State v. Schmidt, 2012 WI App 137
Issue 1: Did requiring the defendant to submit to a horizontal gaze nystagmus test to be used as evidence in an OWI trial a violation of the defendant’s Fifth Amendment freedom from self-incrimination?
Issue 2: Did the court deny the defendant the right to a fair trial when it granted the State’s request to conduct a horizontal gaze nystagmus test on him?
Holding 1: A horizontal gaze nystagmus test is not testimonial in nature and therefore its admission at trial is not barred by the Fifth Amendment.
Holding 2: Allowing the State to conduct a horizontal gaze nystagmus test at trial did not deny the defendant the right to a fair trial.
Schmidt appealed his fourth-offense OWI and PAC convictions on the grounds that the trial court violated his Fifth Amendment privilege against self-incrimination by requiring him to take a horizontal gaze nystagmus (HGN) test and admitting the results into evidence. State v. Schmidt, ¶1. The court concluded that an HGN test is not testimonial in nature, and did not implicate Schmidt’s Fifth Amendment rights. Thus, Schmidt’s convictions were affirmed.
On April 15, 2010, Schmidt drove to the Winnebago County Jail to pick up his daughter, who had been arrested for OWI. Id. at ¶2. Jail regulations mandate that an OWI arrestee be released only to an absolutely sober responsible party. Id. Jail staff suspected Schmidt had been drinking and asked a deputy to check on the situation. Id. Schmidt admitted drinking earlier in the evening and submitted to several field sobriety tests. Id. When the sheriff’s deputy conducted the HGN test, Schmidt exhibited six out of six possible indicia of impairment. Id. A blood draw revealed he had a BAC of 0.13 percent. Id.
At trial, Schmidt’s attorney questioned the deputy about other possible causes of nystagmus, including diabetes. Id. at ¶3. The deputy testified that he did not know if Schmidt had a condition that would affect the HGN test, at which point the State asked the court for permission to administer the HGN test again. Id. The court sustained Schmidt’s objection, but stated that if Schmidt chose to testify and the State could establish that he was sober, it would grant the State’s request. Id. After Schmidt chose to testify, and stated that he had not had any alcohol that day or the previous night, the court allowed the deputy to administer the HGN test outside of the jury’s presence. Id. at ¶4. Schmidt exhibited zero out of six possible indicia of impairment. Id.
Relying on State v. Babbitt, 188 Wis. 2d 349, 525 N.W.2d 102 (Ct. App. 1994), in which the court held that field sobriety tests are not testimonial in nature, the court noted that a defendant does not intend to convey a statement through a physical test. Thus it is not self-incrimination under the Fifth Amendment to admit the results of a physical test. Schmidt at ¶¶7, 8. Additionally, Schmerber v. California, 384 U.S. 757 (1966), stands for the principle that the Fifth Amendment does not bar the requirement to submit to physical testing, including “fingerprinting, photographing or measuring, writing or speaking for identification, assuming a stance, or making a particular gesture.” Schmidt at ¶7 (citing Schmerber v. California, 384 U.S. at 764). Finding that the HGN test was physical evidence, the court concluded that it was not unconstitutionally admitted. Id. at ¶9.
The court next examined whether requiring Schmit to take the HGN test at trial denied him a fair trial. Id. at ¶10. Because the test did not violate Schmidt’s Fifth Amendment rights and because he was not truly required to take the test – he was given the opportunity to avoid it if he chose not to testify – the court concluded that he had not been denied the right to a fair trial. Id.
State v. Devries, 2012 WI App 119
Issue: Is a preliminary breath test requested by a probation officer but administered by a police officer an unlawful police search?
Holding: The preliminary breath test requested by a probation officer but administered by a police officer was a lawful probation search.
Marilee Devries appealed her OWI conviction and the trial court’s denial of her motions to suppress preliminary breath test (PBT) results for lack of reasonable suspicion or probable cause. Devries, ¶1. However, she conceded that if the administration of the PBT were a probation search, rather than a police search, it was lawful. Id.
