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COA holds Confrontation violation harmless

State v. Oscar C. Thomas, 2021 WI App 55; Review granted 1/11/22; affirmed 2/21/23; case activity (including briefs)

This is the appeal from Thomas’s second conviction at trial for the false imprisonment, sexual assault and murder of his wife. (The first conviction was ultimately undone by the Seventh Circuit, which held that his counsel had been ineffective for failing to seek out certain expert testimony.) Thomas raises three issues. He claims he was convicted of the sexual assault count in violation of the corroboration rule, because the only evidence it occurred was his own confession. He also says all three convictions were obtained in violation of his right to confrontation, as the state introduced a hearsay lab report concerning DNA evidence during cross-examination of his expert. And he argues one of the jurors was objectively biased because she at least believed she was a cousin of one state’s witness. The court rejects all three claims.

The corroboration rule and juror bias issues are straightforward. As to the first, Thomas gave statements to the police about the events leading up to his wife’s death, claiming that it was accidental. He said the two of them were having sex and he had an arm around her neck, and that she’d told him to stop. The corroboration rule forbids conviction if the only evidence supporting it is a defendant’s confession. See State v. Bannister, 2007 WI 86, ¶¶22-23, 302 Wis. 2d 158, 734 N.W.2d 892. But it’s a forgiving rule for the state: there must only be evidence that corroborates “any significant fact” from the confession; this evidence need not be strong and it need not meet all the elements of the crime. In this case, the fact that police located the pornographic video Thomas said he and his wife watched before having sex, plus a downstairs neighbor’s report of having heard her screaming and telling him to stop, is good enough. (¶¶4-14).

The juror bias claim relates to that downstairs neighbor/witness; during voir dire one of the jurors said “I’m pretty sure we are cousins,” though she said she didn’t socialize with the witness and that it wouldn’t affect her judgments about the case. Neither party moved to strike the juror for cause, and neither exercised a peremptory on her, so she sat on the jury. On appeal Thomas argues the juror was objectively biased, which requires him to show that a “reasonable person in the individual prospective juror’s position” could not be expected to be impartial. (¶41). The court holds Thomas can’t make such a showing based on the possible cousinhood, distinguishing State v. Gesch, 167 Wis. 2d 660, 482 N.W.2d 99 (1992), which involved a juror who was the brother of a cop who was a state’s witness. The court there thought that brotherhood–what it called relationship “by blood or marriage to the third degree”–was too close to allow for impartiality. The court here notes that a cousin is “at most a fourth degree relative,” see Wis. Stat. § 990.001(16) and its associated chart, and also that there was no indication that the juror and witness even knew each other (nor, indeed, did Thomas offer proof that they actually were cousins).

The confrontation issue is a bit more involved, and generates a concurrence. All judges agree Thomas loses, because the disputed evidence–a report noting his DNA under his wife’s fingernails, and hers under his own–didn’t have much bearing on the issues in the case. The two judges in the majority, though, nevertheless analyze the confrontation question and conclude the statements from the hearsay report were not admissible. They came in when the state was cross-examining Thomas’s expert witness, who said the physical evidence rendered either Thomas or the state’s theories about what had happened plausible. The state then sought to impeach this claim by talking about the DNA report. The judge allowed this evidence for impeachment of the expert’s opinion. But, it never instructed the jury that it couldn’t also consider the DNA report for its truth–and the state argued, in closing, that it was evidence in its favor.

The question, then, is about the interplay between the Confrontation Clause and the common evidentiary rule about expert testimony–in this state, located at Wis. Stat. § 907.03–that permits an expert to rely on inadmissible evidence, including hearsay, in forming an opinion, but not, typically, to communicate this evidence to a jury. The latter part of that rule, by its terms, concerns evidence offered “by the proponent” of the expert testimony; the opponent has the freedom to offer the otherwise-inadmissible evidence in impeachment of the expert. The majority says there was no justification–under the Constitution–for the trial judge’s decision here, which allowed the state to introduce the hearsay report to the jury and argue that it was evidence for the truth of the matter asserted.

Given that this is an opinion slated for publication, you’ll want to study it closely if you have a case involving an expert witness/confrontation issue along the lines Bullcoming, Melendez-Diaz, and Williams. The concurrence says the majority shouldn’t have decided the substance of the confrontation question given its holding that any error was harmless, then goes on to decide the confrontation question despite its view that any error was harmless. Along the way it asserts–with no analysis whatsoever–that Thomas “opened the door” to the state’s violation of his confrontation rights by having the temerity to offer an expert opinion that the physical evidence did not prove his guilt. See here for a discussion of the pending SCOTUS case on the ever-popular theory that putting on a defense=misleading the jury=relieving the state of the onerous burden of complying with basic Constitutional obligations.

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