                                                              2019 WI 63

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2016AP2058-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Peter J. Hanson,
                                  Defendant-Appellant-Petitioner.

                           REVIEW OF DECISION OF THE COURT OF APPEALS
                           Reported at 384 Wis. 2d 413,921 N.W.2d 517
                                      (2018 – unpublished)

OPINION FILED:          June 5, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 15, 2019

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Oconto
   JUDGE:               Michael T. Judge

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:   ABRAHAMSON, J. did not participate.

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed by Ana L. Babcock and Babcock Law, LLC, Green Bay. There
was an oral argument by Ana L. Babcock.


       For the plaintiff-respondent, there was a brief filed by
Scott E. Rosenow, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Scott E. Rosenow.
                                                                           2019 WI 63
                                                                    NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.       2016AP2058-CR
(L.C. No.    2013CF41)

STATE OF WISCONSIN                              :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                        FILED
      v.                                                            JUN 5, 2019

Peter J. Hanson,                                                      Sheila T. Reiff
                                                                   Clerk of Supreme Court

              Defendant-Appellant-Petitioner.




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


      ¶1     REBECCA     FRANK   DALLET,   J.       Peter     Hanson       ("Hanson")
seeks review of the court of appeals'1 decision affirming the

circuit court's2 denial of his postconviction motion.
      ¶2     Chad   McLean   ("McLean")    disappeared         on    the     night     of
February 22, 1998.         His body was found one month later in the
Pensaukee River with four gunshot wounds to his head.                        The case
went cold until 2009 when Hanson's estranged wife Kathy Hanson


      1State v. Hanson, No. 2016AP2058-CR, unpublished slip op.
(Wis. Ct. App. Sept. 18, 2018).
      2The Honorable Michael          T.   Judge,      of    the     Oconto      County
Circuit Court presided.
                                                                        No.    2016AP2058-CR



("Kathy")        gave    a    statement    to       police      implicating     Hanson     in
McLean's murder.              In November 2012, a judge in Oconto County
held       a   John   Doe     proceeding    to       further      investigate       McLean's
murder.3       Hanson testified at that proceeding, made incriminating
statements, and was subsequently charged with McLean's murder.
Hanson was convicted and sentenced to life imprisonment without
the possibility of parole.
       ¶3       Hanson       challenges    the        admissibility       at    trial      of
portions of his testimony from the John Doe proceeding on two
grounds.        First, Hanson contends that the admission of his John
Doe testimony regarding Kathy's statement to police inculpating
him in McLean's murder violated his Sixth Amendment right to

confrontation.            Second,    Hanson         claims      his   trial   counsel      was
ineffective for failing to object to the admission of his John
Doe    testimony        because,    at    the       time   he    testified,    he    was    in




       3
       In 2011, a John Doe proceeding was convened, Oconto County
Case No. 2011-JD-3, to investigate McLean's murder. Wisconsin's
John Doe proceeding, codified at Wis. Stat. § 968.26, "serves
both as an inquest into the discovery of crime and as a screen
to prevent 'reckless and ill-advised' prosecutions."     State ex
rel. Reimann v. Circuit Court for Dane Cty., 214 Wis. 2d 605,
621, 571 N.W.2d 385 (1997).    "In order to commence a John Doe
proceeding, the complainant, whether it be the district attorney
or anyone else, must demonstrate to the John Doe judge 'that he
has reason to believe that a crime has been committed within the
jurisdiction.'"    State ex rel. Two Unnamed Petitioners v.
Peterson, 2015 WI 85, ¶85, 363 Wis. 2d 1, 866 N.W.2d 165 (quoted
source omitted).   Section 968.26 gives a John Doe judge broad
powers to determine the extent of the investigation and whether
the investigation should be conducted in secret. Id., ¶88.


                                                2
                                                                          No.   2016AP2058-CR



custody on an unrelated matter and not read all of the Miranda

warnings.4
      ¶4      We    conclude     that   Hanson's           Sixth    Amendment       right    to
confrontation was not violated because his John Doe testimony
regarding Kathy's statement to police was not offered to prove
the   truth      of    the    matter    asserted.            We     also    conclude      that
Hanson's ineffective assistance of counsel claim fails because
the   law    was      unsettled    as     to       whether    Miranda       warnings      were
required at John Doe proceedings.                      Finally, we determine as a
matter      of     first     impression        that       Miranda    warnings       are     not
required at John Doe proceedings.
              I.      FACTUAL BACKGROUND AND PROCEDURAL POSTURE

      ¶5      On February 22, 1998, McLean and his friend Cory Byng
("Byng") went to Byng's uncle's house for a cookout.                            Hanson and
his friend Chuck Mlados ("Mlados") also went to the cookout,
arriving in a pickup truck driven by Hanson.                          At around 9:30 or
10:00     p.m.,     Hanson,     McLean,        and    Mlados       left    Byng's    uncle's
house.      Hanson and Mlados alleged that they dropped McLean off
at the Hi-Way Restaurant and Truck Stop on the way back to
Hanson's house.            The restaurant surveillance footage from that
night showed Hanson and Mlados buying beer at 9:53 p.m., but
McLean     was     not seen in any of the                  footage.        At   trial, six
employees        testified     that     they        did     not     see    anyone    fitting
McLean's description at the restaurant that night.


