State v. Deadwiller

Decision Date16 July 2013
Docket NumberNos. 2010AP2363–CR, 2010AP2364–CR.,s. 2010AP2363–CR, 2010AP2364–CR.
Citation834 N.W.2d 362,350 Wis.2d 138,2013 WI 75
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Richard Lavon DEADWILLER, Defendant–Appellant–Petitioner.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

For the defendant-appellant-petitioner, there were briefs by Mark S. Rosen and Rosen and Holzman, Ltd., Waukesha, and oral argument by Mark S. Rosen.

For the plaintiff-respondent, there was a brief by Maura FJ Whalen, assistant attorney general, and J.B. Van Hollen, attorney general. The cause was argued by Warren D. Weinstein, assistant attorney general.

ANNETTE KINGSLAND ZIEGLER, J.

[350 Wis.2d 141][1] ¶ 1 This is a review of a published decision of the court of appeals,1 which affirmed judgments of conviction entered by the Milwaukee County Circuit Court, Judge Patricia D. McMahon, after a jury found Richard Lavon Deadwiller (Deadwiller) guilty of two counts of second-degree sexual assault by use of force, contrary to Wis. Stat. § 940.225(2)(a) (2005–06).2 During Deadwiller's trial, Wisconsin State Crime Lab analyst Ronald G. Witucki (Witucki) testified that an out-of-state lab, Orchid Cellmark (Orchid), analyzed vaginal and cervical swabs taken from the two victims, Kristina S. and Chantee O. Orchid produced DNA profiles of semen found on the victims' swabs. After receiving the DNA profiles from Orchid, Witucki entered the DNA profiles into the DNA database, which resulted in a match to Deadwiller. No one from Orchid testified at Deadwiller's trial. The jury convicted Deadwiller of two counts of second-degree sexual assault by use of force. Deadwiller appealed, arguing that his right to confrontation was violated when the circuit court allowed Witucki to rely on the DNA profiles produced by Orchid. The Confrontation Clause prohibits the introduction of testimonial hearsay of a witness who is absent from trial unless the witness is unavailable and the defendant had the prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 51, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The court of appeals affirmed, concluding that Deadwiller's right to confrontation was not violated because the DNA profiles produced by Orchid were not testimonial under Williams v. Illinois, 567 U.S. ––––, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). State v. Deadwiller, 2012 WI App 89, ¶ 14, 343 Wis.2d 703, 820 N.W.2d 149. We affirm the court of appeals.

¶ 2 We conclude that on the facts of this case, Witucki's testimony did not violate Deadwiller's right to confrontation. Applying the various rationales of Williams, a majority of the United States Supreme Court would come to the same conclusion as in Williams, that the expert's testimony did not violate the defendant's right to confrontation. Moreover, Deadwiller did not challenge the substance of Witucki's testimony because his defense was that the intercourse did occur but that the victims consented.

¶ 3 Further, assuming arguendo that the admission of Witucki's testimony violated Deadwiller's right to confrontation, we conclude that the error was harmless in light of the defendant's previous admissions of sexual intercourse with the victims and the fact that throughout the proceedings, he maintained a defense that the victims consented.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 4 On August 27, 2007, Deadwiller was charged with one count of second-degree sexual assault by use of force in violation of Wis. Stat. § 940.225(2)(a). The complaint alleged that on July 12, 2006, Deadwiller sexually assaulted Kristina S. by striking her in the head, forcing her to the ground, and forcing her to have sexual intercourse. On October 4, 2007, Deadwiller was charged in a separate case with one count of second-degree sexual assault by use of force contrary to Wis. Stat. § 940.225(2)(a). The complaint alleged that on August 12, 2006, Deadwiller sexually assaulted Chantee O. by grabbing her from behind, punching her in the jaw, forcing her to the ground, and forcing her to have sexual intercourse.3

¶ 5 On March 26, 2008, the State filed a motion in limine seeking a ruling that the testimony of Witucki would be admissible at trial. The motion confirmed that Witucki was not the analyst who developed the DNA profiles from the semen recovered on the victims' vaginal and cervical swabs. However, Witucki entered Orchid's DNA profiles into the DNA database and obtained a match to Deadwiller. Thereafter, Witucki received a buccal (cheek) swab from Deadwiller and compared the new sample to the Orchid DNA profiles, again resulting in a match. The State argued that Witucki independently concluded that Deadwiller was a match for the DNA recovered from the victims and that [a] defendant's confrontation right is satisfied if a qualified expert testifies as to his or her own independent opinion, even if the opinion is based in part on the work of another.” State v. Barton, 2006 WI App 18, ¶ 20, 289 Wis.2d 206, 709 N.W.2d 93 (citing State v. Williams, 2002 WI 58, ¶¶ 9, 11, 253 Wis.2d 99, 644 N.W.2d 919).4 Deadwiller opposed the State's motion, arguing that he was entitled to confront the Orchid analysts who completed the DNA profiles on the victims' swabs. The circuit court ruled that under Barton and State v. Williams, Witucki would be permitted to testify about the DNA results, assuming the proper foundation and credentials were presented.

