State v. Doss
| Decision Date | 07 August 2007 |
| Docket Number | No. 2006AP2254-CR.,2006AP2254-CR. |
| Citation | 2007 WI App 208,740 N.W.2d 410 |
| Court | Wisconsin Court of Appeals |
| Parties | STATE of Wisconsin, Plaintiff-Respondent,<SMALL><SUP>†</SUP></SMALL> v. Carmen L. DOSS, Defendant-Appellant. |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, Attorney General, and William L. Gansner, Assistant Attorney General.
Before WEDEMEYER, FINE and KESSLER, JJ.
Carmen L. Doss appeals from a final judgment of conviction after a jury found her guilty of the unlawful retention by a trustee or bailee of more than $10,000 in violation of WIS. STAT. § 943.20(1)(b) and (3)(c) (2003-04).1 She also appeals from an order denying her postconviction motion for a new trial for, among other reasons, a violation of her constitutional rights to confront the witnesses against her, contrary to the Sixth Amendment of the United States Constitution and the Wisconsin Constitution, article I, section 7. Because a statutory requirement contained in WIS. STAT. § 891.24 was not fulfilled, because "testimonial hearsay" was admitted contrary to the dictates of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and because these errors were not harmless, we reverse the judgment and order.
¶ 2 On October 13, 2005, a jury found Doss guilty of unlawful retention by a trustee of more than $10,000 of estate funds on or about October 31, 2004, in violation of WIS. STAT. § 943.20(1)(b) and (3)(c), based upon a probate court's order to return the same. We briefly recount the sequence of events leading to the jury's verdict.
¶ 3 The father of Doss, Donald, died on August 14, 2003. At the time of his intestate death, he lived at 8049 West Custer Avenue in Milwaukee, Wisconsin. Doss was a resident of the State of Georgia at the time. Because she was a resident of Georgia, she retained a Milwaukee attorney, Diane Loftus, to assist her in the probate of her father's estate. Both Doss and Loftus were named as co-personal representatives. The Ohio Casualty Insurance Company issued a bond in the amount of $52,000 assuring the faithful performance of the fiduciaries.
¶ 4 The estate had assets in Wisconsin of about $72,000. These assets were deposited in the M & I Bank under the joint control of Doss and Loftus. In September 2003, in the process of closing the estate proceedings, Loftus learned that the deceased Mr. Doss had failed to pay state income taxes for the last eight years of his life. As a result, the State Department of Revenue (DOR) would not issue a "Closing Certificate" enabling the final distribution of the assets of the estate. Doss claimed her father was not a resident of the State of Wisconsin; thus she denied any tax liability. Loftus, to the contrary, believed that the estate owed the taxes and she, as co-personal representative, was obligated to make sure the taxes were paid. In fact, on February 6, 2004, she filed the tax return and forwarded a check for $39,865 to the DOR. In the meantime, on February 19, 2004, Doss contacted the revenue agent in charge of the audit and persuaded her to hold the check and not cash it. On the next day, February 20, 2004, Doss withdrew all the money in the M & I account, which was $70,555.47. When the revenue agent submitted the check for cashing, it was returned because the account had been closed. On March 1, 2004, Doss opened an account in the name of the Estate of Donald Doss at the SunTrust Bank of Atlanta, Georgia, and deposited the M & I cashier's check in that account.
¶ 5 On March 3, 2004, the DOR wrote to Loftus and Doss formally concluding that the estate owed income taxes to the State. On March 25, the probate court granted Loftus's request to withdraw as co-personal representative. The court did not address Loftus's request to order Doss to return the funds.
¶ 6 According to bank records, two checks were drawn on the SunTrust estate account: a $5,000 check to a Kimberly Cunningham for "federal taxes and travel expenses" and a $65,000 check to Doss for "inheritance." The check to Doss was then deposited into another SunTrust account on March 15, 2004, in the name of Doss and her mother, where it was co-mingled with other funds. The entire amount was then transferred to a SunTrust money market account in the same names. Various small withdrawals were made over the next six-month period. On September 15, 2004, the account was finally closed out and the balance of $52,778.84 was withdrawn over the signature of Carmen Doss.
