State v. Dorcey

307 N.W.2d 612, 103 Wis. 2d 152, 1981 Wisc. LEXIS 2790

• Court: Wisconsin Supreme Court
• Decided: June 30, 1981
• Docket: 79-1171-CR
• Status: Published

Opinions

STEINMETZ, J.

This case comes before the court on a petition to review, a decision of the court of appeals which affirmed a decision of the circuit court for Milwaukee county, the Honorable Marvin C. Holz, circuit court judge. At issue is the application of evidentiary rules on alleged hearsay and whether the defendant was denied the right of confrontation.

The defendant Patrick J. Dorcey was charged with delivery of cocaine as a party to a crime contrary to secs. 161.16(4), 161.41(1) (b) and 939.05, Stats. A preliminary hearing was held on March 1 and 2,1978, before the Honorable Patrick J. Madden. The state called as a witness Deborah Ropicky who testified that on December 9, 1977, at about 12:45 p.m. she saw the defendant Dorcey at Gerald Eickstaedt’s house in South Milwaukee. Rop-icky testified that she was present in the kitchen with Dorcey and Eickstaedt and she heard them talking. She stated, “I heard Patrick Dorcey say to Gerald Eick-staedt that if the other ounce of cocaine was sold within a couple days, that Pat [Dorcey] would give it to Jerry [Eickstaedt] for $1,850.”

The state then called Officer Glenn Lewis. Lewis was an undercover officer investigating the drug trade at the time in question. He testified that he met Eickstaedt in Eickstaedt’s house on December 9, 1977, at about 11:45 a.m. Lewis was asked to testify as to the contents of a conversation he had with Eickstaedt at that time. Defense counsel objected on the grounds that testimony as to this conversation was inadmissible hearsay and would deprive the defendant of his constitutional right to confront the witnesses against him. In anticipation of this testimony, the defense had already submitted to the court a detailed memorandum explaining the rules of hearsay and arguing against the admissibility of Lewis’s testimony. The court ruled that if the state could show probable cause that a conspiracy existed between Dorcey and Eickstaedt, then hearsay testimony as to Eickstaedt’s statements would be admissible against Dorcey. Eick-staedt was unavailable to testify as he had died six weeks before the preliminary hearing.

Officer Lewis then testified that Eickstaedt had offered to sell Lewis up to two ounces of cocaine for $2,-150 per ounce. Lewis expressed a desire to buy one ounce. Eickstaedt stated this would cause some problem, since he thought Lewis wanted to buy two ounces and that he would have to make a phone call to work it out. According to Lewis, Eickstaedt stated that he had a source who could supply “top shelf” cocaine and that if Lewis would give Eickstaedt the money, Eickstaedt would take the money to the source and return in a few minutes with the drug. Lewis refused to give Eickstaedt the money until he saw the cocaine. Eickstaedt then went to the telephone and Lewis testified that he overheard Eick-staedt as follows:

“He stated, T have a dude here who wants to buy some cocaine; he only wants one ounce.’ There was a pause. He stated, ‘He won’t front me the money.’ Another pause. He said, ‘I’ll meet you a half a block from the liquor store in about ten minutes,’ and terminated the conversation.”

Eickstaedt then told Lewis that he would return in 15 minutes. Lewis observed Eickstaedt leave the house and drive away in a Buick Riviera at about 12:05 p.m. Eick-staedt returned about 12:20 p.m. He removed his gloves and inside one glove was a plastic bag with some white powder in it. Lewis gave Eickstaedt $2,150 and left the house with the powder, which was later determined to be cocaine.

The state called two other officers to testify. Officer Richard Tarczynski testified that at 11:45 a.m. he saw Eickstaedt and Lewis enter Eickstaedt’s house and that at 12:05 p.m. he saw Eickstaedt leave the house, enter a Buick, drive a few blocks and park. At 12:20 p.m. he saw the same Buick parked in the driveway of Eick-staedt’s house and at 12:50 p.m. he saw both the Buick and a Pontiac LeMans parked in the driveway.

Officer George Hegerty testified that at 12:10 p.m. he saw Eickstaedt parked in a Buick Riviera on Park Place, a few blocks from Eickstaedt’s house. He saw a Pontiac LeMans driven by the defendant Dorcey park directly behind Eickstaedt’s car. According to Hegerty, Dorcey got in the front seat of the Buick next to Eickstaedt. The two appeared to converse. Dorsey then returned to his own car and both cars drove away.

The court ruled that there was probable cause that a conspiracy existed between the defendant and Eickstaedt and that consequently the testimony of Officer Lewis was admissible.

