State v. Stuart

2005 WI 47, 695 N.W.2d 259, 279 Wis. 2d 659, 2005 Wisc. LEXIS 152

• Court: Wisconsin Supreme Court
• Decided: April 21, 2005
• Docket: 2001AP1345-CR
• Status: Published

Opinions

ANN WALSH BRADLEY, J.

¶ 1. The petitioner, Paul Stuart, seeks review of an unpublished decision of the court of appeals affirming a judgment of conviction and order denying postconviction relief.¹ Stuart was convicted in 1999 of first-degree intentional homicide for the shooting death of Gary Reagles. This is the third time that Stuart's case has come before this court.

¶ 2. Stuart now asks us to reexamine our decision in State v. Stuart, 2003 WI 73, 262 Wis. 2d 620, 664 N.W.2d 82. There, we rejected his claim that the preliminary hearing testimony of his brother, who implicated Stuart in the murder, was improperly admitted at trial after the brother refused to testify on Fifth Amendment grounds. Stuart asserts that the use of such testimony violated his right to confrontation, as guaranteed by the Sixth Amendment and Article I, Section 7 of the Wisconsin Constitution.

¶ 3. In light of Crawford v. Washington, 541 U.S. 36 (2004), we agree with Stuart that the testimony in question should not have been admitted in his case.² Such evidence violated Stuart's right to confrontation, as he did not have the opportunity to question his brother about a potential motive to testify falsely. We also conclude that the error was not harmless. Accordingly, we reverse the decision of the court of appeals and remand for a new trial.

I — I

¶ 4. On March 27, 1990, Gary Reagles was found dead in his apartment with a single gunshot wound to the chest. A Berretta nine-millimeter gun lay on the floor near his body. Reagles had a history of emotional problems, including prior suicide attempts. His girlfriend told police that he had been threatening suicide because of their impending breakup. Reagles used cocaine on the night of his death and had a blood alcohol content of .393%. Initially, his death was ruled a suicide.

¶ 5. In 1998, Stuart was charged with the first-degree intentional homicide of Reagles. At the preliminary hearing, his brother John Stuart (hereinafter John) implicated him in the shooting.

¶ 6. John testified that on the morning Reagles's body was found, Stuart spoke with him at his residence. Stuart indicated that during the night he partied with Reagles, drinking and getting high on cocaine. According to John, Stuart confessed to shooting Reagles because of cocaine and because Reagles was going to say something about a recent burglary perpetrated by the two brothers.

¶ 7. As questioning continued, John admitted that he and Stuart burglarized a home in Illinois a short time before Reagles's death. They stole coins, pocketknives, and some guns. One of the guns stolen was a Berretta nine-millimeter. John indicated that Stuart had possession of that weapon following the burglary. He described Stuart to be "very confused, very distraught" and "scared" when talking about the shooting. Stuart told him that after he shot Reagles, he "fixed it to look like a suicide."

¶ 8. John testified that George Stuart (hereinafter George), another brother, came over later that day and told John and Stuart that Reagles had been found dead in his apartment. According to John, Stuart acted surprised when informed about the shooting, as if he knew nothing about it. Later, Stuart asked John to provide him with an alibi. Specifically, he asked John to say that he had been at John's home at the time of the shooting. John testified that Stuart left the state on a trip to Arizona within a week of Reagles's death.

¶ 9. On cross-examination, John acknowledged that Stuart's trip to Arizona was not unusual because their mother lived there. He said that he first told police about the information he had regarding Reagles's death when he was stopped for a routine traffic offense in 1992 or 1993.³ He indicated that he gave another statement to police in June of 1998. Defense counsel then asked about the circumstances under which John gave this statement, which drew an objection from the State. The exchange regarding that June 1998 statement was as follows:

Q: Did you have occasion to give that [information you testified to today] to Detective Tappa in June of this year?

A: Did I?

Q: Yes.

A: Yes.

Q: And under what circumstances did you do that?

[Prosecutor]: Objection. Irrelevant.

[Defense Counsel]: It's very relevant under what circumstances the statements that he has testified to as they relate to the criminal complaint in the statement in June 1, 1998.

[Prosecutor]: It's discovery. Your Honor, it pertains to credibility, but not to plausibility.

Court: I think it goes to the credibility issue certainly, and it certainly is discovery. So the objection is sustained.

