State v. Anderson

WILLIAM A. BABLITCH, J.

The State of Wisconsin (State) seeks review of a court of appeals’ decision ordering a new trial for the defendant, John Mann Anderson (Anderson).

Anderson was convicted on several counts relating to his possession of a short-barreled shotgun. At trial, Anderson contended that his possession of the gun was privileged. In support of this defense, he sought to introduce two out-of-court statements made by his brother Luther. The statements exculpated Anderson and subjected Luther to criminal liability.

The trial court excluded the statements primarily on the grounds that they lacked sufficient corroboration. The court of appeals reversed, finding sufficient *656corroboration. We hold that the standard of corroboration required by sec. 908.045(4), Stats., is corroboration sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true. The record discloses such facts. Accordingly, we affirm.

Anderson was found guilty by a jury and convicted of possession of a short-barreled shotgun, sec. 941.28, Stats., possession of a firearm by a felon, sec. 941.29(2), and obstruction of justice, sec. 946.41(1). The conviction arises from an incident occurring on the evening of March 9, 1987, when Anderson and his brother, Luther Anderson (Luther) were at a bar. Anderson, who was the only defense witness at trial, testified to the following sequence of events.

Luther was in the basement of the bar gambling while Anderson was upstairs drinking. A gambling dispute subsequently erupted between Luther and another man whom Luther believed had cheated him of three dollars. Luther pulled a short-barreled shotgun from his briefcase and pointed the gun at the man. Anderson came downstairs, grabbed the gun from Luther, and told the man to run. Luther and Anderson then left the bar, with Anderson carrying Luther’s briefcase containing the gun. Anderson refused to give the briefcase to Luther in light of Luther’s earlier intentions to use the gun. While walking away, the police spotted Anderson carrying the briefcase, and saw him set the briefcase down. The police seized the briefcase and arrested them both.

Anderson and Luther were arrested two blocks from the bar. When questioned by the police, both brothers denied knowing each other and gave false names. Luther’s name, however, was on the brief case and on personal papers inside the case. There was no *657police investigation of the events at the bar. Anderson was charged with three counts: possession of a short-barreled shotgun, possession of a firearm by a felon and obstructing an officer. Luther was not charged and was released from custody.

At trial, Anderson based his defense on the theory that his possession of the gun was privileged because it was necessary for the protection of a third person. In support of this defense, Anderson attempted to introduce statements made by Luther to their mother a day after the incident and to Anderson’s attorney several days later, stating that Anderson had intervened during the gambling dispute and took the gun from Luther to prevent Luther from shooting someone. The court held that Luther’s extrajudicial statements were hearsay and were inadmissible as statements against penal interest primarily because the statements lacked corroboration.

The jury found Anderson guilty of all charges. Anderson appealed his conviction on the first two counts, arguing that the statements were admissible under sec. 908.045(4), Stats., which states:

”908.045 Hearsay exceptions; declarant unavailable. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
"(4) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant’s position *658would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated. ” (Emphasis added.)

The court of appeals reversed the trial court judgment and ordered a new trial. The court of appeals found that the trial court had erroneously excluded the statement against interest and that such error was not harmless. The State filed a petition for review, challenging the court of appeals’ interpretation of the corroboration requirement, which was granted on April 7, 1987.

Section 908.045(4), Stats., provides, in part, that a "statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated.” The central issue before us is the extent of corroboration required by the statute. Because this issue presents a question of statutory construction, a question of law, the court may decide the matter independently and without deference to the determinations of the trial court and court of appeals. City of Madison v. Donohoo, 118 Wis. 2d 646, 651, 348 N.W.2d 170 (1984).

The various standards for admitting statements against penal interest, offered to exculpate an accused, fall along a spectrum of admissibility. At one end of the spectrum, all statements against penal interest are admissible with no corroboration whatsoever. Such a permissive approach to admissibility is founded on the notion that the nature of any statement that is against penal interest per se provides sufficient assurance of trustworthiness for admissibility purposes. Note, Declarations Against Penal Inter*659est: Standards of Admissibility Under An Emerging Majority Rule, 56 B. U. L. Rev. 148, 176-77 (1976).

