State v. Gonzalez

Decision Date03 December 2014
Docket NumberNo. 2012AP1818–CR.,2012AP1818–CR.
Citation359 Wis.2d 1,856 N.W.2d 580
PartiesSTATE of Wisconsin, Plaintiff–Respondent v. Ramon G. GONZALEZ, Defendant–Appellant–Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner, the cause was argued by Kaitlin A. Lamb, assistant state public defender, with whom on the briefs was Andrea Taylor Cornwall, assistant state public defender.

For the plaintiff-respondent, the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

Opinion

N. PATRICK CROOKS, J.

¶ 1 The question we consider in this case is whether Ramon Gonzalez's constitutional right not to be a witness against himself was violated when the court, over defense objection, asked in front of the jury that Gonzalez “display his teeth,” and Gonzalez complied. Gonzalez argues that he was compelled to be a witness against himself at trial because the teeth, which were platinum, were more than physical evidence—they conveyed a message to the jury because they give him a “fierce” appearance. A witness had testified that the victim had identified one of his attackers as a fellow inmate with platinum teeth.

The circuit court1 ruling came after the prosecutor asked “for the jury's sake, that we show Mr. Gonzalez's dental work ... so the witness can describe whether or not he has particular dental work.” Gonzalez was convicted of battery by a prisoner, as a party to a crime.

¶ 2 The question requires us to decide whether, in this case, teeth are the kind of evidence that implicates the Self–Incrimination Clause.2 Gonzalez acknowledges that it is well settled that the right against self-incrimination applies only to testimonial evidence, but he argues that in this case the physical evidence “ had a ‘testimonial’ aspect because it revealed content—the ‘fierce-looking’ appearance of his teeth,”3 and he says this fits within the category of cases where physical evidence has been held to have a testimonial aspect and, as a result, to fall under constitutional protection. He argues in the alternative that even if it has no testimonial aspect, it was improperly admitted because it was not material, given that other evidence served the purpose of identification. The State argues that his platinum teeth were physical evidence that did not have a testimonial aspect, and were material to the identification of Gonzalez, which was central to the trial.

¶ 3 We hold that the evidence of his platinum teeth was physical evidence that did not have a testimonial aspect sufficient to implicate constitutional protections. The relevant question under the case law is whether the evidence in question expresses, makes use of, reveals, or discloses the contents of the defendant's mind.4 Teeth do not do so. We also hold that Gonzalez's teeth are material to identification because they are probative of Gonzalez's identity, which was a matter at issue.5 This case therefore fits squarely into the long-recognized category of cases involving the body as evidence and does not offend constitutional principles against self-incrimination. We affirm the court of appeals.

I. BACKGROUND

¶ 4 This case arises from an attack by multiple people on an inmate in the Milwaukee County Jail. Gonzalez was among the inmates who were accused of attacking the victim. He was charged with battery by a prisoner, as a party to a crime, and went to trial. Challenging the identification of the accused as one of the attackers was the focus of the defense. The victim was clearly reluctant to testify and repeatedly said so while under oath; he claimed he was unable to identify his attackers. While video of the attack was shown to jurors, the defense disputed that the grainy video was sufficient to make an identification, and the State offered further evidence on that issue. The jury heard the following during testimony about the identification of Gonzalez and his involvement in the beating:

— An eyewitness, a deputy on duty at the jail, saw Gonzalez stomp on the victim during the fight.
— Minutes after the attack, the victim of the assault told an investigating officer that one of the persons involved was from Cell 10.
— While in the jail infirmary, the victim told a second investigating officer that the inmate in Cell 10 who had platinum teeth had hit and kicked him.
— The victim also testified that he knew Gonzalez by the nickname “ Platinum” because of his teeth.
— Gonzalez was housed in Cell 10 and had platinum teeth.

No evidence was introduced that any other inmate besides Gonzalez fit this description.