On April 1, 2009, Devries reported to her probation officer. Id. at ¶2. After detecting the odor of intoxicants from Devries, the probation officer requested a police officer administer a PBT. Id. When the police officer showed Devries’ probation officer the .128 BAC reading, her probation officer informed him that Devries had driven there. Id. The police officer then investigated and subsequently arrested Devries for OWI, sixth offense. Id.
The court reviewed the incident to determine whether the search was a probation search or a police search. Id. at ¶3. Devries argued that, because the police officer directly administered the PBT, and because Wis. Admin. Code § DOC 328.21(4)(1) (Dec. 2006) authorizes “any trained field agent” to administer a PBT, but is silent concerning whether police officers may administer probation searches, the search was an unlawful police search. Id. at ¶4. The court of appeals rejected this argument. Id. at ¶5. The court reasoned that the probation officer initiated the search and requested a police officer to administer the PBT. The court noted that the police officer knew nothing about Devries’ previous driving until after showing the probation officer the PBT results. Id. It was only after disclosing the results of the PBT that the officer learned of Devries’ possible criminal activity and then commenced a police investigation. Id.
Devries argued that when police were present to provide protection while a probation officer conducted a search, the search was a probation search. Id. at ¶6. Yet the court found that the relevant case law did not suggest that a search conducted by a police officer at the request of a probation officer was then a police search. Id. at ¶7. Because the search was not conducted for a police purpose, but rather on behalf of a probation officer, the court reasoned that it was still a probation search. Id. Thus, as the PBT results were the product of a probation search and not an unlawful police search, the court of appeals affirmed the trial court's orders denying Devries’ motions to suppress. Id. at ¶9.
State v. Felton, 2012 WI App 114
Issue 1: Whether the officer had probable cause to give Felton a preliminary breath test after he passed the properly administered field sobriety tests.
Issue 2: Whether preliminary breath test evidence requires proof that the instrument used was approved or certified as accurate.
Holding 1: The officer had probable cause to administer a preliminary breath test after Felton successfully completed the field sobriety tests.
Holding 2: Evidence that the preliminary breath test was approved or certified as accurate is not required for admissibility. The PBT needs to be “a device approved by the department for this purpose.”
Felton appeals the trial court’s denial of his motion to suppress evidence on two grounds. First, he argues that there was no probable cause to administer a preliminary breath test after he passed all of the properly administered field sobriety tests. Felton, ¶1. Second, he argues that there is no evidence that the instrument used to administer the preliminary breath test was approved or certified as accurate. Id. The court of appeals affirmed Felton’s conviction of fourth offense OWI. Id.
A police officer stopped Felton after witnessing him linger unusually long at one stop sign, then drive straight through another. Id. at ¶2. When the officer approached Felton, he noticed that his eyes were bloodshot, and Felton admitted to having three beers. Id. at ¶3. The officer smelled intoxicants coming from the car, and asked Felton to step outside of the vehicle where he confirmed that Felton himself smelled of intoxicants. Id. After Felton successfully completed both the “walk-and-turn” and “one-leg stand” field sobriety tests, the officer asked him to take a preliminary breath test. Id. at ¶¶4, 5. The test results indicated that he may have been driving in violation of Wis. Stat. §346.63(1) (unlawful to drive “[u]nder the influence of an intoxicant” or with “a prohibited alcohol concentration”), the officer arrested Felton for drunk driving, fourth offense. Id. at ¶5.
Although Felton did not argue that the test results gave the officer probable cause to arrest him, he did argue that the officer did not have probable cause to issue the preliminary breath test, as required by Wis. Stat. § 343.303, which states, in relevant part:
“If a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63(1)…the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a device approved by the department for this purpose.”