By contrast, the restrictive end of the spectrum limits admissibility to those statements which the defendant can show, through corroboration, to be true. See State v. Larsen, 91 Idaho 42, 49, 415 P.2d 685 (1966) (where prior to the adoption of federal rule 804(b)(3), Idaho required evidence that "clearly indicated” that the declarant was guilty of the crime for which the accused was on trial). Jurisdictions such as Idaho, which have used this stringent corroboration standard for admissibility, have done so based on a belief that statements against penal interest are inherently untrustworthy and should only be admissible when all doubt of their falsity has been removed. Note, Declarations Against Penal Interest: What Must Be Corroborated Under The Newly Enacted Federal Rule Of Evidence, Rule 804(b)(3)?, 9 Val. U. L. Rev. 421, 438 (1975).

In the present case, the State asserts that the corroboration standard of sec. 908.045(4), Stats., should be interpreted consistent with the federal standard of "corroboration clearly indicating the trustworthiness of the statement.” (Emphasis added.) Fed. R. Evid. 804(b)(3).1 We disagree.

*660The stringency of the federal corroboration standard places it close to the restrictive end of the admissibility spectrum. See United States v. Barrett, 539 F.2d 244, 253 (1st Cir. 1976) (where the court, applying federal rule 804(b)(3), required corroboration which "solidly” indicated the trustworthiness of the statement); United States v. Satterfield, 572 F.2d 687, 693 (9th Cir. 1978) cert. denied, 439 U.S. 840 (1978) ("corroborating circumstances must do more than tend to indicate the trustworthiness of the statement; they must clearly indicate it")(emphasis in original); Note, 56 B. U. L. Rev. at 173 (referring to the federal rule as establishing "[o]ne of the strictest corroboration requirements”).

Wisconsin’s corroboration standard is, by comparison, less stringent. From the language and history of sec. 908.045(4), Stats., and taking into consideration the general policies regarding the hearsay exceptions, a defendant’s constitutional right to present a defense, and the respective roles of judge and jury in determining admissibility and assessing credibility, we conclude that the standard of corroboration is corroboration sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true.

The language and history of sec. 908.045(4), Stats., suggest that Wisconsin has taken a less restrictive approach to admissibility than the federal standard. The statute provides, in part, that a statement against *661penal interest offered to exculpate an accused is not admissible "unless corroborated.” This language is facially different from the federal rule which imposes the requirement of corroborating circumstances which "clearly indicate the trustworthiness of the statement.” (Emphasis added.) Fed. R. Evid. 804(b)(3). Nothing in the language of sec. 908.045(4) suggests the federal standard of "clearly” indicating trustworthiness.

Additionally, it is notable that Wisconsin never adopted the language or approach of the present federal corroboration standard for statements against penal interest. The limited history of sec. 908.045(4), Stats., indicates that the State Judicial Council modeled the Wisconsin rule after the language of a United States Supreme Court draft of federal rule 804(b)(3) which used the language, "unless corroborated.” Minutes of Wisconsin Judicial Council Meeting, March 17, 1973, and April 27,1973; see also House Comm, on the Judiciary, Report on the Federal Rules of Evidence, H.R. Rep. No. 650, 93rd Cong., 1st Sess. (1973), reprinted in, 1974 U.S. Code Cong. & Ad. News 7075, 7089. This draft was referred to as requiring only "simple corroboration” of the statement’s trustworthiness. Id. However, the House Judiciary Committee believed that statements against penal interest exculpating an accused were especially suspect and required "some further provision ensuring trustworthiness.” Id. The House Committee concluded that the proposed simple corroboration standard would not accomplish this purpose and subsequently modified the draft rule by increasing the corroboration requirement to include the present language of federal rule 804(b)(3). Id. In the interim, Wisconsin adopted sec. 908.045(4) in June of 1973. Wisconsin Rules of Evi*662dence 59 Wis. 2d R2. Federal consideration of the more stringent standard occurred later in 1973, with the eventual enactment of rule 804(b)(3) occurring in 1974. See generally Tague, Perils of the Rulemaking Process: The Development, Application, and Unconstitutionality of Rule 804(b)(3)’s Penal Interest Exception, 69 Geo. L. Rev. 851, 889-92 (1981). Notwithstanding this change in the language of the federal standard, Wisconsin has not followed the federal initiative by increasing the corroboration requirement of sec. 908.045(4).

