COURT OF APPEALS DECISION DATED AND FILED April 29, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Derek Monroe Williams, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Wedemeyer, Fine and Kessler, JJ.
¶1 PER CURIAM. Derek Monroe Williams
appeals from the circuit court order denying his motion for postconviction
relief under Wis. Stat. § 974.06 (2005-06).[1] He argues that he is entitled to retroactive
application of the rule that testimonial statements from an unavailable witness
are inadmissible unless the defendant has had a prior opportunity to
cross-examine the declarant. See Crawford v. Washington, 541
Background
¶2 In 1995, Williams was charged with multiple counts of armed robbery as party to a crime. James Evans, one of Williams’s two co-defendants, gave a custodial statement implicating himself and Williams in the crime spree. The circuit court conducted a Miranda-Goodchild hearing to determine the admissibility of the statement.[2] Evans testified at the hearing, but the court did not offer Williams an opportunity for cross-examination. At the conclusion of the proceeding, the court ruled that Evans’s statement was given freely and voluntarily after receipt of Miranda warnings and was, therefore, admissible in the State’s case-in-chief against each defendant.
¶3 In 1997, the matter proceeded to a jury trial on twelve
counts of armed robbery. Evans did not
testify at trial, but two
¶4 Williams appealed his convictions pursuant to the no-merit
procedure of Wis. Stat. Rule
809.32 (1997-98), and Anders v.
¶5 In 2004, the United States Supreme Court held that
testimonial hearsay is inadmissible as violative of the Confrontation Clause, U.S. Const. amend. VI, unless the
declarant is unavailable and the defendant previously had a fair opportunity
for cross-examination. Crawford,
541
¶6 The circuit court denied the motion, holding that Williams
did not show prejudice from his trial counsel’s failure to raise a Confrontation
Clause challenge to Evans’s statement.
We affirm, but on different grounds.[4] See
State
v. Holt, 128
Discussion
¶7 “‘The Confrontation Clause of the
¶8 At the time of Williams’s trial, Wisconsin courts determined
the admissibility of out-of-court statements under the Confrontation Clause by
applying the analysis of Ohio v. Roberts, 448 U.S. 56 (1980),
overruled by Crawford, 541 U.S.
36. See
State
v. Hale, 2005 WI 7, ¶¶44-52, 277
First, the witness must be “unavailable” at trial. Second, the statement of the unavailable witness must bear adequate “indicia of reliability.” This second prong could be inferred without more in a case where the evidence fell within a firmly rooted hearsay exception or upon a showing of “particularized guarantees of trustworthiness.”
¶9 In 2004, the United States Supreme Court changed
Confrontation Clause analysis. See Jensen, 299
¶10 Williams raises his claim in a collateral attack on his
conviction, not a direct appeal. See State ex rel. Warren v. Schwarz, 219
¶11 The Crawford rule does not fall within a Teague exception. See
Whorton
v. Bockting, 549
¶12 Williams contends that we may apply the Crawford rule
retroactively as a matter of Wisconsin’s state constitutional jurisprudence
even though the rule does not apply retroactively as a matter of federal
law. We reject the contention. Our supreme court “has unequivocally decided”
that
¶13 In his reply brief, Williams suggests for the first time on
appeal that he should be granted a new trial in the interests of justice
pursuant to Wis. Stat. § 752.35. We do not consider arguments raised for the
first time in a reply brief. See Northwest Wholesale Lumber, Inc. v. Anderson,
191
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] See Miranda v.
[3] The Honorable Diane S. Sykes presided over Williams’s pretrial and trial proceedings. The Honorable William W. Brash, III presided over Williams’s postconviction motion.
[4] On
appeal, Williams does not contend that his trial counsel was ineffective. We deem the issue abandoned, and we do not
address it. See Adler v. D&H Indus., Inc., 2005 WI App 43, ¶18, 279