State v. Marks, 93-2452-CR

• Decision Date: 20 June 1995
• Docket Number: No. 93-2452-CR,93-2452-CR
• Citation: 194 Wis.2d 79,533 N.W.2d 730
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Joseph L. MARKS, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 730

533 N.W.2d 730

194 Wis.2d 79

STATE of Wisconsin, Plaintiff-Respondent, v. Joseph L. MARKS, Defendant-Appellant-Petitioner.

No. 93-2452-CR.

Supreme Court of Wisconsin.

Argued March 8, 1995.

Decided June 20, 1995.

For the defendant-appellant-petitioner there were briefs and oral argument by William J. Chandek, Brookfield.

For the plaintiff-respondent the cause was argued by Stephen W. Kleinmaier, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen BABLITCH, Justice.

During the trial of Joseph L. Marks for burglary, his accomplice, Scott Meyer, who had already pled guilty and had been convicted and sentenced on the burglary charge, invoked his privilege against self-incrimination and refused to testify. The circuit court, declaring Meyer unavailable as a witness, allowed Meyer's prior testimony at Marks' preliminary examination into evidence. The court of appeals agreed, holding that Meyer had a real and appreciable fear of self-incrimination as a result of his expressed intention to seek modification of his sentence. Marks appeals, arguing that the circuit court erred in declaring Meyer unavailable as a witness, and that the subsequent use of his accomplice's preliminary examination testimony violated his right to confront witnesses against him. We conclude that the Fifth Amendment privilege against self-incrimination extends beyond sentencing as long as the witness has a real and appreciable fear of further self-incrimination. We reverse the court of appeals, however, and conclude that the circuit court erred in declaring Meyer unavailable based on his Fifth Amendment claim without inquiring further into the basis for the claimed privilege. Accordingly, we remand to the circuit court with directions to conduct further inquiry as to whether Meyer's fear of self-incrimination was real and appreciable.

The facts are these. Marks was charged with burglary to a room within a building, contrary to sec. 943.10(1)(f), Stats. During a preliminary motion at Marks' trial, the State of Wisconsin (State) indicated its intent to call Meyer, an accomplice in the burglary who had already pled guilty and had been convicted and sentenced on the burglary charge. Meyer had previously inculpated Marks during his testimony at Marks' preliminary hearing. The State informed the court that in an earlier meeting with Meyer, Meyer indicated he intended to seek modification of his sentence and had attempted to contact the State Public Defender to initiate his appeal. Therefore, he claimed he would not testify at Marks' trial but would plead the Fifth. As a result, the State requested that the court declare Meyer unavailable and allow Meyer's testimony from the preliminary hearing to be read to the jury.

The attorney for Marks objected. He contended that because of the limited opportunity he had to cross-examine Meyer at the preliminary hearing, use of his testimony at trial would violate Marks' Sixth Amendment right to confront a witness.

Based upon the information provided by the State, the court declared Meyer unavailable as a witness under sec. 908.04(1)(a), Stats. ¹ After determining that Meyer's earlier statements at the preliminary hearing were reliable, the court declared that the statements would be admissible at trial without violating Marks' right of confrontation. Marks was subsequently convicted and sentenced to three years in the Wisconsin State Prisons, consecutive to sentences in unrelated cases.

Marks appealed, and the court of appeals affirmed the circuit court. The court concluded that a person in Meyer's position was not appreciably different than someone waiting to be sentenced. The court of appeals noted that under State v. McConnohie, 121 Wis.2d 57, 63-68, 358 N.W.2d 256 (1984), a defendant waiting to be sentenced could invoke the privilege against self-incrimination. Having found Meyer unavailable as a witness under sec. 908.04(1)(a), Stats., the court further concluded that Meyer's testimony could be read to the jury because it bore sufficient indicia of reliability to satisfy Marks' right to confrontation under State v. Bauer, 109 Wis.2d 204, 219, 325 N.W.2d 857 (1982). Marks petitioned and we granted review.

As a preliminary matter, we address the State's argument that counsel for Marks waived the right to challenge the circuit court's conclusion that Meyer was unavailable as a witness. The State argues that counsel for Marks did not object on the basis of the court's ruling of unavailability but only challenged the use of Meyer's testimony on the basis that it violated Marks' right of confrontation.