¶ 10. After the objection, defense counsel continued his cross-examination. John admitted that he was "stoned" when Stuart told him about the shooting. He testified to smoking five or six additional marijuana cigarettes after his conversation with Stuart. John stated that he was confused during the conversation and did not believe what Stuart told him. He was also confused when George came over with the news of Reagles's death because Stuart acted like he had no prior knowledge of it.

¶ 11. Finally, John acknowledged telling police that Stuart told him that there were two shots fired. He further admitted lying for Stuart when he told officers that Stuart was at his home the day of the shooting. After hearing testimony from John and another witness, Arthur Parramoure, who testified that Stuart confessed to shooting Reagles, the court bound the defendant over for trial.⁴

¶ 12. On February 8,1999, the trial began. On the third day of the trial, John took the witness stand and asserted his Fifth Amendment right against self-incrimination. He refused to answer questions, and persisted in the refusal despite the State's offer of use immunity for his testimony and the circuit court's warning that he could be held in contempt of court. According to his attorney, John believed that he had a plea bargain in exchange for his cooperation with the police, and that the State did not keep its part of the bargain. Accordingly, although the plea bargain called upon him to testify at trial in Stuart's case, he nevertheless refused to do so.⁵

¶ 13. The circuit court held John in contempt of court. The State then moved to have John's preliminary hearing testimony admitted into evidence. Stuart's attorney objected, claiming that there was no effective cross-examination of John allowed at the preliminary hearing.

¶ 14. On February 11, 1999, after a motion hearing, the circuit court ruled that John's preliminary hearing testimony was inadmissible. The State immediately appealed. By order dated February 16,1999, the court of appeals summarily affirmed the circuit court's ruling, determining that the opportunity to cross-examine at the preliminary hearing was insufficient to satisfy the constitutional right to confrontation.

¶ 15. The State subsequently filed an emergency petition for review. This court ordered the trial stayed, pending its decision. Thus, in the middle of the trial, everything in the case stopped to await an answer from this court on the issue of the admissibility of John's preliminary hearing testimony. The parties submitted briefs and this court held oral argument on February 23, 1999. The same day, following oral argument, we issued an order reversing the decision of the court of appeals.

¶ 16. After this court's ruling, the trial resumed. Based on our reversal of the court of appeals' decision, the circuit court had John's preliminary hearing testimony read into the record. Defense counsel moved the court "to take judicial notice" that there were two open Kenosha County felony cases against John at the time he was cooperating with the prosecution in its investigation of Stuart. The court refused this request, stating that "[t]he jury will be informed that John had four prior convictions, and that will be the end of what we know about John Stuart."

¶ 17. Additional witnesses were called at trial regarding purported confessions by Stuart. Michael Schultz testified that in March of 1990, he met Stuart in a bar and Stuart told him that he had to kill Reagles. Likewise, David Small testified that when he shared a jail cell with Stuart in September of 1998, Stuart told him details of the shooting. Benjamin Woody also testified that Stuart admitted killing Reagles in a conversation on October 5, 1998. Finally, Damian Simpson was present during Stuart's statements to Woody and stated that Stuart admitted killing Reagles.

¶ 18. On February 26, 1999, Stuart was found guilty of first-degree intentional homicide. He filed a motion for postconviction relief, which was denied. Stuart appealed, and the court of appeals certified the case to this court, identifying two specific issues:

When an appellate court issues an opinion resolving a discretionary ruling of the circuit court, is its decision the law-of-the-case?

Whether an unpublished Wisconsin Supreme Court order reversing a decision of the court of appeals, without providing legal reasoning or legal authorities, establishes the law-of-the-case?

¶ 19. This court held that its 1999 decision established the law of the case with regard to the Confrontation Clause issue. See Stuart, 262 Wis. 2d 620, ¶ 43. It also determined that there were no extraordinary circumstances present that would justify a departure from the law of the case doctrine because the testimony was properly admitted under Confrontation Clause precedent. See id., ¶¶ 32-41. However, this court did not decide the other issues raised by Stuart and remanded those for consideration by the court of appeals. Id., ¶ 4.⁶

¶ 20. On remand, the court of appeals rejected all of Stuart's other claims and affirmed the judgment of conviction and order denying postconviction relief. Stuart then filed a petition for review in which he asked this court, among other things, to reexamine its 2003 decision.

