ANNETTE KINGSLAND ZIEGLER, J.
¶ 1 This is a review of a published decision of the court of appeals,
¶ 2 We conclude that on the facts of this case, Witucki's testimony did not violate Deadwiller's right to confrontation. Applying the various rationales of Williams, a majority of the United States Supreme Court would come to the same conclusion as in Williams, that the expert's testimony did not violate the defendant's right to confrontation. Moreover, Deadwiller did not challenge the substance of Witucki's testimony because his defense was that the intercourse did occur but that the victims consented.
¶ 3 Further, assuming arguendo that the admission of Witucki's testimony violated Deadwiller's right to confrontation, we conclude that the error was harmless in light of the defendant's previous admissions of sexual intercourse with the victims and the fact that throughout the proceedings, he maintained a defense that the victims consented.
¶ 4 On August 27, 2007, Deadwiller was charged with one count of second-degree sexual assault by use of force in violation of Wis. Stat. § 940.225(2)(a). The complaint alleged that on July 12, 2006, Deadwiller sexually assaulted Kristina S. by striking her in the head, forcing her to the ground, and forcing her to have sexual intercourse. On October 4, 2007, Deadwiller was charged in a separate case with one count of second-degree sexual assault by use of force contrary to Wis. Stat. § 940.225(2)(a). The complaint alleged that on August 12, 2006, Deadwiller sexually assaulted Chantee O. by grabbing her from behind, punching her in the jaw, forcing her to the ground, and forcing her to have sexual intercourse.
¶ 5 On March 26, 2008, the State filed a motion in limine seeking a ruling that the testimony of Witucki would be admissible at trial. The motion confirmed that Witucki was not the analyst who developed the DNA profiles from the semen recovered on the victims' vaginal and cervical swabs. However, Witucki entered Orchid's DNA profiles into the DNA database and obtained a match to Deadwiller. Thereafter, Witucki received a buccal (cheek) swab from Deadwiller and compared the new sample to the Orchid DNA profiles, again resulting in a match. The State argued that Witucki independently concluded that Deadwiller was a match for the DNA recovered from the victims and that "[a] defendant's confrontation right is satisfied if a qualified expert testifies as to his or her own independent opinion, even if the opinion is based in part on the work of another." State v. Barton, 2006 WI App 18, ¶ 20, 289 Wis.2d 206, 709 N.W.2d 93 (citing State v. Williams, 2002 WI 58, ¶¶ 9, 11, 253 Wis.2d 99, 644 N.W.2d 919).
¶ 6 In preparation for trial, Deadwiller hired an expert to review the DNA evidence in this case, and the trial was delayed several times because Deadwiller's expert had not completed his analysis. At a pretrial conference on March 26, 2008, Deadwiller reported that he wanted to go forward with the trial even though he had not received the expert's analysis. The circuit court confirmed that Deadwiller wanted to proceed to trial without his expert:
The State then added that Deadwiller's decision was reasonable because "Deadwiller's made statements admitting sexual intercourse.... It's going to be in my view a credibility case, so I think this is a reasonable decision if he wants a speedy trial." Deadwiller agreed with the prosecutor that the main issue in the case was whether the women consented or whether he forced them to have intercourse: "I agree with [the prosecutor] 100 percent." In other words, even before the trial began, Deadwiller's defense was that the women consented to the intercourse. He did not challenge that his DNA was found in the victims.
¶ 7 On April 7, 2008, Deadwiller's jury trial began. The jury heard testimony from Kristina S., Chantee O., a sexual assault nurse, several police officers, Witucki, and Deadwiller. Kristina S. testified that on July 12, 2006, she had an argument with her boyfriend, left the apartment where they had been staying, and was locked out. Kristina S. testified that she walked to a nearby gas station to call her boyfriend to let her back into the apartment but was unable to reach him. Walking back towards the apartment, Kristina S. testified that Deadwiller began talking to her and offered to let her use the phone at his house. She testified that she walked with him until they approached a dark alley, at which point she stopped. She then testified that Deadwiller grabbed her arm, hit her in the face, told her to take her pants down, threatened to kill her if she refused, then forced her to have sexual intercourse. Kristina S. testified that she immediately reported the crime, went to the Sexual Assault Treatment Center at Aurora Sinai Hospital, and underwent a sexual assault examination. Kristina S. testified that she did not consent to having sex with Deadwiller, nor did she agree to have sex with Deadwiller in exchange for money or drugs. Rather, she testified that "he raped me."
