Submitted on Briefs: oral argument: January 18, 2019
CERTIFICATION FROM THE COURT OF APPEALS
OF APPEAL CIRCUIT WOOD L.C. NO. 2013CF196B GREGORY J. POTTER
the defendant-appellant, there were briefs filed by Philip J.
Brehm, Janesville. There was an oral argument by Philip J.
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
PATIENCE DRAKE ROGGENSACK, C.J.
This appeal comes before us on certification from the court
of appeals. 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 prisonwithout the possibility of release
to extended supervision.
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
[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
State v. Reinwand, No. 2017AP850-CR, unpublished
certification (Wis. Ct. App. July 26, 2018).
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
Standard of Review
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.
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,