Rastall reported the incident to the police and was taken to the hospital. Rastall gave a complete description of her assailant to the Rape Crisis counselor and later worked with the police to compile a composite of the offender. Rastall identified Daniel Bauer as her assailant in both a photo lineup and a conventional lineup. A criminal complaint was filed on May 30, 1980, charging Daniel Bauer with second-degree sexual assault and false imprisonment with identity concealed in violation of secs. 940.225(2), 940.30, and 946.62, Stats. 1

Rastall testified about the alleged sexual assault and false imprisonment at a preliminary examination and again identified Bauer as the offender. Bauer's counsel cross-examined Rastall at the hearing. Shortly after the preliminary examination, Rastall was killed in an automobile accident. Bauer moved to suppress Rastall's preliminary examination testimony and extrajudicial statements. He contended that the admission of such evidence at trial would violate his Sixth Amendment right to confront witnesses against him. 2

The trial court granted Bauer's pretrial motion to suppress Rastall's preliminary examination testimony and extrajudicial statements on the ground that admission of such evidence would violate Bauer's constitutional right to confrontation. The state appealed the trial court's order pursuant to sec. 974.05(1)(d)(2), Stats. The court of appeals affirmed the trial court's decision to suppress Rastall's extrajudicial statements. With respect to Rastall's preliminary examination testimony, however, the court of appeals reversed the decision of the trial court and held that such evidence was admissible. Both Bauer and the state sought review of portions of the court of appeals' decision. We granted both petitions.

The issue presented for review is whether the admission into evidence at trial of the deceased victim's preliminary examination testimony and extrajudicial statements would violate the defendant's constitutional right to confrontation.


The Sixth Amendment's confrontation clause, made applicable to the states through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Article I, sec. 7 of the Wisconsin Constitution similarly provides: "In all criminal prosecutions the accused shall enjoy the right ... to meet the witnesses face to face." We have recognized that "the right to confrontation ... is an essential and fundamental requirement for a fair trial." Sheehan v. State, 65 Wis.2d 757, 764, 223 N.W.2d 600 (1974). The primary purpose of the confrontation right is to ensure that the trier of fact has a satisfactory basis for evaluating the truthfulness of evidence admitted in a criminal case. 3 Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970). Consequently, "its denial or significant diminution calls into question the ultimate ' "integrity of the fact-finding process." ' " Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973), quoting Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969) (Per Curiam).

A literal reading of the confrontation clause would require, upon objection, the exclusion of any statement made by a declarant not present at trial. Such an interpretation would "abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme." Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980); 4 State v. Dorcey, 103 Wis.2d 152, 161, 307 N.W.2d 612 (1981). Although very important, "[t]he confrontation right is not absolute." State v. Olson, 75 Wis.2d 575, 588, 250 N.W.2d 12 (1977). It "must occasionally give way to considerations of public policy and the necessities of the case." Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895). The United States Supreme Court recently noted that "competing interests, if 'closely examined,' Chambers v. Mississippi, 410 U.S., at 295, 93 S.Ct., at 1046, may warrant dispensing with confrontation at trial." Ohio v. Roberts, 448 U.S. at 64, 100 S.Ct. at 2538. The Court recognized that "every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings." Id. The difficulty lies in determining when interests such as these justify dispensing with confrontation at trial.

The threshold question is whether the evidence sought to be introduced is admissible under the Rules of Evidence of Wisconsin, Chs. 901-911, Stats. State v. Lenarchick, 74 Wis.2d 425, 433, 247 N.W.2d 80 (1976). If the evidence does not fit within a recognized hearsay exception, it must be excluded. Only after it is established that the evidence is admissible under a hearsay exception does it become necessary to consider the confrontation clause.

It has long been recognized that the "Sixth Amendment's Confrontation Clause and the evidentiary hearsay rule stem from the same roots." Dutton v. Evans, 400 U.S. at 86, 91 S.Ct. at 218. They are "generally designed to protect similar values." California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489 (1970). However, "the hearsay rule is not congruent in all cases with the requirements of the confrontation clause." Nabbefeld v. State, 83 Wis.2d 515, 522, 266 N.W.2d 292 (1978); see also Dutton v. Evans, 400 U.S. at 86, 91 S.Ct. at 218. In State v. Lenarchick, 74 Wis.2d at 432, 247 N.W.2d 80, we held that "compliance with a state's hearsay rule does not ipso facto insure compliance with the constitutional mandate for confrontation in a criminal case." Therefore, in determining whether hearsay evidence is admissible in a criminal case, it is necessary to look beyond the hearsay rules.

In Ohio v. Roberts, 448 U.S. at 65-66, 100 S.Ct. at 2538-2539, the Supreme Court set forth a two-step approach to be used in determining whether hearsay evidence satisfies the requirements of the confrontation clause.

"The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. See Mancusi v. Stubbs, 408 U.S. 204 [92 S.Ct. 2308, 33 L.Ed.2d 293] (1972); Barber v. Page, 390 U.S. 719 [88 S.Ct. 1318, 20 L.Ed.2d 255] (1968). See also Motes v. United States, 178 U.S. 458 [20 S.Ct. 993, 44 L.Ed. 1150] (1900); California v. Green, 399 U.S., at 161-162, 165, 167, n. 16 .

"The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the general rule.' Snyder v. Massachusetts, 291 U.S., at 107 [54 S.Ct., 330 at 333, 78 L.Ed. 674]. The principle recently was formulated in Mancusi v. Stubbs:

" 'The focus of the Court's concern has been to insure that there "are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant," Dutton v. Evans, supra, [400 U.S.] at 89 , and to "afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement," California v. Green, supra, [399 U.S.] at 161 . It is clear from these statements, and from...

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