State v. Hale

• Citation: 2005 WI 7,277 Wis.2d 593,691 N.W.2d 637
• Decision Date: 25 January 2005
• Docket Number: No. 03-0417-CR.,03-0417-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Glenn H. HALE, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

277 Wis.2d 593

2005 WI 7

691 N.W.2d 637

STATE of Wisconsin, Plaintiff-Respondent, v. Glenn H. HALE, Defendant-Appellant-Petitioner.

No. 03-0417-CR.

Supreme Court of Wisconsin.

Oral argument September 21, 2004.

Decided January 25, 2005.

For the defendant-appellant-petitioner there were briefs and oral argument by Steven D. Phillips, assistant state public defender.

For the plaintiff-respondent the cause was argued by James M. Freimuth, assistant attorney general, with whom on he brief was Peggy A. Lautenschlager, attorney general.

¶ 1. ANN WALSH BRADLEY, J.

The petitioner, Glenn Hale, seeks review of a decision of the court of appeals affirming his convictions, which included two counts of first-degree intentional homicide, party to a crime.¹ Hale asserts that he is entitled to a new trial because the circuit court improperly allowed into evidence the former testimony of an unavailable witness. ¶ 2. We agree with Hale that the testimony in question should not have been admitted in this case. Such evidence violated Hale's right to confrontation, as he did not have a prior opportunity to cross-examine the witness. However, we also conclude that it is beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained and was therefore harmless. Accordingly, albeit with different rationale, we affirm the court of appeals.

I

¶ 3. On December 8, 2001, two men forced their way into a Kenosha apartment and robbed its three occupants of drugs and money. One of the robbers was masked and armed with a revolver, which he used to fatally shoot two of the victims, Darrel Stone and Joshua Kressel.

¶ 4. Two days later, the police received an anonymous tip that Robert Jones and his brother-in-law, Glenn Hale, had committed the offenses. The police arrested Jones on December 12, 2001, and Hale in the early morning of December 14, 2001. Jones was tried and convicted in May 2002, while Hale was tried separately two months later.

¶ 5. At Hale's jury trial, Mark Bernhardt, the surviving victim, described the crimes in detail. He testified that he, Stone, and Kressel were watching television when he heard a car pull into the adjacent driveway. About two minutes later, a male identifying himself as "Vinnie" knocked on the door. Not knowing anyone by that name, the victims did not initially open the door. When the knocking persisted, however, Stone answered it, and Bernhardt heard what sounded like a gunshot. ¶ 6. Bernhardt testified that two men then entered the apartment. He identified the first man to come in as Jones. The other man stood in the doorway dressed completely in black, wearing a ski mask, hooded sweater, and gloves. Bernhardt indicated that the masked man was short and wielded a worn-looking revolver.

¶ 7. According to Bernhardt, Jones did the talking, demanding drugs and money from the victims. When Bernhardt did not respond quickly enough, Jones picked him up by his hair. Bernhardt gave his money to Jones and got on the floor with his back to Jones. Bernhardt then heard two more gunshots. Looking over his shoulder, he witnessed the men exit the apartment and saw Kressel injured and bleeding.

¶ 8. Bernhardt fled to the bathroom and called 911 on his cell phone. He heard a car leaving, looked out the window, and saw what he believed to be the profile of a 1989 Chevy Beretta pulling out of the driveway. Bernhardt testified that as the son of a mechanic he had been around cars all of his life. He explained that when viewed from the side, a 1989 Chevy Beretta looks very similar to a 1989 Chevy Corsica.

¶ 9. The principal question at Hale's trial was whether Hale was the masked gunman who participated in the crimes with Jones. Because Bernhardt could not identify the masked gunman, the State presented a circumstantial case. The admission of former testimony is the sole evidentiary issue in this case. To place the testimony in its proper context, it is necessary initially to review the evidence the State introduced at trial.

A. The Case Against Glenn Hale

¶ 10. Jones, Hale, Tammy Jones (Hale's sister and Jones's wife) and Joy Baker (Hale's girlfriend) shared an apartment in Kenosha. Baker testified that Hale and Jones were together at the apartment until 5:00 p.m. on December 8, 2001, approximately 30 minutes before the double homicide. She said the two men left the apartment separately and were headed to the residence of Hale's grandfather, Milton Johnson, Sr.

¶ 11. Vera Blalock, who lived with Hale's grandfather, confirmed the men's arrival. She testified that Hale and Jones met at the residence, talked privately in the bathroom, and then left together. According to Blalock, Hale returned approximately 15 minutes later. He was wearing a black coat with a hood.