¶ 21. While that petition was pending, the United States Supreme Court issued its decision in Crawford, 541 U.S. 36, which altered Confrontation Clause jurisprudence. When granting Stuart's petition, this court limited its review to the impact Crawford had on his case.

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¶ 22. The central question we address in this case is an evidentiary one. It concerns the admissibility of John's preliminary hearing testimony at Stuart's trial. Whether the admission of this evidence violated Stuart's constitutional right to confrontation is a question of law subject to independent appellate review. State v. Williams, 2002 WI 58, ¶ 7, 253 Wis. 2d 99, 644 N.W.2d 919 (citing State v. Ballos, 230 Wis. 2d 495, 504, 602 N.W.2d 117 (Ct. App. 1999)).

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¶ 23. We begin by examining the issue of Stuart's constitutional right to confrontation. The relevant principles and precedent guiding our analysis were recently set forth in State v. Hale, 2005 WI 7, ¶¶ 43-58, 277 Wis. 2d 593, 691 N.W.2d 637. Although we do not replicate that discussion in full, we highlight some of it here.

¶ 24. At the time of Stuart's trial and first appeal, the reliability analysis of Ohio v. Roberts, 448 U.S. 56 (1980), provided the general framework for determining the admissibility of out-of-court statements under the Confrontation Clause. This court adopted the Roberts approach in State v. Bauer, 109 Wis. 2d 204, 325 N.W.2d 857 (1982), when it held that the admission of an unavailable witness's preliminary examination did not violate the defendant's right to confrontation. See Bauer, 109 Wis. 2d at 208-22.

¶ 25. Applying the Roberts/Bauer framework in our previous decision, we concluded that the admission of John's preliminary hearing testimony did not violate Stuart's right to confrontation. See Stuart, 262 Wis. 2d 620, ¶¶ 32-41. In doing so, we reasoned that, "John's testimony at the preliminary hearing and the circumstances surrounding it were sufficient to satisfy the requirement that there be indicia of reliability." Id., ¶ 41.

¶ 26. As noted in Hale, 277 Wis. 2d 593, ¶ 52, "[w]ith the Crawford decision, a new day has dawned for Confrontation Clause jurisprudence." Thus, the reliability analysis of Roberts/Bauer is no longer good law with respect to the admission of testimonial hearsay evidence. Under Crawford, where testimonial hearsay evidence is at issue, the Sixth Amendment demands what the common law required: (1) unavailability and (2) a prior opportunity for cross-examination.⁷ 541 U.S. at 68.

¶ 27. Like the defendant in Hale, Stuart is the beneficiary of this change in the law because he properly preserved the confrontation issue and his case is still on direct appeal. State v. Koch, 175 Wis. 2d 684, 694, 499 N.W.2d 152 (1993) (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). Accordingly, we consider the applicability of Crawford to his case.

¶ 28. The threshold question for applying the Crawford framework is whether the State is proffering "testimonial" hearsay evidence. Although the Crawford Court declined to provide a comprehensive definition of what constitutes testimonial evidence, it noted that "it applies at a minimum to prior testimony at a preliminary hearing. . . ." Crawford, 541 U.S. at 68. Thus, there is no dispute that John's testimony at the preliminary hearing constituted testimonial hearsay evidence.

¶ 29. Because John's hearsay evidence was testimonial, we turn next to the requirements of the Confrontation Clause as interpreted by Crawford: (1) unavailability of the declarant and (2) a prior opportunity for cross-examination. Id. In this case, there is no dispute that John was unavailable. Both parties also agree that Stuart's limited cross-examination of his brother at the preliminary hearing was insufficient to satisfy his right to confrontation. We too concur with this conclusion.

¶ 30. In Wisconsin, a defendant has a statutory right at a preliminary hearing to cross-examine witnesses against him. Wis. Stat. § 970.03(5).⁸ However, the scope of that cross-examination is limited to issues of plausibility, not credibility. State ex rel. Huser v. Rasmussen, 84 Wis. 2d 600, 614, 267 N.W.2d 285 (1978). This is because the preliminary hearing "is intended to be a summary proceeding to determine essential or basic facts" relating to probable cause, not a "full evidentiary trial on the issue of guilt beyond a reasonable doubt." State v. Dunn, 121 Wis. 2d 389, 396-97, 359 N.W.2d 151 (1984).

