Argument: April 15, 2019
Circuit Court Oconto County (L.C. No. 2013CF41) Michael T.
the defendant-appellant-petitioner, there were briefs filed
by Ana L. Babcock and Babcock Law, . LLC, Green Bay. There
was an oral argument by Ana L. Babcock.
the plaintiff-respondent, there was a brief filed by Scott E.
Rosenow, assistant attorney general, with whom on the brief
was Joshua L. Kaul, attorney general. There was an oral
argument by Scott E. Rosenow.
REBECCA FRANK DALLET, J.
Peter Hanson ("Hanson") seeks review of the court
of appeals' decision affirming the circuit
court's denial of his postconviction motion.
Chad McLean ("McLean") disappeared on the night of
February 22, 1998. His body was found one month later in the
Pensaukee River with four gunshot wounds to his head. The
case went cold until 2009 when Hanson's estranged wife
Kathy Hanson ("Kathy") gave a statement to police
implicating Hanson in McLean's murder. In November 2012,
a judge in Oconto County held a John Doe proceeding to
further investigate McLean's murder. Hanson testified
at that proceeding, made incriminating statements, and was
subsequently charged with McLean's murder. Hanson was
convicted and sentenced to life imprisonment without the
possibility of parole.
Hanson challenges the admissibility at trial of portions of
his testimony from the John Doe proceeding on two grounds.
First, Hanson contends that the admission of his John Doe
testimony regarding Kathy's statement to police
inculpating him in McLean's murder violated his Sixth
Amendment right to confrontation. Second, Hanson claims his
trial counsel was ineffective for failing to object to the
admission of his John Doe testimony because, at the time he
testified, he was in custody on an unrelated matter and not
read all of the Miranda warnings.
We conclude that Hanson's Sixth Amendment right to
confrontation was not violated because his John Doe testimony
regarding Kathy's statement to police was not offered to
prove the truth of the matter asserted. We also conclude that
Hanson's ineffective assistance of counsel claim fails
because the law was unsettled as to whether Miranda
warnings were required at John Doe proceedings. Finally, we
determine as a matter of first impression that
Miranda warnings are not required at John Doe
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
On February 22, 1998, McLean and his friend Cory Byng
("Byng") went to Byng's uncle's house for a
cookout. Hanson and his friend Chuck Mlados
("Mlados") also went to the cookout, arriving in a
pickup truck driven by Hanson. At around 9:30 or 10:00 p.m.,
Hanson, McLean, and Mlados left Byng's uncle's house.
Hanson and Mlados alleged that they dropped McLean off at the
Hi-Way Restaurant and Truck Stop on the way back to
Hanson's house. The restaurant surveillance footage from
that night showed Hanson and Mlados buying beer at 9:53 p.m.,
but McLean was not seen in any of the footage. At trial, six
employees testified that they did not see anyone fitting
McLean's description at the restaurant that night.
Approximately one month later, McLean's body was
recovered in the Pensaukee River, 1.3 miles downstream from
Hanson's house. McLean had four gunshot wounds to his
head. The case went cold for over a decade until 2009, when
Kathy told police that Hanson had confessed to killing
In November 2012, Hanson, who was in custody at the Oconto
County jail on charges unrelated to the homicide, was called
as a witness to testify at a John Doe proceeding regarding
McLean's murder. Prior to questioning, the John Doe judge
read Hanson most, but not all, of the Miranda
warnings.Hanson made incriminating statements at the
proceedings. In March 2013, the John Doe investigation was
closed and the John Doe judge signed an order finding
probable cause and authorizing the issuance of a criminal
At trial, the State introduced portions of Hanson's John
Doe testimony. Hanson objected on Confrontation Clause and
hearsay grounds. The circuit court overruled Hanson's
objection and held that the testimony qualified as an
admission by a party opponent pursuant to Wis.Stat. §
908.01(4)(b)1. (2017-18),  and therefore was not hearsay and did
not violate his Sixth Amendment right to confrontation.
The jury also heard from three witnesses who testified that
Hanson had confessed to killing McLean. Kenneth Hudson
testified that he had been Hanson's best friend and that
about a month and a half after McLean's body was found,
Hanson told him that he had shot McLean and dumped his body
in the river. Barry O'Connor, a friend of Hanson,
testified that in 2008 Hanson told him that about ten years
earlier he and Mlados had accidentally killed someone and
dumped the body in a river. O'Connor also testified that
Hanson told him he had confessed the murder to Kathy, but
that she could not testify against him because she was now
dead. Jeremy Dey testified that while he and Hanson were in
the Oconto County jail together in 2013, Hanson told him that
he had shot McLean and dumped his body in a river. Dey
further testified that Hanson told him Kathy had given the
police a statement about McLean's murder that was against
Hanson did not call any witnesses at trial and chose not to
testify. Hanson argued to the jury that the case against him
was circumstantial and that the State had failed to meet its
burden to prove beyond a reasonable doubt that he had killed
During its deliberations, the jury asked the circuit court if
it could review "anything that may pertain to Kathy
Hanson's statement to the police." The circuit court
denied this request. The jury ultimately found Hanson guilty
of first-degree intentional homicide as a party to the crime
and he was sentenced to life imprisonment without the
possibility of parole.
