State v. McConnohie

• Decision Date: 27 November 1984
• Docket Number: No. 81-1834-CR,81-1834-CR
• Citation: 358 N.W.2d 256,121 Wis.2d 57
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Rollin Lloyd McCONNOHIE, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 256

358 N.W.2d 256

121 Wis.2d 57

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Rollin Lloyd McCONNOHIE, Defendant-Appellant.

No. 81-1834-CR.

Supreme Court of Wisconsin.

Argued Sept. 6, 1984.

Decided Nov. 27, 1984.

David J. Becker, Asst. Atty. Gen. (argued), for plaintiff-respondent-petitioner; Bronson C. La Follette, Atty. Gen., on briefs.

James A. Walrath, Milwaukee (argued), for defendant-appellant; Shellow, Shellow & Glynn, S.C., Milwaukee, on brief.

DAY, Justice.

This is a review of an unpublished decision of the court of appeals reversing a judgment of the circuit court for Milwaukee county, Hon. Marvin C. Holz, convicting Rollin Lloyd McConnohie of being a party to the crime of armed robbery under section 943.32(1)(b), (2), Stats.1979-80, ¹ and 939.05, 1979-80, ² and reversing an order of the circuit court for Milwaukee county, Hon. John F. Foley, denying motions for postconviction relief. 116 Wis.2d 693, 343 N.W.2d 826. Three issues are raised in this review: (1) Was the defendant denied his sixth amendment right to compulsory process when the trial court upheld the fifth amendment privilege claim of a witness who had been convicted but not sentenced for being a party to the crime for which the defendant was being tried? (2) Was there a sufficient inquiry into the basis of the witness' claim of fifth amendment privilege for the trial court to sustain that claim? (3) Was the defendant's constitutional right to due process violated by the exclusion of a recitation by the defendant of the out-of-court statements of a participant in the crime for which the defendant was charged that a third party, not the defendant, was that participant's accomplice in that crime? We conclude that the trial court properly upheld the witness' claim of fifth amendment privilege and the defendant was not denied his right to compulsory process. We also conclude that the defendant was not denied his constitutional right to due process by the exclusion of the out-of-court statements. We, therefore, reverse the decision of the court of appeals and reinstate the judgment of conviction.

The defendant and Charles LaFrance were charged with armed robbery of a gas station. Both the state and the defense agree that LaFrance was one of the robbers. The gas station attendant identified the defendant as one of the perpetrators of the crime.

The defendant attempted to show that he was not at the scene of the crime, but elsewhere, at the time of the offense. He further attempted to show that one Jay Serio was LaFrance's accomplice in the robbery.

The defendant testified that LaFrance and Serio met the defendant and Jay Goldman, a friend of the defendant, shortly after the robbery. The defendant then attempted to testify as to a statement made by LaFrance at that meeting in which LaFrance said that he and Serio robbed the gas station. The trial court ruled that the defendant could testify that LaFrance admitted his own participation in the crime but he could not testify that LaFrance had implicated Serio. Serio was not being called as a witness and his unavailability had not been established. When the defendant later testified that LaFrance had said "Serio was with him," the trial court struck the testimony and instructed the jury to disregard the answer.

When Jay Goldman later testified, he was permitted to say that at the meeting with LaFrance and Serio, "they" stated that they had just "pulled a job" and that the station attendant appeared frightened when they did it.

The defendant then called LaFrance to testify that Serio was LaFrance's accomplice. On the previous day and prior to the start of the trial, LaFrance entered a plea of no contest to the charge of being a party to the crime of armed robbery and the same trial judge entered a judgment of conviction on that plea. At the time he was called as a witness, LaFrance had not been sentenced. When the defense counsel attempted to ask LaFrance questions concerning the robbery and the defendant, LaFrance refused to answer invoking his privilege against self-incrimination. Counsel and the court then retired to chambers where the defense counsel posed the questions he sought to ask LaFrance. The trial court discussed and then rejected these questions in view of LaFrance's claimed privilege. LaFrance was then excused as a witness.

Prior to the time LaFrance, the defendant, or Goldman were called to testify, the trial court and defense counsel had a discussion concerning LaFrance's possible fifth amendment claim. The trial court said that should LaFrance later be called as a witness he retained his fifth amendment privilege since he still might appeal.

