                                                                   2013 WI 75

                  SUPREME COURT            OF      WISCONSIN
CASE NO.:              2010AP2363-CR & 2010AP2364-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Richard Lavon Deadwiller,
                                 Defendant-Appellant-Petitioner.


                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 343 Wis. 2d 703, 820 N.W.2d 149
                                    (Ct. App. 2012 – Published)
                                       PDC No: 2012 WI App 89

OPINION FILED:         July 16, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         April 10, 2013

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Patricia D. McMahon

JUSTICES:
   CONCURRED:          ABRAHAMSON, C.J., concurs. BRADLEY, J., concurs
                       with Part I.(Opinion filed). BRADLEY, J.,
                       concurs with Section III.B of majority opinion.
                       (Opinion filed.)
  DISSENTED:
  NOT PARTICIPATING:   GABLEMAN, J., did not participate.

ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Mark S. Rosen and Rosen and Holzman, Ltd., Waukesha, and oral
argument by Mark S. Rosen.


       For the plaintiff-respondent, there was a brief by Maura FJ
Whalen,         assistant    attorney   general,    and   J.B.   Van   Hollen,
attorney general. The cause was argued by Warren D. Weinstein,
assistant attorney general.
                                                                             2013 WI 75
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.       2010AP2363-CR & 2010AP2364-CR
(L.C. No.    2007CF4140 & 2007CF4858)

STATE OF WISCONSIN                                :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,                                      FILED
      v.                                                            JUL 16, 2013
Richard Lavon Deadwiller,                                              Diane M. Fremgen
                                                                    Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                    Affirmed.



      ¶1      ANNETTE KINGSLAND ZIEGLER, J.               This is a review of a

published     decision    of   the   court   of       appeals,1      which     affirmed

judgments of conviction entered by the Milwaukee County Circuit

Court, Judge Patricia D. McMahon, after a jury found Richard

Lavon Deadwiller (Deadwiller) guilty of two counts of second-

degree sexual assault by use of force, contrary to Wis. Stat.

§ 940.225(2)(a) (2005-06).2          During Deadwiller's trial, Wisconsin


      1
       State v. Deadwiller, 2012 WI App 89, 343 Wis. 2d 703, 820
N.W.2d 149.
      2
       All subsequent references to the Wisconsin Statutes are to
the 2005-06 version unless otherwise indicated.
                                                     No.    2010AP2363-CR & 2010AP2364-CR



State Crime Lab analyst Ronald G. Witucki (Witucki) testified

that   an   out-of-state           lab,   Orchid      Cellmark     (Orchid),     analyzed

vaginal and cervical swabs taken from the two victims, Kristina

S. and Chantee O.             Orchid produced DNA profiles of semen found

on the victims' swabs.                After receiving the DNA profiles from

Orchid, Witucki entered the DNA profiles into the DNA database,

which resulted in a match to Deadwiller.                           No one from Orchid

testified at Deadwiller's trial.                     The jury convicted Deadwiller

of two counts of second-degree sexual assault by use of force.

Deadwiller appealed, arguing that his right to confrontation was

violated when the circuit court allowed Witucki to rely on the

DNA    profiles      produced       by    Orchid.          The   Confrontation    Clause

prohibits the introduction of testimonial hearsay of a witness

who is absent from trial unless the witness is unavailable and

the defendant had the prior opportunity to cross-examine the

witness.       Crawford v. Washington, 541 U.S. 36, 51, 59 (2004).

The    court    of    appeals       affirmed,        concluding     that     Deadwiller's

right to confrontation was not violated because the DNA profiles

produced       by    Orchid    were       not    testimonial       under     Williams   v.

Illinois,      567    U.S.     ___,      132    S.   Ct.    2221   (2012).      State    v.

Deadwiller,         2012      WI    App        89,   ¶14,    343    Wis. 2d 703,        820

N.W.2d 149.         We affirm 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
                                                 2
                                                No.   2010AP2363-CR & 2010AP2364-CR



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.

                 I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

        ¶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.3

        3
       The case involving Kristina S. was assigned circuit court
case number 2007CF4140.     The case involving Chantee O. was
assigned circuit court case number 2007CF4858.    On October 25,
2007,   the circuit court granted      the  State's   motion  to
consolidate the cases.

                                           3
                                                         No.     2010AP2363-CR & 2010AP2364-CR



        ¶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).4          Deadwiller

opposed       the State's motion,               arguing        that     he    was    entitled to

confront the Orchid analysts who completed the DNA profiles on

the victims' swabs.               The circuit court ruled that under Barton

and State v. Williams, Witucki would be permitted to testify

about        the    DNA    results,      assuming          the    proper       foundation       and

credentials were presented.
        4
       In this case, we rely on two different cases with the name
"Williams": Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221
(2012), and State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644
N.W.2d 919.   As Williams v. Illinois is much more important to
our analysis, it will be referred to as "Williams." We refer to
the other case as "State v. Williams."
                                                 4
                                                No.   2010AP2363-CR & 2010AP2364-CR



       ¶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 COURT:           The question is do you want to go to
                            trial and waive your right, give up
                            your right to have this expert who is
                            working on some information, or shall
                            we set another date so your expert can
                            complete the work he started. . . .