¶ 8 Chantee O. testified that on August 12, 2006, she was walking on the 16th Street bridge in Milwaukee and was going to catch a bus home. She testified that three people, including Deadwiller, were waiting for the bus on the opposite side of the street. According to Chantee O.'s testimony, Deadwiller informed her that her bus stop was down a set of stairs and that he would show her where it was located. Chantee O. testified that Deadwiller led her a short way from the bottom of the stairs, hit her in the jaw, told her to take down her pants, then forced her to have sexual intercourse. Chantee O. testified that immediately after the assault, she flagged down a police car, went to the Sexual Assault Treatment Center at Aurora Sinai Hospital, and underwent a sexual assault examination. Similar to Kristina S., Chantee O. testified that she did not have sex with Deadwiller voluntarily nor did she have sex in exchange for drugs or money.
¶ 9 The State then called several witnesses to establish a chain of custody for the evidence collected during the victims' sexual assault examinations. Tanya Wieland, a sexual assault nurse examiner at Aurora Sinai, testified that she conducted the examination on both victims, packaged and labeled all of the evidence collected, including vaginal and cervical swabs, and turned the evidence over to hospital security, which keeps evidence in a secure room until picked up by the police. Two officers testified that they picked up the evidence collected from Kristina S. and Chantee O. from the secure room at Aurora Sinai, opened the outer bag (without opening the bags on the individual items)
¶ 10 Witucki then testified regarding the DNA evidence, including that, in his opinion, DNA recovered from the victims matched Deadwiller. He testified to his qualifications, including 20 years of working at the SCL, degrees in technology and biology, and training in forensic serology, semen identification techniques, and DNA typing methods. Witucki testified that the SCL had a contract with Orchid to reduce the backlog of DNA case work, whereby the SCL sent evidence to Orchid, which ran the necessary testing and sent back results for the SCL to review. Witucki testified that he was familiar with Orchid's protocols because it was accredited by the same agency that accredited the SCL and Orchid submitted its protocols when it first applied for the contract with the SCL.
¶ 11 The SCL received evidence in Kristina S.'s case in July 2006 and evidence in Chantee O.'s case in August 2006. Between the time the SCL receives the evidence and the time it is sent to Orchid, Witucki testified that the evidence is individually sealed and stored in a freezer or evidence control room. The SCL sent samples to Orchid in Kristina S.'s case in April 2007 and Chantee O.'s case in November 2006. The SCL received samples from Orchid in Kristina S.'s case on July 5, 2007, and Chantee O.'s case on July 6, 2007. Witucki testified that the SCL follows protocols and maintains records of evidence by assigning a case number upon receipt of evidence, storing the evidence in a control room or freezer, and recording the shipping labels if evidence is sent to an out-of-state lab.
¶ 12 Witucki testified that he received a "report and all the electrophoreticgrams
None of the documentation completed by Orchid was introduced into evidence. The State rested its case after Witucki's testimony.
¶ 13 Deadwiller testified in his defense. In his version of the events, both women offered to have sex with him for money and consented to having sex with him. He testified that Kristina S. may have had motivation to lie because she tried to run away from him after he paid Kristina S. upfront, and he "slapped her on the side of the head like to stop her and she fell." Further, he testified that Chantee O. may have had motivation to lie because he paid her only $10 after they had agreed on a price of $15.
¶ 14 The jury found Deadwiller guilty on both counts. Deadwiller was sentenced to 20 years' imprisonment on each count, consisting of 15 years of confinement and 5 years of extended supervision for each count.
¶ 15 Deadwiller appealed, arguing that "the trial court violated his right to confrontation by allowing a technician from the Wisconsin State Crime Laboratory to
¶ 16 Deadwiller petitioned this court for review, and we granted his petition on January 14, 2013.
¶ 17 The question presented in this case is whether Deadwiller's right to confrontation was violated by Witucki's use of the DNA profiles developed by Orchid. While "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, 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)).
