State v. Cardenas-Hernandez, CARDENAS-HERNANDE

• Decision Date: 02 October 1997
• Docket Number: D,CARDENAS-HERNANDE,No. 96-3605-CR,96-3605-CR
• Citation: 214 Wis.2d 71,571 N.W.2d 406
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Luisefendant-Appellant, dd
• Court: Wisconsin Court of Appeals

Page 406

571 N.W.2d 406

214 Wis.2d 71

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Luis CARDENAS-HERNANDEZ Defendant-Appellant, ^dd

No. 96-3605-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 8, 1997.

Opinion Released Oct. 2, 1997.

Opinion Filed Oct. 2, 1997.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert T. Ruth of Ruth Law Office.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Thomas J. Balistreri, Assistant Attorney General.

Before EICH, C.J., and DYKMAN, P.J., and VERGERONT, J.

VERGERONT, Judge.

Luis Cardenas-Hernandez appeals from a judgment of conviction of two counts of criminal defamation in violation of § 942.01, STATS., ¹ and two counts of perjury in violation of § 946.31, STATS., ² all counts enhanced for habitual criminality under § 939.62, STATS. Cardenas-Hernandez contends on appeal that under § 942.01 all statements made in judicial proceedings are absolutely privileged, and therefore the two defamation convictions must be reversed. We agree and reverse those two convictions. Cardenas-Hernandez also contends that the trial court erroneously exercised its discretion in: (1) excluding a prosecutor's in-court statement from a prior proceeding to show that he (Cardenas-Hernandez) did not intend to make a false statement and that the statement was not false; (2) excluding the transcript of another prosecutor's statement in another prior proceeding on the credibility of a witness for the State in these proceedings; and (3) restricting cross-examination of that witness on the extent of his multiple personality disorder. We conclude the trial court properly exercised its discretion regarding each of these points. We therefore affirm the convictions for perjury.

All four charges arose out of Cardenas-Hernandez's testimony in a John Doe proceeding that two police officers, Sergeant Mark Bradley and Detective Mary Ricksecker, committed misconduct in connection with the search of his home and arrest on drug charges in Case No. 91-CF-518, Dane County Circuit Court. After Cardenas-Hernandez entered a plea of guilty in that case and was sentenced to six years in prison, he wrote to Judge Angela Bartell on September 14, 1993, requesting a John Doe investigation of the officers' misconduct. At the John Doe proceeding on December 23, 1993, Cardenas-Hernandez testified under oath that Bradley lied when he reported that the money he found in Cardenas-Hernandez's wallet upon his arrest was prerecorded; and that Ricksecker stole $3,300 from a lock box in his home when she searched his home pursuant to a search warrant on April 3, 1991. We explain more facts below as we discuss each issue.

CRIMINAL DEFAMATION-- § 942.01, STATS.

Cardenas-Hernandez moved to dismiss the two defamation charges on the ground that his testimony at the John Doe proceeding was absolutely privileged under § 942.01(3), STATS., which provides:

(3) This section does not apply if the defamatory matter was true and was communicated with good motives and for justifiable ends or if the communication was otherwise privileged.

The court denied the motion, concluding that there is not an absolute privilege for testimony in a judicial proceeding when the intent is to abuse the process. In denying the motion for reconsideration, the court ruled that privilege in a criminal defamation action is conditional, not absolute, and that Cardenas-Hernandez had abused the privilege because his actions were in reckless disregard of the truth or falsity of his statements and served no justifiable ends.

On appeal, Cardenas-Hernandez repeats his contention that testimony in a judicial proceeding is absolutely, rather than conditionally, privileged and therefore, by the express terms of § 942.01(3), STATS., the criminal defamation statute does not apply to his conduct. The State agrees with Cardenas-Hernandez that the trial court erred in concluding that Cardenas-Hernandez's statements were conditionally privileged. It also agrees that statements made during investigatory and judicial proceedings are absolutely privileged in a civil action and therefore acts of perjury may not form the basis for a civil action for damages. See Radue v. Dill, 74 Wis.2d 239, 241, 246 N.W.2d 507, 509 (1976). However, the State contends that the court reached the right result because there is no privilege for perjurious statements in a criminal defamation action. Resolution of this issue requires us to interpret § 942.01, an issue of law which we review de novo. State v. Fouse, 120 Wis.2d 471, 476, 355 N.W.2d 366, 369 (Ct.App.1984).

