author: WEDEMEYER, EJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Steven T. Smith, Defendant-Appellant.
    Court of Appeals

      No. 02-3404-CR.

      Submitted on briefs September 2, 2003.

      Decided October 21, 2003.

    2003 WI App 234
    (Also reported in 671 N.W.2d 854.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Mark S. Rosen of Rosen and Holzman, Waukesha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general and Kathleen M. Ptacek, assistant attorney general.

      Before Wedemeyer, EJ., Fine and Curley, JJ.
   WEDEMEYER, EJ.

¶ 1. Steven T. Smith appeals from an order denying his postconviction motion requesting a new trial due to ineffective assistance of trial counsel, following his conviction for delivery of a controlled substance — cocaine, as a second or subsequent offense contrary to Wis. Stat. § 961.41(l)(cm)l (2001-02).

¶ 2. Smith contends his trial counsel was prejudicially ineffective for failing to object to the prosecutor's closing argument. Because portions of the prosecutor's closing argument jeopardized the fairness and reliability of the trial, we remand for an evidentiary hearing.

I. BACKGROUND

¶ 3. A jury found Smith guilty of delivery of cocaine as a repeat offender. The factual basis for the charge against Smith, although contested, is not complicated. On the morning of January 31, 2000, on the north side of the 2700 block of West State Street, a drug buy occurred. The buyer was an undercover police officer by the name of Deneen McClinton. The State alleged that Smith was the seller. McClinton claimed she purchased two corner cuts of cocaine base substance (crack cocaine) from Smith with a prerecorded $20 bill. Smith denied that he was involved in this transaction.

¶ 4. McClinton was not working alone in this buying exercise. Detective Jeffrey Thompson was involved as a "cover" officer to ensure McClinton's safety and to respond should McClinton give a signal indicating that the person she was interacting with ought to be stopped by other officers. Officers Andrew Jones and Michael Crivillo also served as. "cover" separately driving unmarked vehicles. When Crivillo was informed that a sale had occurred, he attempted to stop Smith at the corner of 29th and West State Streets. The man police say was Smith did not stop, however, and he began to flee. Jones joined in the chase and finally apprehended Smith in the 2900 block of West Highland Boulevard.

¶ 5. At trial, Smith testified on his own behalf. Succinctly, he stated he did not come into contact with McClinton, did not have a conversation with her, and did not give her anything in exchange for payment.

¶ 6. McClinton testified that on January 31, 2000, she, Thompson, Crivillo, and Jones were working as a team to investigate drug dealing in the area of 27th and State Streets, a known drug area. She encountered a person whom she identified as the accused and asked if he could "hook" her up (street slang for leading her to obtain narcotics). After bargaining with Smith, he agreed to sell her two dime bags of crack cocaine for $20. She paid him with a prerecorded $20 bill. From her experience as an undercover drug buyer, she concluded what Smith gave her were two corner cut baggies containing crack cocaine. According to McClinton, a hand-to-hand transaction took place in front of the residence located at 2722 West State Street. McClinton noted in her report that a distinct feature about Smith was his numerous facial freckles. When the alleged transaction took place, no one else was observed on that side of the street. While Thompson was serving as McClinton's cover, nothing blocked his vision of the two participants. He did not, however, observe any exchange take place between McClinton and Smith. After the transaction allegedly took place, Smith walked away, westbound on the north side of West State Street.

¶ 7. Thompson observed McClinton and Smith walking together from about twenty or thirty feet to the east on the north side of the street. He noted that Smith was wearing a dark-colored knit cap. At one point, McClinton signaled to Thompson. Thompson then proceeded to follow Smith west on State Street. Thompson notified Jones who, as a backup, was patrolling in an unmarked squad west on State Street. Thompson pointed Smith out to Jones and ordered him to stop Smith. Jones followed Smith in his unmarked squad. At the time, there were no other individuals walking west. A description of Smith was later passed on to Jones. When Smith turned north on 29th Street, Thompson lost sight of him. Jones, however, who was following Smith, turned and drove north on 29th Street. After Thompson asked Jones to follow Smith, Jones never lost sight of Smith up to the time of arrest.

¶ 8. Crivillo, as part of the team, was patrolling the area in an undercover vehicle. He received a broadcast that an individual made a sale and was walking westbound on State Street. He drove south on 29th Street until he arrived at the corner of 29th and West State Streets. There he observed an individual who had just turned the corner off of State Street onto 29th Street. It was Smith. At the same time, he observed Jones in an unmarked squad proceeding west on State Street. Crivillo exited his vehicle and called to Smith to stop. Instead, Smith started to run north on 29th Street. Crivillo gave chase. Jones passed them by in his unmarked car and attempted to block Smith's path with his vehicle. Smith evaded this attempt. Jones left his vehicle, gave chase, and eventually tackled Smith within two blocks of 29th Street and West Highland Boulevard. At the time of his apprehension, Smith was wearing a black winter-type cap. Within minutes, both McClinton and Thompson arrived on the scene. McClinton identified the individual as the drug seller and Thompson identified him as the person he observed with McClinton.

¶ 9. It is undisputed that no one other than McClinton claimed or witnessed an actual sale of crack cocaine by Smith. Nor was any prerecorded buy money or crack cocaine found on Smith or on the chase route after a careful inspection. Furthermore, there was no testimony that Smith attempted to discard any evidence.

¶ 10. At trial, Smith testified on his own behalf. He stated that on January 31, 2000, he left his residence located at 1222 South 19th Street and took a bus to 27th Street and Kilbourn Avenue where he got off. He intended to obtain a $340 money order for his grandmother so that she could pay her rent. The corner store that he went to near the bus stop did not offer money order service, so he walked to 27th and State Streets. There, his intention was to stop in a key shop located near the intersection to obtain a key for the room in which he was residing. The key shop, however, was not open. With that, he began to walk west on the north side of West State Street. As he turned the corner north on North 29th Street, he encountered an individual who turned out to be Crivillo.

¶ 11. The essence of his testimony was that he was not the person who sold crack cocaine to McClinton, nor did he receive any money from her. He claimed that when Crivillo asked him to stop, he did not realize he was a police officer; nonetheless, he said he fled because his parole officer prohibited him from having any police contacts.

¶ 12. During closing argument, the State proposed the following to the jury:

See, this argument — While defense attorneys try and say, well, we're not saying the police are lying; what else are they saying? There's no other reasonable explanation, and it kind of frustrates me knowing and working in this field and knowing these officers; and you know them now too. You know them. They work hard. They do a tough job. They come in here to testify a lot of times. They work long, long hours. You weigh their testimony against the defendant's.

¶ 13. The jury found Smith guilty of the charge. The trial court sentenced him to ten years in the Wisconsin state prison system, six years of initial confinement, with extended supervision for four years. In a postconviction motion, Smith moved for a new trial on the basis that his trial counsel was ineffective for failing to object to the State's improper closing argument. The motion was denied without a hearing and Smith now appeals.

II. ANALYSIS

¶ 14. Smith claims his trial counsel was prejudicially ineffective for failing to object to the State's improper closing argument or request a mistrial on that basis. He contends the closing argument presented facts not in evidence and improperly bolstered the credibility of the State's witnesses.

¶ 15. The analytical framework that must be employed in assessing the merits of a defendant's claim of ineffective assistance of counsel is well known. To sustain a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that counsel's errors were prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69 (1996). A court need not address both components of this inquiry if the defendant does not make a sufficient showing on one. Strickland, 466 U.S. at 697. The trial court denied Smith's claim without conducting a Machner hearing to address the deficiency issue. Thus, for the purposes of this appeal, we address only the "prejudice" prong.

¶ 16. With respect to the "prejudice" component of the test for ineffective assistance of counsel, the defendant must affirmatively prove that the alleged defect in counsel's performance actually had an adverse effect on the defense. Strickland, 466 U.S. at 693. The defendant cannot meet his burden by merely showing that the error had some conceivable effect on the outcome. Rather, he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding^] would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

¶ 17. In Strickland, although the Supreme Court wrote in terms of the defendant's demonstrating that " 'but for counsel's unprofessional errors the result of the proceeding would have been different,'" it nevertheless rejected an " 'outcome determinative standard[.]'" State v. Pitsch, 124 Wis. 2d 628, 642, 369 N.W.2d 711 (1985) (quoting Strickland, 466 U.S. at 693-94). Instead, the "focus is on the reliability of the proceedings." Id.