¶ 18 We conclude that on the facts of this case, Witucki's testimony did not violate Deadwiller's right to confrontation. Applying the various rationales of Williams, a majority of the United States Supreme Court would come to the same conclusion as in Williams, that the expert's testimony did not violate the defendant's right to confrontation. Moreover, Deadwiller did not challenge the substance of Witucki's testimony because his defense was that the intercourse did occur but that the victims consented.
¶ 19 Further, assuming arguendo that the admission of Witucki's testimony violated Deadwiller's right to confrontation, we conclude that the error was harmless in light of the defendant's previous admissions of sexual intercourse with the victims and the fact that throughout the proceedings, he maintained a defense that the victims consented.
¶ 20 The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." In Crawford, the Court held that the Confrontation Clause permitted the admission of "[t]estimonial statements of witnesses absent from trial ... only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." 541 U.S. at 59, 124 S.Ct. 1354. The Court stated that "witnesses" against the defendant are "those who bear testimony." Id. at 51, 124 S.Ct. 1354. The Court defined "testimony" as "a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. The Confrontation Clause is concerned with "a specific type of out-of-court statement," such as affidavits, depositions, custodial examinations, prior testimony, and "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52, 124 S.Ct. 1354.
¶ 21 After Crawford, a flurry of Confrontation Clause jurisprudence has ensued over what constitutes a "testimonial
¶ 22 Williams was charged with, inter alia, aggravated sexual assault and was tried before a state judge. Id. Lambatos testified that it was common for "one DNA expert to rely on the records of another
¶ 23 The United States Supreme Court affirmed in a fractured opinion, concluding for various reasons that Lambatos' testimony did not violate Williams' right to confrontation. Id. at 2228, 2255. Justice Alito wrote for the lead opinion, which was joined by Chief Justice Roberts, Justice Kennedy, and Justice Breyer. Id. at 2227. Justice Thomas concurred in the result, but not in the lead opinion's reasoning. Id. at 2255. Justice Alito gave two rationales to support his conclusion. First, he reasoned that the DNA profile was not used to prove the truth of the matter asserted, namely, that "the report contained an accurate profile of the perpetrator's DNA." Id. at 2240. Williams argued that Lambatos' testimony violated his right to confrontation because she lacked personal knowledge that Cellmark's DNA profile was produced from the vaginal swab of the victim, L.J. Id. at 2236. Justice Alito rejected this argument, stating that under the Illinois and Federal Rules of Evidence,
¶ 24 Justice Alito explained that his rationale was consistent with Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and Bullcoming v. New Mexico, 564 U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). Id. at 2240. In both of those cases, the forensic report was introduced for the truth of what they asserted, that Bullcoming's BAC exceeded the legal limit and that the substance Melendez-Diaz was charged with distributing was cocaine. Id. In contrast, Cellmark's report was not used for the truth of the matter:
Id. at 2240-41 (citation omitted).
¶ 25 Justice Alito then explained a second, independent rationale for concluding that Lambatos' testimony did not violate Williams' right to confrontation. Id. at 2242. He explained that the Confrontation Clause refers to "witnesses against" the accused, and that in post-Crawford cases, there were two common characteristics of Confrontation Clause violations: "(a) they involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and (b) they involved formalized statements such as affidavits, depositions, prior testimony, or confessions." Id. In Williams, the Cellmark report was not "prepared for the primary purpose of accusing a targeted individual." Id. at 2243. Rather, "its primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time." Id.
¶ 26 Justice Thomas concurred in the judgment, but he disagreed with Justice Alito's reasoning. Id. at 2255. Justice Thomas reached his conclusion "solely because Cellmark's statements lacked the requisite `formality and solemnity' to be considered `testimonial' for purposes of the Confrontation Clause":
Id. at 2255, 2259-60 (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (internal citations omitted)). Justice Thomas concluded that Cellmark's report did not meet this standard because it lacked the solemnity of an affidavit or deposition. Id. at 2260. The report was "neither a sworn nor a certified declaration of fact." Id. Even though the report was produced at the request of the police, "it was not the product of any sort of formalized dialogue resembling custodial interrogation." Id.
