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  • March 10, 2023

    Use of Lab Report to Cross-examine Defense Witness Violated Confrontation Clause

    Testimony from a neighbor who heard a woman scream “Stop, stop, I love you, I love you,” corroborated a fact revealed by a criminal defendant in his confession, the Wisconsin Supreme Court has ruled.

    Jeff M. Brown

    A Woman In A White Lab Coat And Wearing A Surgical Mask And Gloves Use A Tweezers To Lift Something Out Of A Petri Dish,

    March 10, 2023 – Testimony from a neighbor who heard a woman scream “Stop, stop, I love you, I love you,” corroborated a fact revealed by a criminal defendant in his confession, the Wisconsin Supreme Court has ruled.

    In State v. Thomas, 2023 WI 9 (Feb. 21, 2023), the supreme court also held that the admission of a DNA report that was used to cross-examine the defendant’s expert witness was also admitted for the truth, and its admission violated the Sixth Amendment’s Confrontation Clause but the error was harmless.

    Divided Court

    The decision contained three opinions.

    The lead opinion, written by Justice Patience Roggensack, was joined by Chief Justice Annette Ziegler and was joined by the majority of the court with respect to ¶12 and ¶¶12-24. The opinion is the majority opinion with regard to the corroboration issue.

    Jeff M. Brown 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.

    Justice Rebecca Dallet’s concurrence, which is the majority opinion with regard to the Confrontation Clause issue, was joined by Justice A.W. Bradley, Justice R.G. Bradley, and Justice Jill Karofsky.

    Justice Brian Hagedorn also wrote a concurrence.

    Two Confessions

    In 2018, a Kenosha County jury convicted Oscar C. Thomas on one count each of first-degree intentional homicide, first-degree sexual assault, and false imprisonment in connection with the death of his wife Joyce.

    After Thomas was arrested, he made two statements to the police.

    In his second statement to the police, Thomas said that while he was having sex with his wife, he had his left arm around her neck, and they fell out of the bed.

    Thomas said that when he and his wife got back in bed, he began “humping” her hip. His wife fell out of bed again, Thomas said, with his left arm around her neck again.

    Thomas told the police he squeezed his wife, and he said she was struggling and yelling at him to stop.

    DNA Report

    At trial, Thomas called one witness, a medical examiner named Dr. Williams. Williams testified that he saw no signs of a struggle or defensive wounds on the victim’s body.

    When the state cross examined Williams, it introduced a DNA report prepared by the state crime lab. The state used the report, which said that the Thomas’ DNA was found beneath his wife’s fingernails, to challenge Williams’ testimony about the absence of signs of a struggle or defensive wounds on the victim’s body.

    The state did not authenticate the report.

    Thomas appealed his conviction. The Wisconsin Court of Appeals affirmed, and Thomas petitioned the supreme court.

    Roggensack Opinion: State Corroborated Statement

    Justice Roggensack explained that under Wisconsin law, a criminal conviction cannot be based solely on defendant’s admission or conviction. Rather, she pointed out, to sustain a conviction the state must corroborate at least one significant fact.

    Thomas argued that the jury had convicted him of first-degree sexual assault based solely on his two statements to the police. To support this argument, Thomas pointed to the results of a sexual assault kit, which contained no evidence of sexual intercourse.

    But Justice Roggensack pointed out that the testimony of Thomas’ downstairs neighbor was sufficient to corroborate a significant fact revealed in his statements.

    “The neighbor heard a female voice scream ‘Stop, stop, I love you, I love you,’” Justice Roggensack wrote. “This phrase corroborates that 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.’”

    The corroboration, Roggensack wrote “ ‘permits confidence’ that the crime of sexual assault that Thomas confessed to ‘indeed occurred.’”

    Dallet Opinion: Confrontation Clause Violation Is Harmless Error

    In her opinion, Justice Dallet concluded that the state had violated Thomas’ right under the Confrontation Clause by using the DNA report to cross-examine his expert witness.

    Dallet pointed out that the state had admitted at oral argument that it introduced the results of the DNA test that were contained in the report for their truth – namely, that Thomas’ DNA was found under his dead wife’s fingernails.

    If the state had introduced that evidence solely to impeach Thomas’ expert, Justice Dallet concluded, no Confrontation Clause violation would have occurred.

    “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,” Dallet wrote.

    State’s Case Strong Without DNA Evidence

    But the violation constituted harmless error, Justice Dallet reasoned, because the state had proved beyond a reasonable doubt that the error didn’t contribute to the verdict against Thomas.

    Dallet pointed out that the state’s case against Thomas was strong without the DNA evidence.

    “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,” Justice Dallet wrote.

    Hagedorn Concurrence: Uncharted Territory?

    In his opinion, Justice Hagedorn argued that he wasn’t clear about how to analyze the state’s use of the DNA report, because in its briefs the state argued that it had introduced the report solely for impeachment purposes, while at oral argument the state admitted that it had introduced the report for the truth.

    Hagedorn also noted that the U.S. Supreme Court had not addressed the issue of whether a report not admitted into evidence but reviewed by an expert witness during his or her testimony violated the Confrontation Clause.

    “Rather than forge our own path on the State’s use of the evidence, or analyze a novel area of federal constitutional law … I would simply conclude the Confrontation Clause errors Thomas alleges, if they are errors at all, were harmless,” Justice Hagedorn wrote.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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