"Ají ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable .... The result of a proceeding can be rendered unreliable, and hence the proceeding itself, unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."

Id. (quoting Strickland, 466 U.S. at 694).

¶ 18. The Strickland Court further explained that the principles enunciated did not establish mechanical rules. Rather, they merely

"guide the process of decision [and] the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results."

Pitsch, 124 Wis. 2d at 642 (quoting Strickland, 466 U.S. at 696).

¶ 19. In the case before us, because of certain evidentiary deficiencies and inconsistencies, the pendulum of fairness hung in equipoise. From a review of the trial record, viewing the evidentiary problems that beset the State, we note that despite the four officers acting as a team, there was no corroborative evidence that a transaction took place. The closest evidence corroborating that a transaction took place was Thompson's observation that McClinton and Smith were walking together side-by-side. McClinton described the mechanics of the alleged exchange between herself and Smith as "hand-to hand" lasting only a few seconds. McClinton testified that she paid for the crack cocaine with a prerecorded $20 bill. The bill was not found on Smith's person nor was it found on or near the path of pursuit. There was no evidence offered as to the recorded numbers on the bill. McClinton's testimony as to the amount of crack cocaine she purchased was inconsistent; i.e., at the preliminary hearing she claimed she purchased one rock, whereas at trial, she claimed she purchased two rocks. McClinton also admitted that her description of the color of the pants worn by the seller "possibly" was wrong. McClinton's testimony as to where Smith was located when he began to run was inconsistent, ranging from the middle of the 2700 block to somewhere in the 2800 block. In contrast, Jones and Crivillo stated that Smith did not begin to run until he started walking north on 29th Street. There was no testimony that Smith discarded any objects while he was walking west on State Street or after the pursuit began. Once Smith was apprehended, he was searched and no drug-related materials were discovered. As a result, the police retraced the pursuit path to determine if Smith had discarded any evidence. No relevant evidentiary items were found.

¶ 20. Reviewing the evidence from Smith's standpoint, we initially note that when he was stopped, he had $340 in his right pocket and $3 in his left pocket. He also had one-half of an old $20 bill, which the arresting officers returned to him. The $340 was given to him by his grandmother to purchase a money order for the payment of her rent. Whether he was to obtain a money order for $340 or less because of the cost of purchasing the money order is unclear. His grandmother, Letie Quinn, testified that she gave him an additional $3 for the cost of the money order. He, however, claimed it was for the purchase of a key for his residence. He testified he stopped at a key shop at 27th and State Streets hut it was closed, so he started to walk west on State Street.

¶ 21. Smith denied that he met McClinton or sold her any crack cocaine. Yet, in her initial report, she noted the distinct abundance of freckles on his face. At no time from the point of initial contact to arrest was Smith ever out of the sight of one of the members of the undercover team. Of significance to the State's case was Smith's explanation of why he started to flee. Upon coming into contact with Crivillo on 29th Street, he claimed he did not know that Crivillo was a police officer — yet, he started to run. Under cross-examination he explained that he ran because he was instructed by his parole officer that he should not have any police contacts. This inconsistency was never resolved.

¶ 22. These evidentiary circumstances are significant because they demonstrate how close the credibility call was in this case for the jury. Credibility hung in the balance. The slightest wisp of influence could have directed the course of the jury's determination. Having set forth the circumstances, we now analyze Smith's contention that the State's closing argument tipped the balance and resulted in injustice.

¶ 23. The line between permissible and impermissible final argument is not easy to follow and is charted by the peculiar circumstances of each trial. Whether the prosecutor's conduct during closing argument affected the fairness of the trial is determined by viewing the statements in the context of the total trial. State v. Wolff, 171 Wis. 2d 161, 167-68, 491 N.W.2d 498 (Ct. App. 1992). The line of demarcation to which we refer "is thus drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence." State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979). "Argument on matters not in evidence is improper." State v. Albright, 98 Wis. 2d 663, 676, 298 N.W.2d 196 (Ct. App. 1980).

¶ 24. In close cases, a prosecutor must be sensitive to the evidentiary hand that he or she has been dealt. When arguing by inference, special care must be taken that there exists an evidentiary basis, however slight, for the logical conclusion he or she suggests in the closing argument. Artful subtleties, ill-cast and expressed, may be occasion for error. A prosecutor's interest as a representative of the state is "not [to] win a case, but [to see] that justice shall be done." Viereck v. United States, 318 U.S. 236, 248 (1943).

¶ 25. In this close case of evaluating credibility, we cannot ignore the prosecutor's self-imposed frustration at his own proposed suggestion that testifying police officers may have lied. This argument was made not in rebuttal, but in the State's opening final argument. There is, however, no basis in the record to assume the suggestion that any police witness lied. Nor is there any evidentiary basis to claim such an argument was invited. Smith's defense was mistaken identity, lack of physical evidence, and failure to meet the burden of proof. Once the prosecutor's rhetorical straw man was created, however, it had to be eliminated. How did the prosecutor accomplish that? With the challenged closing argument: "[I know] these officers; and you know them now too. You know them. They work hard. They do a tough job. They come in here to testify a lot of times. They work long, long hours. You weigh their testimony against the defendant's."

¶ 26. It is undisputed that there is no evidentiary basis for the officers' work habits or job demands, or the basis for the prosecutor's knowledge of them. This portion of the prosecutor's closing argument unfairly referenced matters not in the record and vouched for the credibility of the police witnesses. In the context of the total trial, we conclude that the quoted portion of the prosecutor's final argument placed the reliability of the proceedings in doubt to the extent that the fairness of the trial has been jeopardized. We conclude that Smith was prejudiced. Because the trial court did not conduct an evidentiary hearing to address the alleged deficiency of trial counsel for failure to object to the final argument or move for a mistrial, we remand for an evidentiary hearing for this determination.

By the Court. — Order reversed and cause remanded for further proceedings.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

        See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).


source: Caselaw Access Project

author: HOOVER, PJ.

license: Public Domain

text:
    John J. Petta and Rachelle DeValk, Plaintiffs-Respondents, v. ABC Insurance Co., DEF Insurance Co., and GHI Insurance Co., Defendants, The Travco Insurance Co., Defendant-Appellant.
    Court of Appeals

      No. 03-0610.

      Submitted on briefs September 2, 2003.

    Decided October 21, 2003.

    2003 WI App 241
    (Also reported in 672 N.W.2d 146.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Steven Theesfeld and Yost & Baill LLP of Minneapolis, MN.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of D. James Weis and Habush Habush & Rottier, S.C., of Rhinelander.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review granted 3-23-04.

   HOOVER, PJ.

¶ 1. The Travco Insurance Company appeals an order concluding that the Rimes "made whole doctrine" prevents Travco from seeking subrogation for payments it made pursuant to an insurance policy owned by Dayle Petta. See Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982). We conclude that the relationship between Travco and Petta's children, who are the plaintiffs, does not call for the application of the Rimes doctrine to preclude recovery on a subrogation interest. We therefore reverse the order.

Background

¶ 2. The facts are undisputed. Dayle Petta was killed in an automobile accident. Dayle was insured by Travco, which paid over $14,000 in funeral, medical, and property damage expenses. John Petta and Rachelle DeValk — Dayle's children — sued the tortfeasors (West Bend) in a wrongful death action. Travco, added because of its potential subrogation interest, cross-claimed against West Bend. Petta and DeValk then settled with West Bend, agreeing to indemnify it against any subrogation claims, specifically indemnifying West Bend against Travco, and ultimately dismissing West Bend from the case.

¶ 3. Petta and DeValk then requested a Rimes hearing. Travco stipulated that Petta and DeValk had not been made whole, but argued that they were not Travco's insureds and therefore not entitled to application of Rimes. The trial court nonetheless concluded, "it's. .. settled law that as long as they aren't made whole... the subrogated claim is discharged by the plaintiffs." Travco appeals.

Discussion

¶ 4. Travco's essential argument is that the Rimes doctrine applies only to prevent an insurer from seeking a subrogation interest against its insured if the insured has not been made whole. Because Petta and DeValk are not Travco's insureds, it contends they are not protected by Rimes. We discern two main responsive arguments from Petta and DeValk, although their brief is not completely clear. First, they argue that they own specific claims for Dayle's funeral, medical, and vehicle expenses under the wrongful death statute, Wis. Stat. § 895.04. Second, Petta and DeValk argue that even if Travco has a subrogation right, Rimes applies to prevent Travco's recovery.