¶ 27 Thus, although Williams was a fractured opinion, five Justices concluded that Lambatos' testimony did not violate Williams' right to confrontation. Id. at 2228, 2255.
¶ 28 Deadwiller argues that his right to confrontation was violated when the circuit court allowed Witucki to rely on the DNA profiles created by Orchid. He argues that Orchid's DNA profiles were testimonial because "[t]he State needed these results in order to prove or establish some fact, the identity of the perpetrator, at the jury trial." He argues that this case is distinguishable from Williams first because Deadwiller "sought substantive use" of Orchid's result. In other words, "Witucki testified substantively that the Orchid Cellmark DNA results revealed the name of Richard Deadwiller." He argues that Williams is further distinguishable because Deadwiller had a jury trial and Williams had a bench trial.
¶ 29 The State argues that the judgment of Williams is controlling. It asserts that Deadwiller and Williams stand in substantially identical positions, and therefore, the result in Williams — that the witness' reliance on the out-of-state laboratory's DNA profile did not violate the defendant's right to confrontation — is controlling.
¶ 30 "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotations and citations omitted). This rule is applicable only when "at least two rationales for the majority disposition fit or nest into each other like Russian dolls." Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L.Rev. 1, 33 n. 120 (1994). If no theoretical overlap exists between the rationales employed by the plurality and the concurrence, "the only binding aspect of the fragmented decision ... is its `specific result.'" Berwind Corp. v. Comm'r of Soc. Sec., 307 F.3d 222, 234 (3d Cir.2002) (citation omitted). A fractured opinion mandates a specific result when the parties are in a "substantially identical position." Id.
¶ 31 "We need not find a legal opinion which a majority joined, but merely `a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree.'" People v. Dungo, 55 Cal.4th 608, 147 Cal.Rptr.3d 527, 286 P.3d 442, 455 (2012) (Chin, J., concurring) (citation omitted). Therefore, "we must identify and apply a test which satisfies the requirements of both Justice [Alito's] plurality opinion and Justice [Thomas's] concurrence." Id. 147 Cal.Rptr.3d 527, 286 P.3d at 456.
¶ 32 Though the opinions of Justice Alito and Justice Thomas in Williams have no theoretical overlap, we still apply the case because Deadwiller and Williams are in substantially identical positions. Further,
¶ 33 Applying the rationales of Justice Alito and Justice Thomas "`necessarily produce[s] results with which a majority of the Court from that case would agree.'" Dungo, 147 Cal.Rptr.3d 527, 286 P.3d at 455 (Chin, J. concurring) (citation omitted). Under Justice Alito's first rationale, Orchid's DNA profiles were not used for the truth of the matter asserted. Williams, 567 U.S. ___, 132 S.Ct. at 2236. Just as Lambatos' testimony was not admissible for the purpose of proving that Cellmark's DNA profile was produced from semen found in L.J.'s vaginal swabs under Illinois and federal law, see id., nor is Witucki's testimony admissible for proving that Orchid's DNA profiles were produced from semen found in Kristina S. or Chantee O.'s vaginal swabs. See Wis. Stat. § 907.03. As the prosecutor did in Williams, the State used traditional chain of custody evidence to prove that Orchid's DNA profiles were produced from the swabs taken from Kristina S. and Chantee O.
¶ 35 Under Justice Thomas' rationale, Orchid's DNA profiles lacked the solemnity of an affidavit or deposition. Id. at 2260. There is no indication that the Orchid analyst swore to the test results or that the DNA profiles contained certified declarations of fact.
¶ 36 Deadwiller is in a substantially identical position as Williams. Berwind, 307 F.3d at 234. Applying the rationales of Justice Alito and Justice Thomas leads to the same conclusion as in Williams — Witucki's testimony did not violate Deadwiller's right to confrontation. Further, it is worth nothing that in this case, Deadwiller did not challenge the substance of Witucki's testimony. The accuracy of the DNA results was a side issue in this case because Deadwiller's defense was that the intercourse did occur but that the victims consented.