¶ 6 In preparation for trial, Deadwiller hired an expert to review the DNA evidence in this case, and the trial was delayed several times because Deadwiller's expert had not completed his analysis. At a pretrial conference on March 26, 2008, Deadwiller reported that he wanted to go forward with the trial even though he had not received the expert's analysis. The circuit court confirmed that Deadwiller wanted to proceed to trial without his expert:

THE COURT: The question is do you want to go to trial and waive your right, give up your right to have this expert who is working on some information, or shall we set another date so your expert can complete the work he started....

THE DEFENDANT: I want to go to trial.

THE COURT: You want to go to trial on Monday without an expert.

THE DEFENDANT: Yes.

The State then added that Deadwiller's decision was reasonable because “Deadwiller's made statements admitting sexual intercourse.... It's going to be in my view a credibility case, so I think this is a reasonable decision if he wants a speedy trial.” Deadwiller agreed with the prosecutor that the main issue in the case was whether the women consented or whether he forced them to have intercourse: “I agree with [the prosecutor] 100 percent.” In other words, even before the trial began, Deadwiller's defense was that the women consented to the intercourse. He did not challenge that his DNA was found in the victims.

¶ 7 On April 7, 2008, Deadwiller's jury trial began. The jury heard testimony from Kristina S., Chantee O., a sexual assault nurse, several police officers, Witucki, and Deadwiller. Kristina S. testified that on July 12, 2006, she had an argument with her boyfriend, left the apartment where they had been staying, and was locked out. Kristina S. testified that she walked to a nearby gas station to call her boyfriend to let her back into the apartment but was unable to reach him. Walking back towards the apartment, Kristina S. testified that Deadwiller began talking to her and offered to let her use the phone at his house. She testified that she walked with him until they approached a dark alley, at which point she stopped. She then testified that Deadwiller grabbed her arm, hit her in the face, told her to take her pants down, threatened to kill her if she refused, then forced her to have sexual intercourse. Kristina S. testified that she immediately reported the crime, went to the Sexual Assault Treatment Center at Aurora Sinai Hospital, and underwent a sexual assault examination. Kristina S. testified that she did not consent to having sex with Deadwiller, nor did she agree to have sex with Deadwiller in exchange for money or drugs. Rather, she testified that he raped me.”

¶ 8 Chantee O. testified that on August 12, 2006, she was walking on the 16th Street bridge in Milwaukee and was going to catch a bus home. She testified that three people, including Deadwiller, were waiting for the bus on the opposite side of the street. According to Chantee O.'s testimony, Deadwiller informed her that her bus stop was down a set of stairs and that he would show her where it was located. Chantee O. testified that Deadwiller led her a short way from the bottom of the stairs, hit her in the jaw, told her to take down her pants, then forced her to have sexual intercourse. Chantee O. testified that immediately after the assault, she flagged down a police car, went to the Sexual Assault Treatment Center at Aurora Sinai Hospital, and underwent a sexual assault examination. Similar to Kristina S., Chantee O. testified that she did not have sex with Deadwiller voluntarily nor did she have sex in exchange for drugs or money.

¶ 9 The State then called several witnesses to establish a chain of custody for the evidence collected during the victims' sexual assault examinations. Tanya Wieland, a sexual assault nurse examiner at Aurora Sinai, testified that she conducted the examination on both victims, packaged and labeled all of the evidence collected, including vaginal and cervical swabs, and turned the evidence over to hospital security, which keeps evidence in a secure room until picked up by the police. Two officers testified that they picked up the evidence collected from Kristina S. and Chantee O. from the secure room at Aurora Sinai, opened the outer bag (without opening the bags on the individual items) to inventory the evidence, and turned over the evidence to the police department's property control section. Detective Lori Gaglione then testified that the items of evidence were transported from the...

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