State v. Jensen

• Decision Date: 29 December 2010
• Docket Number: No. 2009AP898–CR.,2009AP898–CR.
• Citation: 331 Wis.2d 440,2011 WI App 3,794 N.W.2d 482
• Parties: STATE of Wisconsin, Plaintiff–Respondent,v.Mark D. JENSEN, Defendant–Appellant.†
• Court: Wisconsin Court of Appeals

331 Wis.2d 440

794 N.W.2d 482

2011 WI App 3

STATE of Wisconsin, Plaintiff–Respondent,

v.Mark D. JENSEN, Defendant–Appellant.†

No. 2009AP898–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 4, 2010.Opinion Filed Dec. 29, 2010.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher W. Rose and Terry W. Rose of Rose & Rose, Kenosha, and Michael D. Cicchini of Cicchini Law Office, LLC, Kenosha.On behalf of the plaintiff-respondent, the cause was submitted on the brief of Marguerite M. Moeller, assistant attorney general, and J.B. Van Hollen, attorney general.Before BROWN, C.J., NEUBAUER, P.J., and ANDERSON, J.ANDERSON, J.

[331 Wis.2d 447]¶ 1Mark D. Jensen appeals from a judgment of conviction for the first-degree intentional homicide of his wife Julie Jensen.Jensen presents many arguments on appeal, none of which persuade.We affirm.

Background

¶ 2 Paragraphs three through thirteen of this opinion relate pertinent background facts laid out by our supreme court in State v. Jensen,2007 WI 26, 299 Wis.2d 267, 727 N.W.2d 518.We will recite additional facts as they become relevant to our discussion of the appellate issues.

¶ 3 A criminal complaint charging Jensen with first-degree intentional homicide in the December 3, 1998 poisoning death of his wife Julie was filed in Kenosha county on March 19, 2002.Id.,¶ 3.

¶ 4 At Jensen's preliminary hearing conducted in spring 2002, the State presented testimony from several witnesses, including Julie's neighbor, Tadeusz Wojt, Officer Ron Kosman, and Detective Paul Ratzburg.Id.,¶ 4.

¶ 5 Wojt testified that just prior to Julie's death, she gave him an envelope and told him that if anything happened to her, Wojt should give the envelope to the police.Id.,¶ 5.Wojt also stated that during the three weeks prior to Julie's death, she was upset and scared, and she feared that Jensen was trying to poison her or inject her with something because Jensen was trying to get her to drink wine and she found syringes in a drawer.Id.,¶ 5.Julie also allegedly told him that she did not think she would make it through one particular weekend because she had found suspicious notes written by her husband and computer pages about poisoning.Id.

¶ 6 Kosman testified that he received two voicemails approximately two weeks prior to Julie's death.Id.,¶ 6.Julie told Kosman in the second voicemail that she thought Jensen was trying to kill her, and she asked him to call her back.Id.Kosman returned Julie's call and subsequently went to her home to talk with her.Id.Julie told Kosman that she saw strange writings on Jensen's day planner, and she said Jensen was looking at strange material on the Internet.¹Id.Julie also informed Kosman that she had photographed part of Jensen's day planner and had given the pictures, along with a letter, to a neighbor (Wojt).Id.Julie then retrieved at least one picture, but not the letter from the neighbor, and gave it to Kosman, telling him if she were found dead, that she did not commit suicide, and Jensen was her first suspect.Id.Kosman also testified that in August or September 1998, Julie told him it had become very “cold” in their home and that Jensen was not as affectionate as he used to be.Id.Kosman stated that Julie said that when Jensen came home from work, he would immediately go to the computer.Id.

¶ 7 Ratzburg testified that on the day after Julie's death, he received a sealed envelope from Wojt.Id.,¶ 7.The envelope contained a handwritten letter,² addressed to “Pleasant Prairie Police Department, Ron Kosman or Detective Ratzburg” it bore Julie's signature that read as follows:

I took this picture [and] am writing this on Saturday 11–21–98 at 7AM.This “list” was in my husband's business daily planner—not meant for me to see, I don't know what it means, but if anything happens to me, he would be my first suspect.Our relationship has deteriorated to the polite superficial.I know he's never forgiven me for the brief affair I had with that creep seven years ago.Mark lives for work [and] the kids; he's an avid surfer of the Internet....

Anyway—I do not smoke or drink.My mother was an alcoholic, so I limit my drinking to one or two a week.Mark wants me to drink more—with him in the evenings.I don't.I would never take my life because of my kids—they are everything to me!I regularly take Tylenol [and] multi-vitamins; occasionally take OTC stuff for colds, Zantac, or Immodium; have one prescription for migraine tablets, which Mark use[s] more than I.

I pray I'm wrong [and] nothing happens ... but I am suspicious of Mark's suspicious behaviors [and] fear for my early demise.However, I will not leave David [and] Douglas.My life's greatest love, accomplishment and wish: “My 3 D's”—Daddy (Mark), David [and] Douglas.