       THE DEFENDANT:       I want to go to trial.

       THE COURT:           You want to go to            trial    on    Monday
                            without an expert.

       THE DEFENDANT:       Yes.
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.

                                          5
                                                No.     2010AP2363-CR & 2010AP2364-CR



       ¶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
                                           6
                                                      No.   2010AP2363-CR & 2010AP2364-CR



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) to inventory the evidence, and turned over the

evidence to the police department's property control section.
Detective         Lori     Gaglione      then       testified   that    the     items   of

evidence were transported from the property control section to

the State Crime Lab (SCL), which gives a receipt when evidence
                                                7
                                                       No.       2010AP2363-CR & 2010AP2364-CR



is submitted.              Gaglione testified that in both cases, the case

number on the SCL receipt corresponded to the case number on the

police inventory sheet.

        ¶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
                                                 8
                                              No.   2010AP2363-CR & 2010AP2364-CR



evidence    in   a   control      room   or   freezer,     and     recording     the

shipping labels if evidence is sent to an out-of-state lab.5

     ¶12    Witucki testified that he received a "report and all

the electrophoreticgrams6 and the necessary documentation" from

Orchid with respect        to both       victims,   and    that    he   personally

completed all of the work on the cases after the SCL received

the reports from Orchid.          Witucki testified that the case number

on the documentation received from Orchid corresponded to the

SCL case numbers for Kristina S. and Chantee O.                   Upon receipt of

Orchid's    report,    Witucki      testified       that   he     analyzed     both

cervical swabs and determined that there was a foreign male DNA

profile    present    in   both    swabs.      Witucki     testified      that   he

"check[ed] to see that [Orchid] followed their procedures, that

their quality control measures were followed, [and] they got


     5
       In addition to witness testimony, the State introduced
exhibits documenting how the evidence for both victims was
collected through the testimony of the sexual assault nurse, was
transferred from the hospital to the police station through the
testimony of the police officers, and was submitted to the SCL
through the testimony of the police officers and Witucki.     The
State did not submit shipping labels showing how the evidence
was sent to Orchid and returned to the SCL.      However, Witucki
testified to the SCL's protocols for maintaining the chain of
custody through shipping label manifests and testified that the
case numbers on documentation received from Orchid corresponded
to the SCL case numbers for Kristina S. and Chantee O.
     6
       The   jury    trial   transcript   uses   the    spelling
"electrophoreticgram," although reference sources present it as
an "electrophoretogram" which is "[a] record of the results of
an electrophoresis."    The American Heritage Dictionary of the
English Language 594 (3d ed. 1992). "Electrophoresis," in turn,
is "[a] method of separating substances, especially proteins,
and analyzing molecular structure." Id.

                                         9
                                              No.    2010AP2363-CR & 2010AP2364-CR



acceptable results on their control values."                    He testified that

he "evaluate[d] the electrocphoreticgrams, [sic] which is the

end product or the typing results from the evidence, and we

determine if it's of sufficient quality for entry into our local

DNA   data   base."        Witucki    testified     that   he    entered   the   DNA

profiles from Orchid into the DNA database, which returned a

result that DNA recovered from both victims matched each other

and matched Deadwiller.          Once the match was returned, Witucki

testified      that   he    checked    that   the     profiles      were   entered

correctly into the database and personally confirmed that the

DNA profiles matched.          He then testified that a computer match

is    not    conclusive      proof,    but    "investigative        information."

Thereafter, the police obtained a buccal swab from Deadwiller,

and Witucki testified that he "develop[ed] a DNA profile from

those buccal swabs, then compare[d] them to the profiles that

were generated by Orchid Cellmark from the cervical swabs of

Chantee O. and vaginal swabs of Kristina S."                    Witucki concluded

that there was a match:

      State:      Did you reach an opinion to a reasonable
                  degree of scientific certainty with respect
                  to whether or not Mr. Deadwiller was the
                  source of the male DNA found in [Chantee
                  O.'s] cervical swabs?

      Witucki:    Yes, I did.

      State:      What is your opinion?

      Witucki:    Well, they matched all 13 genetic locations
                  that we test for; and I ran a statistical
                  calculation on that profile, and it was of a
                  sufficient   number  that   allowed  me   to
                  determine in my opinion that the semen found

                                         10
                                                   No.     2010AP2363-CR & 2010AP2364-CR


                      on   the  cervical   swabs   of  Chantee                        O.
                      originated from Richard Deadwiller.

                      . . . .

       State:         With respect to Kristina S., did you compare
                      the DNA profile that you developed from
                      Richard Deadwiller with the foreign DNA
                      found on her vaginal swabs?

       Witucki:       Yes, I did.

       State:         Do you know what the source of that foreign
                      male DNA found on her vaginal swabs was?

