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COURT OF APPEALS
DECISION
DATED AND FILED
December 30, 2009
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
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IN COURT OF
APPEALS
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DISTRICT IV
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State of Wisconsin,
Plaintiff-Respondent,
v.
Derek N. Anderson,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Jefferson County: william
f. hue, Judge. Affirmed.
Before Lundsten, Higginbotham and Bridge, JJ.
¶1 PER CURIAM. Derek Anderson, formerly
known as Andrew Krnak, appeals a judgment, entered upon a jury’s verdict,
convicting him of first-degree intentional homicide. Anderson
also appeals the order denying his motion for postconviction relief. Anderson
argues: (1) the admission of hearsay
evidence violated his right to confrontation; (2) the trial court violated his
due process rights by allowing the jury to consider whether the police altered
evidence; and (3) the trial court erred by admitting expert testimony regarding
mass murderers. Anderson also claims he is entitled to a new
trial in the interest of justice. We
reject Anderson’s
arguments and affirm the judgment and order.
Background
¶2 Anderson’s
immediate family, including Allen Krnak (his father), Donna Krnak (his mother),
and Thomas Krnak (his brother), disappeared with the family dog on or around
July 2, 1998. Anderson
claimed he last saw them as they were preparing to leave their home in Jefferson County
for their cabin in Waushara
County over the Fourth of
July holiday. In December 1999, Allen’s
skeletal remains were found in a remote, wooded area less than ten miles from Western Carolina
University, in North Carolina. Anderson
had previously attended the university and hiked where Allen’s remains were
found. Allen died as a result of blunt
force trauma to the head and face, inflicted by a club or other similar
instrument.
¶3 The State charged Anderson
with first-degree intentional homicide for the murder of his father. Anderson’s
pretrial motion to exclude certain evidence was denied. After a jury trial, Anderson was found guilty of the crime
charged and sentenced to life in prison.
His motion for postconviction relief was denied, and this appeal
follows.
Discussion
I. Admission Of Hearsay Testimony
¶4 Anderson
argues that the trial court violated his right to confrontation by admitting
hearsay evidence. “In all criminal
prosecutions, the accused shall enjoy the right ... to be confronted with the
witnesses against him [or her] ....” U.S.
Const. amend. VI. Whether the admission of evidence violates an
accused’s right to confrontation is a question of law that this court reviews
independently. State v. Williams, 2002
WI 58, ¶7, 253 Wis.
2d 99, 644 N.W.2d 919. The first step in
analyzing a confrontation violation claim is to determine whether the
challenged statement is testimonial or non-testimonial. See
Crawford
v. Washington, 541 U.S.
36, 68 (2004).
¶5 The Confrontation Clause bars admission of an out-of-court testimonial statement unless the
declarant is unavailable and the defendant had a prior opportunity to examine
the declarant with respect to the statement. Id. at 68-69;
State
v. Jensen, 2007 WI 26, ¶15, 299 Wis.
2d 267, 727 N.W.2d 518. The Crawford Court
set forth three formulations for determining whether a statement is
testimonial. Crawford, 541 U.S. at
51-52. Relevant to this appeal, hearsay
is testimonial if the statement was “‘made under circumstances which would lead
an objective witness reasonably to believe that the statement would be
available for use at a later trial.’” Id. at 52
(citation omitted).
A. Donna Krnak’s Statements To Karen Anderson
¶6 Anderson
challenges the admission of statements his mother, Donna, made to Karen
Anderson (no relation). At the pretrial
hearing on Anderson’s
motion to exclude evidence, Karen testified that she befriended Donna while
staying at the same campground. Karen
further testified that, after knowing each other for approximately one year,
Donna came to her campsite and said:
“Karen, I have to be honest with you.
I told you I only had one son, but I have two sons.” Karen testified that Donna then proceeded to
read her a letter from Anderson that included
language to the effect of: “If I ever
get the money to come back to Wisconsin,
I’ll do away with you all.” Karen
testified that, after reading the letter, Donna expressed fear for her life and
that of her family, and further made Karen swear she would not tell anybody
about the letter.
¶7 We conclude that these statements were non-testimonial as
they were not made under circumstances that would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.
See
id. Statements made to loved ones or acquaintances,
like Karen, are not the memorialized type of statements that Crawford
addressed. See Jensen, 299 Wis. 2d 267, ¶32
(citing State v. Manuel, 2005 WI 75, ¶53, 281 Wis. 2d 554, 697 N.W.2d 811). Additionally, Karen was not a governmental agent,
and there was no reason to believe that Donna expected Karen to report her
statements to the police. See Jensen, 299 Wis. 2d 267, ¶32. On the contrary, Donna pled with Karen not to
tell anybody. Donna was simply confiding
in Karen about her concerns regarding Anderson. “By all indications, the conversation was
confidential and not made with an eye towards litigation.” Manuel, 281 Wis. 2d 554, ¶53.
