2023 WI 45
SUPREME COURT OF WISCONSIN CASE NO.: 2018AP2005-CR
COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Garland Dean Barnes, Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 397 Wis. 2d 241,959 N.W.2d 75 (2021 – unpublished)
OPINION FILED: June 6, 2023 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 3, 2022
SOURCE OF APPEAL: COURT: Circuit COUNTY: Douglas JUDGE: Kelly J. Thimm
JUSTICES: REBECCA GRASSL BRADLEY, J., delivered the majority opinion for a unanimous Court. ZIEGLER, C.J., filed a concurring opinion, in which ROGGENSACK, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs filed by Cole Daniel Ruby and Martinez & Ruby, LLP, Baraboo. There was an oral argument by Cole Daniel Ruby.
For the plaintiff-respondent, there was a brief filed by John W. Kellis, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by John W. Kellis, assistant attorney general. 2023 WI 45 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP2005-CR (L.C. No. 2013CF118)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED v. JUN 6, 2023 Garland Dean Barnes, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant-Petitioner.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion for a unanimous Court. ZIEGLER, C.J., filed a concurring opinion, in which ROGGENSACK, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. This case raises two
issues. The first concerns the right of a criminal defendant to
be confronted with the witnesses against him under the Sixth
Amendment to the United States Constitution. The second
concerns harmless error.
¶2 Garland Dean Barnes was charged with delivering more
than 50 grams of methamphetamine. As a discovery sanction, the circuit court prohibited Agent Duane Clauer from testifying at No. 2018AP2005-CR
the trial.1 During the trial, the State asked another officer
about Clauer's observations during a "controlled buy," i.e., a
police setup to catch someone selling drugs. Barnes objected,
arguing the testimony would be hearsay. The State responded
that it was not seeking to introduce hearsay because it was not
planning to use the testimony for the truth of the matter
asserted. Instead, the State claimed the testimony would show
why this other officer thought Barnes had sold meth (i.e., the
other officer's state of mind). The court overruled Barnes's
objection. The jury found him guilty. A judgment of conviction
was entered, and Barnes sought postconviction relief, arguing
his confrontation right had been violated. The circuit court
denied relief. Barnes appealed, and the court of appeals
affirmed the circuit court's denial, reasoning the testimony was
not offered for the truth of the matter asserted. State v.
Barnes, No. 2018AP2005-CR, unpublished slip op., ¶¶33, 35 (Wis.
Ct. App. Mar. 16, 2021) (per curiam). The court of appeals also
indicated that if an error occurred, it was harmless. Id., ¶35 n.7.
¶3 We assume without deciding that Barnes's confrontation
right was violated; however, we hold the error was harmless.
Among other considerations, the evidence of Barnes's guilt was
overwhelming. Accordingly, "the guilty verdict actually
rendered in this trial was surely unattributable to the error."
The Honorable 1 Kelly J. Thimm, Douglas County Circuit Court, presided.
2 No. 2018AP2005-CR
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). We therefore
affirm the decision of the court of appeals.
I. BACKGROUND
¶4 Charles Marciniak, a police informant, told police
that a man he knew as "Dean"——later identified as Barnes——
offered to sell him meth.2 Marciniak also explained Barnes was
able to make the sale that same day. An email from an assistant
district attorney explained that Marciniak faced serious felony
charges and received a favorable sentencing recommendation for
participating in multiple controlled buys. Marciniak testified
he did not receive any promise from the State before he decided
to participate in the buys.
¶5 In response, Sergeant Franz Winterscheidt assembled a
team to catch Barnes selling meth to Marciniak. In addition to
Winterscheidt, the team included two officers who testified at
the trial, Investigator Jason Tanski and Sergeant James Madden.
The team also consisted of other officers who did not testify,
including Agent Clauer. ¶6 Police first recorded four phone conversations between
Marciniak and Barnes. The recordings took place in the presence
of police and were played for the jury.
¶7 At about 5:20 p.m., Marciniak called Barnes. Barnes
said he was a mere "40 minutes away." The controlled buy
occurred around 6:15 p.m., rendering events between this call
and the buy temporally proximate.
2 Marciniak had prior criminal convictions.
3 No. 2018AP2005-CR
¶8 Barnes called Marciniak about 15 minutes later, and
the two discussed where to meet. Barnes suggested "my little
spot," but Marciniak did not know what that meant. When
Marciniak questioned Barnes, Barnes mentioned a "motel," but
Marciniak remained confused. Marciniak testified that the two
had generally met in the parking lot of a bar. The two did not
explicitly agree to meet at a particular location during the
phone calls, but Marciniak advised police the controlled buy
would take place in the bar parking lot. Sergeant Winterscheidt
testified, based on his training and experience, that the call
involved "coded talk for the arrangement of a drug transaction."
