State v. Oscar C. Thomas

2023 WI 9, 985 N.W.2d 87, 405 Wis. 2d 654

• Court: Wisconsin Supreme Court
• Decided: February 21, 2023
• Docket: 2020AP000032-CR
• Status: Published

Opinion

2023 WI 9

SUPREME COURT OF WISCONSIN CASE NO.: 2020AP32-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Oscar C. Thomas, Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 399 Wis. 2d 277, 963 N.W.2d 887 PDC No: 2021 WI App 55 - Published

OPINION FILED: February 21, 2023 SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 28, 2022

SOURCE OF APPEAL: COURT: Circuit COUNTY: Kenosha JUDGE: Bruce E. Schroeder

JUSTICES: ROGGENSACK, J., announced the mandate of the Court, and delivered an opinion, in which ZIEGLER, C.J., joined, and the majority opinion of the Court with respect to ¶2 and ¶¶12-24, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET and KAROFSKY, JJ., joined, and in which HAGEDORN, J., joined with respect to ¶¶12-24. DALLET, J., filed a concurring opinion, which constitutes the majority opinion of the Court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion. NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs filed by John T. Wasielewski and Wasielewski & Erickson, Milwaukee. There was an oral argument by John T. Wasielewski.

For the plaintiff-respondent, there was a brief filed by Sonya K. Bice, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Sonya K. Bice, assistant attorney general.

2 2023 WI 9 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP32-CR (L.C. No. 2007CF1)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. FEB 21, 2023 Oscar C. Thomas, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant-Petitioner.

ROGGENSACK, J., announced the mandate of the Court, and delivered an opinion, in which ZIEGLER, C.J., joined, and the majority opinion of the Court with respect to ¶2 and ¶¶12-24, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET and KAROFSKY, JJ., joined, and in which HAGEDORN, J., joined with respect to ¶¶12-24. DALLET, J., filed a concurring opinion, which constitutes the majority opinion of the Court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 PATIENCE DRAKE ROGGENSACK, J. We review a published

decision of the court of appeals1 that affirmed the circuit

1State v. Thomas, 2021 WI App 55, 399 Wis. 2d 277, 963 N.W.2d 887. No. 2020AP32-CR

court's2 judgment of conviction and its denial of Oscar C.

Thomas's postconviction motion.

¶2 We accepted two issues for review. First, whether

Thomas's confession of sexual assault was corroborated by a

significant fact, and we conclude it was. This opinion is the

majority opinion for the discussion of corroboration. Second,

whether the cross-examination of Thomas's expert witness by use

of a Wisconsin Crime Lab Report ("the Report") that was not in

evidence and whose author did not testify violated Thomas's

confrontation right. Four justices conclude the Report's

contents were used for their truth during cross-examination,

thereby violating Thomas's right of confrontation. Justice

Dallet's concurrence is the decision of the court for the

confrontation issue.3 Six justices conclude Hemphill precludes

admission of evidence to correct an allegedly misleading

impression created by the defendant, and seven justices conclude

that any error related to the Report was harmless. Accordingly,

we affirm the court of appeals. ¶3 The court of appeals concluded that the State met its

evidentiary burden to sufficiently corroborate Thomas's

confession of sexual assault. We agree with this conclusion.

We also conclude that the State's use of the Report4 that a

2 The Honorable Bruce E. Schroeder of Kenosha County Circuit Court presided. 3 Justice Dallet's concurrence is joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley and Jill J. Karofsky. 4 The Report, a three-page document, was marked as Exhibit 36 during the prosecutor's cross-examination of Thomas's expert, 2 No. 2020AP32-CR

defense expert reviewed, but which was not admitted into

evidence, did not violate Thomas's confrontation right under the

United States' Constitution or the Wisconsin Constitution when

used for impeachment purposes.5 However, we reject the State's

argument that it properly used the Report's contents during

closing argument. Furthermore, following Hemphill,6 a criminal

defendant does not "open the door" to the introduction of

testimonial out-of–court statements for the purpose of

"correct[ing]" a "misleading impression." Although we conclude

that the State did not use the content of the Report for its

truth on cross-examination, the State did improperly use the

Report's content for its truth during closing argument, which

the circuit court erroneously permitted. However, we conclude

the error was harmless because it is "clear beyond a reasonable

doubt that a rational jury would have found [Thomas] guilty

absent the error." State v. Harvey, 2002 WI 93, ¶46, 254

Wis. 2d 442, 647 N.W.2d 189 (citing Neder v. United States, 527

U.S. 1, 18 (1999)).

Dr. Williams. The prosecutor did not attempt to have Exhibit 36 admitted. 5 U.S. Const. amend VI; Wis. Const. art. I, § 7. 6 Hemphill v. New York, 595 U.S. ___, 142 S. Ct. 681, 686 (2022). We acknowledge that Hemphill was published while this case was pending on appeal.

3 No. 2020AP32-CR

I. BACKGROUND

¶4 In the early hours of December 27, 2006, officers

responded to a 911 call and found Ms. Joyce Oliver-Thomas

unresponsive on the floor of her apartment. Emergency

responders employed CPR and attempted to resuscitate Ms. Oliver-

Thomas as they transported her to the hospital, where she was

pronounced dead. An autopsy concluded that Joyce died from

"Strangulation due to Physical Assault." Ms. Oliver-Thomas's

husband, the defendant Oscar C. Thomas,7 was subsequently charged

with first-degree intentional homicide, first-degree sexual

assault, and false imprisonment. Thomas provided three

statements to police over the course of the investigation, which

we address below.

¶5 At his 2007 trial, the jury convicted Thomas of all

three charges against him. Thomas appealed, and the court of

appeals affirmed. We denied review.8 Thomas then pursued

federal habeas corpus relief, and the Seventh Circuit granted

him a new trial. Thomas v. Clements, 789 F.3d 760 (7th Cir.

The record indicates that Thomas and Ms. Oliver-Thomas had 7

been married, divorced, and then reconciled without remarrying. Accordingly, Thomas refers to Ms. Oliver-Thomas as his wife. Striving for consistency with the record, we too, refer to Ms. Oliver-Thomas and Thomas as spouses, though we recognize this was not technically the case at the time of Ms. Oliver- Thomas's death.

State v. Thomas, No. 2010AP1606-CR, unpublished slip op., 8

¶1 (Wis. Ct. App. Nov. 9, 2011), review denied, 2012 WI 45, 340 Wis. 2d 542, 811 N.W.2d 818.

4 No. 2020AP32-CR

2015).9 Thomas was retried to a jury in 2018, convicted of all

charges again, and was sentenced to life imprisonment.

¶6 Thomas appealed, and the court of appeals affirmed

Thomas's convictions and the circuit court's denial of his

postconviction motions. Specifically, the court of appeals

concluded there was sufficient corroborating evidence of the

sexual assault confession, and denial of the postconviction

motion was appropriate. State v. Thomas, 2021 WI App 55, ¶14,

399 Wis. 2d 277, 963 N.W.2d 887. The court of appeals also

concluded the Report's DNA evidence was "inadmissible hearsay,"

causing a Confrontation Clause violation when it was used

erroneously during trial and during the State's closing

argument. Id., ¶35. However, the court of appeals concluded

that the error was harmless. Id., ¶¶35, 37.10

¶7 In its briefing to us, the State did not argue that

the Report could be used for the truth of its contents. Rather,

9 Thomas argued his 2007 trial counsel was ineffective because he failed to call a forensic pathologist or other similar expert to refute the State's forensic pathologist's testimony. Thomas v. Clements, 789 F.3d 760, 762-63 (7th Cir. 2015). The court of appeals agreed that failure to call a forensic expert demonstrated the deficiency of Thomas's counsel and prejudiced his defense. Id. at 763. The Seventh Circuit concluded "that a reasonable counsel would have consider[ed] and/or consulted with a forensic expert," and "[g]iven the weakness of the state's case . . . there is a reasonable probability the outcome of the trial would have turned out differently." Id. 10Thomas presented a third issue to the court of appeals regarding an allegedly-biased juror, which he has not petitioned for us to review.

