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Confrontation – Generally – Forfeiture by Wrongdoing – Harmless Error; Other Acts Evidence: Pornography (& Intent to Kill); Consent to Search; Judicial Bias

State v. Mark D. Jensen, 2011 WI App 3; prior history: 2007 WI 26; for Jensen: Terry W. Rose, Christopher William Rose, Michael D. Cicchini; case activity; (Jensen BiC not posted); State Resp.; Jensen Reply

Confrontation – Generally

The Confrontation Clause regulates testimonial statements only, such that nontestimonial statements are excludable only under hearsay and other evidence-rule ¶¶22-26, citing Giles v. California, 128 S. Ct. 2678 (2008). Thus, State v. Manuel, 2005 WI 75, ¶60 (“evidence that may be admissible under the hearsay rules may nevertheless still be inadmissible under the Confrontation Clause”), has been overruled on that point. And, although the prior, supreme court decision in Jensen enunciated a forfeiture test much broader than that approved subsequently in Giles (right to confrontation forfeited “only if the defendant has in mind the particular purpose of making the witness unavailable”), Giles supports the broader forfeiture test for purely evidentiary issues, ¶26 (“The nontestimonial statements are not excluded by the Confrontation Clause and, for purposes of a hearsay objection, may be analyzed under a broader version of the forfeiture by wrongdoing doctrine, such as that proffered by the dissent in Giles and by our supreme court in JensenSee Giles, 128 S. 2692-93.”). As a result, given the circuit court’s finding by a preponderance of the evidence that Jensen caused the deceased’s absence, and in league with the forfeiture test approved by the prior Jensen decision, “any hearsay objection is overcome,” ¶28. The court separately “leave(s) for another day whether Giles should be read to permit testimonial evidence when the state can establish by a preponderance of the evidence that the defendant sought to prevent the victim from testifying in any court proceeding,” ¶34 (in this instance, whether preventing the deceased from testifying in a family court action, as opposed to the criminal case, sufficed).

EvidenceProf contends that “such a transferred intent theory” does support forfeiture. He cites People v. Banos, 178 Cal.App.4th 483 (2009), for the idea that as long as a defendant specifically intends to render a prospective witness unavailable to testify against him at some trial, that intent can transfer to another trial (e.g., the defendant’s trial for murdering the prospective witness), making the forfeiture by wrongdoing doctrine applicable.”

Confrontation – Harmless Error

Assuming the existence of confrontation clause violations, the errors were nonetheless harmless, ¶¶39-73. The court’s discussion is too detail-oriented to condense, but is summed up this way: “we deem its admission harmless beyond a reasonable doubt given the voluminous corroborating evidence, the duplicative untainted evidence, the nature of the defense, the nature of the State’s case, and the overall strength of the State’s case. … The sine qua non is that the testimonial statements provided nothing significant beyond the properly admitted nontestimonial statements,” ¶¶35, 73.

Other Acts Evidence

    1. Pornographic photos, as evidence of motive to kill the deceased:

“Sullivan” other-acts analysis, § 904.04(2), isn’t triggered by evidence that merely “is part of the ‘panorama’ of evidence” of the crime, citing with approval the concurrence in State v. Johnson, 184 Wis. 2d 324, 516 N.W.2d 463 (Ct. App. 1994), ¶83. Whether analyzed as other-acts, or “panorama,” evidence, pornographic photos (depicting erect penises and fellatio) left around the house was admissible:

¶84      We agree with the State that if analyzed as other acts evidence, it is properly admitted motive[11] and/or context evidence under Sullivan.  See Sullivan, 216 Wis. 2d at 772.  The evidence that Jensen left pornographic pictures around the home is relevant:  long ago, our supreme court recognized that in cases of uxoricide,[12]evidence of the defendant’s ill feeling toward his wife is relevant to prove motive.  Runge v. State, 160 Wis. 8, 12-13, 150 N.W. 977 (1915).  This evidence is offered for a permissible purpose:  that of establishing context and providing a full presentation of the case, i.e., Jensen’s hostility and desire to seek revenge against Julie for her affair. See Shillcutt, 116 Wis. 2d at 236; see also Hereford, 195 Wis. 2d at 1069.  Finally, the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

¶85      Also, even if this was notadmissible other acts evidence, it is admissible when analyzed as “part of the panorama of evidence” surrounding the offense.  See Johnson, 184 Wis. 2d at 348-49 (Anderson, P.J., concurring).  It is admissible as part of the State’s theory that before Jensen murdered his wife, Jensen engaged in a campaign of emotional torture by repeatedly confronting Julie with pornographic photos.  The evidence involved the relationship between the principal actors (Jensen and Julie) and traveled directly to the State’s theory as to why Jensen murdered Julie.  See id. at 339.