¶ 5. Interpreting the wrongful death statute is a question of law we review de novo. See State v. Schwebke, 2002 WI 55, ¶ 26, 253 Wis. 2d 1, 644 N.W.2d 666. Whether a party's subrogation rights limit a plaintiffs recovery is also a question of law we review de novo, Koffman v. Leichtfuss, 2001 WI 111, ¶ 20, 246 Wis. 2d 31, 630 N.W.2d 201, as is the application of the made whole doctrine to undisputed facts. Ruckel v. Gassner, 2002 WI 67, ¶ 13, 253 Wis. 2d 280, 646 N.W.2d 11.

"Ownership" of the Claims for Damages

¶ 6. Petta and DeValk first argue that they are specifically authorized to bring a claim for Dayle's funeral and medical expenses and that they may recover damages to her vehicle as a "pecuniary injury," regardless whether they paid for these expenses. They base these claims on Wis. Stat. § 895.04(4) and (5), which state:

(4) Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action....
(5)... If a relative brings the [wrongful death] action, the relative may recover such medical expenses, funeral expenses, including the cost of a cemetery lot, grave marker and care of the lot, on behalf of himself or herself or of any person who has paid or assumed liability for such expenses.

¶ 7. In Estate of Cavanaugh v. Andrade, 191 Wis. 2d 244, 266-67, 528 N.W.2d 492 (Ct. App. 1995), rev'd on other grounds, 202 Wis. 2d 290, 550 N.W.2d 103 (1996), we dealt in part with Wis. Stat. § 895.04(5). There, Cavanaugh brought a wrongful death suit that included a claim for medical expenses paid by Milwaukee County. The City of Milwaukee, one of the defendants, disputed whether Cavanaugh was allowed to make the claim when a third party such as the County had paid the expenses but had not been joined in the action.

¶ 8. Ultimately, we concluded that:

This statute does not require the "person who paid the medical expenses" to be joined. The statute allows the relative who brings the action ... to assert a claim for medical expenses on behalf of the [payor] if he chooses to do so. Cavanaugh has chosen to assert a medical expense claim on the County's behalf and, therefore, he is entitled to recover the medical expenses.
Our decision should not be interpreted to mean that Cavanaugh is entitled to retain any proceeds he might recover for the medical expenses.... The County is entitled to any recovery for medical costs. Cavanaugh, however, can make a claim for the medical expenses on behalf of the County.

Id. at 266-67.

¶ 9. Similarly here, Petta and DeValk are indeed entitled to bring their medical and funeral expenses claim on behalf of the payor, Travco. They do not, however, own the claim exclusively, nor are they entitled to retain the proceeds of their claim when they did not pay the expenses.

¶ 10. Cavanaugh does not deal with pecuniary expenses, but we are not convinced that Dayle's vehicle damage is a pecuniary injury as contemplated by Wis. Stat. § 894.05(4). Pecuniary loss is commonly used in reference to lost inheritance or support and is defined as a loss of any benefit the beneficiary would have received from the decedent if the decedent had lived. See, e.g., Schaefer v. American Fam. Mut. Ins. Co., 192 Wis. 2d 768, 784-87, 531 N.W.2d 585 (1995). If this is the case, that a pecuniary injury does not refer to tangible objects like a vehicle, then Petta and DeValk would have no claim to the "pecuniary loss" of the vehicle as a matter of law.

¶ 11. A pecuniary loss, however, is also defined as a loss of something with monetary value, see Black's Law Dictionary 957 (7th ed. 1999), and an automobile typically has some value. However, much like the claim for medical and funeral expenses, we do not perceive how Petta and DeValk suffered a "loss" when they have not been called upon to pay for the damage to the vehicle. If the car had not been damaged, Petta and DeValk might have inherited the vehicle. Instead, they received the proceeds from Travco or they received a vehicle repaired by Travco's funding.

¶ 12. Petta and DeValk offer no explanation as to why they should be entitled to retain compensation from West Bend for the vehicle damage, except to say Wis. Stat. § 895.04(4) authorizes recovery of pecuniary injury. Much like the funeral and medical expenses, we question how they have been injured by damage to Dayle's car when Travco paid for it. There should be no recovery where there is no injury. Moreover, Petta and DeValk offer no explanation as to why Travco is not entitled to recover its payments, except to argue the application of Rimes which, as we explain below, is inapplicable in this case.

Subrogation

¶ 13. In all the cases Petta and DeValk cite dealing with Rimes, the made whole doctrine is discussed in terms of the relationship between an insurer and its insured. This is because subrogation is an equitable doctrine. Rimes, 106 Wis. 2d at 271. When we are faced with the possibility that either an insurer or its insured must go unpaid because a tortfeasor has a limited pool of funds from which to pay damages, it is deemed preferable that the insurer go unpaid and bear the loss the insured paid it to assume. Id. at 276.

¶ 14. There is no such relationship here. Petta and DeValk made no payment to Travco to receive benefits, nor do they point to anything in the wrongful death statute that allows Petta and DeValk to "stand in Dayle's shoes" vis-á-vis her relationship with Travco. The wrongful death statute gives Petta and DeValk their own claims separate from Travco's and wholly independent of any contractual relationship between Dayle and Travco. But for Petta and DeValk's indemnification agreement, there were two separate causes of action against West Bend.

¶ 15. Moreover, we disagree with Petta and De-Valk that Schulte v. Frazin, 176 Wis. 2d 622, 500 N.W.2d 305 (1993), allows them to make just such an indemnification agreement and then apply Rimes. Schulte, like the other cases upon which Petta and DeValk rely, deals with an insurer and an insured and their respective rights in settlement proceedings. Petta and DeValk broaden the opinion's language, claiming that the supreme court concluded, "when an injured person settles with the tortfeasor," we apply Rimes. The case actually says that when an injured insured settles, the equities of Rimes come into play. Schulte, 176 Wis. 2d at 637. This is consistent with the line of cases relating to insurers and insureds. It is not applicable to wrongful death plaintiffs. Moreover, we are not at liberty to change the supreme court's language to fit Petta and DeValk's case. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).

¶ 16. We also agree with Travco's concern that if we were to apply Rimes here, we would set a dangerous precedent. If there were multiple plaintiffs against a common tortfeasor based on a single incident, the plaintiffs could "race" to settlement. The first to settle and indemnify the tortfeasor could show that he or she was not made whole and, if Rimes applied, extinguish not only subrogation claims but also the other plaintiffs' claims. This takes Rimes to a place it was never intended to go.

By the Court. — Order reversed.

       West Bend Mutual Insurance Company, Bryon J. Schroeder, and Whiplash Lake Resort were the defendants in the trial court. They were dismissed from this appeal based on their dismissal in that court.

       Travco also raised the question whether Petta and DeValk had standing to request a Rimes hearing. See Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 316 N.W.2d 348 (1982). Because we reverse on other grounds, we do not address that issue. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need be addressed).

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.


author: DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jeremy John Larson, Defendant-Appellant.
    Court of Appeals

      No. 03-0019-CR.

      Submitted on briefs September 8, 2003.

      Decided October 23, 2003.

    2003 WI App 235
    (Also reported in 672 N.W.2d 322.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of David D. Cook, Monroe.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lara M. Herman, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Dykman, Vergeront and Higginbotham, JJ.
   DYKMAN, J.

¶ 1. Jeremy J. Larson appeals from a judgment convicting him of homicide by intoxicated use of a vehicle. The trial court sentenced him to five years' confinement in prison and ten years' extended supervision, with the condition that Larson be incarcerated in the local jail for two days each year for ten years on the anniversary of his victim's death. Larson argues that Wisconsin's Truth In Sentencing law, Wis. Stat. § 973.01 (2001-02), does not authorize a circuit court to order periodic jail confinement as a condition of extended supervision. We agree and reverse.

I. FACTS

¶ 2. On July 16, 2000, Larson was driving whilé intoxicated and caused a car accident, killing a passenger in his car. The trial court found Larson guilty of homicide by intoxicated use of a vehicle and imposed a bifurcated sentence of five years' confinement and ten years' extended supervision. One condition of Larson's extended supervision was that he would be incarcerated in the local jail on July 15, 5:00 p.m. through July 17, 5:00 p.m. each year. The trial court imposed confinement in jail during the supervision phase to remind Larson of the anniversary of his victim's death. It reasoned that Wis. Stat. § 973.01 allowed jail confinement as a condition of supervision because the overall sentence did not exceed the statutory limit on the length of confinement. Larson appeals.