¶ 31. Cross-examination at a preliminary examination is not to be used "for the purpose of exploring the general trustworthiness of the witness." Huser, 84 Wis. 2d at 614. Indeed, "[t]hat kind of attack is off limits in a preliminary hearing setting." State v. Sturgeon, 231 Wis. 2d 487, 499, 605 N.W.2d 589 (Ct. App. 1999). When this restriction is enforced, as it was in the present case, and the State attempts to use the preliminary hearing testimony at a later trial, a Confrontation Clause problem arises.

¶ 32. In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Supreme Court held that a defendant's right to confrontation was violated when he was prohibited from cross-examining a prosecution witness about possible motive to testify falsely as a result of the State's dismissal of a pending charge against him. The Court explained that" 'the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.'" Id. at 678-79 (quoting Davis v. Alaska, 415 U.S. 308, 316-17 (1974)).

¶ 33. Likewise, in State v. Lenarchick, 74 Wis. 2d 425, 448, 247 N.W.2d 80 (1976), this court observed that a "defendant, as an ingredient of meaningful cross-examination, must have the right to explore the subjective motives for the witness' testimony." There, defense counsel was not permitted to cross-examine a witness about a charge against that witness that had been dismissed while the defendant's case was pending. Id. at 446. Although no promises had been made to the witness, this court nevertheless recognized the potential motivation to testify falsely:

[The witness] may well have been testifying favorably to the state in the hope and expectation that the state would reward him by dropping or reducing pending charges. Even though that expectation were absurd, defense counsel had the right and duty to explore the witness' motives. When a witness has been criminally charged by the state, he is subject to the coercive power of the state and can also be the object of its leniency. The witness is aware of that fact, and it may well influence his testimony.

Id. at 447-48.

¶ 34. In this case, the jury was informed by the court that John had four criminal convictions. Furthermore, it learned from John's direct examination at the preliminary hearing that he committed a burglary a short time before Reagles's death and that he lied to police. Defense counsel also obtained admissions from John that he was "stoned" and "confused" when he spoke with Stuart about the killing and believed Stuart told him that there were two shots fired.

¶ 35. However, Stuart did not have the opportunity at the preliminary hearing to question his brother about a potential motive to testify falsely. Thus, he was unable to elicit evidence that John had been facing criminal charges in 1998 when he gave his statement to police implicating Stuart in the death of Reagles.⁹

¶ 36. Admittedly, the record is unclear as to what, if any, deal was reached between John and the Kenosha County District Attorney. The facts indicate that while stopped for a traffic matter in 1992, John gave a statement impheating Stuart in a homicide. He agreed to cooperate with authorities and gave another statement in jail on June 1, 1998, one day before he was to appear in Kenosha County Circuit Court to enter pleas in a case where he faced 52 years in prison. The State filed an amended information in that case the next day, June 2, 1998, reducing his exposure by 40 years, from 52 to 12. Additionally, charges relating to an Illinois burglary were not pursued. All of these actions took place prior to John's testimony at Stuart's preliminary hearing on August 13, 1998.

¶ 37. At the very least, these facts demonstrate a potential motivation to testify falsely on the part of John. Had John testified at trial and Stuart been precluded from exploring the motivation to testify falsely, such a restriction would he considered a Confrontation Clause violation. See, e.g., Van Arsdall, 475 U.S. at 679; see also State v. Barreau, 2002 WI App 198, ¶ 55, 257 Wis. 2d 203, 651 N.W.2d 12.

¶ 38. As a result, like the State, we agree with Stuart that the use of his brother's preliminary hearing testimony at trial violated his right to confrontation. The circuit court properly did not allow Stuart to cross-examine John at the preliminary hearing about the effect the pending charges had on his decision to cooperate. Accordingly, John's preliminary hearing testimony should not have been admitted at trial.

IV

¶ 39. Having determined that Stuart's right to confrontation was violated, we examine next whether the error warrants a new trial. Violation of the Confrontation Clause does not result in automatic reversal, but rather is subject to harmless error analysis. State v. Weed, 2003 WI 85, ¶ 28, 263 Wis. 2d 434, 666 N.W.2d 485 (quoting State v. Williams, 2002 WI 118, 2, 256 Wis. 2d 56, 652 N.W.2d 391).