Id. at ¶¶6, 7. The court of appeals reasoned that the statute does not require probable cause to arrest. Id. at ¶8. Rather, it requires a basis to justify an investigative stop. Id. The court reviewed this question de novo. Id. Noting the quantity of evidence that the officer had already collected, including Felton’s traffic violation and unusual driving, his admission to drinking, his bloodshot eyes, and the odor of intoxicants, the court held that, under the totality of the circumstances, the officer had ample reason to believe that Felton had likely violated Wis. Stat. § 346.63(1). Id. at ¶9. It further stated that, just as innocent behavior does not negate co-existing evidence of criminal activity; Felton’s successful completion of the field sobriety tests did not negate the probable cause that the officer had to administer the preliminary breath test. Id. at ¶10.
The court also rejected Felton’s argument that the preliminary breath test results could not be used as evidence without proof that the instrument used had been calibrated and was operating accurately. Id. at ¶11. Although Wis. Stat. § 343.305(6) sets out requirements for methods of testing blood or urine for alcohol content, no statute similarly requires proof that a preliminary breath test be calibrated when a police officer uses it to determine whether to arrest someone for operating while intoxicated. Id. at ¶12. The court concluded that if the legislature wanted to make evidence of approval or certification a necessary prerequisite to use of a preliminary breath test, it would have provided the statutory requirement. Id. at ¶¶13, 14.
State v. Rissley, 2012 WI App 112
Issue: Did police have reasonable suspicion to initiate a Terry stop based solely on a caller’s description of Rissley’s conduct, vehicle, and direction of travel?
Holding: The appellate court found that police had reasonable suspicion to stop Rissley based on the collective knowledge doctrine of information relayed from a caller to dispatch and a police officer.
The State appealed the trial court’s order granting Carl Rissley’s motion to suppress evidence obtained after a police officer stopped his car. State v. Rissley, 2012 WI App 112, ¶1. The trial court held that it was not a valid Terry (Terry v. Ohio, 392 U.S. 1 (1968) stop because the officer did not have reasonable suspicion that Rissley had committed or was committing a crime. Id. Rissley also argued that certain minor offenses do not justify Terry stops because they lack the necessary gravity or exigency that would outweigh an invasion of the suspect’s rights. Id. The appellate court reversed the trial court’s order, finding that the officer had reasonable suspicion of criminal trespass, speeding, erratic driving, and possibly stalking. Id. Additionally, the appellate court rejected the notion of a “bright-line rule” that bars Terry stops for “minor crimes.” Id. The court remanded the case for trial. Id.
In the early morning hours on April 17, 2010, a homeowner called police to report that a man was in his driveway asking for the location of a man he called “Pookie.” Id. at ¶2. The homeowner reported that he recognized this man and had called police after this man had bothered him before. Id. at ¶3. However, he reported that he did not have a son at home with him, let alone one who went by “Pookie,” as the man insisted. Id. at ¶3. While still on the phone with dispatch, the homeowner reported that the man was leaving his property and described the man’s vehicle and direction of travel. Id. at ¶3. An officer responded to the call and was able to spot a vehicle traveling on the road in the direction described. Id. at ¶4. The officer followed the car and confirmed that the vehicle matched the homeowner’s description. Id. at ¶5. Five minutes after the homeowner called police, the officer stopped the vehicle. Id. at ¶5. The officer smelled alcohol on the driver, Rissley, and after having him perform field sobriety tests, the officer arrested him for operating while intoxicated, fifth offense. Id. at ¶6.
On appeal, the court reviewed whether the facts relayed in the homeowner’s call gave the police reasonable suspicion to stop Rissley. Id. at ¶8. The test for determining reasonable suspicion is based on an objective standard and takes into account the totality of the circumstances. Id. at ¶9 Further, reasonable suspicion must be based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the intrusion of the stop. (citing State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634).
The appellate court held that the homeowner’s allegations that a man had approached him in his driveway, threatened him, and demanded to know about a son the homeowner did not have were sufficient to give police reasonable suspicion that criminal trespass and disorderly conduct were afoot. Id. at ¶¶11, 13. To determine whether there was reasonable suspicion to believe that Rissley’s vehicle was connected to this criminal activity, the court examined the following six factors established in State v. Guzy, 139 Wis. 2d 663, 407 N.W.2d 548 (1987):
(1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender’s flight; (5) observed activity by the particular person stopped; and (6)knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.