Id.

¶ 8 Following the preliminary hearing, Jensen was bound over for trial, and an information charging Jensen with first-degree intentional homicide was filed.Id.,¶ 8.Jensen subsequently entered a plea of not guilty at his arraignment on June 19, 2002.Id.

¶ 9 Among the pretrial motions Jensen filed were motions challenging the admissibility of the letter received by Ratzburg and the oral statements Julie allegedly made to Wojt and Kosman.Id.,¶ 9.Jensen also challenged the admissibility of oral statements Julie purportedly made to her physician, Dr. Richard Borman, and her son's teacher, Therese DeFazio.Id.These motions were extensively briefed and argued before the court.Id.The circuit court evaluated each of Julie's disputed statements independently to determine its admissibility under the hearsay rules and the then-governing test of Ohio v. Roberts,448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597(1980).Jensen,299 Wis.2d 267, ¶ 9, 727 N.W.2d 518.The circuit court ruled that most, but not all, of the statements were admissible.Id.Julie's in-person statements to Kosman and Julie's letter were admitted in their entirety.Id.The State conceded the voicemails to Kosman were inadmissible hearsay.Id.

¶ 10 On May 24, 2004, Jensen moved for reconsideration on the admissibility of Julie's statements in light of the United States Supreme Court's ruling in Crawford v. Washington,541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004), that the Sixth Amendment's Confrontation Clause bars admission against a criminal defendant of an uncross-examined “testimonial” statement that an unavailable witness previously made out of court.SeeJensen,299 Wis.2d 267, ¶ 10, 727 N.W.2d 518.After a hearing on the motion, the circuit court orally announced its decision on June 7, 2004, and concluded that Julie's letter and voicemails were testimonial and therefore inadmissible under Crawford.Jensen,299 Wis.2d 267, ¶ 10, 727 N.W.2d 518.The circuit court rejected the State's argument that the statements were admissible under the doctrine of forfeiture by wrongdoing.³Id.The circuit court also determined that Julie's statements to Wojt and DeFazio were nontestimonial and, therefore, the statements were not excluded.Id.On August 4, 2004, the circuit court issued a written order memorializing its oral rulings.Id.

¶ 11The State appealed the circuit court's ruling with respect to Julie's letter and her voicemail message to Kosman.⁴Id.,¶ 11.Jensen subsequently cross-appealed the ruling that the statements of Wojt and DeFazio were not excluded.Id.After the State and Jensen had filed opening briefs in the court of appeals, the State filed a petition to bypass, which Jensen did not oppose.Id.Our supreme court granted the petition.Id.

¶ 12 Reduced to their essence, the appeal and cross-appeal before the supreme court concerned the circuit court's determinations on the testimonial or nontestimonial nature of various statements of Julie's that the State sought to introduce.Id.The supreme court affirmed the order of the circuit court as to its initial rulings on the admissibility of the various statements under Crawford.Jensen,299 Wis.2d 267, ¶ 2, 727 N.W.2d 518.It held that the statements Julie made to Kosman, including the letter, are “testimonial,” while the statements Julie made to Wojt and DeFazio are “nontestimonial.”Id.

¶ 13 However, it reversed the circuit court's decision as to the applicability of the forfeiture by wrongdoing doctrine to Julie's testimonial statements.Id.In so doing, the supreme court“explicitly” adopted a broad forfeiture by wrongdoing doctrine “whereby a defendant is deemed to have lost the right to object on confrontation grounds to the admissibility of out-of-court statements of a declarant whose unavailability the defendant has caused.”Id.,¶ 2;see alsoid.,¶ 57.It concluded that if the State can prove by a preponderance of the evidence that the accused caused the absence of the witness, the forfeiture by wrongdoing doctrine will apply to the confrontation rights of the defendant.Id.,¶¶ 2, 57.As such, it remanded the case to the circuit court“for a determination of whether, by a preponderance of the evidence, Jensen caused Julie's unavailability, thereby forfeiting his right to confrontation.”Id.,¶ 2.

Remand

¶ 14 On remand, a ten-day forfeiture by wrongdoing hearing ensued.For its decision, the circuit court followed the supreme court's mandate to make a determination of whether, by a preponderance of the evidence, Jensen caused Julie's unavailability.Seeid.,¶¶ 2, 57.Ultimately, the circuit court admitted the disputed evidence, relying on its finding by a preponderance of the evidence that Jensen had caused Julie's absence from the trial and thus forfeited his right to confront the testimonial statements attributed to Julie.

[331 Wis.2d 454]¶ 15 During the forfeiture hearing, the State also introduced other acts evidence which it offered to demonstrate the existence of motive.At trial, various objections were made to the allegedly improper other acts evidence and ruled on by the circuit court.

¶ 16The...