State v. Jensen

Wisconsin, State Plaintiff-Appellant-Cross-Respondent,

Mark D. Jensen, Defendant-Respondent-Cross-Appellant.

Supreme Court 11, argument January No. Oral 2004AP2481-CR. February

Decided 2007 WI 26 (Also 518.) in 727 N.W.2d reported plaintiff-appellant-cross-respondent For the Moeller; by Marguerite argued assistant M. cause was Peggy general, A. attorney on the briefs with whom general. Lautenschlager, attorney defendant-respondent-cross-appellant there For the Fitzgerald, Glynn, by Craig Albee and W briefs were argument Strang, S.C., Milwaukee, and oral &Albee Craig Albee. W. us case comes before WILCOX, J. This P 1. JON pursuant appeals bypass petition court of

on a (2005-06). (Rule) § The State 809.60 Stat. Wis. County appealed Kenosha an order Wisconsin denying Judge, Schroeder, E. Court, Bruce Circuit (Julie) admissibility police of Julie Jensen's letter to the message and her voicemail and other oral statements to (Kosman). Officer Ron Kosman The defendant, Mark D. (Jensen), cross-appealed Jensen the same order of the denying circuit court his motion to exclude statements neighbor, Wojt (Wojt), Julie made to her Tadeusz and (DeFazio). teacher, her son's Theresa DeFazio ¶ 2. We affirm the order of the circuit court as to rulings admissibility its initial on the of the various Washington, statements under 541 U.S. 36 (2004). is, That the statements Julie made to Kosman, including letter, are "testimonial," while the state- Wojt ments Julie made to and DeFazio are "nontestimo- nial." However, we reverse the circuit court's decision as applicability by wrongdoing to the of the forfeiture Today, explicitly adopt doctrine. we this doctrine whereby right a defendant is deemed to have lost the object grounds admissibility on confrontation out-of-court statements of a declarant whose unavail- ability the defendant such, has caused. As the case must be remanded to the circuit court for a determination of preponderance whether, of the evidence, Jensen unavailability, thereby forfeiting caused Julie's his to confrontation.

HH complaint charging 3. A criminal Jensen with first-degree intentional homicide in the 3, December poisoning 1998, death of his wife was filed in Kenosha County on 19, March preliminary hearing 4. At Jensen's conducted April May

on 23, 2002, 2002, before the Honor- able Carl Greco, M. Court Commissioner, the State including testimony presented from several witnesses (Ratzburg). Ratzburg Wojt, Paul Kosman, and Detective just prior Wojt death, to Julie's ¶ testified anything envelope gave if him that an and told him she Wojt give envelope happened to the should her, to during Wojt police. the three weeks stated that also upset prior scared, and she and death, she was to Julie's inject trying poison her or her to feared that Jensen was trying get something to her to because Jensen was syringes drink in a Julie drawer. and she found wine allegedly not think she would him that she did also told through particular weekend because she one make it suspicious her and written husband

riorated polite superficial. I know he's never forgiven me for the brief I affair had with that creep years ago. kids; seven Mark lives for [and] work he's an avid surfer of the Internet....

Anyway do not My smoke or drink. mother was an —I alcoholic, my I limit drinking so to one or two a week. Mark wants me to drink more—with him in the eve- nings. my I don't. I would my never take life because of they everything are regularly Tyle- to me! I take kids— nol multi-vitamins; [and] occasionally take OTC stuff colds, Zantac, Immodium; for have one prescription migraine tablets, for use[s] which Mark more than I. 1 I'm pray wrong nothing happens [and] ... but I am suspicious of suspicious Mark's [and] behaviors fear for my early However, I demise. will not leave [and] David Douglas. My greatest love, life's accomplishment and "My Daddy (Mark), wish: [and] David Dou- D's"— glas. comparing After the letter writing samples to known from Julie, a document examiner with the State Crime Lab con cluded that the letter was written Julie. hearing, Following preliminary Jensen charging information and an trial, for over

was bound first-degree filed. homicide was intentional Jensen with guilty plea subsequently at his of not entered Jensen arraignment 19, 2002. on June Among pretrial filed were motions Jensen admissibility challenging letter re-

motions alleg- Ratzburg Julie the oral statements and ceived edly challenged Wojt Jensen also and Kosman. made to purportedly admissibility oral statements Julie (Borman), physician, Dr. Richard Borman made to her These motions were teacher, DeFazio.3 her son's and argued extensively court. The and before briefed disputed state- each of Julie's court evaluated circuit admissibility independently determine its to ments then-governing hearsay test of rules and the under (1980). ruled that Roberts, The court 448 U.S. 56 Ohio admissible. were all, of the statements most, but in-person and the Kosman to entire statements Julie's entirety. Ratzburg in their were admitted to letter sent summary following complaint provides The criminal 25, 1998: Julie on November conversations with of DeFazio's her, husband afraid her told me how she was [W]hen I coaxed she why her she I asked going kill her last weekend. When to

was explained happen, thing going she thought a serious such things buy paper listing in her husband's why. had found a She drugs syringes it. Then she names of on it listed stuff. She said drug might try overdose thought kill her with a he that she said why thought he her she like a suicide. I asked it look and make things she couldn't other said that there were do this. She would himself, drugs but explain. if were for wondered aloud the She also taking drugs that was she didn't think him so didn't ever see she that she had mentioned list. ... One other time reason for the her every into the room when time she walked her how it bothered always or covered it computer, turned it off he husband was on doing once, why but he said he was quickly. him She asked stuff, he was done. and business The State conceded the voicemails were inadmissible hearsay. May

¶ 10. On 2004, Jensen moved for recon- admissibility sideration on the of Julie's statements in light Supreme ruling of the United States Court's hearing Crawford, 541 U.S. 36. After a motion, on the orally the circuit court announced its decision on June 7, 2004, and concluded that Julie's letter and voicemails were testimonial and therefore inadmissible under rejected argument The court the State's Crawford. the statements were admissible under the doctrine of by wrongdoing. forfeiture The court also determined Wojt that Julie's statements and DeFazio were non- testimonial, and therefore, the statements were not August excluded. On 4, 2004, the circuit court issued a memorializing rulings. written order its oral appealed ruling State the court's respect message to Julie's letter and her voicemail subsequently cross-appealed Kosman.4 Jensen the rul- ing Wojt that the statements of and DeFazio were not opening excluded. After the State and Jensen had filed appeals, briefs in petition the court of the State filed a bypass, oppose. granted which Jensen did not We petition.

r*H 1—4 appeal 12. Reduced to their essence, the cross-appeal concern the circuit court's determinations on the testimonial or nontestimonial nature of various attorney The district conceded that the statements Julie made to during Kosman 24, 1998, conversation on November were testimonial. With respect statements, to these the State is arguing only they are admissible under the forfeiture doctrine, wrongdoing which is discussed Section IV to introd the State seeks of Julie's statements "Although admit decision to a circuit court's uce.5 ordinarily discre matter for the court's evidence violates of evidence the admission tion, whether question right is a of law confrontation defendant's subject independent appellate v. Will review." State ¶ 919 99, 7, 2d 644 N.W.2d iams, 58, 253 Wis. 2002 WI (citing Bollos, 495, 504, 2d 602 N.W.2d 230 Wis. State v. 1999)). (Ct. purposes App. review, the of that For 117 findings accept appellate court's the circuit court must clearly they v. erroneous. State are of fact unless (1998). 475 Jackson, 646, 2d 575 N.W.2d 216 Wis. hH rHI—I " Clause ¶ 'The Confrontation Constitutions and Wisconsin States United guarantee criminal defendants against Manuel, v. them.'" State witnesses confront 554, 2d 697 N.W.2d 75, 36, 281 Wis. 2005 WI (quoting ¶ 43, Hale, 7, 277 v. 2005 WI State 811 637); VI;6 amend. U.S. Const. 593, 2d 691 N.W.2d Wis. 5 554, Manuel, 75, 60, 281 2d Wis. 2005 WI State still that nontestimonial statements this court held N.W.2d purposes under Clause be evaluated for Confrontation should (1980). Roberts, The circuit 448 U.S. test of Ohio v. admitting statements findings Roberts some under court's they to a written order and not reduced excluding others were or Jensen's appeal either the State's subject are not cross-appeal. United States Constitution Amendment The Sixth the accused shall prosecutions, "[i]n all criminal

provides with the witnesses right... to be confronted enjoy the him[.]" Const, § generally apply I,

Wis. art. 7.7 We United Supreme precedents interpreting States Court when Hale, these clauses. 2dWis. Supreme

¶ 14. In 2004 the U.S. Court fundamen- tally changed analysis the Confrontation Clause charged Crawford, 541 U.S 36. Michael Crawford was attempted and convicted of assault and murder for stabbing allegedly rape man, who tried to Crawford's Sylvia. played wife, trial, Id. at 38. At the State for the jury Sylvia's tape-recorded police statement to the de- scribing stabbing. Sylvia testify Id. did not at trial Washington's privilege; privilege, due to marital spouse's however, did not extend to a out-of-court hearsay exception. statements admissible under a Id. at procedure 40. Crawford contended that this violated his. rights Relying under the Confrontation Clause. Id. on Roberts, the trial court concluded that the admission of Sylvia's constitutionally permissible. statement was Id. Roberts, Under an when out-of-court declarant is un- available, his or her statement is admissible if it bears adequate reliability, an indicia of which could be satis- firmly hearsay if fied the statement fell within a rooted exception particularized guarantees or bore of trust- Roberts, worthiness. 448 U.S. at 66. The circuit court ground, admitted the statement on the latter Crawford was convicted. Crawford, 541 U.S. at 40-41. Washington Appeals Court of reversed, and the Washington Supreme Court then reinstated the convic- tion. Id. at 41-42. Supreme

¶ 15. certiorari, On the U.S. Court de- termined that Crawford's constitutional to con- frontation was violated, and his conviction was re- I, Article Section 7 of the Wisconsin Constitution states "[i]n all prosecutions criminal enjoy accused shall right... to meet the face witnesses to face." writing versed. Id. at Scalia, 68-69. Justice for the majority, major announced a shift Confrontation jurisprudence away reliability Clause from the Roberts standard: involved,

Where testimonial statements are we do not think the Framers meant to leave the Sixth protection Amendment's vagaries of the rules of evidence, much less to amorphous notions of "reliabil- ity." sure, ... To be goal the Clause's ultimate is to reliability evidence, ensure but it procedural is a guarantee. rather than a commands, substantive It rehable, that evidence be reliability but that be assessed in a particular manner: testing in the crucible of cross-examination.

