State v. Dorcey

Decision Date30 June 1981
Docket NumberNo. 79-1171-CR,79-1171-CR
CourtWisconsin Supreme Court
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Patrick J. DORCEY, Defendant-Appellant-Petitioner.

Sally L. Wellman, Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.

STEINMETZ, Justice.

This case comes before the court on a petition to review a decision of the court of appeals, 98 Wis.2d 718, 298 N.W.2d 213, which affirmed a decision of the circuit court for Milwaukee county, the Honorable MARVIN C. HOLZ, circuit court judge. At issue is the application of evidentiary rules on alleged hearsay and whether the defendant was denied the right of confrontation.

The defendant Patrick J. Dorcey was charged with delivery of cocaine as a party to a crime contrary to secs. 161.16(4), 161.41(1)(b) and 939.05, Stats. A preliminary hearing was held on March 1 and 2, 1978, before the Honorable Patrick J. Madden. The state called as a witness Deborah Ropicky who testified that on December 9, 1977, at about 12:45 p. m. she saw the defendant Dorcey at Gerald Eickstaedt's house in South Milwaukee. Ropicky testified that she was present in the kitchen with Dorcey and Eickstaedt and she heard them talking. She stated, "I heard Patrick Dorcey say to Gerald Eickstaedt that if the other ounce of cocaine was sold within a couple days, that Pat (Dorcey) would give it to Jerry (Eickstaedt) for $1,850."

The state then called Officer Glenn Lewis. Lewis was an undercover officer investigating the drug trade at the time in question. He testified that he met Eickstaedt in Eickstaedt's house on December 9, 1977, at about 11:45 a. m. Lewis was asked to testify as to the contents of a conversation he had with Eickstaedt at that time. Defense counsel objected on the grounds that testimony as to this conversation was inadmissible hearsay and would deprive the defendant of his constitutional right to confront the witnesses against him. In anticipation of this testimony, the defense had already submitted to the court a detailed memorandum explaining the rules of hearsay and arguing against the admissibility of Lewis's testimony. The court ruled that if the state could show probable cause that a conspiracy existed between Dorcey and Eickstaedt, then hearsay testimony as to Eickstaedt's statements would be admissible against Dorcey. Eickstaedt was unavailable to testify as he had died six weeks before the preliminary hearing.

Officer Lewis then testified that Eickstaedt had offered to sell Lewis up to two ounces of cocaine for $2,150 per ounce. Lewis expressed a desire to buy one ounce. Eickstaedt stated this would cause some problem, since he thought Lewis wanted to buy two ounces and that he would have to make a phone call to work it out. According to Lewis, Eickstaedt stated that he had a source who could supply "top shelf" cocaine and that if Lewis would give Eickstaedt the money, Eickstaedt would take the money to the source and return in a few minutes with the drug. Lewis refused to give Eickstaedt the money until he saw the cocaine. Eickstaedt then went to the telephone and Lewis testified that he overheard Eickstaedt as follows:

"He stated, 'I have a dude here who wants to buy some cocaine; he only wants one ounce.' There was a pause. He stated, 'He won't front me the money.' Another pause. He said, 'I'll meet you a half a block from the liquor store in about ten minutes,' and terminated the conversation."

Eickstaedt then told Lewis that he would return in 15 minutes. Lewis observed Eickstaedt leave the house and drive away in a Buick Riviera at about 12:05 p. m. Eickstaedt returned about 12:20 p. m. He removed his gloves and inside one glove was a plastic bag with some white powder in it. Lewis gave Eickstaedt $2,150 and left the house with the powder, which was later determined to be cocaine.

The state called two other officers to testify. Officer Richard Tarczynski testified that at 11:45 a. m. he saw Eickstaedt and Lewis enter Eickstaedt's house and that at 12:05 p. m. he saw Eickstaedt leave the house, enter a Buick, drive a few blocks and park. At 12:20 p. m. he saw the same Buick parked in the driveway of Eickstaedt's house and at 12:50 p. m. he saw both the Buick and a Pontiac LeMans parked in the driveway.

Officer George Hegerty testified that at 12:10 p. m. he saw Eickstaedt parked in a Buick Riviera on Park Place, a few blocks from Eickstaedt's house. He saw a Pontiac LeMans driven by the defendant Dorcey park directly behind Eickstaedt's car. According to Hegerty, Dorcey got in the front seat of the Buick next to Eickstaedt. The two appeared to converse. Dorcey then returned to his own car and both cars drove away.

The court ruled that there was probable cause that a conspiracy existed between the defendant and Eickstaedt and that consequently the testimony of Officer Lewis was admissible.