The standard we enunciate today of corroboration sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true, is consistent with the general policies of the hearsay exceptions. The hearsay exceptions represent a balance between the need for evidence to ascertain truth and the exclusion of untrustworthy evidence. Note, 9 Val. U. L. Rev. at 429; Chambers v. Mississippi, 410 U.S. 284, 298-99 (1973); 5 Wigmore, Evidence secs. 1422, 1477 (Chadbourn rev. 1974); Note, Evidence: Admission of Third Party’s Declaration Against Penal Interest, 48 Marq. L. Rev. 249, 252-53 (1964); Dillenberg v. Carroll, 259 Wis. 417, 422, 49 N.W.2d 444 (1951).

The critical need for hearsay evidence, in particular statements against penal interest, is especially apparent in criminal trials where the exclusion of a statement exculpating an accused could result in an erroneous conviction. See generally 5 Wigmore, Evidence sec. 1477 (noting that a rule which excludes statements against penal interest exculpating an accused is, in the context of a criminal trial, "shocking to the senses of justice”); Donnelly v. United States, *663228 U.S. 243, 277-78 (1913) (Holmes, J., dissenting). In Chambers v. Mississippi, the United States Supreme Court recognized the necessity of admitting such statements in a criminal trial. Chambers v. Mississippi, 410 U.S. at 302. The Court struck down a Mississippi law which prevented the defendant from introducing exculpatory statements against penal interest. The Court noted that the testimony was critical to the defense and stated that "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense.” Id. Similarly, this court has historically recognized the evidentiary need for declarations against interest. Truelsch v. Miller, 186 Wis. 239, 248, 202 N.W. 352 (1925), cited in the Judicial Council Committee’s Notes to sec. 908.045(4), Stats., 59 Wis. 2d R318 (where the court, when considering a precursor to the exceptions of sec. 908.045(4), noted that statements against interest are "sometimes the only mode of proof available ...”); Dillenberg v. Carroll, 259 Wis. at 422, cited in the Judicial Council Committee’s Notes to sec. 908.045(4), 59 Wis. 2d R318 (where the court cites with approval the statement that, "'[t]he theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable. ...’”).

We recognize that this need for evidence is tempered by a countervailing concern for the exclusion of untrustworthy statements. Note, 9 Val. U. L. Rev. at 429. A specific concern associated with statements against penal interest, offered to exculpate an accused, is that the accused or the declarant, or both, may have a motive to fabricate the statement. See Fed. R. Evid. 804(b)(3) advisory committee’s note; C. McCormick, Law of Evidence sec. 278 (2d. ed. 1972); 5 *664Wigmore, Evidence secs. 1476, 1477. Thus, to circumvent this risk, federal law and most state laws have imposed some corroboration requirement in addition to the requirement that the statement tends to subject the declarant to criminal liability. See generally 4 J. Weinstein & M. Berger, Weinstein’s Evidence: Commentary on Rules of Evidence for the United States Courts and Magistrates (hereinafter referred to as Weinstein), 804(b)(3) [03] at 804-157 (1987); 5 Wig-more, Evidence sec. 1476 at 354 n. 9 (Supp. 1987).

