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July 1, 1983


Review of a decision of the Court of Appeals. Reversing and remanding Louis J. Ceci, J. Shirley S. Abrahamson, J. (in Agreement).

The opinion of the court was delivered by: Ceci

The defendant, Augustus Marshall (Marshall), was convicted of one count of first-degree murder, party to a crime, contrary to secs. 940.01 and 939.05, Stats., and two counts of attempted murder, party to a crime, contrary to secs. 939.32, 940.01, and 939.05. Marshall's motion for a new trial was denied by the Honorable MICHAEL D. GUOLEE, Circuit Judge of Milwaukee County.

This review of an unpublished decision of the court of appeals presents the question of the admissibility of testimony by Arthur Johnson (Johnson) regarding a statement allegedly made by Elijah Jackson (Jackson) to the defendant after the murder occurred. Johnson testified that Marshall wanted Jackson to give him (Marshall) some money. According to Johnson, Jackson then angrily informed Marshall that he would not pay Marshall because Marshall had "hit" the wrong guy. Johnson testified that Marshall responded that he had put his life on the line anyway and that everyone started shooting, and he had to shoot his way out of the place. This testimony was received over Marshall's hearsay objection.

The court of appeals concluded that the confrontation clause of the Sixth Amendment *fn1 barred Johnson's testimony about the Marshall-Jackson conversation, reversed the judgment of conviction and order denying post-conviction relief, and remanded for a new trial. Because we conclude that the evidence contained sufficient indicia of reliability, we reverse and remand to the court of appeals for its decision on the remaining issues Marshall raised at that level.

During the morning hours of October 28, 1979, at an after-hours place in Milwaukee, there was an exchange of gunfire which ultimately resulted in the death of Ryan Kent Baxter and the wounding of Mary Polk and Eddie Young.

During the trial before a jury, the prosecution's theory was that the defendant was a contract killer out to kill Sonny Carter, but, due to several other persons becoming involved in the incident, the wrong people were shot. At Marshall's trial, several people gave testimony about the facts surrounding the shootings. While there were some differences in their accounts of what transpired at the after-hours place that morning, there was general agreement among the eyewitnesses who testified regarding the following facts.

According to the eyewitnesses who testified, the shootings at Groovy People's International, the after-hours place, occurred at approximately 8:00 a.m. on October 28, 1979. The defendant and Bruce Jones, both armed with pistols, entered the barroom area of the club from the hallway and stood near the bar, about one or two feet from Baxter, one of the victims. The two men talked to Baxter. Soon thereafter, Marshall grabbed Baxter, and two shots were fired. One seemed to be louder than the other, as though it were fired from a different gun. The club patrons scrambled for cover in the corner and behind the bar.

After Baxter fell to the floor, Eddie Young, one of the patrons, fired one or two shots toward the two men with his own weapon. The two men then fired a series of shots; Young and Mary Polk were wounded as a result.

One witness, Adolph Tate, testified that before the shootings he was on the second floor of the club, where he saw Marshall, Bruce Jones, and an unidentified third man surround Sonny Carter. Tate testified that Arthur Johnson was not the third man. All three men had guns drawn. They escorted Carter down the stairs. Marshall told Tate to stay out of it and not to follow them downstairs. A short time later, Tate heard a couple of shots and then several more.

Upon hearing the shots, Tate proceeded to a porch area on the roof near the front of the building. From there he observed Marshall, Jones, and the unidentified third man jump out of a side window on the first level and leave in a late-model, black Cadillac with Wisconsin license plates. Tate explained that the club's doors were kept locked so that one had to push a "bottom button" in order to open the door when exiting.

Arthur Johnson testified for the prosecution regarding a statement he gave to police while he was imprisoned. The substance of that statement formed the basis for his testimony at Marshall's trial.

Johnson testified that at the time in question, he owned a black 1974 Cadillac Seville, which was registered in his wife's name, and that he was a fugitive from a halfway house in Milwaukee. On a Saturday evening, October 27, 1979, he met Marshall and Jones at a disco club, where Jones asked if they could borrow his car for $100 to go to Racine. Johnson agreed, and the two men dropped him off at his home, where he remained for the rest of the evening.

Marshall and Jones returned the car to Johnson's home the following morning and asked him to drive them to their next destination. Johnson drove them and a third man, "Sly," to the residence of Elijah Jackson. Johnson had previously become acquainted with Jackson when he (Johnson) made drug purchases. All four men entered the house, and Johnson seated himself in a separate area of a large room while the others talked. Johnson testified that the others talked about a shooting, and Jackson appeared to be angry as he told Marshall that he (Jackson) could not pay him $1,000, since he hit the wrong guy, not Sonny Carter who was supposed to get shot. According to Johnson, it appeared Carter had "beat" Jackson out of some drugs, and Jackson had hired some people to "take care of" Carter. When Jackson said that he could not pay Marshall that kind of money, since Marshall had hit the wrong guy, Marshall responded that he had put his life on the line anyway and that everyone had started shooting and he had to shoot his way out of there. It was Johnson's understanding that Jackson had informed Marshall, Jones, and Sly that Carter would be at Fishman's (another name for Groovy People's International) and that they were expected to kill him. Johnson later drove Marshall, Jones, and Sly to a second location where some phone calls were made. After taking them back to Jackson's house, Johnson went home alone.

Marshall took the stand in his own defense and gave a different account of what happened. He testified that on the morning in question, he and Jones were out with their girl friends when they met Johnson and his wife and sister at about 1:30 a.m. Johnson's sister was taken home, and the three couples later used Johnson's car to go to Groovy People's International. They went upstairs, where Jones talked to Sonny Carter about a cocaine sale. Marshall, Jones, and Johnson then left the club and went to another house to get some cocaine which Carter had agreed to purchase. Jones picked up a .22 caliber pistol, and Johnson said he was going to get a gun from his trunk. When they returned to the club, Carter refused to buy the cocaine. Jones then pulled his pistol and said he was taking Carter outside to beat him up. Marshall denied having a gun, but admitted telling Adolph Tate and others to stay out of it.

According to Marshall, Johnson stayed with Carter while he and Jones went to the back room to find someone with a key. Marshall testified that he picked up Baxter's gun, which was dropped during Baxter's struggle with Jones. He stated that he only fired the gun once -- at a man in the corner who was firing at him. Johnson testified that neither he nor Jones shot Baxter.

According to Marshall, he and Jones kicked out a window and ran to the car, where they met Johnson. Marshall testified that they did not go to Elijah Jackson's house and that he had never discussed with Jackson either killing Carter or taking out a contract on anyone.

At trial, the defense counsel objected that Johnson's testimony about what Jackson said to Marshall was inadmissible because it was hearsay. No objection on any other basis was made, and the prosecution did not come forth with its own theory of admissibility. The trial court ruled that the evidence was not hearsay because it was not offered to prove the truth of the matter asserted. The trial court reasoned that Johnson's testimony concerning Jackson's statements would be admitted to explain the context of Marshall's statements:

"All right. The Court allowed that in. I think it's part of the general background of why a conversation of this type would take place where somebody was hired to kill somebody and comments. The jury will determine whether or not this is a fact, whether or not they'll believe Mr. Johnson's testimony, but it goes in as the whole scenario of why somebody would be involved in contract killings and that type of thing, so the Court allowed it for that reason. It goes to the total picture, and I think it is relevant to that issue. The jury will be the ultimate determiner of the credibility of that witness and whether or not that actually happened."

At the close of the trial, the jury returned verdicts finding Marshall guilty of one count of first-degree murder and ...

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