¶8 Having concluded that these statements were non-testimonial, we
must nevertheless assess them under Ohio v. Roberts, 448 U.S. 56
(1980). Manuel, 281 Wis. 2d 554, ¶¶3, 60. To determine admissibility of non-testimonial
statements: (1) the declarant must be
unavailable at trial; and (2) the declarant’s statements must “bear[ ] adequate
‘indicia of reliability’ [, which] 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.’” Id., ¶61 (quoting
State
v. Hale, 2005 WI 7, ¶45, 277 Wis. 2d
593, 691 N.W.2d 637, in turn citing Roberts, 448 U.S. at 66). Because Donna was unavailable for
trial—having disappeared in July 1998—we turn to the second inquiry.
¶9 To evaluate whether statements contain particularized
guarantees of trustworthiness, this court considers the “‘totality of the
circumstances, but ... the relevant circumstances include only those that
surround the making of the statement and that render the declarant particularly
worthy of belief.’” Id.,
¶68 (quoting State v. Weed, 2003 WI 85, ¶25, 263 Wis. 2d 434, 666 N.W.2d
485, in turn quoting Idaho v. Wright, 497 U.S. 805, 819
(1990)). “‘Some factors that have been
considered in assessing the reliability of a statement include spontaneity,
consistency, mental state, and a lack of motive to fabricate.’” Id.
(citation omitted). Further, “we examine
whether the statement is so trustworthy that adversarial testing would add
little to its reliability.” Id.
(internal quotations and citations omitted).
¶10 Here, the record reveals no apparent motive for Donna to falsely
accuse Anderson
of sending her a threatening letter. As
the State aptly points out, the admission that one’s own son threatened to “do
away” with his family could be a source of embarrassment and is not the type of
thing one would usually fabricate. The
record supports a conclusion that Donna volunteered these statements to Karen
in confidence. Moreover, Donna’s
admission of having initially lied to Karen about Anderson’s existence is another indicator of
reliability. In light of the totality of
the circumstances, we conclude that Donna’s statements contain sufficient
particularized guarantees of trustworthiness.
¶11 To the extent Anderson
contends that Donna’s statement to Karen on a later occasion rendered all of
Donna’s statements inadmissible, we are not persuaded. Karen testified that, several months after
the conversation in which Donna read her the letter from Anderson, Donna told
Karen to remember the letter if something happened to her. When Donna initially read the letter,
however, she made Karen swear she would not tell anybody about the letter. The fact that Donna, months later, told Karen
to remember the letter if something happened to her cannot retroactively
transform Donna’s earlier statements from non-testimonial to testimonial.
¶12 Although Donna’s subsequent request for Karen to remember the
letter if something happened to her is arguably testimonial, we conclude that
any error in admitting the statement was harmless because the statement itself
says nothing about the letter’s contents or the identity of its sender. See
Delaware
v. Van Arsdall, 475 U.S.
673, 684 (1986) (Confrontation Clause errors subject to harmless-error
analysis). Moreover, any error was
inconsequential to the evidence of Anderson’s
guilt, see id. at 684, and does not
undermine our confidence in the conviction, see
Williams,
253 Wis. 2d
99, ¶50.
B. Allen Krnak’s Statements To Patricia Ellifson
¶13 Next, Anderson
challenges the admission of statements his father, Allen, made to a co-worker,
Patricia Ellifson. Although Anderson concedes the
statements are non-testimonial, he claims they lack particularized guarantees
of trustworthiness. We are not
persuaded. Ellifson testified that she
met Allen when she began working at the same company as him in May 1991. According to Ellifson, she knew Allen had a
son named Thomas, but never knew he had a second son until a conversation that
occurred in January or February of 1998. At that time, Ellifson was complaining to
Allen about the moody behavior of her son when Allen remarked, “Makes you want
to kill your kid before he kills you.”
Ellifson also testified that, in April 1998, she again mentioned her
son’s moodiness, and Allen asked whether her son had ever threatened her. When Ellifson responded, “No. Why?,” Allen stated that his son had tried to
kill him by clubbing him with something when he came home from work one
night. When Ellifson inquired whether
Allen had told anyone and asked what he was going to do, Allen “just kind of
shrugged his shoulders and said, ‘At least you know how you are going out of
this world, how you are going to die.’”
When Ellifson asked if Allen was referring to his son, Thomas, Allen
clarified that he was talking about Anderson.