      4   Miranda v. Arizona, 384 U.S. 436 (1966).


                                               3
                                                                 No.    2016AP2058-CR



     ¶6     Approximately       one   month    later,       McLean's      body   was
recovered      in   the   Pensaukee   River,   1.3       miles   downstream      from
Hanson's house.           McLean had four gunshot wounds to his head.
The case went cold for over a decade until 2009, when Kathy told
police that Hanson had confessed to killing McLean.
     ¶7     In November 2012, Hanson, who was in custody at the
Oconto County jail on charges unrelated to the homicide, was
called    as    a   witness    to   testify    at    a    John    Doe    proceeding
regarding McLean's murder.            Prior to questioning, the John Doe
judge read Hanson most, but not all, of the Miranda warnings.5

Hanson made incriminating statements at the proceedings.                           In
March 2013, the John Doe investigation was closed and the John

Doe judge signed an order finding probable cause and authorizing
the issuance of a criminal complaint.
     ¶8     At trial, the State introduced portions of Hanson's
John Doe testimony.         Hanson objected on Confrontation Clause and




     5 Miranda requires that "Prior to any questioning [of a
person in custody], the person must be warned that he has a
right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed."
Miranda, 384 U.S. at 444.   It is undisputed that the John Doe
judge informed Hanson that his testimony could be used against
him in the John Doe proceeding or in another legal proceeding,
that he had the right to have an attorney present during his
testimony, and that he could stop the questioning in order to
consult an attorney. Hanson, No. 2016AP2058-CR, ¶6 n.2. It is
undisputed that the John Doe judge did not advise Hanson of his
right to have counsel appointed if he could not afford to hire
his own counsel. Id.


                                        4
                                                                       No.     2016AP2058-CR



hearsay grounds.6       The circuit court overruled Hanson's objection
and held that the testimony qualified as an admission by a party
opponent pursuant to Wis. Stat. § 908.01(4)(b)1. (2017-18),7 and
therefore       was   not    hearsay    and       did    not     violate        his     Sixth
Amendment right to confrontation.
     ¶9        The jury also heard from three witnesses who testified
that Hanson had confessed to killing McLean.                            Kenneth Hudson
testified that he had been Hanson's best friend and that about a
month and a half after McLean's body was found, Hanson told him
that he had shot McLean and dumped his body in the river.                               Barry
O'Connor, a friend of Hanson, testified that in 2008 Hanson told
him that about ten years earlier he and Mlados had accidentally

killed someone and dumped the body in a river.                               O'Connor also
testified that Hanson told him he had confessed the murder to
Kathy, but that she could not testify against him because she
was now dead.         Jeremy Dey testified that while he and Hanson
were in the Oconto County jail together in 2013, Hanson told him
that he had shot McLean and dumped his body in a river.                                  Dey

further    testified        that   Hanson       told    him    Kathy    had     given     the
police     a   statement      about    McLean's         murder    that        was     against
Hanson's interests.
     ¶10       Hanson did not call any witnesses at trial and chose
not to testify.        Hanson argued to the jury that the case against

     6   Kathy died prior to the John Doe proceeding.
     7 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.


                                            5
                                                                               No.     2016AP2058-CR



him was circumstantial and that the State had failed to meet its
burden to prove beyond a reasonable doubt that he had killed
McLean.
     ¶11    During its deliberations, the jury asked the circuit
court if it could review "anything that may pertain to Kathy
Hanson's statement to the police."                          The circuit court denied
this request.          The jury ultimately found Hanson guilty of first-
degree intentional homicide as a party to the crime and he was
sentenced       to     life    imprisonment            without          the    possibility        of
parole.
     ¶12    Hanson         filed     a    postconviction            motion      seeking      a    new
trial based upon, among other things, the alleged ineffective

assistance       of    his     trial      counsel.            At    the       Machner8     hearing

regarding Hanson's claims, Hanson's trial counsel testified that
he   did   not        object    to       the    admission          of    Hanson's         John   Doe
testimony on Miranda grounds because he did not "believe that
Miranda is applicable to a John Doe proceeding."                                      The circuit
court    denied       Hanson's       postconviction           motion,          concluding        that
"the colloquy between Peter Hanson and the Court satisfies any
right    that    the       defendant      had    to    an     attorney         at     a   John    Doe
proceeding."
     ¶13    Hanson         appealed        the       denial        of    his     postconviction
motion     and       the    circuit       court's       decision          to         overrule    his
objection regarding his Sixth Amendment right to confrontation.