Id. at 61. The Court determined that the Confrontation Clause bars admission of an out-of-court-testimonial statement unless the declarant is unavailable and the prior opportunity defendant has had a to examine the respect declarant with to the statement. Id. at 68-69. The Roberts test remains when nontestimonial state- ments Manuel, are at issue. See 281 Wis. 2d ¶¶ 54-55; Crawford, 541 U.S. at 68. unfortunately, spell

¶ Court, 16. The did not out a comprehensive definition of what "testimonial" means. "[wjhatever What we do know that is else the term applies prior testimony covers, it at a minimum to at a preliminary hearing, grand jury, before a at a or former police interrogations." trial; and to Crawford, U.S. "testimony" typically at 68. The Court also noted that "a 'solemn declaration or affirmation made for the purpose establishing proving of or some fact.1" Id. at 51 (quoting Dictionary English An American Lan- of (1828)). guage "An accuser who makes a formal state- government testimony ment to officers bears in a sense ac- person remark to an makes a casual who quaintance Id. does not." various formulations mentioned Court proposed "core class to define the had been among choose but did not statements"

'testimonial' words, In the Court's Id. at 51-52. formulations. these a common nucleus "all share these formulations coverage levels of at various define the Clause's then around it." Id. 52: abstraction functional testimony its parte in-court [E]x affidavits, is, as custo- material such equivalent —that examinations, testimony that the defendant prior dial cross-examine, state- pretrial or similar unable to reasonably expect to be ments that declarants would prosecutorially. used contained formalized

[E]xtrajudicial statements ... affidavits, materials, depositions, such as testimonial prior testimony, or confessions. circumstances that were made under

[Statements reasonably objective lead an witness which would available for use at that the would be believe statement trial. a later

Id. at 51-52. subsequently adopted all three This court formulations, and reserved for another

the Crawford perhaps day a different formulations or whether these Manuel, rule. 281 become the formulation would Applying formulation 554, this third 2d 39. Wis. to his Manuel, that a witness's statements we concluded (Rhodes), girlfriend, were nontestimonial. Anna Rhodes

280 Stamps (Stamps), Derrick witness, told Rhodes that Stamps Id., ¶ had Manuel shot the victim. 9. When was subsequently custody, po taken into Rhodes informed lice that Manuel had shot the victim. Id. At trial, the sought Stamps State to introduce the statements made Stamps to Rhodes that incriminated However, Manuel. testify, refused to so the State was forced to admit the through arresting statements Id., ¶ officer. argued Manuel this violated his to confrontation. " Id., ¶ 35. reasoned We that statements 'made to loved acquaintances ones or . . . are kind of memori judicial-process-created alized, evidence of which speaks.'" (quoting Id., ¶ 53 United States v. Crawford (8th 2004)). 832, 368 Manfre, F.3d 838 n.1 Cir. More Stamps' girlfriend over, we reasoned that not a government agent, and there was no reason to believe Stamps expected girlfriend report that police his (citing People

what he told her. Id. Cervantes, v. (Cal. 2004)). Rptr. App. 774, Cal. 3d Ct. Because private eye the conversation was with no towards litigation, we determined the statements were nontes- subject timonial and thus to Roberts to determine whether there was a Confrontation Clause violation. Id., ¶¶ 53, 60. deciding subsequent involving cases Supreme

Confrontation Clause, the U.S. Court retained position its from that it would not define the beyond term "nontestimonial" the three formulations the classes of testimonial statements. Davis v. (2006)(also Washington, deciding 126 S. Ct. Indiana). necessary Hammon The Court did find it slightly expand previous its discussion of what consti- pre- tutes testimonial statements to resolve the cases police interrogations. sented, which involved It held as follows: "Statements are nontestimonial when made police interrogation in the course of under circum- indicating primary purpose objectively that the stances police interrogation assistance is to enable of ongoing emergency." Id. at 2273. meet an again deciding left with ¶ case, we are this 20. from of testimonial statements formations the three only Manuel, formulation the third Like Crawford. applicable in at issue to the statements is listed above parte statements ex in-court was no case, this as there extrajudicial in formalized testimo- made statements hold that follow, that we For the reasons nial materials. facts and formulation and the third under the properly case, the circuit court of this circumstances law, that Julie's statements concluded, as a matter of police and Julie's the letter are testimonial and Wojt, neighbor, teacher, and her son's her statements to DeFazio, are nontestimonial. argues Generally stated, the that State

determining "made under a statement was whether objective witness lead an which would circumstances reasonably be the statement would to believe that matters is the at a later trial" what available for use expectation person in the declarant's a reasonable of subjective purpose position rather than the particular that further contends The State declarant. creating government an statement involvement indispensable Alter- of a testimonial statement. feature natively, state- thrust is testimonial Jensen's basic accusatory police, and need not be elicited ments police are testimonial. statements directed positions represent opposing parties' thought intended the standard schools Crawford's scope See State of testimonial statements. breadth 2005). (S.C. App. Davis, 760, 767-68 Ct. 613 S.E.2d championed by Akhil Professor The narrow definition suggests Clause the Confrontation Reed Amar " only testify 'encompasses who those "witnesses" either taking person government- the stand in or via prepared deposition, videotapes, affidavits, and the (quoting Amar, like.'" Id. at 767 A. Confrontation Principles: Reply Friedman, A Clause First to Professor (1998)). Amar's focus is "what was the 86 Geo. L.J. understanding being against common of a witness during Founding Era[,]" and he contends someone implicated only is when the circum- surrounding the statement are formal. Id. stances championed by The definition is broader Professor Richard Friedman. Under this school of acting thought," 'a to declarant should be deemed be as if a witness when she makes a statement she antici- prosecution pates will be used in the that the statement (quoting investigation a crime.'" Richard D. or of Id. Friedman, The Search Basic Prin- Confrontation: for (1998)). ciples, 1011, L.J. 1040-43 86 Geo. support propo- for the 24. We note that there is sition that the hallmark of testimonial statements is they request suggestion are made at the or whether (Me. police. Barnes, A.2d See State v. 2004). however, view, our the Sixth Circuit's decision (6th 2004), Cromer, in United States v. 389 F.3d 662 Cir. why inquiry aptly an is insufficient describes such under Crawford:

Indeed, might greater danger to a defendant well be trial, right a if the statement introduced at without confrontation, police to is a statement volunteered through rather than a elicited formalized statement imagine interrogation. temptation One can police grudge might a have to volun- that someone who bears not, police, truthfully teer information crime, especially person of a when that is commission subject If assured he will not be to confrontation.... judicial system only requires cross-examination formally against a when someone has served as witness defendant, and then witnesses those who deal with every testimony them to ensure that will have incentive then, given informally. proper inquiry, is is whether testimony against the declarant intends to bear intent, turn, may That be determined accused. querying person a reasonable in the declarant's whether being used position anticipate would his statement investigating prosecuting the accused crime. Thus,

Id. at believe a broad definition of we required guarantee testimonial is that the preserved. agree is, That we do not confrontation position government that the needs to State's in the creation of the be involved statement.8 Webelieve such narrow definition of testimonial could create nefariously situations where a declarant could incrimi- nate a defendant. recently in Hemphill, App We note that State v. 2005 WI 600, 313, 287 Wis. 2d the court of held appeals 707 N.W.2d spontaneous responding police

that a declarant's statement to the in a crime deemed implicating officers defendants reasoned, The in part nontestimonial. as follows: by [the declarant] The statement made in the case instant does not any categories fall into of the identified of "testimonial" statements. by police This was not a statement extracted the intent interrogation it be later at It would used trial. was not an any [The declarant] situation. offered the statement without solici- police. spontaneous tation from It was statement made to a responding police foreign by officer. Like the cases cited the State in brief, by [declarant's] its statement was offered unsolicited witness, generated victim or and was not the desire of the prosecution police particular subject. or seek evidence Id., light. do in We not read such a restrictive ¶ today Under the adopted definition of testimonial we must Hemphill. overrule Summers, The cites to United States State (10th 2005), Cir. for its contention that F.3d important subjective purpose is not of the declarant interpre- analysis. However, this is not a correct The Tenth Circuit of the Summers decision.

