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State v. Reinwand

Supreme Court of Wisconsin

March 19, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Joseph B. Reinwand, Defendant-Appellant.

          Submitted on Briefs: oral argument: January 18, 2019

         ON CERTIFICATION FROM THE COURT OF APPEALS

          SOURCE OF APPEAL CIRCUIT WOOD L.C. NO. 2013CF196B GREGORY J. POTTER JUDGE.

          For the defendant-appellant, there were briefs filed by Philip J. Brehm, Janesville. There was an oral argument by Philip J. Brehm.

          For the plaintiff-respondent, there was a brief filed by Sopen B. Shah, deputy solicitor general, with whom on the brief is Misha Tseytlin, solicitor general, and Brad D. Schimel, attorney general. There was an oral argument by Amy Catherine Miller, assistant solicitor general.

          PATIENCE DRAKE ROGGENSACK, C.J.

         ¶1 This appeal comes before us on certification from the court of appeals.[1] On October 30, 2014, Joseph B. Reinwand was convicted of first-degree intentional homicide for shooting Dale Meister, the father of his granddaughter. He was sentenced to life in prison[2]without the possibility of release to extended supervision.[3]

         ¶2 The court of appeals certified the appeal to this court to answer two questions:

[W]hether 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.
[W]hether 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.

State v. Reinwand, No. 2017AP850-CR, unpublished certification (Wis. Ct. App. July 26, 2018).

         ¶3 We conclude the following: first, Meister's statements to family and friends about Reinwand were not testimonial; therefore, they do not implicate the Sixth Amendment's Confrontation Clause. Accordingly, we do not reach the certified questions regarding the forfeiture by wrongdoing exception to the right of confrontation.

         ¶4 Second, the "other acts" evidence of Reinwand's prior burglary was properly admitted for the purpose of challenging his asserted memory problems. Third, Reinwand's counsel was not ineffective either at trial or at sentencing. For these reasons, we affirm the decision of the circuit court.

         I. BACKGROUND

         ¶5 Reinwand's daughter Jolynn and the victim, Dale Meister, were the parents of Reinwand's granddaughter, E.M. The couple ended their relationship in December 2007. Meister requested mediation in Wood County Family Court in January 2008 in an effort to seek periods of placement with E.M. The mediation occurred on February 25, 2008, and Meister was awarded placement every other weekend and on two partial days per week. Jolynn was unhappy with this placement decision and indicated that she wanted to go back to court to challenge it.

         ¶6 In the days leading up to the mediation, Reinwand had told Meister multiple times that he would harm or kill him if he continued to seek placement time. In discussions of these threats with friends and family members, Meister said he feared for his life. He repeatedly told friends and family that if anything happened to him, people should look to Reinwand.

         ¶7 Meister was found dead in his trailer home on March 4, 2008. He was shot three times at close range, twice in the face and once in the chest. He had been dead for several days by the time his body was discovered. The State interviewed Reinwand soon afterward but did not file its criminal complaint in this case until May 2013.

         ¶8 The case proceeded to jury trial in October 2013. The evidence presented to the jury included, but was not limited to, the following: (1) bullets used to kill Meister fired from a .22 pistol, "most likely" a Bryco-Jennings pistol; (2) Reinwand owned a pistol matching this description; (3) law enforcement found a .22-caliber bullet in Reinwand's garage with characteristics matching those of the bullets used to kill Reinwand; (4) law enforcement found a grip from a .22 Bryco-Jennings pistol under the front seat of Reinwand's truck that appeared to be cut with a "band saw," and there was a band saw in Jolynn's basement where Reinwand had been staying; (5) Jolynn said the saw belonged to her father; (6) another inmate testified that Reinwand confessed to committing the homicide; (7) Reinwand told police he was not "really arguing about" whether he killed Meister, but said that he could not remember it because he had memory problems; (8) Reinwand had choked Meister and threatened to kill him before; (9) witnesses saw a silver pickup truck matching the description of Reinwand's truck at Meister's trailer around the time Meister is thought to have been killed; and (10) the trailer showed no signs of forced entry, and the only other key was located at Jolynn's house where Reinwand had been staying.

         ¶9 In addition to all this evidence, the State introduced the testimony of Meister's family members and friends regarding the statements Meister made to them about Reinwand. A friend of Meister testified that Meister had come over to her house for coffee, and had told her that Reinwand said he "had guns" and "could kill him if he wanted to." Another close friend testified about a conversation with Meister during one of Meister's frequent visits to his home. He stated that according to Meister, Reinwand had told Meister "he was going to shoot him in the temple and he could get away with it." Meister also told him that if anything happened to Meister, he should tell Meister's brother Ray that Reinwand did it. After this conversation, he allowed Meister to stay at his home, because Meister was "fearful of being at [his] trailer" due to Reinwand's threats.

