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
rational jury would have found [Thomas] guilty absent the
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
7
No. 2020AP32-CR.rfd
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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No. 2020AP32-CR.bh
¶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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No. 2020AP32-CR.bh
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