¶9 The recording of the third call picked up only
Marciniak's voice. Sergeant Winterscheidt, who was with
Marciniak during the call, explained that he could hear two
voices, but only Marciniak's was recorded because another
officer plugged an earbud into the wrong audio jack. In the
recording, Marciniak said: "Hello. Two? Alright. I'll take
'em. You're gonna have to -- you're gonna have to run up again then maybe. You might have to see me sooner than next weekend.
What's that? Right on. Well then, 4? Alright. Do that.
Alright. Bye."
¶10 Marciniak's dialogue in the recording of the third
call is consistent with Sergeant Winterscheidt's testimony as
well as Marciniak's. Winterscheidt identified the other voice
as Barnes's. Winterscheidt testified the conversation was about
"the quantity of meth[] that was expected to be delivered," although Winterscheidt admitted on cross-examination that he had 4 No. 2018AP2005-CR
trouble hearing Barnes's "specific words[.]" After the call
ended, but while the recording device was still on,
Winterscheidt said, "I need that other 1800." Winterscheidt
explained Marciniak initially "believed" Barnes would sell 3
ounces of meth for $1,800 an ounce, so Winterscheidt knew more
money would be needed after the third call.
¶11 Marciniak explained that during the third call Barnes
offered to sell two ounces of meth. Marciniak responded that he
would like more to avoid having to meet again soon. Barnes then
proposed four ounces. Marciniak agreed and planned to purchase
four ounces for $1,800 an ounce, for a total price of $7,200.
Marciniak testified he had initially informed Sergeant
Winterscheidt that he was not sure how much he could buy but
expected about three ounces, so Winterscheidt knew he needed
more money after the call. Importantly, the exact amount of
drugs to be sold was not agreed upon until shortly before the
controlled buy. Barnes placed a fourth call to Marciniak to
tell him, "I'm probably gonna be there 7, 8 minutes." ¶12 Sergeant Winterscheidt testified that police prepared
Marciniak for the controlled buy. Police thoroughly searched
Marciniak's person——except for his private areas——and his truck,
looking for currency and contraband.3 Marciniak testified police
patted him down, checked inside his socks and shoes, and
3 Sergeant Winterscheidt personally searched Marciniak. Who searched Marciniak's vehicle is unclear from the record, but multiple officers and Marciniak testified it was in fact searched.
5 No. 2018AP2005-CR
searched his truck. Finding neither currency nor contraband,
police fitted Marciniak with a recording device and sent him to
the bar parking lot with $7,200 in marked bills inside a white
plastic bag. Officers followed "within viewing distance."
¶13 According to Marciniak, he entered the parking lot in
his truck and parked next to Barnes's truck, with the driver's-
side doors facing each other. Marciniak testified he threw the
bag of money into Barnes's truck, and then Barnes threw back a
black box. Marciniak noticed Barnes's girlfriend, Bobbi Reed,
in Barnes's truck. Marciniak testified he was "one-hundred
percent" certain that Barnes, not Reed, tossed the box.
¶14 Police watched from a distance. Investigator Tanski
testified he could see Marciniak's parked truck and watched as
another truck approached. The officer noted the vehicles parked
with both driver's-side doors facing one another and the other
truck left "relatively fast," although he could not see the
actual transaction from his angle. Sergeant Madden explained
the buy occurred "very quick." The testimony of the various officers indicates some officers arrived shortly before the
controlled buy and others shortly after.
¶15 The controlled buy was not videotaped, and the audio
picked up by the recording device Marciniak wore was not
introduced. Sergeant Winterscheidt noted that "we've had
investigators spotted conducting video surveillance on
controlled buys. It makes it difficult." He explained video
cameras are used "selectively" in controlled buys. In this case, officers did not know where the buy was going to take 6 No. 2018AP2005-CR
place until part way through "the process of forming the
team[.]" Under the circumstances, Winterscheidt testified
police did not have time to set up covert video surveillance.
Investigator Tanski confirmed, "the location was set during
those phone calls. So it was a very short time from one of the
last phone calls to where the location was determined."
Sergeant Madden also explained that because the buy happened on
a Sunday, "[i]t was hard to find investigators to come in,"
which seems to have contributed to the lack of video
surveillance.
¶16 Sergeant Winterscheidt testified that after the
controlled buy, he received a radio call from an unidentified
officer informing him that "it went down, deal is done."
Thereafter, Winterscheidt gave the order to arrest Barnes.
