COURT OF
APPEALS DECISION DATED AND
RELEASED January
11, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1871-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
RANDAL
H. KUHNKE,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Vernon County: MICHAEL J. ROSBOROUGH, Judge. Reversed and cause remanded with
directions.
DYKMAN,
J. This is a single-judge appeal decided pursuant to
§ 752.31(2)(c), Stats. Randal H. Kuhnke appeals from a judgment
convicting him of operating a motor vehicle while intoxicated, contrary to
§ 346.63(1)(a), Stats., and
operating a motor vehicle after revocation, contrary to § 343.44(1), Stats.
Kuhnke raises two issues on appeal:
(1) whether the trial court erroneously exercised its discretion
when it excluded a statement against interest because under § 908.045(4), Stats.,[1]
it was not corroborated; and (2) whether the court erroneously exercised
its discretion when it gave the falsus in uno jury instruction. We conclude that the court erroneously
exercised its discretion when it excluded the statement against interest
because the court applied the wrong legal standard of corroboration. We also conclude that the court did not
erroneously exercise its discretion when it gave the falsus in uno
instruction. Accordingly, we reverse
the judgment and remand for a new trial.
BACKGROUND
On
the evening of May 27, 1994, Randal Kuhnke had been drinking at a tavern with
his brother, Rick Kuhnke, and other family members. Randal and Rick left the tavern at about 11:30 p.m. and drove
home together in Randal's car.
On
the way home, the car was involved in a one‑car accident. Randal testified that the two of them were
not hurt, and walked to Randal's home.
Chad Kuhnke, Randal's son, testified that he was home when the brothers
arrived and that Rick told him that he wrecked the car. Randal testified that during this
conversation, he was looking for a chain to pull the car.
Randal
and Rick drove back to the scene of the accident in Randal's van. They tried to push the car upright but were
unsuccessful so they returned to Randal's home. Along the way, Randal's neighbors saw the van and noted that Rick
was driving it. The neighbors testified
that Rick drove the van back to the scene of the accident by himself. Rick left the scene before the police
arrived.
Vernon
County Deputy Sheriff Scott Bjerkos went to Randal's home after he learned of
the accident and that the car was registered in Randal's name. At the house, Deputy Bjerkos found that
Randal was intoxicated. He arrested
Randal, and after Randal waived his Miranda rights, he questioned him further
about the accident. Randal said that he
was driving the car at the time of the accident.
Several
days after the accident, Randal told Deputy Bjerkos that he had lied to him on
the night of the accident and that it was Rick, not he, who was driving the car
at the time of the accident. He stated
that the reason he had lied earlier was to protect his brother. Deputy Bjerkos later questioned Rick for the
first time. Rick told Deputy Bjerkos
that he was the driver of the car at the time of the accident. Subsequently, Rick left Wisconsin.
Randal
was charged with driving while intoxicated and driving with a revoked
license. During his trial, he
maintained that he was not the driver on the night of the accident. He offered evidence that Rick admitted to
driving the car when the accident occurred.
The trial court, however, refused to admit the evidence, reasoning that
it did not qualify as an exception to the hearsay rule under § 908.045(4),
Stats., because there was no
"extrinsic corroboration" of Rick's admissions. Moreover, the court gave the falsus in
uno instruction to the jury because Randal lied about a material point in
at least one of his statements. The
jury convicted Randal. Randal appeals.
STATEMENTS AGAINST
INTEREST
The
admissibility of hearsay evidence rests within the sound discretion of the
trial court. State v. Stevens,
171 Wis.2d 106, 111, 490 N.W.2d 753, 756 (Ct. App.), review granted, ___
Wis.2d ___, 494 N.W.2d 210 (1992). A
court erroneously exercises its discretion if its decision is based upon an
erroneous view of law. Id. The question of admissibility of hearsay
evidence is one of law. Id.