     8   State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).


                                                 6
                                                                        No.    2016AP2058-CR



Hanson raised two issues on appeal:                           (1) whether the circuit
court       improperly     admitted       his       John     Doe   testimony       regarding
Kathy's statement to police in violation of his Sixth Amendment
right to confrontation;9 and (2) whether his trial counsel was
ineffective         for   failing    to    call        any    potentially      exculpatory
witnesses10 and for failing to object to the admission of his
John Doe testimony on the grounds that he was not read all of
the Miranda warnings at the John Doe proceeding.

       ¶14     As to Hanson's Confrontation Clause claim, the court
of appeals assumed without deciding that the circuit court's
admission of Hanson's John Doe testimony was error.                                State v.
Hanson, No. 2016AP2058-CR, unpublished slip op., ¶13 (Wis. Ct.

App.       Sept.    18,   2018).      However,          the    court    of    appeals      was
"persuaded that any error in the admission of the challenged
evidence was harmless because it duplicated other, unchallenged
testimony."          Hanson, No. 2016AP2058-CR, ¶14.                    Three witnesses
testified that Hanson confessed to killing someone and dumping
the    body    in    a    river.     Two     witnesses         testified      that    Hanson
confessed the killing to Kathy and one witness testified that
Kathy       told   the    police    Hanson          killed    McLean.        The   court   of
appeals was not persuaded by the jury's request to see evidence
regarding Kathy's statement to the police because the request

       9
       Hanson did not claim a violation of his right to
confrontation in his postconviction motion, but this issue was
preserved for review.
       10
       Hanson did not request review of this claim on appeal to
this court.


                                                7
                                                                     No.    2016AP2058-CR



was denied and the jury heard about Kathy's statement through
other unchallenged testimony.              Hanson, No. 2016AP2058-CR, ¶15.

      ¶15    The     court       of      appeals      also      rejected       Hanson's
ineffective assistance of counsel claim.                      The court of appeals
held that "[r]egardless of whether counsel was deficient for
failing     to    object    to     the    admission      of   [Hanson's      John     Doe]
testimony on Miranda grounds, we are convinced that such error
was   not    prejudicial           to    Hanson's     defense."            Hanson,    No.
2016AP2058-CR, ¶31.           Again, the court of appeals relied upon the
fact that the John Doe testimony regarding Kathy's statement
"merely duplicated other, unchallenged testimony."                          Hanson, No.
2016AP2058-CR,       ¶32.        Hanson     then     petitioned      this    court    for

review.
                             II.      STANDARD OF REVIEW
      ¶16    We    review     Hanson's     claims     that     his   Sixth    Amendment
right to confrontation was violated and that his trial counsel
was ineffective.        Whether a defendant's Sixth Amendment right to
confrontation was violated is a "'question of constitutional law
subject to independent review.'"                 State v. Nieves, 2017 WI 69,
¶15, 376 Wis. 2d 300, 897 N.W.2d 363 (quoted source omitted).
"We generally apply United States Supreme Court precedents when
interpreting" the Sixth Amendment and the analogous Article I,
Section 7 of the Wisconsin Constitution.                      State v. Jensen, 2007
WI 26, ¶13, 299 Wis. 2d 267, 727 N.W.2d 518.
      ¶17    A     criminal      defendant      is    guaranteed      the     right    to
effective assistance of counsel under both the United States and
Wisconsin    Constitutions.              U.S.   Const.    amends.     VI,    XIV;     Wis.
                                            8
                                                                       No.        2016AP2058-CR



Const. art. I, § 7; see also Strickland v. Washington, 466 U.S.

668, 686 (1984) (holding that the right to counsel includes the
right      to   effective       assistance       of   counsel).11            "A     claim    of
ineffective assistance of counsel presents a mixed question of
law     and     fact."      State      v.    Thiel,     2003      WI   111,         ¶21,    264
Wis. 2d 571,       665 N.W.2d 305.               We   uphold the circuit court's
findings of fact involving the circumstances of the case and
trial counsel's conduct and strategy unless they are clearly
erroneous.         State    v.    Pitsch,     124     Wis.   2d    628,       633-34,       369
N.W.2d 711 (1985).          The final determination of whether counsel's
performance         satisfies          the       constitutional         standard            for
ineffective assistance of counsel is a question of law, which we

review de novo.          Id.     "To demonstrate that counsel's assistance
was   ineffective,        the    defendant       must   establish       that        counsel's
performance was deficient and that the deficient performance was
prejudicial."            State    v.    Breitzman,      2017      WI    100,        ¶37,    378
Wis. 2d 431, 904 N.W.2d 93 (citing Strickland, 466 U.S. at 687).
If the defendant fails to satisfy either prong of the analysis,
we need not consider the other.               Id.