Barnes noticed police were approaching and fled in his truck.
After a short car chase, police cornered Barnes's vehicle. The
$7,200 was found sitting near the center console, still in the
white plastic bag. Police also found thousands of dollars in unmarked cash on Barnes's person and in his vehicle. Police
searched Reed and found meth and heroin.
¶17 Sergeant Winterscheidt testified that about five
minutes after arresting Barnes, police met with Marciniak at a
predetermined location.4 For a brief period, police did not have
a visual on Marciniak; however, Winterscheidt testified that "as
Investigator Tanski estimated between 5 and 10 minutes 4
passed.
7 No. 2018AP2005-CR
far as [Marciniak] knew, [police] were directly behind him[.]"
Officers probably would have maintained surveillance but for the
need to divert attention from Marciniak to Barnes as he
attempted to flee. Marciniak testified he did not leave his
truck or meet with anyone between the time of the controlled buy
and his later meeting with police.
¶18 Sergeant Winterscheidt then recovered the black box
from Marciniak's truck. Winterscheidt testified the box
contained four ounces of meth. When Sergeant Winterscheidt was
asked why he was so confident that Marciniak did not get the
black box during the five-minute period, Winterscheidt
explained:
There's no way to know [with] 100 percent assurance that he didn't receive meth[] from an alien that descended from the sky. It is –– given the circumstances and the time frame of which we did respond to . . . Marciniak's location, I don't believe that he could have received meth[] from any other source other than . . . Barnes. Similarly, Investigator Tanski testified the box was not
"crumpled or mangled" and did not have any creases that would
indicate it had been "bent or shoved into any type of nook or
cranny[.]"
¶19 The State charged Barnes with delivering more than 50
grams of meth. Shortly before trial, Barnes moved to exclude
Agent Clauer's testimony because the State had only recently
listed him as a witness and provided Clauer's reports. The
reports indicate Clauer observed the transaction. The circuit court granted the motion.
8 No. 2018AP2005-CR
¶20 The trial lasted two days. Barnes attacked the
thoroughness of the investigation while cross-examining Sergeant
Winterscheidt. Specifically, he suggested Marciniak may have
been the seller and Barnes the buyer, not the other way around
as police thought. Barnes's questioning indicated concern that
police did not videotape the controlled buy. During closing
argument, Barnes maintained he was trying to purchase meth for
his drug-addicted girlfriend, not sell it. He asserted he was
tricked by Marciniak, who framed him to curry favor with police.
Barnes's girlfriend, Reed, did not testify.5
¶21 On redirect examination, the State asked Sergeant
Winterscheidt, "[a]re you aware of any specific officers who saw
the transaction that . . . Marciniak described to you where he
tossed in the buy money and [Barnes] tossed in the black box?"
Barnes did not object. Winterscheidt replied, "[y]es."
¶22 The State then asked which officer observed the
controlled buy. Barnes objected, arguing the testimony would be
hearsay. The circuit court overruled the objection, agreeing with the State that the testimony would establish Sergeant
Winterscheidt's "state of mind" (i.e., why he thought Barnes,
and not Marciniak, was the seller). The State repeated the
question, worded slightly differently: "Sergeant, which
investigator saw . . . Marciniak toss in a white plastic bag
and . . . Barnes toss in a black box? . . . What agent saw
The State wanted to call Reed to the stand, but the 5
circuit court prohibited Reed from testifying as a discovery sanction.
9 No. 2018AP2005-CR
that?" Winterscheidt responded, "[i]t was . . . [Agent]
Clauer."6
¶23 Barnes recalled Sergeant Winterscheidt, and in an odd
turn, solicited testimony about Agent Clauer's observations:
Q. [W]as there a continuous officer present watching this entire transaction?
A. I don't know what you mean by continuous officer present watching . . . Marciniak or watching the controlled buy.
Q. I thought you testified yesterday that there were police eyes on the transaction at all times. Do you remember saying that or words to that effect?
A. That's what I was under the impression of.
Q. Okay. I didn't ask you what you were under the impression of. I asked you whether or not there were eyes always on the suspect. . . . You didn't have video cameras but you testified that there . . . [were] a bunch of cops running around and other officers watching this alleged transaction. Do you remember that?
A. I remember testifying that . . . [Agent] Clauer –– that I learned . . . Clauer had observed the transaction.
Q. So is it your testimony that there was or was not constant visual surveillance of the alleged buy?
A. I don't know that there was constant visual surveillance at all times of the events leading up to the buy and the hand-to-hand transaction. I was only given information that . . . Clauer actually observed the hand transaction.