The enunciated standard achieves a proper balance between these competing policy concerns. It acknowledges the sometimes critical need for the hearsay statement by not subjecting the defendant to an insurmountable evidentiary hurdle for admissibility. Note, 9 Val. U. L. Rev. at 440; Note, 56 B. U. L. Rev. at 174 (proposing that courts applying the federal rule should adopt a flexible approach toward admissibility so that the corroboration requirement does not arbitrarily exclude valuable evidence). It reduces the risk of fabrication by requiring that the statement itself permits a reasonable person to conclude in light of all the facts and circumstances that the statement could be true. We note also that other safeguards exist for circumventing fabrication. For example, the judge may exclude the hearsay statement if the judge finds that its probative value is outweighed by its tendency to mislead to jury. Section 904.03, Stats.

Moreover, this standard preserves an accused’s constitutional right to present evidence, a right established under Chambers v. Mississippi. In Chambers, the Supreme Court held that due process required the admission of hearsay testimony, excluded by the trial court under state hearsay statutes, because the testimony possessed persuasive assurances of trustworth*665iness and was essential to the defense. Chambers, 410 U.S. at 302. The Court enunciated a series of factors which would constitutionally compel the admission of hearsay testimony, one of which is the existence of evidence corroborating the statement. Id. at 300-01. While the precise contours of this corroboration standard aré unclear, the Court impliedly approved the draft of the federal rule requiring simple corroboration. Id. at 299 n. 18 (where the Court states that "exclusion [of statements against penal interest] would not be required under the newly proposed Federal Rules of Evidence [Supreme Court draft Rule 804]”). (Footnote omitted.)

Because Wisconsin’s corroboration standard is modeled after the United States Supreme Court draft rule and our interpretation of the standard facilitates rather than restricts the defendant’s ability to present evidence, it is constitutionally consistent with Chambers. Arguably, our standard may be more consistent with the defendant’s constitutional right to present evidence than is the more stringent federal standard. One commentator has argued that the latter is constitutionally suspect because it appears to impose a greater evidentiary burden on the defendant than is permissible under Chambers. Tague, 69 Geo. L. Rev. at 1006.

Finally, the enunciated standard maintains the jury’s role of assessing credibility and determining weight while properly limiting the judge’s role to a threshold admissibility determination of whether a reasonable person could conclude, in light of all the facts and circumstances, that the statement could be true. The question before the judge is not whether the judge personally believes the statement is true, but *666rather whether there is sufficient corroboration for a reasonable person to conclude that it could be true. Wisconsin law recognizes that it is the jury’s function to assess the credibility of witnesses and to weigh the evidence. Bode v. Buchman, 68 Wis. 2d 276, 289, 228 N.W.2d 718 (1975); State v. Brown, 96 Wis. 2d 238, 245-47, 291 N.W.2d 528 (1980). By not requiring evidence which "clearly” indicates trustworthiness, our standard does not thrust the judge into the jury’s role of assessing credibility and weighing evidence. Thus, it preserves the respective roles of the judge and jury. Note, 56 B. U. L. Rev. at 154; cf. United States v. MacDonald, 688 F.2d 224, 233 (4th Cir. 1982), cert. denied, 459 U.S. 1103 (1983)(where the court noted that the judge shares the jury’s responsibility of weighing the evidence when he or she makes an admissibility determination under rule 804(b)(3) because of the high risk of fabrication). In contrast, the more restrictive corroboration standard of the federal rule has been criticized for stripping the jury of this customary function. Tague, 69 Geo. L. Rev. at 1000; Weinstein, 804(b)(3) [03] at 804-146.

Therefore, given that a less restrictive corroboration standard is indicated by the language and history of sec. 908.045(4), Stats., advances the purposes of preventing fabrication without unduly hampering the admission of the hearsay statement, is constitutionally consistent with Chambers, and does not usurp the jury’s role of judging credibility, we conclude that sec. 908.045(4) should not be interpreted consistent with the federal rule. To the extent that Ryan v. State, 95 Wis. 2d 83, 96, 289 N.W.2d 349 (Wis. Ct. App. 1979), adopted the federal corroboration standard when determining the admissibility of statements against *667penal interest, it is overruled. In overruling the court of appeals’ adoption of the federal corroboration standard, we note that our ruling in this case shall have prospective effect only, except that this ruling shall apply to this case and to other cases which have not been finalized on the date of the release of this opinion. For a. case to be finalized, there must be a judgment of conviction, sentence, and exhaustion of rights of appeal. La Claw v. State, 41 Wis. 2d 177, 187, 163 N.W.2d 147, 165 N.W.2d 152 (1968).