As a rule, we will not elevate form over substance when addressing waiver arguments. State v. Barthels, 166 Wis.2d 876, 884, 480 N.W.2d 814, 818 (Ct.App.1992) , aff'd, 174 Wis.2d 173, 184 n. 8, 495 N.W.2d 341. Where the grounds of the objection are obvious, the specific ground of objection is not important. Id. citing Champlain v. State, 53 Wis.2d 751, 758, 193 N.W.2d 868 (1972). Under Bauer, 109 Wis.2d at 210, 325 N.W.2d 857, the initial question in determining whether the right of confrontation must give way to allow prior out-of-court statements made in the course of a prior judicial hearing, is whether the evidence is admissible under the Wisconsin Rules of Evidence. Here, the court allowed Meyer's testimony to be read to the jury under an exception to the hearsay rule in sec. 908.045, Stats., which provides that former testimony may be admissible if a declarant is unavailable as a witness as defined in sec. 908.04(1)(a). We are persuaded by Marks that an objection based upon the right of confrontation encompasses an objection to the court's conclusion that Meyer was unavailable for purposes of sec. 908.045. Although the specific ground under the confrontation clause was not stated, counsel's intent was obvious.

Therefore, we address whether Marks was denied his right of confrontation when the circuit court declared Meyer, a witness who had been convicted and sentenced for being an accomplice to the crime for which Marks was being tried, unavailable under sec. 908.04(1)(a), Stats., based upon his Fifth Amendment privilege against self-incrimination.

The threshold question in a challenge based on the confrontation clause is "whether the evidence sought to be introduced ... is admissible under the Rules of Evidence of Wisconsin, chs. 901-911, Stats." Bauer, 109 Wis.2d at 210, 325 N.W.2d 857. "If the evidence does not fit within a recognized hearsay exception, it must be excluded." Id. Here, the court found the evidence admissible under a hearsay exception which allows former testimony when a declarant is determined to be unavailable under sec. 908.04(1)(a), Stats. Marks argues that the circuit court erred in declaring Meyer unavailable under sec. 908.04(1)(a) based on his Fifth Amendment claim against self-incrimination. Specifically, Marks contends: (1) that Meyer could not plead the Fifth because he had already been convicted and sentenced; and (2) that even if a defendant can plead the Fifth after sentencing, Meyer's mere intention to have his sentence modified was not enough to give rise to a real and appreciable fear of further incrimination, and thus, was not enough to sustain a claim based on the Fifth Amendment privilege against self-incrimination.

We first turn to Marks' argument that Meyer could not plead the Fifth because he had already been convicted and sentenced. "The right against self-incrimination is a fundamental right guaranteed by both art. I, sec. 8, Wis. Const., and by the U.S. Const., amend. V, which is made applicable to the states by reason of the due process clause of the fourteenth amendment." In Matter of Grant, 83 Wis.2d 77, 80, 264 N.W.2d 587 (1978). The privilege may be invoked whenever "a witness has a real and appreciable apprehension that the information requested could be used against him in a criminal proceeding." Id. at 81, 264 N.W.2d 587. Although there is "weighty" authority for the view that the privilege is lost upon a guilty plea or conviction, see McConnohie, 121 Wis.2d at 64, 358 N.W.2d 256 (quoting Reina v. United States, 364 U.S. 507, 513, 81 S.Ct. 260, 264, 5 L.Ed.2d 249 (1960)), courts have recognized that even after a guilty plea or conviction a defendant may possess a real and appreciable fear of further incrimination.

For example, in an Illinois case, People v. Edgeston, 157 Ill.2d 201, 191 Ill.Dec. 84, 94-95, 623 N.E.2d 329, 339-340 (1993), cert. denied, 512 U.S. 1246, 114 S.Ct. 2766, 129 L.Ed.2d 879 (1994), the Supreme Court of Illinois recognized the right to plead the Fifth after conviction and sentencing when the person claiming the privilege indicates an intent to file a post-conviction motion. In Edgeston, the defendant called an accomplice to testify who had pled guilty to the murder of another victim in return for having the charges in Edgeston's case dropped. The accomplice refused to testify based on the privilege against self-incrimination because he feared his testimony could subsequently incriminate him if the court granted his post-conviction motion challenging his guilty plea to the other murder. Id. 191 Ill.Dec. at 94, 623 N.E.2d at 339. The Edgeston court upheld the accomplice's Fifth Amendment claim reasoning:

Sullivan stated that he intended to file a post-conviction petition challenging the validity of the guilty plea upon which the dismissal of charges against him in the King case was based. Further, the State represented to the court that if Sullivan's petition for post-conviction relief was heard and granted, his guilty plea would be vacated and "we could potentially reinstate [the King] charges, we could then use his testimony in prospective prosecution of that charge." Therefore, compelling Sullivan to testify would effectively prevent him from seeking the collateral relief to which he was statutorily entitled. Id. 191 Ill.Dec. at 94-95, 623 N.E.2d at 339-40.

In response to...