Id. at 15 (citing Guzy, 139 Wis.2d at 677). The court found that the facts supported the first four factors of the Guzy test, and that the last two were irrelevant to this case. Id. at ¶16. Considering the particularity of the homeowner’s description, the speed of the officer’s response, and the improbability that there were many other suspects in that rural area at 3:00 a.m., the court concluded the facts were strong enough to provide reasonable suspicion that Rissley’s vehicle was the one described by the homeowner. Id. at ¶¶16-18.
Finally, the court responded to Rissley’s argument that officers should not be able to make Terry stops for minor offenses. Id. at ¶20. The court dismissed this claim on the grounds that concerns over unreasonable invasions of citizens’ rights applied only to wholly past offenses that lacked any exigent circumstances or threat of re-occurrence, and concluded that in this case, officers had reason to believe that crime was ongoing or likely to reoccur. Id. at ¶¶22-24 (citing United States v. Hensley, 469 U.S. 221, 228 (1985).
2012 WI App 100
Issue: Is judicial review of a city’s decision not to renew a liquor license under Wis. Stat. §125.12(2)(d) limited to issues reviewable by certiorari or is de novo review required?
Holding: Wis. Stat. §125.12(2)(d) contemplates de novo judicial review of a city’s decision not to renew a liquor license.
Thomas and Suporn Nowell, d/b/a IC Willy’s, LLC, appealed from the trial court’s judgment affirming the City of Wausau’s decision not to renew their liquor license. Nowell v. City of Wausau, 2011AP1045 (Wis. App. Filed August 21, 2012) ¶1. They argued that the circuit court erred by limiting their review of the decision to issues reviewable by certiorari and instead should have given the entire case de novo review. Id. at ¶4.
The City notified IC Willy’s on May 25th, 2010, that they did not intend to renew its liquor license because of the numerous calls made to the police because of its activities and noise levels. Id. at ¶2. IC Willy’s requested a hearing on this matter, which the city’s public health and safety committee held the next month. Id. at ¶3. The City followed the committee’s recommendation against renewing the liquor license, and IC Willy’s appealed to the circuit court for review of the decision. Id.
The circuit court took the matter under certiorari review. Id. at ¶4. Upon determining that the city had acted within its jurisdiction, had not acted arbitrarily, and acted according to law, the circuit court upheld the city’s decision. Id. IC Willy’s appealed the decision on the basis that the statute governing judicial review of municipal decisions to grant or not grant liquor licenses, Wis. Stat. §125.12.(2)(d), demands de novo review of the issue, not merely certiorari review. Id.
Wis. Stat. §125.12.(2)(d) states, in relevant part:
“The action of any municipal governing body in granting or failing to grant, suspending or revoking any license, or the failure of any municipal governing body to revoke or suspend any license for good cause, may be reviewed by the circuit court for the county in which the application for the license was issued, upon application by any applicant, licensee or resident of the municipality. The procedure on review shall be the same as in civil actions instituted in the circuit court.”
Wis. Stat. §125.12(2)(d).
The Wisconsin Court of Appeals found that certiorari review is an extraordinary form of review that “bears no resemblance to the usual processes of courts.” Id. at ¶7, (citing Merkel v. Village of Germantown, 218 Wis. 2d 572, 577, 581 N.W.552 (Ct. App. 1998)). The court furthered that, “[t]he practice[s] applicable to ordinary civil actions [are] not applicable to either common-law or statutory writs of certiorari.” Nowell at ¶8, (citing State ex rel. Casper v. Board of Trustees, 30 Wis. 2d 170, 176, 140 N.W.2d 301 (1966)).
