State v. Jensen

• Citation: 2007 WI 26,727 N.W.2d 518
• Decision Date: 23 February 2007
• Docket Number: No. 2004AP2481-CR.,2004AP2481-CR.
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. Mark D. JENSEN, Defendant-Respondent-Cross-Appellant.
• Court: United States State Supreme Court of Wisconsin

727 N.W.2d 518

2007 WI 26

STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. Mark D. JENSEN, Defendant-Respondent-Cross-Appellant.

No. 2004AP2481-CR.

Supreme Court of Wisconsin.

Argued January 11, 2006.

Decided February 23, 2007.

For the plaintiff-appellant-cross-respondent the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

For the defendant-respondent-cross-appellant there were briefs by Craig W. Albee and Glynn, Fitzgerald, Albee & Strang, S.C., Milwaukee, and oral argument by Craig W. Albee.

ON BYPASS FROM THE COURT OF APPEALS

¶ 1 JON P. WILCOX, J

This case comes before us on a petition to bypass the court of appeals pursuant to Wis. Stat. § (Rule) 809.60 (2005-06). The State of Wisconsin appealed an order of the Kenosha County Circuit Court, Bruce E. Schroeder, Judge, denying the admissibility of Julie Jensen's (Julie) letter to the police and her voicemail message and other oral statements to Officer Ron Kosman (Kosman). The defendant, Mark D. Jensen (Jensen), cross-appealed the same order of the circuit court denying his motion to exclude statements Julie made to her neighbor, Tadeusz Wojt (Wojt), and her son's teacher, Theresa DeFazio (DeFazio).

¶ 2 We affirm the order of the circuit court as to its initial rulings on the admissibility of the various statements under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). That is, the statements Julie made to Kosman, including the letter, are "testimonial," while the statements Julie made to Wojt and DeFazio are "nontestimonial." However, we reverse the circuit court's decision as to the applicability of the forfeiture by wrongdoing doctrine. Today, we explicitly adopt this 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. As such, the case must be remanded 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.

I

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

¶ 4 At Jensen's preliminary hearing conducted on April 23, 2002, and May 8, 2002, before the Honorable Carl M. Greco, Court Commissioner, the State presented testimony from several witnesses including Wojt, Kosman, and Detective Paul Ratzburg (Ratzburg).

¶ 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. 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. 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.

¶ 6 Kosman testified that he received two voicemails approximately two weeks prior to Julie's death. Julie told Kosman in the second voicemail that she thought Jensen was trying to kill her, and she asked him to call her back. Kosman returned Julie's call and subsequently went to her home to talk with her. 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.¹ Julie also informed Kosman that she had photographed part of his day planner and gave the pictures, along with a letter, to a neighbor (Wojt). Julie then retrieved the 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. Kosman also testified that in August or September of 1998, Julie told him it had become very "cold" in the residence and that Jensen was not as affectionate as he used to be. She claimed that when Jensen came home from work, he would immediately go to the computer.

¶ 7 Finally, Ratzburg testified at the preliminary hearing that on the day after Julie's death, he received a sealed envelope from Wojt. The envelope contained a handwritten letter,² addressed to "Pleasant Prairie Police Department, Ron Kosman or Detective Ratzenburg" and bearing 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.

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

¶ 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. Jensen also challenged the admissibility of oral statements Julie purportedly made to her physician, Dr. Richard Borman (Borman), and her son's teacher, DeFazio.³ These motions were extensively briefed and argued before the court. 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). The court ruled that most, but not all, of the statements were admissible. Julie's entire in-person statements to Kosman and the letter sent to Ratzburg were admitted in their entirety. The State conceded the voicemails were inadmissible hearsay.

¶ 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, 541 U.S. 36, 124 S.Ct. 1354. 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. The court rejected the State's argument that the statements were admissible under the doctrine of forfeiture by wrongdoing. The court also determined that Julie's statements to Wojt and DeFazio were nontestimonial, and therefore, the statements were not excluded. On August 4, 2004, the circuit court issued a written order memorializing its oral rulings.

¶ 11 The State appealed the court's ruling with respect to Julie's letter and her voicemail message to Kosman.⁴ Jensen subsequently cross-appealed the ruling that the statements of Wojt and DeFazio were not excluded. 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. We granted the petition.

II

¶ 12 Reduced to their essence, the appeal and cross-appeal concern the circuit court's determinations on the testimonial or nontestimonial nature of various statements of Julie's that the State seeks to introduce.⁵ "Although a circuit court's decision to admit evidence is ordinarily a matter for the court's discretion, whether the admission of evidence violates a defendant's right to confrontation is a question of law subject to independent appellate review." State v. Williams, 2002 WI 58, 253 Wis.2d 99, ¶ 7, 644 N.W.2d 919 (citing State v. Ballos, 230 Wis.2d 495, 504, 602 N.W.2d 117 (Ct.App.1999)). For purposes of that review, the appellate court must accept the circuit court's findings of fact unless they are clearly erroneous. State v. Jackson, 216 Wis.2d 646, 575 N.W.2d 475 (1998).

III

¶ 13 "`The Confrontation Clause of the United States and Wisconsin Constitutions guarantee criminal defendants the right to confront witnesses against them.'" State v. Manuel, 2005 WI 75, ¶ 36, 281 Wis.2d 554, 697 N.W.2d 811 (quoting State v. Hale, 2005 WI 7, ¶ 43, 277 Wis.2d 593, 691 N.W.2d 637); U.S. Const. amend. VI;⁶ Wis. Const. art. I, § 7.⁷ We generally apply United States Supreme Court precedents when interpreting these clauses. Hale, 277 Wis.2d 593, ¶ 43, 691 N.W.2d 637.

¶ 14 In 2004 the U.S. Supreme Court fundamentally changed the Confrontation Clause analysis in Crawford, 541 U.S. 36, 124 S.Ct. 1354. Michael Crawford was charged and convicted of assault and attempted murder for stabbing a man, who allegedly tried to rape Crawford's wife, Sylvia. Id. at 38, 124 S.Ct. 1354. At trial, the State played for the jury Sylvia's taperecorded statement to the police describing the stabbing. Id. Sylvia did not testify at trial due to Washington's marital privilege; the privilege, however, did not extend to a spouse's out-of-court statements admissible under...