¶14 Like Donna’s initial conversation with Karen about the letter, Allen’s
statements to Ellifson were volunteered in confidence. The statements were made spontaneously to a
friend who was experiencing problems with her adult son, and nothing suggests that
Allen expected Ellifson to share his comments with anyone. On the contrary, when Ellifson questioned
what Allen was going to do about it, his response indicated he was resigned to
his fate. Anderson nevertheless challenges the
trustworthiness of Allen’s statements on the ground that Allen’s recollection
regarding important details may have faded by the time he relayed information
about the attack to Ellifson. Anderson further intimates
that Allen may have misperceived the event.
We are not persuaded. That Allen
did not specify what Anderson tried to club him
with does not render Allen’s statement ambiguous, and we fail to see how Allen
could have misperceived Anderson’s
attack. As with Donna’s decision to
share the letter, we conclude that Allen’s admission that his own son tried to
kill him was potentially a source of shame and not the type of thing one would typically
fabricate. Therefore, under the totality
of the circumstances, we conclude that Allen’s statements to Ellifson contain
sufficient particularized guarantees of trustworthiness to satisfy Anderson’s right to
confrontation.
II. Claimed Due Process Violation
¶15 Next, Anderson
argues that the trial court violated his due process rights by allowing the
jury, rather than the court, to determine whether police altered evidence. Three weeks after the Krnaks disappeared,
police seized the mileage logbook for a family truck. The Krnaks kept logbooks containing mileage
information for each of their vehicles. When
the logbook was seized, the truck’s odometer read 127,452 miles. According to the State, the truck’s last
mileage log, dated approximately one week before the family disappeared, read
124,834 miles—a difference of approximately 2,600 miles. The round-trip distance from the Krnak home
in Wisconsin to the site of Allen’s remains in
North Carolina
is approximately 1,623 miles.
¶16 Anderson
moved to exclude the mileage log on the ground that the State had tampered with
it. Specifically, Anderson argued that various documents
generated before he was charged with the killing indicated that the subject
entry in the mileage log had a number missing from the thousandth column. In other words, the last mileage entry in the
log “says 12 and there is a space and there is 834.” An officer testified, however, that the
apparent omission of the “4” in copies of the log was due to poor photocopying
of the original book. The officer
testified that his copy and the original log showed the mileage to be
“124,834.”
¶17 Anderson
argues the trial court violated his due process right by allowing the jury to
determine whether the mileage log had been altered. According to Anderson, the log should not have been
admitted unless the court first found that the entry had not been altered. As the party challenging admission of the log
on due process grounds, Anderson
had the burden of proving that the log had been altered. Cf.
State
v. Drew, 2007 WI App 213, ¶12, 305 Wis. 2d 641, 740 N.W.2d 404. Here, the trial court found that Anderson had not met his
burden of proving that the State tampered with the logbook. Therefore, the logbook’s credibility and
weight were matters properly submitted to the jury. See State v.
Bowden, 2007 WI App 234, ¶14, 306 Wis. 2d 393, 742 N.W.2d 332.
III. Admission Of Expert Testimony Regarding
Family Annihilators
¶18 Anderson also challenges the admission of expert testimony by Dr.
Thomas O’Connor, an associate professor of Justice Studies and Applied
Criminology at North Carolina Wesleyan College.
O’Connor testified about different types of mass murderers, including a
category described as the “family annihilator.”
O’Connor opined that the motivation for the family annihilator “is
usually expressive rather than instrumental” and that “[t]he family annihilator
usually kills all of the members of the family and even the family pet.” When asked which member of a family is
typically the family annihilator, O’Connor replied that “there’s some profiling
literature to suggest that the eldest son in a family is more likely to display
those kinds of motivation characteristics.”
O’Connor further explained that the family annihilator may not view the
family members as family but, rather, may distance himself from the victims,
viewing them as strangers. O’Connor
additionally testified that the killing of a family pet “represents another
expressive act in … an internal last act of defiance or last act of rage by the
offender.”
¶19 Whether to admit proffered expert testimony rests in the trial
court’s discretion. State v. Shomberg, 2006
WI 9, ¶10, 288 Wis.
2d 1, 709 N.W.2d 370. Our review of a trial court’s exercise of discretion is
deferential, and we apply the erroneous exercise of discretion standard. Id.,
¶¶10-11. The trial court’s exercise of
discretion will not be overturned if the decision had “a reasonable basis,” and
if the decision was made “‘in accordance with accepted legal standards and in
accordance with the facts of record.’” State
v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983)
(citation omitted). Further, a reviewing
court may search the record for reasons to sustain a trial court’s exercise of
discretion. Id. at 343.