II. STANDARD OF REVIEW

¶ 3. This appeal requires us to interpret and apply a sentencing statute. Sentencing decisions are left to the trial court's sound discretion. State v. Spears, 227 Wis. 2d 495, 506, 596 N.W.2d 375 (1999). However, the meaning of a statute is a question of law. DOR v. Milwaukee Brewers Baseball Club, 111 Wis. 2d 571, 577, 331 N.W.2d 383 (1983). We review matters of law, including whether a statute is ambiguous, de novo. Awve v. Physicians Ins. Co. of Wis., 181 Wis. 2d 815, 822, 512 N.W.2d 216 (Ct. App. 1994).

III. DISCUSSION

¶ 4. Larson contends that the plain language of Wis. Stat. § 973.01(2) means that a bifurcated sentence has two phases: a term of incarceration and a term of supervision. We agree. The statute requires incarceration to occur in prison and extended supervision to occur upon release from confinement. Although a prison supervises an inmate in its custody, the term "extended supervision" in a bifurcated sentence means supervision of an individual not incarcerated. The Criminal Penalties Study Committee's Final Report supports the plain meaning we give to § 973.01(2). It clarifies that "[supervision cannot be the same as confinement, as currently defined in the statutes." Criminal Penalties Study Comm. Final Report on 1997 Wisconsin Act 283, Truth In Sentencing, at 123 (Aug. 31, 1999). We conclude § 973.01(2) does not authorize confinement in any facility as a condition of extended supervision.

¶ 5. The State asserts that Wis. Stat. § 973.01(5) authorizes courts to "impose conditions for extended supervision." It argues that this provision permits courts to impose confinement in jail as a condition of extended supervision. We agree. If § 973.01(5) is read independently from § 973.01(2), one can conclude that the court has discretion to impose such confinement.

¶ 6. Because this statute is capable of multiple reasonable meanings, it is ambiguous. State ex. rel. Newspapers Inc. v. Showers, 135 Wis. 2d 77, 87, 398 N.W.2d 154 (1987). To resolve this ambiguity, we employ rules of statutory construction to determine the legislative intent behind the statute. See State v. Newman, 157 Wis. 2d 438, 442, 459 N.W.2d 882 (Ct. App. 1990), aff'd 162 Wis. 2d 41, 469 N.W.2d 394 (1991). Where two statutes relate to the same subject matter, the specific statute controls the general statute. Gottsacker Real Estate Co. v. DOT, 121 Wis. 2d 264, 269, 359 N.W.2d 164 (Ct. App. 1984). In this case, Wis. Stat. §§ 973.01(2) and (5) overlap in the treatment of extended supervision. However, § 973.01(2) is more specific than § 973.01(5) because it defines the term of extended supervision. Subsection (5) grants a broad, undefined discretion to the courts regarding the conditions of supervision. To avoid rendering § 973.01(2) meaningless, we conclude that it limits the discretion given courts in § 973.01(5) such that all conditions must conform to the structure of the bifurcated sentence § 973.01(2) provides.

¶ 7. The State contends that Larson's interpretation of Wis. Stat. § 973.01(2) is invalid because "in prison" follows "term of confinement" throughout the sentencing statutes. "In prison" defines the place of confinement in the first half of a bifurcated sentence. The State argues that because Larson's confinement is in the local jail and not a prison, none of the sentencing statutes preclude such confinement as a condition of extended supervision. We are not persuaded. The bifurcated sentence has two distinct phases: one includes incarceration, the other release. The location of the confinement does not determine whether the statute permits confinement as a condition of extended supervision. A person convicted of a crime cannot be jailed and released at the same time.

¶ 8. The State also argues that nothing about the term "supervision" precludes jail time. Moreover, Wis. Stat. § 973.01(8)(a)5 provides that the State may revoke extended supervision, as many times as necessary, and require the offender to return to prison even after the period of confinement. See Wis. Stat. § 302.113(9). The State argues that this indicates that the term "release" does not show a legislative intent to prohibit any confinement during the supervision period of the sentence. We disagree. Although confinement may be a penalty for violating a condition of supervision, no authorization exists to impose confinement as a condition of supervision. See § 973.01(8)(a)5.

¶ 9. Finally, the State argues that the sentencing statutes permit Larson's confinement in jail because the legislature has not expressly excluded that condition from the broad grant of authority provided in Wis. Stat. § 973.01(5). We disagree.."[I]f the authority to fashion a particular criminal disposition exists, it must derive from the statutes." State v. Horn, 226 Wis. 2d 637, 646, 594 N.W.2d 772 (1999) (quoting State v. Amato, 126 Wis. 2d 212, 216, 375 N.W.2d 75 (Ct. App. 1985) (citations omitted)). Section 973.01(2) controls the use of confinement in a bifurcated sentence; we must construe § 973.01(5) in light of these guidelines. Absent express authority, a trial court cannot order confinement as a condition of extended supervision. To hold otherwise would lead to absurd results. Following the State's reasoning, an inmate could be incarcerated as a condition of all of his or her extended supervision as long as the overall sentence did not exceed the limitations in § 973.01(2). Such confinement would defeat the purpose of the bifurcated sentence, which mandates supervised release as a precursor to total freedom.

¶ 10. Accordingly, we construe Wis. Stat. §§ 973.01(2) and (5) to prohibit confinement as a condition of extended supervision. We therefore reverse and remand with instructions to vacate the condition of extended supervision which required Larson to be jailed for two days each year.

By the Court. — Judgment reversed and cause remanded with directions.

       Wisconsin Stat. § 973.01(2) provides in pertinent part:
      A bifurcated sentence is a sentence that consists of a term of confinement in prison followed by a term of extended supervision under s. 302.113. The total length of a bifurcated sentence equals the length of the term of confinement in prison plus the length of the term of extended supervision.
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. 973.01(5) provides: "Whenever the court imposes a bifurcated sentence under sub. (1), the court may impose conditions upon the term of extended supervision."

       Tmth-in-sentencing applies to misdemeanors committed after February 1, 2003. Wis. Stat. § 973.01(1). Wisconsin Stat. § 939.60 provides: "A crime punishable by imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor." A misdemeanor may result in confinement in prison due to a penalty enhancer. See Wis. Stat. § 939.62. However, such a result is exceptional. Ordinarily, imprisonment for a misdemeanor is less than one year. Wisconsin Stat. § 973.02 provides in pertinent part: "[I]f a statute authorizes imprisonment for its violation but does not prescribe the place of imprisonment, a sentence of less than one year shall be to the county jail, a sentence of more than one year shall be to the Wisconsin state prison . . .." We need not consider how these statutes affect the State's argument because we have rejected that argument for another reason.


author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Glenn H. Hale, Defendant-Appellant.

    Court of Appeals

      No. 03-0417-CR.

      Submitted on briefs August 22, 2003.

      Decided October 29, 2003.

    2003 WI App 238
    (Also reported in 672 N.W.2d 130.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven D. Phillips, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and James M. Freimuth, assistant attorney general.

      Before Anderson, RJ., Brown and Snyder, JJ.

       Petition to review granted 2-24-04.

   BROWN, J.

¶ 1. Glenn H. Hale and coactor Robert L. Jones had separate trials, both resulting in guilty verdicts arising out of an armed robbery that left two people murdered. David Sullivan, a life-long friend of Hale's, was a witness in Jones's trial, but made himself unavailable for Hale's trial. The district attorney successfully persuaded the trial court to allow the admission of Sullivan's former testimony and Hale appeals, arguing that Wis. Stat. § 908.045(1) (2001-02), the former testimony hearsay exception, is not "firmly rooted," there are no particularized guarantees of trustworthiness, the residual exception should not operate and Sullivan's testimony hurt his defense. We are convinced that State v. Bintz, 2002 WI App 204, 257 Wis. 2d 177, 650 N.W.2d 913, review denied, 2002 WI 121, 257 Wis. 2d 119, 653 N.W.2d 891 (Wis. Oct. 21, 2002) (No. 01-2670-CR), holds the former testimony hearsay exception to be "firmly rooted." While we question the holding in Bintz, we are bound by it and it dooms Hale's argument. Even if Bintz was not on the books and we were to hold that the exception is not "firmly rooted," Hale would be doomed anyway because Sullivan's testimony had particularized guarantees of trustworthiness.