6 The circuit court indicated it would be willing to give a jury instruction to inform the jury it should not use Sergeant Winterscheidt's testimony that Agent Clauer observed the controlled buy for the truth of the matter asserted. Barnes did not request such an instruction, so one was not given.
10 No. 2018AP2005-CR
¶24 After Barnes was convicted, he moved for a new trial.
Among other points, he argued the circuit court erred in
admitting Sergeant Winterscheidt's testimony that Agent Clauer
observed the controlled buy. The court denied the motion,
reiterating its conclusion that the testimony "went
to . . . Winterscheidt's state of mind[.]" The court also
reasoned if an error occurred, the error was not "of the
significance that would need the [c]ourt to order a new trial.
I think [the alleged error was] minor in the context of this
long –– it wasn't a long trial, but it was two days." It
emphasized that "[t]here were a number of witnesses. There was
a lot of testimony for even being two days."
¶25 Barnes later filed a motion for postconviction relief,
arguing, among other things, that his confrontation right was
violated.7 He asserted: "The reason for [Sergeant]
Winterscheidt's actions (moving in to arrest Barnes) was amply
explained by other evidence[.]" Barnes maintained "[t]here was
absolutely no need for [Winterscheidt] to take it a step further and explain that one officer claimed to have observed the hand-
to-hand [transfer] and that Barnes produced the meth." The
circuit court denied the motion.
¶26 Barnes appealed, and the court of appeals affirmed the
circuit court's denial. Barnes, No. 2018AP2005-CR, ¶33
7 At trial, Barnes objected on hearsay grounds but did not make a confrontation objection. The State has not argued that Barnes forfeited his confrontation objection, so we do not address the issue.
11 No. 2018AP2005-CR
(citation omitted). The court of appeals noted that "[t]he
testimony had the convenient effect for the State of rebutting
some of Barnes's attempts to impugn the quality of the
investigation." Id. Applying a discretionary standard of
review, the court of appeals determined "the circuit court could
[still] reasonably conclude that the testimony was not being
offered to show that [Agent] Clauer had, in fact, observed the
transaction but, rather, to show why [Sergeant Winterscheidt]
had taken subsequent investigative steps." Id. (citation
omitted). Because the court of appeals decided the testimony
was not hearsay, it concluded Barnes's confrontation right had
not been violated. Id., ¶35. The court of appeals also
indicated that if an error occurred, it was harmless. Id., ¶35
n.7. Barnes filed a petition for review, which this court
granted in part, confining the parties to Barnes's confrontation
right claim and hearsay argument.
II. STANDARD OF REVIEW
¶27 Barnes argues his confrontation right was violated. As framed by the parties, the crux of the issue is whether
Sergeant Winterscheidt's testimony regarding Agent Clauer's
observations constituted "hearsay," i.e., an "out-of-court
statement[] offered in evidence to prove the truth of the matter
asserted." See State v. Hanson, 2019 WI 63, ¶19, 387
Wis. 2d 233, 928 N.W.2d 607 (quoting United States v. Tolliver,
454 F.3d 660, 666 (7th Cir. 2006)). We assume without deciding
that Barnes's confrontation right was violated. Appellate courts often decide cases on "the narrowest possible grounds"—— 12 No. 2018AP2005-CR
in this case, harmless error. See Barland v. Eau Claire County,
216 Wis. 2d 560, 566 n.2, 575 N.W.2d 691 (1998) (citing State v.
Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989)).
¶28 The State argues that even if Barnes's confrontation
right were violated, the error was harmless. Under well-
established precedent, such a violation "does not result in
automatic reversal" and "is subject to harmless error analysis."
See State v. Deadwiller, 2013 WI 75, ¶41, 350 Wis. 2d 138, 834
N.W.2d 362 (citations omitted). Whether an error was harmless
is a question of law, subject to our independent review. State
v. Magett, 2014 WI 67, ¶29, 355 Wis. 2d 617, 850 N.W.2d 42
(citing Weborg v. Jenny, 2012 WI 67, ¶43, 341 Wis. 2d 668, 816
N.W.2d 191).
III. ANALYSIS
¶29 An error is harmless if "the guilty verdict actually
rendered in this trial was surely unattributable to the error."
Sullivan, 508 U.S. at 279. The "overall strength of the State's
case" is often an important consideration. Deadwiller, 350 Wis. 2d 138, ¶41 (quoting State v. Martin, 2012 WI 96, ¶46, 343
Wis. 2d 278, 816 N.W.2d 270). Other considerations include "the
frequency of the error" and the "nature of the defense[.]" Id.
(quoting Martin, 343 Wis. 2d 278, ¶46).