tation present in "the 'common nucleus' concluded that on the which the Court considered centers formulations expectations the declarant." Id. at 1302 reasonable omitted). added) (citation (emphasis Tenth Circuit The rejected approach argued in narrow this case objective focusing test on the State, and held that "an expectations of the declarant under the reasonable safeguards adequately of the case more circumstances closely right and more the accused's confrontation underpinning Amend- the concerns the Sixth reflects (citing The Search Basic ment." Id. Confrontation: for 1040-43). supra, Principles, words, "a state- other posi- person in the if a reasonable ment is testimonial objectively that his declarant would foresee tion of the investigation pros- might in be used statement of a crime." Id.9 ecution mind, we turn 26. With these considerations begin and circumstances of this case. We

to the facts made in her letter. first with the statements Julie concluded that the letter was testimonial circuit court apparent purpose other than to "bear as it had no exclusively testimony" for accusa- and Julie intended it tory purposes. prosecutorial Furthermore, the cir- imagine any purpose stated, "I can't other cuit court 9 Summers, have created in other federal circuits As noted Summers, 414 F.3d United States v. similar standards. (10th 2005) Cromer, 389 (citing United States v. 1302 n.9 Cir. (6th Hendricks, 2004); 395 F.3d United States v. F.3d 662 Cir. (2d (3d Cir. 2005); Saget, 377 F.3d Cir. United States 2004)).

sending police opened only a letter to the that is to be in accusatory the event other death other than an to make given particular statement contents this letter." "suspect." Indeed, the letter even referred to Jensen aas light above, of the standard set out we conclude circumstances, that under the a reasonable person position anticipate in Julie's would a letter ad- police accusing dressed to the another of murder would be available for use at a later trial. The content surrounding and the circumstances the letter make it very clear that Julie intended the letter to be used to investigate prosecution further or aid in in the event of being her death. Rather than addressed to a casual acquaintance purposely friend, or the letter was directed agents. toward law enforcement The letter also describes alleged way Jensen's activities and conduct in a clearly implicates "anything happens" if Jensen to her. Furthermore, the State insists that letter any is nontestimonial because it was created before expectation crime had been committed so there was no potentially that the letter would be available for use at a adopt later trial. However,under the standard we here it already does not matter if a crime has been or committed inquiry not. The focus of the is whether a "reasonable person position objectively in the of the declarant would might foresee that his statement gation be used the investi- prosecution of a crime." Id. We conclude that clearly the letter fits within this rubric. Perhaps tellingly,

¶ 29. most Julie's letter also re- impheating sembles Lord Cobham's letter Sir Walter Raleigh of treason as discussed Crawford, 541 U.S. at Raleigh's prior trial, 44. At examination and letter of implicating Raleigh Cobham in treason were read to the jury. Raleigh that Cobham be called to Id. demanded ultimately jury appear, he was refused. Id. The but Raleigh him Id. and sentenced to death. convicted types practices Supreme view, these Court's it was sought Id. at Clause to eliminate. 50. Confrontation a formal as Cobham's While Julie's letter not of nature clearly in was, still is testimonial nature as it letter implicates it If murder. we to conclude Jensen her were allowing nontestimonial, we was would be her letter clearly to make intended accusers the statements worry having prosecutorial purposes ever for without being the ac- or confronted about cross-examined firmly the Confronta- cused. believe and We support tion do not such result. Clause many reasons, For of the same we also to Kosman are testimo- determine that the voicemails message nial.10 was that Jensen had The crux Julie's strangely leaving acting and himself notes Julie been speak photographed had and that she wanted to person Jensen because she was afraid Kosman recording Again, phone circuit her conversations. other served no court determined that these statements entirely testimony purpose for and than to bear were prosecutorial purposes. accusatory Furthermore, emergency purposes made for voicemail was not Julie's perceived danger. escape from She instead or to sought relay in order to further the information investigation activities. This distinction of Jensen's

10Additionally, considered although circuit the Confron whether the admission of the voicemails violated already excluded Crawford, the court had tation Clause under Thus, if the voice- hearsay. even as inadmissible voicemails under nontestimonial, they must still be excluded mails are Roberts, 448 U.S.

convinces us that the voicemails are testimonial. See (Ga. 2006) ("Where State, Pitts v. 627 S.E.2d 17, 19 primary purpose telephone call is to establish evidentiary objective person facts, so that an would recognize that the statement would be used in a future prosecution, phone testimony' then that call 'bears implicates the accused and the concerns of the Clause."). Confrontation Finally,

¶ 31. we consider the statements Julie Wojt argues made to and DeFazio. Jensen that if the circumstances reveal that the declarant believed her nongovernmental passed statements to actors would be on to law officials, enforcement those statements are governmental testimonial. While we reiterate that in- necessary volvement is not a condition for testimonial statements, we conclude that under the circumstances Wojt case, this Julie's statements to and DeFazio Essentially, were nontestimonial. we are not convinced neighbor that statements to a and a child's teacher, unlike directly the letter and voicemails—which were police intended for the made under circum- —were person stances which would lead a reasonable in the position declarant's to conclude these statements would be available for later use at a trial.

¶ 32. Manuel, Our decision in 281 Wis. 2d 554, guides us to this In Manuel, conclusion. we determined acquaintances statements made to loved ones or type are not the memorialized of statements that Craw- Id., ¶ addressed. Moreover, we determined that ford girlfriend governmental agent, witness's was not a and there was no reason to believe the declarant expected girlfriend report police his what he Wojt told her. Here, Id. Julie confided in and DeFazio declining about the situation in the Jensen household wholly are consistent and her statements person in fear for her life. As one court of a statements neighbor speaks put with her it, "when declarant backyard less of an fence, she has much across the expectation prosecuto- government will make Mizenko, v. rial statements." State P.3d use those (Mont. 2006); Compan People, 121 P.3d 458, see also (Colo. 2005) (holding state that victim's 880-81 acquaintance made after an assault were to an ment nontestimonial). state- essence, conclude that Julie's we informally neighbor her and her made to ments were which would and under circumstances son's teacher objective reasonably they conclude lead an witness to trial, as such are available at a later would be ("An See 541 U.S. at 51 Crawford, nontestimonial. government makes formal statement to who accuser person testimony in a that a who sense officers bears not.").11 acquaintance remark an does a casual makes ¶ sum, that Crawford, In under we conclude 34. messages testimonial, and voicemail are Julie's letter Wojt nontesti- and DeFazio are while her statements to now turn to a discussion of State's monial. We by wrongdoing argument regarding doc- the forfeiture trine.

IV Essentially, by wrongdoing ¶ the forfeiture 35. complaint can have no that an accused doctrine states right the use confrontation about on the based Wojt Julie's statements we conclude that While nontestimonial, concluding as this is the same DeFazio were admissibility of considering the they that are admissible. When Roberts, 56, applies. evidence, 448 U.S. such the test from Manuel, 2d 281 Wis.

against him or her of a if declarant's statement it was wrongful any prevented the accused's conduct of the case, cross-examination declarant. this argues State statements, that Julie's even if testimo- prove, nial, preponderance if should be admitted can State evidence, Jensen murdered support argument, his wife. For of this the State contends we no further look than Crawford.

¶ 36. As discussed of con- Crawford, naturally frontation is right as a "most read reference to the admitting only law, at confrontation common exceptions those ing. established at the time of the found- English [] reveal, As the authorities the common admissibility law in 1791 conditioned of an absent unavailability prior witness's examination on and a opportunity to cross-examine." at Crawford, 541 U.S. recognized may 54. The Court that there have been exceptions general some to the rule of exclusion hearsay evidence, but "there is scant evidence that exceptions were invoked to admit testimonial state- ments the accused in a criminal case." Id. at Here, the noted Court that one such deviation for dying declarations; however, did not decide incorporated whether the Sixth Amendment an such exception dying for Instead, testimonial declarations. exception "[i]f the Court stated that this must be accepted grounds, generis." on historical it is sui Id. 56 n.6. exceptions 37. After this discussion of historical Clause, Confrontation the Court turned its focus abrogation analysis to Roberts testimonial

statements. In this discussion, the Court made the following statement:

The jury evidence, Roberts test allows a to hear un- adversary tested process, the based on a mere reliability. replaces of It thus the judicial determination assessing constitutionally prescribed method reliabil- very one. this it is ity wholly foreign respect, In with a to from the Confrontation Clause exceptions different surrogate assessing means of no claim to be that make by wrong- the of forfeiture reliability. example, For rule (which doing accept) extinguishes we confrontation grounds; does essentially equitable it not claims on determining to be an alternative means purport States, Reynolds v. 98 U.S. reliability. See United (187[8]). 158-59