On February 6, 1981, the jury found the defendant guilty and the circuit court entered a judgment of conviction on that guilty verdict. On September 22, 1981, the order denying the defendant's postconviction motions was filed. On October 14, 1982, the court of appeals reversed in the interest of justice under section 752.35, Stats. 109 Wis.2d 690, 326 N.W.2d 781. On July 1, 1983, this court reversed the court of appeals' decision and remanded the case for it to decide the remaining issues. State v. McConnohie, 113 Wis.2d 362, 334 N.W.2d 903 (1983). On November 11, 1983, the court of appeals again reversing the circuit court's judgment held that the defendant was denied his right to compulsory process when the trial court accepted LaFrance's claim of fifth amendment privilege and that the exclusion of LaFrance's out-of-court statement as it related to Serio was a denial of due process and a violation of Wisconsin's hearsay rule exception, section 908.045, 1979-80. On February 14, 1984, this court granted a petition to review. 116 Wis.2d 697, 345 N.W.2d 62.

I. WAS THE DEFENDANT DENIED HIS SIXTH AMENDMENT RIGHT TO COMPULSORY PROCESS WHEN THE TRIAL COURT UPHELD THE FIFTH AMENDMENT PRIVILEGE CLAIM OF A WITNESS WHO HAD BEEN CONVICTED BUT NOT SENTENCED FOR BEING A PARTY TO THE CRIME FOR WHICH THE DEFENDANT WAS BEING TRIED?

We hold that at the time LaFrance was called as a witness, his fifth amendment privilege was still available with respect to the armed robbery charge for which he pled no contest and had been convicted, because the privilege continues at least until sentencing.

In Hanneman v. State, 50 Wis.2d 689, 691, 184 N.W.2d 896 (1971), the trial court stated that it did not follow the practice of extending probation to defendants who did not take the witness stand when the only question before the court was sentencing. On appeal the defendant contended that his privilege against self-incrimination was violated when the trial court refused probation on the ground that he did not testify. Hanneman, 50 Wis.2d at 691, 184 N.W.2d 896. This court said: "[I]n this case there was no violation of the defendant's constitutional rights. The defendant admitted his guilt by entering a plea of guilty to the crimes charged. A plea of guilty is an admission of guilt and a waiver of the privilege against self-incrimination." Hanneman, 50 Wis.2d at 692, 184 N.W.2d 896. This court went on to say, however, that "[i]t would be an abuse of discretion for the trial court to deny probation only because the defendant refused to testify at a hearing on sentencing." Hanneman, 50 Wis.2d at 692, 184 N.W.2d 896. This court also said that "[a]n examination of the entire record in this case reflects that the trial court did not consider the defendant a proper person for probation...." Hanneman, 50 Wis.2d at 693, 184 N.W.2d 896.

In the later case of State v. Harris, 92 Wis.2d 836, 841, 285 N.W.2d 917 (Ct.App.1979), the witness whose privilege was being challenged had pled guilty and had been sentenced. The court of appeals agreed with the trial court's statement that the witness retained his privilege because he claimed an intent to appeal and said this was an exception to the rule that a plea of guilty waived the privilege against self-incrimination, citing Hanneman. Harris, 92 Wis.2d at 848, 285 N.W.2d 917.

The defendant has cited a number of federal cases for the proposition that the privilege against self-incrimination is lost upon a guilty plea or a conviction. The United States Supreme Court in Reina v. United States, 364 U.S. 507, 513, 81 S.Ct. 260, 264, 5 L.Ed.2d 249 (1960), said that "[t]here is indeed weighty authority for that proposition" that the privilege is lost on conviction. None of the federal cases cited, however, turned on the issue of whether or not the person claiming the privilege had been sentenced.

An issue in the case of Mills v. United States, 281 F.2d 736 (4th Cir.1960), is closely related to the instant case. In Mills, the defendant called his wife, a co-defendant who had previously been convicted, to testify on his behalf at a hearing on a motion for a new trial. Mills, 281 F.2d at 739. She refused to testify and the trial court interpreted this as an invocation of her fifth amendment privilege. Mills, 281 F.2d at 740. The Fourth Circuit Court stated in part:

"We conclude that the District Court may have reasonably and correctly interpreted, construed and accepted Marjorie's [the wife's] refusal as a claim of the privilege against self-incrimination, and the circumstances then confronting the witness and the court lend support to that conclusion. The fact that Marjorie had not been sentenced distinguishes this case from United States v. Gernie, 2 Cir., 1958, 252 F.2d 664, 670, where the witness had been convicted of the crime with which charged and sentenced. It was held he no longer was able to claim the privilege of the Fifth Amendment and could be compelled to testify. The theory in that case was that, having been convicted and sentenced, the witness could not be further incriminated by his answers. However, at the time of these proceedings in the case at bar, the period within which Marjorie Mills could prosecute an appeal of her own conviction had not expired." Mills, 281 F.2d at 741. ³

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