State v. Hanson

• Decision Date: 05 June 2019
• Docket Number: No. 2016AP2058-CR,2016AP2058-CR
• Citation: 2019 WI 63,387 Wis.2d 233,928 N.W.2d 607
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Peter J. HANSON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

387 Wis.2d 233

928 N.W.2d 607

2019 WI 63

STATE of Wisconsin, Plaintiff-Respondent,

v.Peter J. HANSON, Defendant-Appellant-Petitioner.

No. 2016AP2058-CR

Supreme Court of Wisconsin.

Oral Argument: April 15, 2019

Opinion Filed: June 5, 2019

For the defendant-appellant-petitioner, there were briefs filed by Ana L. Babcock and Babcock Law, LLC, Green Bay. There was an oral argument by Ana L. Babcock.

For the plaintiff-respondent, there was a brief filed by Scott E. Rosenow, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Scott E. Rosenow.

REBECCA FRANK DALLET, J.

¶1 Peter Hanson ("Hanson") seeks review of the court of appeals'¹ decision affirming the circuit court's² denial of his postconviction motion.

¶2 Chad McLean ("McLean") disappeared on the night of February 22, 1998. His body was found one month later in the Pensaukee River with four gunshot wounds to his head. The case went cold until 2009 when Hanson's estranged wife Kathy Hanson ("Kathy") gave a statement to police implicating Hanson in McLean's murder. In November 2012, a judge in Oconto County held a John Doe proceeding to further investigate McLean's murder.³ Hanson testified at that proceeding, made incriminating statements, and was subsequently charged with McLean's murder. Hanson was convicted and sentenced to life imprisonment without the possibility of parole.

¶3 Hanson challenges the admissibility at trial of portions of his testimony from the John Doe proceeding on two grounds. First, Hanson contends that the admission of his John Doe testimony regarding Kathy's statement to police inculpating him in McLean's murder violated his Sixth Amendment right to confrontation. Second, Hanson claims his trial counsel was ineffective for failing to object to the admission of his John Doe testimony because, at the time he testified, he was in custody on an unrelated matter and not read all of the Miranda warnings.⁴

¶4 We conclude that Hanson's Sixth Amendment right to confrontation was not violated because his John Doe testimony regarding Kathy's statement to police was not offered to prove the truth of the matter asserted. We also conclude that Hanson's ineffective assistance of counsel claim fails because the law was unsettled as to whether Miranda warnings were required at John Doe proceedings. Finally, we determine as a matter of first impression that Miranda warnings are not required at John Doe proceedings.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶5 On February 22, 1998, McLean and his friend Cory Byng ("Byng") went to Byng's uncle's house for a cookout. Hanson and his friend Chuck Mlados ("Mlados") also went to the cookout, arriving in a pickup truck driven by Hanson. At around 9:30 or 10:00 p.m., Hanson, McLean, and Mlados left Byng's uncle's house. Hanson and Mlados alleged that they dropped McLean off at the Hi-Way Restaurant and Truck Stop on the way back to Hanson's house. The restaurant surveillance footage from that night showed Hanson and Mlados buying beer at 9:53 p.m., but McLean was not seen in any of the footage. At trial, six employees testified that they did not see anyone fitting McLean's description at the restaurant that night.

¶6 Approximately one month later, McLean's body was recovered in the Pensaukee River, 1.3 miles downstream from Hanson's house. McLean had four gunshot wounds to his head. The case went cold for over a decade until 2009, when Kathy told police that Hanson had confessed to killing McLean.

¶7 In November 2012, Hanson, who was in custody at the Oconto County jail on charges unrelated to the homicide, was called as a witness to testify at a John Doe proceeding regarding McLean's murder. Prior to questioning, the John Doe judge read Hanson most, but not all, of the Miranda warnings.⁵ Hanson made incriminating statements at the proceedings. In March 2013, the John Doe investigation was closed and the John Doe judge signed an order finding probable cause and authorizing the issuance of a criminal complaint.

¶8 At trial, the State introduced portions of Hanson's John Doe testimony. Hanson objected on Confrontation Clause and hearsay grounds.⁶ The circuit court overruled Hanson's objection and held that the testimony qualified as an admission by a party opponent pursuant to Wis. Stat. § 908.01(4)(b)1. (2017-18),⁷ and therefore was not hearsay and did not violate his Sixth Amendment right to confrontation.