Id. at 62. Reynolds the federal deci- 38. was one of first by wrongdoing doc- on the forfeiture elaborate

sions Reynolds, George Reynolds, defendant, trine. a witness was violated claimed that his to confront testimony into court admitted evidence when lower given offense with was at a former trial for same Rey- parties under another indictment. same but the nolds, alleged witness, The who was the 98 U.S. at 153. accused, a former trial wife of the testified at second Reynolds. trial, at At the former Id. 160. given during testimony present her accused was opportunity Id. at 161. to cross-examine the witness. full trial, of the second Prior to and after the commencement subpoena attempted deliver a witness an officer separate at occasions. Id. on three but unsuccessful subsequently ruled that The trial court 159-60. testimony previous be admitted at trial could witness's Reynolds he had been instru- did refute because away. keeping concealing Id. the witness mental in analysis began Reynolds its Court following: gives right The Constitution the accused the to a trial at he be which should confronted with the witnesses him; against by but a if witness absent his own wrongful procurement, he if complain compe- cannot supply tent evidence is admitted to the of place that away. which has kept he The Constitution does not guarantee person against legitimate an accused consequences grants of own wrongful his acts. It him being privilege of confronted with the witnesses him; voluntarily but if he keeps the witnesses away, If, therefore, privilege. he cannot on insist his by procurement, when his absent their evidence is in supplied way, some lawful is in he no condition to rights assert that his constitutional have been violated. Id. at words, other while the Constitution does grant privilege confronting accusers, ones that is lost if privilege the accuser causes the witness's at unavailability trial. Reynolds decision, 40. Since the Court has

continued to acknowledge defendant concept can forfeit through misconduct his or her confrontation See, v. e.g., States, Diaz United rights.12 442, 223 U.S. (1912) (holding 451-53 that a right defendant waives13 12The by wrongdoing forfeiture did doctrine not arise Washington, v holding Davis related the Court's 126 S. Ct. 2266, (2006), 2273 but it Court addressed because States, amici, and their Seemingly dicta, raised it as an issue. as following: the Court stated the "We reiterate what we said by 'the rule wrongdoing forfeiture ... extin Crawford: guishes essentially confrontation claims on equitable grounds.' is, That one who of a wrongdo obtains absence witness ing forfeits the Id. constitutional confrontation." (2004)) v. Washington, 541 U.S. 2280 (quoting 36, 62 (citations omitted). States, Diaz United v. Although 442, 223 U.S. 451-53 (1912), and other have courts used term waiver in this hearsay object on confrontation to a statement statement); Snyder grounds he or she offers the when (1934) Massachusetts, U.S. overruled (1964) (holding Hogan, Malloy 1 that defen 378 U.S. v. going permissibly excluded from to view the dant was part dicta, his trial. In Justice the crime as scene of [afforded privilege "[n]o that, doubt the Cardozo stated may by Amendment] be consent or at lost the Sixth misconduct"); Allen, v. and Illinois times even (1970) (holding that defendant can lose 337, 343 a U.S. warning by right present if a the trial, be at after his to behavior). disruptive judge, his he continues Eighth appears to the 41. The Circuit be first apply to to a situa federal court the forfeiture doctrine opportunity prior no to the defendant had tion where Carlson, See United States v. cross-examine the witness. (8th 1976), denied, U.S. 914 Cir. cert. 541 F.2d 1346 (1977). his held that the defendant waived Carlson into intimidated a witness to confrontation when he testifying trial; at the admission therefore permissible. juiy testimony prior grand Id. was witness's at 1360. "[t]he noted that 42. The Carlson court first protect does not stand as a shield

Sixth Amendment chicanery." Id. his own misconduct or the accused from context, appropriate the forfeiture is more we conclude term reflects by wrongdoing1 better phrase 'forfeiture 'because v. legal underpin the doctrine." Commonwealth principles that 2005). (Mass. is, Edwards, That there 830 N.E.2d 168 n.16 concept of waiver and an distinction between the important waiver, requires knowing and inten which forfeiture. "Unlike right, results of a forfeiture relinquishment tional known knowledge thereof right regardless of the defendant's loss of a relinquish defendant intended to of whether the irrespective (3d 1092, 1100 Cir. Goldberg, 67 F.3d right." United States 1995). Reynolds, (citing Diaz, 458; at 1359 223 U.S. at 98 U.S. 159). acknowledged at the distinction be- Reynolds, Reynolds tween its case and in that opportunity afforded the to cross-examine the witness testimony time former was recorded. Id. at Carlson, however, 1359 n.12. was never afforded such opportunity. "[t]o Eighth an Id. In the view, Circuit's presents question extent, this case more difficult Reynolds. by focusing However, than on the defendant's similarity guided by there conduct... is a and we are precept Reynolds articulated in 'no one shall be permitted advantage wrong.'" to take his Id. own 159). (quoting Reynolds, Ultimately, U.S. at the court permitting "profit believed that defendant from contrary public policy, such conduct would be com- underlying purpose mon sense and the of the confron- go However, tation clause." Id. at 1359. the did not say extrajudicial may far so as to that all statements be opinion, admitted. Id. at 1360 n.14. Earlier in its the Eighth grand jury Circuit the concluded that witness's testimony hearsay pursuant was admissible the exception residual of the Federal Rules of Evidence. Id. In words, at 1353-55. other the court determined that right by Carlson's to confrontation was forfeited mis- disputed conduct and statement was admissible hearsay exception. under the residual Subsequent ¶ 43. to Carlson and a host of other jurisdictions, from cases various federal state and by wrongdoing forfeiture doctrine was codified in 1997 hearsay exception. Federal Rules of Evidence as a 804(b)(6). Fed. R. Evid. This rule reads as follows: Hearsay Rule 804. Exceptions; Declarant Unavailable (b) following The are not excluded exceptions. Hearsay a is as hearsay rule if the declarant unavailable by the witness:

(6) wrongdoing. A offered statement Forfeiture engaged acquiesced a that has party did, to, procure intended wrongdoing that was a unavailability of decedent as witness. 804(b)(6). Advisory on Committee

Fed. Evid. R. it there was rule because believed enacted such Rules prophylactic to deal with abhorrent for "a rule a need system of at the heart of 'which strikes behavior Advisory justice Committee on Rules of itself.1" Notes of Evidence to Federal Rules —1997 Amendments Mastrangelo, (quoting 269, 693 F.2d States v. United (1984)). (2d 1982), denied, 467 U.S. 1204 Cir. cert. recognized "[e]very Furthermore, the Committee recognized question has resolved the circuit that has although principle misconduct, forfeiture determining have there is forfeiture whether tests for omitted). (list Id. of cited cases varied." post-Fed. example R. Evid. 44. One notable 804(b)(6) Emery, 186 F.3d States v. decision United 1999). (8th Emery, concluded that the court Cir. right under his to confrontation forfeited the defendant he forfeited his Carlson, F.2d and further hearsay grounds object R. Evid. under Fed. on 804(b)(6). Emery the admission of hear- asserted charged say a he was of federal informant statements murdering right to Id. violated his confrontation. argued principles Emery forfei- the that by wrongdoing in Fed. R. Evid. as stated doctrine ture 804(b)(6) underlying only apply in a trial on the "should [the informant] would he feared about which crimes testify, murdering Emery a not in trial for Id. her." The following: court concluded the plain We that meaning believe both of Fed. R. Evid. 804(b)(6) object and the manifest principles just outlined mandate a different result. The rule contains subject no limitation on the matter of the statements it exempts prohibition that from the hearsay on evi- Instead, dence. it general establishes the proposition may defendant not benefit from his or her wrongful prevention of testimony future from a witness potential Emery's Accepting or witness. Mr. position just him would allow to do that. Emery right Thus,

Id. held that forfeited his object hearsay grounds. to on both confrontation and juris many

¶ 45. Since the release of Crawford, adopted by wrongdo dictions either have the forfeiture ing they they doctrine if before, had not done so have expanded encompass the doctrine more testimonial example, Meeks, For statements. State v. 88 P.3d 789 (Kan. 2004), during defendant, Meeks, Green shot fight in the street. Id. at 791. The officer on first responded, scene asked Green him, who shot and he "Meeks shot me." Id. at 792. This statement later was trial, admitted at after convicted, Meeks he was argued appeal right on his to confrontation had been violated when the trial court admitted statement adequate because the statement lacked indicia of reli ability. Id. at 792-93. Supreme citing

¶ 46. The Court, Kansas Reynolds, held that a defendant forfeits his any objections hearsay confrontation, and waives if the wrongdo- witness's absence ing. due to the defendant's fully recognized Id. at Meeks court underlying crime and the crime which Meeks rendered the same, witness unavailable were the but immaterial to the analysis. concluded this was the court Meeks an amicus brief of quoted For support, Crawford ultimately law a number of professors authored by the following: concluded that court determines as a threshold matter

"If the trial testify trial that the cannot at is the reason victim her, then the accused should be accused murdered right, the confrontation even deemed to have forfeited is charged act which the accused is though the allegedly rendered the the one which he same as witness unavailable." Friedman, D.

Id. at 794 (citing Richard Confrontation Chutzpa, and the 31 Israel L. Rev. of Definition (1997) Chutzpa]). [hereinafter Friedman, a renowned Indeed, Professor law, was one of the first on Confrontation Clause expert doctrine. by wrongdoing a forfeiture for broad argue identity Friedman Chutzpa, argued Professor have victim and the declarant should not between the he as the phrased on whether to what any bearing apply principle." Chutzpa, supra, "reflexive forfeiture identity presents believe that this reason [] I do not identity principle. the forfeiture apply deciding importance us from the not distract should true, If the is evidentiary predicate. predicate inability to confront the defendant's then.. . if own misconduct. And

declarant is attributable his true, keep be able to the defendant should not by claim of out of evidence the declarant's statement right. decline to A court should not the confrontation evidentiary purposes, predicate question, for decide the must also be decided simply question the same because guilt. making the determination bottom-line Id. at 522. released, 48. After Friedman

again by wrongdo- reiterated his view on the forfeiture ing exploring meaning doctrine in an article "testimonial" statements. See Richard D. Friedman, Grappling Meaning with "Testimonial", 71 Brook. (2005). discussing L. Rev. 241 whether a crime has to already have been committed in order for statement gave testimonial, to be considered Friedman the follow- ing example: necessarily: I "Not here in mind the have fearing cases in an victim, which eventual murder her assailant, tells a confidante information to be used in the event that he does fact her assault and render her testify... Again, probable unable to . forfeiture is in this Id. 250 situation." at n.27. post-Crawford

¶ 49. Other also decisions aid our analysis.14 persuasive purposes One of the most for our (6th Garcia-Meza, is United States v. 403 364 F.3d Cir. 2005). case, In that Garcia-Meza was on trial for the first-degree wife, murder of his Kathleen. Id. at 367. prior Five months to murder, her Garcia-Meza had permitted Kathleen, assaulted and the district court government testimony investigat- to introduce from the ing officers about what Kathleen told them. Id. at 369. argued After conviction, his Garcia-Meza that admis- sion of this evidence violated his Confrontation Clause rights. Id.