       Witucki:       Again, as in Chantee O.'s case, for the
                      profile developed from the vaginal swabs of
                      Kristina S., there was a match [for] all 13
                      genetic locations; and I ran a statistical
                      calculation and that allowed me to determine
                      that in my opinion, it was a high enough
                      number that Richard Deadwiller was the
                      source of the semen . . . .
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

                                            11
                                                  No.   2010AP2363-CR & 2010AP2364-CR



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    rely     on    a

scientific report that profiled the DNA left on the victims by

their attacker."          Deadwiller, 343 Wis. 2d 703, ¶1.              The court of

appeals affirmed the conviction, and it relied on the recent

United States Supreme Court case of Williams, which presented
very similar facts to Deadwiller's case.                  Id., ¶¶8, 14.          Though

Williams is a fractured opinion, "five justices agreed at the

core that the outside laboratory's report was not testimonial."

Id., ¶12.          The court of appeals declined to adopt exclusively

any    of    the    three    rationales     presented,     stating      that    it     was

"bound by the judgment in Williams."                Id., ¶14.

       ¶16    Deadwiller petitioned this court for review, and we

granted his petition on January 14, 2013.

                              II. STANDARD OF REVIEW

       ¶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    (citing     State    v.    Ballos,        230

Wis. 2d 495, 504, 602 N.W.2d 117 (Ct. App. 1999)).
                                            12
                                                 No.     2010AP2363-CR & 2010AP2364-CR



                                  III. ANALYSIS

        ¶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.

                             A. Confrontation Clause

        ¶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.           The Court

stated that "witnesses" against the defendant are "those who

bear testimony."          Id. at 51.         The Court defined "testimony" as
                                            13
                                                  No.    2010AP2363-CR & 2010AP2364-CR



"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.

        ¶21   After    Crawford,      a     flurry      of    Confrontation       Clause

jurisprudence has ensued over what constitutes a "testimonial

statement."7          The   Court   recently      decided         Williams,    which   is




        7
       The State and Deadwiller disagree about the application of
two recent U.S. Supreme Court decisions on the Confrontation
Clause: Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and
Bullcoming v. New Mexico, 564 U.S. __, 131 S. Ct. 2705 (2011).
The State argues that both cases are distinguishable, and
Deadwiller argues that both are controlling.     In Melendez-Diaz,
at   the   defendant's   trial   for   distribution   of  cocaine,
prosecutors    introduced    into    evidence    three   notarized
"certificates of analysis" indicating that test results revealed
the distributed substance to be cocaine. 557 U.S. at 308. No
analyst testified.      Id. at 309.         In a straightforward
application of Crawford v. Washington,541 U.S. 36 (2004), the
Court held that the certificates were testimonial because they
were "quite plainly affidavits" and were "a solemn declaration
or affirmation made for the purpose of establishing or proving
some fact."     Id. at 310.     Indeed, "the sole purpose of the
affidavits was to provide        prima   facie  evidence   of  the
composition, quality, and the net weight of the analyzed
substance." Id. at 311.

                                            14
                                             No.   2010AP2363-CR & 2010AP2364-CR



factually similar to Deadwiller's case.8               See infra, ¶32.        In

that case, Williams was charged with aggravated sexual assault

of a woman, L.J.             Williams, 567 U.S. ___, 132 S. Ct. at 2229.

After       the   assault,    L.J.   reported   the   attack,   went    to   the

hospital, and underwent a sexual assault examination.                  Id.   The


     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.
        8
       Both cases involve sexual assault.     In both cases, the
victim underwent a sexual assault examination, which produced
vaginal swabs containing DNA of the perpetrator.          Police
officers in both cases retrieved the evidence, inventoried the
evidence, and sent the evidence to the state crime lab, which
then sent the evidence to an out-of-state laboratory for DNA
testing.   Further, the out-of-state laboratories sent back the
swabs and a DNA profile of the perpetrator produced from the
vaginal swabs. In both cases, state crime lab analysts entered
the DNA profile into a DNA database, which resulted in a match
to the defendant.   When called to testify, the state crime lab
analysts reported that the DNA profile sent by the out-of-state
lab matched the DNA profile resulting from the DNA database.
The DNA profile was not introduced into evidence in either case.
Prosecutors in both cases introduced inventory reports and
evidence receipts to prove a chain of custody, i.e. that the DNA
profile was produced from swabs taken from the victims.

                                        15
                                                     No.      2010AP2363-CR & 2010AP2364-CR



police picked up the evidence collected from L.J., labeled the

evidence with an inventory number, and sent it under seal to the

state crime lab.           Id.         The crime lab sent the evidence to a

Cellmark Diagnostics Laboratory in Maryland.                               Id.   Cellmark sent

back L.J.'s swabs and a "report containing a male DNA profile

produced from semen taken from those swabs."                               Id.     Williams was

not under suspicion at the time Cellmark completed its analysis.

Id.      Sandra Lambatos,          a    forensic        specialist          at     the   Illinois

state crime lab, entered Cellmark's DNA profile into the state

DNA database, resulting in a match to Williams.                              Id.

