State v. Joyner

SCHUDSON, J.

¶ 27. (dissenting). The majority's opinion is flawed in two important respects. First, its interpretation of Officer Becker's hearsay testimony is illogical. Second, its analysis of Trudy Joyner's confession is misleading.

*266I. Officer Becker's Testimony

¶ 28. It is undisputed that Officer Becker's testimony provided statements of Shelleen Joyner, and hearsay statements of Trudy Joyner, Wendy Dabney, and Denise Werchowski. It is undisputed that, in their statements, Shelleen, Wendy, and Denise all placed Shelleen in the car and in the area of the crime. It is undisputed that these statements contradicted Shelleen's alibi. And, as the majority acknowledges, "[t]his testimony [from Officer Becker relating the statements of Trudy, Wendy, and Denise] was, of course, inadmissible hearsay." Majority at ¶ 9 n.2. Nevertheless, the majority concludes that Shelleen Joyner was not prejudiced by the admission of this inadmissible hearsay. I disagree.

¶ 29. When a defendant offers an alibi, the defendant's prior inconsistent statement will often torpedo it. When, in addition, that prior inconsistent statement is further propelled by the corroborating statements of the defendant's friends or relatives (who ordinarily would be expected to support the alibi), the alibi will almost always be destroyed. That is exactly what we have here. The inadmissible hearsay destroyed Shelleen Joyner's alibi, thus establishing the "reasonable probability" that, but for her counsel's failure to objéct, the result of her trial would have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984).

II. Trudy Joyner's Confession

¶ 30. Even more troubling, however, is the majority's analysis of Trudy Joyner's confession. The majority writes:

Trudy Joyner's second statement, that "Denise Wer-chowski did the robbery [and] I was in the car," is more complex. At trial, Shelleen Joyner's attorney provided *267the trial court with a copy of Trudy Joyner's "confession," which included this statement. This statement, by itself, however, does not inculpate Trudy Joyner. She merely states that someone else, Werchowski, committed a crime, and, as we have seen, it impliedly relates that "Scrap" was driving. Like the first part, it does not expose Trudy Joyner to criminal liability.
Shelleen Joyner's attorney attached an affidavit from Van Hecke to the postconviction motion. In the affidavit, Van Hecke claims: "Trudy stated that on September 16, 2000, she drove Shelleen's car. Denise Werchowski was a passenger. Denise left the car and returned, running, with a purse." (Emphasis added.) This statement apparently changes the facts — Trudy Joyner admits that she was involved in the purse-snatching by knowingly driving the getaway car after the fact. While this may tend to inculpate Trudy Joyner, Shelleen Joyner's attorney did not explicitly make this offer of proof to the trial court during the trial. Thus, Shelleen Joyner's attorney was, in effect, asking the postconviction court to consider new evidence.

Id. at ¶¶ 19-20 (first and last emphases added; second emphasis — "she drove Shelleen's car" — added in majority opinion; footnote and citation omitted).

¶ 31. If Trudy's confession were as the majority represents in these paragraphs — that Trudy "merely states that someone else, Werchowski, committed a crime" — not only would I agree with the majority's legal conclusion, but I would admonish Joyner's appellate counsel for misrepresenting the record in her brief to this court. Counsel's brief, however, is accurate; the majority's treatment of the record is misleading.

¶ 32. The September 24, 2001 Van Hecke affidavit, submitted in postconviction proceedings, provided no new information on the subject of Trudy Joyner's confession. In fact, the Van Hecke affidavit attached the *268confession, which had been presented to the trial court as Exhibit 5, at the trial, on February 2, 2001. The confession contained far more than the statement, "Denise Werchowski did the robbery [and] I was in the car." Trudy's confession included:

Denise said, "Wait a minute, park here, pull up & wait." She got out & then I heard a yell & then she ran up, "[C]ome on, come on." There was plastic on the back window of the car & I couldn't see behind. She got on the passenger side door (front). "Take off, come on, come on." I thought, "Ok Man, I'm gone, I'm done, I'm th[r]ough." I heard a white man mumbling & . .. Denise had a purse in her hand. When I saw the purse I thought we were in big trouble & I wanted to get out of there.

(Crossed-out words deleted; punctuation added.) While quoting these words, the majority ignores their apparent implication: Trudy, by her own account, was the getaway driver.

¶ 33. The majority's legal analysis works only if, as the majority claims, the quotation, "Denise Wer-chowski did the robbery [and] I was in the car," appears "by itself' as the only statement possibly implicating Trudy. See Majority at ¶ 19. The majority's analysis works only if, as the majority claims, Van Hecke's affidavit, coming many months after the trial, was the first statement saying that Trudy "drove Shelleen's car" Id. at ¶ 20. The majority's analysis works only if, as the majority claims, Van Hecke's affidavit "changes the facts — Trudy Joyner admits that she was involved in the purse-snatching by knowingly driving the getaway car after the fact." Id.

¶ 34. But Van Hecke's affidavit changed nothing. Trudy's written statement, offered at trial (but not received in evidence), contained the words the majority *269all but ignores. And, while one could stretch to interpret them differently, Trudy's words, upon any fair reading, admitted that she was the getaway driver. Thus, the majority's analysis, entirely dependent on its truncated treatment of Trudy's confession, fails.

III. Conclusion

¶ 35. The evidence in this trial included inadmissible hearsay — the statements of Trudy, Wendy, and Denise introduced through Officer Becker's testimony — to which defense counsel did not object, that destroyed Joyner's alibi defense. The evidence in this trial, however, did not include admissible hearsay —Trudy Joyner's confession — which defense counsel attempted to introduce, exculpating Shelleen Joyner and implicating Trudy and Denise.

¶ 36. The supreme court has identified two "factually distinct ways" in which "the controversy may not have been fully tried" such that a new trial is required:

(1) when the jury was erroneously not given the opportunity to hear important testimony that bore on an important issue of the case; and (2) when the jury had before it evidence not properly admitted which so clouded a crucial issue that it may be fairly said that the real controversy was not fully tried.

State v. Hicks, 202 Wis. 2d 150, 160, 549 N.W.2d 435 (1996). In this trial, both "distinct ways" occurred. Trudy Joyner's confession "bore" directly on identification of the robber, and Officer Becker's hearsay testimony "clouded" the issue of whether Shelleen's alibi was credible. Thus, Joyner deserves a new trial in the interest of justice. Accordingly, I respectfully dissent.