14Other cases in which courts applied have the forfeiture wrongdoing doctrine to situations where the defendant is charged with the same homicide that rendered declarant Moore, unavailable following: include the People v. 1 117 P.3d (Colo. 2004) App. Ct. (applying reasoning similar as State v. (Kan. Meeks, 2004)); State, 88 P.3d 789 Gonzalez v. 155 S.W.3d (Tex. 2004) (same); App. Mayhew, United States v. (S.D. 2005) (same). Supp. F. 2d 961 Ohio whether Kathleen's state- deciding 50. Without not, the Sixth Circuit deter- ments were testimonial right forfeited his had mined that Garcia-Meza his wrongdoing respon- Kathleen because confront Crawford, Id. unavailability. (citing for her sible 145). that it 36; Reynolds, noting 98 U.S. After 541 U.S. wife,15 killed that Garcia-Meza his was undisputed for the notion that in order dispelled Circuit Sixth Garcia- doctrine by wrongdoing apply, forfeiture murder intent specific Meza to commit the had testifying: her from to prevent ¿ requirement prevents

There no defendant who testifying against through him his own a witness from only forfeits his confront wrongdoing where, in unavailabil- the witness's procuring witness testifying. from ity, prevent he intended the witness may Rules of Evidence contain Though the Federal by the Sixth the secured requirement, such a on, in the words of depend Amendment does not recent Court, of of vagaries "the the Rules Supreme the Court's recent affirmation Supreme Evidence." for- "essentially grounds" for the rule of equitable the strongly suggests applicability the rule's feiture wrongdoer's The Defen- hinge does on the motive. not dant, intended regardless prevent of whether he not, against him or would testifying from witness if through wrongdoing such a witness's benefit his own him, could be used which the statements forfeiture, equity, on does not principles rule of based permit. (internal omitted).

Id. at 370-71 citations 15 that he did not have Garcia-Meza's defense was he was necessary first-degree for murder because premeditation Garcia-Meza, F.3d intoxicated. United States too (6th 2005). Cir. general

¶ 51. The timeline of events in Garcia- substantially Specifi- and Meza this case are similar. cally, played in Garcia-Meza the events of the case out (1) (2) gave statement; as follows: the declarant rendering defendant commits a crime the declarant (3) charged unavailable; the defendant with the (4) government death; declarant's seeks to prior introduce the declarant's statement. The differ- dispute ence between these cases is that there was no responsible Garcia-Meza that the defendant was for the unavailability. However, declarant's we do not believe by wrongdo- that this distinction means the forfeiture ing apply. If doctrine cannot the circuit court deter- pre-trial by mines, in a court, decision that Jensen unavailability, by caused his wife's then forfeiture wrongdoing applies doctrine to Jensen's confrontation rights, may and otherwise testimonial evidence be admitted. post-

¶ 52. essence, we believe that in a by wrong world the broad view of forfeiture doing espoused by Friedman and utilized various jurisdictions since release is essential. In Crawford's "[njoting words, other after the broad embrace of the "recognizing doctrine" courts nationwide and compelling public policy interests behind its enact ment," Edwards, Commonwealth v. 158, 165 N.E.2d (Mass. 2005), adopt by wrong elect to we forfeiture doing doctrine in Wisconsin.

V Having by wrong- ¶ 53. concluded the forfeiture doing appropriate doctrine is in Confrontation Clause analyze appropriate cases, we now standard of apply for review the circuit court to on remand. 300 ¶ Prosser noted his concurrence 54. As Justice jurisdictions require proof Hale, most wrongdoing preponderance a of the evi defendant's (Prosser, 593, ¶ J., Hale, 277 2d 96 concur dence. Wis. Emery, ring) (citing 927; F3d at United States v. 186 (D.C. 1997); White, 903, v. F.3d 912 Cir. United States 1996); 116 (1st Houlihan, 1271, F.3d 1280 Cir. Steele v. 92 (6th 1982); Taylor, United States 1193, 1201 684 F.2d Cir. (E.D. 2003); Supp. Rivera, 827, F. 2d Va. State v. 292 831 (Iowa 2000)). Hallum, See 351, 606 N.W.2d 355-56 also v. cases). (collecting Edwards, 24, 25 172 nn. 830 N.E.2d at convincing "clear and courts, however, A use the few proof. Hale, ¶ 593, 277 2d 96 evidence" Wis. standard (5th (citing Thevis, F.2d 631 616, United States v. 665 Cir. (Cal. 1982);People Rptr. Giles, 843, Cal. 3d 848 Ct. 2004)). App. Citing view, to Professor Friedman's Jensen

argues "given importance of the confrontation that right, the that the accused has court should hold persuaded high to a rather forfeited unless the court it degree probability rendered the that accused has Chutzpa, supra, In other at 519. declarant unavailable." argues given the seriousness of the words, Jensen charges given presumption he him and proven guilty, higher of clear standard is innocent until convincing used. evidence should be "[rjequiring court, 56. As one noted very by preponderance of the evidence to decide may question seem, on trial which the defendant is for Mayhew, glance, States v. troublesome." United first 2005). (S.D. following Supp. Ohio For the F. 2d jurisdic- Mayhew court, reasons, however, like concurrence, in the Hale concluded that tions cited equitable a result. The considerations demand such "equitable principles on the court based its conclusion the of Crawford, jury's ignorance outlined the court's evidentiary determination, threshold and the analogous evidentiary of paradigm Id. at 968. On this conspiracy." last point, Mayhew aptly describes the be- similarity tween and the conspiracy of the forfeiture application doctrine and the idea of wrongdoing why "bootstrapping" should not be worrisome to us: example,

For statements offered a defendant to prove charged participation his in a conspiracy are finds, by admissible if preponderance the court first a of evidence, the the for conspiracy which defendant States, Bourjaily on trial existed. v. United 483 U.S. (1987).... 175-76 principle applies same forfeiture doctrine when the preliminary court makes a determination toas whether the defendant committed for charged. [] the crime which he is Emery, See 186 F.3d (basing approach 926 its to the forfeiture doctrine on cases, co-conspirator noting "the functional similar White, ity questions involved...."); see also ("[T]he at 912 finding F.3d forfeiture is the functional equivalent of predicate finding factual a admitting hearsay must make before under the co- conspirator exception.").

Id. agree reasoning We of and the Mayhew, of jurisdictions multitude other adopt preponder- ance of the evidence standard.16 short, we a broad forfeiture adopt doctrine, and wrongdoing conclude that if the State can proper proof, Related burden the Court in Davis following: stated the 'We take position no on the standards necessary forfeiture, to demonstrate such but federal courts using 804(b)(6), Federal Rule of Evidence which codifies the doctrine, generally forfeiture have held the Government to preponderance-of-the-evidence Davis, standard." 126 S. Ct. at omitted). (citations prove by preponderance evidence that witness, the absence of the forfei- accused caused by wrongdoing apply the doctrine will to confron- ture rights the defendant. tation of

VI conclude, affirm order the 58. To we the of rulings admissibility to its on the circuit as initial of the statements under U.S. Crawford, various made includ- is, Kosman, That the statements Julie to ing letter, testimonial, are while the statements the Wojt made and DeFazio are nontestimonial. Julie to to However, we reverse the circuit court's decision as by wrongdoing applicability of the forfeiture doc- the Today, explicitly adopt whereby a this doctrine trine. we right object on is deemed have lost the defendant admissibility grounds to the of out-of- confrontation unavailability aof declarant whose court statements such, cause must be the defendant has caused. As the of court for a determination remanded circuit preponderance evidence, of whether, Jensen forfeiting unavailability, thereby his caused Julie's to confrontation.