¶ 5 During the trial, Gonzalez objected to the prosecutor's request, during a witness's testimony, that Gonzalez reveal his teeth to the jury. The circuit court overruled the objection. Gonzalez complied, and the record reflects that he smiled at the jurors to show his platinum teeth. Gonzalez's post-conviction motion for a new trial was denied, and the court of appeals affirmed the conviction on the grounds that the teeth were physical evidence, and thus Gonzalez's showing of his platinum teeth did not constitute the kind of compelled testimonial evidence the United States and Wisconsin Constitutions prohibit. Gonzalez petitioned for review, which we granted.

II. STANDARD OF REVIEW

¶ 6 The question we address is whether Gonzalez was compelled to provide the kind of evidence that is protected by the Fifth Amendment of the United States Constitution6 and its corollary in the Wisconsin Constitution, which prohibit the State from compelling a defendant to be a witness against himself or herself. Although this case does not arise from a suppression motion or motion in limine, it similarly presents a question of a constitutionally-based objection to the admission of certain evidence. “Whether evidence should be suppressed is a question of constitutional fact. In reviewing questions of constitutional fact, we uphold a circuit court's factual findings unless clearly erroneous, but we independently determine whether those facts meet the constitutional standard.” State v. Samuel, 2002 WI 34, ¶ 15, 252 Wis.2d 26, 643 N.W.2d 423 (citations omitted) (evaluating a constitutionally-based challenge to the admission of certain evidence).

III. DISCUSSION AND ANALYSIS

¶ 7 The facts relevant to our discussion are not in dispute. It is not disputed that the evidence in question was compelled by the circuit court; Gonzalez was ordered by the court in open court to display his teeth to the jury. The dispute we address is solely one of law: whether this is the kind of evidence that cannot be compelled without violating constitutional guarantees. Gonzalez gives two reasons the evidence should not have been admitted. After setting out briefly the relevant law, we will address the parties' arguments on those two points.

A. The Self–Incrimination Clause And Body–As–Evidence Cases

¶ 8 The United States Supreme Court has, in cases in which the self-incrimination clause has been invoked, repeatedly recognized that certain distinguishing characteristics of a defendant may be used against him or her even if they are incriminating. It summarized its interpretation of the self-incrimination clause concisely in United States v. Hubbell prior to starting its analysis in that case:

It is useful to preface our analysis of the constitutional issue with a restatement of certain propositions that are not in dispute. The term “privilege against self-incrimination” is not an entirely accurate description of a person's constitutional protection against being “compelled in any criminal case to be a witness against himself.”
The word “witness” in the constitutional text limits the relevant category of compelled incriminating communications to those that are “testimonial” in character. As Justice Holmes observed, there is a significant difference between the use of compulsion to extort communications from a defendant and compelling a person to engage in conduct that may be incriminating. Thus, even though the act may provide incriminating evidence, a criminal suspect may be compelled to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a recording of his voice. The act of exhibiting such physical characteristics is not the same as a sworn communication by a witness that relates either express or implied assertions of fact or belief.

United States v. Hubbell, 530 U.S. 27, 34–35, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) (footnotes omitted).

¶ 9 In clarifying what constituted testimonial evidence, the United States Supreme Court has differentiated between “communications” from the defendant and “his body as evidence”: “The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. Schmerber v. California, 384 U.S. 757, 763, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (quoting Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910) (emphasis added)). “The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications' or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.”Id. at 764, 86 S.Ct. 1826. The Court has also described testimonial evidence as “knowledge of facts [compelled from the defendant] relating him to the offense,” “his thoughts and beliefs” and “evidence of a testimonial or communicative nature.” Doe v. United States, 487 U.S. 201, 210, 213, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988). In keeping with this distinction, courts have held that there is no violation of the Self–Incrimination Clause where a defendant is compelled to show his or her body, or to display tattoos, scars, physique, or limbs.7

¶ 10 However, the United States Supreme Court has recognized that some physical...

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