June 12, 2023 – The admission of hearsay evidence that the defendant had participated in a drug buy was harmless error given the overwhelming quantity of the rest of the state’s evidence, the Wisconsin Supreme Court has ruled (7-0) in State v. Barnes, 2023 WI 45 (June 6, 2023)
Justice Rebecca Bradley wrote the majority opinion for a unanimous court. Chief Justice Annette Ziegler wrote a concurrence, joined by Justice Patience Roggensack.
A Hot Tip
One day in 2013, an informant named Charles Maciniak told the police in Douglas County that a man, later identified as Garland Barnes, offered to sell him methamphetamine. Barnes was able to make the sale that same day, Marciniak told the police.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Sergeant Franz Winterscheidt put together a team to catch Barnes in the act of the selling the drugs to Marciniak. The team included Agent Duane Clauer and two other officers.
The police recorded four conversations between Marciniak and Barnes. Each conversation took place in the presence of a police officer.
The recording of the third call picked up on only Marciniak’s side of the conversation.
In the conversation, Marciniak said “Hello? Two. Alright. I’ll take ‘em. You’re gonna have to – you’re gonna have to run up again then maybe. You might have to see me sooner than next weekend.”
About 20 minutes after the fourth call, Marciniak met Barnes in a parking lot. The two men pulled their vehicles parallel to each other, driver’s side-to-driver’s side.
Several of the police officers, including Clauer but not Winterscheidt, saw Marciniak toss a white plastic bag into Barnes’s vehicle and Barnes toss a black box into Marciniak’s vehicle.
Clauer called Winterscheidt and told that the drug buy had occurred. Winterscheidt ordered his men to arrest Barnes, and they apprehended Barnes shortly after the drug buy occurred.
Convicted after Jury Trial
The Douglas County District Attorney charged Barnes with delivering more than 50 grams of methamphetamine.
The Douglas County District Court prohibited Clauer from testifying at trial, as a sanction for a discovery violation.
The recordings of the four phone conversations were played for the jury. Winterscheidt testified that he heard both sides of the third conversation.
Over the objections of Barnes’s attorney, the circuit court allowed Winterscheidt to testify that Clauer had seen Marciniak toss a white plastic bag to Barnes and saw Barnes toss a black box to Marciniak.
Post-conviction Relief Denied
The jury convicted Barnes.
He moved for a new trial, arguing that the circuit court had erred by admitting Winterscheidt’s testimony regarding Clauer’s observation of the drug buy. The court denied the motion.
Barnes then filed for post-conviction relief, arguing that by admitting Winterscheidt’s testimony, the circuit court had violated his rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution.
The circuit court denied that motion too.
Barnes appealed but the Wisconsin Court of Appeals affirmed the circuit court, on the basis that Winterscheidt’s testimony was not hearsay because it wasn’t offered to prove the truth of the matter asserted therein.
Even if the testimony were hearsay, the court of appeals held, the circuit court’s admission of it was harmless error.
Phone Calls Were Damning
Justice R. Bradley began her opinion by explaining that an error is harmless if the guilty verdict was unattributable, by a degree of certainty, to the error.
Bradley concluded that the admission of Winterscheidt’s testimony (assuming without deciding that it was hearsay) against Barnes met that standard, because the evidence against Barnes was “overwhelming.”
The four recorded phone conversations bolstered the state’s case, Justice R. Bradley reasoned, especially the third call – even though only Marciniak’s side of the conversation was recorded.
Winterscheidt confirmed that Barnes was part of the conversation, Justice R. Bradley pointed out, and the recording of Marciniak’s side of the conversation, she wrote “leaves little doubt that he was acting as a prospective buyer, not a seller.”
That was so, R. Bradley reasoned, despite Barnes’ argument that because only one side of the conversation was recorded, it was just as likely that Marciniak was talking about selling drugs to Barnes instead of buying them from him.
“If Marciniak were selling to Barnes, Marciniak probably would not tell Barnes they would need to meet again; rather, Barnes would dictate when he needed to buy more drugs,” Justice R. Bradley wrote.
Defense Theory Was Weak
Justice R. Bradley also said the following evidence made it unlikely that Marciniak had set Barnes up:
when the police searched Marciniak’s truck before the drug buy, they found no drugs or money;
the police gave Marciniak $7,200 in marked bills;
the police accompanied Marciniak to the buy;
Barnes was present at the buy;
when Barnes was apprehended shortly after buy, the marked bills were found in his vehicle;
after the buy, Marciniak had four ounces of meth in box that did not appear to have been hidden.
“If Marciniak set Barnes up, Marciniak either guessed correctly that the deal would be for four ounces or found and placed this exact amount of meth into the box within an especially tight timeframe,” Justice R. Bradley wrote. “Neither possibility is probable.”
Additionally, R. Bradley pointed out that the nature of Barnes’ defense was weak.
“Barnes provided little evidence to support his theory or to otherwise counter the state’s strong case,” Justice R. Bradley wrote.
Concurrence: Clauer’s Testimony Not Hearsay
In her concurrence, Chief Justice Ziegler argued that Clauer’s testimony wasn’t testimonial hearsay. Rather, she argued, the testimony went to Winterscheidt’s state of mind.
“Winterscheidt’s state of mind was relevant because he was the officer in charge of the ongoing drug trafficking investigation,” Ziegler wrote. “It was for him to decide whether to order that officers pursue Barnes.”
“He so ordered, not because of the truth of an unnamed officer’s telling him that Clauer saw Barnes sell drugs, but because it was Winterscheidt’s responsibility as a part of the investigative plan once he was told that the sale had occurred.”