By order of the circuit court Court.—The part; part; in in and the cause is affirmed reversed remanded. (concurring in BUTLER, JR., B. J. 59. LOUIS dissenting part).

part, of The Confrontation Clause Constitu- Amendment to the United States the Sixth prosecutions, provides: "In all criminal accused tion right... enjoy to be shall confronted added). (emphasis I, him" Article witnesses similarly pro section 7 of the Wisconsin Constitution prosecutions "In all criminal vides: the accused shall right... enjoy the to meet the face to witnesses face" added).1 (emphasis operative word in each of these provisions pro is the constitutional word "all".Neither exception vision creates a homicide constitu guarantee majority's Yet, tional misconception of confrontation. by wrongdo doctrine forfeiture ing precisely defeating that, does the confrontation guarantee contained within the state and federal con majority properly Moreover, stitutions. fails to apply Washington, the recent decision Davis v. (2006), ascertaining 126 S. Ct. 2266 whether U.S. _, statements made to certain witnesses in this case are Accordingly, respect nontestimonial. testimonial or I fully part, part. in concur and dissent in

HH ¶ 60. At issue in this case are numerous state- by ments made the homicide victim, Julie Jensen (Julie), neighbor, Wojt (Wojt), police her to Tadeusz (Kosman), physician, officer Kosman Ron her Dr. Rich- (Borman), ard Borman and her teacher, son's Theresa (DeFazio), DeFazio as well as a she letter wrote to Ratzburg (Ratzburg). Detective Paul The circuit court September 4, on 2003, reviewed over 100 statements by reliability made Julie and evaluated the of these using balancing statements the test established in Ohio (1980). Roberts, v. 448 U.S. 56 The court ruled that parts many of her statements not excluded, were parts while other were excluded. The court also re- ruling respect served its to some of the statements majority notes, As generally the we United apply States Supreme precedents Court when interpreting these clauses. Majority 13. op., ¶ trial, to itself and reserved the reverse

until the how offered at trial. based on the evidence was in-person to and statements Kosman addition, Julie's entirety. Ratzburg admitted in their her letter to were (Jensen), defendant, ¶ Mark 61. Jensen admissibility on of Julie's for reconsideration moved light Supreme in Court statements of the United States (2004). Washington, ruling U.S. hearing, concluded Julie's After a the circuit court messages Ratzburg Kosman to and voicemail to letter inadmissible under were testimonial therefore The Julie's circuit court also determined that Crawford. statements Wojt nontestimonial, to and DeFazio were prior rulings therefore, on the admis- and, sibility the court's remained effect. of such statements majority concludes that statements prior Jensen made to to her death that Julie Kosman made her in her letter and the statements Ratzburg evidence, constitute testimonial while Wojt she and DeFazio constitute statements made major- Majority op., ¶ 2. The nontestimonial evidence.2 ity court's initial determination concludes that the Majority proper. admit the nontestimonial evidence was op., evidence, however, As to testimonial by wrongdoing majority adopts doc- forfeiture broad court to trine and the case to the circuit remands prove, prepon- determine whether the State can evidence, Mr. Jensen caused derance of unavailability of Id. his wife. that part majority opinion the agree join I with and that of and letter to Kosman the

concludes the statements I do these statements Ratzburg were testimonial. not discuss agree by the made Julie further. I also statements nontestimonial, this for stated later DeFazio are reasons in. Wojt. made Julie to opinion. At issue are the statements disagree I that all of the statements made Wojt Julie to and to DeFazio are I nontestimonial. do agree majority adopt the that this court should by wrongdoing, of doctrine forfeiture that, and under a proper application placed doctrine, the burden be upon applicability the State to establish doctrine's by preponderance of the evidence. I conclude, Because contrary majority, to the that the forfeiture doctrine (1) applied should be where the defendant caused the (2) purpose absence of witness and did so for the of preventing testifying, respectfully I witness from part. dissent in

HH I—H previously, ¶ 64. As noted under Sixth "[i]n Constitution, Amendment United States all prosecutions, enjoy criminal the accused shall right... against to be with the confronted witnesses [or her]." properly interpret right him In order to this of original confrontation, we must understand the intent adopting of the Framers the Sixth Amendment. Supreme ¶ 65. Crawford, United States background Court examined the historical that culmi- nated in the creation of this Sixth Amendment of founding confrontation. Crawford, U.S. at 43. The fathers' immediate of source the Confrontation Clause English common law. Id. That common law tradi- testimony subject tion is one live in to adver- testing. sarial Id. explained Court that in 16th centuries,

17th witnesses' an statements ac- jury, cused be could read to the and the accused was opportunity offered no to cross-examine his or her "English cases, accuser. In reaction to some these law limited these of confrontation right developed strict Id. at First, developed relatively courts abuses." Id. at 44-45. Second, recur- "[o]ne unavailability. rules of an un- admissibility whether the was ring question on depended examination witness's pretrial available cross- had had an opportunity the defendant whether in the Court him." Id. at 45. For 1696 example, examine was that "even witness though Bench ruled of King's where 'the not admissible dead, his examination was taken before Ayas] [it when being present defendant a cross- the benefit had lost mayor... " Paine, Id. v. 163, 5 Mod. King examination.' (quoting (1696)). mid-1700s, the By 165, 87 Eng. Rep. against witness any of an accused to confront right law, common rooted in firmly English accused was in declarations of included of confrontation was right of the colonies. original at least eight rights adopted included in the Sixth Id. at 48. This ultimately Id. Constitution. to the United States Amendment American re- flatly authorities Indeed, several 48-49. for the admis- that would allow status jected any special cross- made to a coroner absent of statements sibility Id. at 47 n.2. examination. first reviewed the court also Clause be- of the Confrontation

judicial interpretations under- original light upon cause these cases "shed Id. at 49. For ex- common-law rule." of the standing v. "that in State Webb concluded court ample, if only they read an accused could be depositions Id. (citing defendant's] in presence." [the were taken 1794)). Webb, Equ. L. & State v. (Super. N.C. 103 Carolina excluded Campbell, State South Similarly, the deposi- witness because of a deceased deposition Id. (quoting of the accused. tion was taken the absence 1844)). That L. Campbell, State v. (App. 30 S.C.L. concluded: court

[N]otwithstanding witness, the death of the and what- respectability taking ever the deposi- tions, solemnity weight of the occasion and the of testimony, and, such depositions parte, are ex therefore, utterly incompetent. 124). (quoting Campbell,

Id. 30 S.C.L. in court concluded that the Crawford history supports of the Confrontation Clause two infer principal purpose at First, ences. Id. parte Confrontation Clause was to exclude the of ex use examinations as evidence the accused. Id. Sec ond, "the Framers would not have allowed admission of appear testimonial of a statements witness who did not [or she] testify, at trial he unless was unavailable to and prior opportunity had had a cross- defendant for added). (emphasis examination." Id. at 53-54 The Craw emphasized right that this of confrontation ford naturally under the Sixth Amendment "ismost read as a right reference to the of law, confrontation at common admitting only exceptions those established at the time of "3 (citations omitted) founding. (emphasis Id. at 54 added). Supreme Moreover, the United States Court recently has reaffirmed its reliance on narrow, this interpretation historical of the Confrontation Clause as Davis, described in 126 S. Ct. at 2274 n.1. Crawford. approach, 69. Based on this historical the court explicitly rejected admission other- wise inadmissible testimonial evidence based on the reliability Roberts, test established in Ohio v. 448 U.S. (1980).4

3 This principle totally has been majority abandoned in its adoption application by wrong of a broad forfeiture doing doctrine, as I opinion. will discuss later in this previously We have recognized that Wisconsin follows the reliability Roberts, standard established in Ohio 448 U.S. 56 departs principles test from the historical [Roberts] This First, it It respects. identified above in two is too broad: analysis whether or not the applies the same mode of testimony. This often results hearsay parte consists of ex scrutiny in cases that are far close constitutional the core concerns of the Clause. At the removed from time, however, It same the test is too narrow: admits testimony parte upon that do consist of ex statements reliability. standard often finding mere This malleable confrontation vio- protect against paradigmatic fails to lations. Admitting by judge

. . . statements deemed rehable is fundamentally odds with the of confrontation. sure, goal to ensure To be the Clause's ultimate evidence, reliability procedural of but it is a rather than commands, guarantee. It not that evidence a substantive rehable, reliability in a particular be but that be assessed by testing in the crucible of cross-examination. manner: evidence, un- jury Roberts allows a to hear The test a mere adversary process, based on tested reliability. It thus judicial replaces determination of constitutionally assessing of reli- prescribed method ability wholly foreign a one.

Crawford, 541 U.S. at 60-62. there although recognized court

¶ exclusion, of rule exceptions general existed invoked to evidence that were exceptions "there is scant in a testimonial statements the accused admit evi (1980), evaluating admissibility of nontestimonial for Manuel, 554, 3, 2d 281 Wis. dence. State v. WI N.W.2d 811. (emphasis in 541 U.S. at 56 Crawford,

criminal case." explained original). court that this histori- The Crawford suggests requirement prior of a cal context opportunity "dispositive, and

for cross-examination reliability." merely ways one of several to establish unequivocally con- Id. at 55-56. The court Crawford cluded: thus remained faithful to the Framers'

Our cases have of witnesses understanding: Testimonial statements only from trial been admitted where absent have unavailable, only the defendant declarant where prior opportunity had a to cross-examine. has (footnote omitted). Id. at 59

H-IH-1 H-i statements cause the declarant 71. Testimonial meaning a within the of the Confronta- to be "witness" Davis, 126 Ct. at 2273. The court tion Clause. S. dictionary definition of did discuss historical

Crawford "testimony." at 51. The court noted Crawford, 541 U.S. "[a] dictionary "testimony" defined as solemn that the purpose for of estab- declaration or made affirmation (quoting lishing proving 2 Webster, fact." Id. some N. Dictionary English Language An American (1828)). "testimony," Relying on this definition "testimony" concluded that constitutes govern- "[a]n makes a formal statement to accuser who testimony [and] ment officers bears a sense that person acquaintance an who makes a casual remark to court, however, not." Id. The declined to does spell comprehensive out a definition of "testimonial."5 541 U.S. at 68. Crawford, 5 Wisconsin, minimum, In in at a testimonial evidence equivalent parte testimony

cludes ex in-court or its functional

310 Davis, the United States Court Supreme recently shed some additional on the light difference between testimonial and nontestimonial evidence, the limited context of police questioning:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating primary that the purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the objectively circumstances indicate that there is no such ongoing emergency, and primary pur- that pose interrogation is to or prove past establish potentially events relevant prosecu- later criminal tion.

