State v. Jensen

CourtUnited States State Supreme Court of Wisconsin
Citation396 Wis.2d 196,957 N.W.2d 244,2021 WI 27
Docket NumberNo. 2018AP1952-CR,2018AP1952-CR
Parties STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Mark D. JENSEN, Defendant-Appellant.
Decision Date18 March 2021

For the plaintiff-respondent-petitioner, there were briefs filed by Aaron R. O'Neil, assistant attorney general; with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Aaron O'Neil.

For the defendant-appellant, there was a brief filed by Lauren J. Breckenfelder and Dustin C. Haskell, assistant state public defenders. There was an oral argument by Lauren Jane Breckenfelder.

DALLET, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined, and in which ZIEGLER and KAROFSKY, JJ., joined except for ¶35. KAROFSKY, J., filed a concurring opinion, in which ZIEGLER, J., joined.


¶1 Fourteen years ago, Mark Jensen was on trial for killing his wife, Julie.1 Before the start of that trial, we held that certain hearsay statements made by Julie were testimonial. State v. Jensen (Jensen I ), 2007 WI 26, ¶2, 299 Wis. 2d 267, 727 N.W.2d 518. For that reason, and because Jensen had no opportunity to cross-examine Julie about those statements, the statements were inadmissible under the Confrontation Clause.2 We are now asked to determine whether the law on testimonial hearsay has since changed to such a degree that, at Jensen's new trial,3 the circuit court was no longer bound by Jensen I. We hold that it has not. We therefore affirm the court of appeals’ decision.4


¶2 Julie died from poisoning in 1998. Prior to her death, she made several statements suggesting that, if she died, the police should investigate Jensen. She wrote a letter and gave it to her neighbor with instructions to give the letter to the police should anything happen to her. She also left two voicemails with Pleasant Prairie Police Officer Ron Kosman two weeks before she died stating that if she were found dead, Jensen should be Kosman's "first suspect." In 2002, Jensen was charged with first-degree intentional homicide. Over the next several years, the circuit court held a series of pretrial hearings addressing the admissibility of Julie's letter and voicemails.

¶3 The circuit court initially ruled that Julie's letter was admissible but her voicemails were not. After that ruling, however, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which established that an unavailable witness's hearsay statement is inadmissible under the Confrontation Clause if the statement is testimonial and the defendant had no prior opportunity to cross-examine the witness. Id. at 50-54, 124 S.Ct. 1354. In light of that decision, Jensen asked the circuit court to reconsider its previous ruling. Upon reconsideration, the circuit court determined that, under Crawford, Julie's letter and voicemails ("Julie's statements") were testimonial hearsay and were inadmissible because Jensen had no opportunity to cross-examine Julie.

¶4 The State appealed and we affirmed, applying Crawford and the United States Supreme Court's subsequent decision, Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).5

Jensen I, 299 Wis. 2d 267, 727 N.W.2d 518. Davis set out what has come to be known as the "primary purpose test": a statement is testimonial if its primary purpose is "to establish or prove past events potentially relevant to later criminal proceedings." 547 U.S. at 822, 126 S.Ct. 2266. The Court explained that although statements made in response to police questioning are generally testimonial, such statements are nontestimonial if their primary purpose is to help the police "meet an ongoing emergency." Id. at 822, 126 S.Ct. 2266. Applying that test, we determined in Jensen I that the primary purpose of Julie's statements was not to help the police resolve an active emergency but to "investigate or aid in prosecution in the event of her death." Jensen I, 299 Wis. 2d 267, ¶¶27, 30, 727 N.W.2d 518. Thus, under Crawford and Davis’s interpretation of the Confrontation Clause, Julie's statements were inadmissible. Id., ¶34.

¶5 We remanded the cause to the circuit court to determine whether Julie's statements were nevertheless admissible under the forfeiture-by-wrongdoing doctrine, which we adopted in Jensen I. See id., ¶¶2, 52. At the time, that doctrine stated that a defendant forfeits his constitutional right to confront a witness when the defendant caused that witness's unavailability. See id., ¶57. On remand, the circuit court found that the State had shown by a preponderance of the evidence that Jensen caused Julie's unavailability. Therefore, the Confrontation Clause notwithstanding, Julie's statements were admissible after all. Relying at least in part on those statements, a jury convicted Jensen of Julie's murder.

