State v. Denny

• Decision Date: 15 May 1991
• Docket Number: No. 90-2019-CR,90-2019-CR
• Citation: 471 N.W.2d 606,163 Wis.2d 352
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey C. DENNY, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 606

471 N.W.2d 606

163 Wis.2d 352

STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey C. DENNY, Defendant-Appellant. ^d No. 90-2019-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 26, 1991.

Opinion Released May 15, 1991.

Opinion Filed May 15, 1991.

Kevin J. Lyons and Steven L. Nelson of Cook & Franke, S.C., Milwaukee, for defendant-appellant.

James E. Doyle, Atty. Gen. and Barry M. Levenson, Asst. Atty. Gen., for plaintiff-respondent.

Before BROWN, SCOTT and ANDERSON, JJ.

SCOTT, Judge.

Jeffrey C. Denny appeals from an order denying a motion for postconviction relief. The issue in this case is whether inculpatory statements made by Kent Denny, Jeffrey's brother and nontestifying codefendant, were inadmissible against Jeffrey because they were barred by the confrontation clause. Jeffrey contends he should receive a new trial under Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), because Cruz should be applied retroactively. Cruz held that "where a nontestifying codefendant's confession incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant's own confession is admitted against him." Id. at 193, 107 S.Ct. at 1719 (citation omitted). Although we hold that Cruz should be applied retroactively, we affirm the conviction because we conclude that Kent's statements were directly admissible against Jeffrey.

Jeffrey was convicted of first-degree murder in 1982. His brother Kent was a codefendant in the trial. Neither brother testified, but the trial court allowed the prosecution to introduce inculpatory statements each defendant made to several third parties. The trial court instructed the jury that statements made by a particular defendant should be considered only with respect to that defendant.

Both Jeffrey and Kent appealed their conviction claiming the trial court erred by denying their motions for severance. This court upheld Kent's conviction based on Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979). State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12 (Ct.App.1984). In a companion case resting largely on the same reasoning, this court summarily affirmed Jeffrey's conviction. State v. Denny, No. 83-1311-CR, unpublished slip op. (Wis.Ct.App. Dec. 5, 1984).

In Parker, the United States Supreme Court held that admission of interlocking confessions, with proper limiting jury instructions, did not violate the defendant's right of confrontation guaranteed by the sixth and fourteenth amendments. Parker, 442 U.S. at 75, 99 S.Ct. at 2140. Interlocking inculpatory statements are statements that clearly demonstrate the involvement of each defendant as to crucial facts such as time, place and activity and an awareness of an overall plan or scheme. See id. at 67-68, 99 S.Ct. at 2136-37. Kent argued that his statements and those of his brother did not actually interlock because Jeffrey's statements were more comprehensive and detailed than Kent's. Denny, 120 Wis.2d at 618, 357 N.W.2d at 14. We held that the statements were interlocking because no apparent inconsistencies existed between the two sets of statements; both sets of statements were substantially similar in terms of the crucial facts and an awareness of an overall plan; and no doubt existed that the statements of the two brothers described the same crime. Id. at 619, 357 N.W.2d at 14.

Since then, the United States Supreme Court has decided Cruz, which overturns Parker. In Cruz, the Court held that where a nontestifying codefendant's confession which incriminates the defendant is not directly admissible against the defendant, the confrontation clause bars the confession's admission at their joint trial even if a limiting instruction is given and even if the defendant's own confession corroborating that of the codefendant is admitted against the defendant. Cruz, 481 U.S. at 193, 107 S.Ct. at 1719. In deciding whether the codefendant's confession is directly admissible, the trial court may look to the defendant's own confession to assess whether the codefendant's statements are supported by sufficient indicia of reliability. Id. at 193-94, 107 S.Ct. at 1719. Jeffrey argues that the new rule set forth in Cruz applies squarely to his case and that it should be applied retroactively.

Retroactivity is properly treated as a threshold question. Teague v. Lane, 489 U.S. 288, 300, 109 S.Ct. 1060, 1069, 103 L.Ed.2d 334 (1989). A new rule ¹ generally should not be applied retroactively to cases on collateral review. Id. at 305, 109 S.Ct. at 1072. There are two exceptions. First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. Id. at 307, 109 S.Ct. at 1073. This exception does not describe the situation here, however. Second, a new rule should be applied retroactively if it requires observance of those procedures that are implicit in the concept of ordered liberty. Id.

Based on the second exception, we conclude that Cruz should be applied retroactively in this case. The confrontation clause of the sixth amendment guarantees the right of the criminal defendant to be confronted with the witnesses against him. Cruz, 481 U.S. at 189, 107 S.Ct. at 1717. Failing to apply a rule interpreting this right would offend our concept of ordered liberty and be against public policy.

Although we hold that Cruz should be applied retroactively, the new rule does not mandate a reversal of Jeffrey's conviction. Cruz would require reversal only if Kent's statements--which incriminate Jeffrey- --were not directly admissible against Jeffrey at their joint trial. We conclude that Kent's statements were directly admissible against his brother Jeffrey and, therefore, were not barred by the confrontation clause.

Two prerequisites exist when determining the admissibility of hearsay evidence to satisfy the confrontation clause. State v. Bauer, 109 Wis.2d 204, 215, 325 N.W.2d 857, 863 (1982). First, the witness must be unavailable. Id. Kent was unavailable as a witness because he was tried jointly with Jeffrey and elected not to testify. See State v. Martinez, 150 Wis.2d 62, 76, 440 N.W.2d 783, 789 (1989).

The second prerequisite is that the evidence must bear some indicia of reliability. Bauer, 109 Wis.2d at 215, 325 N.W.2d at 863. If the evidence fits within a firmly-rooted hearsay exception, reliability can be inferred and the evidence generally is admissible. Id. Kent's confession fits into the "Statement Against Interest" hearsay exception codified in sec. 908.045(4), Stats. In relevant part, that statute defines a statement against...