      11
       The Sixth Amendment to the United States Constitution
provides:   "In all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
defence."     The Wisconsin Constitution provides:      "In all
criminal prosecutions the accused shall enjoy the right to be
heard by himself and counsel." Wis. Const. art. I, § 7. This
court has made clear that the test for ineffective assistance of
counsel articulated by the United States Supreme Court applies
to ineffective assistance of counsel claims under the Wisconsin
Constitution.    State v. Sanchez, 201 Wis. 2d 219, 235-36, 548
N.W.2d 69 (1996).


                                             9
                                                                      No.    2016AP2058-CR



                                      III. ANALYSIS
     ¶18    We   first       consider     Hanson's         claim     that    his     Sixth
Amendment    right      to     confrontation         was     violated.          We     then
determine   whether      Hanson's      trial   counsel         was    ineffective       for
failing to object to the admission of his John Doe testimony on
the grounds that he was not read all of the Miranda warnings at

the John Doe proceeding.              Finally, we determine as a matter of
first impression that Miranda warnings are not required at John
Doe proceedings.

                 A. Hanson's Sixth Amendment right to
                    confrontation was not violated.
     ¶19    Hanson     asserts     that    his     Sixth       Amendment       right    to
confrontation     was    violated       when     the    circuit        court    admitted
portions    of   his    John    Doe    testimony       into    evidence        at    trial.
"'The Confrontation Clauses of the United States and Wisconsin
Constitutions     guarantee        criminal       defendants           the     right     to
confront witnesses against them.'"               State v. Manuel, 2005 WI 75,
¶36, 281 Wis. 2d 554, 697 N.W.2d 811 (quoted source omitted).
In Crawford, the United States Supreme Court observed that the
Confrontation     Clause       "does    not    bar     the     use     of    testimonial
statements for purposes other than establishing the truth of the
matter asserted."        Crawford v. Washington, 541 U.S. 36, 59 n.9
(2004) (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).
Therefore, a crucial aspect of the                     Sixth    Amendment right         to
confrontation, pursuant to Crawford, is that it "only covers
hearsay, i.e., out-of-court statements 'offered in evidence to
prove the truth of the matter asserted.'"                            United States v.

                                          10
                                                                             No.     2016AP2058-CR



Tolliver,      454       F.3d     660,    666   (7th       Cir.    2006).          It    is    well

established         that    "out-of-court            statements        may    be     offered     to
prove innumerable relevant propositions apart from the truth of
any matters (explicitly [or] implicitly[]) asserted."                                   7 Daniel
D.    Blinka,       Wisconsin          Practice      Series:           Wisconsin         Evidence
§ 801.302      at    768     (4th       ed.   2017);       see    State      v.    Medrano,      84
Wis. 2d 11,     19-20,           267    N.W.2d 586      (1978)     (reasoning           that    the
testimony was properly admitted "because it was not offered for
the    truth        of     the         statement");        Caccitolo         v.      State,      69
Wis. 2d 102, 107, 230 N.W.2d 139 (1975) ("the hearsay rule is
inapplicable to out-of-court assertions . . . if the statement
is not offered to prove the truth of the matter asserted.")

      ¶20   Our          first     inquiry,       pursuant        to    Crawford,         is    to
determine      whether          the     testimony     is    hearsay.           The      following
relevant testimony was read to the jury:

      SPECIAL PROSECUTOR:   Did you ever talk to your wife
      Kathy about Chad McLean's death?

      THE DEFENDANT:              Well, of course. We talked about it a
      lot.

      SPECIAL PROSECUTOR:     Okay. And at times Kathy
      confronted you and said you were responsible for Chad
      McLean's death?

      THE DEFENDANT:   No. She didn't do that until she was
      trying to put me away before she died.

      SPECIAL PROSECUTOR:     Okay. But regardless of the
      timing, at some point Kathy Hanson confronted you and
      said you were responsible for Chad McLean's death?

      THE DEFENDANT:             Not to my face she didn't. She went to
      the police.


                                                11
                                                           No.   2016AP2058-CR


       SPECIAL PROSECUTOR:    At some point within the year
       before she passed away, isn't it a fact that Kathy
       confronted you about the Chad McLean death?