¶ 40. The test for this harmless error was set forth by the Supreme Court in Chapman v. California, 386 U.S. 18 (1967), reh'g denied, 386 U.S. 987 (1967). There, the Court explained that, "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. at 24. An error is harmless if the beneficiary of the error proves "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id¹⁰ Here, the State must carry the burden of proof.

¶ 41. As noted in Hale, 277 Wis. 2d 593, ¶ 61, this court has articulated several factors to aid in its harmless error analysis. These include the frequency of the error, the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence, whether the erroneously admitted evidence duplicates untainted evidence, the nature of the defense, the nature of the State's case, and the overall strength of the State's case. Id. (citing State v. Norman, 2003 WI 72, ¶ 48, 262 Wis. 2d 506, 664 N.W.2d 97; State v. Billings, 110 Wis. 2d 661, 668-70, 329 N.W.2d 192 (1983)).¹¹

¶ 42. In this case, the State contends that Stuart is not entitled to a new trial because the error in admitting John's preliminary hearing testimony was harmless. The State's reasoning is twofold. First, it submits that Stuart would not have been able to effectively impeach John with the circumstances surrounding the 1998 convictions because John testified that he had given the same information to the police in 1992 when no charges were pending. Second, it notes that there were five witnesses other than John who testified that Stuart admitted shooting Reagles.

¶ 43. We are not persuaded by the State's argument. To begin, John never testified that the information was the same. Rather, when asked whether it was "pretty much the same," he responded in the affirmative. The record is unclear as to the substance of John's 1992 conversation with police. It was not testified to at trial, and no police report memorializing the contact was ever entered into evidence. Thus, it is impossible to know if the information given in 1992 was "the same" as that given in 1998.

¶ 44. We do know, however, that prosecution was not commenced against Stuart until after John's second conversation with authorities in 1998. It is reasonable to assume that John's first statement to police did not provide enough information to charge Stuart. The second statement apparently differed sufficiently to enable the commencement of the prosecution. Contrary to the State's assertion, such a circumstance provides fodder for cross-examination and effective impeachment.

¶ 45. Next, the State contends that the error was harmless because five witnesses, other than John, testified that Stuart admitted shooting Reagles. At first blush this appears to be a strong, if not a conclusive, argument. However, the record reveals that the witnesses' testimony had some weaknesses. To begin, of the five witnesses who testified that Stuart admitted shooting Reagles, four acknowledged having criminal records. The fifth witness, Arthur Parramoure, also had a criminal record, but the jury was not informed of this fact.

¶ 46. Of the four witnesses, the number of convictions between them totaled 37.¹² The law presumes that the number of criminal convictions is relevant to a witness's credibility. State v. Smith, 203 Wis. 2d 288, 297-98, 533 N.W.2d 824 (Ct. App. 1996). "The assumption is that the longer the criminal record, the less credible the individual." Id. at 297 (citing Daniel D. Blinka, Wisconsin Evidence § 609.1 at 311 (West's Wisconsin Practice Series, Vol. 7, 1991)).

¶ 47. In addition to hearing their criminal records, the jury heard the testimony of the witnesses contradicted or challenged by witnesses for the defense. Both Benjamin Woody and Damian Simpson testified that on October 5, 1998, while incarcerated in the Kenosha County Jail, they heard Stuart admit to killing Reagles. Yet witnesses for the defense, Miroslav Ro-manic and William McCracken, were present during Stuart's alleged confession to Benjamin Woody and Damian Simpson and denied that it ever took place.

¶ 48. Michael Schultz testified that he met Stuart in a bar in Kenosha and that Stuart admitted to killing Reagles. Yet, the testimony of defense witnesses Robert Landerman III and Scott Finely was offered to attack Schultz's credibility. They testified that they overheard Schultz, who previously testified for the State, tell Stuart that he had never signed statements implicating Stuart in Reagles's death.

¶ 49. David Small, a former cellmate of Stuart, testified that Stuart admitted to killing Reagles. His testimony was contradicted by the testimony of the defendant. Furthermore, Small's credibility could be undermined because he had 12 prior convictions, the most of any of the State's witnesses.

¶ 50. Admittedly, the fifth witness, Arthur Par-ramoure, testified truthfully when he stated that Stuart admitted to killing Reagles. Stuart acknowledged telling Parramoure that and then subsequently telling him that it was not true. According to Stuart, he told Parramoure of the murder in order to frighten Par-ramoure. He wanted Parramoure to be afraid of him, hoping that the fear would keep Parramoure from mistreating Stuart's niece, who was Parramoure's ex-wife. Given these discrepancies and explanation, the impact of the several witnesses' testimony is diminished, while the effect of the uncontroverted erroneously admitted evidence is enhanced.