¶20 Anderson
argues that, because he was charged with killing only his father, evidence
regarding mass murderers and their motivation was irrelevant. Alternatively, Anderson contends that O’Connor’s testimony
was of such marginal relevance that its probative value was outweighed by its
prejudicial effect. Even if we assume
the court erred by admitting O’Connor’s testimony, we conclude that its
admission was harmless. See State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985)
(test is whether there is a reasonable possibility that the error contributed
to the conviction).
¶21 On cross-examination, defense counsel effectively attacked
O’Connor’s direct testimony, as O’Connor conceded he had never published
anything about family annihilators and, before the present trial, had not been
qualified to testify as an expert on the family annihilator typology. O’Connor, who was paid $2,000 for his
preliminary research and appearance at trial, testified that, after the State
initially contacted him, he spent 200 hours reviewing animal cruelty literature
in an attempt to determine how killing a family pet “tied in” to the family
annihilator typology. O’Connor, however,
admitted that, in a 2001 book titled Mass
Murder in the United States, a chapter devoted to family annihilators did
not mention killing the family pet as a hallmark of this type of mass
murderer. Similarly, O’Connor conceded
that other experts in the field did not mention anything about the oldest male
child when discussing family annihilators.
¶22 O’Connor additionally acknowledged that there was no data to
support this mass murderer typology and no theory to explain the causal
components. Rather, the typology
“lead[s] to a theory eventually.” O’Connor’s
direct testimony was further eroded on cross-examination when he could not
recall the details of case studies he claimed to be familiar with. Ultimately, O’Connor indicated: “[T]he content of what I came here to talk
about today was mostly theoretical and typological and not necessarily case
based.” The State made no effort to
rehabilitate O’Connor, instead choosing to forgo redirect examination.
¶23 Given defense counsel’s effective cross-examination, it is
doubtful the jury gave much weight to O’Connor’s testimony. Moreover, in light of the properly admitted
evidence, including the statements regarding Anderson’s
threat to the family and a previous attempt to kill his father, we are
convinced that there is no reasonable possibility that O’Connor’s testimony
contributed to Anderson’s
conviction. See Dyess, 124 Wis.
2d at 543.
IV. New Trial In The Interest Of Justice
¶24 Alternatively, Anderson
seeks a new trial under Wis. Stat. § 752.35
(2007-08),
which permits us to grant relief if we are convinced “that the real controversy
has not been fully tried, or that it is probable that justice has for any
reason miscarried.” Anderson invokes the first basis for relief,
that the real controversy was not fully tried.
In order to establish that the real controversy has not been fully
tried, Anderson
must convince us “that the jury was precluded from considering ‘important
testimony that bore on an important issue’ or that certain evidence which was
improperly received ‘clouded a crucial issue’ in the case.” State v. Darcy N.K., 218 Wis. 2d 640, 667, 581 N.W.2d 567 (Ct. App. 1998) (quoting
State
v. Hicks, 202 Wis.
2d 150, 160, 549 N.W.2d 435 (1996)). An
appellate court will exercise its discretion to grant a new trial in the
interest of justice “only in exceptional cases.” State v. Cuyler, 110 Wis. 2d 133, 141, 327
N.W.2d 662 (1983).
¶25 Here, Anderson argues that the jury had before it evidence not
properly admitted which so clouded a crucial issue that it may fairly be said
that the real controversy was not fully tried.
The crux of Anderson’s argument is that the admission of expert
testimony and evidence regarding family annihilators clouded the real issue in
this case by effectively placing him on trial for the murders of his entire
family—not just his father. As discussed
above, any error in admitting expert testimony regarding family annihilators
was harmless in this case. We have
likewise rejected Anderson’s challenge to the
admission of testimony regarding the letter in which Anderson threatened to kill his entire
family. “Adding them together adds
nothing. Zero plus zero equals
zero.” Mentek v. State, 71 Wis. 2d 799, 809, 238
N.W.2d 752 (1976).
¶26 To the extent Anderson
challenges the prosecutor’s opening and closing remarks accusing Anderson of killing his
entire family, Anderson forfeited this argument by failing to object to these
statements at trial. See State v. Seeley, 212 Wis. 2d 75, 81, 567 N.W.2d 897 (Ct. App. 1997). Moreover, the jury was instructed that the
attorneys’ arguments, conclusions, and opinions are not evidence. “We presume that the jury follows the
instructions given to it.” State
v. Truax, 151 Wis.
2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989).
Accordingly, we conclude that there is no reason to exercise our
discretionary authority under Wis. Stat. § 752.35 to
grant Anderson
a new trial.
By the Court.—Judgment and order
affirmed.
This opinion
will not be published. See Wis. Stat. Rule 809.23(1)(b)5.