¶30 The evidence against Barnes was overwhelming. See id.
The State argues, "[t]he problem with Barnes's argument is that
it assumes the jury would have questioned who delivered drugs to
whom had Sergeant Winterscheidt not testified that Agent Clauer witnessed the transaction. Given the strength of the State's 13 No. 2018AP2005-CR
case, there is simply no chance that would have happened." We
agree.
¶31 The recorded phone conversations before the controlled
buy significantly strengthen the State's case. The third call
is particularly incriminating. While Barnes's voice cannot be
heard in it, Sergeant Winterscheidt confirmed Barnes was in fact
speaking. Marciniak's recorded dialogue leaves little doubt
that he was acting as a prospective buyer, not a seller.
Marciniak was asked a question, to which he responded, "[t]wo?
Alright. I'll take 'em." As the State notes, "[i]f Marciniak
were dealing to Barnes as suggested, in what context would he
tell Barnes that he would take two of something? Two dollars?
Two of some item in a trade?" Applying common sense, Marciniak
responded to an offer to sell something. As the conversation
continued, Marciniak stated, "[y]ou're gonna have to run up
again then maybe. You might have to see me sooner than next
weekend. What's that? Right on. Well then, 4?" These
comments similarly make little sense if they were coming from a seller. If Marciniak were selling to Barnes, Marciniak probably
would not tell Barnes they would need to meet again; rather,
Barnes would dictate when he needed to buy more drugs.
¶32 Sergeant Winterscheidt emphasized the phone calls were
like many others he had heard before. Despite Barnes's
argument, nothing in the calls caused Winterscheidt any concern.
In particular, Winterscheidt explained the second call involved
"coded talk for the arrangement of a drug transaction."
14 No. 2018AP2005-CR
¶33 After the phone calls, police searched Marciniak and
his truck before the controlled buy to ensure he did not have
currency or contraband. Winterscheidt described the searches as
thorough, and Marciniak's testimony was consistent with that
description. After the searches, police gave Marciniak $7,200
in marked bills. Police and Marciniak then went to the buy
location. Barnes was indisputably present. Shortly after the
sale, Barnes fled from police and was ultimately apprehended
with the marked bills in addition to thousands of dollars of
unmarked cash——an unusual amount for an ordinary person to carry
but not uncommon for a drug dealer. Marciniak had four ounces
of meth in a black box. The box did not appear to have been
hidden.
¶34 Marciniak was with police before the controlled buy
and police met with Marciniak shortly after arresting Barnes,
minimizing any chance that Marciniak could have obtained the
black box at some point after the searches. Sergeant
Winterscheidt testified Marciniak was out of sight for a mere five minutes. This fact is especially important considering all
of the evidence indicates the quantity of meth to be sold was
not known until shortly before the buy. If Marciniak set Barnes
up, Marciniak either guessed correctly that the deal would be
for four ounces or found and placed this exact amount of meth
into the box within an especially short timeframe. Neither
possibility is probable.
¶35 As the circuit court noted, the error occurred infrequently during a two-day trial with "a lot" of testimony 15 No. 2018AP2005-CR
from multiple witnesses. See id. As the State argues, the
error happened twice at most——once during the State's re-direct
examination and once when Barnes recalled Sergeant
Winterscheidt. The extent to which Barnes can complain about
the second mention of Agent Clauer's observations is obviously
questionable considering he is the one who solicited the
testimony.
¶36 Finally, the "nature of the defense" was weak. See
id. Read as a whole, the record does not support Barnes's
closing argument that Marciniak set him up and he was merely
trying to purchase meth for his girlfriend. While Barnes had no
duty to prove his innocence, the weakness of the defense theory
bears on whether the error actually impacted the trial's
outcome. Barnes provided little evidence to support his theory
or to otherwise counter the State's strong case.
IV. CONCLUSION
¶37 Assuming an error occurred, we conclude it was
harmless. The State produced overwhelming evidence against Barnes. Additionally, the error occurred infrequently and
Barnes's defense did little to counter the State's case. The
guilty verdict rendered in this trial was unattributable to the
error.
By the Court.——The decision of the court of appeals is
affirmed.
16 No. 2018AP2005-CR
17 No. 2018AP2005-CR.akz
¶38 ANNETTE KINGSLAND ZIEGLER, C.J. (concurring). I
join the majority opinion and agree that Barnes' conviction is
valid because, assuming error occurred, the error was harmless.