5 No. 2020AP32-CR

it set the issue up as: "[W]hen Thomas's expert gave testimony

directly contradicting the lab report on which he relied, it was

an implied waiver of Thomas's right to confront the author of

the lab report." However, Dr. Williams did not say he "relied"

on the Report, but rather, that he "reviewed" the Report along

with hundreds of other pages of material relative to this case.11

Nevertheless, the State veered from the argument it raised

consistently below that the prosecutor used the Report to

impeach Thomas's defense expert. Instead, at oral argument the

State argued that we should analyze the Report based on the

contention that its contents were properly used during cross-

examination and during closing argument for the truth of the

matters asserted therein.

¶8 Thomas petitioned us for review, which we granted on

two matters: first, to review whether the State sufficiently

satisfied its burden to corroborate Thomas's confession with any

significant fact; second, to review whether the State's cross-

examination of Thomas's expert witness through the use of the Report violated Thomas's right under the Sixth Amendment to

confront the author of the Report. We also review the State's

use of the DNA findings of the Report in the prosecutor's

closing argument. We conclude that error occurred in the

Prosecutor: 11 "Now, you also reviewed Wisconsin crime lab reports, correct?"

Answer: "Correct."

6 No. 2020AP32-CR

prosecutor's use of the contents of the Report in closing

argument; however, the error was harmless as we explain below.

II. DISCUSSION

A. Standard of Review

¶9 Whether evidence corroborates a criminal defendant's

confession(s) or statement(s) presents a question of evidentiary

sufficiency, which is ultimately a question of law subject to

our independent review. State v. Bannister, 2007 WI 86, ¶¶22,

33, 302 Wis. 2d 158, 734 N.W.2d 892.

¶10 We review constitutional issues independently,

although we benefit from the discussions of the court of appeals

and circuit court. State v. Smith, 2012 WI 91, ¶25, 342 Wis. 2d

710, 817 N.W.2d 410.

¶11 Lastly, we review whether an error was harmless by

placing the burden on the party that benefitted from the error

to establish it is "clear beyond a reasonable doubt that a

rational jury would have found [Thomas] guilty absent the

error." Harvey, 254 Wis. 2d 442, ¶46 (citing Neder, 527 U.S. at 18).

B. Corroboration

¶12 Thomas first argues that the State did not present

evidence to corroborate the statements he made to police in

which he confessed to the crime of sexual assault. Accordingly,

Thomas argues the jury convicted him based solely on the two

7 No. 2020AP32-CR

relevant statements he made to police following Ms. Oliver-

Thomas's death.12

¶13 In Thomas's first statement to officers, he reported

that Ms. Oliver-Thomas had complained of chest and ear pain in

the early evening. Throughout the evening, Thomas and a friend

were smoking crack in the basement of the four-plex apartment,

and Thomas checked on his wife frequently. Each time he left

the basement to check on Ms. Oliver-Thomas, she was "in bed

dozing off." Thomas began watching a pornographic video in the

apartment sometime after midnight, during which he became

aroused and approached his wife, who agreed to consensual sex.

During sex, the couple fell off of the bed and onto the floor.

Following their encounter, Thomas noted that Ms. Oliver-Thomas

complained her "chest was still hurting." Thomas checked on his

wife a few more times, left the building and, upon returning to

the apartment, he found Ms. Oliver-Thomas on the floor in the

bedroom. Thomas then called 911 and administered CPR until

officers arrived. ¶14 In Thomas's second statement to police,13 he and a

friend were smoking crack in the apartment building's basement.

12Thomas's third statement was made while he was in custody. The third statement implicated a drug dealer, who Thomas believes entered the apartment while Thomas was with his friend and killed Ms. Oliver-Thomas over an outstanding debt Thomas owed. As this statement is not relevant to the sexual assault conviction at issue, we do not address it further. See Thomas, 399 Wis. 2d 277, ¶6 n.3. 13Though not initially under arrest, Thomas was placed under arrest while providing his second statement to police. Officers read Thomas his Miranda rights (Miranda v. Arizona, 384 8 No. 2020AP32-CR

Thomas repeatedly returned to the apartment. On one trip to the

apartment, Thomas noticed Ms. Oliver-Thomas was lying down

because "her chest was hurting." On a subsequent trip upstairs,

Ms. Oliver-Thomas said "she was feeling better." Thomas began

watching a pornographic video and approached his wife to

initiate sex. Even though she initially told him to stop,

Thomas persisted, and, according to Thomas, the pair engaged in

consensual sex, during which they fell to the floor. While

engaged in sex, Thomas stated he had his left arm up around his

wife's neck.

¶15 After Ms. Oliver-Thomas returned to the bed, Thomas

said he began "humping" Ms. Oliver-Thomas's hip area. Thomas

and Ms. Oliver-Thomas again fell to the floor, where Thomas had

his left arm around Ms. Oliver-Thomas's neck a second time.

Thomas stated:

I didn't think I was squeezing hard, but Joyce was struggling and was yelling for me to stop and to quit it. Joyce's feet were kicking the floor while she was telling me to stop. Joyce was telling me she loved me and for me to quit playing. I kept squeezing for a little while . . . Joyce's breathing started to slow down, so I turned her loose. After I turned her loose, Joyce was breathing funny and looking at me. I got up and left [the apartment]. When Thomas returned, he found Ms. Oliver-Thomas laying face

down on the floor. Thomas tried to lift her, but lost his grip

twice. Each time, Ms. Oliver-Thomas's face hit the bed or the

U.S. 436 (1966)), which Thomas then waived to continue speaking with police.

9 No. 2020AP32-CR

floor. Thomas called 911, and the dispatcher instructed Thomas

to begin CPR, which he performed until officers arrived.

¶16 The State charged Thomas with sexual assault pursuant

to Wis. Stat. § 940.225(1)(a) (2021-22),14 the conviction of

which requires a jury to find beyond a reasonable doubt that a

defendant had: (1) sexual contact with another person

(2) without consent and (3) caused great bodily harm to that

person. "Sexual contact" is statutorily defined to include

intentional touching, either directly or through clothing, for

the purpose of sexually arousing or gratifying the defendant.15

The Jury Instructions at Thomas's trial adhered to the statutory

language, and the jury convicted Thomas of first-degree sexual

assault of Ms. Oliver-Thomas.16

¶17 Thomas asserts there was insufficient evidence to

support his conviction for sexual assault independent of the

statements he made to police. Namely, Thomas points to the

results from Joyce's autopsy and forensic examination, which

included the use of a sexual assault kit. The exam's results

All subsequent references to the Wisconsin Statutes are 14

to the 2021-22 version unless otherwise indicated. 15 See Wis. Stat. § 940.225(5)(b)1.

The Jury Instructions at Thomas's trial adhered to the 16

statutory language, stating, "Sexual contact includes the intentional touching of any part of the body of Joyce Oliver- Thomas by the defendant's penis. The touching may have been by the penis directly, or it may have been through the clothing. Sexual contact also requires that the defendant acted with intent to become sexually aroused or gratified."