       THE DEFENDANT: No. She never——we didn't talk about it
       anymore. It wasn't until she kept trying to put me in
       jail for little stuff through my probation officer
       that then all the sudden she went to the police and
       accused me of——that she thought that I killed Chad
       McLean.

       SPECIAL PROSECUTOR:   But specifically she was telling
       people that you had shot Chad McLean?

       THE DEFENDANT:    Well, not that I know of.

       SPECIAL PROSECUTOR:     Well——

       THE DEFENDANT:    She told the police.

       SPECIAL PROSECUTOR: Who told you that she was saying
       that you killed Chad McLean?

       THE DEFENDANT:    [Detective Darren] Laskowski.

       ....

       SPECIAL PROSECUTOR:   Question, have you ever told
       anybody that her dying was the best thing that ever
       happened to you?

       THE DEFENDANT:    Yeah.

       SPECIAL PROSECUTOR:       How many people have you told
       that to?

       THE DEFENDANT:    A couple.
       ¶21    Hanson's John Doe testimony presents three layers of
out-of-court statements:         (1) Hanson's statement made at the
John Doe proceeding about what Detective Laskowski told him; (2)
Detective Laskowski's statement to Hanson about what Kathy told
him;   and    (3)   Kathy's   statement   to   Detective    Laskowski    that




                                     12
                                                                               No.    2016AP2058-CR



Hanson killed McLean.12                The first layer is not at issue because
the   parties       ultimately          agree       that    Hanson's       statement         was    an
admission       by     a     party          opponent,          pursuant     to        Wis.      Stat.
§ 908.01(4)(b)1., and not hearsay.
       ¶22     The State asserts that Detective Laskowski's statement
to    Hanson    forms       the     basis         for    the     State's       introduction        of
Hanson's John Doe testimony.                        The State argues that Detective
Laskowski's        statement        to       Hanson,       the    second       layer,      was     not
offered      for     the    truth       of    the       matter    asserted,          but   to    show
Hanson's     consciousness             of    guilt.         If    we     accept      the     State's
argument that Detective Laskowski's statement is not hearsay,
the same argument applies to the third layer, Kathy's statement

to Detective Laskowski.
       ¶23     According          to        the     State,        Detective           Laskowski's
statement       was    not    offered             for    the     truth    of     whether        Kathy
actually     told     Detective          Laskowski         that    Hanson       killed       McLean;
but, rather, to show Hanson's belief that Kathy would testify
against      him.          Taken       together         with     Hanson's       statement        that

Kathy's death was the "best thing that ever happened" to him,
the State claims there is an inference that Hanson was glad




       12
       The circuit court allowed this excerpt of the John Doe
proceeding into testimony based on its conclusion that it
qualified as an admission by a party opponent, pursuant to Wis.
Stat. § 908.01(4)(b)1.   The parties now agree that the second
and third layer of out-of-court statements were not admissible
under § 908.01(4)(b)1.


                                                   13
                                                                      No.     2016AP2058-CR



Kathy was dead so she could not testify that he killed McLean.13
Detective Laskowski's statement regarding what Kathy told him
was thus offered to prove Hanson's consciousness of guilt and
was not hearsay, as it is irrelevant whether Kathy actually made
a statement to Detective Laskowski.
       ¶24       Hanson asserts that because there is no overt link
between his statement that Kathy's death was the best thing that
ever    happened       to    him    and    his     knowledge     that     Kathy     made    a
statement        to    Detective        Laskowski,       the   State's      assertion      of
consciousness of guilt is too attenuated.                      Hanson gives a number
of other reasons why he made the statement about Kathy's death,
including that he believed that Kathy had an affair and that she

was    reporting "little stuff"              to his probation             officer    in    an
attempt to put him in jail.                  Hanson contends that the State's
purported use of the testimony surrounding Kathy's statement to
police was just a "ruse" to put Kathy's unconfronted testimonial
statement before the jury.
       ¶25       A mere claim that a statement is not offered for its

truth       is   not   enough      to   overcome     a   hearsay     challenge      to    its
admissibility.           "When      the    State    proffers     a   statement       for    a
nonhearsay        purpose,       close    attention       should     be     paid    to    the
relevancy of, and need for, this use of the evidence."                              Blinka,
supra,       § 802.302      at   828.      The     question     is   not     whether      the


       13
        The State further points to the fact that the jury heard
testimony about Hanson's confession to Kathy from multiple
witnesses which Hanson did not object to on appeal.