    1. Pornography found on Jensen’s home computer in 1998 and office computer in 2002 was admissible as “panorama” evidence:

¶86     …  The evidence that Jensen secretly planted pornography around the home gave viability to the State’s theory of the case that Jensen had been engaging in a campaign of emotional torture toward Julie up to the time he poisoned her.  See id. We agree with the circuit court that because Jensen persistently denied leaving the pornographic photos, evidence of the pornography found on his work computer in 2002—long after Julie’s death—was relevant to prove him the source of the pornography found on the Jensen home computer in 1998, which, in turn, was relevant to show Jensen left the pornographic photos around the Jensen home.

¶87      What is more, the similarity of what was specifically depicted in most of the pictures, i.e., penis-focused pornography, made it even more relevant to proving the State’s case because the evidence, showing that Jensen was storing penis photos on his computer in 2002, bolstered the State’s theory that Jensen had accessed similar penis pornography on the home computer in 1998, which, in turn, linked him to being the one who left similar penis-focused pornographic photos around the home.

¶88      Moreover, this evidence is highly probative to another key issue in the trial that the State was seeking to establish …. Plainly, given the critical issue as to who had searched for ethylene glycol and other poisons on the home computer, evidence tending to show Jensen was by far the primary user of the computer had great probative value outweighing any unfair prejudice.

  1. Evidence of Jensen’s obsession with penises was admissible as part of the “pnaorama” of the crime:

    ¶89      The third category of evidence Jensen claims was inadmissible other acts evidence is the evidence that Jensen had quizzed Kelly Jensen about her sexual history, including fellatio and details of her past partners’ penis sizes.  This evidence also qualifies as properly admitted “panorama” evidence because it, too, tended to show that Jensen (a) had a longstanding fascination or obsession with penises and (b) given this, was likely the one responsible for the penis-focused photos stored on the home and office computer and left around the Jensen home to emotionally torture Julie.

Search – Consent

Jensen’s authorization that the police may take from his home “any letters, writings, paper, materials, or other property they may desire,” included authorization to search his computer:

¶93      A reasonable person who consents to a police search and seizure of “other property which they may desire” would not believe that “other property” was limited to papers and written material.  There is no meaningful difference between records maintained electronically and those kept in hard copies and, in this age of modern technology, persons have increasingly become more reliant on computers not only to store information, but also to communicate with others.  See Commonwealth v. McDermott, 864 N.E.2d 471, 488-89 (Mass. 2007).  “[C]lairvoyance cannot be expected of police officers to know in what form a defendant may maintain his records.” 488.  We conclude that the consent form signed by Jensen authorized police to seize the electronic storage media (computers and disks) within which the documents listed in the warrant may have been stored.

Judicial Bias

The trial court’s pretrial (confrontation) forfeiture ruling didn’t establish disqualifying bias:

¶96      In determining whether Judge Schroeder was actually biased, we evaluate the existence of bias in both a subjective and an objective light.  See State v. Rochelt, 165 Wis. 2d 373, 378-79, 477 N.W.2d 659 (Ct. App. 1991).  The subjective component is based on the judge’s own determination of whether he or she will be able to act impartially.  Id. If Judge Schroeder subjectively believed he would not be able to act impartially, he would have been required to disqualify himself from the proceedings.  See McBride, 187 Wis. 2d at 415. He did not; thus, our inquiry on this component ends here.  See id. Under the objective test, we must determine whether there are objective facts demonstrating that Judge Schroeder was actually biased.  See id. at 416.  Under this test, Jensen must show that the “trial judge in fact treated him unfairly.”  See Rochelt, 165 Wis. 2d at 381. Merely showing that there was an appearance of partiality or that the circumstances might lead one to speculate that the judge was partial is not sufficient.  Id. at 381-82.

¶97      Jensen makes no such showing.  Under WIS. STAT. § 901.04, a judge must make preliminary evidentiary findings such as the finding Judge Schroeder made that Jensen was guilty of forfeiture by wrongdoing.[13] Moreover, Judge Schroeder was ordered by our supreme court to make a forfeiture by wrongdoing finding. Additionally, Jensen points to nothing to support his implied contention that a judge who makes the preliminary finding of forfeiture by wrongdoing must recuse himself or herself from the trial.  Finally, Jensen proffers no objective evidence of bias.  We address this argument no further.

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