State v. Cardenas-Hernandez

• Citation: 579 N.W.2d 678,219 Wis.2d 516
• Decision Date: 30 June 1998
• Docket Number: No. 96-3605-CR,CARDENAS-HERNANDE,D,96-3605-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Cross Petitioner, v. Luisefendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

Page 678

579 N.W.2d 678

219 Wis.2d 516

STATE of Wisconsin, Plaintiff-Respondent-Cross Petitioner, v. Luis CARDENAS-HERNANDEZ, Defendant-Appellant-Petitioner.

No. 96-3605-CR.

Supreme Court of Wisconsin.

Argued May 27, 1998.

Decided June 30, 1998.

For the defendant-appellant-petitioner there were briefs by Robert T. Ruth and Ruth Law Office, Madison and oral argument by Robert Ruth.

For the plaintiff-respondent-cross petitioner the cause was argued by Thomas J. Balistreri, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

¶1 DONALD W. STEINMETZ, Justice

This case raises two issues for review:

(1) Whether the circuit court erroneously exercised its discretion when it refused to admit into evidence in a criminal proceeding statements made by an assistant district attorney to the circuit court during preliminary proceedings in a prior criminal prosecution; and

(2) Whether the absolute civil privilege for defamatory statements made in judicial proceedings applies in a criminal prosecution for defamation under Wis. Stat. § 942.01 when the statements are perjurious as well as defamatory.

¶2 This case is before the court on cross-petitions for review of a published opinion of the court of appeals, State v. Cardenas-Hernandez, 214 Wis.2d 71, 571 N.W.2d 406 (Ct.App.1997). The court of appeals affirmed in part, and reversed in part, the judgment of conviction entered by the Circuit Court for Dane County, Stuart A Schwartz, Judge, against the defendant, Luis Cardenas-Hernandez. The court of appeals affirmed the defendant's conviction on two counts of perjury in violation of Wis. Stat. § 946.31, rejecting the defendant's argument that the circuit court erroneously exercised its discretion by refusing to admit into evidence statements made by the assistant district attorney in a prior criminal proceeding. The court of appeals reversed the defendant's conviction on two counts of criminal defamation, in violation of Wis. Stat. § 942.01, holding that statements made by the defendant during a John Doe proceeding are absolutely privileged.

¶3 The relevant facts of this case are somewhat complicated and involve three separate but related court proceedings. In April 1991, the defendant was arrested and charged with various drug offenses. On April 3, 1991, police officers executed a search warrant on the defendant's home. During the search of the defendant's home, Detective Mary Ricksecker discovered and seized a lock box and its contents. Detective Ricksecker listed the contents of the lock box as $5,600 cash. Detective Ricksecker also reported that she discovered and seized another $600 from a dresser in the defendant's home. Sergeant Mark Bradley further reported that when the defendant's clothing was later searched at the police station, money prerecorded as part of a drug sting operation conducted earlier that same day was found in the defendant's wallet. ¹

¶4 The defendant ultimately pled no contest to the drug charges and received a six-year prison sentence. After his conviction, however, the defendant wrote a letter to Dane County Circuit Court Judge Angela B. Bartell, requesting a John Doe proceeding to investigate alleged misconduct by Detective Ricksecker and Sergeant Bradley. Based on the defendant's letter, Dane County Circuit Court Judge Robert A. DeChambeau conducted a John Doe proceeding pursuant to Wis. Stat. § 968.26 to determine whether further action was necessary. During the John Doe hearing, the defendant testified under oath that Sergeant Bradley had lied both when he reported that money he had found in the defendant's wallet had been prerecorded and when he reported the defendant's home was less than 1,000 feet from a day care center. ² The defendant also testified that Detective Ricksecker had stolen $3,300 from the lock box in the defendant's home when she searched it pursuant to the search warrant on April 3, 1991. After conducting the John Doe proceeding, Judge DeChambeau determined that no further action was necessary.

¶5 The State subsequently charged the defendant with two counts of perjury and two counts of criminal defamation as a result of the defendant's alleged false testimony at the John Doe proceeding accusing the officers of stealing money from the lock box and of lying about his possession of prerecorded money. At the perjury trial, the defendant attempted to admit into evidence statements made by Assistant District Attorney Ann Smith (ADA Smith) who had prosecuted the defendant's original drug conviction. During the preliminary proceedings in the original drug prosecution, ADA Smith repeatedly argued to the circuit court that the defendant likely had the ability to post bail since the officers had found "over $8,000 in cash" when executing the search warrant on the defendant's home. ³ In the perjury trial, the defendant attempted to introduce ADA Smith's statements to corroborate his claim that $8,800, rather than the $5,600 reported by Detective Ricksecker, was in the lock box when the officers seized its contents on April 3, 1991.