¶9 The jury also heard from three witnesses who testified that Hanson had confessed to killing McLean. Kenneth Hudson testified that he had been Hanson's best friend and that about a month and a half after McLean's body was found, Hanson told him that he had shot McLean and dumped his body in the river. Barry O'Connor, a friend of Hanson, testified that in 2008 Hanson told him that about ten years earlier he and Mlados had accidentally killed someone and dumped the body in a river. O'Connor also testified that Hanson told him he had confessed the murder to Kathy, but that she could not testify against him because she was now dead. Jeremy Dey testified that while he and Hanson were in the Oconto County jail together in 2013, Hanson told him that he had shot McLean and dumped his body in a river. Dey further testified that Hanson told him Kathy had given the police a statement about McLean's murder that was against Hanson's interests.

¶10 Hanson did not call any witnesses at trial and chose not to testify. Hanson argued to the jury that the case against him was circumstantial and that the State had failed to meet its burden to prove beyond a reasonable doubt that he had killed McLean.

¶11 During its deliberations, the jury asked the circuit court if it could review "anything that may pertain to Kathy Hanson's statement to the police." The circuit court denied this request. The jury ultimately found Hanson guilty of first-degree intentional homicide as a party to the crime and he was sentenced to life imprisonment without the possibility of parole.

¶12 Hanson filed a postconviction motion seeking a new trial based upon, among other things, the alleged ineffective assistance of his trial counsel. At the Machner ⁸ hearing regarding Hanson's claims, Hanson's trial counsel testified that he did not object to the admission of Hanson's John Doe testimony on Miranda grounds because he did not "believe that Miranda is applicable to a John Doe proceeding." The circuit court denied Hanson's postconviction motion, concluding that "the colloquy between Peter Hanson and the Court satisfies any right that the defendant had to an attorney at a John Doe proceeding."

¶13 Hanson appealed the denial of his postconviction motion and the circuit court's decision to overrule his objection regarding his Sixth Amendment right to confrontation. Hanson raised two issues on appeal: (1) whether the circuit court improperly admitted his John Doe testimony regarding Kathy's statement to police in violation of his Sixth Amendment right to confrontation;⁹ and (2) whether his trial counsel was ineffective for failing to call any potentially exculpatory witnesses¹⁰ and for failing to object to the admission of his John Doe testimony on the grounds that he was not read all of the Miranda warnings at the John Doe proceeding.

¶14 As to Hanson's Confrontation Clause claim, the court of appeals assumed without deciding that the circuit court's admission of Hanson's John Doe testimony was error. State v. Hanson, No. 2016AP2058-CR, unpublished slip op., ¶13 (Wis. Ct. App. Sept. 18, 2018). However, the court of appeals was "persuaded that any error in the admission of the challenged evidence was harmless because it duplicated other, unchallenged testimony." Hanson, No. 2016AP2058-CR, ¶14. Three witnesses testified that Hanson confessed to killing someone and dumping the body in a river. Two witnesses testified that Hanson confessed the killing to Kathy and one witness testified that Kathy told the police Hanson killed McLean. The court of appeals was not persuaded by the jury's request to see evidence regarding Kathy's statement to the police because the request was denied and the jury heard about Kathy's statement through other unchallenged testimony. Hanson, No. 2016AP2058-CR, ¶15.

¶15 The court of appeals also rejected Hanson's ineffective assistance of counsel claim. The court of appeals held that "[r]egardless of whether counsel was deficient for failing to object to the admission of [Hanson's John Doe] testimony on Miranda grounds, we are convinced that such error was not prejudicial to Hanson's defense." Hanson, No. 2016AP2058-CR, ¶31. Again, the court of appeals relied upon the fact that the John Doe testimony regarding Kathy's statement "merely duplicated other, unchallenged testimony." Hanson, No. 2016AP2058-CR, ¶32. Hanson then petitioned this court for review.

II. STANDARD OF REVIEW

¶16 We review Hanson's claims that his Sixth Amendment right to confrontation was violated and that his trial counsel was ineffective. Whether a defendant's Sixth Amendment right to confrontation was violated is a " ‘question of constitutional law subject to independent review.’ " State v. Nieves, 2017 WI 69, ¶15, 376 Wis. 2d 300, 897 N.W.2d 363 (quoted source omitted). "We generally apply United States Supreme Court precedents when interpreting" the Sixth Amendment and the analogous Article I, Section 7 of the Wisconsin Constitution. State v. Jensen, 2007 WI 26, ¶13, 299 Wis. 2d 267, 727 N.W.2d 518.

¶17 A criminal defendant is guaranteed the right to effective assistance of counsel under both the United States and Wisconsin Constitutions. U.S. Const. amends. VI, XIV ; Wis. Const. art. I, § 7 ; see also Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that the right to counsel includes the right to effective assistance of counsel).¹¹ "A claim of ineffective assistance of counsel presents a mixed question of law and fact." State v. Thiel, 2003 WI 111, ¶21, 264 Wis....