        ¶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 DNA expert," that Cellmark was an

"accredited       crime    lab,"       that    the    state       crime      lab       often    sent

genetic samples to Cellmark to reduce its backlog, and that the

state     crime     lab    employees           relied       on       the     sealed      shipping

containers      and   shipping         manifests        to       preserve        the     chain   of

custody.      Id. at 2229-30.           Lambatos was shown shipping manifests

and   "explained      what    they       indicated,          namely,        that       the   [state

crime lab] had sent L.J.'s vaginal swabs to Cellmark, and that

Cellmark      had   sent    them       back,    along       with      a    deduced       male    DNA

profile."      Id. at 2230.            The prosecutor asked Lambatos whether

there was a computer match between "the male DNA profile found

in semen from the vaginal swabs of [L.J.]" and the "male DNA

profile that had been identified" from Williams' blood.                                          Id.

Over the defendant's objection, Lambatos testified that based on
                                               16
                                                  No.     2010AP2363-CR & 2010AP2364-CR



her comparison of the two DNA profiles, there was a match.                               Id.

The prosecutor did not enter the Cellmark report into evidence,

nor did Lambatos read from or identify the report as the source

of any of her conclusions.              Id.     On cross-examination, Lambatos

confirmed that she did not conduct or observe any testing on the

vaginal swabs, and that her testimony relied on Cellmark's DNA

profile.     Id.       She testified that she trusted Cellmark's work

because it was an accredited lab and that it was unlikely the

samples had been degraded or compromised because the state crime

lab    checked     for    degradation       before       sending       the    samples    to

Cellmark and the samples would have exhibited telltale signs had

they degraded.        Id. at 2230-31.           Williams moved to exclude parts
of Lambatos' testimony based on the Confrontation Clause, but

the judge did not exclude the evidence because Lambatos' opinion

"was based on her own independent testing of the data received

from   [Cellmark]."          Id.   at     2231.         The    judge     found   Williams

guilty, and his conviction was affirmed by the state court of

appeals and supreme court.           Id.

       ¶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
                                           17
                                                  No.     2010AP2363-CR & 2010AP2364-CR



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,9 Lambatos' testimony was not admissible for the purpose

of proving that the DNA profile was produced from L.J.'s vaginal

swab.       Id.     Nor did the record support Williams' argument that
the fact finder relied on Lambatos' testimony for the truth of

the   matter.           Further,     Justice     Alito    rebutted      the   dissent's

argument         that   even    if   the   report       itself    was   not   put   into

evidence, Lambatos testified to the substance of the report, and

without the report, the State had insufficient evidence to prove

that Cellmark's DNA profile was based on L.J.'s swab and that

Cellmark's analysis was reliable.                  Id. at 2238.           Justice Alito


        9
            See Fed. R. Evid. 703:

           An expert may base an opinion on facts or data in
      the case that the expert has been made aware of or
      personally observed.    If experts in the particular
      field would reasonably rely on those kinds of facts or
      data in forming an opinion on the subject, they need
      not be admissible for the opinion to be admitted. But
      if the facts or data would otherwise be inadmissible,
      the proponent of the opinion may disclose them to the
      jury only if their probative value in helping the jury
      evaluate the opinion substantially outweighs their
      prejudicial effect.

See also Wis. Stat. § 907.03.

                                            18
                                               No.     2010AP2363-CR & 2010AP2364-CR



reasoned that the state            put    in   traditional         chain   of   custody

evidence   to     prove    that   Cellmark's       DNA      profile   was     based    on

L.J.'s    swab.      Id.    at    2237,    2239.         Further,     Justice       Alito

reasoned   that    it     was simply      improbable        that    shoddy    lab    work

would result in the DNA profile of Williams, especially where

Williams   was     not    under   suspicion     at     the    time    of     Cellmark's

testing.    Id. at 2239.

     ¶24     Justice      Alito    explained         that     his     rationale       was

consistent    with      Melendez-Diaz     v.   Massachusetts,          557    U.S.    305
(2009), and Bullcoming v. New Mexico, 564 U.S. __, 131 S. Ct.

2705 (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:

     In this case, the Cellmark report was not introduced
     into evidence.    An expert witness referred to the
     report not to prove the truth of the matter asserted
     in the report, i.e., that the report contained an
     accurate profile of the perpetrator's DNA, but only to
     establish that the report contained a DNA profile that
     matched the DNA profile deduced from petitioner's
     blood.     Thus, . . . the   report  was   not  to  be
     considered for its truth but only for the distinctive
     and limited purpose of seeing whether it matched
     something else.   The relevance of the match was then
     established by independent circumstantial evidence
     showing that the Cellmark report was based on a
     forensic sample taken from the scene of the crime.
Id. at 2240-41 (citation omitted).




                                          19
                                                      No.        2010AP2363-CR & 2010AP2364-CR



       ¶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":

       In Crawford, the Court explained that '[t]he text of
       the Confrontation Clause . . . applies to 'witnesses'
       against the accused——in other words, those who 'bear
       testimony.''   'Testimony,' in turn, is '[a] solemn
       declaration or affirmation made for the purpose of
       establishing or proving some fact.'   In light of its
       text, I continue to think that the Confrontation

                                               20
                                                    No.    2010AP2363-CR & 2010AP2364-CR


     Clause regulates only the use of statements bearing
     'indicia of solemnity.'
Id. at 2255, 2259-60 (quoting Crawford, 541 U.S. at 51 (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


                                            21
                                                     No.     2010AP2363-CR & 2010AP2364-CR



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     (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, 286 P.3d 442,

455    (Cal.    2012)       (Chin,       J.,    concurring)         (citation       omitted).