Though the city pointed to the Wisconsin Supreme Court decision of Marquette Savings & Loan Ass’n v. Village of Twin Lakes, 38 Wis. 2d 310, 316, 156 N.W.2d 425 (1968), which held that certiorari review was appropriate for municipal decisions to renew liquor licenses, the court held that the case was irrelevant as it was decided prior to the enactment of Wis. Stat. §125.12(2)(d). Nowell at ¶¶9, 10. The court acknowledged that limiting the case to certiorari review would preserve local autonomy to determine community-related affairs. Id. at ¶11. However, it found that the plain language of the statute suggested de novo review and that the legislature could have reasonably intended for de novo review to protect tavern owners against the high-stakes risk of losing not only their licenses, but also their occupations, investments, and property values. Id. at ¶¶6, 12. Thus the court reversed the decision of the circuit court and directed the lower court to hold any additional hearings necessary to review the case de novo. Id. at ¶13.
2012 WI App 101
Issue 1: Is the Equal Protection Clause implicated by the homicide by intoxicated use of a vehicle statute as it applies to an unborn child because it creates an exemption from criminal liability for a pregnant mother who causes the death of her unborn child?
Issue 2: Was the defendant denied a fair sentencing hearing due to misleading phrases in the pharmacological report relating to the amount of Ambien in his blood?
Issue 3: Was the defendant denied his Sixth Amendment right to effective assistance of counsel when his counsel submitted the pharmacological report containing misleading phrases?
Holding 1: No, pregnant women are not similarly situated to others who might cause the death of an unborn child in another woman, since people who are not pregnant do not inherently risk injury or death to themselves were they to cause injury or death to an unborn child.
Holding 2: No, the defendant waived his right to contest the erroneousness of the pharmacological report when his counsel directly submitted it to the court.
Holding 3: No, the defendant was not prejudiced in his sentencing hearing by his attorney’s conduct, and thus his Sixth Amendment right was not violated.
Mark Benson pled guilty to three counts of homicide by intoxicated use of a vehicle, one count of causing great bodily harm by intoxicated use of a vehicle, and one count of causing injury by intoxicated use of a vehicle after he slammed into the back of a vehicle stopped at a traffic light. State v. Benson, 2011AP1399, (Wis. App. filed August 1, 2012), ¶1. His charges stem from an incident on April 25, 2008, when he took multiple prescription drugs before driving and hitting a car containing a pregnant woman and three children, killing the woman, her unborn child, and another child, and injuring two other children. Id. He appealed on three separate issues. Id. at ¶2.
He first appealed the charge relating to the unborn child, arguing that because the statute creates an exemption for a pregnant women who commits an act that results in the death, great bodily harm, or bodily harm of the unborn child, it is unconstitutional on equal protection grounds. Id. at ¶¶9, 10. The court notes that there is a strong presumption of constitutionality that accompanies a statute, so that any question of whether it is constitutional must be resolved in favor of upholding the statute. Id. at ¶13. However, if the defendant can prove that the statute treats similarly situated groups differently, it must be found unconstitutional. Id. at ¶12. Ultimately, the court concluded that pregnant women who would cause the death or injury of their unborn children are situated differently than others because a pregnant woman who does something that would harm her unborn child inherently risks her own health or life, whereas others do not inherently risk their own well-being by causing death or injury to an unborn child. Id. at ¶¶14, 15.
The court then summarily denied the second issue on appeal; whether the court denied Benson a fair hearing by relying on misleading phrases in the pharmacological report. Id. at ¶17. Though the court left open the question of whether the report was in fact misleading, it noted that because Benson’s own counsel had submitted the report without seeking to change any part of it, Benson was not entitled to relief because of the trial court’s reliance on it. Id.
