State v. Joseph B. Reinwand

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Appeal No. 2017AP850-CR Cir. Ct. No. 2013CF196B
WISCONSIN COURT OF APPEALS

DISTRICT IV
STATE OF WISCONSIN,
PLAINIIFF-RESPONDENT,
FILED
V.
JUL 26, 2018
JOSEPH B. REINWAND,
Sheila T. Reiff
DEFENDANI-APPELLANI. Clerk of Supreme Court

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Lundsten, P.J., Sherman and Fitzpatrick, JJ.

We certify this appeal to the Wisconsin Supreme Court to decide a
question involving the “forfeiture by wrongdoing” doctrine. Under this doctrine,
testimonial statements, which would otherwise be barred under the Confrontation
Clause of the Sixth Amendment if the declarant does not appear at tial, may be
admitted nonetheless if the reason the declarant does not appear is the result of
wrongdoing by the defendant. In the typical case, this doctrine is applied when a
defendant prevents a witness from testifying at the proceeding at which the State
seeks to admit the out-of-court statement. For example, in a tnal where a
declarant is prepared to testify against the defendant the “forfeiture by

wrongdoing” doctrine applies to permit the declarant’s statement incriminating the

No. 2017AP850-CR
2
defendant if the failure of the declarant to appear at trial is the result of the
defendant acting with intent to prevent the declarant from testifying.
The question we certify today is whether the “forfeiture by
wrongdoing” doctrine applies at a homicide trial where the declarant is the
homicide victim, but where the defendant killed the declarant to prevent him or
her from testifying at a separate proceeding. It may matter that in the case at
hand, the defendant is not a party to the separate proceeding and the declarant
would not have testified against the defendant in that separate proceeding.
An additional and closely related question we certify is whether
preventing the declarant from testifying must be the defendant’s primary purpose
for the wrongful act that prevented the declarant from testifying in that separate
proceeding.
Each of these questions are issues of first impression in Wisconsin
and a decision on these questions will have statewide impact. In addition, there is
limited, if any, case law addressing these questions in other state and federal
jurisdictions. A decision on these questions will, therefore, also provide guidance
to other state and federal courts.
BACKGROUND
Joseph Reinwand was charged with first-degree intentional homicide
for the shooting death of Dale Meister. Meister is the father of Reinwand’s
granddaughter, E.M., and it is undisputed that at the time of Meister’s death,
Meister was involved in a placement dispute with Reinwand’s daughter, Jolynn
Reinwand. Shortly before Meister’s murder, Meister and Jolynn participated in
mediation to resolve their conflict and they purportedly reached an agreement on

No. 2017AP850-CR
3
E.M.’s placement. However, following their mediation, Jolynn indicated to
Meister that she was not happy with the results of their mediation and that she
would continue to deny Meister placement with E.M., thus raising an inference
that there would be further litigation between Meister and Jolynn.
Prior to trial in this homicide case, involving the allegation that
Reinwand killed Meister, the State moved the circuit court to introduce into
evidence out-of-court hearsay statements made by Meister to various individuals
during the weeks before his murder. The Meister statements generally fall within
one of the following two categories: (1) statements indicating that if Meister was
found dead, Reinwand should be “looked into”; and (2) statements telling the
listener that Reinwand had threatened to harm or kill Meister and that Meister was
afraid that Reinwand was going to harm him.
The circuit court determined that statements falling within the first
category are testimonial and are subject to the Confrontation Clause, but that the
State met its burden of establishing that the forfeiture by wrongdoing doctrine
applied to those statements and, therefore, they were admissible at trial. The court
found that a preponderance of the evidence established that Reinwand engaged in
wrongdoing by killing Meister. Notable here, the circuit court found that
Reinwand killed Meister with intent to prevent him from testifying as a witness in
likely further placement proceedings involving E.M., Reinwand’s daughter and
grandchild. Thus, unlike the typical “forfeiture by wrongdoing” scenario, the
defendant was not found by the circuit court to have intended to prevent the
declarant from testifying against the defendant in the proceeding in which the
State sought to admit the out-of-court statements, but rather where the defendant
intended to prevent the declarant from testifying in a different proceeding.