Therefore, "we must identify and apply a test which satisfies
                                               22
                                                    No.       2010AP2363-CR & 2010AP2364-CR



the requirements of both Justice [Alito's] plurality opinion and

Justice [Thomas's] concurrence."                Id. 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, applying the tests of Justice

Alito and Justice Thomas results in the same conclusion as in

Williams,   a    conclusion        with    which          five    Justices          agree    that

Witucki's     testimony      did    not        violate         Deadwiller's          right     to

confrontation.         Deadwiller     and       Williams         are     in    substantially

identical   positions,       in     fact,       the       facts     of      this     case     are

strikingly similar to the facts in Williams.                                  We reject the

defendant's      arguments    that        Orchid's         DNA     profiles          were    used

"substantively" in this case but not in Williams, and we reject

his   argument     that    because        he    had       a    jury      trial,       Witucki's

testimony violated the Confrontation Clause.                             See infra, n.11.

Both cases involve defendants accused of sexually assaulting a

victim.     In    both    cases,     the       victim         reported        the    crime    and

underwent a sexual assault examination, which produced vaginal

swabs containing DNA of the perpetrator.                         In both cases, police

officers picked up the evidence, inventoried the evidence, and

sent the evidence to the state crime lab, which then sent the

evidence    to    an      out-of-state          laboratory            for      DNA    testing.

Further, the out-of-state laboratory in both cases sent back the

genetic material and a DNA profile of the perpetrator produced

from the vaginal swabs.            In both cases, state crime lab analysts

entered the DNA profile into a DNA database, which resulted in a
                                           23
                                             No.     2010AP2363-CR & 2010AP2364-CR



match to the defendant.10             When called to testify, the state

crime lab analyst in both cases reported that the DNA profile

sent by the out-of-state lab matched the DNA profile resulting

from the database.         The DNA profile was not introduced into

evidence in either case.             Prosecutors in both cases introduced

inventory reports, evidence receipts, and testimony to prove a

chain of custody, i.e. that the DNA profile was produced from

swabs taken from the victims.

       ¶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, 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.


       10
       To   the   extent  that  the   facts   differ,  Witucki's
involvement in the DNA testing was more substantial than
Lambatos' involvement. After Witucki obtained a match from the
database, he obtained a buccal swab from Deadwiller, developed a
DNA profile from that swab, and reconfirmed that Deadwiller was
a match to the DNA profiles produced by Orchid. Witucki's more
substantial involvement in the DNA testing weighs against
Deadwiller's argument that Witucki's testimony violated his
right to confrontation.

                                        24
                                          No.    2010AP2363-CR & 2010AP2364-CR



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.11        567 U.S. ___, 132 S. Ct. at 2237,

2239.

       ¶34   Under Justice Alito's second rationale, Orchid's DNA

profiles did not run afoul of the Confrontation Clause because

they did not involve "out-of-court statements having the primary

        11
        Deadwiller makes much of Justice Alito's statement that
"there would have been a danger of the jury's taking Lambatos'
testimony as proof that the Cellmark profile was derived from
the sample obtained from the victim's vaginal swabs. Absent an
evaluation of the risk of juror confusion and careful jury
instructions, the testimony could not have gone to the jury."
Williams, 567 U.S. at ___, 132 S. Ct. at 2236. However, Justice
Alito    followed    that    statement   by   confirming   that   the
Confrontation Clause applies equally to bench and jury trials:
"We do not suggest that the Confrontation Clause applies
differently depending on the identity of the factfinder.
Instead, our point is that the identity of the factfinder makes
a big difference in evaluating the likelihood that the
factfinder mistakenly       based its     decision  on   inadmissible
evidence."    Id. at 2237 n.4.      Similar to Williams, we find no
evidence in the record that the jury understood Witucki's
testimony to prove the truth of the matter asserted, that
Orchid's DNA profiles were produced from the swabs of Kristina
S. and Chantee O.         First, the State called several police
officers and introduced inventory reports and receipts to prove
a chain of custody for the swabs. See supra, ¶¶9-12. Second,
the jury was given instructions on how to evaluate an expert's
testimony: "In determining the credibility of each witness and
the weight you give to the testimony of each witness,
consider . . . the opportunity the witness had for observing and
knowing    the   matters    the   witness   testified   about . . . .
Ordinarily a witness may testify only about facts, but a witness
with expertise in a particular field may give an opinion in that
field.      So   you   should    consider   the  qualifications   and
credibility of the expert, the facts upon which the opinion is
based, and the reasons given for the opinion."

                                     25
                                                 No.     2010AP2363-CR & 2010AP2364-CR



purpose      of     accusing   a   targeted       individual         of   engaging    in

criminal conduct."          Id. at 2242.        As in Williams, Deadwiller was

not under suspicion at the time Orchid conducted its analysis.