10 No. 2020AP32-CR

did not reveal any evidence of sexual intercourse.17 The State,

however, alleged first-degree sexual assault consistent with

Thomas's second statement to police. In that statement, Thomas

confessed to "humping" Joyce's hip area, during which he had his

left arm around Joyce's neck and he was squeezing. Joyce

struggled and yelled at Thomas to stop, but Thomas "kept

squeezing for a little while," until "Joyce's breathing started

to slow down." Thomas let her go and noted "Joyce was breathing

funny." Accordingly, evidentiary results of sexual intercourse

from a forensic exam were not necessary to support the State's

theory of sexual assault in this case.

¶18 One of the many tenets upon which our criminal justice

system rests is that "conviction of a crime may not be grounded

on the admission or confessions of the accused alone." State v.

Verhasselt, 83 Wis. 2d 647, 661, 266 N.W.2d 342 (1978).

Instead, Wisconsin law requires corroboration of any

"'significant fact' in order to sustain a conviction." State v.

Hauk, 2002 WI App 226, ¶20, 257 Wis. 2d 579, 652 N.W.2d 393. While at times we have upheld a jury's verdict of criminal

conviction based on "considerable corroborative evidence,"

Verhasselt, 83 Wis. 2d at 662, Wisconsin's corroboration rule

requires less than that. We have said:

All the elements of the crime do not have to be proved independently of an accused's confession; however, there must be some corroboration of the confession in order to support a conviction . . . .

17 R. 319 at 122-23.

11 No. 2020AP32-CR

If there is corroboration of any significant fact, that is sufficient under the Wisconsin test. Holt v. State, 17 Wis. 2d 468, 480, 117 N.W.2d 626 (1962). A

significant fact is corroborated when "there is confidence in []

the fact that the crime the defendant has confessed to indeed

occurred." Bannister, 302 Wis. 2d 158, ¶26. The primary

purpose of the corroboration rule is to ensure the reliability

of an accused's confession, requiring "evidence that the crime

actually occurred." Id., ¶24; Hauk, 257 Wis. 2d 579, ¶24.

¶19 The State points to two pieces of evidence that, in

its view, corroborate a "significant fact" of Thomas's

confession of sexual assault: (1) a downstairs neighbor's

testimony that she was woken by a loud argument upstairs, during

which she heard a woman scream, "Stop, stop, I love you, I love

you;" and (2) a pornographic video recovered at the apartment.

¶20 While the State does not, and need not, offer

corroborating evidence of every element of the crime of sexual

assault, the State has offered corroborating evidence for a

"significant fact" of Thomas's statements given to police. Holt, 17 Wis. 2d at 480. Thomas's downstairs neighbor testified

she heard an argument between a man and woman, and the woman

screamed, "Stop, stop, I love you, I love you." The neighbor

also testified she heard something big hit the floor, the sound

of furniture moving, and silence. She then heard the apartment

door open, and a person she identified as Thomas walked out.

¶21 We conclude the neighbor's testimony corroborates a "significant fact" of Thomas's statements to the police in which

12 No. 2020AP32-CR

he confessed to sexually assaulting his wife. The neighbor

heard a female voice scream "Stop, stop, I love you, I love

you." This phrase corroborates what Thomas told officers;

namely, that while Thomas "humped" the victim's hip area, "Joyce

was struggling and was yelling for me to stop . . . Joyce was

telling me she loved me and for me to quit playing."18

¶22 The neighbor's testimony "permits confidence" that the

crime of sexual assault that Thomas confessed to "indeed

occurred." Bannister, 302 Wis. 2d 158, ¶30. Wisconsin's

corroboration rule does not demand more to support a

factfinder's determination of guilt when the only other evidence

of a particular crime is the defendant's statements to officers.

Holt, 17 Wis. 2d at 480.

¶23 We also conclude that the neighbor's testimony

regarding Ms. Oliver-Thomas's statement establishes a

"significant fact" consistent with our case law. See Bannister,

302 Wis. 2d 158, ¶2 (presence of morphine in an alleged buyer's

body at time of death constituted a significant fact to corroborate confession); see also Holt, 17 Wis. 2d at 480-82

(charred infant torso found in furnace constituted sufficient

independent corroboration of defendant's confession that baby

was alive when placed in the furnace); Verhasselt, 83 Wis. 2d at

While the State need not corroborate a confession with 18

elements of a crime, we recognize, without deciding, Ms. Oliver- Thomas's statement may do just that because we conclude that it is difficult to determine that the phrase "stop, stop" could not show a lack of consent. Holt v. State, 17 Wis. 2d 468, 480, 117 N.W.2d 626 (1962).

13 No. 2020AP32-CR

693 (defendant's confession to fellow prison inmate, gun found

in defendant's car identified as the one from which the bullets

came, and defendant's confession to friend while showing two

bullets corroborated significant facts of confession); State v.

DeHart, 242 Wis. 562, 566, 8 N.W.2d 360 (1943) (location and

condition of victim's body and expert testimony regarding

consistency of bone condition with damage from buckshot

consistent with defendant's confession). Having concluded that

the neighbor's testimony sufficiently corroborates the

statements Thomas made to police, we need not further analyze

the importance of the pornographic video found in Thomas's

apartment.

¶24 We conclude the State satisfied its burden to present

"some evidence" that the sexual assault charged, and to which

Thomas confessed, actually occurred. Bannister, 302 Wis. 2d

158, ¶¶24, 25.

C. The Report at Trial

¶25 The Confrontation Clause of the Sixth Amendment of the United States Constitution prevents the admission of testimonial

hearsay when the declarant is absent from trial 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, 51 (2004). The Sixth Amendment right

of confrontation is a "fundamental right, as made applicable to

and obligatory on the states by the Fourteenth Amendment."

State v. Griep, 2015 WI 40, ¶18, 361 Wis. 2d 657, 863 N.W.2d 567 (citing Pointer v. Texas, 380 U.S. 400, 403 (1965)). 14 No. 2020AP32-CR

¶26 Thomas asks us to consider whether his right to

confront his accuser, guaranteed by the Confrontation Clause,

was violated at his trial. Specifically, Thomas argues his

confrontation right was violated during the State's cross-

examination of his expert witness, Dr. Karl Williams. Thomas

also asks us to consider the impact of the State's use of

testimony, elicited from Dr. Williams himself, for the truth of

the matter asserted at closing argument.

1. The Cross-Examination

¶27 Thomas called just one witness at trial——Dr. Williams,

a medical examiner. On direct examination, Dr. Williams

testified that "in allegations of violence resulting in death,"

he looks for "an exchange of trauma, an exchange of evidence"

between the victim and accused. When asked specifically,

Dr. Williams replied that he did not see signs of a struggle or

of defensive wounds. In his opinion, abrasions on Ms. Oliver-

Thomas's face could have resulted from emergency CPR or from

engaging in face-down sex on the floor, consistent with Thomas's statements.

¶28 On cross-examination, the State challenged

Dr. Williams's characterization that there were no signs of an

exchange of trauma through the following cross-examination:

[Prosecutor]: Now, you also reviewed Wisconsin crime lab reports, correct?

[Dr. Williams]: Correct.

. . . .

15 No. 2020AP32-CR

[Prosecutor]: Okay. But in those crime lab reports, you are aware that there was some analysis done?

[Defense counsel]: Objection.

[Prosecutor]: It's what he relied on in his opinion.[19]

[Defense counsel]: I'm objecting to going into the details of reports that haven't been introduced into evidence, though. It's a back door.

THE COURT: If he examined it, then it's presumably something he discounted or relied upon. The objection is overruled.

[Prosecutor]: And you are aware in those crime lab reports that Oscar Thomas's DNA was found under Joyce Oliver-Thomas's fingernail clippings, which were clipped from her body at the time of the autopsy, correct?

. . . [The State hands the [R]eport to Dr. Williams at his request] . . . .

[Dr. Williams]: Yes, this appears to be an analysis that shows that the DNA found under the [fingernails] was obviously a mixture. You are going to have her DNA, but also evidence of DNA from Oscar Thomas.