No. 2017AP850-CR
4
As to the second category of statements, the court did not make a
specific determination that those statements are testimonial or non-testimonial.
However, it appears from the court’s oral ruling that the court implicitly
determined that those statements are testimonial but admissible under the
forfeiture by wrongdoing doctrine for the same reasons the first category of
statements are admissible under the forfeiture by wrongdoing doctrine, and the
parties’ briefs treat the statements as such.
The statements at issue on appeal were admitted into evidence at
trial and the jury found Reinwand guilty. Reinwand moved the circuit court for a
new trial, which the court denied.
DISCUSSION
At issue in this case is the admissibility at trial of various out-of-
court statements that are inadmissible under the Confrontation Clause unless they
are admissible under the forfeiture by wrongdoing doctrine.
Under the Confrontation Clause, criminal defendants are guaranteed
the right to confront witnesses who testify against the defendant at trial. U.S.
CONST. amend. VI. In Crawford v. Washington, 541 U.S. 36, 68-69 (2004), the
U.S. Supreme Court held that a defendant’s right to confrontation is violated when
a witness is permitted to relate out-of-court “testimonial” hearsay statements
unless the declarant is unavailable and the declarant had a prior opportunity to
cross-examine the declarant. On appeal, the State “assumes for the purpose of [the
State’s appellate] argument” that the unconfronted out-of-court statements at issue
are testimonial, but argues that the statements are nevertheless admissible under
the forfeiture by wrongdoing doctrine. While we question the State’s assumption
that all of the statements at issue are testimonial, the testimonial nature of the

No. 2017AP850-CR
5
statements is undisputed on appeal. Accordingly, the focus of the appeal is on
whether the statements fall within the forfeiture by wrongdoing doctrine.
In Crawford, the Supreme Court stated that the Confrontation
Clause is “most naturally read as a reference to the right of confrontation at
common law, admitting only those exceptions established at the time of the
founding.” Id. at 54. Included among those exceptions is the forfeiture by
wrongdoing doctrine. See id. at 62; Giles v. California, 554 U.S. 353, 358-59
(2008). The Supreme Court stated in Crawford that “the rule of forfeiture by
wrongdoing (which we accept) extinguishes confrontation claims on essentially
equitable grounds.” Crawford, 541 U.S. at 62. According to this doctrine, “one
who obtains the absence of a witness by wrongdoing forfeits the constitutional
right to confrontation.” Davis v. Washington, 547 U.S. 813, 833 (2006).
Following Crawford, our supreme court decided State v. Jensen,
2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518, wherein the supreme court
formally adopted a “broad” interpretation of the forfeiture by wrongdoing doctrine
in Wisconsin. Id., ¶¶52, 57. The Jensen court explained the doctrine as follows:
“Essentially, the forfeiture by wrongdoing doctrine states that an accused can have
no complaint based on the right to confrontation about the use against him or her
of a declarant’s statement if it was the accused’s wrongful conduct that prevented
any cross-examination of the declarant.” Id., ¶35. The Jensen court held 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., ¶57.
Shortly after Jensen was issued, the United States Supreme Court
issued its decision in Giles, which narrowed the limits of the forfeiture by

No. 2017AP850-CR
6
wrongdoing doctrine by requiring intent. The Supreme Court held that the
doctrine “permit[s] the introduction of statements of a witness who was ‘detained’
or ‘kept away’ by the ‘means or procurement’ of the defendant,” provided there
has been “a showing that the defendant intended to prevent a witness from
testifying.” Giles, 554 U.S. at 359-61 (emphasis added); see also State v. Jensen,
2011 WI App 3, ¶22, 331 Wis. 2d 440, 794 N.W.2d 482 (“a defendant forfeits his
or her confrontation right only when acting with intent to prevent the witness from
testifying; the requirement of intent ‘means that the exception applies only if the
defendant has in mind the particular purpose of making the witness unavailable.’”
(quoted source omitted)). Thus, as the law currently stands, the forfeiture by
wrongdoing doctrine applies where: (1) a witness is unavailable to testify; (2) the
State made a good faith effort to produce the witness to testify; (3) the defendant
prevented the witness from testifying; and (4) the defendant intended to prevent
the witness from testifying. State v. Baldwin, 2010 WI App 162, ¶¶37-39, 48, 330
Wis. 2d 500, 794 N.W.2d 769.
Giles is notable because, prior to that decision, statements of a
defendant’s homicide victim, implicating the defendant in the homicide, were
often admitted under the forfeiture by wrongdoing doctrine. Indeed, our supreme
court’s 2007 Jensen decision is an example of this. See Jensen, 299 Wis. 2d 267,
¶¶57-58. We understand the teaching of Giles to be that this should not occur in
the normal course because a homicide is not typically designed to prevent the
victim from testifying at a trial addressing the very same homicide. See Giles, 554
U.S. at 359-60, 363-64, 369.
The issue in the present case involves the intent requirement. The
State argues that the intent requirement does not include a requirement that the
defendant intended to prevent the declarant from testifying against the defendant.