In seeking the DNA profile, the State's "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."12               Id. at 2243.

       ¶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.13    Id.         Even    though      the   reports    were

produced at the request of the police, there is no evidence that

they    were      the    product   "of    any    sort        of   formalized   dialogue

resembling custodial interrogation."                   Id.

       ¶36     Deadwiller is in a substantially identical position as

Williams.         Berwind, 307 F.3d at 234.            Applying the rationales of

       12
       The Supreme Court recently concluded that criminal
suspects can be subjected to a DNA test after being arrested and
brought to the police station for a serious offense but before
they are convicted of the offense. Maryland v. King, 133 S. Ct.
1958 (2013). In reaching that conclusion, the Court highlighted
the importance of DNA evidence with respect to solving crimes.
Id. at 1966-80.
       13
        Orchid's DNA profiles are not in the record before this
court.   When an appellate record is incomplete with respect to
an issue raised by the appellant, we assume that the missing
material supports the trial court's ruling.    State v. Benton,
2001 WI App 81, ¶10, 243 Wis. 2d 54, 625 N.W.2d 923 (citing
Duhame v. Duhame, 154 Wis. 2d 258, 269, 453 N.W.2d 149 (Ct. App.
1989)).

                                           26
                                                  No.     2010AP2363-CR & 2010AP2364-CR



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.       At    trial,     the        original    analyst     was

unavailable to testify, and another analyst, Sandra Koresch, who

had performed        a   peer    review   of    the      original       analyst's work,

testified       that     the     substance      Williams          was     charged     with

possessing was cocaine.             Id., ¶4.            The defendant argued that

Koresch's testimony violated his right to confrontation.                              Id.,

¶5.    The court concluded that Williams' right to confrontation

had not been violated:

       [T]he presence and availability for cross-examination
       of a highly qualified witness, who is familiar with
       the procedures at hand, supervises or reviews the work
       of the testing analyst, and renders her own expert
       opinion is sufficient to protect a defendant's right
       to confrontation, despite the fact that the expert was
       not the person who performed the mechanics of the
       original tests.
Id., ¶20.       However, "one expert cannot act as a mere conduit for

the opinion of another."           Id., ¶19.


                                           27
                                           No.    2010AP2363-CR & 2010AP2364-CR



       ¶38   In Barton, the defendant was charged with arson.                  289

Wis. 2d 206, ¶3.         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:

       Like   the unit    leader's  testimony in [State     v.]
       Williams, Olson's testimony was      properly  admitted
       because he was a qualified unit leader presenting his
       individual, expert opinion.    Olson not only examined
       the results of Lyle's tests, but he also performed a
       peer review of Lyle's tests.     He formed his opinion
       based on his own expertise and his own analysis of the
       scientific testing. He then presented his conclusions
       to the jury, and he was available to Barton for cross-
       examination.     Thus,   Olson's   testimony  satisfied
       Barton's confrontation right and is admissible under
       the supreme court's decision in [State v.] Williams.
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:

            Crawford does not undermine the established rule
       that experts can testify to their opinions on relevant
       matters, and relate the information and sources upon
       which they rely in forming those opinions. This is so
       because an expert is subject to cross-examination
       about his or her opinions and additionally, the
       materials on which the expert bases his or her opinion

                                      28
                                                        No.     2010AP2363-CR & 2010AP2364-CR


      are not elicited for the truth of their contents; they
      are examined to assess the weight of the expert's
      opinion.
Id., ¶¶20, 22 (quoting People v. Thomas, 30 Cal. Rptr. 3d 582,

587 (Cal. Ct. App. 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 the presence of semen.                                      Once

Witucki received Orchid's DNA profile, he reviewed the profile

to make sure that Orchid followed its procedures and quality

control       measures       and    that     it        obtained        acceptable         results.
Witucki       also    evaluated      the     profile          to     make   sure    it     was   of

sufficient quality to enter into the DNA database.                                    After the
computer showed a match between Deadwiller and the Orchid DNA

profiles,        Witucki     obtained        a        buccal        swab    from    Deadwiller,
developed a DNA profile from that swab, and reconfirmed that

Deadwiller was a match.                  Thus, Witucki was not merely a conduit
for Orchid's DNA profiles, but he independently concluded that

Deadwiller was a match to Orchid's DNA profiles.                                   See State v.

                                                 29
                                                No.    2010AP2363-CR & 2010AP2364-CR



Williams, 253 Wis. 2d 99, ¶20.                Therefore, Witucki's testimony

was sufficient to protect Deadwiller's right to confrontation.