Davis, 126 S. Ct. at 2273-74. in the Davis matter 73. The Court concluded the declarant was speaking officer police

about events as were they actually rather happening, than events an describing past about emer- ongoing gency, consequently statements ques- Id. at 2276-77. The court tion were not testimonial. later clarified that the police officer's interrogation the witness in the Hammon6 matter was testimonial because it was clear that the interrogation was part (such affidavits, examinations, as custodial prior testimony not subject defendant, to cross-examination or pre- similar trial reasonably statements declarants would expect to be used prosecutorially), extrajudicial statements contained in formal- (such ized affidavits, testimonial materials as depositions, prior testimony, confessions), and statements made under circum- stances that objective reasonably would lead an witness believe that the statement would be available for use at a later Manuel, 37, trial. 281 Wis. 2d ¶¶ (2006) Indiana, Hammon v. U.S. _, S. Ct. 2266 (decided in opinion the same Washington). as Davis v. investigation past there events and that of criminal

an progress." emergency Id. at 2278. "no was description inwas that this The court noted they interrogations the cases because of the context interrogations. examining ex involved were simply recognized is plicitly a statement that because any interrogation does of made in the absence necessarily "The nontestimonial. mean the statement willing exempt from cross- to were no more Framers open- testimony to or answers volunteered examination exempt they questions to answers than were ended (emphasis interrogation." n.1 Id. at 2274 detailed added). principles in constitutional It is with the above Wojt and I mind that examine statements DeFazio.

A allegedly begin made I the statements with Wojt. During the week Jensen to Tadeusz Julie Wojt she told Mr. 9, 1998, Julie Jensen November marriage upset trouble, that she her was was because everything, argued that she about and the defendant having suspected affair, an and the defendant was problems of marital between about number talked Similarly, Julie had conversations of them. two Wojt Malgorzata 2, 1998, 1 and that were on December job, getting day Julie's school, care and Julie about appointment, took, and the medicine she some doctor "primary being good her. Because the defendant purpose" Julie and conversations between these poten- prove past Wojts events not "to establish agree prosecution[,]" tially I criminal relevant to later during majority made that the statements with the week of November on December and December majority op., 2, 1998, were nontestimonial. See ¶¶ 31-33. analysis majority's

¶ 76. The hold does not true for the remainder of the statements made Julie to Wojt. Wojt Mr. 21, 1998, On November Julie told that going poison the defendant was past to her. She described potentially events that would be relevant to a prosecution, including leaving criminal syringes the defendant looking up something

in a drawer and on the computer having poison, finding to do with and her Wojt poison. him notes written which had to do with police. told her to the call very gave day, Wojt

¶ 77. Julie an next enve- lope give police anything with instructions to it to the if happened gave She him to her. also a roll of undevel- oped indicating photographs film, that these were things up referencing the defendant would look note poisoning. day, Wojt Earlier that she told that trying pressure defendant to her or drink, was to eat angry and that he would become when she refused. She Wojt they police, told called that she but that were sleep night, not did available. She that and did not think she would live out the weekend. Wojt

¶ 1998, 78. 24, On November she asked to going give her, return the roll of film to she as it police. repeated Wojt She her fears to between Wojt 28, 24 1998, November and November and to Ms. 29, on November Clearly, purpose primary

¶ 79. of each of these prove past conversations was to establish or events potentially prosecution, to a relevant later criminal husband, Indeed, of Julie's the defendant. as to the purpose recognized statements, of the circuit as much when it wrote: "Mrs. Jensen's statements to Wojts ... as remarks which were could be viewed police, viewed in for when

intended the ears conjunction had which she with the conversations The reason that the circuit court Officer Kossman." rejected that conclusion was twofold. August decision of First, the circuit court's part upon that the

4, 2004, was based in the fact United Supreme adopt in Court "did not States argument any statements' include 'testimonial made circumstances which 'statements that were reasonably objective lead an witness believe would be available for use at later that the statement would Manuel, Based on State v. trial.'" our decision 811, 3, 554, 2d we now WL Wis. N.W.2d in error, court's conclusion was as know that circuit subsequently adopted for that standard Wisconsin tes timonial evidence. ruling in on that Second, the evidence would jury, available to the the circuit court believed it

be neutrality have to abandon and embrace the would by offered the defendant that Mrs. theme Jensen's Yet, were and motives suicidal malicious. circuit recognized could court that Julie's statements have by purposes, by as driven motivated those as well been many The other considerations. standard for determin- ing potential whether evidence is testimonial is its prosecution. to a that the relevance later Given circuit acknowledged multiple purposes that could be proffer from evidence, deduced based its ruling law, I on an erroneous view would conclude requisite question in the statements meet the for "testimonial." standard The were also relevant to estab- statements past prove potentially relevant lish or events were syringes prosecution to the of the defendant. The had already poi- in been left the drawer. notes about soning already by had been made the defendant. She already computer poison- had ing. viewed the in relation to already pictures

She had taken of a number of already pressure these items. He had tried to her to eat Wojt gave or drink. As she indicated to when him she envelope give police, police she wanted the anything happen to have that information should obviously prosecu- her. It is relevant to the defendant's attempt tion, or the State would not to use it. And it expressly identify purpose her her killer should anything happen given by statements, to her. These Wojts, simply they Julie to the were as testimonial as respectfully disagree majority's come. I with the conclu- contrary. sion to the

B ¶ 83. Whether the statements made Julie to presents tougher question. DeFazio are testimonial reviewing After from statements November 25 and 2,1998, I DeFazio, December made Julie to conclude majority in that the is correct its determination that these statements are nontestimonial nature. See majority op., ¶¶ reflect, 31-33. While these statements part, past potentially pros- events relevant to later seriously argued pur- ecution, it cannot be that Julie's pose making when these statements was to establish or prove past those events.

IV right ¶ 84. The of confrontation is not absolute. explicitly recognized The ception that one ex- Crawford inadmissibility of evidence testimonial by under the Confrontation Clause is the forfeiture wrongdoing exception. Crawford, 591 U.S. at 62. That naturally "is most read as reference to exception law, admitting only of confrontation at common right those established at the time exceptions founding." of (citations omitted) added). Id. (emphasis on Reynolds 85. The court relied States, United (1879), in that the 98 U.S. 145 concluding "extin- rule of forfeiture by wrongdoing exception essentially confrontation claims on guishes equitable it does not to be an alternative means grounds; purport (citing Reynolds, Id. at 62 determining reliability." of 158-159). U.S. at Reynolds, the United States Supreme by

Court discussed the of the forfeiture application rule to the Confrontation Clause: wrongdoing gives The Constitution the accused the to a trial at which he should be confronted with the witnesses against him; by if but a witness is absent his own wrongful procurement, complain compe- he cannot if supply place tent evidence is admitted to of that away. which he has The Constitution kept does guarantee against legitimate an person accused consequences wrongful grants acts. It him of his own being privilege of confronted with the witnesses him; voluntarily keeps if he but witnesses If, therefore, away, he cannot on privilege. insist his by procurement, when absent his their evidence is supplied way, he in no some lawful condition to rights assert that his constitutional have been violated. Reynolds, Reynolds, turn, 98 U.S. at 158. relied on Case, Lord Morley's from in which the House Lords held: witness, any oath made that

[I]n case should be who had been examined the coroner and was then absent, procurement the means or detained judges opinion and the of the asked whether prisoner, read, answer, might we should such examination be by lordships if their were satisfied the evidence that they heard that the witness was detained means had then the examination procurement prisoner, or of the read; he detained means might be but whether fact, of the was matter of of procurement prisoner or judges, lordships. not the but their which we were added). Id. (emphasis in in Reynolds The court also noted that

¶ (17 Regina 242), Ad. & El. S. a unanimous N. Scaife a court determined thát "if the had resorted to prisoner a out of the way, contrivance witness keep witness, magistrate of the taken before deposition be read." Id. might in the presence prisoner, Reynolds The that the for- explained in feiture rule "has its foundation by wrongdoing no one to take advantage maxim that shall be permitted Id. at 159. this wrong." Applying principle of his own court, had the facts before the where the witness defendant had full testified at trial and the prior Reynolds in cross-examination, the court opportunity admissible, held the testimony explaining for opportunity accused ... had full account [t]he would, witness, deny if or to under the absence of the he enough kept away. Clearly, he had her had oath that showing upon to cast the burden him of proven been concealing that he had not been instrumental keeping away. the witness

Id. at 160.7 majority the fact that the doctrine does address by wrongdoing merely provided at common law

forfeiture testimony, away by party, "if the adverse his kept a witness is the same parties upon on a trial between the same taken former 89. The United States Court Supreme again Davis, reaffirmed the forfeiture exception stating "one who of a obtains absence witness by wrongdo- ing forfeits constitutional to confrontation." Davis Washington, v. 126 S. Ct. at 2280. The Davis "[W]hen reasoned: defendants seek to undermine judicial process by silence procuring coercing victims, from witnesses and the Sixth Amendment does require courts Id. The Court took no acquiesce." on the position standards necessary justify applica- forfeiture, tion of the doctrine of al- wrongdoing, 804(b)(6) though it did cite Federal Rule of Evidence as codifying doctrine, and that under the rule, federal the government has been held generally preponderance-of-the-evidence standard. Id. The Court also noted that state courts tend to follow the same practice as the federal rule. Id.

