2009AP898-CR State v. Jensen

Listen to this article

Criminal Procedure
Confrontation Clause; harmless error

Nontestimonial statements are not subject to the Confrontation Clause; and where all relevant inadmissible testimony was duplicative of admissible evidence, the admission of the evidence was harmless error.
“Unlike Jensen, we do pay heed to the entirety of the Giles’ decision. In so doing, we recognize that Manuel’s holding that nontestimonial statements should be evaluated for Confrontation Clause purposes is in direct conflict with Giles’ holding that ‘only testimonial statements are excluded by the Confrontation Clause.’ We adhere to the Giles’ holding because the Supremacy Clause of the United States Constitution compels adherence to United States Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of our state supreme court. See State v. Jennings, 2002 WI 44, ¶3, 252 Wis. 2d 228, 647 N.W.2d 142. Thus, Jensen’s reliance on Manuel, for his assertion that the nontestimonial statements should have been excluded, fails. The nontestimonial statements are not excluded by the Confrontation Clause and, for purposes of a hearsay objection, may be analyzed under a broader version of the forfeiture by wrongdoing doctrine, such as that proffered by the dissent in Giles and by our supreme court in Jensen. See Giles, 128 S. Ct. at 2692-93.”

“[V]irtually all relevant information in Julie’s letter was duplicated by admissible nontestimonial evidence from other sources. The rest of the record reflects that the jury heard overwhelming evidence of murder, and upon this record, it could rationally have concluded beyond a reasonable doubt that Jensen murdered Julie.”
“Thus, even assuming the testimonial evidence of Julie’s letter and Julie’s statements to Kosman were inadmissible under the rules of evidence and the Sixth Amendment Confrontation Clause, we deem any error in admission harmless. The sine qua non is that the testimonial statements provided nothing significant beyond the properly admitted nontestimonial statements.”

Affirmed.

Recommended for publication in the official reports.

2009AP898-CR State v. Jensen

Dist. II, Kenosha County, Schroeder, J., Anderson, J.

Attorneys: For Appellant: Rose, Terry W., Kenosha; Rose, Christopher William, Kenosha; Cicchini, Michael D., Kenosha; For Respondent: Moeller, Marguerite M., Madison; Zapf, Robert D., Kenosha

Full Text