State v. Sharlow

• Decision Date: 05 January 1983
• Docket Number: No. 81-207-CR,81-207-CR
• Citation: 327 N.W.2d 692,110 Wis.2d 226
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Allerd SHARLOW, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 692

327 N.W.2d 692

110 Wis.2d 226

STATE of Wisconsin, Plaintiff-Appellant, v. Allerd SHARLOW, Defendant-Respondent-Petitioner.

No. 81-207-CR.

Supreme Court of Wisconsin.

Argued Nov. 2, 1982.

Decided Jan. 5, 1983.

Ben Kempinen, Staff Atty., Legal Assistance to Institutionalized Persons Program, argued, Madison, for defendant-respondent-petitioner; Frank J. Remington, Professor of Law, Madison, on brief.

David J. Becker, Asst. Atty. Gen., argued, for plaintiff-appellant; Bronson C. La Follette, Atty. Gen., on brief.

CECI, Justice.

On September 15, 1972, a jury found the defendant, Allerd Sharlow, guilty of first-degree murder, party to a crime, under sections 939.05 ¹ and 940.01, STATS. 1971². Sharlow brought a motion for post-conviction relief pursuant to section 974.06, ³ on September 6, 1979, contending that he had been denied the constitutional right to call witnesses in his own defense. The court of appeals reversed the circuit court's order granting Sharlow a new trial. State v. Sharlow, 106 Wis.2d 440, 317 N.W.2d 150 (Ct.App.1982). Sharlow appeals from that decision.

Two major issues are presented: (1) Whether it was constitutional error to prevent the defendant from presenting the testimony of two witnesses concerning hearsay statements allegedly made by a codefendant, and (2) whether the trial court's instruction on accomplice liability created an impermissible risk that the defendant's jury did not understand that this theory required a finding that the defendant intended the death of the victim. Because we believe that the testimony was properly excluded under the criteria enunciated by the United States Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and because we believe the jury instructions were proper, we affirm.

This case has already been before this court on Sharlow's direct appeal from his conviction in State v. Sharlow, 61 Wis.2d 388, 212 N.W.2d 591 (1973), which was decided on evidentiary, rather than constitutional, grounds. Many of the same facts are pertinent to this review.

On the night of May 1, 1972, Thomas Blanchette and Jerry Kruschke were at Sally's Tavern in the city of Milwaukee. The victim, Edwin Harry Frahm, later joined them at the bar and the three left Sally's, inviting the bartender, Randall Lydolph, to meet them at the Driftwood Tavern for a drink. After closing Sally's, Lydolph went to the Driftwood. When Lydolph arrived at the Driftwood, he did not notice whether Sharlow was with Blanchette, Kruschke and Frahm. At Sharlow's trial, Lydolph testified that he overheard a conversation in the men's room between Sharlow and Blanchette in which Blanchette stated, "I'm going to get this little fink," referring to Frahm. Sharlow said, "Let me do it; I want him," and Blanchette replied, "No, he's mine." After Blanchette and Sharlow came out of the men's room, the two stood and talked for "about two minutes." Lydolph also saw Kruschke leave the Driftwood "about three times." Each time Kruschke returned, he engaged in a conversation with Blanchette. Lydolph did not remember where Sharlow was at this time.

Kruschke, who had been granted immunity, testified that he had left the tavern to go back to the apartment he shared with Blanchette and get Blanchette's revolver. He came back because he couldn't get into the apartment. Finally, Arthur McConkey, a neighbor, gave the gun to Kruschke. Kruschke gave the revolver to Blanchette in the men's room at the Driftwood. This occurred before Sharlow's conversation with Blanchette in the men's room.

Lydolph saw a group of four or five people, which included at least Kruschke and Frahm, leave the tavern together. He observed them drive off in a Corvair. Kruschke testified that he, Blanchette, Frahm and Sharlow left the Driftwood, driving off in Sharlow's Corvair. Kruschke was driving, at Blanchette's request; Frahm was in the front passenger seat; and Blanchette and Sharlow were in the rear seat. Sharlow was seated behind Frahm, and Blanchette was behind the driver. Kruschke testified that he heard a shot ring out and saw Frahm slump in his seat. Kruschke immediately looked in the rearview mirror and saw Sharlow holding the gun. At the same time, Sharlow was asking Blanchette if Sharlow should give Kruschke "a couple." Blanchette replied, "Leave him alone; he's all right." Blanchette then told Sharlow, "Give him [Frahm] another one." After more shots were fired, Kruschke saw Sharlow hand the revolver to Blanchette. Blanchette then directed Kruschke to drive to the spot where Frahm's body was found. Kruschke testified that Blanchette and Sharlow dragged the body to a creek, where they disposed of it.