¶6 Jensen again appealed. State v. Jensen (Jensen II ), 2011 WI App 3, 331 Wis. 2d 440, 794 N.W.2d 482. While that appeal was pending, the United States Supreme Court decided another case directly affecting Jensen, Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). There, the Court refined the forfeiture-by-wrongdoing doctrine, holding that it applies only when the defendant caused the witness's unavailability with the specific intent of preventing the witness from testifying. See id. at 361-68, 128 S.Ct. 2678. In Jensen II, the court of appeals "assum[ed]" that Jensen had not killed Julie specifically to keep her from testifying at trial; therefore, under Giles, Jensen had not forfeited his Confrontation Clause rights and the circuit court had erred in admitting Julie's statements. But the court of appeals also held that the circuit court's error was harmless, given the "voluminous" other evidence supporting the jury's guilty verdict. See Jensen II, 331 Wis. 2d 440, ¶35, 794 N.W.2d 482.

¶7 That harmless error conclusion formed the basis for Jensen's federal habeas corpus litigation.6 There, the federal courts agreed with Jensen that it was not harmless error to admit Julie's testimonial statements in violation of the Confrontation Clause. Jensen v. Schwochert, No. 11-C-0803, 2013 WL 6708767 (E.D. Wis. Dec. 18, 2013), aff'd, Jensen v. Clements, 800 F.3d 892, 908 (7th Cir. 2015) (holding that was it was "beyond any possibility for fairminded disagreement" that admitting Julie's statements "had a substantial and injurious effect" on the jury's verdict (quoted source omitted)). Concluding that the Wisconsin court of appealsdecision in Jensen II was an "unreasonable application of clearly established federal law," the federal court ordered Jensen's conviction vacated. Schwochert, 2013 WL 6708767, at *16-17. The State immediately initiated new proceedings against Jensen.

¶8 In this new pretrial period, Jensen filed a motion to exclude Julie's statements, per our holding in Jensen I. The State urged the circuit court to address anew whether Julie's statements were admissible, arguing that the United States Supreme Court had since "narrowed" the definition of "testimonial" to such a degree that the circuit court was not bound by Jensen I. The circuit court agreed. It explained that "a lot has happened" since Jensen I and that "based upon the law that we have today," Julie's statements were not testimonial. The circuit court reached that conclusion by "applying the factors in Ohio v. Clark, the more recent cases including Michigan v. Bryant, and other cases that came out since Crawford v. Washington and Jensen I."7 The State then moved the circuit court to forgo a new trial and reinstate Jensen's original conviction and life sentence on the grounds that, if Julie's statements were again admissible, the evidence now was identical to that in Jensen's first trial. The circuit court granted the State's motion. Jensen appealed.

¶9 The court of appeals reversed, holding that neither it nor the circuit court was "at liberty to decide" that Julie's statements were nontestimonial, given our holding in Jensen I. State v. Jensen (Jensen III ), No. 2018AP1952-CR, unpublished slip op., at 12 (Wis. Ct. App. Feb. 26, 2020). The court of appeals explained that under Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997), this court is the only one with the power to modify or overrule one of our previous decisions. The court of appeals concluded that, because we have never modified or overruled Jensen I, the circuit court erred in finding Julie's statements admissible and, in turn, failing to hold a new trial. It then remanded the cause "for a new trial at which Julie's letter and [voicemails] may not be admitted into evidence." Id. Having decided Jensen's appeal under Cook, the court of appeals declined to address Jensen's other challenges, including claims that the circuit court judge was biased against him and that the circuit court violated the federal court's habeas order by reinstating his conviction without a trial.

¶10 We granted the State's petition for review of the following three issues: (1) whether the court of appeals erred in reviewing the circuit court's decision under Cook instead of the law of the case; (2) if so, whether the circuit court permissibly deviated from the law of the case and correctly determined that Julie's statements are nontestimonial hearsay; and (3) whether we should remand the cause to the court of appeals to decide Jensen's remaining challenges.

¶11 Although we agree with the court of appeals’ ultimate conclusion that the circuit court is bound by Jensen I, we hold that the court of the appeals erred in relying on Cook to reach that decision. In Cook, we held that the court of appeals has no power to overrule, modify, or withdraw language from one of its own published decisions; only this court has that power. See Cook, 208 Wis. 2d at 189, 560 N.W.2d 246. The...

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