[Prosecutor]: And similarly the fingernails from the defendant were also swabbed, and her DNA was found under that as well; is that correct?

[Dr. Williams]: Yes.

[Prosecutor]: Okay.

[Dr. Williams]: They are living in a consensual marriage. A finding of the DNA, they could be scratching each other's back. I mean, there is no

19 Dr. Williams "reviewed" the Report. That he did not "rely" on it also is clear from his testimony that diminishes the importance of the DNA evidence found under the fingernails of Thomas and Joyce, saying there "is no evidence of trauma on him to support the fact that she was struggling sufficiently."

16 No. 2020AP32-CR

evidence of trauma on him to support the fact that she was struggling sufficiently. Documents submitted prior to trial indicate Dr. Williams

reviewed the Report, among other things, in preparing his

testimony. Thomas urges us to conclude that the details

elicited on cross-examination of Dr. Williams violated his

confrontation right.

a. Confrontation or Impeachment

¶29 "The Confrontation Clause of the United States

Constitution and Wisconsin Constitution guarantee criminal

defendants the right to confront witnesses against them."

Crawford, 541 U.S. at 42; State v. Manuel, 2005 WI 75, ¶36, 281

Wis. 2d 554, 697 N.W.2d 811. The right to confrontation applies

to statements that are testimonial. Crawford, 541 U.S. at 68;

State v. Deadwiller, 2012 WI App 89, ¶7, 343 Wis. 2d 703, 820

N.W.2d 149 (citing Davis v. Washington, 547 U.S. 813, 821

(2006)). Testimonial statements are those made "under

circumstances which would lead an objective witness reasonably

to believe that the statement would be available for use at a later trial." Crawford, 541 U.S. at 52. Forensic or scientific

reports "prepared in connection with a criminal investigation or

prosecution" are testimonial and, therefore, within the ambit of

the Confrontation Clause. Bullcoming v. New Mexico, 564 U.S.

647, 658 (2011).

¶30 When forensic or scientific reports are offered for

their truth, an accused must be able to confront the witness against him by subjecting the report's author, as the

17 No. 2020AP32-CR

statement's declarant, to the "crucible of cross-examination."

Id. at 661 (citing Crawford, 541 U.S. at 62). In the event of

witness unavailability, a testimonial statement may be

introduced at trial only if an accused has had a "prior

opportunity for cross-examination." Crawford, 541 U.S. at 68.

It is not enough for a report's author to testify by other

means. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11

(2009) (ex parte affidavits cannot circumvent the right to

confront the declarant by cross-examination); Bullcoming, 564

U.S. at 652 (surrogate testimony does not meet the

constitutional requirement and, an "accused's right is to be

confronted with the analyst who made the certification, unless

that analyst is unavailable at trial, and the accused [has] had

an opportunity, pretrial, to cross-examine that particular

scientist."). In sum, a forensic report cannot be used as

substantive evidence against an accused unless an accused may

confront the report's author through cross-examination in court

or has had a prior opportunity to cross-examine the author. Melendez-Diaz, 577 U.S. at 309.

¶31 Although a criminal defendant must be able to confront

a forensic report's author, expert witnesses may review

inadmissible reports in preparing their testimony. In Williams,

the Supreme Court addressed the constitutionality of "allowing

an expert witness to discuss others' testimonial statements if

the testimonial statements were not themselves admitted as

evidence." Williams v. Illinois, 567 U.S. 50, 67 (2012) (quoting Bullcoming, 564 U.S. at 673 (Sotomayor, J., 18 No. 2020AP32-CR

concurring)). There, the Court concluded an expert may qualify

the assumptions upon which she bases her conclusions so long as

the bases themselves are not offered for their truth. Williams,

567 U.S. at 57-58. The Court reasoned that allowing an expert

to make such disclosures aids the factfinder in making

credibility and weight determinations about the validity of the

expert's opinions. Id. at 77-78.20 Stated otherwise, eliciting

information from an expert for the purpose of undermining the

bases of the expert's opinion, serves to impeach an expert; and

impeachment evidence is not hearsay because it is not offered to

prove the truth of the matter asserted. Id. at 79 (explaining

that the Confrontation Clause applies only to out-of-court

statements that are "use[d]" to "establis[h] the truth of the

matter asserted.").

¶32 Although we acknowledge that Williams does not provide

a majority rationale,21 Wis. Stat. § 907.03 reflects this concept

"The purpose for allowing this disclosure is that it may 20

'assis[t] the jury to evaluate the expert's opinion.' [Citation omitted.] . . . [The approach is] based on the idea that the disclosure of basis evidence can help the factfinder understand the expert's thought process and determine what weight to give to the expert's opinion . . . . The purpose of disclosing the facts on which the expert relied is to allay these fears——to show that the expert's reasoning was not illogical, and that the weight of the expert's opinion does not depend on factual premises unsupported by other evidence in the record——not to prove the truth of the underlying facts." Williams v. Illinois, 567 U.S. 50, 78 (2012).

Williams resulted in a 4-1-4 split. Four justices joined 21

the lead opinion, and Justice Thomas filed an opinion concurring in the judgment.

19 No. 2020AP32-CR

and permits an expert to review inadmissible reports in forming

her conclusions.22 Despite a report's inadmissibility, or a

proponent's failure to obtain admission of the report into

evidence, a cross-examiner may use the contents of a report for

the "distinctive and limited purpose" of attacking an expert's

credibility so a jury may determine the weight to give an

expert's testimony. Id.; see Seifert v. Balink, 2017 WI 2,

¶¶124-127, 372 Wis. 2d 525, 888 N.W.2d 816.

¶33 This method of attack may serve to impeach a witness

even though cross-examination of an expert witness's bases for

her opinion is not a hearsay exception. This is so because

substance of reports and data that an expert reviewed are not

automatically admitted as evidence for the truth of the matter

asserted when they come up in cross-examination for another

purpose. See State v. Watson, 227 Wis. 2d 167, ¶78, 595 N.W.2d

403 (1999) ("[Wisconsin Stat. §] 907.03 does not transform

inadmissible hearsay into admissible hearsay. It does not

permit hearsay evidence to come in through the front door of direct examination."); Staskal v. Symons Corp., 2005 WI App 216,

¶22, 287 Wis. 2d 511, 706 N.W.2d 311 ("[Section] 907.03 is not a

hearsay exception and does not make inadmissible hearsay

"The facts or data in the particular case upon which an 22

expert bases an opinion or inference may be those perceived by or made known to the expert . . . before the hearing . . . . [T]he facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible may not be disclosed to the jury . . . ." Wis. Stat. § 907.03.

20 No. 2020AP32-CR

admissible."). Instead, parties may strategically determine

whether to request cautioning or limiting instructions for the

use of a report that is not eligible to be admitted for the

truth of the matters asserted therein. Limiting instructions

aid a factfinder's understanding of how to evaluate, constrain,

or disregard an expert's opinion "if it is not based on evidence

of record." Watson, 227 Wis. 2d 167, ¶82.