¶ 37 Our conclusion is consistent with past Wisconsin Confrontation Clause jurisprudence, namely State v. Williams and Barton. In State v. Williams, the defendant was charged with, inter alia, possession of cocaine with the intent to deliver. 253 Wis.2d 99, ¶ 1, 644 N.W.2d 919. At trial, the original analyst was unavailable to testify, and another analyst, Sandra Koresch,
Id., ¶ 20. However, "one expert cannot act as a mere conduit for the opinion of another." Id., ¶ 19.
¶ 38 In Barton, the defendant was charged with arson. 289 Wis.2d 206, ¶ 3, 709 N.W.2d 93. The original analyst, David Lyle, had retired by the time of Barton's trial, and the technical unit leader, Kenneth Olson, testified that there had been ignitable substances found at the scene of the crime. Id., ¶ 4. Olson had performed a peer review of Lyle's tests and presented his own conclusions regarding the tests to the jury. Id. Under State v. Williams, the court concluded that Barton's right to confrontation had not been violated:
Id., ¶ 16. The court of appeals also rejected Barton's argument that Crawford undermined the rule of State v. Williams. Id., ¶ 20. The court stated that "[a] defendant's confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another" expert:
Id., ¶¶ 20, 22 (quoting People v. Thomas, 130 Cal.App.4th 1202, 30 Cal.Rptr.3d 582, 587 (2005)).
¶ 39 Deadwiller asserts that this case is distinguishable from State v. Williams and Barton because Witucki was merely a conduit for Orchid's analysis. The State argues that just as in State v. Williams and Barton, a defendant's right to confrontation was not violated because Witucki was highly qualified as an analyst, reviewed Orchid's work, and independently determined that the DNA recovered from the victims was a match to Deadwiller.
¶ 40 In this case, Witucki's testimony was similar to that of the testifying analyst in State v. Williams and Barton. Witucki was a highly qualified expert. When the victims' swabs first came in, Witucki confirmed
¶ 41 Assuming arguendo that allowing Witucki to testify about Orchid's DNA profiles violated Deadwiller's right to confrontation, that violation was harmless. A Confrontation Clause violation does not result in automatic reversal, but is subject to harmless error analysis. State v. Jensen, 2011 WI App 3, ¶ 30, 331 Wis.2d 440, 794 N.W.2d 482; State v. Weed, 2003 WI 85, ¶ 28, 263 Wis.2d 434, 666 N.W.2d 485; State v. Williams, 253 Wis.2d 99, ¶ 50, 644 N.W.2d 919. For an error to be harmless, the party who benefitted from error must show that "`it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" State v. Martin, 2012 WI 96, ¶ 45, 343 Wis.2d 278, 816 N.W.2d 270 (quoting State v. Harvey, 2002 WI 93, ¶ 49, 254 Wis.2d 442, 647 N.W.2d 189). In other words, "an error is harmless if the beneficiary of the error proves beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. (internal quotations omitted). To conclude that the error was harmless, this court must determine that "the jury would have arrived at the same verdict had the error not occurred." Id. (citations omitted). Several factors guide our analysis: "the frequency of the error; the importance of the erroneously admitted evidence; the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence; whether the erroneously admitted evidence duplicates untainted evidence; the nature of the defense; the nature of the State's case; and the overall strength of the State's case." Id., ¶ 46.
¶ 42 Deadwiller argues that the introduction of Witucki's testimony was not harmless. Deadwiller points out that his prior statements to the police — that he had sexual intercourse with both women (asserting that it was consensual and that he paid them) — were not introduced by the State. Deadwiller argues that he had to change his defense strategy because of the violation, i.e. he decided to testify that the sex was consensual only after the State introduced the DNA evidence. The State, on the other hand, argues that any error was harmless. Deadwiller admitted that he was the source of the semen, and his defense strategy throughout the whole proceedings was that the sex was consensual.
¶ 43 We agree with the State and conclude that even if admitting Witucki's testimony violated Deadwiller's right to confrontation, that error was harmless. First, Deadwiller made statements to the police admitting that he had sexual intercourse with the victims. At a pretrial conference, the court asked the prosecutor whether he intended to use those statements, and he responded that "I guess that is going to depend on the DNA and if the Court allows Mr. Witucki to testify. I
¶ 44 We conclude that on the facts of this case, Witucki's testimony did not violate Deadwiller's right to confrontation. Applying the various rationales of Williams, a majority of the United States Supreme Court would come to the same conclusion as in Williams, that the expert's testimony did not violate the defendant's right to confrontation. Moreover, Deadwiller did not challenge the substance of Witucki's testimony because his defense was that the intercourse did occur but that the victims consented.
