State v. Manuel

• Decision Date: 10 June 2005
• Docket Number: No. 2003AP113-CR.,2003AP113-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Antwan B. MANUEL, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

281 Wis.2d 554

2005 WI 75

697 N.W.2d 811

STATE of Wisconsin, Plaintiff-Respondent, v. Antwan B. MANUEL, Defendant-Appellant-Petitioner.

No. 2003AP113-CR.

Supreme Court of Wisconsin.

Oral argument March 3, 2005.

Decided June 10, 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 Gregory M. Weber, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. LOUIS B. BUTLER, JR., J.

Antwan Manuel seeks review of a published court of appeals' decision¹ that affirmed his convictions, which included attempted first-degree homicide and five related offenses. Manuel shot Prentiss Adams in the neck while Adams was sitting in his car talking to Derrick Stamps. Shortly after the incident, Stamps made several statements to his girlfriend that incriminated Manuel. A couple of days later, the girlfriend revealed these statements to a police officer when the officer was arresting Stamps. At Manuel's trial, Stamps invoked his privilege against self-incrimination, and the girlfriend claimed she could not remember what Stamps told her, but the State introduced Stamps' statements through the arresting police officer.

¶ 2. A number of issues revolve around Stamps' hearsay statements. The court of appeals concluded that: (1) the statements were admissible under the statement of recent perception exception; (2) their admission did not violate Manuel's right of confrontation; and (3) Manuel's trial counsel was not ineffective for failing to impeach Stamps' credibility with the number of Stamps' prior convictions after Stamps' statements were admitted into evidence. State v. Manuel, 2004 WI App 111, 275 Wis. 2d 146, 685 N.W.2d 525. Manuel argues that this court should reverse on any of these conclusions.

¶ 3. We affirm the court of appeals' decision. We conclude that the trial court did not erroneously exercise its discretion by admitting Stamps' statements as statements of recent perception. Further, we conclude that Stamps' statements were not "testimonial" under the recently announced decision of Crawford v. Washington, 541 U.S. 36 (2004). We retain the analysis of Ohio v. Roberts, 448 U.S. 56 (1980), for scrutinizing nontestimonial statements under the Confrontation Clause and Article I, Section 7 of the Wisconsin Constitution. Applying Roberts, we conclude that the statement of recent perception hearsay exception is not "firmly rooted." However, because Stamps' statements contain particularized guarantees of trustworthiness, we hold that admission of Stamps' statements did not violate Manuel's confrontation rights. Finally, we conclude that Manuel's trial counsel was not ineffective. Therefore, the decision of the court of appeals is affirmed.

I

¶ 4. On June 25, 2000, shortly after midnight, Adams was driving his vehicle down Fisher Street in Madison, Wisconsin. As he drove by a group of men standing on a sidewalk, one of the men, later identified as Stamps, flagged Adams over to the side of the street. The two spoke about an altercation that occurred between their groups of friends a few days earlier. While Adams remained in his vehicle to speak with Stamps, Manuel allegedly reached around Stamps and shot Adams in the neck. Adams stated that he saw Manuel's face, head, and arm as Manuel reached around the right side of Stamps and fired at Adams. Adams knew Manuel prior to the incident, as he had seen him in the neighborhood approximately 20 times.

¶ 5. Adams immediately drove himself to the hospital. There, he spoke with Detective Alix Olsen. Adams told Olsen the address of where the incident took place and limited details about the shooting. Olsen proceeded to the crime scene where other officers had begun investigatory work. The police did not find much evidence around the scene but they preserved foot impressions left in a muddy spot between the sidewalk and the street on Fisher Street.

¶ 6. Around 4:00 a.m., Olsen visited Adams again in the hospital. Adams recounted the incident again, but this time with more details. He described the car of the shooter and gave the nicknames of both the shooter, "Twin" (Manuel), and the man who waived him down, "Tick" (Stamps).

¶ 7. At about 1:30 p.m. the same day, Olsen yet again visited Adams at the hospital, this time along with Detective Matthew Misener. During this meeting, the detectives showed Adams six photo arrays, with six different pictures in each lineup. Adams identified Manuel as the man who shot him and said he was "a hundred percent sure." Adams also identified a photo of Stamps as the man who waved him over to the side of the street.