issues, may States, given Reynolds be in evidence." v. United 98 (1879) added). 145, U.S. 158-59 (emphasis See also Adam Sleeter, Injecting Fairness into the Doctrine of Forfeiture Wrongdoing, Quarterly 1367, Thus, 83 Wash. U. Law 1370-71. the historical rule was limited to where the witness was corruptly wrongfully away, and kept only and the rule allowed former trial evidence between the parties upon same the same issues to be admitted. This case does not involve former testimony at an earlier trial. In v. 541 Washington, Crawford 36, (2004), U.S. 54 the court recognize "only stated that it would exceptions those established at the the founding," time which added). included the forfeiture (emphasis doctrine In Davis v. Washington, 2266, (2006), 547 U.S. 126 S. _, Ct. 2280 discussed, court then adopting, without the version of the 804(b)(6), doctrine codified in Federal Rule of Evidence which does not limit testimony the doctrine to cases which given at an earlier trial. Neither nor Davis answered Crawford scope whether the by wrongdoing of the forfeiture exception must be limited recognized to that which was founding. doctrine was law, the forfeiture At common wrongful applied defendant's where the in situations purpose preventing a with the were committed acts testifying, and see Hon. Paul W. Grimm from witness Hearsay, Jr., Diese, Confrontation, E. Professor Jerome Washing- by Wrongdoing: v. Forfeiture Clause, U. ton, a Reassessment of Confrontation (2004), modern and most 5, Forum 32-33 Balt. Law e.g. United States held to this rule. See courts have (1st 1996); United Houlihan, 1271, 1278 Cir. 92 F.3d 2002). (E.D. Supp. Lentz, 2d Va. F. States v. ap- exception has been words, the forfeiture other unavailable, plied made a an accused has witness when deny that witness's was to the accused's intent and when presence at trial. 804(b)(4), adopted Rule of Evidence 91. Federal codify requirement goes as this so far as to even is if the declarant It states that of the Rule.

an element hearsay does not rule witness, a unavailable as against party any has apply that offered "statement wrongdoing engaged acquiesced intended that was or unavailability procure of the declarant did, to, and added). e.g., (emphasis See, United States as a witness" 2001) (2d (requiring Dhinsa, Cir. 635, v. 243 F.3d (or party prove government defendant "the that offered) statement the out-of-court whom procuring un- declarant's the intent of acted with availability potential for a witness" as an actual forfeiture under to be admitted statement doctrine) (citations omitted); wrongdoing State ("The (2005) Alvarez-Lopez, elements 309, 136 N.M. 804(b)(6) apply for Rule must be shown that (1) expected witness; (3) to be are: the declarant (2) unavailable; the declarant became unavailability of the caused the misconduct defendant's (4) declarant; the defendant intended his mis- prevent testifying.") conduct to the declarant from (citations omitted). put A defendant that is on trial for person murder cannot be deemed to have killed that deny person's presence intent to that at the preponderance trial, witness's own murder unless a the evidence establishes that in testify- defendant fact possessed keep the intent to the witness from ing.8 majority's

¶ 92. The discussion of United States v. (8th 1999) Emery, 186 F.3d 921 Cir. is illustrative. Majority op., Emery, ¶ 44. In the court concluded that the defendant forfeited his to confrontation where keep he murdered a federal informant to the informant testifying from in another trial. Id. at 926. The court accept argument declined to his the forfeiture only applied doctrine should be where the defendant procured the absence of the witness is the same case the testify opposed subsequent witness was to in, as to a homicide trial. Id. majority

¶ 93. The relies on recent cases from jurisdictions adopt other the broad forfeiture doc- majority employ trine the Majority seeks to in this case. op., ¶¶ newly 45-52. That doctrine is based on a principle" created "reflexive forfeiture first advocated by Professor Richard D. Friedman, in Confrontation Chutzpa, and the 31 Israel L. Rev. 506 Definition of 8 The court in Davis position took "no on the standards necessary to by demonstrate" forfeiture wrongdoing, recog but nized courts, that federal relying on the Federal Rules of 804(b)(6) doctrine) § Evidence (codifying the forfeiture "have generally held the Government to the preponderance-of-the- Davis, evidence standard." 126 that, S. Ct. at 2280.1 accept for purposes of opinion, this majority the is not in in adopting error this standard. majority See op.,

320 (hereinafter (1997) however, doing so, Chutzpa).9 By that the doctrine abandons substantive majority the in favor of a far more by the founders was adopted or the founders contemplated by doctrine expansive Amendment, to Scalia's contrary Justice by the Sixth that at 54 (explaining U.S. Crawford, admonition.10 Amendment under the Sixth of confrontation to of read as a reference the right most naturally "is those law, admitting only common confrontation at at time the founding") established exceptions of added). (citations omitted) The Sixth (emphasis does not Constitution Amendment to the United States recognizes application that reflexive Professor Friedman controversial, "quite as as of is well the forfeiture doctrine Friedman, and far-reaching." Richard D. Confrontation (here (1997) 506, 508 31 Israel L. Rev. Chutzpa, of Definition declines, however, majority adopt to Chutzpa). The inafter that should "the court Professor Friedman's recommendation right] has confrontation [the that the accused forfeited not hold high degree rather of persuaded to a unless the unavail has the declarant probability that the accused rendered able[.]" Id. fully em far-reaching approach, if Professor Friedman's appli clearly lead to majority, would nonsensical

braced suggests prosecution "[t]he Friedman For example, cations. taking protect steps all reasonable should bear burden given the possible are aspects of confrontation whatever conduct, demonstrating that has done so." and of it defendant's Thus, principle under the reflexive forfeiture Chutzpa at 525. Officer by Friedman, once Julie left the voicemail to advocated thought trying Jensen that she indicated Kosman notify Julie her, obligation to Jensen that the State had an kill give cross- statement, opportunity him an made videotape deposition. Id. For obvious way her examine Yet, that view. this is reasons, majority does not advance forfeiture Friedman's reflexive application of Professor proper majority case. by the in this adopted doctrine "[i]n prosecutions, that, state all criminal the accused enjoy right... shall to be confronted with the [or except witnesses him her], in homicide may disregard cases." While other courts feel free to very principles upon which the Confrontation Clause rests, our decision must be limited the Constitution Supreme and the United States Court decisions inter- preting Reynolds, it, i.e., and Davis.

¶ 94. In Crawford, Justice Scalia wrote that testimony with confrontation because "[dispensing obviously dispensing jury reliable is akin to trial obviously guilty." because a defendant is Crawford, 541 applying U.S. at 62. In a similar vein, the forfeiture doctrine to admit testimonial evidence when the defen- dant is on trial for the crime that rendered the witness any showing unavailable, absent that defendant's purpose procure was to the absence of the witness to keep testifying places him or her from trial, the cart before the horse. got right 95. The circuit court it when it noted

that the broad forfeiture doctrine advocated majority adopts, State, which the now would render superfluous dying the doctrine of declarations. See generally Dying Polelle, Michael J. The Death Decla- World, rations 2006 Mo. L. Rev.285. Post-Crawford The circuit court discerned that both doctrines coex- isted at common law at the time the Constitution was properly Thus, ratified. the circuit court reasoned that application may current of the forfeiture doctrine away dying do quote with the declaration doctrine. To judge: the circuit

If an accused forfeits or waives the of cross- examination merely by killing the victim "put her out way," of the then there would have been no reason for development Dying Rule, Declaration which the declarant's requirement added contains the believing been made "while have statement death was imminent." existence of declarant's only in an Declaration Rule makes sense eviden- Dying in mere fact that defen- tiary framework which the convincingly judge to have can shown to dant be not, itself, justify exception killed the declarant does of the Confrontation Clause. requirements objection applying no the forfeiture I have not, in criminal trial. That doctrine does doctrine exception the Confronta- however, create a homicide adopt I the broad forfeiture tion Clause. would majority in case. I would set forth this doctrine apply the circuit court remand this matter to it at the time doctrine, forfeiture as existed common law majority's broad was ratified. The that the Constitution I rule, conclude, is unconstitutional. new foregoing respectfully I reasons, 97. For part part. concur dissent notes had found poisoning. computer pages about he received two voice- testified that 6. Kosman prior approximately to Julie's death. two weeks mails that she in the second voicemail Julie told Kosman trying thought her, kill and she asked to Jensen was him call and Kosman returned Julie's to call her back. subsequently her. Julie home to talk with went to her strange writings on Jensen's that she saw told Kosman strange looking day planner, and she said Jensen Kosman Julie also informed material on the Internet.1 day planner part photographed and of his that she had neighbor along gave pictures, letter, with a picture, (Wojt). not the but Julie then retrieved telling gave neighbor, it Kosman letter from the she did not commit dead, found him if she were suspect. Kosman also Jensen was her first suicide, and August September Julie told that in testified death, computer in the seized police After Julie's October dates between and found that on various Jensen's home 2, 2002, poisoning related several websites 15 and December Glycol." "Ethylene visited; including one entitled were him it had become "cold" in the very residence and that Jensen was not as affectionate he as used to be. She claimed that work, when Jensen came home from he would immediately go computer. testified at the Finally, Ratzburg preliminary hearing death, that on the after Julie's he day received a sealed from envelope Wojt. The contained a envelope letter,2 handwritten addressed to "Pleasant Prairie Po- lice Department, Ron Kosman or Detective Ratzen- burg" and Julie's bearing signature that read as follows: I took this picture writing Saturday [and] am this on 11-21-98 my at 7AM. This "list" was in husband's daily planner see, business meant for me to I don't —not means, it anything me, know what but if happens to he my would be suspect. relationship first Our has dete-

Case Details

Case Name: State v. Jensen

Court Name: Wisconsin Supreme Court

Date Published: Feb 23, 2007

Citation: 727 N.W.2d 518

Docket Number: 2004AP2481-CR

Court Abbreviation: Wis.