SCOW dodges forfeiture-by-wrongdoing Confrontation Clause issue

State v. Joseph B. Reinwand, 2019 WI 25, 3/19/19, on certification from the court of appeals; case activity (including briefs)

The Confrontation Clause ordinarily bars the admission of testimonial statements of a witness if the witness does not appear at trial to testify and be cross-examined. But under the “forfeiture by wrongdoing” doctrine, a witness’s testimonial statements may be admitted if the witness does appear to testify as a the result of wrongdoing by the defendant. The supreme court accepted the court of appeals’ certification of this case to address the scope of forfeiture doctrine, but as it happens the decision doesn’t address the doctrine because it determines the statements at issue are not testimonial and therefore do not implicate the Confrontation Clause.

Reinwand was charged with killing Meister, the father of Reinwand’s grandchild. Meister and Reinwand’s daughter were in a dispute about placement of the child and, after mediation was tried, were likely headed to litigation. Meister told various people he thought Reinwand was going to harm or kill him and that if he was found dead Reinwand should be “looked into.” The circuit court granted the state’s request to use those statements at Reinwand’s homicide trial, finding Reinwand forfeited his confrontation right because there was evidence he killed Meister to prevent him from testifying in the placement proceeding. (¶¶5-10). (It does not appear Reinwand objected to the use these statements on any grounds other than the Confrontation Clause. (¶23 n.5).)

In Giles v. California, 554 U.S. 353 (2008), the Supreme Court  held the forfeiture by wrongdoing doctrine “permit[s] the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant” only when there has been “a showing that the defendant intended to prevent a witness from testifying.” 554 U.S. at 359-61 (emphasis added). Before Giles, statements of a defendant’s homicide victim implicating the defendant in the homicide were often admitted under the forfeiture by wrongdoing doctrine, but as the court of appeals noted, “the teaching of Giles [seems] to be that this should not occur in the normal course because a homicide is not typically designed to prevent the victim from testifying at a trial addressing the very same homicide.” (Certification at 6, citing Giles, 554 U.S. at 359-60, 363-64, 369 (emphasis added)). If that’s right, it would seem that Meister’s statements weren’t admissible under the doctrine.

But the threshold question in any Confrontation Clause analysis is whether the out-of-court statement is “testimonial.” The U.S. Supreme Court recently clarified the “primary purpose” test for deciding whether a statement is “testimonial,” and wielding that test, the court here concludes none of Meister’s statements about his fear of Reinwand was testimonial:

¶24     A statement is testimonial only if “in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘create an out-of-court substitute for trial testimony.’” Ohio v. Clark, 135 S. Ct. [at] 2180… (citations omitted). This “primary purpose” test is an objective test. “[T]he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.” [Michigan v.] Bryant, 562 U.S. [344,] 360 [(2011)].

¶25     The Supreme Court has set forth four relevant factors used to determine whether a statement is testimonial: “(1) the formality/informality of the situation producing the out-of-court statement; (2) whether the statement is given to law enforcement or a non-law enforcement individual; (3) the age of the declarant, and (4) the context in which the statement was given.” State v. Mattox, 2017 WI 9, ¶32, 373 Wis. 2d 122, 890 N.W.2d 256 (interpreting Clark, 135 S. Ct. at 2180-82). In this case, an analysis of these four factors demonstrates that Meister’s statements to his friends and family regarding Reinwand were nontestimonial.

¶26     The first factor to consider is the formality or informality of the situation in which the out-of-court statement was made. The more formal the situation, the more likely it is to be testimonial. ….

¶27     In this case, Meister’s statements all were given in informal situations. He expressed his fears to his friends and family in living rooms, kitchens, dining rooms, and even at an Arby’s. In stark contrast to the “formal station-house interrogation” contemplated in Clark, Meister’s conversations with family and friends were not interrogations at all. ….

¶28     The second factor is whether the statement is given to law enforcement or a non-law enforcement individual. While the United States Supreme Court has “stopped short of adopting a ‘categorical rule’” that only statements made to law enforcement officers can be testimonial, the Court has held that “statements to persons other than law enforcement officers were ‘much less likely to be testimonial than statements to law enforcement officers.’” Mattox, 373 Wis. 2d 122, ¶34 (citing Clark, 135 S.Ct. at 2181). In this case, none of Meister’s statements about Reinwand were made to law enforcement officers, nor did he seek to contact law enforcement about his concerns. ….

¶29     The third factor is the declarant’s age. This factor was relevant in Clark because the declarant was three years old. Clark, 135 S.Ct. at 2177. “Statements by very young children will rarely, if ever, implicate the Confrontation Clause,” because very young children “‘have little understanding of prosecution’” and would not likely “intend [their] statements to be a substitute for trial testimony.” Id. at 2182. While a statement is unlikely to be testimonial if it is made by a young child, it does not follow that a statement is likely to be testimonial simply because it is made by an adult. Rather, that the declarant is an adult is a neutral factor, making the statement neither more nor less likely to be testimonial. ….

¶30     The fourth and final factor is the context in which the statement was given. “Courts must evaluate challenged statements in context,” which includes evaluating the questioner’s identity, the relationship between the parties to the conversation, and the circumstances surrounding the conversation. See Clark, 135 S.Ct. at 2182. In this case, Meister’s statements all were made during conversations with his family and friends. The witnesses reported that Meister was concerned, stressed, and agitated during these conversations, and that he appeared to be genuinely frightened. This demeanor suggests that he was expressing genuine concern and seeking advice, rather than attempting to create a substitute for trial testimony.

¶31     Additionally, Meister spoke to at least 15 friends and family members about Reinwand’s threats, but chose not to speak with any law enforcement officers. Further, when one of his friends suggested that he go to the police, he explicitly refused and said “I’m a Meister … we can handle things.” He told multiple witnesses that if anything happened to him, they should tell his brother, rather than the police, that it was Reinwand. The only statement in which he brought up law enforcement was during the conversation with his pastor, when he said that the police should “dig deeper” if he died, because it would “look staged.” The mere mention of law enforcement is not enough to make this statement testimonial given the informality and overall context of the conversation. ….

While the majority’s conclusion means it doesn’t reach (and therefore sheds no light on) the forfeiture by wrongdoing doctrine, three concurring justices (Dallett, joined by A.W. Bradley and Abrahamson) do reach the issue, albeit briefly. They conclude one of Meister’s statements was testimonial—the one to his pastor, telling the police to “dig deeper” because his death would look staged. (¶¶59-60). They also don’t believe the forfeiture by wrongdoing doctrine applies, because any possible court proceedings that would have ensued had Meister lived would have involved Meister and Reinwand’s daughter, not Reinwand, so Meister wouldn’t have been a witness against Reinwand.  (¶¶61-64). Thus, the admission of the pastor’s statement violated the Confrontation Clause, though the error was harmless. (¶¶65-66).

The court also makes short work of Reinwand’s challenges to other-acts evidence about a prior burglary he committed (¶¶11, 33-38) and to his claims that trial counsel was ineffective. The ineffective claims involve trial counsel opening the door to some DNA evidence tying Reinwand to the possible murder weapon, evidence which the circuit court had initially excluded (¶¶12, 39-46), and failing to make much of a sentencing argument (¶¶47-51). Neither alleged deficiency by trial counsel was prejudicial.