                                B. Harmless Error

      ¶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.         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
                                         30
                                                         No.        2010AP2363-CR & 2010AP2364-CR



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 don't intend to use his statements.                          If that is not
resolved, then I may put his statements on just to show this is

really a consent case."                    If Witucki had not testified, the State

could have used Deadwiller's statements to prove the same fact——

that Deadwiller was the source of the semen recovered from the
                                                  31
                                                       No.    2010AP2363-CR & 2010AP2364-CR



victims.      Second, Deadwiller made several statements indicating

that he did not challenge the DNA results, but rather was basing

his    defense    on        the    theory      that    Kristina         S.   and      Chantee   O.

consented to the sexual intercourse.                          At a pretrial conference

days    before        the    trial       was    scheduled          to     begin,      Deadwiller

reported that his DNA expert had not completed the review of

evidence in this case.                   The court informed Deadwiller that he

"could go to trial with your expert if we put it at another date

at a later time" and asked him several times whether he wanted

to    proceed    without          his    DNA    expert.           The    defendant      answered

affirmatively six times, insisting that he wanted to proceed

without his expert.                The State added that the DNA was going to

be a side issue in the case; that Deadwiller's defense was going

to be that the victims consented, and that this was going to be

a credibility case.               Deadwiller responded that "I agree with him

100 percent."          In other words, whether intercourse occurred, the

subject of the expert's testimony was irrelevant to Deadwiller's

defense because his defense was that the intercourse did occur
but    that     the    victims          consented.           At    trial,       the    defendant

testified     that Kristina             S.     and    Chantee      O.    both    consented      to
having sexual intercourse with him and that he did not dispute

that his semen was found in both victims.                              Throughout the entire
proceedings, Deadwiller's defense strategy was that the sexual

intercourse       was       consensual.              Therefore,         even    if     Witucki's
testimony       violated          Deadwiller's        right       to    confrontation,      that

error was harmless beyond a reasonable doubt.

                                        IV. CONCLUSION
                                                32
                                           No.    2010AP2363-CR & 2010AP2364-CR



      ¶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.

      By    the   Court.—The   decision    of    the    court     of   appeals   is

affirmed.

      ¶46    MICHAEL J. GABLEMAN, J., did not participate.




                                      33
                                                 No.    2010AP2363-CR & 2010AP2364-CR.ssa


       ¶47       SHIRLEY   S.   ABRAHAMSON,             C.J.        (concurring).1         This

writing is really a lament.               A lament that the majority opinion

reaches a         result without      a     rationale.            Because    the     majority

opinion offers no rationale for the result, the majority opinion

does       not     help    answer     the     recurring            significant          central

constitutional/evidentiary question presented, namely, "How does

the    Confrontation         Clause       apply        to    the     panoply       of    crime

laboratory reports and underlying technical statements written

by (or otherwise made by) laboratory technicians?"2                              This central

question is ubiquitous in trial courts every day.

       ¶48       The majority opinion reaches its result based on the

result reached by the United States Supreme Court in Williams v.

Illinois, 132 S. Ct. 2221 (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    (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

       1
       I concur in judgment because the alleged error, if error,
was harmless.    The record indicates that before trial, the
defendant told detectives that he did indeed have sexual
relations with the victims, but that the relations were
consensual.   It is not entirely clear when the defendant made
these statements and the detectives did not testify at trial
regarding the statements. What is clear is that at the pretrial
hearing when the State remarked that the case centered on the
issue of consent, the defendant did not object.
       2
       Williams v. Illinois, 132 S. Ct. 2221, 2244 (Breyer, J.,
concurring).

                                             1
                                               No.    2010AP2363-CR & 2010AP2364-CR.ssa


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.

                                           I

       ¶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 (1977), that when it issues a

plurality      decision,     with     no       five     Justices    agreeing    on     a

                                           2
                                                  No.    2010AP2363-CR & 2010AP2364-CR.ssa


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, 169       n.15        (1976)      (opinion      of    Stewart,

Powell, & Stevens, JJ.)).

     ¶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."                Ankar     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



                                              3
                                                      No.    2010AP2363-CR & 2010AP2364-CR.ssa


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.3

         ¶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).4

         ¶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).



         3
       For a recent law review commentary on the Marks rule, see
W. Jesse Weins, Note, A Problematic Plurality Precedent: Why the
Supreme Court Should Leave Marks Over Van Orden v. Perry, 85
Neb. L. Rev. 830 (2007).
         4
       Justice Thomas's concurrence in Williams explicitly
rejects the plurality's "flawed analysis" and asserts that
"there was no plausible reason for the introduction of
Cellmark's statements other than to establish their truth."
Williams, 132 S. Ct. at 2255-56 (Thomas, J., concurring).

                                                  4
                                                  No.    2010AP2363-CR & 2010AP2364-CR.ssa


      ¶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 case are in "substantially identical positions."                                Thus,
the majority opinion asserts that five Justices of the United

States Supreme Court would most likely reach the same conclusion

as they reached in Williams if presented with the instant case.

Majority op., ¶¶31-34.5



      5
       The facts of the present case and Williams are somewhat
different.    The question is whether the differences matter.
Here a jury, rather than a judge, determined the defendant's
guilt.   Justice Alito's plurality opinion hinted that a change
in the fact-finder might be an issue.   Williams, 132 S. Ct. at
2236; majority op., ¶34 n.11.