¶34 Turning to the case at hand, the State's use of the

Report to impeach Dr. Williams on cross-examination did not

violate Thomas's confrontation right. The State challenged

Dr. Williams's conclusion that there was "no exchange of

evidence" by referencing the Report that Dr. Williams had

reviewed, which showed DNA exchanges under the fingernails of

Thomas and Ms. Oliver-Thomas. Stated otherwise, by drawing

attention to the "exchange" of DNA between Thomas and

Ms. Oliver-Thomas, the State attempted to undermine

Dr. Williams's opinion that Ms. Oliver-Thomas's cause of death

could have been accidental. The degree to which the State succeeded in limiting the usefulness of Dr. Williams's testimony

was then considered by the jury together with all of the

evidence in deciding Thomas's guilt. Although we recognize

Thomas could have asked for limiting instructions that the jury

not consider the Report's contents for their truth because

testimony about the contents of the Report was not admitted for

substantive purposes, he made no such request. We conclude the

State's questioning on cross-examination relevant to the Report

21 No. 2020AP32-CR

did not violate Thomas's right to confront the Report's author

when used to impeach Dr. Williams's opinion.

b. Truth of the Report

¶35 The State summarily asserted at oral argument that it

wanted the Report's discussion of DNA evidence found under

fingernails employed "for the truth of the matter asserted."

The portions of the State's brief relevant to the Report, its

contents, and the confrontation right rely extensively on

Justice Alito's concurrence in Hemphill v. New York, 595 U.S.

___, 142 S. Ct. 681 (2022). However, at oral argument the State

relied on cases not mentioned in its brief, such as, State v.

Mattox, 2017 WI 9, 373 Wis. 2d 122, 890 N.W.2d 256, Griep, 361

Wis. 2d 657, and Vinicky v. Midland Mut. Cas. Ins. Co., 35

Wis. 2d 246, 151 N.W.2d 77 (1967).

¶36 As we begin, we review Hemphill and Justice Alito's

concurrence and conclude that the State could not use the Report

for its truth at Thomas's trial under Crawford or Hemphill.

¶37 In Hemphill, the Supreme Court heard arguments that the State violated defendant Hemphill's confrontation right

during the course of its prosecution of him for murdering a

young girl who was hit by a stray 9-millimeter bullet.

Hemphill, 142 S. Ct. at 686. Hemphill maintained his innocence

throughout trial and premised his defense on the theory another

man, Morris, was the shooter. Id. at 688. The State had

initially charged Morris with the murder but offered Morris a

plea deal mid-trial, which required Morris to admit to possession of a .357-magnum revolver, rather than a 9-millimeter 22 No. 2020AP32-CR

handgun. Id. at 686. At Hemphill's trial for the same murder,

Hemphill presented "undisputed testimony" that police had

recovered a 9-millimeter handgun from Morris's nightstand. Id.

Over objection, the trial court permitted the State to enter

parts of the transcript from Morris's plea allocution to rebut

Hemphill's defense theory, despite Morris's unavailability to

testify. Id. The trial court based its decision to allow use

of the transcript on a binding New York case,23 which held that

"a criminal defendant could 'open the door' to evidence that

would otherwise be inadmissible under the Confrontation Clause

if the evidence was 'reasonably necessary to correct a

misleading impression.'" Id. at 688. New York's highest court

affirmed the trial and appellate courts, reasoning that at trial

"[the] defendant created a misleading impression that Morris

possessed a 9-millimeter handgun [and so the] introduction of

the plea allocution was reasonably necessary to correct that

misleading impression." Id. at 688-89.

¶38 The United States Supreme Court rejected New York's corrective ideations, asserting there is "no exception [to the

Confrontation Clause] for cases in which the trial judge

believes unconfronted testimonial hearsay might be reasonably

necessary to correct a misleading impression." Id. at 693. The

Supreme Court concluded that New York's rule resulted in a judge

impermissibly making a reliability assessment. Id. at 691-92.

Under the Confrontation Clause, reliability must be assessed in

23 People v. Reid, 971 N.E.2d 353 (N.Y. 2012).

23 No. 2020AP32-CR

a particular manner: "by testing in the crucible of cross-

examination." Id. at 691 (citing Crawford, 541 U.S. at 61). In

summing up the opinion, the majority stated, "[T]he Court does

not decide today the validity of the common-law rule of

completeness as applied to testimonial hearsay. Under that

rule, a party 'against whom a part of an utterance has been put

in, may in his turn complement it by putting in the remainder.'"

Id. at 693 (citations omitted).

¶39 Justice Alito concurred in Hemphill. He addressed

"conditions under which [he said that] a defendant can be deemed

to have validly waived the right to confront adverse witnesses,"

while using the rule of completeness to get there in some

circumstances. Id. at 694 (Alito, J., concurring). Justice

Alito said that a defendant may "waive the Sixth Amendment right

to confront adverse witnesses through conduct." Id. This was

not a case under New York's opening-the-door-to-correct-a-

misleading-statement rule because its application was not

predicated on "conduct evincing intent to relinquish the right of confrontation," nor was it predicated on "action inconsistent

with the assertion of that right." Id. at 694-95. While

acknowledging the reasons under which the New York rule fails

constitutional muster as related to the confrontation right,

Justice Alito stated "[t]here are other circumstances, however,

under which a defendant's introduction of evidence may be

regarded as an implicit waiver of the right to object to the

prosecution's use of evidence that might otherwise be barred by the Confrontation Clause." Id. at 695. The concurrence then 24 No. 2020AP32-CR

suggested the rule of completeness may invoke one of those

circumstances. There, "if a party introduces all or part of a

declarant's statement, the opposing party is entitled to

introduce the remainder of that statement . . . regardless of

whether the statement is testimonial or there was a prior

opportunity to confront the declarant." Id.

¶40 Justice Alito asserted "the rule of completeness fits

comfortably within the concept of implied waiver [of the

confrontation right]." Id. By introducing statements of an

unavailable declarant, "a defendant has made a knowing and

voluntary decision to permit that declarant to appear as an

unconfronted witness." Id. Under this theory, a criminal

defendant may waive his confrontation right by introducing an

incomplete statement of an unavailable declarant; completing an

incomplete or misleading statement, the argument goes, demands

that the entire statement is "fair game." Id.

¶41 In its brief, the State urges us to accept that the

"rationales for the holdings in [Crawford and Hemphill] simply do not apply here."24 The State characterizes Crawford and

Hemphill as rejecting "open-ended, reliability-based exceptions

that applied to any kind of evidence."25 Instead, the State

views the Report at issue in Thomas's conviction as belonging to

a "narrow category of evidence that a defense expert relied on

24 Resp't. Br. at 28. 25 Id. (emphasis in original).

25 No. 2020AP32-CR

and gave factually inaccurate testimony about."26 While

acknowledging the Hemphill concurrence is not binding, the State

asserts the concurrence is the guidance courts have in

evaluating situations like Thomas's where, in the State's view,

Thomas elicited testimony that "flatly contradicted" the Report.

Because "he made 'a tactical choice' to put the [R]eport in

play," he "waived his confrontation right as to that [R]eport."27

¶42 The State is incorrect on several bases. First, it

was the State who introduced the Report in its cross-examination

of Thomas's expert, not the defendant. Second, to the extent

the State views Justice Alito's concurrence as "contemplate[ing]

fact patterns like [the one in the instant case]," we fail to

see how. Justice Alito plainly states, "The introduction of

evidence that is misleading as to the real facts does not, in

itself, indicate a [defendant's] decision regarding whether any

given declarant should be subjected to cross-examination."

Hemphill, 142 S. Ct. at 695 (Alito, J., concurring). In other

words, a defendant's introduction of misleading evidence cannot be interpreted to infer a defendant's waiver of his

confrontation right. Accordingly, we conclude the State's

complaint that Thomas's expert testified in a way it found

"misleading as to the real facts," does not amount to an implied

waiver of the right of confrontation even under Justice Alito's

concurrence.

26 Id. (emphasis in original). 27 Id. at 30.

26 No. 2020AP32-CR

¶43 The fault in the State's rationale is apparent when

applied to Thomas: Dr. Williams reviewed 219 pages of reports

and statements in preparing his testimony. Dr. Williams may

very well have concluded the Report's contents regarding DNA

evidence did not show signs of "an exchange of evidence." As

Dr. Williams testified, the existence of another's DNA under a

cohabitating couple's fingernails may have innocent origins and

is not necessarily indicative of a struggle. If the State

disagreed with his conclusion and sought to challenge it, the

appropriate method is through impeachment, as occurred here.