Before the trial court the defense again moved to exclude Officer Lewis’s account of what Eickstaedt said. The court ruled that this testimony was admissible as the statement of a co-conspirator and that it was reliable since Eickstaedt’s statements were against , his penal interests. Deborah Ropicky, Lewis and the other officers gave substantially the same testimony at trial as at the preliminary hearing.

The defendant was convicted of one count of delivery of a controlled substance as party to a crime and sentenced to the state prison for an indeterminate term of not more than one year.

The court of appeals affirmed the judgment, stating that the testimony of Officer Lewis was admissible as a statement by Eickstaedt against his penal interests under sec. 908.045(4), Stats.' The court of appeals ruled that there was no constitutional bar to the admissibility of the testimony in question. The appellant-petitioner also raised several other issues before the court of appeals which he chose not to argue on this review. The issues before this court are: (1) Was the testimony of Officer Lewis admissible under the Wisconsin Rules of Evidence (ch. 908, Stats.), and (2) if admissible under the statutes, was it barred by the Confrontation Clauses of the United States and Wisconsin Constitutions?

RULES OF EVIDENCE

The trial court found that the testimony of Officer Lewis was admissible as a statement of a co-conspirator. Under the general rule, hearsay testimony is not admissible. Sec. 908.02, Stats., states:

“908.02 Hearsay rule. Hearsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute.”

Sec. 908.01 (4) (b) 5, Stats., provides:

“908.01 Definitions. The following' definitions apply under this chapter:

“(4) Statements which aee not hearsay. A statement is not hearsay if:

“(b) Admission by party opponent. The statement is offered against a party and is:

“5. A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.”

Under this rule statements of a co-conspirator made “during the course and in furtherance of the conspiracy” are admissible against any or all parties to the conspiracy. By definition such statements do not constitute hearsay and are therefore outside the rule which excludes hearsay testimony. Bergeron v. State, 85 Wis.2d 595, 612, 271 N.W.2d 386 (1978). In order for the statements to be admissible, however, it must be established that there is a conspiracy between the declarant and the party to the suit. Not all of the elements of the substantive crime of conspiracy need be proven, however, and the defendant need not be charged with conspiracy. 22A C.J.S., Criminal Law sec. 758b (1961); Caccitolo v. State, 69 Wis.2d 102, 230 N.W.2d 139 (1975); O’Neil v. State, 237 Wis. 391, 296 N.W. 96 (1941). The quantum of proof required is a prima facie showing, that is, “the declarations of one coconspirator will not be received against another until a prima facie case of a conspiracy has first been made.” State v. Timm, 244 Wis. 508, 518, 12 N.W.2d 670 (1944); see also Gelosi v. State, 215 Wis. 649, 255 N.W. 893 (1934); 22A C.J.S., Criminal Law sec. 760b (1961); contra see United States v. Gil, 604 F. 2d 546, 548 (7th Cir. 1979); McCormick, Evidence 645 (2d. 1972).

The conspiracy upon which admissibility depends must be proven independently of the hearsay testimony at issue. “Otherwise, hearsay would lift itself by its own bootstraps to the level of competent evidence.” Glasser v. United States, 315 U.S. 60, 75 (1942); Federal Life Ins. Co. v. Thayer, 222 Wis. 658, 667, 269 N.W. 547 (1936). However, the conspiracy may be proved by circumstantial evidence, Gelosi v. State, supra at 654, and the court may hear the disputed testimony first, contingent upon a later showing that there was a conspiracy. United States v. Halpin, 374 F.2d 493 (7th Cir. 1967); Schultz v. State, 133 Wis. 215, 113 N.W. 428 (1907). If the conspiracy is established, the declarations of one co-conspirator are admissible against another whether or not they were made in the presence of a co-conspirator. 22A C.J.S.; Criminal Law secs. 775, 776 (1961); State v. Timm, supra.

Finally, since the rule is limited to statements made “during the course and in furtherance of the conspiracy,” it is necessary to determine when the conspiracy began and ended. As we stated in Bergeron v. State, supra at 613:

“The issue of the admission of inadmissible hearsay is dependent upon a factual question as to when the conspiracy began and terminated. The trial court must rule on the admissibility of such statements or acts. This ruling has the weight of any other finding of fact, and will be dealt with as such on appeal. Schultz v. State, 125 Wis. 452, 104 N.W. 90 (1905). Just as the termination of a conspiracy cannot be determined by a hard and fast rule, neither can the commencement. Commencement and termination must be determined by the particular facts in each case. State v. Adams, 257 Wis. 433, 43 N.W.2d 446 (1950). A conspiracy commences with an agreement between 2 or more persons to direct their conduct toward the realization of a criminal objective and each member of the conspiracy must individually and consciously intend the realization of the particular criminal venture. Additionally, each conspirator must have an individual stake in the conspiracy. State v. Nutley, supra at 556.”