No. 2017AP850-CR
7
According to the State, a defendant should be deprived of his right to confront a
witness if the prosecution proves that a defendant caused a witness to be
unavailable to testify in any legal proceeding, so long as the defendant did so with
the intention of preventing the witness from testifying. In support of this
argument, the State relies on federal cases interpreting FED.R. EVID. 804(b)(6),
which codifies the forfeiture by wrongdoing doctrine for purpose of hearsay. In
particular, the State relies on the Fourth Circuit Court of Appeals’ decision in
United States v. Gray, 405 F.3d 227 (4th Cir. 2005).
In Gray, the defendant challenged her conviction for mail and wire
fraud, which related to the receipt of insurance proceeds following the murder of
her second husband, on the ground that the trial court erred in introducing into
evidence unconfronted out-of-court statements made by her second husband
during the three months preceding his murder, which she claimed was
inadmissible hearsay. See id. at 233, 240. The defendant argued that FED.R.
EVID. 804(b)(6), which adopted the forfeiture by wrongdoing doctrine for
purposes of hearsay, did not apply because she did not intend to procure her
husband’s unavailability as a witness at her fraud trial. Id. at 241. The Fourth
Circuit Court of Appeals rejected the defendant’s argument, concluding that
forfeiture by wrongdoing doctrine applies “whenever the defendant’s wrongdoing
was intended to, and did, render the declarant unavailable as a witness against the
defendant, without regard to the nature of the charges at the trial in which the
declarant’s statements are offered.” Id.
The Gray court reasoned that the text of FED.R. EVID. 804(b)(6)
“does not require that the declarant would otherwise be a witness at any particular
trial, nor does it limit the subject matter of admissible statements to [particular]
events.” Id. As it concerns FED.R. EVID. 804(b)(6), the Gray court stated: “We

No. 2017AP850-CR
8
emphasize that the intent requirement in Rule 804(b)(6) continues to limit
application of the forfeiture-by-wrongdoing exception to those cases in which the
defendant intended, at least in part, to render the declarant unavailable as a witness
against him.” Id. at 242, n.9. Absent such intent, Rule 804(b)(6) has no
application. Id. The Gray court also reasoned that its broad interpretation
“advances the clear purpose” of the forfeiture by wrongdoing doctrine. Id. at 241.
The court pointed out that advisory committee notes for Rule 804(b)(6) state that
the goal of the exception is to “implement a ‘prophylactic rule to deal with
abhorrent behavior which strikes at the heart of the system of justice itself,’” and
that courts “have recognized that the forfeiture-by-wrongdoing exception is
necessary to prevent wrongdoers from profiting by their misconduct.” Id. at 241-
42 (quoting Rule 804(b)(6) advisory committee note). The Gray court also
pointed out that the elements of the doctrine have been construed in similarly
broad manners by other courts. Id. at 242. See, e.g., United States. v. Dhinsa,
243 F.3d 635, 652 (2d Cir. 2001) (stating the exception may apply where the
declarant was only a potential witness); United States v. Cherry, 217 F.3d 811,
820 (10th Cir. 2000) (holding that the exception applied against a defendant who
participated in a conspiracy to silence the declarant but did not himself engage in
witness intimidation or other wrongdoing); Steele v. Taylor, 684 F.2d 1193, 1201
(6th Cir. 1982) (concluding that “any significant interference” with declarant’s
appearance as a witness amounts to wrongdoing that forfeits defendant’s right to
confront the declarant); and United States v. Johnson, 219 F.3d 349, 354 (2000)
(holding that a defendant need only intend “in part” to procure declarant’s
unavailability). The Gray court concluded that its “interpretation … ensures that a
defendant will not be permitted to avoid the evidentiary impact of statements made
by his [or her] victim, whether or not he [or she] suspected that the victim would
be a witness at the trial in which the evidence is offered against him.” Gray, 405

