State v. Thomas
| Docket Number | 2020AP32-CR |
| Decision Date | 21 February 2023 |
| Citation | 405 Wis.2d 654,2023 WI 9,985 N.W.2d 87 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Oscar C. THOMAS, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner, there were briefs filed by John T. Wasielewski and Wasielewski & Erickson, Milwaukee. There was an oral argument by John T. Wasielewski.
For the plaintiff-respondent, there was a brief filed by Sonya K. Bice, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Sonya K. Bice, assistant attorney general.
ROGGENSACK, J., announced the mandate of the Court, and delivered an opinion, in which ZIEGLER, C.J., joined, and the majority opinion of the Court with respect to ¶2 and ¶¶12-24, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET and KAROFSKY, JJ., joined, and in which HAGEDORN, J., joined with respect to ¶¶12-24. DALLET, J., filed a concurring opinion, which constitutes the majority opinion of the Court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion.
¶1 We review a published decision of the court of appeals1 that affirmed the circuit court's2 judgment of conviction and its denial of Oscar C. Thomas's postconviction motion.
¶2 We accepted two issues for review. First, whether Thomas's confession of sexual assault was corroborated by a significant fact, and we conclude it was. This opinion is the majority opinion for the discussion of corroboration. Second, whether the cross-examination of Thomas's expert witness by use of a Wisconsin Crime Lab Report ("the Report") that was not in evidence and whose author did not testify violated Thomas's confrontation right. Four justices conclude the Report's contents were used for their truth during cross-examination, thereby violating Thomas's right of confrontation. Justice Dallet's concurrence is the decision of the court for the confrontation issue.3 Six justices conclude Hemphill precludes admission of evidence to correct an allegedly misleading impression created by the defendant, and seven justices conclude that any error related to the Report was harmless. Accordingly, we affirm the court of appeals.
¶3 The court of appeals concluded that the State met its evidentiary burden to sufficiently corroborate Thomas's confession of sexual assault. We agree with this conclusion. We also conclude that the State's use of the Report4 that a defense expert reviewed, but which was not admitted into evidence, did not violate Thomas's confrontation right under the United States’ Constitution or the Wisconsin Constitution when used for impeachment purposes.5 However, we reject the State's argument that it properly used the Report's contents during closing argument. Furthermore, following Hemphill,6 a criminal defendant does not "open the door" to the introduction of testimonial out-of–court statements for the purpose of "correct[ing]" a "misleading impression." Although we conclude that the State did not use the content of the Report for its truth on cross-examination, the State did improperly use the Report's content for its truth during closing argument, which the circuit court erroneously permitted. However, we conclude the error was harmless because it is "clear beyond a reasonable doubt that a rational jury would have found [Thomas] guilty absent the error." State v. Harvey, 2002 WI 93, ¶46, 254 Wis. 2d 442, 647 N.W.2d 189 (citing Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) ).
¶4 In the early hours of December 27, 2006, officers responded to a 911 call and found Ms. Joyce Oliver-Thomas unresponsive on the floor of her apartment. Emergency responders employed CPR and attempted to resuscitate Ms. Oliver-Thomas as they transported her to the hospital, where she was pronounced dead. An autopsy concluded that Joyce died from "Strangulation due to Physical Assault." Ms. Oliver-Thomas's husband, the defendant Oscar C. Thomas,7 was subsequently charged with first-degree intentional homicide, first-degree sexual assault, and false imprisonment. Thomas provided three statements to police over the course of the investigation, which we address below.
¶5 At his 2007 trial, the jury convicted Thomas of all three charges against him. Thomas appealed, and the court of appeals affirmed. We denied review.8 Thomas then pursued federal habeas corpus relief, and the Seventh Circuit granted him a new trial. Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015).9 Thomas was retried to a jury in 2018, convicted of all charges again, and was sentenced to life imprisonment.