Although
hearsay evidence is generally not admissible, under § 908.045(4), Stats., a statement against interest is
admissible if the declarant is not available as a witness. A statement which exposes the declarant to
criminal liability and offered to exculpate the accused must be corroborated. Id. Corroborating evidence of another's confession must permit a
reasonable person to conclude, in light of all of the facts and circumstances,
that the confession could be true. State
v. Anderson, 141 Wis.2d 653, 662, 416 N.W.2d 276, 280 (1987). The trial court should not independently assess
the defendant's credibility when deciding whether testimony sufficiently
corroborates a statement against interest unless the testimony is incredible as
a matter of law. State v.
Anderson, 137 Wis.2d 267, 275, 404 N.W.2d 100, 103 (Ct. App.), aff'd,
141 Wis.2d 653, 416 N.W.2d 100 (1987).
The court should consider the spontaneity of the confession, the
existence of corroboration, the extent to which the hearsay statement is
self-incriminating and against the declarant's penal interest, and the declarant's
availability to testify at trial. State
v. Brown, 96 Wis.2d 238, 243-45, 291 N.W.2d 528, 531-32, cert.
denied, 449 U.S. 1015 (1980). A
statement against interest need not be made to one adverse to the declarant but
it may be made to one united in interest or to a neutral party. Meyer v. Mutual Service Casualty Ins.
Co., 13 Wis.2d 156, 164, 108 N.W.2d 278, 282 (1961).
Rick's
statement subjected him to criminal liability and, therefore, was against his
penal interest. Rick is also
unavailable to testify. To be
admissible, however, his statement must be corroborated. The trial court erred when it concluded that
the standard of corroboration required under § 908.045(4), Stats., is "extrinsic
corroboration." The correct
standard is whether, in light of all of the facts and circumstances, a
reasonable person could find the statement to be true. Anderson, 141 Wis.2d at 662,
416 N.W.2d at 280. After the accident
and on the same night, Rick drove Randal's van several times. Because he drove illegally shortly after the
accident, a reasonable person could conclude that he was doing so at the time
of the accident. Additionally, the fact
that Rick left Wisconsin could lead a reasonable person to believe that Rick was
driving illegally that night, and is now escaping criminal liability. Because the trial court applied the wrong
legal standard to decide the admissibility of this statement against interest,
we conclude that it erroneously exercised its discretion when it excluded
it. Accordingly, we reverse and remand
for a new trial.
FALSUS IN UNO
Randal
argues that the trial court erroneously exercised its discretion when it gave
the jury the falsus in uno instruction.
This instruction provides:
If you become
satisfied from the evidence that any witness has willfully testified falsely as
to any material fact, you may, in your discretion, disregard all the testimony
of such witness which is not supported by other credible evidence in the case.
Wis J I—Criminal 305.
The
falsus in uno instruction is appropriate only if a witness willfully and
intentionally gives a false testimony on a material fact to the case. Ollman v. Wisconsin Health Care
Liability Ins. Plan, 178 Wis.2d 648, 659, 505 N.W.2d 399, 402 (Ct. App.
1993). The falsus in uno
instruction may be appropriate even if a witness later admits to having
testified falsely. Id. at
660-61, 505 N.W.2d at 403. It is inappropriate, however, when there are
mere discrepancies in the testimony that are most likely attributable to
defects of memory or mistake. Id.
at 659-60, 505 N.W.2d at 402. The
decision to give the instruction rests within the broad discretion of the
court. Id. at 658, 505
N.W.2d at 402.
The
trial court knew that Randal admitted to driving the car but later claimed that
he did not. From this, the court could
reasonably conclude that Randal willfully and intentionally gave false
testimony on a material fact to the case—the identity of the driver. Consequently, we cannot conclude that the
court erroneously exercised its discretion when it gave this instruction.
By
the Court.—Judgment reversed
and cause remanded with directions.
Not recommended for
publication in the official reports. See
Rule 809.23(1)(b)4, Stats.
[1] Section 908.045(4), Stats., provides that the following is not excluded by the
hearsay rule if the declarant is unavailable as a witness:
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 ... that a reasonable person in the declarant's position
would 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.