State v. Guerard

2004 WI 85, 682 N.W.2d 12, 273 Wis. 2d 250, 2004 Wisc. LEXIS 450
CourtWisconsin Supreme Court
DecidedJune 29, 2004
Docket02-2404-CR
StatusPublished
Cited by27 cases

This text of 2004 WI 85 (State v. Guerard) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Guerard, 2004 WI 85, 682 N.W.2d 12, 273 Wis. 2d 250, 2004 Wisc. LEXIS 450 (Wis. 2004).

Opinions

DIANE S. SYKES, J.

¶ 1 This case concerns the corroboration requirement for the admission of a hearsay statement against penal interest under Wis. Stat. § 908.045(4) (2001-02).1 The issue arises in the context of a claim of ineffective assistance of trial counsel.

¶ 2. The defendant was convicted of numerous serious felonies in connection with a home-invasion assault, robbery, and theft of guns. The defendant was identified in photo arrays and a line-up by the victim and an eyewitness who was present in the home at the time of the crimes. However, the defendant's brother told his sister and an investigator for the State Public Defender's ("SPD") office that he, not the defendant, committed the crimes, providing a detailed factual description of the events before, during, and after the crimes.

¶ 3. On the day of trial, the defendant's brother invoked his right against self-incrimination and refused to testify. The defense attorney initiated an effort to gain admission of the brother's out — of-court confession to his sister, but inexplicably did not follow through. The attorney, who was the defendant's second counsel, did not seek admission of the brother's additional [257]*257confession to the SPD investigator or alert the circuit court to the existence of that separate statement as corroboration for the brother's confession to his sister. The defendant was convicted and sentenced to 52 years in prison.

¶ 4. The circuit court rejected the defendant's claim of ineffective assistance of counsel, concluding that there was no prejudice because the hearsay statements would have been excluded as insufficiently corroborated by "independent" evidence. The court of appeals affirmed. We reverse.

¶ 5. We conclude that the brother's statements against penal interest were sufficiently corroborated under Wis. Stat. § 908.045(4). The standard for corroboration of hearsay statements against penal interest is "corroboration sufficient to permit a reasonable person to conclude, in light of all the facts and circumstances, that the statement could be true." State v. Anderson, 141 Wis. 2d 653, 660, 416 N.W.2d 276 (1987). This standard can be met in appropriate circumstances by a repetition of the self-inculpatory statement to another witness, and in this sense can be sufficiently "self-corroborating" to be admissible under the statute. The lower courts erred to the extent that they purported to require the proponent of the hearsay statement against penal interest to produce "independent" evidence in order to satisfy the corroboration requirement for admission.

¶ 6. We further conclude that the defendant has carried his burden of demonstrating his trial counsel's ineffectiveness in connection with the failure to gain admission of these admissible hearsay statements exculpating the defendant. Trial counsel's failure to put before the circuit court judge and jury the brother's self-inculpatory statements exculpating the defendant [258]*258was not objectively reasonable, and therefore constituted deficient performance. We also conclude that there is a reasonable probability that, but for trial counsel's error, the result of the proceeding would have been different, and therefore the error was prejudicial.

I. FACTS AND PROCEDURAL HISTORY

¶ 7. Joseph Guerard ("Guerard") was convicted in 1996 in Ozaukee County Circuit Court of one count of armed burglary, one count of armed robbery, one count of aggravated battery, and five counts of theft. The convictions stemmed from a violent break-in of a home in Cedarburg during which one of the residents.was physically assaulted and five guns stolen.

¶ 8. The State built its case around the testimony of the victim, Elizabeth Borchelt. She testified that on the morning of February 23, 1996, a man came to her front door and asked to speak with a person named "Dana." Borchelt told him there was no "Dana" who lived there, and the man departed. Borchelt went upstairs and the man returned a few minutes later, rang the bell, and burst into the home after Borchelt's six-year-old daughter answered the door.

¶ 9. Once inside, the intruder went upstairs where he confronted Borchelt in her bedroom. Borchelt testified that the man was wearing a turtleneck shirt pulled up over his nose and a sweatshirt hood pulled over the top of his head. He demanded that Borchelt get on her bed, which she refused to do. He then made a move that Borchelt interpreted as an attempt to draw a weapon from inside his waistband, so Borchelt grabbed him and pushed him down the stairs. The two struggled at the bottom of the stairs, with Borchelt trying unsuccessfully to force the man through the front doorway. At [259]*259that point, Borchelt testified, the man started hitting her, breaking her nose and bruising her face, ear, and head. He then demanded that she give him the key to the gun cabinet. Borchelt did not have the key, so the man removed a knife from his pants and broke the glass door of the gun cabinet with either the butt or the point of the blade.

¶ 10. The intruder then removed several guns from the cabinet and used one to intimidate Borchelt and her mother, who emerged from her basement bedroom at just this moment. Borchelt's mother placed herself between the intruder and her daughter and told him he could take some money that was lying on the kitchen table. The man grabbed about $8, apologized to Borchelt for hitting her, and fled from the house.

¶ 11. Several days later, Borchelt and her mother identified the defendant, Joseph Guerard, in photo arrays and a line-up. They also identified him in court during the trial as the perpetrator of these crimes.

¶ 12. The strategy of the defense was to argue that Guerard was misidentified; that he was not present when the break-in occurred, and that evidence pointed to his brother, Daniel Guerard ("Daniel"), as the perpetrator. Just before the trial began, Guerard's attorney, Thomas Kurzynski, informed the circuit court judge, the Honorable Tom R. Wolfgram, that Daniel had made a statement to him inculpating himself and exculpating Guerard. The prosecutor reminded the court that Kurzynski could not testify to that statement and also remain as Guerard's counsel. Daniel, in custody on other charges, was brought into court and sworn. Kurzynski began to question him about the inculpatory statement he had made to Kurzynski, and Daniel invoked his Fifth Amendment right against [260]*260self-incrimination. The judge held that Daniel was unavailable to testify under Wis. Stat. § 908.04.

¶ 13. Kurzynski then informed the court that Daniel had also confessed to his sister, Judy Cole, and that Cole was prepared to testify. The parties discussed whether Daniel's admission to Cole was corroborated under Wis. Stat. § 908.045(4), but the discussion was inconclusive.

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Bluebook (online)
2004 WI 85, 682 N.W.2d 12, 273 Wis. 2d 250, 2004 Wisc. LEXIS 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-guerard-wis-2004.