Before the trial court the defense again moved to exclude Officer Lewis's account of what Eickstaedt said. The court ruled that this testimony was admissible as the statement of a coconspirator and that it was reliable since Eickstaedt's statements were against his penal interests. Deborah Ropicky, Lewis and the other officers gave substantially the same testimony at trial as at the preliminary hearing.

The defendant was convicted of one count of delivery of a controlled substance as party to a crime and sentenced to the state prison for an indeterminate term of not more than one year.

The court of appeals affirmed the judgment, stating that the testimony of Officer Lewis was admissible as a statement by Eickstaedt against his penal interests under sec. 908.045(4), Stats. 1 The court of appeals ruled that there was no constitutional bar to the admissibility of the testimony in question. The appellant-petitioner also raised several other issues before the court of appeals which he chose not to argue on this review. The issues before this court are: (1) Was the testimony of Officer Lewis admissible under the Wisconsin Rules of Evidence (ch. 908, Stats.) and (2) if admissible under the statutes, was it barred by the Confrontation Clauses of the United States and Wisconsin Constitutions?

RULES OF EVIDENCE

The trial court found that the testimony of Officer Lewis was admissible as a statement of a co-conspirator. Under the general rule, hearsay testimony is not admissible. Sec. 908.02, Stats., states:

"908.02 Hearsay rule. Hearsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute."

Sec. 908.01(4)(b)5, Stats., provides:

"908.01 Definitions. The following definitions apply under this chapter:

"...

"(4) STATEMENTS WHICH ARE NOT HEARSAY. A statement is not hearsay if:

"...

"(b) Admission by party opponent. The statement is offered against a party and is:

"...

"5. A statement by a coconspirator of a party during the course and in furtherance of the conspiracy."

Under this rule statements of a co-conspirator made "during the course and in furtherance of the conspiracy" are admissible against any or all parties to the conspiracy. By definition such statements do not constitute hearsay and are therefore outside the rule which excludes hearsay testimony. Bergeron v. State, 85 Wis.2d 595, 612, 271 N.W.2d 386 (1978). In order for the statements to be admissible, however, it must be established that there is a conspiracy between the declarant and the party to the suit. Not all of the elements of the substantive crime of conspiracy need be proven, however, and the defendant need not be charged with conspiracy. 22A C.J.S. Criminal Law sec. 758b (1961); Caccitolo v. State, 69 Wis.2d 102, 230 N.W.2d 139 (1975); O'Neil v. State, 237 Wis. 391, 296 N.W. 96 (1941). The quantum of proof required is a prima facie showing, that is, "the declarations of one coconspirator will not be received against another until a prima facie case of a conspiracy has first been made." State v. Timm, 244 Wis. 508, 518, 12 N.W.2d 670 (1944); see also Gelosi v. State, 215 Wis. 649, 255 N.W. 893 (1934); 22A C.J.S. Criminal Law sec. 760b (1961); contra see United States v. Gil, 604 F.2d 546, 548 (7th Cir. 1979); McCormick, Evidence 645 (2d. 1972).

The conspiracy upon which admissibility depends must be proven independently of the hearsay testimony at issue. "Otherwise, hearsay would lift itself by its own bootstraps to the level of competent evidence." Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942); Federal Life Ins. Co. v. Thayer, 222 Wis. 658, 667, 269 N.W. 547 (1936). However, the conspiracy may be proved by circumstantial evidence, Gelosi v. State, supra, 215 Wis. at 654, 255 N.W.2d 893, and the court may hear the disputed testimony first, contingent upon a later showing that there was a conspiracy. United States v. Halpin, 374 F.2d 493 (7th Cir. 1967); Schultz v. State, 133 Wis. 215, 113 N.W. 428 (1907). If the conspiracy is established, the declarations of one co-conspirator are admissible against another whether or not they were made in the presence of a co-conspirator. 22A C.J.S. Criminal Law secs. 775, 776 (1961); State v. Timm, supra.

Finally, since the rule is limited to statements made "during the course and in furtherance of the conspiracy," it is necessary to determine when the conspiracy began and ended. As we stated in Bergeron v. State, supra, 85 Wis.2d at 613, 271 N.W.2d 386:

"The issue of the admission of inadmissible hearsay is dependent upon a factual question as to when the conspiracy began and terminated. The trial court must rule on the admissibility of such statements or acts. This ruling has the weight of any other finding of fact, and will be dealt with as such on appeal. Schultz v. State, 125 Wis. 452, 104 N.W. 90 (1905). Just as the termination of a conspiracy cannot be...

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