¶ 2. On January 3, 2002, Hale was charged with two counts of first-degree intentional homicide, party to a crime, in violation of Wis. Stat. §§ 940.01(l)(a) and 939.05; three counts of conspiracy to commit armed robbery in violation of Wis. Stat. §§ 943.32(2) and 939.31; and one count of possession of a firearm by a felon in violation of Wis. Stat. § 941.29(2m). The charges were based on allegations that on December 8, 2001, Hale and a separately tried co-actor, Jones, forced their way into a Kenosha apartment to rob the three occupants of drugs and money and that, in the process of doing so, Hale shot and killed Darrel Stone and Joshua Kressel.

¶ 3. At Hale's jury trial in July 2002, Mark Bernhardt testified that on December 8, 2001, he, Stone and Kressel were sitting in the living room of Stone's apartment watching television. Bernhardt heard a car pull into the adjacent driveway, and, about two minutes later, a male identifying himself as "Vinnie" knocked on the door of Stone's apartment. Not knowing anyone by that name, Stone did not initially open the door. When the knocking persisted, however, Stone opened the door about one-half inch. At this point, the door flew open, Bernhardt heard what sounded like a gunshot, and Stone dropped to his knees and put his hands in the air.

¶ 4. Bernhardt testified that two men then entered the apartment. Bernhardt identified the first man to enter as Jones. The other man initially stood just inside the doorway with what looked like a revolver. The gunman wore a ski mask, a hooded sweater and gloves, and was dressed completely in black. Bernhardt testified that he assumed the gunman was African-American because he did not see any white skin beneath the mask. He also testified that the gunman was small and was crouching down a bit as he leaned against the doorjamb.

¶ 5. Bernhardt testified that Jones then flipped over a table and demanded to know "where's the weed at," as the gunman fired a warning shot toward the ceiling. Kressel gave Jones the small amount of marijuana he had in his pocket. Jones then turned to Bernhardt. When Bernhardt did not move fast enough, Jones picked him up by his hair. Bernhardt gave Jones his money and got back on the floor with his hands up in the air and his back to Jones. Bernhardt then heard two more gunshots. Looking over his shoulder, he saw the men leaving the apartment, and saw Kressel bleeding. He ran to the bathroom and called 911 on his cell phone. Bernhardt heard a car leaving, looked out the window, and saw what he believed to be a 1989 Chevy Beretta pulling out of the driveway. He testified that he had been around cars all his life and that when viewed from the side, a Corsica and a Beretta would have been basically indistinguishable.

¶ 6. One of the responding officers testified that both Kressel and Stone died at the scene. At trial, the parties stipulated that the gunshots caused the deaths of Stone and Kressel and that the shots were fired by a .44 magnum revolver that was recovered from a car Hale was driving when he was apprehended following a car chase more than five days later.

¶ 7. It can be fairly stated that the rest of the State's case consisted of evidence designed to corroborate this historical background. Sullivan, a friend of Hale's since childhood who allegedly gave Hale the gun used in the murders, had testified at Jones's trial, which was held in May 2002. The State subpoenaed Sullivan to testify on its behalf at Hale's trial, but was unable to locate him to serve that subpoena. On the morning of the third day of trial, the State advised the court that officers had searched the residence where Sullivan was alleged to be staying, but to no avail. The State then moved to have Sullivan's testimony from Jones's trial admitted pursuant to Wis. Stat. § 908.045(1), the former testimony hearsay exception. The trial court granted the motion, over Hale's objection. The transcript of Sullivan's testimony given at Jones's trial was then read to the jury.

¶ 8. On direct examination at Jones's trial, Sullivan admitted having one prior conviction. Sullivan testified that Hale was a long-time friend whom he had known since childhood. He said he knew that when Hale moved to Kenosha in 2001, he stayed with his sister, Tammie Jones, and that Tammie was married to Robert Jones. Sullivan also testified that Hale had asked him for a gun and that the gun shown to him by the prosecution "look[ed] like" the gun he provided to Hale. Sullivan testified that he had given the gun to Hale at the Jones/Hale residence "about six months ago," which would have been prior to the murders. On cross-examination, Sullivan acknowledged that shortly before the start of the trial he had written a letter to the prosecutor and the judge, asserting that he was "afraid to take the stand" and that he suffered from "some kind of altered mental state" that deprived him of the ability to "distinguish between the truth and [falsity] of what [he had] written in [his] previous statements." Sullivan said he told authorities that he was "sure" he gave a gun to Hale and not to Jones. On redirect examination, Sullivan conceded that his mental state was attributable in part to the guilt he felt about having given Hale the murder weapon.

¶ 9. The State also offered the testimony of Hale's girlfriend, Joy Baker, who testified that Hale had obtained a gun and holster from Sullivan about one week before the murders, and had kept the gun on his person "a lot" before his arrest. She stated that the murder weapon looked like the gun Hale had obtained. Baker testified that on the night of the murders, Hale picked her up in a black four-door vehicle. Baker also testified that she was a passenger in the car Hale was driving when he was apprehended. She stated that during the car chase, Hale asked her to remove the holstered revolver that was strapped across his shoulder and to throw it out the window. She put the gun and some ammunition that Hale gave her underneath the seat. Hale also told Baker that it would be the last time she would ever see him and to write him in jail. She further testified that sometime a few days before the murders, she was with Hale when he purchased a black ski mask. A day or two after he was arrested, Hale called Baker and told her to retrieve the mask from the bottom of a duffel bag they shared and to dispose of the mask, which she did.

¶ 10. In addition, the State offered the testimony of at least two individuals who placed Hale and Jones together on the night of December 8, around the time of the murders. The State also offered the testimony of a detective who test drove and timed the three most likely routes that Hale and Jones might have used on the night of the murders. Finally, the State offered the testimony of Hale's cellmate in jail. His cellmate testified that Hale had confessed that he committed the crimes. Hale produced no witnesses at trial. At the conclusion of the four-day trial, the jury found Hale guilty on all six counts. This appeal followed.

¶ 11. On appeal, Hale seeks a new trial on the grounds that the trial court improperly permitted the State to introduce Sullivan's prior testimony. Hale argues that the trial court should have excluded Sullivan's prior testimony because it did not satisfy the former testimony hearsay exception of Wis. Stat. § 908.045(1). In the alternative, Hale submits that even if the former testimony exception applies, the admission of Sullivan's testimony violated his confrontation rights because the "former testimony" hearsay exception, as applied to Sullivan's testimony, is not "firmly rooted" and because Sullivan's testimony lacked "particularized guarantees of trustworthiness."

¶ 12. A trial court's decision to admit a hearsay statement is a discretionary one, and we will not reverse the trial court's decision unless the record shows that the ruling was manifestly wrong and an erroneous exercise of discretion. State v. Ballos, 230 Wis. 2d 495, 504, 602 N.W.2d 117 (Ct. App. 1999). However, whether the admission of hearsay evidence under a statutory exception violates a criminal defendant's right to confront adverse witnesses under the Sixth Amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution presents a question of constitutional fact. State v. Tomlinson, 2002 Wl 91, ¶ 39, 254 Wis. 2d 502, 648 N.W.2d 367. For such questions, we accept the trial court's findings of historical fact unless clearly erroneous, but independently apply the facts to the constitutional standard. Id.

¶ 13. In State v. Bauer, 109 Wis. 2d 204, 215, 325 N.W.2d 857 (1982), our supreme court articulated the test reviewing courts are to apply when the defendant both challenges the statutory basis for admitting purported hearsay evidence and alleges a Confrontation Clause violation. The threshold question we are to address is whether the evidence fits within a recognized hearsay exception. Id. If not, the evidence must be excluded. Id. If so, we must consider the Confrontation Clause. Id. There are two requisites to satisfaction of the confrontation right. Id. First, the witness must be unavailable. Id. Second, the evidence must bear some indicia of reliability. Id. If the evidence fits within a firmly rooted hearsay exception, reliability can be inferred and the evidence is generally admissible. Id. This inference of reliability does not, however, make the evidence admissible per se. Id. The trial court must still examine the case to determine whether unusual circumstances warrant exclusion of the evidence. Id. If the evidence does not fall within a firmly rooted hearsay exception, it can be admitted only upon a showing of particularized guarantees of trustworthiness. Id.