¶ 12. Kim Kelly, a friend and visitor to the Jones/Hale apartment, testified that when Jones returned to his apartment later that evening, he was visibly upset. According to Kelly, Hale did not return to the apartment until 7:00 p.m., at which time he and Jones talked in another room. Kelly described their conversation as "not friendly" and "shady."

¶ 13. A police detective testified that he test drove and timed the three most likely routes that Hale and Jones might have used on the night of the murders. The round-trip travel time between the Jones/Hale apartment and the murder scene was between 10 and 12 minutes. The residences of both Hale's grandfather and Hale's mother were along at least one of these routes.

¶ 14. A few days before the murders, LaQwandris Johnson, who knew both Hale and Jones, went to the victims' apartment to purchase marijuana. Jones accompanied him but remained in the car during the drug transaction. After the purchase, Johnson gave some marijuana to Jones, who asked whether the dealer (one of the eventual victims) was "all right," and whether he was a "tough guy."

¶ 15. Johnson's girlfriend, the tipster who had alerted the police to Jones's and Hale's possible involvement, told them that a car generally matching the description of the car given by the victim, Bernhardt, had been "very active in the neighborhood" prior to the murders but not afterwards. The police confirmed that a black 1989 Chevy Corsica, which looks like a 1989 Chevy Beretta in profile, was parked at the residence of Hale's mother two days after the double homicide and had been available for Hale's use.

¶ 16. After arresting Jones, the police attempted to locate Hale. Since December 10, 2001, two days after the murders, Hale had been living in a hotel with his girlfriend, Baker. Knowing that Baker worked at a bar, the police placed it under surveillance. In the early morning hours of December 14, 2001, they saw Baker leave the bar and get into a rental car driven by Hale. The car, which was equipped with an activated police scanner, sped away when the police attempted to initiate a stop.

¶ 17. Hale led 12 to 14 marked units in a high-speed chase from Kenosha to Milwaukee, with speeds in excess of 100 miles per hour. Baker testified that during the chase, Hale asked her to remove the holstered revolver that was strapped across his shoulder and to throw it out the window. She instead put the gun and some ammunition underneath the seat. Hale also told Baker that it "would be probably his last time seeing [her]" and "to write him in jail."

¶ 18. Ultimately, Hale slowed the car down to about five miles per hour, at which point he jumped from the driver's seat and took off running through the neighboring residential area. The officers pursued Hale on foot, eventually apprehending him at gunpoint.²

¶ 19. Hale was wearing dark-colored pants when he was arrested. A black, hooded coat was found in the rear of the rental car. After Hale was taken to jail, the police found a pair of black knit gloves concealed under the seat bench of the squad car where Hale had been sitting.

¶ 20. After his arrest, the police briefly interviewed Hale about the double homicide. He denied committing the murders, stating that he had been at his grandfather's residence. At some point thereafter, Hale tapped on the door of his holding cell to make a bathroom request and, with eyes tearing up, told a detective, "man, if I did it, I just don't remember." Hale repeated this statement to another detective.

¶ 21. Baker testified that a few days before the murders, she was with Hale when he purchased a black ski mask. A day or two after he was arrested, Hale called and told her that he had hidden the ski mask under the "plastic bottom" of her duffel bag and instructed her to "get rid" of it. Baker said she cut up the ski mask and gave it to her friend, Kelly, who was in the room when Hale called. Kelly, in turn, stated that she burned the mask pieces and flushed them down a toilet.

¶ 22. James Toy, who was confined in the same cellblock as Hale, testified that Hale confessed to committing the double homicide. According to Detective Strash, when he and another detective interviewed Toy in the spring of 2002, Toy repeated details of the murders that had neither appeared in the media nor been suggested to him by the detectives.³ Toy explained that he came forward because a younger brother of his had been murdered.

¶ 23. Arguably the most critical evidence produced by the State was the fully loaded, single-action .44 magnum revolver found in the rental car Hale had been driving. The officer who searched the car discovered it beneath a shirt on the floor, under the driver's seat. The parties stipulated that this gun fired the shots that killed Stone and Kressel.

¶ 24. Baker testified that Hale obtained a gun and holster from David Sullivan, a life-long friend of Hale's, about one week before the murders and kept the gun on his person "a lot." She stated that the murder weapon "looked like" the gun Hale had obtained from Sullivan. It was the subsequent admission of Sullivan's former testimony that is the sole evidentiary issue in this case.

B. ...