I write separately to offer an alternative ground for upholding
Barnes' conviction. The conviction is valid because the circuit
court did not err in admitting the challenged statements of
Sergeant Winterscheidt. His statements of what other officers
told him were properly admitted because they were not offered
for the truth of the matter asserted and, therefore, were not
hearsay. They were offered as relevant evidence to explain
Sergeant Winterscheidt's order to stop Barnes as part of law
enforcement's investigation of Barnes' involvement in drug
trafficking. Accordingly, I respectfully concur.
I. FACTUAL BACKGROUND1
¶39 Barnes' conviction arose out of a controlled drug buy
that was facilitated by a confidential police informant, Charles
Marciniak. Police provided Marciniak with a white plastic bag
containing $7,200 in marked bills to use in buying drugs from Barnes. On the scheduled day, Marciniak and Barnes, who had
prearranged a meeting in the Temple Bar parking lot, parked
their vehicles going in opposite directions, such that both
driver's side windows were up against one another.
1 The majority opinion capably sets out the factual background that led to Barnes' conviction. Therefore, I relate only those facts necessary to understanding the legal principles that form the basis for this concurrence.
1 No. 2018AP2005-CR.akz
¶40 Marciniak, who had a serious felony conviction and was
awaiting sentence, was to bring $7,200 to the tavern parking
lot. Barnes was to bring methamphetamine ("meth").
¶41 Marciniak testified that he threw the white plastic
bag of marked bills into Barnes' truck and Barnes then threw
back a black box containing meth. That transfer was not video
recorded, but other investigators visually observed the
transaction and relayed to Sergeant Winterscheidt that
Investigator Clauer said he saw the transfer of drugs for money.
Sergeant Winterscheidt then gave the order to stop Barnes.
¶42 A transcript of a portion of the trial bears on why
law enforcement pursued Barnes. Sergeant Winterscheidt
testified that an unnamed officer told him that Investigator
Clauer had observed the sale.2
Q. As you drove over to the Temple Bar, what do you recall happening?
A. I remember arriving just as the transaction had been completed. Mr. Marciniak was driving away from the meet location and heard on the radio that the transaction had taken place so I gave the order to take down the suspect.
. . . .
Q. Are you aware of any specific officers that observed the transaction?
A. Yes.
Q. Who was that?
[DEFENSE COUNSEL]: Objection as to foundation, Your Honor, and hearsay.
Investigator Clauer was prohibited from testifying during 2
the trial because of a prosecution discovery violation.
2 No. 2018AP2005-CR.akz
[STATE]: He opened the door when he asked about did any investigators videotape this.
THE COURT: He opened the door but how does that respond to -– it might make it relevant but how does it make it not hearsay?
[STATE]: Again, it goes to the officer's state of mind at the time. I could lay further foundation for what he did after he was informed of seeing the transaction occur.
THE COURT: Okay, overruled then. You can lay foundation. Can you repeat the question?
Q. When officers surrounded the Temple Bar, were there officers who were able to maintain video -– excuse me, visual surveillance?
[DEFENSE COUNSEL]: Objection, Your Honor. He wasn't there after.
THE COURT: If he knows, he doesn't so overruled.
Q. You know that there were officers who had visual surveillance on the parking lot at that time?
A. Yes, through our radio communications responding to that I was aware that officers had reported they were in a position at the Temple Bar.
Q. How did you know that the transaction had been completed?
A. Other investigators observing the transaction notified me by radio.
Q. Okay. Do you recall what they said, if anything?
A. I believe the words were something like, it went down, deal is done. Something like that.
Q. Do you know who radioed that to you?
3 No. 2018AP2005-CR.akz
A. I don't recall specifically who radioed that to me.
Q. Okay. Are you aware of any specific officers who saw the transaction that Chip Marciniak described to you where he tossed in the buy money and Garland tossed in the black box?
Q. Who?
A. It was –-
[DEFENSE COUNSEL]: Objection, Your Honor, this is hearsay.
THE COURT: [State]?
[STATE]: Again, it goes to officer's state of mind from them getting told that the transaction was done is when officers then moved in to position to stop Garland Barnes.
THE COURT: I'm going to overrule the objection.
Q. Sergeant, which investigator saw Chip Marciniak toss in a white plastic bag and Garland Barnes toss in a black box?
[DEFENSE COUNSEL]: Objection, hearsay, lack of foundation.
THE COURT: [State], regarding hearsay?
[STATE]: Again, goes to the officer's state of mind.
THE COURT: So you're not asserting it for the truth of the matter?
[STATE]: No.
THE COURT: Then if it's not asserted for the truth of the matter, I'm going to overrule the objection. It's going to the state [of] mind of the officer. If [defense counsel] wants –- if you want to
4 No. 2018AP2005-CR.akz
get a jury instruction on that substantively, I will certainly give it. Go ahead, [State].