Otherwise, we fail to differentiate the State's argument from

the reliability determinations that the Supreme Court rejected

in Crawford and Hemphill. See Crawford, 541 U.S. at 62-68,

rejecting the reliability-based approach of Ohio v. Roberts, 448

U.S. 56 (1980); Hemphill, 142 S. Ct. at 690-92, reaffirming that

rejection while overruling People v. Reid, 971 N.E.2d 353 (N.Y.

2012).

¶44 There is little doubt the Report was testimonial when used for its truth. After all, Ms. Oliver-Thomas's fingernails

were clipped during her autopsy and sent to a crime lab to

determine whose, if anyone's, DNA could be found there. The

same could be said for Thomas's fingernails. Under these

circumstances an objective witness would certainly believe the

resulting statement in a report would be "available for use at a

later trial" for its truth. Crawford, 541 U.S. at 52. However,

if the State wanted to use the Report for its truth, the State was required to introduce and authenticate the Report and then 27 No. 2020AP32-CR

subject its author to cross-examination by Thomas in accordance

with the Sixth Amendment and Melendez-Diaz. Melendez-Diaz, 557

U.S. at 305. The information the State elicited from

Dr. Williams on cross-examination for impeachment purposes did

not transform the Report into admissible hearsay. We conclude

that the State's questioning of Dr. Williams served to impeach

his testimony, and that the State's use of the Report for

impeachment did not employ the Report's contents for their

truth.

2. Closing Arguments

¶45 The second instance in which the Report surfaces is

during closing arguments, where the State used evidence elicited

on Dr. Williams's cross-examination for the truth of the

contents of the Report. The prosecution asserted its theory of

the case in closing:

[Prosecutor]: You would have to be high on crack to think that there is any other explanation for Joyce Oliver-Thomas's death than that Oscar Thomas killed her, but it was more than just killing. It was brutal, vicious, violent, choking the life out of her for minutes . . . while he is scratching up her face with his free hand, with his right hand, trying to cover her mouth.

[Defense counsel]: I'm going to object to that. I'm objecting to this demonstrative. There is no evidence of that, Judge.

[Prosecutor]: Closing argument, Your Honor.

THE COURT: Well, no, no, no. Confined to the evidence.

[Prosecutor]: And the evidence supports this theory, Your Honor. We have testimony of the

28 No. 2020AP32-CR

scratches on her face. . . . Her DNA is found under his fingernails. We have testimony from the neighbor downstairs.

THE COURT: All right, as long as you are clear this is your theory, and that --

[Prosecutor]: Absolutely. It is my closing argument, Your Honor. I'm presenting to the jury my theory of how Joyce Oliver-Thomas died, and I think the evidence supports that. This is exactly what I think happened. Oscar Thomas placed his left arm around her throat and squeezed, compressing her neck while using his other hand to muzzle her nose and her mouth to keep her quiet and speed up her death, and that's how she got the scratches on her face. Over defense counsel's objection, the State assured the judge

that "the evidence supports this theory." The State's

representation was not correct. There had been no evidence

admitted for the truth of the DNA found in the fingernail

clippings. The State presented no independent DNA evidence, did

not enter the Report into evidence, and it did not otherwise

present evidence as to the scratches' origin.

¶46 We conclude the State's reliance on hearsay evidence

that was used to impeach Thomas's expert's opinion was improper

during closing arguments because the Report then was used for

the truth of the statements therein. See State v. Marinez, 2011

WI 12, ¶44, 331 Wis. 2d 568, 797 N.W.2d 399 (limiting the use of

evidence that had been admitted because of its high potential

for unfair prejudice); State v. Albright, 98 Wis. 2d 663, 676,

298 N.W.2d 196 (Ct. App. 1980) (concluding that reference to

confiscated weapons was improper given its potential for unfair

prejudice). As stated earlier, the facts or data upon which an expert bases her opinion may be introduced under Wis. Stat.

29 No. 2020AP32-CR

§ 907.03, but only for the limited purpose of assisting the

factfinder in determining an expert's credibility. Watson, 227

Wis. 2d 167, ¶82. Evidence brought in for that purpose does not

transform into admissible hearsay for subsequent use at trial.

Id., ¶78.

¶47 Furthermore, after defense counsel objected, the

prosecutor incorrectly assured the judge that, "[T]he evidence

supports this theory, Your Honor. We have testimony of the

scratches on her face. . . . Her DNA is found under his

fingernails." It was therefore erroneous to permit the

prosecutor's statement in closing argument because the DNA

evidence in the Report was not properly admitted as evidence for

its substantive content.

D. Harmless Error

¶48 Our test for harmless error has varied over the years.

Despite variations, we have consistently noted that there has

been "little practical difference between the formulations of

harmless error which the court has used from time to time." State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985).

Harmless error analyses have been applied to errors claimed to

have occurred during closing argument. State v. Johnson, 60

Wis. 2d 334, 344-45, 210 N.W.2d 735 (1973). Over time, we have

moved toward implementing a uniform harmless error standard

regardless of whether the complained-of error is constitutional,

statutory, or other. Harvey, 254 Wis. 2d 442, ¶40. The

beneficiary of the error, here the State, has the burden of proving the error was harmless. Id., ¶41. 30 No. 2020AP32-CR

¶49 In addition, "[Wis. Stat.] § 805.18, made applicable

to criminal cases by Wis. Stat. § 972.11(1), prohibits reversal

for error not affecting a party's substantial rights." Id.,

¶39. The harmless-error inquiry considers whether it is "clear

beyond a reasonable doubt that a rational jury would have found

the defendant guilty absent the error." Id., ¶46 (citing Neder,

527 U.S. at 18).

¶50 In reviewing a contention that the error was harmless,

we consider evidence that was not affected by the error that

occurred during the State's closing argument. In so doing, we

examine whether the State has met its evidentiary burden.

¶51 In regard to the sexual assault, the State offered the

following evidence at trial: the downstairs neighbor's

testimony asking that Thomas "stop, stop" and the large bump due

to something falling on the floor above; and the medical

examiner's testimony, discussed below.

¶52 Thomas's friend told the jury the pair had smoked

crack together in the apartment basement in the early morning hours on the day Ms. Oliver-Thomas died. The friend stated at

one point he waited about "an hour" for Thomas to return from

checking on his wife. The jury heard that, after Thomas

returned to the basement, Thomas "seemed nervous and kind of

edgy . . . it was a whole different person from what I [had]

seen him like."

¶53 The medical examiner testified regarding the results

she found during the forensic examination of Ms. Oliver-Thomas. The medical examiner provided testimony as to her autopsy 31 No. 2020AP32-CR

report, which was received into evidence. The jury heard the

medical examiner's testimony that "the decedent had injuries to

her face and her neck consistent with strangulation," such as

hemorrhage and bruising along the front of the victim's neck and

throughout the neck muscles. The examiner further testified to

bruises and bites on the victim's tongue, which she stated may

have been caused "by a force against the neck pushing the back

of the neck into the spine." She also testified that she found

injuries on the victim's lips in addition to scratches on her

face. She continued by describing petechiae, small burst

vessels that she observed in the victim's eyes and which are

commonly seen in strangulation cases. The examiner further

testified that the victim had approximately 70ccs of bloody

fluid in her stomach, which the victim swallowed. The State

also entered nine photographs from Ms. Oliver-Thomas's autopsy

into evidence.