In the present case the record shows that all of the above requirements were fulfilled. According to the state’s evidence, Lewis went to Eickstaedt’s house to purchase cocaine. Eickstaedt left the house for 15 minutes and upon his return sold Lewis one ounce of the drug. Surveillance officers observed Eickstaedt and the defendant meet in a car during the time that Eickstaedt was gone from his house. Deborah Ropicky testified that a short time after Lewis left the house she saw the defendant in the house and heard him tell Eickstaedt that if he could sell the other ounce, he would give it to Eickstaedt for $1,850. At that time surveillance officers saw the defendant’s car in Eickstaedt’s driveway. This evidence is sufficient to establish a prima facie case of conspiracy, so far as the rules of evidence are concerned.

The petitioner has argued that the statements by Deborah Ropicky are not admissible to prove the existence of a conspiracy because her observations occurred after the sale and thus after the termination of the conspiracy. This argument must fail because it is based on an excessively narrow concept of the commencement and termination of a conspiracy, a concept we rejected in Ber-geron. “Commencement and termination [of a conspiracy] must be determined by the particular facts in each ease.” Bergeron, supra at 613. In the present ease the lower courts viewed a statement made by the defendant shortly after the sale of the first ounce and relating to the sale of the second ounce as part of an ongoing conspiracy between the defendant and Eickstaedt to sell cocaine. This ruling “has the weight of any other finding of fact, and will be dealt with as such on appeal.” Bergeron, supra at 613. On appeal, findings of fact will be upheld unless contrary to the great weight and preponderance of the evidence. In the present case the findings are not contrary to the evidence and thus we affirm the lower courts’ finding of a conspiracy between Eick-staedt and the defendant.

Although the lower court stated the standard as one of probable cause that a conspiracy existed rather than as a prima facie case of conspiracy, it is apparent that there is sufficient evidence to sustain a finding of conspiracy under either standard.

We conclude that evidence was presented apart from Lewis’s account of what Eickstaedt said which was sufficient to establish the fact of conspiracy. Under sec. 908.01(4) (b) 5, Stats., therefore, Lewis’s account of Eick-staedt’s statements was admissible and it is not controlling that they were made out of the presence of the co-conspirator, Dorcey.

CONFRONTATION CLAUSE

The Sixth Amendment to the United States Constitution provides, in part:

“In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.”

Art. I, sec. 7 of the Wisconsin Constitution provides, in part:

“In all criminal prosecutions the accused shall enjoy the right... to meet the witnesses face to face.”

The provisions of the Sixth Amendment are applicable to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400 (1965).

The relationship between the Confrontation Clause and the rules of hearsay was most recently explained by the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56 (1980). In that case the court reiterated its ruling that the confrontation clause bars the admission of some hearsay evidence. Roberts, Id. at 63; California v. Green, 399 U.S. 149, 156-57 (1970). It also made it clear that the Confrontation Clause was not intended to abrogate all the exceptions to the rule which declares hearsay inadmissible. Roberts, supra at 63.

The court described two. principles for determining whether or not absent witness statements are barred by the Sixth Amendment. In the words of the court:

“The Confrontation- Clause operates in two separate ways to restrict the range of admissible, hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. See Mancusi v. Stubbs, 408 U.S. 204 (1972); Barber v. Page, 390 U.S. 719 (1968). See also Motes v. United States, 178 U.S. 458 (1900); California v. Green, 399 U.S., at 161-162, 165, 167, n. 16.

“The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the fact-finding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.’ Snyder v. Massachusetts, 291 U.S., at 107.” Roberts, supra at 65.

In the present case the declarant, Gerald Eickstaedt, died six weeks before the preliminary hearing. It is thus indisputable that he was not available to testify at the preliminary hearing or the trial and the “rule of necessity” is satisfied. The second qualifying principle is concerned with the “trustworthiness” of the hearsay evidence. On this principle the court stated:

“The principle recently was formulated in Mancusi v. Stubbs:

“ ‘The focus of the Court’s concern has been to insure that there “are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,” Dutton v. Evans, supra, at 89, and to “afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,” California v. Green, supra, at 161. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these “indicia of reliability.” 408 U.S., at 213.’

“The Court has applied this ‘indicia of reliability’ requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the ‘substance of the constitutional protection.’ Mattox v. United States, 156 U.S., at 244 ....

“In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing or particularized guarantees of trustworthiness.” Roberts, supra at 65-66. (Emphasis supplied.)

The exception which allows the admission of hearsay statements made by a co-conspirator is well-rooted in Wisconsin law. Almost 90 years ago the Wisconsin Supreme Court stated:

“The principle is well established that evidence of the acts and declarations of co-conspirators, if made pending the conspiracy, and in furtherance of, or with reference to, the common design, are admissible against all . . . .” Baker v. State, 80 Wis. 416, 420, 50 N.W. 518 (1891).