¶ 51. In analyzing whether the error was harmless, this court considers several factors, including the importance of the erroneously admitted evidence. Here, the importance of John's preliminary hearing testimony is reflected in the action and words of the prosecutor. The action, of course, was the emergency petition filed with this court in the middle of trial, which dealt exclusively with the admission of John's preliminary hearing testimony. The words, meanwhile, were the nearly dozen references made to John's testimony during opening, closing, and rebuttal. Specifically, the prosecutor told the jury that the "most important evidence all came in through John Stuart's testimony and Art Parramoure's testimony."

¶ 52. Apparently, both the jury and judge agreed with the prosecutor's assessment of the evidence. A day into deliberations, the jury asked that the testimony of two witnesses, John and Arthur Parramoure, be read to it. The request was denied with the admonition that the jury should use its collective memories. Later in the morning, the jury again asked for the testimony. This time, it was read back to them. The exchange between the judge and foreman was as follows:

Court: All right. You have indicated in your note you have exhausted your collective and personal memories. There are still some issues you can't resolve.

[Foreperson]: Yes.

Court: We are prepared to read back to you the testimony that was given in court by Mr. Parramoure and John Stuart through both himself and the transcript of some testimony he had given at a preliminary hearing.

The Court reporter will read that back to you.

(Record read)

Court: Ladies and Gentlemen, I would advise you that the transcript that was read to you of the preliminary hearing was conducted on August 13, 1998. That is the testimony that you have asked for that we have read back to you.

Lunch has been ordered. You may go back to the jury room now and continue your deliberations.

¶ 53. Immediately after lunch, at 1:05 p.m., the jury returned a verdict of guilty. Later at postconviction, the judge who presided at trial remarked, "I don't think this was a close case after they read [John's] statement into the record."

¶ 54. The court also considers the overall strength of the State's case. Without the admission of John's preliminary hearing testimony, the overall strength of the State's case would have diminished appreciably. In part, this is because of the nature of the State's case. Here, there was no physical evidence, no DNA or fingerprints, linking Stuart to the shooting. There were no eyewitnesses. As a result, the State relied on circumstantial evidence to prove its case.

¶ 55. We also consider whether there was untainted evidence that corroborates or duplicates the erroneously admitted evidence. Although the testimony of the several witnesses corroborates John's statement, it can hardly be described as untainted for the reasons listed above. Nevertheless, we acknowledge that the cumulative effect benefits the State's case.

¶ 56. Finally, we examine the nature of the defense in assessing whether the error was harmless. Here, the theory of Stuart's defense was that Reagles had committed suicide. This was certainly plausible given Reagles's prior suicide attempts, his more immediate threatened suicide due to an impending breakup with his girlfriend, and the presence of cocaine and alcohol in his bloodstream. Indeed, Reagles's death was initially ruled a suicide.

¶ 57. In considering these facts and factors, we are impelled to the conclusion that the error in admitting the preliminary hearing testimony, in violation of the defendant's right to confrontation, was not harmless. The State has the burden of proving beyond a reasonable doubt that "the error complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 24. The State failed to meet that burden here. The action and words of the prosecutors, judge, and jury underscore the importance of the erroneously admitted evidence. We are unable to conclude that this evidence did not contribute to the verdict.

V

¶ 58. In sum, in light of Crawford, 541 U.S. 36, we agree with Stuart that the testimony in question should not have been admitted in his case. Such evidence violated Stuart's right to confrontation, as he did not have the opportunity to question his brother about a potential motive to testify falsely. We also conclude that the error was not harmless. Accordingly, we reverse the decision of the court of appeals and remand for a new trial.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded.

1 State v. Stuart, No. 01-1345, unpublished slip. op. (Wis. Ct. App. December 10, 2003) (affirming a judgment and order of the circuit court for Kenosha County, Michael S. Fisher, Judge).

