                                                                 2019 WI 25

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2017AP850-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Joseph B. Reinwand,
                                  Defendant-Appellant.

                            ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED:          March 19, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 18, 2019

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Wood
   JUDGE:               Gregory J. Potter

JUSTICES:
   CONCURRED:           DALLET, J. concurs, joined by ABRAHAMSON, J. and
                        A.W. BRADLEY, J. (opinion filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:


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


       For the plaintiff-respondent, there was a brief filed by
Sopen B. Shah, deputy solicitor general, with whom on the brief
is   Misha        Tseytlin,   solicitor    general,     and    Brad   D.   Schimel,
attorney general. There was an oral argument by Amy Catherine
Miller, assistant solicitor general.
                                                                             2019 WI 25
                                                                      NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.   2017AP850-CR
(L.C. No.    2013CF196B)

STATE OF WISCONSIN                                :            IN SUPREME COURT

State of Wisconsin,

                 Plaintiff-Respondent,                                    FILED
      v.                                                             MAR 19, 2019
Joseph B. Reinwand,                                                     Sheila T. Reiff
                                                                     Clerk of Supreme Court
                 Defendant-Appellant.




      APPEAL from an order of the Circuit Court for Wood County.
Affirmed.


      ¶1         PATIENCE   DRAKE   ROGGENSACK,       C.J.     This     appeal      comes

before      us    on   certification    from   the     court    of    appeals.1          On
October 30, 2014, Joseph B. Reinwand was convicted of first-
degree      intentional      homicide    for   shooting        Dale     Meister,       the
father of his granddaughter.            He was sentenced to life in prison2
without the possibility of release to extended supervision.3

      1State   v.    Reinwand,   No. 2017AP850-CR,                         unpublished
certification (Wis. Ct. App. July 26, 2018).
      2   The Honorable Gregory J. Potter of Wood County presided.
      3   The parties and the sentencing court stated that Reinwand
                                                        (continued)
                                                                      No.   2017AP850-CR



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

     [W]hether the 'forfeiture by wrongdoing' doctrine
     applies at a homicide trial where the declarant is the
     homicide victim, but where the defendant killed the
     declarant to prevent him or her from testifying at a
     separate proceeding.

     . . . .

     [W]hether preventing the declarant from testifying
     must be the defendant's primary purpose for the
     wrongful act that      prevented the declarant from
     testifying in that separate proceeding.
State v. Reinwand, No. 2017AP850-CR, unpublished certification
(Wis. Ct. App. July 26, 2018).
     ¶3   We         conclude          the       following:      first,        Meister's
statements     to    family      and    friends         about   Reinwand       were    not
testimonial;        therefore,     they          do    not   implicate      the       Sixth
Amendment's Confrontation Clause.                     Accordingly, we do not reach
the certified questions regarding the forfeiture by wrongdoing
exception to the right of confrontation.


could potentially have been eligible for "parole" after 20
years.    Under Wisconsin's truth-in-sentencing laws, parole
eligibility is not an option for any person who has committed a
felony in Wisconsin on or after December 31, 1999.    Wis. Stat.
§§ 973.01(1) & (6), 973.014.    However, a person sentenced to
life in prison after December 31, 1999 may, in the discretion of
the sentencing court, become eligible for release to extended
supervision after serving a minimum of 20 years. § 973.014(1g).
We assume all involved were aware of this distinction, and were
simply using the word "parole" as colloquial shorthand to refer
to this sentencing scheme.

     All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.


                                             2
                                                                      No.   2017AP850-CR



      ¶4     Second, the "other acts" evidence of Reinwand's prior
burglary was properly admitted for the purpose of challenging
his asserted memory problems.              Third, Reinwand's counsel was not
ineffective        either    at    trial   or       at   sentencing.        For    these
reasons, we affirm the decision of the circuit court.
                                    I.   BACKGROUND
      ¶5     Reinwand's        daughter      Jolynn       and   the     victim,    Dale
Meister, were the parents of Reinwand's granddaughter, E.M.                          The
couple     ended    their     relationship      in       December   2007.      Meister
requested mediation in Wood County Family Court in January 2008
in   an    effort    to     seek   periods     of    placement      with    E.M.    The
mediation occurred on February 25, 2008, and Meister was awarded

placement every other weekend and on two partial days per week.
Jolynn was unhappy with this placement decision and indicated
that she wanted to go back to court to challenge it.
      ¶6     In the days leading up to the mediation, Reinwand had
told Meister multiple times that he would harm or kill him if he
continued     to    seek     placement     time.         In   discussions    of    these

threats with friends and family members, Meister said he feared
for his life.         He repeatedly told friends and family that if
anything happened to him, people should look to Reinwand.
      ¶7     Meister was found dead in his trailer home on March 4,
2008.      He was shot three times at close range, twice in the face
and once in the chest.             He had been dead for several days by the
time his body was discovered.                  The State interviewed Reinwand
soon afterward but did not file its criminal complaint in this
case until May 2013.
                                           3
                                                                         No.     2017AP850-CR