¶6 Thomas appealed, and the court of appeals affirmed Thomas's convictions and the circuit court's denial of his postconviction motions. Specifically, the court of appeals concluded there was sufficient corroborating evidence of the sexual assault confession, and denial of the postconviction motion was appropriate. State v. Thomas, 2021 WI App 55, ¶14, 399 Wis. 2d 277, 963 N.W.2d 887. The court of appeals also concluded the Report's DNA evidence was "inadmissible hearsay," causing a Confrontation Clause violation when it was used erroneously during trial and during the State's closing argument. Id., ¶35, 963 N.W.2d 887. However, the court of appeals concluded that the error was harmless. Id., ¶¶35, 37, 963 N.W.2d 887.10
¶7 In its briefing to us, the State did not argue that the Report could be used for the truth of its contents. Rather, it set the issue up as: "[W]hen Thomas's expert gave testimony directly contradicting the lab report on which he relied, it was an implied waiver of Thomas's right to confront the author of the lab report." However, Dr. Williams did not say he "relied" on the Report, but rather, that he "reviewed" the Report along with hundreds of other pages of material relative to this case.11 Nevertheless, the State veered from the argument it raised consistently below that the prosecutor used the Report to impeach Thomas's defense expert. Instead, at oral argument the State argued that we should analyze the Report based on the contention that its contents were properly used during cross-examination and during closing argument for the truth of the matters asserted therein.
¶8 Thomas petitioned us for review, which we granted on two matters: first, to review whether the State sufficiently satisfied its burden to corroborate Thomas's confession with any significant fact; second, to review whether the State's cross-examination of Thomas's expert witness through the use of the Report violated Thomas's right under the Sixth Amendment to confront the author of the Report. We also review the State's use of the DNA findings of the Report in the prosecutor's closing argument. We conclude that error occurred in the prosecutor's use of the contents of the Report in closing argument; however, the error was harmless as we explain below.
¶9 Whether evidence corroborates a criminal defendant's confession(s) or statement(s) presents a question of evidentiary sufficiency, which is ultimately a question of law subject to our independent review. State v. Bannister, 2007 WI 86, ¶¶22, 33, 302 Wis. 2d 158, 734 N.W.2d 892.
¶10 We review constitutional issues independently, although we benefit from the discussions of the court of appeals and circuit court. State v. Smith, 2012 WI 91, ¶25, 342 Wis. 2d 710, 817 N.W.2d 410.
¶11 Lastly, we review whether an error was harmless by placing the burden on the party that benefitted from the error to establish it is "clear beyond a reasonable doubt that a rational jury would have found [Thomas] guilty absent the error." Harvey, 254 Wis. 2d 442, ¶46, 647 N.W.2d 189 (citing Neder, 527 U.S. at 18, 119 S.Ct. 1827 ).
¶12 Thomas first argues that the State did not present evidence to corroborate the statements he made to police in which he confessed to the crime of sexual assault. Accordingly, Thomas argues the jury convicted him based solely on the two relevant statements he made to police following Ms. Oliver-Thomas's death.12
¶13 In Thomas's first statement to officers, he reported that Ms. Oliver-Thomas had complained of chest and ear pain in the early evening. Throughout the evening, Thomas and a friend were smoking crack in the basement of the four-plex apartment, and Thomas checked on his wife frequently. Each time he left the basement to check on Ms. Oliver-Thomas, she was "in bed dozing off." Thomas began watching a pornographic video in the apartment sometime after midnight, during which he became aroused and approached his wife, who agreed to consensual sex. During sex, the couple fell off of the bed and onto the floor. Following their encounter, Thomas noted that Ms. Oliver-Thomas complained her "chest was still hurting." Thomas checked on his wife a few more times, left the building and, upon returning to the apartment, he found Ms. Oliver-Thomas on the floor in the bedroom. Thomas then called 911 and administered CPR until officers arrived.
¶14 In Thomas's second statement to police,13 he and a friend were smoking crack in the apartment building's basement. Thomas repeatedly returned to the apartment. On one trip to the apartment, Thomas noticed Ms. Oliver-Thomas was lying down because "her chest was hurting." On a subsequent trip upstairs, Ms. Oliver-Thomas said "she was feeling better." Thomas began watching a pornographic video and approached his wife to initiate sex. Even though she initially told him to stop, Thomas persisted, and, according to Thomas, the pair engaged in consensual sex, during which they fell to the floor. While engaged in sex, Thomas stated he had his left arm up around his wife's neck.
¶15 After Ms. Oliver-Thomas returned to the bed, Thomas said he began "humping" Ms. Oliver-Thomas's hip area. Thomas and Ms. Oliver-Thomas...
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