¶ 14. We now turn to the application of this standard to the facts of the instant case. We first must determine whether Sullivan's testimony falls within a recognized hearsay exception. The trial court based its decision to admit Sullivan's testimony on Wis. Stat. § 908.045(1), which governs the admissibility of "former testimony" and provides:

Hearsay exceptions; declarant unavailable. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, at the instance of or against a party with an opportunity to develop the testimony by direct, cross-, or redirect examination, with motive and interest similar to those of the party against whom now offered.-

¶ 15. Hale contends that the trial court erred when it concluded that Sullivan's testimony at Jones's trial was admissible under the former testimony exception to the hearsay rule because he and Jones did not share a similar motive and interest in cross-examining Sullivan about his alleged delivery of the murder weapon to Hale. Hale observes that while Sullivan's testimony may have linked Hale to the crime, his testimony did not directly implicate Jones. He contends that, unlike him, Jones's strategy at trial was not so much to discredit Sullivan or to question him in more detail concerning the alleged delivery of the gun but, rather, to disassociate himself from Hale.

¶ 16. This case is akin to State v. Barksdale, 160 Wis. 2d 284, 466 N.W.2d 198 (Ct. App. 1991). There, two defendants, Barksdale and Allen, were tried separately for first-degree reckless homicide, party to a crime. Id. at 286-87. At his trial, Allen cross-examined an eyewitness in an apparent attempt "to focus the blame on Barksdale and minimize Allen's role in the incident." Id. at 288. In between the trials, a key eyewitness died, and his testimony from Allen's trial was admitted at Barksdale's trial. Id. at 287. In affirming the trial court's decision to admit the eyewitness's testimony, we noted that the two defendants' interests in cross-examining the witness, while not identical, were very similar because the two had been charged as parties to a crime and, thus, it was immaterial who actually did the killing. Id. at 288-89.

¶ 17. The same can be said for Jones and Hale. Because they were both charged as parties to a crime, it was irrelevant whether it was Jones or Hale who actually fired the gun. Bernhardt identified Jones as one perpetrator, other witnesses placed Jones and Hale together shortly before the crimes and the police later found Hale with the murder weapon. Thus, it was in Jones's interest, as well as Hale's interest, to discredit any link between Hale and the murder weapon. As Barksdale teaches, the interests need not be identical, they need only be similar. See State v. Hickman, 182 Wis. 2d 318, 327, 513 N.W.2d 657 (Ct. App. 1994). The trial court therefore did not erroneously exercise its discretion in admitting Sullivan's testimony pursuant to the former testimony hearsay exception of Wis. Stat. § 908.045(1).

¶ 18. Because we hold that the testimony is admissible pursuant to the statutory rules of evidence, we next address whether Hale's constitutional right to confrontation nevertheless has been violated. As explained, in order for a hearsay statement to be admitted against a criminal defendant, the witness must be unavailable and the statement must either (1) fall within a "firmly rooted" hearsay exception with no unusual circumstances undermining the reliability of the proffered evidence; or (2) contain particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to the statement's reliability. Bauer, 109 Wis. 2d at 215; Ohio v. Roberts, 448 U.S. 56, 66 (1980). Neither party disputes that Sullivan was unavailable to testify at Hale's trial. We therefore turn to the question of whether the former testimony hearsay exception as applied to the introduction of testimony from. a codefendant's trial in which the defendant did not participate is a "firmly rooted" hearsay exception.

¶ 19. In Bintz, we were confronted with this very question. There, two brothers, David and Robert Bintz, were tried separately for first-degree murder, party to a crime. Bintz, 257 Wis. 2d 177, ¶ 5. At David's trial, a cellmate of his recounted statements that David had made incriminating both David and Robert. Id., ¶¶ 3-5. The cellmate also testified at Robert's preliminary hearing, but died before his trial. Id., ¶ 5. The cellmate's statements from both David's trial and Robert's preliminary hearing were allowed into evidence at Robert's trial pursuant to the former testimony hearsay exception. Id., ¶¶ 17, 19. On appeal, Robert argued that the admission of the cellmate's prior testimony violated his confrontation rights. Id., ¶ 20. We concluded, without explanation, that the cellmate's prior testimony from the trial and the preliminary hearing fell under a firmly rooted hearsay exception. Id. As we did not observe any unusual circumstances suggesting that the cellmate's testimony should be considered unreliable, we concluded that the admission of the testimony did not violate Robert's confrontation rights. Id.

¶ 20. There are similarities between this case and Bintz and there are dissimilarities. Like the defendant in Bintz, Hale challenges the admission at his tried of testimony from a codefendant's trial pursuant to the former testimony hearsay exception. And like the defendant in Bintz, Hale argues that the admission of such testimony violates his confrontation rights because the former testimony exception is not a "firmly rooted" hearsay exception.

¶ 21. Unlike Bintz, however, Hale never had the opportunity to cross-examine the witness at any time, in any proceeding. In Bintz, while it is true that Robert did not have the opportunity to cross-examine the cellmate witness during his brother's trial, he did have the opportunity to cross-examine the cellmate during his own preliminary examination.

¶ 22. The Bintz court could have determined that because Robert had the opportunity to cross-examine the cellmate during his own preliminary examination, confrontation was thus satisfied despite the fact that Robert did not have a similar opportunity to cross-examine the cellmate during his brother's trial. However, the Bintz court did not use this line of reasoning. Rather, it simply stated, "we note the [prior testimony] falls under a firmly rooted hearsay exception," providing no explanation for this conclusion. Id. Based on this short statement, the Bintz court admitted both the preliminary hearing testimony and the testimony obtained at the co-actor brother's trial.

¶ 23. We have entertained the thought that we could thus limit Bintz to its facts and decide the "firmly rooted" hearsay exception anew. But we think we would be intellectually dishonest in doing so. Bintz specifically states that the exception for testimony from a coactor's trial is "firmly rooted" and we can see no way around this statement. We are therefore bound by our conclusion that the former testimony exception as used in the circumstances of this case is a "firmly rooted" exception. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997) (concluding that only the supreme court has the authority to overrule, modify or withdraw language from a published opinion of the court of appeals).

¶ 24. We note that Bauer teaches how, even if a hearsay exception is firmly rooted, the exception nonetheless may be attacked by showing that there are unusual circumstances undermining the reliability of the proferred evidence. Bauer, 109 Wis. 2d at 215. Hale does not argue that any unusual circumstances exist and we cannot perceive of any that would warrant the exclusion of Sullivan's prior testimony. Therefore, Bintz controls the confrontation issue here.

¶ 25. Having ruled as we have, we still take the time to state that were we writing on a clean slate, we would hold that the former testimony hearsay exception as applied to the facts of this case is not "firmly rooted." We do so after careful consideration of the Federal Rules of Evidence, the rules of evidence of other states, case law and commentaries. We do so because we feel that the issue is important enough to warrant supreme court review.

¶ 26. First, given the history and very limited acceptance of the exception for the former testimony of a witness given at a trial at which the accused was not a party, we are hesitant to characterize the exception as being "firmly rooted." While former testimony has long been admitted as an exception to the hearsay rule, the Federal Rules of Evidence do not permit the former testimony of an unavailable witness to be introduced against a criminal defendant unless the defendant was a party to the prior proceeding. In rejecting language that would have permitted the admission of such testimony, the House Judiciary Committee explained:

The Committee considered that it is generally unfair to impose upon the party against whom the hearsay evidence is being offered responsibility for the manner in which the witness was previously handled by another party. The sole exception to this, in the Committee's view, is when a party's predecessor in interest in a civil action or proceeding had an opportunity and similar motive to examine the witness.

H.R. Rep. No. 93-650 (1973), reprinted in 1974 U.S.C.C.A.N. 7075, 7088. In adopting a version of the rules of evidence that permitted former testimony to be admitted, the Judicial Council Committee left the confrontation issues unresolved, stating only that "[t]he confrontation problems referred to in the Federal Advisory Committee's Note are for resolution as constitutional rather than evidence law problems in keeping with the form and purpose of these rules of evidence." Judicial Council Committee Note, 1974, Wis. Stat. § 908.045.

¶ 27. Our research demonstrates that the majority of other states have adopted the Federal Rules verbatim and only two other states — Hawaii and Nebraska — have a rule identical to Wis. Stat. Rule § 908.045. See Haw. Rev. Stat. § 626-1 (2002); Neb. Rev. Stat. § 27-804(2) (a) (2003). We have been unable to locate a single published case from either jurisdiction permitting the state to introduce against a criminal defendant testimony given at a prior proceeding at which the defendant was neither present nor afforded the opportunity for cross-examination. Thus, it appears that Wisconsin is the only jurisdiction to have expressly allowed the introduction of such evidence pursuant to its rules of evidence.

