State v. Lenarchick

• Decision Date: 30 November 1976
• Docket Number: No. 75--364--CR,75--364--CR
• Citation: State v. Lenarchick, 247 N.W.2d 80, 74 Wis.2d 425, 99 ALR 3d 906 (Wis. 1976)
• Parties: , 99 A.L.R.3d 906 STATE of Wisconsin, Respondent, v. Joseph Robert LENARCHICK, Appellant.
• Court: Wisconsin Supreme Court

Page 80

247 N.W.2d 80

74 Wis.2d 425, 99 A.L.R.3d 906

STATE of Wisconsin, Respondent, v. Joseph Robert LENARCHICK, Appellant.

No. 75--364--CR.

Supreme Court of Wisconsin.

Argued Oct. 5, 1976.

Decided Nov. 30, 1976.

Stephen M. Glynn and James M. Shellow, Milwaukee (argued), and Shellow & Shellow, Milwaukee, on the brief, for appellant.

William L. Gansner, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen., on the brief, for respondent.

HEFFERNAN, Justice.

The defendant, Joseph Robert Lenarchick, after a jury trial, was found guilty of first degree murder and sentenced to life imprisonment. Postconviction motions were denied.

The defendant was charged with the murder of Ivory Williams at a public park in the City of Milwaukee known as the alternate site.

Allegedly, Williams had at some previous time 'raped' Lenarchick's wife. There was evidence that Lenarchick was going to get Williams. There was also proof that, at the time of the killing, Lenarchick was at the scene and had in his possession a bayonet which allegedly was the instrument that caused the fatal wound in Williams' neck. Because we decide this case on nonevidentiary grounds and remand for a new trial on the basis of trial error, we do not set forth the underlying facts in detail.

The appeal is grounded entirely on alleged errors committed in respect to the admission of evidence at trial.

The most significant assignment of error results from the admission of an out-of-court statement given by Deborah Miles to the Milwaukee police which purported to recount the defendant's admission to Miles that he had killed Williams.

It is acknowledged on this appeal by defense counsel that, had Miles merely recounted in court Lenarchick's statement, it would have been admissible as an admission. ¹

At trial, however, Deborah Miles denied any recollection of any inculpatory admission by Lenarchick. Moreover, she denied any recollection of repeating such statement to the police. This loss of memory was consistent with her testimony at the preliminary examination when she denied any recollection of any inculpatory statement given to her by Lenarchick or any recollection of recounting that statement to the police. The record shows that at trial Deborah Miles admitted to talking to Lenarchick and also to having a conversation with the police officers. At the preliminary examination she stated that she would not deny having given Lenarchick's statement to the police but she could not remember it.

After her denial of any recollection of the admissions of Lenarchick and of the statement to the police, the prosecution sought to refresh her recollection by asking questions which in effect put the substance of her alleged statement before the jury.

Because the court found her answers inconsistent with the prior statement to the police, the prosecution was permitted to place her statement in evidence by calling the officer to whom the statement was allegedly given.

That statement recounted Lenarchick's admission that he had stabbed Williams in the neck.

While Miles professed no memory of the admissions, she acknowledged that she had received a telephone call from Lenarchick shortly after the killing, that he came to her residence, and that while there cut his hair, shaved his beard, and secured a partial change of clothing. She admitted conversing with him, but she claimed to have no memory of the content of those conversations.

The police officer was called, and he recounted Miles' statement.

Subsequently, Lenarchick took the stand in his own defense and testified that he had indeed called Miles and told her he was in trouble and wanted to speak to her. When he attempted to testify about the content of his conversation with Miles, the prosecutor objected on the ground that the statement was 'self serving.' That objection was sustained.

Defendant argues that this complex of trial facts demonstrates a series of errors that warrant a reversal and a new trial.

It is contended that the admission of the testimony of the police officers in respect to what Miles told them of Lenarchick's confession was double hearsay and was hence inadmissible. Counsel also peripherally argues that the police statement by Miles was not admissible as a prior inconsistent statement, for she never testified to any inconsistent facts but merely disclaimed any recollection of the particular conversation with Lenarchick or of the particular conversation and statement to the police.

The most difficult and most serious claimed error, allegedly of constitutional proportions, is that Lenarchick was denied the sixth amendment right to be confronted by the witness against him. In effect Miles was such witness. It was her testimony, recounted by the police, that was of crucial and significant proportions in securing the convictions. Through her as a conduit for Lenarchick's statement, the police were permitted to introduce what was in effect Lenarchick's confession to the crime.

The defendant summarizes the confrontation argument thus:

'In the case at bar, the witness neither affirmed making the statement to the officer, nor denied it. Defendant was as effectively deprived of cross-examining her as if she had refused to testify. When a witness denies making a statement, there may be reasons offered to support the denial, and those reasons may be shown to be false. However, when the witness does not deny the statement but rather denies recollection of the statement, as in the instant case, there is nothing to refute by cross-examination or other impeachment.'

Additionally, it is argued that, not only was Lenarchick denied the constitutional right of confrontation, because cross-examination was impossible, but also he was erroneously denied the right to testify that he did not confess to Miles at all.

The traditional view of the confrontation clause, preeminently expressed by Wigmore, is that it is merely a restatement of the common-law hearsay rule:

'The rule sanctioned by the Constitution is the hearsay rule as to cross-examination, with all the exceptions that may legitimately be found, developed, or created therein.' 5 Wigmore, Evidence, sec. 1397, p. 158.

That the Wigmorean statement is wholly accurate is now subject to serious question. In a series of cases the United States Supreme Court indicated that, while admissibility in an evidentiary sense under state law is always a threshold for the receipt of evidence, compliance with a state's hearsay rule does not ipso facto insure compliance with the constitutional mandate for confrontation in a criminal case.

In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the Supreme Court held that the sixth-amendment right of confrontation includes the opportunity to cross-examine and applies to state proceedings as well as to the federal courts. While Pointer may not have been representative of reasonable due-process hearsay procedure even at the time it was written, the Supreme Court found that the use of the traditional hearsay doctrine of Pointer in respect to proof of prior testimony violated the constitutional safeguard of confrontation of the sixth amendment.

In California v. Green, 399 U.S. 149, 155--156, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970), the court said:

'While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The converse is equally true: merely because evidence is admitted in violation of a longestablished hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.'

In Justice Harlan's concurring opinion in Green, page 173, 90 S.Ct. page 1943, he said, referring to earlier decisions:

'These decisions have, in my view, left ambiguous whether and to what extent the Sixth Amendment 'constitutionalizes' the hearsay rule of the common law.'

In Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970), the court stated:

'It seems apparent that the Sixth Amendment's Confrontation Clause and the evidentiary hearsay rule stem from the same roots. But this Court has never equated the two, and we decline to do so now.'

It thus appears that, although compliance with, or exception to, a state's hearsay rule is the sine qua non of admissibility, admissibility on that basis alone may not satisfy the sixth amendment.

Nevertheless, we are presented with the threshold question of admissibility under the Rules of Evidence of Wisconsin. 59 Wis.2d Rl ff. (1973), secs. 901--911, Stats.

The statement read into the record by the police officer was arguably 'double hearsay,' for it consisted of the out-of-court statement of Miles relating the out-of-court statement of the defendant. That fact in itself does not warrant exclusion. Sec. 908.05, Stats., provides:

'Hearsay within hearsay. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in this chapter.'

Lenarchick's statement to Miles is not excluded by the rule, and as conceded by the defendant, it constituted an admission and under sec. 908.01(4)(b), Stats., is not considered hearsay:

'908.01(4) . . . A statement is not hearsay if

'(b) Admission by party opponent. The...