The statements of Eickstaedt related by Officer Lewis being in furtherance of a conspiracy with the defendant were not hearsay (sec. 908.01 (4) (b) 5, Stats.). However, they must face the challenge of the defendant’s constitutional right to confrontation and cross-examination. The declarant in this casé, Eickstaedt, never testified against the defendant since he had died before the preliminary examination. The other test for receiving Eickstaedt’s statements in evidence is one of trustworthiness. As we said in State v. Olson, 75 Wis.2d 575, 588-91, 250 N.W.2d 12 (1977):

“The confrontation right is not absolute. However valuable to the accused, the right gives way to other legitimate considerations in the criminal trial process. As we said in Lenarchick, the United States Supreme Court appears to have concluded that there are instances where even though there is no face-to-face confrontation, the due process and confrontation requirements are satisfied. Under some circumstances it appears that an uncross-examined statement is clothed with special indicia of trustworthiness. The hearsay rule and its exceptions may at times satisfy the degree of trustworthiness, but the satisfaction of the hearsay requirements does not necessarily satisfy the confrontation rule. Determining whether the right to confront and to cross-examine must give way in any particular instance ‘calls into question the ultimate “integrity of the fact-finding process” and requires that the competing interest be closely examined.’ Courts have balanced such factors as: whether the witness is unavailable and the prosecution has made good faith and reasonable efforts to procure the witness; whether the evidence has high standards of assurance of reliability or trustworthiness; whether the evidence is admissible under an exception to the hearsay rule; whether the statements introduced are subject to divergent views; whether there is high probability of assurance that the cross-examination of the witness would not cast any doubts on the admitted statements; whether the defendant’s objection to the evidence was raised via other testimony during the trial; whether the defendant had been afforded prior opportunities for cross-examination of the witness; whether the evidence is collateral or probative of an element of the crime; whether the evidence ties the defendant directly to the crime; and whether the practical considerations of convenience and speedy trials outweigh the inconvenience of producing the witness.”

As we stated in State v. Olson, supra at 588-89, quoting from 5 Wigmore, Evidence, sec. 1397, at 184-85 (Chad-bourn Rev. 1974):

“In this line of cases, it is clear that the Court has refused to equate the Sixth Amendment’s confrontation clause and any particular version of the hearsay rule— ancient or modern. The net result is acknowledgement by the Court of the possibility of legitimate expansion and supplementation of the classically recognized exceptions, with however the corollary possibility of disapproval of the application in some circumstances of the recognized exceptions. Perhaps we can expect nothing more definite in this area than a case-by-case approach, which takes into account in each case such factors (e.g., ‘indicia of reliability’) as proved influential with the Dutton Court. This may produce nothing more precise or predictable than the ‘totality of the circumstances’ standard once so widely used in the area of confessions law .... Nevertheless, it will probably not be gainsaid that uncertainty as to the permissible dimensions of any system of hearsay law is preferable to permanently constitution-alizing or freezing that law into its ancient molds.”

The indicia of reliability in the totality of circumstances in this case are that the statements of Eickstaedt related by Officer Lewis have a high standard of assurance of trustworthiness. They were made in furtherance of a conspiracy with the defendant and were made by him in the presence of Lewis whom he did not know to be an officer at the time.

The statements were against Eickstaedt’s penal interests (sec. 908.045(4), Stats., supra, n. 1) and did not inculpate the defendant by name. None of Eickstaedt’s statements testified to by Officer Lewis identified the defendant Dorcey as his co-conspirator. Dorcey’s involvement in the crime was proven circumstantially by the observations of others than Eickstaedt and inferentially by considering Eickstaedt’s statements. Under these circumstances, it is extremely unlikely that Eickstaedt’s statements were merely an invention by him designed to inculpate Dorcey in a crime he did not commit.

Another indicium of the trustworthiness of Eick-staedt’s statements was provided by the testimony of Deborah Ropicky. She stated at trial her observations of Eickstaedt and Officer Lewis (whom she knew as A1 but did not know to be an officer at that time) together at Eickstaedt’s house. She observed Eickstaedt leave the house and then return. Upon returning the two men went to the basement and then Lewis left the house. These physical observations were all consistent with Officer Lewis’s testimony of the circumstances surrounding Eick-staedt’s statements. She then testified that a short time after Lewis left the house, Dorcey arrived and Eickstaedt and Dorcey were together in the house when she heard the defendant’s statement regarding the second ounce of cocaine.

The trial court properly allowed Officer Lewis to testify as to the statements of Eickstaedt to him and those made in his presence over the phone.

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