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SCOW assumes right to confrontation was violated, but holds the error was harmless

State v. Garland Dean Barnes, 2023 WI 45, 6/6/2023, affirming a per curiam court of appeals decision, case activity (including briefs)

Review was granted in on two issues: (1) whether a defendant can “open the door” to testimony that violates his right to confrontation and (2) whether a non-testifying officer’s statement that he saw the defendant commit the crime was admissible because it was not offered to prove that the defendant did in fact commit the crime. See here. However, a unanimous court affirms Barnes’ conviction on harmless error grounds and “assume[s] without deciding that Barnes’ confrontation right was violated.” (Opinion, ¶3).

The court’s decision breaks no new ground and fails to provide an answer to the questions presented. The court holds that the assumed error was harmless because (1) the evidence against Barnes was “overwhelming;” (2) the “error occurred infrequently;” and (3) “Barnes’s defense did little to counter the State’s case.” (Op., ¶37).

Recall, the specific testimony at issue was one officer’s testimony that another officer saw Barnes sell meth during a controlled buy. Moreover, the reason the officer who allegedly observed the controlled buy did not testify at trial was because the court sanctioned the state for a discovery violation and barred the state from calling that witness at trial. So, the state got around the court’s sanction for its discovery violation by introducing the sanctioned officer’s statement by simply having another officer testify about what he heard. Nevertheless, the circuit court and the court of appeals agreed with the state’s argument that the testimony was not offered to prove the truth of the matter asserted (that Barnes sold the meth to the police informant), but instead to prove why the testifying offer thought Barnes sold the meth. Rather than confront whether that supposed distinction is valid or whether Barnes’ confrontation right was violated, the court merely assumes error and holds that any error was harmless.

As previously noted, in Hemphill v. New York, the Court rejected “door opening” as an exception to a confrontation clause violation. In a concurrence, Chief Justice Ziegler, joined by Justice Roggensack, writes separately and agrees that the non-testifying officer’s statements were admissible because they were not offered for the truth, but as relevant evidence to explain why Barnes was stopped and ultimately arrested and charged. (Op., ¶38). The concurrence does not cite Hemphill because it concludes that the confrontation clause is not implicated as the testimony at issue was not introduced for its truth. However, as aptly explained in Barnes’ PFR, the concurrence’s conclusion rests on shaky grounds and case law regarding the “state of mind” exception to hearsay strongly supports the opposite conclusion. Unfortunately, rather than address the substantive confrontation clause or hearsay questions this case presented, the court simply affirms on harmless error grounds.

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