Although we have not addressed the question of absolute privileges under § 942.01(3), STATS., or the question of the relationship between § 942.01(3) and perjury, we have construed § 942.01(3) in the context of a conditional privilege. In State v. Gilles, 173 Wis.2d 101, 496 N.W.2d 133 (Ct.App.1992), the defendant argued that the trial court erred in failing to give a jury instruction on the conditional privilege for publication of information to one with a common interest in the subject matter. This conditional privilege was recognized in RESTATEMENT (SECOND) OF TORTS § 596 (1976), and adopted in a civil defamation action in Zinda v. Louisiana Pacific Corp., 149 Wis.2d 913, 440 N.W.2d 548 (1989). Gilles, 173 Wis.2d at 108-09, 496 N.W.2d at 136. We concluded that § 942.01(3) was ambiguous because of "the unexplained reach" of privileged communication under the subsection. We therefore turned to legislative history, and, in particular, to the Legislative Council Comment accompanying the statute:

There are situations in which the communication of defamatory matter is not criminal.... The communication is not criminal if the defamatory matter was true and communicated with good motives and for justifiable ends.... Nor is the communication criminal if it was otherwise privileged.... [T]he common-law privileges relating to defamation are preserved. In general they are the same as the privileges relating to civil law defamation. See

R ESTATEMENT OFF T ORTS, §§ [sic] 585-612 (1934).

Legislative Council Comment, 1953, § 342.01, STATS. Based on this legislative history, we concluded that "the defense of conditional privilege as recognized in the civil law applies to the crime of defamation." Gilles, 173 Wis.2d at 111, 496 N.W.2d at 137.

Gilles provides a starting point for our analysis. We conclude that § 942.01(3), STATS., is ambiguous with respect to the application of the absolute privilege in civil defamation actions for perjurious statements made during judicial proceedings. Consulting the same source of legislative history that we found persuasive in Gilles, we note that the common law defamation privileges that are preserved in the criminal statute are not limited to conditional privileges but instead are defined as "in general, the same as the privileges relating to civil law defamation."

The RESTATEMENT OF TORTS sections referred to in the Comment, §§ 585-612 (1934), provide witnesses absolute immunity for statements made in judicial proceedings. Section 588 provides that "a witness is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding and as part of a judicial proceeding in which he is testifying, if it has some relation thereto." RESTATEMENT OF TORTS § 588 (1934). The Comment to this section explains that "[t]he witness is subject to the control of the trial judge in the exercise of the privilege. For abuse of it, he may be subject to criminal prosecution for perjury and to punishment for contempt." RESTATEMENT OF TORTS § 588 cmt. a (1934). We consider this to be a persuasive indication that the legislature intended that perjury committed in a judicial proceeding be punished under the perjury statute and that it not be treated as an exception to the absolute privilege for testimony in judicial proceedings that is available in civil defamation actions.

The State advances three arguments why § 942.01(3), STATS., should be interpreted to exclude perjurious statements that are absolutely privileged in civil defamation actions. First, the State argues that because perjury is defined as a crime, "it cannot possibly be criminally privileged." We do not agree that this conclusion inevitably follows from the premise. One could argue just as persuasively that, because perjury is a separate crime, the legislature saw no need to import a special exception for perjury into the civil defamation privileges it was adopting in the criminal defamation statute.

Second, the State also points to case law holding that a defendant's constitutional "privilege" to testify in his or her defense does not include the right to commit perjury. See State v. Burroughs, 117 Wis.2d 293, 305, 344 N.W.2d 149, 156 (1984). This is not a useful analogy. The use of the term "privilege" in the context of discussing certain constitutional provisions does not illuminate how that term is used, as in § 942.01(3), STATS., in the context of defamation. Moreover, as we have noted above, one is "privileged" to commit perjury in the civil defamation context only in the sense that, if it is done in a judicial proceeding, one may not be sued for defamation damages. One is not "privileged" to commit perjury in the sense that one may avoid a sanction for perjury: the sanction is criminal prosecution under § 946.31, STATS.

Third, the State argues that the reasons for recognizing an absolute privilege in civil defamation actions for statements, including perjury, made in judicial proceedings do not apply to a criminal prosecution for defamation. The public policy behind this privilege is to encourage witnesses to speak freely without fear of civil liability. Radue, 74 Wis.2d at 241, 246 N.W.2d at 509. The State is correct that there is no societal interest in encouraging...