The court considered whether Benson’s counsel made an error that prejudiced the outcome by failing to correct the misleading terminology in the pharmacological report. Id. Specifically, the report stated that therapeutic levels of Ambien in the bloodstream are between 3 and 18 mcg/L, and that the amount of Ambien found in Benson’s bloodstream was 253.9 ng/ml. Id. at ¶20. Benson argued that this gave the trial court the incorrect impression that the amount of Ambien in his blood was much greater than the prescribed amount, which would mean that he would have to have been abusing the drug, when in fact the amount detected in his blood had been within the therapeutic range. Id. at ¶21. To review whether this affected the trial court’s sentencing decision, the appellate court reviewed the record made at the sentencing hearing. Id. at ¶22. It found that the trial court did not rely on this information during sentencing. Id. Rather, the trial court held that because Benson had taken Ambien “both before and after the time of the crash,” the amount of Ambien detected in Benson’s blood after the crash may have been higher than what it would have registered at the time of the crash and therefore not reliable information upon which to base a sentencing decision. Id. at ¶24. Thus, regardless of whether Benson’s counsel was deficient in failing to correct the wording of the report, his Sixth Amendment right to the effective assistance of counsel was not violated because the error was not prejudicial to Benson. Id. at ¶26.
2012 WI App 104
Issue 1: Did defendant voluntarily consent to a blood draw?
Issue 2: Was defendant entitled to a new trial based on ineffective assistance of counsel for failing to object to character testimony given by the victim’s mother?
Holding 1: The defendant voluntarily consented to the blood draw used to establish his BAC.
Holding 2: While the defense counsel should have objected to the blatantly irrelevant character testimony, the error was not prejudicial due to the overwhelming relevant evidence against the defendant.
Jason Jacobs was convicted of homicide by operation of a vehicle with a prohibited alcohol concentration and with a detectable amount of a restricted controlled substance contrary to Wis. Stat. §§940.09(1)(am) and (b) (2009-10). State v. Jacobs, 2011AP1852, (Wis. App. filed August 1, 2012), ¶1. He appealed the conviction on two grounds. First, he argued that the results of his blood test should have been suppressed because he did not voluntarily consent to the blood draw. Id. Second, he argues that his attorney’s performance was deficient and the deficient performance was prejudicial. Id. Namely, he argues that the jury was unduly swayed against him because his attorney failed to object when the victim’s mother testified about her son’s character. Id.
On November 14, 2008, Jacobs ran a stop sign and collided with the victim’s car, killing the victim. Id. at ¶2. At trial, a witness testified that Jacobs did not even slow down before entering the intersection. Id. at ¶14. After the crash, officers administered multiple field sobriety tests with inconclusive results before requesting that he go with them to a hospital for a blood draw to determine his BAC. Id. at ¶¶2, 3. On the way to the hospital, Jacobs used the phone in the police car to call an attorney. Id. at ¶4. The attorney counseled him not to submit to any tests or make any statements to the police. Id. at ¶5. Thereafter, the testimony of Jacobs diverged from that of the officers and the drug recognition expert. Id. at ¶6. Jacobs contended that the officers told him that if he did not voluntarily submit to the blood draw, they would place him under arrest and take his blood anyway. Id. at ¶7. The officers at the scene, however, stated that they reminded Jacobs multiple times that he was not under arrest, that he did not have to take the test, and that he could leave if he chose. Id. at ¶9. The jury found the officer’s version of events to be more credible than defendant’s. Id. at ¶11.
Thus, in considering whether Jacobs voluntarily gave his consent for the blood draw, the court gave substantial weight to the jury’s finding that the police officers’ story was the more credible of the two. Id. at ¶17. Not finding any evidence to suggest that the fact finder’s conclusions were implausible as a matter of law, the court noted that the only other way Jacobs’ consent could have been given involuntarily would be if he were illegally seized. Id. at ¶¶20, 21. The court concluded that this argument too was implausible given Jacobs’ consent to ride to the hospital in the police car and the multiple reminders the officers made to him stating that he was not under arrest, meaning that a reasonable person would have believed himself to be free to leave at any time. Id. at ¶¶21, 22.