No. 2017AP850-CR
9
F.3d at 242; see also United States v. Lentz, 524 F.3d 501, 506, 507-08 (4th Cir.
2008) (concluding that hearsay statements made by the defendant’s deceased wife
were admissible under the forfeiture by wrongdoing exception, FED.R. EVID.
804(b)(6) at the defendant’s trial for the interstate kidnapping resulting in the
death of the ex-wife where the defendant had engaged in wrongdoing that was
intended, in part, to prevent the victim-declarant’s availability at their divorce
proceeding).
Reinwand does not respond to the State’s assertion that unconfronted
out-of-court statements are admissible under the forfeiture by wrongdoing doctrine
in all court proceedings in which the unavailable witness’s statements are
otherwise admissible. However, Reinwand argues that he did not forfeit his right
to confront Meister in this case because a placement proceeding had not been filed
at the time of Meister’s murder. Reinwand asserts, without reference to legal
authority, that he could not have murdered Meister with the intent to silence him
from testifying in a placement proceeding since he had no idea whether such a
proceeding would or would not be initiated. Reinwand also asserts that in order
for the forfeiture by wrongdoing doctrine to be implicated, a circuit court must
find that the “primary purpose,” as opposed to just one reason, for the defendant’s
wrongful act must have been procuring the witness’s unavailability to testify. In
support, Reinwand relies on the United States Supreme Court’s requirement of
intent in Giles.
Our own research has revealed only one decision addressing whether
a defendant who intentionally procures a witness’s unavailability to testify against
the defendant at a particular legal proceeding forfeits his or her right to
confrontation as to that witness in all subsequent proceedings in which that
unavailable witness’s statements are otherwise admissible. See Vasquez v.

No. 2017AP850-CR
10
People, 173 P.3d 1099 (Colo. 2007). In Vasquez, the defendant was convicted of
murdering his wife two days before she was scheduled to testify against the
defendant in a harassment case. Id. at 1102. Vasquez had admitted to law
enforcement officers that he killed his wife because “she set [him] up.” Id. In a
separate proceeding, the defendant was charged with restraining order and bail
bond violations, and the trial court admitted unconfronted statements by the
defendant’s wife upon finding that the defendant had murdered his wife, at least in
part, to prevent her from testifying at the harassment case against him. Id. at
1101-02. On appeal, the defendant argued that his wife’s unconfronted statements
were inadmissible because he could not have intended to prevent his wife from
testifying in the restraining order and bail bond violations case because that case
was not pending at the time of his wife’s murder. Id.
The Colorado Supreme Court rejected the defendant’s arguments
and concluded that where the circuit court had found that the defendant had killed
his wife, at least in part, to prevent her from testifying as a witness in the
harassment case against the defendant, the defendant forfeited his right to
confrontation in any proceeding in which his wife’s testimony was otherwise
admissible. In reaching that conclusion, the Vasquez court pointed out that no
other state court had addressed the fact scenario in which a defendant had the
requisite intent to work a forfeiture in one proceeding, and then benefited from the
witness’s unavailability in another proceeding. Id. at 1104. The court relied on
cases construing FED.R. EVID. 804(b)(6) as not requiring that a defendant’s intent
attach to any particular proceeding, or even to a proceeding that is ongoing at the
time of the defendant’s wrongful act that results in the witness’s unavailability.
Id. at 1104-05. The court reasoned that its adoption of the broad interpretation of
the forfeiture by wrongdoing doctrine comported with the doctrine’s rationale in

No. 2017AP850-CR
11
reducing the incentive a defendant might have to tamper with a witness. Id. at
1104.
The Colorado Supreme Court’s decision in Vasquez was issued
before the United States Supreme Court issued Giles. It is unclear what, if any,
impact Giles has on the court’s decision in Vasquez given that intent was a
requirement in Colorado for application of the forfeiture by wrongdoing doctrine.
We are not aware of any state or federal case addressing the
questions we now certify that has been issued after Giles. Thus, we believe that
the answers to the questions we now certify is of significant importance and that
Wisconsin courts are in need of guidance from the supreme court.1
1 In addition to Reinwand’s challenge of the admissibility of Meister’s out-of-court
statements, Reinwand also contends on appeal that the circuit court erred in admitting other acts
evidence at trial and that he received ineffective assistance of counsel. These contentions do not
present complex or novel issues of law and can be resolved with little difficulty.