State v. Oscar C. Thomas, 2023 WI 9, 2/21/23, affirming a published court of appeals decision; 2020AP32; case activity (including briefs)
As on quite a few previous occasions, our high court has issued a decision without a single majority one can cite for the holdings on each issue presented. Unlike on some of those occasions, this time the lead opinion does not purport to make law it cannot make; it instead signposts which opinion is law for which issue. The upshot of all this writing and signposting, though, is that the court affirms the published court of appeals decision on more or less identical-and well-trodden–legal grounds.
Here’s what we said about the first issue–the common-law corroboration rule–in our post on the COA decision:
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).
Pretty much a repeat here, except SCOW relies exclusively on the neighbor’s report. (¶¶18-24).
Thomas’s expert witness said the physical evidence rendered either Thomas’s theory (accidental death) or the state’s theory (intentional homicide) plausible. The state then sought to impeach this claim by talking about a DNA report generated by an expert who did not testify. 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.
All justices agree that any error–if there was error–was harmless. So, no relief for Thomas. On the substantive question, the concurrence–which, all agree, is actually the majority on this issue–rejects the notion sometimes (but not consistently) advanced by the state that the DNA report evidence was offered only in impeachment of Thomas’s expert, rather than for the truth of the facts it asserted. This is a dodgy confrontation workaround semi-blessed by a divided Supreme Court in Williams v. Illinois, 557 U.S. 305 (2009), but the court says it just isn’t what happened here:
[T]he record, the State’s briefing and presentation at oral argument, all establish that the evidence was offered for the truth of matters contained in the report—that the victim’s DNA was under Thomas’s fingernails and Thomas’s DNA was under her fingernails. That was why, when the circuit court told the prosecutor to confine his closing arguments to the evidence, he responded—in front of the jury—that “[w]e have testimony of the scratches on [the victim’s] face. We have testimony that it could have been caused by DNA. Her DNA is found under his fingernails.” The only “testimony” about DNA was Thomas’s expert’s answers about the Crime Lab report’s findings during cross-examination. And if there was any remaining question about the purpose of eliciting that testimony, it was answered in briefing and at oral argument in this court, where the State consistently asserted that Thomas impliedly waived his right to confront the author of the Crime Lab report when his expert’s testimony contradicted the report’s contents….
Thus, the State’s consistent position before us is that it did not violate the Confrontation Clause when it sought to establish the truth of the Crime Lab report’s findings through Thomas’s expert’s testimony on cross-examination.
The problem with that position is that the Confrontation Clause “prohibits the introduction of testimonial statements by a nontestifying witness, unless the witness is ‘unavailable to testify, and the defendant had had a prior opportunity for cross-examination.'” Ohio v. Clark, 576 U.S. 237, 243 (2015) (quoting Crawford, 541 U.S. at 54). Crime lab reports are testimonial statements because they are “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Melendez-Diaz, 557 U.S. at 310 (quotation omitted); see also Bullcoming v. New Mexico, 564 U.S. 647, 658- 59 (2011). And for that reason, the conclusions reached by such reports may be admitted for their truth at trial only if the person who prepared the report is subject to cross-examination. See Bullcoming, 564 U.S. at 663.
That wasn’t the case at Thomas’s trial. Instead, through its questioning of Thomas’s expert, the State was able to elicit DNA evidence from the Crime Lab report without affording Thomas the opportunity to confront the analyst who prepared that report——a straightforward Confrontation Clause violation. See id. at 662 (“[T]he [Confrontation] Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.”).
A final note: there was once a third issue in the case: whether Thomas’s counsel had “opened the door” to the state’s confrontation violation. But Hemphill v. New York scotched that theory while this case was pending, as the justices note.