         ¶10 Meister's pastor testified that Meister was "concerned for his life" and had told him that "if he came up dead, that the police should dig deeper" because "[Reinwand] would be behind it." Reinwand's son stated that Meister met with him at Arby's to ask his opinion on whether Reinwand would kill him, and added that "I don't think [Meister] was at ease at all." Meister's sister-in-law testified that Meister had discussed Reinwand's threats with her during two separate phone calls, and that he sounded frightened on both occasions. A total of 15 witnesses offered similar statements regarding Meister's fear that Reinwand would hurt or kill him. These hearsay statements were admitted over Reinwand's hearsay objection based on the forfeiture by wrongdoing doctrine.

         ¶11 The circuit court also admitted "other-acts" evidence of a prior burglary Reinwand committed. When law enforcement interviewed Reinwand after the homicide, he told them he was not "really arguing" that he had killed Meister, but could not remember the homicide or a prior burglary he had committed. To challenge this asserted lack of memory, the State introduced a letter Reinwand had written to his granddaughter in 2012, in which he admitted to the burglary and described his motive. The letter also was admitted over Reinwand's objection.

         ¶12 Additionally, the circuit court had ruled before trial that the State's DNA expert could not provide expert testimony based on 2008 testing standards, but must instead rely on the updated standards that had been in effect since 2014. Under the 2014 standards, the expert could not conclusively state whether the DNA on the gun grip found under the seat of Reinwand's truck belonged to Reinwand. On cross-examination, Reinwand's attorney asked the DNA expert for her opinion as to whether Reinwand's DNA was present on seven other items found in Meister's trailer after the homicide. It was not. However, the expert's opinion on these items was based on the 2008 testing standards. The circuit court held that by asking questions about items tested under the 2008 standards, Reinwand's attorney had opened the door to the results of the 2008 DNA test on the gun grip. The jury was therefore allowed to hear that under the outdated 2008 testing standards, Reinwand was included as a possible contributor to the DNA found on the gun grip, and that the probability of randomly selecting an individual who may be included as a possible contributor was 1 in 61, 000.

         ¶13 Reinwand was convicted of first-degree intentional homicide, and filed postconviction motions. He alleges that the evidence of his prior burglary was improperly admitted and that his counsel was ineffective at trial for opening the door to the DNA evidence. He has requested a new trial. Alternatively, he argues that his counsel was ineffective at sentencing for failing to request a presentence investigation (PSI) or introduce more mitigating evidence, and he requests a new sentencing hearing.

         ¶14 The circuit court denied Reinwand's motions. The circuit court first concluded that Meister's statements about Reinwand were testimonial, but that they were admissible under the forfeiture by wrongdoing exception to the Confrontation Clause. Under the forfeiture by wrongdoing doctrine, a defendant forfeits his Sixth Amendment right to confront a witness when the defendant wrongly procures that witness's unavailability by conduct designed to prevent the witness from testifying. See Giles v. California, 554 U.S. 353 (2008) . The circuit court found that Reinwand had killed Meister to prevent him from testifying in his possible future custody proceeding with Jolynn, and that he had therefore forfeited his right to confront Meister at his own trial. The circuit court also held that the other-acts evidence was properly admitted, and that counsel's performance was not deficient either at trial or at sentencing.

         ¶15 The court of appeals grouped Meister's statements about Reinwand into 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." Reinwand, No. 2017AP850-CR at *1. The court of appeals explained that the circuit court had explicitly determined that the statements in the first category were testimonial, implicitly determined that the statements in the second category were testimonial, and admitted both categories of statements under the forfeiture by wrongdoing doctrine. The court of appeals then certified the appeal to this court to address the forfeiture by wrongdoing issue.

         ¶16 We accepted the certification, and without reaching the forfeiture by wrongdoing issue, we affirm the decision of the circuit court denying Reinwand's postconviction motions.

         II. DISCUSSION

         A. Standard of Review

         ¶17 This case requires us to determine whether Reinwand's Confrontation Clause right was violated by the admission of Meister's statements, determine whether other-acts evidence was properly admitted, and analyze an ineffective assistance of counsel claim. Whether the admission of a statement violates the defendant's Confrontation Clause right is "a question of constitutional law subject to independent review." State v. Nieves, 2017 WI 69, ¶15, 376 Wis.2d 300, 897 N.W.2d 363 (citations omitted). "'We generally apply United States Supreme Court precedents when interpreting' the Sixth Amendment and the analogous Article 1, Section 7 of the Wisconsin Constitution." Id. (citations omitted). Other decisions about the admissibility of evidence are discretionary decisions of the circuit court, and are reviewed under the erroneous exercise of discretion standard. State v. Franklin, 2004 WI 38, ¶6, 270 Wis.2d 271, 677 N.W.2d 276.

         ¶18 Ineffective assistance of counsel claims "present mixed questions of fact and law." State v. Alexander, 2015 WI 6, ¶15, 360 Wis.2d 292, 858 N.W.2d 662. "We uphold a circuit court's factual findings unless they are clearly erroneous." Id. (citation omitted). "However, whether counsel's performance was deficient and whether a defendant was prejudiced thereby, ...


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