                                              5
                                               No.    2010AP2363-CR & 2010AP2364-CR.ssa


      ¶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

                                           6
                                                 No.   2010AP2363-CR & 2010AP2364-CR.ssa


reaching its conclusion in Williams, I conclude that there is no

standard in Williams for this court to follow.

                                            II

      ¶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    synthesize      Crawford,

Melendez-Diaz,6         and    Bullcoming7       with       the    issues     presented      in

      6
          Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
      7
          Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011).

                                             7
                                                     No.   2010AP2363-CR & 2010AP2364-CR.ssa


Williams.8         This synthesis is essential because the Justices of

the United States Supreme Court have expressed widely divergent

views in these cases.

        ¶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?9                              Justice Breyer

noted       that   the    Williams      plurality            decision,    like     decisions

before it, has failed to produce a clear, generally applicable

practical answer to the Confrontation Clause issue with respect

to routine crime laboratory results:

        8
            Williams, 132 S. Ct. at 2248 (Breyer, J., concurring).
        9
            Id. at 2246-47 (Breyer, J., concurring).

                                                 8
                                                   No.    2010AP2363-CR & 2010AP2364-CR.ssa

        Once one abandons the traditional [Federal] rule [of
        Evidence 703], there would seem often to be no logical
        stopping place between requiring the prosecution to
        call as a witness one of the laboratory experts who
        worked on the matter and requiring the prosecution to
        call all of the laboratory experts who did so.
        Experts——especially laboratory experts——regularly rely
        on the technical statements and results of other
        experts to form their own opinions.    The reality of
        the matter is that the introduction of a laboratory
        report   involves  layer   upon  layer   of  technical
        statements (express or implied) made by one expert and
        relied upon by another.10
        ¶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."11                     "But that clear rule is clear

no longer," lamented Justice Kagan.12                      In failing to follow these

recent decisions, the Court has "left significant confusion in
[its] wake."13

        ¶73    Commentators have levied criticism at all four of the
Williams opinions:




        10
             Id. at 2246 (Breyer, J., concurring).
        11
             Id. at 2277 (Kagan, J., dissenting).
        12
             Id. (Kagan, J., dissenting).
        13
             Id. (Kagan, J., dissenting).

                                               9
                                                     No.       2010AP2363-CR & 2010AP2364-CR.ssa

       The lack of either a majority opinion or a clear
       holding, in addition to the internal flaws of the
       various opinions, deeply muddles Confrontation Clause
       doctrine, leaving the clause's application to forensic
       evidence in question.14
       ¶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.15                                 Unless we do so,

courts and litigants will have little or no guidance on how to

proceed when the next cases are presented in the circuit courts

with    different        sets       of    circumstances           and     different       kinds     of

crime laboratory reports and witnesses at issue.

       14
       The Supreme Court, 2011 Term——Leading Cases, 126 Harv. L.
Rev. 176, 267 (2012).
       15
       For examples of courts taking this approach of re-
examining   the  case   law  to   address  Confrontation Clause
challenges, see United States v. James, 712 F.3d 79 (2d Cir.
2013); People v. Pealer, 985 N.E.2d 903 (N.Y. 2013).

                                                 10
                                             No.   2010AP2363-CR & 2010AP2364-CR.ssa


       ¶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.16             All of the approaches assume some

kind    of    Crawford      boundary——some       kind    of   limitation       upon    the

scope of Crawford——delineating who may be permitted to testify

and upon what evidence they may rely.17                        This standard would

respect      defendants'         constitutional         rights    to   confront        the

witnesses      who     collect,      process,      and     analyze     the      evidence

presented at trial while not requiring every person who has ever

touched the evidence to testify in court.

       ¶77    Not    only    must    this    court      harmonize      Williams       with

Crawford,      Melendez-Diaz,        and    Bullcoming,          but   it     must    also




       16
            Williams, 132 S. Ct. at 2247-48 (Breyer, J., concurring).
       17
            Id. at 2248 (Breyer, J., concurring).

     As a basis for discussion, Justice Breyer's concurrence
provides the following alternative solution to help satisfy the
Confrontation Clause:

       [S]hould the defendant provide good reason to doubt
       the laboratory's competence or the validity of its
       accreditation, then the alternative safeguard of
       reliability would no longer exist and the Constitution
       would entitle [the] defendant to Confrontation Clause
       protection.

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).

                                            11
                                         No.     2010AP2363-CR & 2010AP2364-CR.ssa


harmonize Wisconsin court decisions such as State v. Williams18

and State v. Barton.19     The majority opinion, relying more on the

result of Williams than the rationale of the Crawford line of

cases, leaves this major task undone.

     ¶78   For the reasons set forth, I write separately.

     ¶79   I   am    authorized   to    state       that    Justice   ANN   WALSH

BRADLEY joins Part I of this opinion.




     18
       State    v.    Williams,   2002      WI    58,      253   Wis. 2d 99,   644
N.W.2d 919.
     19
       State v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709
N.W.2d 93.

                                       12
                                              No.    2010AP2363-CR & 2010AP2364-CR.awb


      ¶80    ANN    WALSH      BRADLEY,   J.        (concurring).       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, 132 S. Ct. 2221 (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.




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