Hanson filed a postconviction motion seeking a new trial
based upon, among other things, the alleged ineffective
assistance of his trial counsel. At the
Machner hearing regarding Hanson's claims,
Hanson's trial counsel testified that he did not object
to the admission of Hanson's John Doe testimony on
Miranda grounds because he did not "believe
that Miranda is applicable to a John Doe
proceeding." The circuit court denied Hanson's
postconviction motion, concluding that "the colloquy
between Peter Hanson and the Court satisfies any right that
the defendant had to an attorney at a John Doe
Hanson appealed the denial of his postconviction motion and
the circuit court's decision to overrule his objection
regarding his Sixth Amendment right to confrontation. Hanson
raised two issues on appeal: (1) whether the circuit court
improperly admitted his John Doe testimony regarding
Kathy's statement to police in violation of his Sixth
Amendment right to confrontation; and (2) whether his trial
counsel was ineffective for failing to call any potentially
exculpatory witnesses and for failing to object to the
admission of his John Doe testimony on the grounds that he
was not read all of the Miranda warnings at the John
As to Hanson's Confrontation Clause claim, the court of
appeals assumed without deciding that the circuit court's
admission of Hanson's John Doe testimony was error.
State v. Hanson, No. 2016AP2058-CR, unpublished slip
op., ¶13 (Wis. Ct. App. Sept. 18, 2018) . However, the
court of appeals was "persuaded that any error in the
admission of the challenged evidence was harmless because it
duplicated other, unchallenged testimony."
Hanson, No. 2016AP2058-CR, ¶ 14. Three
witnesses testified that Hanson confessed to killing someone
and dumping the body in a river. Two witnesses testified that
Hanson confessed the killing to Kathy and one witness
testified that Kathy told the police Hanson killed McLean.
The court of appeals was not persuaded by the jury's
request to see evidence regarding Kathy's statement to
the police because the request was denied and the jury heard
about Kathy's statement through other unchallenged
testimony. Hanson, No. 2016AP2058-CR, ¶15.
The court of appeals also rejected Hanson's ineffective
assistance of counsel claim. The court of appeals held that
"[r]egardless of whether counsel was deficient for
failing to object to the admission of [Hanson's John Doe]
testimony on Miranda grounds, we are convinced that
such error was not prejudicial to Hanson's defense."
Hanson, No. 2016AP2058-CR, ¶31. Again, the
court of appeals relied upon the fact that the John Doe
testimony regarding Kathy's statement "merely
duplicated other, unchallenged testimony."
Hanson, No. 2016AP2058-CR, ¶32. Hanson then
petitioned this court for review.
STANDARD OF REVIEW
We review Hanson's claims that his Sixth Amendment right
to confrontation was violated and that his trial counsel was
ineffective. Whether a defendant's Sixth Amendment right
to confrontation was violated 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 (quoted source omitted) . "We
generally apply United States Supreme Court precedents when
interpreting" the Sixth Amendment and the analogous
Article I, Section 7 of the Wisconsin Constitution. State
v. Jensen, 2007 WI 26, ¶13, 299 Wis.2d 267, 727
A criminal defendant is guaranteed the right to effective
assistance of counsel under both the United States and
Wisconsin Constitutions. U.S. Const. amends. VI, XIV; Wis.
Const, art. I, § 7; see also Strickland v.
Washington, 466 U.S. 668, 686 (1984) (holding that the
right to counsel includes the right to effective assistance
of counsel). "A claim of ineffective assistance
of counsel presents a mixed question of law and fact."
State v. Thiel, 2003 WI 111, ¶21, 264 Wis.2d
571, 665 N.W.2d 305. We uphold the circuit court's
findings of fact involving the circumstances of the case and
trial counsel's conduct and strategy unless they are
clearly erroneous. State v. Pitsch, 124 Wis.2d 628,
633-34, 369 N.W.2d 711 (1985) . The final determination of
whether counsel's performance satisfies the
constitutional standard for ineffective assistance of counsel
is a question of law, which we review de novo. Id.
"To demonstrate that counsel's assistance was
ineffective, the defendant must establish that counsel's
performance was deficient and that the deficient performance
was prejudicial." State v. Breitzman, 2017 WI
100, ¶37, 378 Wis.2d 431, 904 N.W.2d 93 (citing
Strickland, 466 U.S. at 687). If the defendant fails
to satisfy either prong of the analysis, we need not consider
the other. Id.
We first consider Hanson's claim that his Sixth Amendment
right to confrontation was violated. We then determine
whether Hanson's trial counsel was ineffective for
failing to object to the admission of his John Doe testimony
on the grounds that he was not read all of the
Miranda warnings at the John Doe proceeding.
Finally, we determine as a matter of first impression that
Miranda warnings are not required at John Doe
Hanson's Sixth Amendment right to confrontation was not
Hanson asserts that his Sixth Amendment right to
confrontation was violated when the circuit court admitted
portions of his John Doe testimony into evidence at trial.
"'The Confrontation Clauses of the United States and
Wisconsin Constitutions guarantee criminal defendants the
right to confront witnesses against them.'"
State v. Manuel, 2005 WI 75, ¶36, 281 Wis.2d
554, 697 N.W.2d 811 (quoted source omitted) . In
Crawford, the United States Supreme Court observed
that the Confrontation Clause "does not bar the use of
testimonial statements for purposes other than establishing
the truth of the matter asserted." Crawford v.
Washington, 541 U.S. 36, 59 n.9 (2004) (citing
Tennessee v. Street, 471 U.S. 409, 414 (1985)).
Therefore, a crucial aspect of the Sixth Amendment right to
confrontation, pursuant to Crawford, is that it
"only covers hearsay, i.e., out-of-court statements
'offered in evidence to prove the truth of the matter
asserted.'" United States v.Tolliver, 454 F.3d 660, 666 (7th Cir. 2006) . It is
well established that "out-of-court statements may be
offered to prove innumerable relevant propositions apart from
the truth of any matters (explicitly [or] implicitly)
asserted." 7 Daniel D. Blinka, Wisconsin Practice
Series:Wisconsin Evidence § 801.302 at 768 (4th ed.
2017); see State v. Medrano, 84 Wis.2d 11, 19-20,
267 N.W.2d 586 (1978) (reasoning that ...