                                             14
                                                                  No.       2016AP2058-CR



evidence might be inadmissible hearsay if it is offered to prove
the    truth     of   the   matter     asserted;      rather,    the     question      is
whether the evidence is offered for a legitimate reason other
than for the truth of the matter asserted.                     See      United States

v. Friedman, 445 F.2d 1076, 1081 (9th Cir. 1971) (observing that
"[r]elevant testimony relating an out-of-court conversation is
admissible as evidence of consciousness of guilt, even though it
might be inadmissible hearsay if used to prove the truth of the
facts asserted"); see also United States v. Shorter, 54 F.3d
1248, 1260 (7th Cir. 1995);             Zipf v. American Tel. and Tel. Co.,
799 F.2d 889, 895 (3d Cir. 1986); United States v. Hackett, 638
F.2d     1179,    1186-87      (9th    Cir.     1980)    (maintaining         that    the

defendant's statements "were admitted not for their truth, but
merely    for    the    fact    that   the     statements      were     made,"       which
implied the defendant's consciousness of guilt.).
       ¶26     A jury could infer that Hanson said that Kathy's death
was the best thing that ever happened to him because he had
heard    from    Detective     Laskowski       that     she   might    be    a   witness
against him in McLean's murder.                We accept the State's proffered
purpose for Detective Laskowski's statement and conclude that it
was not offered to prove the truth of the matter asserted.                            The
same rationale applies to the third layer, Kathy's statement to
Detective Laskowski, since whether Kathy actually told Detective
Laskowski that Hanson confessed to her is discrete from Hanson's
belief that she would testify against him.                    There is therefore a
legitimate nonhearsay purpose for the admission of Hanson's John
Doe testimony that is relevant to the charge against Hanson for
                                          15
                                                                      No.   2016AP2058-CR



McLean's murder:             consciousness of guilt.               "[W]hen the State
offers a statement for a proper nonhearsay purpose . . . it is
neither       hearsay        (evidence     law)     nor        testimonial      hearsay
(confrontation law)."           Blinka, supra, § 802.302 at 828.

       ¶27    We   conclude      that    Hanson's      Sixth    Amendment     right    to
confrontation was not violated because his John Doe testimony
was offered to demonstrate consciousness of guilt and was not
offered to prove the truth of the matter asserted.                          Because the
Confrontation Clause does not apply to nonhearsay statements,
Hanson's      Sixth     Amendment        right    to     confrontation         was    not
violated.14

       B. Hanson's ineffective assistance of counsel claim fails
     because the law was unsettled as to whether Miranda warnings
                 were required at John Doe proceedings.
       ¶28    Hanson asserts that his trial counsel was deficient
for failing to object to the admission of his John Doe testimony
on the grounds that he was not read all of the Miranda warnings.
To    establish       that    counsel's    performance         was     deficient,     the
defendant      must     show     that     the    performance         fell    below    "an

objective      standard        of   reasonableness."               See      Thiel,    264
Wis. 2d 571, ¶19.            In order to constitute deficient performance,
the law must be settled in the area in which trial counsel was
allegedly      ineffective.         See    Breitzman,        378     Wis. 2d 431,     ¶49
(quoted      source    omitted)     ("'[F]ailure        to   raise     arguments     that


       14
       Because we decide the statement was not hearsay, we need
not decide whether the statement was testimonial, the next step
in an analysis under Crawford v. Washington, 541 U.S. 36 (2004).


                                           16
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require the resolution of unsettled legal questions generally
does not render a lawyer's services outside the wide range of
professionally         competent assistance                sufficient         to satisfy the
Sixth    Amendment.'").              "'[I]neffective                assistance       of    counsel
cases should be limited to situations where the law or duty is
clear such that reasonable counsel should know enough to raise
the     issue.'"            State     v.        Maloney,       2005     WI     74,      ¶29,     281
Wis. 2d 595, 698 N.W.2d 583 (quoted source omitted).
      ¶29      In his brief, Hanson "acknowledges that there is no
binding authority requiring that all witnesses at a John Doe
hearing     be    read       Miranda       warnings        before       being      questioned."
Hanson    is correct that             the       law was        unsettled.          Accordingly,

trial     counsel's         failure        to    object        to    the     introduction        of
Hanson's John Doe testimony on the grounds that he was not read
all of the Miranda warnings at the John Doe proceeding cannot
constitute       deficient         performance.               We    conclude       that    because
Hanson    is     unable       to    succeed       under       the     first     prong       of   the
ineffective           assistance           of      counsel           analysis,            deficient
performance, we need not consider the second prong, prejudice.
Breitzman,        378        Wis. 2d 431,              ¶37.           Therefore,           Hanson's
ineffective assistance of counsel claim fails.