¶ 45 Further, assuming arguendo that the admission of Witucki's testimony violated Deadwiller's right to confrontation, we conclude that the error was harmless in light of the defendant's previous admissions of sexual intercourse with the victims and the fact that throughout the proceedings, he maintained a defense that the victims consented.
The decision of the court of appeals is affirmed.
¶ 46 MICHAEL J. GABLEMAN, J., did not participate.
SHIRLEY S. ABRAHAMSON, Chief Justice. (concurring).
¶ 47 This writing is really a lament. A lament that the majority opinion reaches a
¶ 48 The majority opinion reaches its result based on the result reached by the United States Supreme Court in Williams v. Illinois, ___ U.S. ___, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). Williams was a plurality decision. As a result of issuing a plurality decision, the United States Supreme Court has not synthesized its case law interpreting Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), to adequately delineate the intersection of the Confrontation Clause and the rules of evidence and the application of the Confrontation Clause to the use of crime laboratory reports at trial. The instant case presents this court an opportunity to do so. Yet the majority opinion sidesteps this opportunity and in doing so, fails to advance the law in this important area.
¶ 49 I write for two reasons.
¶ 50 First, I conclude that this court is not obligated to follow the United States Supreme Court's decision in Williams v. Illinois in reaching its result. The decision is not binding upon this court because there is no single or narrowest rationale upon which the majority of the United States Supreme Court relied in reaching its conclusion.
¶ 51 Second, in relying on Williams to dictate the result in the present case, the majority opinion misses an opportunity to examine more fully the important question raised regarding the intersection of the Confrontation Clause and the rules of evidence and the application of the Confrontation Clause to the numerous types of crime laboratory reports and the witnesses testifying about them.
¶ 52 The first issue is what role Williams should play in our court's decision in the present case. Williams was a plurality decision. It is not the first plurality decision of the United States Supreme Court (or this court), and it will not be the last.
¶ 53 Rules have been developed instructing federal and state courts how to interpret and apply plurality decisions.
¶ 54 The United States Supreme Court declared in Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), that when it issues a plurality decision, with no five Justices agreeing on a rationale, courts should regard the opinion of the Justice concurring on the narrowest possible grounds as the Court's ultimate holding.
¶ 55 This court has followed Marks in applying plurality opinions of the United States Supreme Court and in applying plurality decisions of this court. See, e.g., Vincent v. Voight, 2000 WI 93, ¶ 46, n. 18, 236 Wis.2d 588, 614 N.W.2d 388; Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis.2d 13, 21-22, 580 N.W.2d 156 (1998); Tomczak v. Bailey, 218 Wis.2d 245, 284, 578 N.W.2d 166 (1998) (Crooks, J. concurring) (quoting Gregg v. Georgia, 428 U.S. 153,
¶ 56 The Marks narrowest grounds rule has been interpreted as applying only when "one opinion can be meaningfully regarded as `narrower' than another — only when one opinion is a logical subset of other, broader opinions" and can "represent a common denominator of the Court's reasoning...." King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991) (en banc). Therefore, "in cases where approaches differ, no particular standard is binding on an inferior court because none has received the support of a majority of the Supreme Court." Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161, 170 (3d Cir.1999). "When it is not possible to discover a single standard that legitimately constitutes the narrowest ground for a decision on that issue, there is then no law of the land because no one standard commands the support of a majority of the Supreme Court." United States v. Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir.2003).
¶ 57 No narrowest opinion exists in Williams. No one opinion is a logical subset of another broader opinion.
¶ 58 Five Justices of the United States Supreme Court concluded in Williams that a DNA report similar to the one introduced in the present case did not violate the Confrontation Clause. They could not agree on the reason. Four of these Justices concluded that the admission of a Cellmark report did not violate the Confrontation Clause because the report was not used to prove the truth of the matter asserted and its primary purpose was not to accuse a targeted individual of a crime. Williams, 132 S.Ct. at 2243. One Justice agreeing with the disposition of the case concluded that the report was non-testimonial because it "lacked the requisite `formality and solemnity' to be considered `testimonial'...." Williams, 132 S.Ct. at 2255 (Thomas, J., concurring).