       ¶8       The case proceeded to jury trial in October 2013.                        The
evidence presented to the jury included, but was not limited to,
the following:         (1) bullets used to kill Meister fired from a
.22 pistol, "most likely" a Bryco-Jennings pistol; (2) Reinwand
owned a pistol matching this description; (3) law enforcement
found       a    .22-caliber      bullet          in     Reinwand's        garage       with
characteristics        matching       those       of    the    bullets    used     to   kill
Reinwand; (4) law enforcement found a grip from a .22 Bryco-
Jennings pistol under the front seat of Reinwand's truck that
appeared to be cut with a "band saw," and there was a band saw
in Jolynn's basement where Reinwand had been staying; (5) Jolynn
said    the      saw   belonged       to    her        father;    (6) another         inmate

testified that Reinwand confessed to committing the homicide;
(7) Reinwand       told      police    he    was       not    "really    arguing      about"
whether he killed Meister, but said that he could not remember
it   because      he   had    memory       problems;         (8) Reinwand       had   choked
Meister and threatened to kill him before; (9) witnesses saw a
silver pickup truck matching the description of Reinwand's truck

at Meister's trailer around the time Meister is thought to have
been    killed; and (10) the trailer                   showed no        signs    of   forced
entry, and the only other key was located at Jolynn's house
where Reinwand had been staying.
       ¶9       In addition to all this evidence, the State introduced
the testimony of Meister's family members and friends regarding
the statements Meister made to them about Reinwand.                             A friend of
Meister testified that Meister had come over to her house for
coffee, and had told her that Reinwand said he "had guns" and
                                              4
                                                                          No.      2017AP850-CR



"could      kill    him     if   he      wanted     to."       Another       close       friend
testified      about      a   conversation          with     Meister      during      one    of
Meister's frequent visits to his home.                       He stated that according
to Meister, Reinwand had told Meister "he was going to shoot him
in the temple and he could get away with it."                         Meister also told
him   that     if    anything         happened      to     Meister,     he      should      tell
Meister's      brother        Ray     that      Reinwand      did   it.         After       this
conversation, he allowed Meister to stay at his home, because
Meister      was    "fearful        of    being      at     [his]     trailer"        due     to
Reinwand's threats.
      ¶10    Meister's pastor testified that Meister was "concerned
for his life" and had told him that "if he came up dead, that

the   police       should     dig     deeper"       because    "[Reinwand]          would    be
behind it."         Reinwand's son stated that Meister met with him at
Arby's to ask his opinion on whether Reinwand would kill him,
and added that "I don't think [Meister] was at ease at all."
Meister's     sister-in-law           testified       that    Meister        had    discussed
Reinwand's threats with her during two separate phone calls, and

that he sounded frightened on both occasions.                             A total of 15
witnesses     offered similar             statements       regarding Meister's              fear
that Reinwand would hurt or kill him.                        These hearsay statements
were admitted over Reinwand's hearsay objection based on the
forfeiture by wrongdoing doctrine.
      ¶11    The circuit court also admitted "other-acts" evidence
of a prior burglary Reinwand committed.                         When law enforcement
interviewed Reinwand after the homicide, he told them he was not
"really     arguing"      that      he    had    killed      Meister,     but      could     not
                                                5
                                                              No.       2017AP850-CR



remember the homicide or a prior burglary he had committed.                       To
challenge this asserted lack of memory, the State introduced a
letter Reinwand had written to his granddaughter in 2012, in
which he admitted to the burglary and described his motive.                      The
letter also was admitted over Reinwand's objection.
     ¶12   Additionally, the circuit court had ruled before trial
that the State's DNA expert could not provide expert testimony
based on 2008 testing standards, but must instead rely on the
updated standards that had been in effect since 2014.                    Under the
2014 standards, the expert could not conclusively state whether
the DNA on the gun grip found under the seat of Reinwand's truck
belonged to Reinwand.         On cross-examination, Reinwand's attorney

