State v. Bembenek

• Decision Date: 21 May 1987
• Docket Number: No. 86-1186,86-1186
• Citation: 140 Wis.2d 248,409 N.W.2d 432
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Lawrencia BEMBENEK, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 432

409 N.W.2d 432

140 Wis.2d 248

STATE of Wisconsin, Plaintiff-Respondent, v. Lawrencia BEMBENEK, Defendant-Appellant.

No. 86-1186.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 3, 1987.

Opinion Released May 21, 1987.

Opinion Filed May 21, 1987.

Thomas G. Halloran of Halloran, Burke, Dunn & Henderson, S.C., Milwaukee, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., for plaintiff-respondent.

Before MOSER, P.J., and WEDEMEYER and SULLIVAN, JJ.

SULLIVAN, Judge.

Lawrencia Bembenek appeals an order denying her motion for a new trial under sec. 974.06, Stats., on the ground of newly discovered evidence or in the interest of justice. We hold that Bembenek's polygraph evidence would be inadmissible in a new trial, that evidence of the alleged confession of Joseph Hecht lacks sufficient reliability to be admissible, and that the rest of the evidence Bembenek presented would not affect the outcome of the trial. Due process, therefore, does not require a new trial. Accordingly, we affirm.

In March 1982, Bembenek was convicted of the first degree murder of Christine Schultz. At the time of the murder, Bembenek was married to the victim's ex-husband, Elfred Schultz. Bembenek's conviction was upheld on appeal. State v. Bembenek, 111 Wis.2d 617, 331 N.W.2d 616 (Ct.App.1983).

Bembenek moved for a new trial based on newly discovered evidence in August 1985. Eight months later, she supplemented her motion with a request that the court consider the results of a polygraph test she had just taken. The court refused to admit any polygraph evidence. The other alleged newly discovered evidence consisted of affidavits generally purporting to show that Joseph Hecht actually killed Christine Schultz and that Elfred Schultz may have hired Hecht to commit the murder.

Because Bembenek's motion was not timely under sec. 974.02, Stats., the trial court treated the motion as one for a new trial under sec. 974.06, Stats. The trial court denied the motion, ruling that the Hecht affidavits lacked sufficient indicia of reliability to be admissible at a new trial and that the evidence presented by the remaining affidavits was known to the defense at trial, was cumulative to evidence known at trial, or would not probably change the result. See State v. Boyce, 75 Wis.2d 452, 457, 249 N.W.2d 758, 760 (1977). The trial court concluded that due process did not mandate a new trial. We agree.

After the time for appeal or postverdict remedy has expired, a new trial may be granted under sec. 974.06, Stats., if "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." Sec. 974.06(3)(d). Only jurisdictional and constitutional issues may be considered under this section. Vara v. State, 56 Wis.2d 390, 392, 202 N.W.2d 10, 11 (1972). The movant has the burden to establish her entitlement to relief under sec. 974.06 by clear and convincing evidence. State v. Walberg, 109 Wis.2d 96, 104, 325 N.W.2d 687, 691-92 (1982).

We hold that due process may require granting a new trial under sec. 974.06, Stats., on the basis of evidence discovered after the time for bringing postverdict motions has passed. We further hold that due process does not warrant a new trial unless the newly discovered evidence meets, at a minimum, the following criteria:

(1) The evidence must have come to the moving party's knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial.

Boyce, 75 Wis.2d at 457, 249 N.W.2d at 760. We determine constitutional questions independently on appeal. See State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457, 465 (1984).

In this case, the alleged newly discovered evidence consists of the results of a polygraph test taken by Bembenek after filing this motion, three affidavits relating to Hecht's alleged confession, and six affidavits concerning Elfred Schultz. Other evidence considered and rejected by the trial court is not at issue on appeal. None of the evidence before us meets the criteria listed above.

Bembenek first argues that the trial court should have considered evidence of her polygraph test in which she denied killing Schultz. She argues that polygraph evidence may be admissible under Wisconsin law under certain circumstances.

In State v. Ramey, 121 Wis.2d 177, 180-81, 359 N.W.2d 402, 404-05 (Ct.App.1984), this court held that polygraph evidence must be excluded from criminal proceedings on public policy grounds. Bembenek argues that the Ramey court misinterpreted the supreme court's ruling in State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628 (1981), and that Dean left open the possibility that polygraph evidence may be admitted if sufficiently reliable. This argument was rejected in Ramey, 121 Wis.2d at 179-80, 359 N.W.2d at 404, and the supreme court denied review. We decline to reconsider Ramey. Because Bembenek's polygraph evidence would be inadmissible at a new trial, it cannot form the basis of a due process challenge to her conviction. The trial court, therefore, was correct in refusing to consider it as newly discovered evidence.

Next, Bembenek presents affidavits from a private investigator and an attorney who, while working for her, interviewed Joseph Hecht during the summer of 1984. A third affidavit relates an interview with a fellow inmate of Hecht in late 1985. According to these three affidavits Hecht, who is serving a sentence of life plus twenty-six years, admitted shooting Schultz on contract. He refused to name those who hired him but, according to one affidavit, did say that Bembenek had not been involved. The state refused immunity, and Hecht refused to testify.

Bembenek argues that the Hecht affidavits would be admissible at a new trial under sec. 908.045(4), Stats., which excepts from the hearsay rule an unavailable declarant's statement against interest. That subsection makes admissible

[a] statement which ... at the time of its making ... so far tended to subject the declarant to civil or criminal liability ... 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.]

Hecht was already serving a life sentence at the time of his alleged confession, and he had also been sentenced to terms totalling twenty-six years consecutive to his life sentence. Because Hecht will in any event be spending a large portion of his life in prison, his alleged statements did not so far tend to subject him to criminal liability that a reasonable person in his position would not have made them unless true.

Moreover, Hecht's statements lack meaningful corroboration. Bembenek asserts that Hecht's presence in Milwaukee around the time of the murder corroborates his "confession." As the trial court pointed out, however, "since in excess of half a million people have also lived in Milwaukee at the same time, his presence ... is no corroboration whatsoever." Bembenek also argues that Hecht's statements are corroborated by trial testimony concerning the layout of the crime scene and the appearance of the perpetrator. Hecht could have obtained these details, however, from...