¶ 59 Four Justices dissented, concluding that the admission of a Cellmark report was a Confrontation Clause violation. Williams, 132 S.Ct. at 2265 (Kagan, J., dissenting).
¶ 60 I do not view the Williams decision as binding on this court. There is no "narrowest" rationale upon which to rely. The plurality opinion and Justice Thomas's concurrence employ differing approaches to reach the same conclusion that no Confrontation Clause violation occurred, but no opinion is a "logical subset" of another.
¶ 61 As Justice Kagan noted in her dissent, "[I]n all except [the plurality's] disposition, [Justice Alito's] opinion is a dissent: Five Justices specifically reject every aspect of its reasoning and every aspect of its explication." Williams, 132 S.Ct. at 2265 (Kagan, J., dissenting). Therefore, although the inclusion of Justice Thomas's concurrence means five Justices reached the same result, the reasoning of the concurrence cannot be considered the narrowest grounds or the "logical subset" of the plurality opinion.
¶ 62 The majority opinion follows the result in Williams because the defendant in Williams and the defendant in the present
¶ 63 Without explaining why it is deviating from our precedent that relies on the Marks plurality opinion rule, the majority opinion adopts a different way of approaching a plurality decision of the United States Supreme Court. The majority opinion's new approach to a plurality decision is to ask (and answer) how five members of the United States Supreme Court would dispose of the present case. In other words, the majority opinion asks (and answers) the following question: What result would the four-member plurality in Williams plus Justice Thomas reach in the present case?
¶ 64 I ask, what is the effect of the majority opinion's new approach on our prior cases adopting the Marks rule? Does the majority opinion's "follow the result" rule replace the "follow the narrowest rationale" rule from Marks? Is it an interpretation of or an alternative to the Marks rule? Does the majority opinion's "follow the result" rule require that the facts of each new case be on all fours with the decision of the United States Supreme Court? Does the majority opinion's "follow the result" rule require this court to follow a certain rationale that led to that result, even though no rationale has received the support of a majority of the United States Supreme Court? Does the majority opinion's "follow the result" rule require that all of the United States Supreme Court Justices who agreed on the result still be on the Court when a new state case is presented?
¶ 65 Because there is no single or narrowest rationale upon which the majority in the United States Supreme Court relied on reaching its conclusion in Williams, I conclude that there is no standard in Williams for this court to follow.
¶ 66 I turn now to my second point. In relying on Williams to dictate the result in the present case, the court misses an opportunity to examine the question raised regarding the intersection of the Confrontation Clause and the rules of evidence and the application of the Confrontation Clause to a wide array of crime laboratory reports and the witnesses who testify about them.
¶ 67 It may be fairly easy to speculate what result the Williams Court would reach in the present case when Williams was so recently decided and is so similar to the facts of the present case. It will not be as easy in other cases in the near and distant future that present different fact situations.
¶ 68 By adopting the result of Williams without fully setting forth a rationale, a standard, that Wisconsin courts should follow in future cases, the court has failed to strive to unbundle Confrontation Clause doctrine.
¶ 69 I agree with Justice Breyer, who lamented at length in Williams about the gravity of the issues left unresolved by the Williams decision. Justice Breyer would have preferred that the Court take a fresh look at the intersection of the Confrontation Clause and the rules of evidence and
¶ 70 One commentary concluded that the Williams plurality opinion deferred to the Illinois rules of evidence, thus "intermingl[ing] the Confrontation Clause with state rules of evidence, ... precisely the evil that Crawford helped to remedy ... [and] amounting to an unacknowledged departure from Crawford itself." The Supreme Court, 2011 Term — Leading Cases, 126 Harv. L.Rev. 176, 273 (2012). This law review piece opines on Williams as follows: "The Court could have avoided such a confusing outcome, if only a single additional Justice had either joined the Justices in the plurality to write a majority opinion overruling Melendez-Diaz and Bullcoming or joined the dissent and thereby strengthened and clarified the requirements of Melendez-Diaz and Bullcoming." The Supreme Court, 2011 Term — Leading Cases, 126 Harv. L.Rev. 176, 276 (2012).