  C. Miranda warnings are not required at John Doe proceedings.
      ¶30      Whether      Miranda        warnings        are      required       at     John   Doe
proceedings      is     a    matter    of        first    impression.           We      begin    our
analysis       with     the    language          and     application          of     Miranda     v.
Arizona, 384 U.S. 436 (1966).                     Under Miranda, any statement made


                                                  17
                                                                                   No.   2016AP2058-CR



by   a        person    in    custody        in    response         to    interrogation       by   law
enforcement officers must be suppressed if he or she has not
been          properly        informed            of        their        rights.           "Custodial
interrogation" set forth in Miranda, and reaffirmed in Oregon v.

Mathiason, 429               U.S.     492,     494 (1977),           is defined as          follows:
"questioning            initiated        by       law       enforcement       officers       after    a
person has been taken into custody or otherwise deprived of his
freedom         of     action       in   any      significant            way."       Therefore,      if
questioning            was    not     "initiated            by   law      enforcement,"       or   the
person was not "in custody," Miranda warnings are not required.
         ¶31     Because       of     the     similarities          between        grand    jury     and
John Doe proceedings,15 case law analyzing Miranda's application

to grand jury proceedings is instructive.                                   In United States v.
Mandujano, 425 U.S. 564, 566 (1976), a plurality of the United
States Supreme Court held that Miranda warnings are not required
for grand jury witnesses.                         The Mandujano Court explained that
Miranda          "simply        did      not      perceive          judicial        inquiries        and
custodial interrogation as equivalents," as "the compulsion to


         15
       See Legislative Reference Bureau, Wisconsin Briefs 15-7:
Grand Jury and John Doe Proceedings in Wisconsin (Mar. 2015)
("Both grand jury and John Doe proceedings are independent
inquiries into whether a criminal complaint should be issued in
response to allegations of wrongdoing.").    Nevertheless, it is
undisputed that John Doe proceedings "afford substantially more
protection to a potential accused than does a grand jury."
State v. Doe, 78 Wis. 2d 161, 165, 254 N.W.2d 210 (1977); see
also State v. Washington, 83 Wis. 2d 808, 819, 266 N.W.2d 597
(1978) (reasoning that a "John Doe is of a more restricted scope
than a grand jury, limited basically to the subject matter of
the complaint upon which the John Doe is commenced").


                                                       18
                                                                          No.     2016AP2058-CR



speak in the isolated setting of the police station may well be
greater than in courts or other official investigations, where
there        are     often      impartial           observers        to    guard       against
intimidation or trickery."                       Id. at 579 (quoting Miranda, 384

U.S.    at     461.)         The     Court       further     emphasized         that   Miranda
addressed "extrajudicial confessions or admissions procured in a
hostile,           unfamiliar        environment            which    lacked        procedural
safeguards,"          which     is     distinguishable          from      the    grand    jury
context.           Mandujano,        425     U.S.      at   579.       Extending       Miranda
warnings to a grand jury witness "is an extravagant expansion
never remotely contemplated by this Court in Miranda," according
to the Mandujano Court.               Id. at 579-80.

       ¶32     In cases since Mandujano, the United States Supreme
Court has suggested that Miranda warnings are not required to be
read to grand jury witnesses prior to questioning.                                 In United
States v. Washington, 431 U.S. 181, 186 (1977), the Court noted
that    it    had     never     held    that       Miranda     applied     to     grand   jury
proceedings.16           In Minnesota v. Murphy, 465 U.S. 420, 430, the
Court held that a defendant did not need to be read Miranda
warnings prior to speaking to his probation officer because he
"was    not        'in   custody'          for    purposes      of     receiving       Miranda
protection."              The      Murphy        Court      repeatedly      compared       the



       16
        The Washington Court declined to resolve this issue
because   the  defendant   was  read  Miranda  warnings  before
testifying at a grand jury proceeding.        United States v.
Washington, 431 U.S. 181, 186 (1977).


                                                  19
                                                                 No.     2016AP2058-CR



defendant's situation to              a subpoenaed     witness at       a trial    or
grand jury proceeding.             Id. at 427, 431-32.

       ¶33    Relying on Mandujano, Washington, and Murphy, federal
courts of appeals have also concluded that Miranda warnings are
not required for grand jury witnesses.                See, e.g., United States
v.   Williston,       862    F.3d    1023,   1032    (10th     Cir.    2017)    (cert.
denied, 138 S. Ct. 436 (2017)); United States v. Myers, 123 F.3d
350, 360–62 (6th Cir. 1997); United States v. Gillespie, 974
F.2d   796, 802-05          (7th    Cir. 1992) (reasoning        that    the    United
States Supreme Court "has explicitly distinguished the custodial
nature of police interrogations from the grand jury context");
United   States v. Pacheco-Ortiz, 889 F.2d                   301, 307 (1st       Cir.