Two days later, Frahm's body was discovered in a creek in New Berlin. A spent cartridge and red spots were found on a nearby driveway. An autopsy showed that the victim had been shot in the head five times.

At the trial, the pathologist testified that at least two of the bullets were fired at very close range--one to five inches. All of the wound trajectories angled downward and to the right.

Codefendant Blanchette's trial was severed from Sharlow's. At Sharlow's trial, the defense called Blanchette as a witness; however, Blanchette invoked his Fifth Amendment privilege.

The defense then proffered the testimony of Sharon Henne and James McNeal. If permitted to testify, Henne would have testified that Blanchette told her that "he was the one that had shot this person six times in the head," and that on another occasion, Blanchette asked her "if I would believe him if he told me that he had not actually done the shooting but that Al [Sharlow] did and he wasn't going to 'sit' any more for something he didn't do." She also would have stated that she had known Blanchette for three months and had seen him daily in that period. If permitted to testify, McNeal would have testified that he shared a jail cell with Blanchette and that Blanchette told him that while in the car, he solicited Sharlow to participate in the murder; that Sharlow refused and grabbed Blanchette's arm and struggled with him in an attempt to prevent the shooting; that Blanchette shot Frahm after he wrestled the gun from Sharlow; and that he and Kruschke were roommates and shared a homosexual relationship, a relationship denied by Kruschke at trial.

The circuit court granted Sharlow a new trial pursuant to section 974.06, Stats., finding that the constitutional issues raised were not disposed of in the previous Sharlow decision. The court relied on State v. Brown, 96 Wis.2d 238, 291 N.W.2d 528 (1980), which substantially adopts the Chambers criteria, and held that Sharlow's due process right to present a defense had been violated by a strict application of the hearsay rule. The state's motion for reconsideration was denied.

The court of appeals found that it was error to refuse to admit the hearsay statements, but that the error was harmless. The court noted that Sharlow was convicted of first-degree murder, party to a crime, and that admission of evidence which may create doubt that Sharlow did the actual shooting does not alone establish that he did not aid the person who did the shooting or was not a party to a crime. The court held that the evidence proved beyond a reasonable doubt that Sharlow was a party to the crime of first-degree murder. 106 Wis.2d at 449, 317 N.W.2d 150. The court of appeals, however, did not address the issue of the propriety of the jury instructions.

I. Exclusion of Hearsay Statements

This issue has been addressed by this court in State v. Brown, 96 Wis.2d 238, 291 N.W.2d 528, which presented a somewhat similar set of facts. As in Brown, the defendant in this case was tried and convicted before January 1, 1974, the effective date for the Wisconsin Rules of Evidence, 59 Wis.2d Rvii (1973). Under the current rules, hearsay statements against the declarant's penal interest are admissible under certain circumstances. ⁴ However, under the then applicable rule, which provided exceptions for statements against proprietary or pecuniary interest, but not for statements against penal interest, the statements of Henne and McNeal were excluded as inadmissible hearsay. State v. Johnson, 60 Wis.2d 334, 339, 210 N.W.2d 735 (1973); State v. Sharlow, 61 Wis.2d at 394-96, 212 N.W.2d 591.

Therefore, the outcome of this case necessarily turns on whether Wisconsin's hearsay rule has been "applied mechanistically to defeat the ends of justice." Chambers v. Mississippi, 410 U.S. at 302, 93 S.Ct. at 1049. The defendant in Chambers was charged with the murder of a policeman. Another man, McDonald, had confessed to the crime and then renounced his earlier confession. Applying Mississippi's "voucher" rule, ⁵ the trial court did not allow the defendant to examine McDonald as an adverse witness and challenge McDonald's renunciation of his earlier confession. Id. at 291, 93 S.Ct. at 1043.

Chambers then attempted to introduce the testimony of three witnesses to whom McDonald had admitted that he shot the officer. During the testimony of the first witness, the state objected, arguing that the testimony was inadmissible hearsay. The trial court sustained the objection and ordered the jury to disregard the testimony. The testimony of the other two witnesses was not admitted.

The supreme court first concluded that Mississippi's "voucher" rule, as applied in Chambers' case, unconstitutionally interfered with his right to defend against the state's charges. Id. at 298, 93 S.Ct. at 1047. The court then held that the strict application of Mississippi's hearsay rule also denied Chambers his fundamental right to a fair trial.

"The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Id. at 294, 93 S.Ct. at 1045.

"Few rights are more fundamental than that of an accused to present witnesses in his own defense." Id. at 302,...