¶ 71 Justice Breyer also raised important practical questions. Who may the prosecution call to testify and how many people who were involved in the laboratory should have to testify to satisfy the Confrontation Clause?
¶ 72 Although Justice Breyer concurred to criticize the plurality for failing to produce a clear, generally applicable rule, Justice Kagan dissented to fault the plurality for tarnishing what she viewed as the clear rule that the Court had recently espoused. Before Williams, two landmark Court decisions within the last three years in Melendez-Diaz and Bullcoming demanded that "a prosecutor wishing to admit the results of forensic testing had to produce the technician responsible for the analysis."
¶ 73 Commentators have levied criticism at all four of the Williams opinions:
¶ 74 This court should, I think, take Justice Breyer's advice and examine the issues presented and decide the present case on the basis of constitutional precedent of the United States Supreme Court and this court, learning to the extent possible from the diversity of opinions in these cases. Although the United States Supreme Court has failed to provide clear, consistent answers on the interplay of the Confrontation Clause and evidentiary rules when laboratory reports and statements are introduced or relied upon, this court should attempt to craft a constitutional standard and fashion an approach that is theoretically and practically sound.
¶ 75 Our re-examination of the applicable state and federal precedent would be fruitful to guide circuit courts, prosecutors, defense counsel, and expert witnesses in the conduct of trials in which an array of laboratory reports and statements are introduced or relied upon.
¶ 76 Justice Breyer began this examination in his Williams concurrence when he acknowledged that courts and treatise writers have recognized the problem and have suggested at least six different solutions.
¶ 77 Not only must this court harmonize Williams with Crawford, Melendez-Diaz, and Bullcoming, but it must also harmonize Wisconsin court decisions such as State v. Williams
¶ 79 I am authorized to state that Justice ANN WALSH BRADLEY joins Part I of this opinion.
ANN WALSH BRADLEY, J. (concurring).
¶ 80 I join the majority opinion in concluding that even if Deadwiller's rights under the Confrontation Clause were violated, the error here is harmless. Majority op., ¶ 3. Therefore I join Section III.B of the majority opinion.
¶ 81 However, for the reasons set forth in Section I of the concurring opinion, I cannot join the majority's discussion of Williams v. Illinois, ___ U.S. ___, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012) or its application of Williams to this case. See majority op, ¶¶ 20-35; Chief Justice Abrahamson's Concurrence, ¶¶ 52-65. Therefore I join Section I of the concurring opinion. Accordingly, I respectfully concur.
In Bullcoming, at the defendant's DWI trial, the prosecution introduced into evidence a crime lab report completed by Curtis Caylor certifying that, shortly after the traffic accident involving the defendant, Bullcoming's blood-alcohol concentration (BAC) was 0.21 grams per hundred milliliters. 564 U.S. at ___, 131 S.Ct. at 2711-12. The prosecution did not call Caylor as a witness because he had been placed "on unpaid leave," but instead, called Gerasimos Razatos, who had not participated in or supervised Caylor's work nor did Razatos have an independent opinion about Bullcoming's BAC. Id. at 2715-16. The Court held that Razatos's substitute testimony did not satisfy the requirements of the Confrontation Clause because the report contained more than machine generated results (for example, that Caylor received the blood sample with the seal intact and that Caylor followed a particular protocol), and that under Melendez-Diaz, the report was testimonial because it was formalized and created solely for an evidentiary purpose. Id. at 2715-17.
See also Wis. Stat. § 907.03.
As a basis for discussion, Justice Breyer's concurrence provides the following alternative solution to help satisfy the Confrontation Clause:
Williams, 132 S.Ct. at 2252 (Breyer, J., concurring).
For commentary on Williams, see, e.g., Michael A. Sabino & Anthony Michael Sabino, Confronting the "Crucible of Cross-Examination": Reconciling the Supreme Court's Recent Edicts on the Sixth Amendment's Confrontation Clause, 65 Baylor L.Rev. 255 (2013).