¶54 None of this evidence was affected by the State's

substantive use of the hearsay Report in closing argument. While Thomas presented a medical expert in his defense, we make

no determination as to the jurors' assessment of credibility and

weight.

¶55 The harmless error query does not reduce to a mere

quantum of evidence, but instead, whether absent the

hearsay/Report it is clear beyond a reasonable doubt that a

rational jury would have found Thomas guilty. Here, we conclude

that the State offered sufficient evidence for a rational jury to determine Thomas sexually assaulted and intentionally took 32 No. 2020AP32-CR

the life of his wife. All of the observations of physical

injury to Ms. Oliver-Thomas are consistent with the jury's

conclusion that Thomas's interactions with her were not

consensual and were intentional. Accordingly, we conclude that

the State has met its burden to show that the error was

harmless.

III. CONCLUSION

¶56 We affirm the court of appeals and conclude that the

State met its evidentiary burden to sufficiently corroborate

Oscar C. Thomas's confession of sexual assault. We also

conclude that the State's use of the Report that a defense

expert reviewed, but which was not admitted into evidence, did

not violate Thomas's confrontation right under the United

States' Constitution or the Wisconsin Constitution when used for

impeachment purposes.28 However, we reject the State's argument

that it properly used the Report's contents, during closing

argument. Furthermore, following Hemphill, a criminal defendant

does not "open the door" to the introduction of testimonial out- of–court statements for the purpose of "correcting" a

"misleading impression." Although we conclude that the State

did not use the content of the Report for its truth on cross-

examination, the State improperly used the Report's content for

its truth during closing arguments, which the circuit court

We note that Justice Dallet's concurrence concludes the 28

opposite, and is the decision of the court in regard to use of the Report during cross-examination of Thomas's expert witness. See ¶2, supra.

33 No. 2020AP32-CR

erroneously permitted. However, we conclude the error was

harmless because it is "clear beyond a reasonable doubt that a

error." Harvey, 254 Wis. 2d 442, ¶46 (citing Neder, 527 U.S. at

18).

By the Court.—The decision of the court of appeals is

affirmed.

34 No. 2020AP32-CR.rfd

¶57 REBECCA FRANK DALLET, J. (concurring). I join the

portion of the majority/lead opinion holding that Thomas's

confession was sufficiently corroborated to be admissible. See

majority/lead op., ¶¶12-24. As noted in the majority/lead

opinion,1 because this concurrence is joined by Justices Ann

Walsh Bradley, Rebecca Grassl Bradley, and Jill J. Karofsky, it

represents the decision of the court with respect to the second

issue raised in this case: Whether the State violated Thomas's

rights under the Sixth Amendment's Confrontation Clause when it

elicited testimony about DNA evidence contained in a Crime Lab

report not in evidence without affording Thomas the opportunity

to cross-examine the report's author.

¶58 I conclude that the State violated Thomas's Sixth

Amendment rights. The State sought the DNA evidence described

in the Crime Lab report for its truth at trial. That much is

clear from the prosecutor's closing argument to the jury. And

the State confirmed that the DNA evidence was offered for its

truth throughout briefing and during oral argument in this court.2 For that reason, the DNA evidence in the Crime Lab

report was testimonial hearsay; it was an out of court

1 See majority/lead op., ¶2. 2 The majority/lead opinion is right that the State's position has changed over time. See majority/lead op., ¶7. In the post-conviction proceedings, at the court of appeals, and in its response to Thomas's petition for review, the State argued that the DNA evidence was used for impeachment at trial. But that does not change what happened at trial or in briefing and oral argument before us, where the State took the consistent position that the DNA evidence was elicited and used for its truth.

1 No. 2020AP32-CR.rfd

statement, prepared "under circumstances which would lead an

objective witness reasonably to believe that the statement would

be available for use at a later trial," and offered by someone

other than the declarant for the truth of the matters asserted.

See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009)

(quotation omitted). Because the author of that report was not

available for cross-examination, admitting testimony about it

therefore violated the Confrontation Clause. Nevertheless,

because that Confrontation Clause violation was harmless, I

conclude that Thomas's convictions should stand.

I

¶59 Thomas's forensic expert, the sole defense witness at

trial, testified on direct examination that he did not see any

defensive wounds or "signs of a struggle" on the victim. This

was important because Thomas argued that he killed the victim

accidentally. During cross-examination, the State asked

Thomas's expert if he reviewed reports from the Wisconsin Crime

Lab in reaching his conclusions. This was the first time the Crime Lab report and the DNA evidence contained in it came up at

trial, and defense counsel objected to any questioning about the

contents of the report. The circuit court overruled the

objection, however, and allowed the State to ask Thomas's expert

about the report because he reviewed it before reaching his

opinion. The prosecutor then asked the expert about the

report's finding that Thomas's DNA was under the victim's fingernails at the time of the autopsy. After looking at the

report, Thomas's expert said "[y]es, this appears to be an 2 No. 2020AP32-CR.rfd

analysis that shows that the DNA found under the fingerprints

[sic] was obviously a mixture. You are going to have [the

victim's] DNA, but also evidence of DNA from Oscar Thomas." He

also confirmed that the victim's DNA was found under Thomas's

fingernails. Thomas's expert dismissed those conclusions,

however, explaining that Thomas and the victim were married, and

"[a] finding of the DNA, they could be scratching each other's

back. I mean, there is no evidence of trauma on him to support

the fact that she was struggling." The report was never

admitted into evidence.

¶60 The State's actions would have been permissible if, as

the majority/lead opinion hypothesizes, it was done only to

impeach Thomas's expert during cross-examination.3 See

majority/lead op., ¶¶29-34. But the record, and 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.

3After all, experts may rely on inadmissible evidence, including hearsay, in forming their opinions. See Wis. Stat. § 907.03. And if an expert does so, that inadmissible evidence can be used to impeach the expert's credibility on cross- examination, but not for the truth of the matters asserted. See Wis. Stat. § 907.05; see also State v. Heine, 2014 WI App 32, ¶10, 354 Wis. 2d 1, 844 N.W.2d 409. Nevertheless, as explained below, that is not what happened at Thomas's trial.

3 No. 2020AP32-CR.rfd

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,4 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.

¶61 Nevertheless, the majority/lead opinion insists that

the State used the evidence during cross-examination not for its

truth, but only to impeach Thomas's expert's credibility. See

majority/lead op., ¶34. That is correct, in the majority/lead

opinion's view, since the State's briefing "did not argue that

the Report could be used for the truth of its contents." Id.,

¶7. But the majority/lead opinion misunderstands the State's

position. Its argument that Thomas impliedly waived his

confrontation right only matters if the report was used for its truth. After all, 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." See Wis.

Stat. § 908.01(3) (emphasis added); see also Crawford v.

4For example, when speaking about why the evidence was admitted, the State's counsel stated that "we want it for the truth of the matter asserted," "[t]he State is not asking [for] it as impeachment," and "I don't want to go down the path of just calling it impeachment . . . ."

4 No. 2020AP32-CR.rfd

Washington, 541 U.S. 36, 53 (2004). 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.

¶62 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.

¶63 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

5 No. 2020AP32-CR.rfd

court believes that questioning one witness about another's

testimonial statements provides a fair enough opportunity for

cross-examination.").

¶64 The State tries to sidestep that violation by arguing

that Thomas impliedly waived his right to confront the analyst

who prepared the Crime Lab report when his expert witness

"relied on" the DNA evidence in that report and then "gave

factually inaccurate testimony about" it. This argument is

based on the direct testimony of Thomas's expert that he did not

see any defensive wounds or "signs of a struggle" on the victim.

The State claims that was inaccurate because the DNA evidence

showed that Thomas's DNA was under the victim's fingernails (and

her DNA under his).5 And for that reason, the State did not

violate the Sixth Amendment by establishing the facts contained

in the report through cross-examining Thomas's expert.