1989); Conley v. United States, 708 F.2d 1455, 1458 (9th Cir.
1983); United States v. Prior, 546 F.2d 1254, 1257 (5th Cir.
1977).       As the Tenth Circuit aptly explained:               "a full-Miranda-
warning requirement would run counter to the Supreme Court's
direction that grand-jury witnesses are not in custody while
testifying,       and         that     grand-jury      questioning         is     not
interrogation."        Williston, 862 F.3d at 1032.
       ¶34    As in grand jury proceedings, a witness at a John Doe
proceeding is not subject to custodial police interrogation.                         A
John Doe proceeding is convened by a judge for the purpose of
determining      if   a     crime    has   been   committed.      See    Wis.    Stat.
§ 968.26(2)(b); see also State v. Washington, 83 Wis. 2d 808,
824, 266 N.W.2d 597 (1978) (emphasizing that a John Doe judge
must "conduct himself as a neutral and detached magistrate in
determining probable cause.").               While a district attorney often
                                           20
                                                      No.    2016AP2058-CR



questions John Doe witnesses, this court has long recognized
that the proceedings "are constantly under the scrutiny of a
judge," who "does not act as 'chief investigator' or as a mere

arm of the prosecutor."     State ex rel. Two Unnamed Petitioners
v.   Peterson, 2015 WI    85,   ¶86,    363 Wis. 2d 1, 866 N.W.2d 165
(quoted source omitted) (emphasis in original).           Along with the
statutory requirements of § 968.26, guidance for the John Doe
judge      is also given in the Wisconsin      Judicial   Benchbook and
scripted material to address a witness is set forth in Special
Materials 12 of the Wisconsin Criminal Jury Instructions.             See
Wis. Judicial Benchbook CR-48 (6th ed. 2019); Wis JI——Criminal
SM-12 (2011).    17




      17
       For example, Special Materials 12 recommends that a John
Doe judge address a witness using the following prompts:

           "If you believe that a truthful answer to any
      question asked of you would incriminate you, that is,
      subject you to criminal prosecution, you may refuse to
      answer the question on the grounds that it may
      incriminate you. Do you understand that?"

           "Do you understand that your answers to questions
      put to you may be used against you by this John Doe or
      in another legal proceeding?"

              . . . .

           "You are also advised that you have the right to
      have an attorney present with you during your
      testimony. . . ."

Wis JI——Criminal SM-12 (2011).

                                                             (continued)
                                   21
                                                               No.    2016AP2058-CR



      ¶35    Moreover, even if a witness at a John Doe proceeding
is in custody relating to other charges at the time of the
proceeding, they would not be compelled to confess for "fear of
reprisal . . . or in the hope of more lenient treatment," as is
the   fear   with      custodial    police    interrogation    and    a    "police-
dominated atmosphere."         See Illinois v. Perkins, 496 U.S. 292,

296-97    (1990).       As the United         States Supreme    Court      recently
clarified, "service of a term of imprisonment, without more, is
not   enough      to     constitute     Miranda    custody,"     as       "standard
conditions of confinement and associated restrictions on freedom
will not necessarily implicate the same interests that the Court
sought to protect when it afforded special safeguards to persons

subjected to custodial interrogation."                Howes v. Fields, 565
U.S. 499, 512 (2012).         A witness at a John Doe proceeding is not
subject      to   custodial        interrogation    and    therefore        Miranda
warnings are not required.            Although we do not require Miranda
warnings be given at John Doe proceedings,                we recommend a John
Doe judge address a witness in accordance with Special Materials
12.




     The Wisconsin Judicial Benchbook also encourages the John
Doe judge to advise a witness on the record of their right
against self-incrimination, that their testimony may be used to
support issuance of a warrant, and that they have the right to
consult an attorney before answering questions. See Wis.
Judicial Benchbook CR-48 (6th ed. 2019).

     We note that the John Doe judge here read the script set
forth in SM 12 almost verbatim.


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                                                                          No.   2016AP2058-CR



                                   IV.     CONCLUSION
      ¶36     We    conclude      that   Hanson's          Sixth    Amendment     right    to
confrontation was not violated because his John Doe testimony
regarding Kathy's statement to police was not offered to prove
the   truth       of    the    matter    asserted.           We     also    conclude     that
Hanson's ineffective assistance of counsel claim fails because
the   law    was       unsettled    as     to    whether         Miranda    warnings     were

required at John Doe proceedings.                         Finally, we determine as a
matter      of     first      impression        that      Miranda    warnings      are    not
required at John Doe proceedings.
      By    the     Court.—The     decision          of    the    court    of   appeals    is
affirmed.

      ¶37     SHIRLEY S. ABRAHAMSON, J. withdrew from participation.




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    No.   2016AP2058-CR




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