2 Under the law of the case doctrine," 'a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.'" State v. Stuart, 2003 WI 73, ¶ 23, 262 Wis. 2d 620, 664 N.W.2d 82 (quoting Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989)). This rule, however, is not absolute. Id., ¶ 24. An appellate court may disregard the doctrine in the interest of justice or in certain circumstances when " 'cogent, substantial, and proper reasons exist.'" Id., ¶ 24 (quoting Univest, 148 Wis. 2d at 39). Because Crawford v. Washington, 541 U.S. 36 (2004) represents a change in controlling authority, the State acknowledges that the law of the case doctrine does not preclude us from revisiting Stuart's Confrontation Clause claim. We agree.

3 Detective Tappa testified at trial that he stopped John's vehicle in 1992 because he thought John was his brother Larry, for whom there was an outstanding warrant.

4 Arthur Parramoure, whose ex-wife is Stuart's niece, testified that he and Stuart drove to Arizona a few days after the death of Reagles. He stated that while they were driving through Oklahoma, Stuart said that he shot Reagles during an argument over a gun. According to Parramoure, Stuart told him the next day that he was "bullshitting" him about killing Reagles. When Stuart testified in his own defense at trial, he explained that he was trying to scare Parramoure so that Parramoure would not mistreat Stuart's niece.

5 At Stuart's trial, John indicated through his attorney that he "believe[d] there was a plea bargain that was supposedly made with regard to his pleading to certain charges that also involved him testifying in this case. It was his opinion or belief that that plea bargain was not honored at the time of sentencing." The prosecutor denied that the charges against John had been reduced on June 2, 1998, as a result of Stuart's case. In doing so, however, she admitted, "I can tell you when I spoke to [John] he told me he was shafted by me personally because I was the prosecutor on his case. He stated his belief was that I was to come into court and recommend probation .. .."

John's understanding of the existence of a deal is buttressed by a letter dated May 12, 1998 from the Kenosha County District Attorney, indicating that it would not pursue charges against him for truthful information he provided regarding Reagles's death. It is also supported by a report by Detective Tappa dated June 1, 1998, acknowledging that arrangements were also made with the Illinois State's Attorney, granting John immunity from a burglary he committed before Reagles's death. The Illinois burglary charge was not pursued. Ultimately, we need not resolve what, if any, agreement existed between the parties.

6 Those questions included:

1) Whether trial counsel was ineffective where he failed to stipulate to a pending subornation of perjury charge by John Stuart?

2) Whether the trial court erred for failing to inform the jury concerning the significant criminal charges John Stuart was facing at the time he gave a statement?

3) Whether the trial court erred when it barred the defendant from arguing John Stuart's bias?

4) Whether or not new evidence warrants a new trial?

5) Whether the failure of defense counsel to inform the jury that Arthur Parramoure had a criminal conviction would entitle defendant to a new trial?

6) Whether trial counsel was ineffective for failing to object to evidence of the nature of Paul Stuart's criminal convictions?

7) Whether Paul Stuart's conviction should he reversed in the interest of justice?

Stuart, 262 Wis. 2d 620, ¶ 4, n. 2.

7 Cross-examination has been described as the " 'greatest legal engine ever invented for the discovery of truth.'" California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 Wigmore § 1367).

8 All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

9 Although defense counsel tried to ameliorate this problem through the use of judicial notice, his attempt proved unsuccessful.

10 In recent years, the U.S. Supreme Court and this court, while adhering to the Chapman test, have also articulated alternative wording. See, e.g., Neder v. United States, 527 U.S. 1, (1999); State v. Weed, 2003 WI 85, ¶ 29, 263 Wis. 2d 434, 666 N.W.2d 485; State v. Harvey, 2002 WI 93, ¶ 48, n. 14, 254 Wis. 2d 442, 647 N.W.2d 189.

11 This multifactor approach has been utilized by other jurisdictions in recent cases involving Confrontation Clause violations. E.g., State v. Cox, 876 So. 2d 932, 939 (3rd Cir. 2004); Richardson v. Newland, 342 F. Supp. 2d 900, 925, n. 15 (E.D. Cal. 2004); People v. Fry, 92 P.3d 970, 980 (Colo. 2004); Jones v. U.S., 853 A.2d 146, 153-54 (D.C. 2004); Hannon v. State, 84 P.3d 320, 332-33 (Wyo. 2004). See also United States v. Gilbert, 391 F.3d 882 (7th Cir. 2004).

12 David Small had 12 convictions, Michael Schultz had 11 convictions, Benjamin Woody had 7 convictions, and Damian Simpson had 7 convictions.