The court next turned to the defense attorney’s failure to object to the testimony of victim’s mother concerning her son’s work ethic, relationship with his wife, his helpful nature on the family farm, and other characteristics. Id. at ¶¶12, 23. The trial court refused to give the defendant a Machner hearing on the issue of whether his attorney’s failure to object to this testimony was erroneous or prejudicial, stating instead that this was a strategic choice, as interrupting a grieving mother could easily have been more detrimental to the jury’s image of the defendant than allowing her to continue. Id. at ¶¶24, 25. The appellate court disagreed, reasoning that possible jury reaction to an objection does not justify the failure to object. Id. at ¶29. In fact, it was clearly an error on the attorney’s part, since the testimony was completely irrelevant to the question of the defendant’s guilt or innocence. Id. However, the relevant admissible evidence against Jacobs was overwhelming. The court concluded that the evidence was more than enough to convince them that no jury would have been swayed by the mother’s irrelevant testimony about her son’s good character. Id. at ¶31.
2012 WI App 89
Issue: Is it a violation of a defendant’s right to confrontation to allow a technician from the state crime laboratory to rely on a DNA scientific report without having the report’s author testify?
Holding: Following the U.S. Supreme Court’s holding in Williams v. Illinois, the court held that the scientific report was not testimonial and did not violate the defendant’s Sixth Amendment right to confrontation.
Richard Deadwiller appealed his conviction of two counts of second-degree sexual assault with the use of force. State v. Deadwillwer, 2010AP2364 (Wis. App. filed July 10, 2012), ¶1. He argues that his Sixth Amendment right to confrontation was violated when a laboratory technician relied on a scientific report to testify that his DNA matched DNA samples obtained from the victims without having the report’s author testify. Id. The Wisconsin Court of Appeals refrained from deciding the case until the United States Supreme Court released its decision in the substantially similar case of Williams v. Illinois, 567 U.S ___, 2012 WL 2202981 (June 18, 2012). Id.
The report that the Wisconsin State Crime Laboratory technician relied upon was created when the lab sent the samples to a Texas laboratory for DNA analysis. Deadwiller at ¶3. Both laboratories are accredited by the same organization and the Wisconsin lab regularly works with the Texas lab. Id. The Texas laboratory sent back the DNA-profile reports, which the technician examined to be sure that they followed standard DNA analysis practices and equipment-verification procedures. Id. at ¶4. After verifying the quality of the report, the technician compared the DNA profile report to those stored in a DNA data bank, finding that the profile matched Deadwiller’s DNA. Id. He then had Deadwiller submit a new DNA sample to confirm the match, and used this sample and the Texas lab report to opine in his testimony to the court that the DNA taken from the victims belonged to Deadwiller. Id. at ¶5.
The court looked first to the Sixth Amendment’s guarantee of a defendant’s right to confront any “witnesses against him” when determining whether Deadwiller had the right to cross-examine the author of the report. Id. at ¶7. Past courts have held that this right applies to statements that are “testimonial” in nature. Id. (citing Davis v. Washington, 547 U.S. 813, 821 (2006); Crawford v. Washington, 541 U.S. 36, 6869 (2004)). Thus, the court next turned to the recent Williams decision, which answered the question of whether reports like the one in the case at bar were “testimonial.” Id.
The Supreme Court held that there was no right of confrontation with regard to the authors of reports relied on by expert witnesses. Id. at ¶8, (citing Williams, 567 U.S. at ___, 2012 WL 2202981, at *5 (June 18, 2012)). Though the majority listed various arguments to support this conclusion, the narrowest majority holding of the Court was that such reports were not testimonial in nature. Id. at ¶14. The Court distinguished such reports from the “affidavits, depositions, prior testimony, and confessions, that the Confrontation Clause was originally understood to reach” by first noting that the report was created not to build evidence against a defendant but rather to identify a person to be charged as the defendant. Id. at ¶9, (citing Williams).
Additionally, the Wisconsin Court of Appeals noted that this case was similar to State v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709 N.W.2d 93, which held that there was no right to confront the author of a report when the testifying expert witness merely relied upon it to draw a conclusion based on that witness’s own experience and expertise. Id. at ¶13. Thus, bound by precedent and the judgment of the Supreme Court, the court concluded that Deadwiller’s Sixth Amendment right to confrontation had not been violated by the absence of the DNA profile report’s author at trial. Id. at ¶14.