Q. What agent saw that?
A. It was DCI Investigator Duane Clauer.
Q. With that information were you then given the code word that the transaction was completed?
A. Yeah, it wasn't a code word. It was just common language to let us know the deal was done.
Q. Once you knew the deal was done, what happened next?
A. After the transaction took place, I was just arriving on the scene. Mr. Barnes backed into the front of sergeant Madden's vehicle and then proceeded out of the parking lot eastbound on Broadway Street.
Q. Were you eventually able to stop him after some time?
A. Yes. II. STANDARD OF REVIEW
¶43 The issue is whether the circuit court's admission of
Sergeant Winterscheidt's statement that Investigator Clauer
observed the drug sale violated Barnes' right of confrontation.
"[W]hether to admit or deny evidence rests in the sound
discretion of the circuit court, which we will not overturn
absent an erroneous exercise of discretion." State v. Novy,
2013 WI 23, ¶21, 346 Wis. 2d 289, 827 N.W.2d 610. We review
whether the admission of Sergeant Winterscheidt's statements
violated Barnes' confrontation right independently as a question
of law. State v. Reinwand, 2019 WI 25, ¶17, 385 Wis. 2d 700,
924 N.W.2d 184.
5 No. 2018AP2005-CR.akz
¶44 Barnes claims Sergeant Winterscheidt's statement that
Investigator Clauer saw the drug sale take place violated his
right of confrontation. The right of confrontation arises from
the Sixth Amendment of the United States Constitution and
Article I, Section 7 of the Wisconsin Constitution.3
¶45 Under the Confrontation Clause, out-of-court
statements that are both hearsay and testimonial are not
admissible against a criminal defendant unless the witness is
unavailable and the defendant has had a prior opportunity to
cross-examine the witness. Crawford v. Washington, 541 U.S. 36,
59 (2004). It is undisputed that Barnes did not have a prior
opportunity to cross-examine Investigator Clauer.
¶46 Relevant to deciding this case is the hearsay prong of
Crawford. In Crawford, the Supreme Court explained the
Confrontation Clause "does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted." Crawford, 541 U.S. at 60 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). By definition,
when an out-of-court statement is not offered to prove the truth
of the matters asserted, it is not hearsay. "[A] crucial aspect
of the Sixth Amendment right to confrontation, pursuant to
Crawford, is that it 'only covers hearsay, i.e., out-of-court
"'We 3 generally apply United States Supreme Court precedents when interpreting' the Sixth Amendment and the analogous Article 1, Section 7 of the Wisconsin Constitution." State v. Nieves, 2017 WI 69, ¶15, 376 Wis. 2d 300, 897 N.W.2d 363 (quoting State v. Jensen, 2007 WI 26, ¶13, 299 Wis. 2d 267, 727 N.W.2d 518).
6 No. 2018AP2005-CR.akz
statements "offered in evidence to prove the truth of the matter
asserted."'" State v. Hanson, 2019 WI 63, ¶19, 387 Wis. 2d 233,
928 N.W.2d 607 (quoting United States v. Tolliver, 454 F.3d 660,
666 (7th Cir. 2006)); see also 7 Daniel D. Blinka, Wisconsin
Practice Series: Wisconsin Evidence § 801.302 (4th ed. 2017)
("[O]ut-of-court statements may be offered to prove innumerable
relevant propositions apart from the truth of any
matters . . . .").
¶47 Hearsay is defined by statute and addressed in
numerous court opinions. Wisconsin Stat. § 908.01(3)
provides: "'Hearsay' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." When a
statement that might be described as hearsay encompasses an
additional statement that also might be described as hearsay,
each statement is addressed separately to determine if it is
employed for the truth of the matter asserted. Boyer v. State,
91 Wis. 2d 647, 661-62, 284 N.W.2d 30 (1979); Wis. Stat. § 908.05 ("Hearsay included within hearsay is not excluded under
the hearsay rule if each part of the combined statements
conforms with an exception to the hearsay rule provided in this
chapter."). "There is no question that where a particular state
of mind of a person is a relevant fact, declarations which
indicate its existence are admissible . . . ." Bridges v.
State, 247 Wis. 350, 365, 19 N.W.2d 529 (1945) (explaining that
"[t]he hearsay rule does not operate, even apart from its exceptions, to render inadmissible every statement repeated by a
7 No. 2018AP2005-CR.akz
witness as made by another person. In some instances, the fact
that a statement was made, rather than the facts asserted in the
statement, is material").