¶ 8. After completing the photo array, Olsen and Misener met with members of the Madison Gang Task Force and asked them to arrest Stamps and Manuel. Around 6 p.m. on June 25, 2000, police officers and gang task force members followed Manuel in his car before performing a felony stop. Manuel cooperated with the officers and was subsequently arrested. His car was removed from the scene and taken to a police station, where police recovered numerous pairs of shoes from the vehicle's trunk.

¶ 9. Two days later, on June 27, 2000, the police arrested Stamps at the apartment of his girlfriend, Anna Rhodes. When the police took Stamps into custody, Rhodes asked the police why Stamps was being arrested. The arresting officer, Misener, replied that Stamps may have been involved in a shooting and was being arrested on a probation hold. According to Misener, Rhodes responded, "Why, because he was with the guy that shot that dude?" When Misener asked Rhodes for the source of her information, Rhodes said that Stamps told her that he "was there when Twin [Manuel's knickname] shot the guy."

¶ 10. Misener also said that Rhodes told him that Stamps said he was talking to Adams after Adams pulled his vehicle over to the roadside. At that point, Misener stated that Rhodes indicated that Stamps told her that Manuel "came out of nowhere." Misener then said that Rhodes told him that Stamps told her he heard gunshots and all of a sudden saw Manuel. Stamps did not tell her, however, whether he actually saw Manuel holding a gun.

¶ 11. The State charged Stamps with attempted first-degree intentional homicide as party to a crime, but later dropped the charge. The State charged Manuel with attempted first-degree intentional homicide, aggravated battery, reckless use of firearm, possession of firearm by a felon, bail jumping, and second-degree reckless injury.

¶ 12. The day before Manuel's trial was to commence, Manuel filed a motion in limine, seeking to prevent the admission of statements Stamps made to Rhodes. Manuel argued that Rhodes lacked personal knowledge of the shooting and that Stamps' statements were hearsay. The State claimed that Stamps' statements to Rhodes were admissible under the statement of recent perception exception. See Wis. Stat. § 908.045(2) (2001-02).² The State argued that Stamps was simply trying to tell Rhodes about the events with which he had just been involved so that she would have a reason to go with him to a motel. The Dane County Circuit Court, Honorable P. Charles Jones, agreed with the State and denied the motion.

¶ 13. At Manuel's trial, the State called Stamps as a material witness, but he invoked his Fifth Amendment privilege against self-incrimination. Rhodes was also called to testify, but she claimed that she could not recall anything that Stamps told her about the shooting or what she told the police Stamps told her. She merely testified that she learned about a shooting from Stamps the day of the incident and that they then went to a motel for a couple of days. The State then introduced the statements Stamps made to Rhodes regarding the crime through the arresting officer, Misener.

¶ 14. Apparently, as of the time of the trial, Stamps had four prior criminal convictions. This was never raised at trial to impeach Stamps' credibility as it related to the statements he made to Rhodes.

¶ 15. Adams also testified, and again identified Manuel as the shooter. To corroborate Adams' identification, the State called Charles Cates, a footwear examiner at the Wisconsin State Crime Lab. He studied the shoes found in Manuel's trunk and the impressions made on Fisher Street between the sidewalk and the street on the night of the shooting. Cates testified that the impression matched the make, design, and pattern of the K-Swiss brand of shoe worn by Manuel. Thus, he opined that the shoes found in Manuel's trunk probably made the impressions.

¶ 16. The jury convicted Manuel on all charges.

¶ 17. Manuel filed a motion for a new trial, asserting that: (1) the court erred by denying the motion in limine; (2) the defendant's confrontation rights were violated by admitting Stamps' statements; (3) trial counsel was ineffective for failing to argue the confrontation issue; and (4) trial counsel was ineffective for failing to impeach Stamps' credibility with his four prior convictions. The circuit court, the Honorable Stuart A. Schwartz, denied the motion.

¶ 18. Manuel appealed, and the court of appeals affirmed. The court of appeals agreed with the circuit court that Stamps' statements were admissible under the statement of recent perception exception. Manuel, 275 Wis. 2d 146, ¶¶ 12-16.

¶ 19. Turning to Manuel's confrontation violation claim, the court of appeals noted that Stamps' statements did not fit within any of Crawford's³ express categories of testimonial statements and were not made to an agent of the government or to someone engaged in investigating the shooting. Further, the court of appeals determined that the statements were not the type of statement Crawford depicted as the "'primary object' of the framer's concerns in enacting the confrontation clause." Manuel, 275 Wis. 2d 146, ¶ 21 (citing Crawford, 541 U.S. at 50-53, 68

). Thu...