With Us or Against Us?: Court of Appeals Finds Alternate Suspect Confession Inadmissible

Similar to Federal Rule of Evidence 804(b)(3), Wisconsin Statute Section 908.045(4) provides an exception to the rule against hearsay for

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 or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, 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.

In State v. Amonoo, 2014 WL 4976615 (Wis.App. 2014), the trial court prevented the defendant from presenting a statement against interest. But was that statement corroborated?

In Amonoo, a jury convicted Kwesi Amonoo on two counts of attempted first-degree intentional homicide and four counts of first-degree recklessly endangering safety while armed for a shooting in front of a Kohl’s food store. Thereafter, he filed a postconviction motion, claiming that the trial court erred by precluding him from admitting a confession by an alternate suspect who had committed suicide.

That statement was contained in two affidavits by Marcus Johnson. The first one stated stated, in pertinent part, “I have been trying to locate Kwesi Amonoo for years now to tell him that David Walker confessed to the shooting that Kwesi Amonoo was incarcerated for.” The second one stated

At Myrtle Pirant’s house on the eastside of Milwaukee in April 1995, I met with David Walker. He confessed to me that Kwesi was in jail for a crime that he (David) committed. He said that he shot some “ricans” in retaliation for something they did to him. David confessed this to me, my fiancée, Myrtle, Sesi and Simeon. [H]e then went on to say that he robbed a store called Al’s on Center street. He said that he stole Al’s gun, a 38 and thats the gun he used to get at the rican with that jumped him at school. Immediately upon seeing Mr. Amonoo I relayed this information to him.

So, should these affidavits and/or Johnson’s testimony concerning Walker’s statements been admitted at trial? According to the Court of Appeals of Wisconsin, the answer is “no”:

Here, it is evident that Walker’s “confession” is insufficiently corroborated. Neither affidavit contains any description of Walker explaining when or where he committed the crime to which he was supposedly confessing. Both Sanders’ and Johnson’s descriptions of the confession are vague as to why Walker would have committed the shooting. Neither affidavit offers any details about the circumstances under which Walker confessed or why he might have done so. There is no explanation for why Sanders or Johnson waited seventeen years—from the apparent time of confession in April 1995 until swearing their affidavits in October and November 2012—before revealing Walker’s confession. Sanders, for instance, claims to have tracked down Amonoo through the internet “in hopes of correcting this injustice,” even though she might have accomplished the same objective by providing her information to police or the district attorney at the time she first acquired it. Johnson provided his information “[i]mmediately upon seeing Mr. Amonoo,” but does not indicate when or where that encounter occurred. Accordingly, no reasonable person would believe Walker’s supposed statements to be true, so those statements are insufficiently corroborated and inadmissible as statements against interest.

I’m not saying that I disagree with this conclusion, but I’m not sure that I’m on board with all of its reasoning. First, the second affidavit does give a a reason why Walker would have committed the shooting: He said he shot the “rican…that jumped him at school.” Second, while it is true that Walker did not give a location of the shooting, he said that it was accomplished with a .38 he stole from a store called Al’s on Center Street. That seems like some good facts that could be corroborated. Now, maybe those facts weren’t corroborated, which was the problem. But if there was evidence that the gun used was a .38, that’s pretty good corroboration. If Al’s on Center Street could be located and there were records that it was robbed at the relevant time, that would be even better. Did any of this happen? The opinion doesn’t make any of that clear.

-CM