¶ 28. Second, when, as here, the State seeks to offer the testimony of a witness given at the separate trial of an alleged accomplice, and the witness is not presently available to testify at the defendant's trial, the defendant is denied his or her usual right to force the witness to submit to cross-examination, and it appears that a confrontation problem does arise. Stanley A. Goldman, Not So "Firmly Rooted": Exceptions to the Confrontation Clause, 66 N.C. L. Rev. 1, 19 (1987); see also State v. Norman, 2003 WI 72, ¶ 36, 262 Wis. 2d 506, 664 N.W.2d 97 (holding that the right to confrontation contemplates the personal examination of a witness by the defendant, such that the defendant has the opportunity to test the witness's memory and credibility in the presence of the fact finder). Although the alleged accomplice may have had the same motive to cross-examine the unavailable witness as does the accused, that fact alone is not sufficient to satisfy the accused's right to confrontation. See Goldman, supra, at 19.

¶ 29. Finally, in Bintz, we cited to Bauer, without any explanation, as authority for our conclusion and we question whether Bauer actually lends support for our conclusion in Bintz. In Bauer, our supreme court held that preliminary hearing testimony fell within a "firmly rooted" hearsay exception. Bauer, 109 Wis. 2d at 216. Our supreme court has affirmed this holding in subsequent cases. Norman, 262 Wis. 2d 506, ¶ 30; State v. Stuart, 2003 WT 73, ¶ 36, 262 Wis. 2d 620, 664 N.W.2d 82. However, the holdings of Bauer and its progeny speak specifically to the former testimony hearsay exception as it applies to the defendant's preliminary hearing testimony. Nothing in the language of these opinions suggests that their holdings are broad enough to encompass the former testimony exception as applied in this case.

¶ 30. We once again recognize that as a published court of appeals decision, Bintz controls the outcome of this case, see Cook, 208 Wis. 2d at 189-90, and, thus, we must hold that the former testimony hearsay exception as applied in this matter is "firmly rooted." However, for the foregoing reasons, were we to write this decision on a clean slate, we would conclude that the former testimony hearsay exception, when used to permit the introduction of testimony from a codefendant's trial in which the defendant did not participate, is not a "firmly rooted" hearsay exception.

¶ 31. Even if we are correct, and the former testimony hearsay exception is not "firmly rooted," Sullivan's testimony would still be admissible if supported by particularized guarantees of trustworthiness. In evaluating whether adequate guarantees of trustworthiness exist, a court may not look to evidence that corroborates the veracity of the statement. Rather, the court must consider the totality of the circumstances surrounding the making of the statement and determine whether the declarant was so likely to be telling the truth that cross-examination of the declarant would be of marginal utility. Idaho v. Wright, 497 U.S. 805, 820 (1990). Here, at Jones's trial, Sullivan testified under oath, not only subject to perjury if he testified falsely, but also subject to losing the use immunity that the State had promised him for truthful testimony. Further, Jones not only had a full opportunity to cross-examine Sullivan, but, as previously discussed, Jones also had a motive and an interest similar to those of Hale to impeach Sullivan's credibility and actually sought to do so by challenging Sullivan's mental state. Finally, as evidenced by the letter he sent to the court prior to Jones's trial, Sullivan was reluctant to testify. Sullivan was a long-time friend of Hale's and did not want to implicate him. He also felt guilty about providing a gun that was used to kill two people. The testimony itself is straightforward and relates to an event that occurred before the murder. Sullivan gave his friend a gun. That is all. There is no reason for him to lie about that. Little could be gained by further cross-examination. In short, we can conceive of no possible reason to question the trustworthiness and reliability of Sullivan's testimony. Although Hale complains that Jones's counsel should have done more in cross-examining Sullivan, Hale fails to identify how additional cross-examination of Sullivan would have benefited him.

¶ 32. Although the Sixth Amendment right to confrontation envisions the personal examination of a witness by a defendant, this fundamental right to confrontation must, at times, be dispensed with in order to accommodate competing interests such as effective law enforcement and precise workable rules of evidence in criminal proceedings. Norman, 262 Wis. 2d 506, ¶ 36. Accordingly, both the United States Supreme Court and our supreme court have held that when a witness is unavailable for trial, hearsay evidence may be admitted when there has been "substantial compliance with the purposes behind the confrontation requirement." Id. Those purposes are satisfied when the trier of fact has a reasonable basis for evaluating the truthfulness of the prior statement. Id. We are convinced that given the circumstances under which Sullivan testified in this case, the jury had a reasonable basis for evaluating the truthfulness of his statements. Thus, were we not bound by Bintz, we would instead affirm on the basis that Sullivan's prior testimony possessed the requisite particularized guarantees of trustworthiness and that it was properly admitted into evidence on that basis.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       On December 13, 2001, and the early morning hours of December 14, when police attempted to make a traffic stop of a rental car they had confirmed Hale was driving, Hale accelerated, with the officers in pursuit. Eventually, after a car chase involving twelve or fourteen marked squad cars and reaching speeds in excess of 100 miles per hour, Hale slowed the car down, jumped out and ran through the neighboring residential area. Several officers pursued on foot, finally apprehending Hale at gunpoint.

       We note that in State v. Hickman, 182 Wis. 2d 318, 320, 328, 513 N.W.2d 657 (Ct. App. 1994), we held that the testimony of an alleged co-conspirator at the co-conspirator's prosecution was admissible under the hearsay exception for former testimony and unusual circumstances warranting exclusion of the testimony pursuant to the Confrontation Clause did not exist. The parties did not dispute that the co-conspirator's testimony fell within a "firmly rooted" hearsay exception and, consequently, we did not address the issue. Id. at 328.

       The hearsay exception for former testimony under the Federal Rules of Evidence reads:
      Os) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
      (1) Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.
      Fed. R. Evid. 804(b)(1).

       We note that an alternative basis for our holding is the residual hearsay exception found in Wis. Stat. § 908.045(6). Under this provision, the statements of an unavailable witness that are not specifically covered by any of the other enumerated exceptions, but have comparable circumstantial guarantees of trustworthiness, are admissible. Id. Our analysis using this standard would mimic our above application of the "particularized guarantees of trustworthiness" test. Thus, were we to conduct an analysis of Sullivan's testimony using the residual hearsay exception, we would reach the same result for the above reasons.

        In any event, the State argues that even if the trial court erred in admitting Sullivan's prior testimony, the error was harmless. The jury knew that the police found the gun used in the murders in the car Hale was driving during the chase; the jury heard testimony suggesting that the car Hale was driving on the night of the murders was at the scene of the crimes; the jury heard testimony from a detective demonstrating that given Hale's activities around the time of the murders, he could have committed the crimes; the jury heard testimony from a witness identifying Jones as one of the perpetrators; the jury heard testimony establishing that Hale and Jones were together on the night of the murders; the jury heard the testimony of Hale's girlfriend that prior to the murders, Hale had purchased a ski mask and obtained a gun and holster from Sullivan, that during the car chase he told her it was probably the last time she would see him and to write him in jail and that following his arrest, he asked her to destroy the ski.mask; and finally, the jury heard the testimony of Hale's cellmate that Hale had confessed to him. In light of this overwhelming evidence, we also could have affirmed on the basis that it is clear beyond a reasonable doubt that a rational jury would have convicted even without Sullivan's prior testimony and, thus, the error was harmless. See State v. Weed, 2003 WI 85, ¶ 29, 263 Wis. 2d 434, 666 N.W.2d 485.


author: ANDERSON, RJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Bruce J. Kuechler, Defendant-Appellant.
    Court of Appeals

      No. 02-1205-CR.

      Submitted on briefs August 22, 2003.

      Decided October 29, 2003.

    2003 WI App 245
    (Also reported in 673 N.W.2d 335.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Charles Bennett Vetzner, assistant state public defender, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and James E. Doyle, attorney general.
    Before Anderson, P.J., Brown and Snyder, JJ.
   ANDERSON, RJ.

¶ 1. Bruce J. Kuechler appeals from a judgment of conviction and an order denying a motion for postconviction relief. Kuechler was convicted of seventh offense operating a motor vehicle while intoxicated (OWI) contrary to Wis. Stat. § 346.63(l)(a) (2001-02). Kuechler argues that the sentencing court erroneously exercised its discretion and violated his constitutional rights by arbitrarily imposing a fine according to a local sentencing guideline and by failing to consider his ability to pay the fine imposed. For the reasons explained below, we affirm in part and reverse in part.