¶48 As a result, "the Confrontation Clause only prohibits
the introduction of testimonial hearsay, and hearsay is, by
definition, an out of court statement that is 'offered in
evidence to prove the truth of the matter asserted.'" State v.
Thomas, 2023 WI 9, ¶61, 405 Wis. 2d 654, 985 N.W.2d 87.
¶49 Here, Sergeant Winterscheidt's state of mind was
relevant because he was the officer in charge of the ongoing
drug trafficking investigation. It was for him to decide
whether to order that officers pursue Barnes. He so ordered,
not because of the truth of an unnamed officer's telling him
that Clauer saw Barnes sell drugs, but because it was
Winterscheidt's responsibility as part of the investigative plan
once he was told that the sale had occurred. Investigator
Clauer's statement to other officers also was part of the
investigation wherein he had the role of keeping Marciniak in view and passing along what he thought he saw. Also, the
defense that Barnes was the buyer, not the seller, was first
mentioned in Barnes' counsel's closing argument at trial. It
followed a long and effective cross-examination wherein Barnes'
counsel had attempted to show that law enforcement was sloppy in
its planning and execution of the investigation of this case.
There is nothing in the record to imply that law enforcement was
concerned about who was the seller at the time Sergeant Winterscheidt was told the transaction had occurred.
8 No. 2018AP2005-CR.akz
Accordingly, Sergeant Winterscheidt would have ordered officers
to pursue Barnes even if what Clauer thought he saw was not
correct.
¶50 As we explained in Hanson, "The question is not
whether the evidence might be inadmissible hearsay if it is
offered to prove the truth of the matter asserted; rather, the
question is whether the evidence is offered for a legitimate
reason other than for the truth of the matter asserted."
Hanson, 387 Wis. 2d 233, ¶25. Furthermore, "when the State
offers a statement for a proper non-hearsay purpose . . . it is
neither hearsay (evidence law) nor testimonial hearsay
(confrontation law)." Id., ¶26 (quoting Blinka, supra ¶46,
§ 802.302). The evidence at issue in this case was used for a
purpose other than the truth of its contents. See, e.g., United
States v. Eberhart, 434 F.3d 935, 939 (7th Cir. 2006) (testimony
is not for its truth where it is offered "as an explanation of
why the investigation proceeded as it did").
¶51 This distinction was brought out at Barnes' trial where the prosecutor asserted that she was not offering Sergeant
Winterscheidt's testimony about what he was told that
Investigator Clauer had observed for the truth of the matter
asserted. But rather, it was offered to show Sergeant
Winterscheidt's state of mind about why he took subsequent steps
in this drug trafficking investigation. In permitting the
testimony, the circuit court explained, "It's going to the state
of mind of the officer. If [defense counsel] wants -– if you want to get a jury instruction on that substantively, I will
9 No. 2018AP2005-CR.akz
certainly give it." Barnes did not ask for the jury instruction
that the circuit court offered.
¶52 In sum, the testimony that Investigator Clauer saw the
sale occur is relevant to Sergeant Winterscheidt's state of mind
because it caused him to order Barnes be pursued and stopped as
part of his investigation of drug trafficking. When Sergeant
Winterscheidt gave the order, "officers then moved into position
to stop Garland Barnes." It did not matter whether the
statement was true or not. What mattered was that the
investigative plan called for Sergeant Winterscheidt to order
that Barnes be stopped when he was told that Investigator Clauer
saw the sale occur. "[E]vidence is not hearsay when it is used
only to prove that a prior statement was made and not to prove
the truth of the statement." Anderson v. United States, 417
U.S. 211, 220 n.8 (1974). Here, the prior statement was that
Investigator Clauer saw the sale occur. It is relevant because
it caused Sergeant Winterscheidt to order law enforcement
personnel to move forward with their prior plan. It does not matter whether the statement he received was correct.
Therefore, the circuit court did not erroneously exercise its
discretion in admitting the testimony, which was offered for a
permissible purpose. Reinwand, 385 Wis. 2d 700, ¶35.
¶53 Barnes' conviction is valid because the circuit court
did not err in admitting the challenged statements of Sergeant
Winterscheidt. His statements of what other officers told him were properly admitted because they were not offered for the
10 No. 2018AP2005-CR.akz
truth of the matter asserted and, therefore, were not hearsay.
They were offered as relevant evidence to explain Sergeant
Winterscheidt's order to stop Barnes as part of law
enforcement's investigation of Barnes' involvement in drug
trafficking.
¶54 For the foregoing reasons, I respectfully concur.
¶55 I am authorized to state that Justice PATIENCE DRAKE
ROGGENSACK joins this concurrence.
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