¶ 7 Earlier, on August 23, 2004, the DOR filed a separate action against Doss and Ohio Casualty seeking payment it claimed was owed by the estate. On September 27, 2004, Ohio Casualty filed a motion in the probate case for an order that Doss surrender the funds to the court. At an October 7th hearing, Doss appeared pro se by telephone, and stated that she no longer had the funds. The probate court, however, ordered her to pay $70,555.47 to the clerk of courts. Doss has failed to do so.
¶ 8 On November 23, 2004, the State filed a complaint charging Doss with one count of theft as trustee/bailee in a business setting, contrary to WIS. STAT. § 943.20(1)(b) and (3)(c). Doss pled not guilty and the case was presented to a jury. The jury convicted Doss and she was sentenced to six years of imprisonment, consisting of one year of initial confinement followed by five years of extended supervision, and ordered to pay restitution. Doss's postconviction motion was denied. She now appeals.
¶ 9 The pivotal issue in this criminal appeal is whether the trial court erred when, over the objection by Doss, it allowed into evidence her certified bank records. Doss objected to the admission of the bank records on hearsay and confrontation grounds.
¶ 10 When reviewing a trial court's ruling regarding the admissibility of evidence, we use the erroneous exercise of discretion rubric. State v. Franklin, 2004 WI 38, ¶ 6, 270 Wis.2d 271, 677 N.W.2d 276. In evidentiary matters, we will not reverse an erroneous exercise of discretion ruling unless it is prejudicial to the adverse party. Id., ¶ 23, 677 N.W.2d 276. Whether the admission of evidence violates an accused's right to confrontation is a question of law, subject to our independent review. State v. Williams, 2002 WI 58, ¶ 7, 253 Wis.2d 99, 644 N.W.2d 919.
¶ 11 The Sixth Amendment of the United States Constitution declares that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." Similarly, article I, section 7 of the Wisconsin Constitution provides "[i]n all criminal prosecutions, the accused shall enjoy the right ... to meet the witnesses face to face...." Wisconsin courts will generally apply United States Supreme Court precedents when interpreting our confrontation clause. State v. Hale, 2005 WI 7, ¶ 43, 277 Wis.2d 593, 691 N.W.2d 637.
¶ 12 In Crawford, the United States Supreme Court concluded that "[w]here testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." 541 U.S. at 68, 124 S.Ct. 1354. Otherwise non-testimonial hearsay is still governed by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). State v. Manuel, 2005 WI 75, ¶¶ 57-60, 281 Wis.2d 554, 697 N.W.2d 811.
¶ 13 Doss claims that her constitutional rights to confrontation were violated because the rubrics of Crawford for the admission of testimonial evidence were not followed. The Crawford decision provoked a change in the methodology to be employed for determining confrontation violations when admitting hearsay evidence. The decision did not define "testimonial" with any exactitude, but it did describe the term "testimony" as "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id., 541 U.S. at 51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). Stated otherwise, it is hearsay evidence that is relevant and fact determinative. The Crawford court then set forth three "formulations of th[e] core class of `testimonial' statements:"
ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions ...; [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
Id. at 51-52, 124 S.Ct. 1354 (internal citations omitted). Wisconsin has adopted these three formulations. Manuel, 281 Wis.2d 554, ¶ 39, 697 N.W.2d 811.
¶ 14 The State, in offering the certified records of the M & I Bank and the SunTrust Bank to prove the transfer of funds from one bank to the other and the subsequent total withdrawal, relied upon WIS. STAT. § 891.24. For the State to properly admit the bank records, the admission had to pass muster on two counts: statutory and constitutional. We first examine the statutory requirements.
WISCONSIN STAT. § 891.24, in relevant part reads as follows:
Whenever any bank ... or any of its officers are subpoenaed to produce its books containing a specified account or other specified entries, the bank ... may, if it so elects, produce a copy of the specified account or other entries, verified under oath by one of its officers, stating that the books called for are the ordinary books of the bank ... used in the transaction of its business, that the entries...
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State v. Doss
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