We note that our standard is consistent with the approaches of other courts and commentators who have not followed the language of the federal rule. See People v. Settles, 46 N.Y.2d 154, 169-70 (1978) (requiring "supportive” evidence sufficient to establish a "reasonable possibility that the statement might be true”); United States v. Goodlow, 500 F.2d 954, 958 (8th Cir. 1974) (where the court did not apply the higher corroboration requirement of the federal rule but instead required, "corroborative circumstances giving an aura of trustworthiness to the statements”); see also 5 Wigmore, Evidence sec. 1422 (who speaks of a "probability of trustworthiness” as an adequate guarantee for hearsay generally); Weinstein 804(b)(3) [03] at 804-141 (who proposes a standard which requires, in part, corroboration indicating that the statement "could be true”); Note, 56 B. U. L. Rev. at 175-76 ("[bjecause the defendant need only create a reasonable doubt in the minds of the jurors to justify acquittal, a declaration should be admitted whenever there is a reasonable possibility that the declarant committed the crime.”). (Footnote omitted.)

We now consider the application of the standard to the undisputed facts presented on review. The *668application of a statute to undisputed facts is a question of law. Thus, this court owes no deference to the decision of the lower courts when deciding such matters. Ball v. District No. 4, Area Board, 117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984).

Reviewing the relevant undisputed facts of the record we find that there were more than sufficient facts and circumstances for a reasonable person to conclude that Luther’s statements could be true. Specifically, there was independent evidence linking Luther to the crime: Luther was at the scene of the crime; he was arrested two blocks from the bar; and the briefcase had his name on it and contained his personal papers. Additionally, the gun handle was protruding from the briefcase at the time of arrest, thus, supporting the testimony that Anderson had quickly placed the gun in the briefcase after removing it from Luther.2

*669Therefore, the trial court erred by ruling that Luther’s statement against penal interest lacked sufficient corroboration. Given that Luther’s statement, if believed, could have resulted in Anderson’s exoneration from the convictions he is appealing, we find that the exclusion of this testimony was not harmless error and warrants a new trial. State v. Dyess, 124 Wis. 2d 525, 546-47, 370 N.W.2d 222 (1985).

Although our conclusion and the facts considered were identical to that of the court of appeals, we note that our respective statements of the corroboration standard differ. See State v. Anderson, 137 Wis. 2d 267, 274, 404 N.W.2d 100 (Wis. Ct. App. 1987). To the extent that the court of appeals’ standard deviates from the language of our standard, it is modified.

By the Court. — The decision of the court of appeals is affirmed.

Fed. R. Evid. 804(b)(3):

" (b) Hearsay exceptions.—
"The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
"(3) Statement against interest.—
"A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he *660believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." (Emphasis added.)

The dissent suggests that this corroboration is inadequate in light of our previous decision in State v. Sharlow, 110 Wis. 2d 226, 327 N.W.2d 692 (1983). However, the dissent’s reliance on Sharlow is puzzling. At the time the defendant, Sharlow, was tried and convicted, the hearsay exception for statements against penal interest, sec. 908.045(4), Stats., was not yet effective and, therefore, was not applied by this court. In fact, under the rules applied in Sharlow, statements against penal interest were not even recognized as a hearsay exception and were inadmissible unless the exclusion of such evidence was violative of the defendant’s constitutional rights, as established under Chambers. Sharlow, 110 Wis. 2d at 232. While the Chambers decision provides a benchmark for evaluating the constitutionality of an evidentiary standard, the United States Supreme Court did not establish a specific evidentiary requirement for corroboration. Therefore, our decision in Sharlow has no bearing on our application of the corroboration standard of sec. 908.045(4) in the present case.