¶6 At a pretrial evidentiary hearing in the perjury trial, ADA Smith testified that while she had no first-hand knowledge of the amount of cash found in the defendant's home on April 3, 1991, she normally has a basis for the representations she makes to the court, and that she was sure she had a similar basis for her statements in this case. The defendant testified at the pretrial hearing that he heard ADA Smith's statements regarding the amount the officers seized during the search of his home. The defendant also testified that he never forgot ADA Smith's statements. On cross-examination, the defendant admitted that he never mentioned ADA Smith's statements in the letter he sent to initiate the John Doe proceeding or at the John Doe proceeding before Judge DeChambeau. The circuit court declined to admit ADA Smith's statements in the perjury trial, reasoning that the statements were not evidence, were inadmissible hearsay, and, if offered for the nonhearsay purpose of showing the defendant's intent, were not admissible due to a lack of foundation.

¶7 At the circuit court, the defendant also moved to dismiss the defamation charges on the theory that his sworn statements in the John Doe proceeding were absolutely privileged because he made those statements as a witness in a judicial proceeding. The circuit court denied the defendant's motion, concluding that defamatory statements enjoy only a conditional privilege in a criminal defamation case and that this limited privilege did not apply in this case because the defendant abused the privilege by recklessly disregarding the falsity of his statements. A jury convicted the defendant on two counts of criminal defamation and two counts of perjury. The defendant appealed from the circuit court's judgment of conviction.

¶8 The court of appeals reversed the defendant's conviction on two counts of criminal defamation. The court held that the statements made in judicial proceedings are absolutely privileged in a prosecution for criminal defamation. The court therefore concluded that the defendant could not be charged with and convicted of criminal defamation for his statements in the John Doe proceeding.

¶9 The court of appeals also affirmed the defendant's conviction for perjury. The court determined that the circuit court could reasonably conclude that ADA Smith's assertions that more than $8,000 was seized during the search of defendant's home was not inconsistent with the officers' statements that $5,600 was found in the defendant's lock box. The court of appeals also determined that the circuit court properly exercised its discretion in determining ADA Smith's statements were not relevant to establish the defendant's intent, belief, or state of mind when he accused the officers of misconduct.

¶10 The defendant appeals from the court of appeals' determination that the statements of ADA Smith in the drug case were not admissible in the subsequent perjury case. The State cross appeals, claiming that the court of appeals improperly applied the absolute privilege to the defamatory and perjurious statements the defendant made during the John Doe proceedings.

¶11 The first issue raised in this case is whether the circuit court erroneously exercised its discretion when it refused to admit into evidence in the defendant's perjury trial statements made by ADA Smith to the circuit court during preliminary proceedings in a prior drug case. The defendant argues that ADA Smith's statements were not hearsay and were admissible as admissions of a party-opponent under Wis. Stat. § 908.01(4)(b); that the statements were admissible for the non-hearsay purpose of establishing his state of mind at the time he accused the officers of misconduct; and that the statements were admissible to discredit witnesses who testified at the perjury trial. The defendant additionally argues that to exclude ADA Smith's statements denied him of his right to a fair trial. We address in turn each of the defendant's arguments.

¶12 The question of whether to admit evidence is a decision left to the discretion of the circuit court. See In Interest of Michael R.B., 175 Wis.2d 713, 723, 499 N.W.2d 641 (1993); State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498 (1983). We will uphold a circuit court's discretionary decision to admit or exclude evidence if the decision has "a reasonable basis" and was made "in accordance with accepted legal standards and in accordance with the facts of record." Pharr, 115 Wis.2d at 342, 340 N.W.2d 498 (citation omitted); see Grube v. Daun, 213 Wis.2d 533, 542, 570 N.W.2d 851 (1997).

¶13 We are first asked to determine whether a defendant in a criminal proceeding may introduce into evidence as an admission by a party-opponent under Wis. Stat. § 908.01(4)(b) a statement made by a prosecutor in a prior criminal proceeding. The defendant complains that the circuit court...