FACTS

¶ 2. After Kuechler's conviction for a seventh offense OWI, the court sentenced him to a three-year term of confinement and a two-year period of extended supervision; he was also sentenced to pay a fine.

¶ 3. In the court's sentencing statement, it concluded that a maximum term of confinement was not required but a maximum "overall sentence" was necessary. The court admonished Kuechler, stating:

[Y]ou, of all people, should have been in a position to know that if you're going to drink you don't get behind the wheel. And you've had so much experience with drunk driving. You, of all people, should know that....
I'm looking at your other criminal record. The fact that you have a lengthy history of OWIs and you have a history of other violent offenses here and other offenses here. And you continue to flagrantly violate the law, despite the fact that you've had all these previous contacts.

The court then summarized the aggravating features of Kuechler's offense:

I think this is an aggravated case considering the BAC; considering the many repeated and recent OWIs; considering your other criminal history; considering the fact that you were driving at this time, one, while you were out on bond for another pending fifth or subsequent OWI offense, and, two, while your license was revoked for an offense from 1999 for which you shouldn't have been driving, for which you were on bond for. Nor should you have been driving for this offense.

Finally, the court explained its reasons for imposing the guidelines:

That suggests to the Court that for me to do anything but what the guidelines call for would be an incredible disregard of the law, the guidelines, what they're meant to do, what they are suggested to do. And I think that would unduly depreciate the seriousness of this offense as well as not adequately protect society.... And I don't — I just — I think that it is — that to do anything but what the guidelines call for would unduly depreciate the risk that [Kuechler's conduct] poses and the seriousness of this offense.

¶ 4. As mitigating factors, the court noted that Kuechler was cooperative with law enforcement, that he was truly remorseful, that he had "finally gotten to the root" of some of his problems and that he had a good employment history.

¶ 5. The court concluded that Kuechler should "pay a fine, according to the guidelines, which is $8,852."

¶ 6. After sentencing, new defense counsel filed a motion for postconviction relief disputing fine-related issues. The motion argued that imposing a fine solely on the basis of the guidelines was both statutorily and constitutionally impermissible; that even if the use of a guideline is proper, the court used the wrong guideline; and that the court erred in not considering Kuechler's ability to pay the fine. The court denied Kuechler's motion. Kuechler appeals his judgment of conviction and the order denying his postconviction motion.

DISCUSSION AND LAW

¶ 7. Sentencing lies within the discretion of the circuit court. State v. Echols, 175 Wis. 2d 653, 681, 499 N.W.2d 631 (1993). In reviewing a sentence, this court is limited to determining whether there was an erroneous exercise of discretion. Id. There is a strong public policy against interfering with the sentencing discretion of the circuit court, and sentences are afforded the presumption that the circuit court acted reasonably. Id. at 681-82.

¶ 8. If the record contains evidence that the circuit court properly exercised its discretion, we must affirm. State v. Cooper, 117 Wis. 2d 30, 40, 344 N.W.2d 194 (Ct. App. 1983). Proper sentencing discretion is demonstrated if the record shows that the court "examined the facts and stated its reasons for the sentence imposed, 'using a demonstrated rational process.'" State v. Spears, 147 Wis. 2d 429, 447, 433 N.W.2d 595 (Ct. App. 1988) (citation omitted). "To overturn a sentence, a defendant must show some unreasonable or unjustifiable basis for the sentence in the record." Cooper, 117 Wis. 2d at 40.

¶ 9. On appeal, Kuechler makes four arguments. We address them in order. First, Kuechler argues that the "selection of the fine here constitutes ... a prohibited mechanistic approach [in violation of State v. Martin, 100 Wis. 2d 326, 327, 302 N.W.2d 58 (Ct. App. 1981)], as the trial judge simply selected the fine by reading an (erroneous) amount from a sentencing grid." We do not agree.

¶ 10. In State v. Jorgensen, 2003 WI 105, ¶¶ 2, 27, 264 Wis. 2d 157, 667 N.W.2d 318, the supreme court made it clear that although local sentencing guidelines are only applicable to prohibited alcohol concentration (PAC) offenses and are not to be robotically applied to OWI offenses, it is not error to make reference to local guidelines when sentencing for an OWI offense. With regard to this issue, the trial court engaged in a proper sentencing colloquy. The trial court's sentencing colloquy applies to both the prison time imposed and to the fine. There is no requirement that a court give separate reasons for imposing jail or prison time than it gives for imposing a fine. It is sufficient that, in the exercise of its sentencing discretion, the court provides reasoning. Therefore, we conclude that it was not error for the court to seek guidance from the local sentencing guidelines.

¶ 11. Second, Kuechler argues that "[e]ven if the size of the fine could be based exclusively on a guideline recommendation, the court here failed to give adequate reasons for choosing the more severe of two alternative guidelines." We disagree. The court exercised appropriate discretion when it chose to impose a fine based on the guidelines that highlighted aggravating factors rather than on the guidelines that highlighted mitigating factors. The court specifically characterized this case as an "aggravated" one and the court identified the factors that led it to that characterization. Thus, the record contains evidence that the trial court properly exercised its discretion and we will not disturb the court's decision. See Cooper, 117 Wis. 2d at 40; see also Spears, 147 Wis. 2d at 447.

¶ 12. Third, Kuechler argues that basing the size of the fine on localized sentencing guidelines violates due process and equal protection. Again, we cannot agree. Just as Jorgensen, 264 Wis. 2d 157, ¶¶ 2, 27, negated Kuechler's first argument, it negates his third: it is not error, and thus not unconstitutional to make reference to local guidelines when sentencing for an OWI offense.

¶ 13. Fourth, Kuechler contends that the trial court imposed the fine without first ascertaining his ability to pay. We agree. Because Kuechler timely raised the issue of ability to pay in his postconviction motion, the trial court had a duty to make a determination on that issue. See State v. Iglesias, 185 Wis. 2d 117, 129, 517 N.W.2d 175 (1994).

¶ 14. The evidence of inability to pay on the part of Kuechler in the court below is unsatisfactory. After Kuechler raised the issue of ability to pay in his postconviction motion, it does not appear in the record that there was a hearing at which Kuechler's ability to pay the fine was determined. "Such a hearing is necessary to avoid an unconstitutional application of the statutes." State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 298, 201 N.W.2d 778 (1972). The only evidence we have is the court's decision on the motion, which does not demonstrate a determination on this issue. This decision states in relevant part:

With respect to the fine imposed, again, the defendant did not receive the maximum possible fine. In addition, the fine is not due immediately or within a time frame that is impossible for the defendant. The defendant will have a lengthy time period to pay the fine imposed. At sentencing, the defendant recognized the fine was part of the law but had no comment on the appropriate fine.

We agree with Kuechler that "[i]t is not clear why the court here stated that Kuechler had a long time to pay the fine." Neither the court's sentencing statement nor its judgment of conviction provided an extended installment payment plan. This portion of the case should he remanded to determine whether Kuechler is able to pay the fine.

¶ 15. Upon remand, the trial court should be mindful of the following. In Pedersen, 56 Wis. 2d at 291-92, and again in Iglesias, 185 Wis. 2d at 129-30, the supreme court cited with approval section 2.7 of the American Bar Association's Standards on Sentencing Alternatives and Procedures:

(c) In determining whether to impose a fine and its amount, the court should consider:
(i) the financial resources of the defendant and the burden that payment of a fine will impose, with due regard to his other obligations;
(ii) the ability of the defendant to pay a fine on an installment basis or on other conditions to be fixed by the court;
(iii) the extent to which payment of a fine will interfere with the ability of the defendant to make any ordered restitution or reparation to the victim of the crime; and
(iv) whether there are particular reasons which make a fine appropriate as a deterrent to the offense involved or appropriate as a corrective measure for the defendant.

Iglesias, 185 Wis. 2d at 130.

¶ 16. Finally, in the future, we strongly advise the courts below to abide by the supreme court's counsel in Pedersen-. "Much time could be saved if trial courts would follow the practice of ascertaining the defendant's ability to pay a fine at the time of sentencing." Pedersen, 56 Wis. 2d at 296.

By the Court. — Judgment and order affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The OWI sentencing guidelines for fifth and subsequent offenses with aggravating factors lists $8,852 as the total financial payment amount. The fine imposed before surcharges and assessments is $6,800.