¶65 This argument, however, mirrors an evidentiary rule

the United States Supreme Court recently held was

unconstitutional in Hemphill v. New York, 142 S. Ct. 681 (2022). That rule allowed evidence that would otherwise violate the

Confrontation Clause to be admitted when the defendant "opened

the door;" that is, when the defendant created "a misleading

impression that requires correction with additional materials

from the other side." Id. at 691 (quotation omitted). The

This argument is questionable even on its own terms since, 5

as Thomas's expert explained, the DNA evidence does not necessarily indicate that a struggle occurred. Indeed, the expert stated that because Thomas and the victim lived together, he would expect to find their DNA under each others' fingernails.

6 No. 2020AP32-CR.rfd

Court rejected that rule because the Sixth Amendment's text

"'does not suggest any open-ended exceptions from the

confrontation requirement to be developed by courts.'" Id. at

690 (quoting Crawford, 541 U.S. at 54). As the Court explained,

"[f]or Confrontation Clause purposes, it was not for the judge

to determine whether the [defendant's] theory . . . was

unreliable, incredible, or otherwise misleading in light of the

State's proffered . . . evidence," or whether that proffered

evidence was "reasonably necessary to correct that misleading

impression." Id. at 692.

¶66 The State attempts to distinguish Hemphill by arguing

that Thomas impliedly waived his confrontation right. As the

State notes, Hemphill left open the possibility that one type of

implied waiver, the common-law rule of completeness, might allow

testimonial hearsay to be admitted under certain circumstances.

See id. at 693. And Justice Alito's concurrence in Hemphill

suggested that defendants can impliedly waive their

confrontation right in other ways, by engaging in "conduct evincing intent to relinquish the right of confrontation" or by

taking an "action inconsistent with the assertion of that

right." Id. at 694-95 (Alito, J., concurring).

¶67 Drawing on that framework, the State argues for a

"narrow solution" that applies to the "narrow category of

evidence that a defense expert relied on and gave factually

inaccurate testimony about." The problem with this argument is

that it rests on the same flawed approach the U.S. Supreme Court rejected in Hemphill. See Hemphill, 142 S. Ct. at 691. As

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Justice Alito acknowledged in his concurrence, a defendant's

introduction of evidence that is allegedly misleading as to the

real facts is not, by itself, the kind of act that signals an

intent to relinquish the Sixth Amendment right to confrontation.

See id. at 695 (Alito, J., concurring). Yet that is what the

State asks us to conclude: that the DNA evidence contained in

the Crime Lab report "was reasonably necessary to correct [the]

misleading impression" created by Thomas's expert's testimony

that he did not see any defensive wounds or "signs of a

struggle" on the victim. See Hemphill, 142 S. Ct. at 692. But

adopting the State's position would defy Hemphill——something we

cannot do. Accordingly, Thomas did not impliedly waive his

Confrontation Clause right, and admitting testimony about the

contents of the Crime Lab report without affording him the

opportunity to confront its author violated the Sixth Amendment.

II

¶68 Nevertheless, I conclude that the Confrontation Clause

violation that occurred here was harmless. An error is harmless if the State proves "beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained."

Chapman v. California, 386 U.S. 18, 24 (1967). Thus, we look

"not [to] what effect the constitutional error might generally

be expected to have upon a reasonable jury, but rather what

effect it had upon the guilty verdict in the case at hand."

Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (citing Chapman, 386 U.S. at 24); see also id. ("The inquiry, in other words, is

not whether, in a trial that occurred without the error, a 8 No. 2020AP32-CR.rfd

guilty verdict would surely have been rendered, but whether the

guilty verdict actually rendered in this trial was surely

unattributable to the error." (emphasis in original)).

¶69 Here, it is clear beyond a reasonable doubt that the

admission of the DNA evidence did not contribute to the guilty

verdict. To be sure, the DNA evidence was used as support for

the State's theory that Thomas intended to kill the victim and,

conversely, to rebut Thomas's theory that the death was

accidental. And admittedly, the DNA evidence was somewhat

useful in that regard as it bolstered the State's narrative that

Thomas scratched the victim's face with his free hand while

choking her to death. But the evidence wasn't necessary to

support that theory since the State's case was already strong

without it. The jury heard testimony from the medical examiner

about injuries to the victim's face, neck, tongue, and lips, all

of which were consistent with Thomas violently and intentionally

strangling the victim. Additionally, the jury also heard from

Thomas's neighbor, who awoke to a loud argument in the middle of the night and a woman screaming "[s]top, stop, I love you, I

love you." She then heard a loud noise, furniture moving, and

silence.

¶70 Finally, even though the jury heard evidence that the

victim's DNA was found under Thomas's fingernails, the rest of

Thomas's expert's testimony undercut the importance of that

fact. When the prosecutor asked Thomas's expert about the DNA

evidence, he said the presence of the DNA was unsurprising given that Thomas and the victim were a couple that lived together.

9 No. 2020AP32-CR.rfd

Thus, even though it was erroneous to admit the DNA evidence in

violation of Thomas's Confrontation Clause rights, it is clear

beyond a reasonable doubt that the error did not contribute to

the jury's guilty verdict. See id.

¶71 I am authorized to state that Justices ANN WALSH BRADLEY, REBECCA

GRASSL BRADLEY, and JILL J. KAROFSKY join this opinion.

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¶72 BRIAN HAGEDORN, J. (concurring). A majority of this

court holds that the testimony of Oscar Thomas's neighbor

corroborates a significant fact underlying his conviction for

first-degree sexual assault. I agree and join ¶¶12-24 of

Justice Roggensack's majority/lead opinion. A majority of the

court also rejects Thomas's plea for a new trial on the grounds

that his Sixth Amendment Confrontation Clause rights were

violated. This alleged error arose when, during cross-

examination, the State elicited testimony from a defense expert

about certain DNA evidence in a crime lab report that was not

admitted into evidence. During its closing argument, the State

urged conviction in partial reliance on that DNA evidence. I

agree with my colleagues that any alleged Confrontation Clause

violation was harmless. But I do not join their analysis of the

Confrontation Clause issues for two reasons.

¶73 First, it is unclear how to analyze and categorize the

State's use of the report. In response to Thomas's

postconviction motion and his appeal, the State argued the DNA evidence was used for impeachment purposes. However, in

briefing and at argument before us, the State asserts, and

Thomas agrees, that the DNA evidence was admitted for its truth

during cross-examination. Justice Roggensack's opinion

concludes that the DNA evidence was properly used to impeach the

defense expert——relying on the parties' prior arguments. By

contrast, Justice Dallet's opinion relies on the State's current

representation, despite the fact that is not how this issue was litigated or represented below. This is unusual, to say the

1 No. 2020AP32-CR.bh

least, and forms a questionable foundation upon which to opine

on these matters.

¶74 Second, the confrontation issues in this case are

novel and factually complicated. They center on how to treat a

report not admitted into evidence that is nonetheless reviewed

by a testifying defense expert. May the contents of such a

report be explored on cross-examination by the State? To what

end? The United States Supreme Court, whose decisions we are

principally applying in this area of law, has not addressed this

question. With little guidance from the Supreme Court in this

still emerging area of law, and because this case is

sufficiently resolved on harmless error, I would not wade into

these uncharted waters at this time.

¶75 Rather than forge our own path on the State's use of

the evidence, or analyze a novel area of federal constitutional

law where the United States Supreme Court has left much

unaddressed, I would simply conclude the Confrontation Clause

errors Thomas alleges, if they are errors at all, were harmless. Thomas is not entitled to a new trial and his convictions should

be affirmed. I respectfully concur.

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