asked the DNA expert for her opinion as to whether Reinwand's
DNA was present on seven other items found in Meister's trailer
after the homicide.      It was not.       However, the expert's opinion
on these items was based on the 2008 testing standards.                          The
circuit court held that by asking questions about items tested
under the 2008 standards, Reinwand's attorney had opened the

door to the results of the 2008 DNA test on the gun grip.                        The
jury was therefore allowed to hear that under the outdated 2008
testing    standards,     Reinwand     was        included   as     a     possible
contributor to the DNA found on the gun grip, and that the
probability   of   randomly      selecting    an     individual     who    may    be
included as a possible contributor was 1 in 61,000.
     ¶13   Reinwand     was    convicted     of    first-degree     intentional
homicide, and filed postconviction motions.              He alleges that the
evidence of his prior burglary was improperly admitted and that
                                      6
                                                                                 No.     2017AP850-CR



his counsel was ineffective at trial for opening the door to the
DNA evidence.          He has requested a new trial.                        Alternatively, he
argues       that    his        counsel       was     ineffective          at   sentencing         for
failing       to     request           a     presentence        investigation            (PSI)      or
introduce      more        mitigating          evidence,        and    he       requests      a    new
sentencing hearing.
       ¶14    The     circuit          court     denied        Reinwand's         motions.         The
circuit court first concluded that Meister's statements about
Reinwand were testimonial, but that they were admissible under
the    forfeiture          by    wrongdoing          exception        to    the    Confrontation
Clause.            Under        the        forfeiture     by     wrongdoing            doctrine,     a
defendant      forfeits          his        Sixth    Amendment        right       to    confront     a

witness       when    the        defendant          wrongly     procures        that      witness's
unavailability by conduct designed to prevent the witness from
testifying.          See Giles v. California, 554 U.S. 353 (2008).                                 The

circuit court found that Reinwand had killed Meister to prevent
him from testifying in his possible future custody proceeding
with Jolynn, and that he had therefore forfeited his right to
confront Meister at his own trial.                         The circuit court also held
that the other-acts evidence was properly admitted, and that
counsel's performance was not deficient either at trial or at
sentencing.
       ¶15    The     court           of    appeals      grouped      Meister's          statements
about Reinwand into two categories:                            "(1) statements indicating
that   if     Meister       was        found    dead,     Reinwand         should       be   'looked
into'; and (2) statements telling the listener that Reinwand had
threatened to harm or kill Meister and that Meister was afraid
                                                     7
                                                                        No.      2017AP850-CR



that Reinwand was going to harm him."                       Reinwand, No. 2017AP850-

CR at *1.     The court of appeals explained that the circuit court
had   explicitly         determined      that      the     statements      in    the    first
category     were    testimonial,           implicitly        determined         that       the
statements in the second category were testimonial, and admitted
both categories of statements under the forfeiture by wrongdoing
doctrine.      The court of appeals then certified the appeal to
this court to address the forfeiture by wrongdoing issue.
      ¶16    We accepted the             certification,        and   without       reaching
the forfeiture by wrongdoing issue, we affirm the decision of
the circuit court denying Reinwand's postconviction motions.
                                   II.     DISCUSSION

                             A.    Standard of Review
      ¶17    This case requires us to determine whether Reinwand's
Confrontation       Clause      right     was      violated    by    the    admission        of
Meister's statements, determine whether other-acts evidence was
properly    admitted,       and    analyze         an    ineffective       assistance        of
counsel claim.           Whether the admission of a statement violates
the defendant's Confrontation Clause right is "a question of
constitutional law subject to independent review."                                State v.
Nieves,     2017    WI    69,     ¶15,    376      Wis. 2d    300,    897       N.W.2d      363
(citations omitted).            "'We generally apply United States Supreme
Court precedents when interpreting' the Sixth Amendment and the
analogous Article 1, Section 7 of the Wisconsin Constitution."
Id.    (citations          omitted).               Other     decisions          about       the
admissibility       of    evidence       are    discretionary        decisions         of   the
circuit court, and are reviewed under the erroneous exercise of
                                               8
                                                                           No.       2017AP850-CR



discretion standard.             State v. Franklin, 2004 WI 38, ¶6, 270

Wis. 2d 271, 677 N.W.2d 276.
     ¶18    Ineffective         assistance           of    counsel        claims         "present
mixed     questions       of    fact     and       law."          State       v.     Alexander,
2015 WI 6, ¶15, 360 Wis. 2d 292, 858 N.W.2d 662.                               "We uphold a
circuit     court's       factual      findings           unless    they           are    clearly
erroneous."          Id.       (citation       omitted).             "However,            whether
counsel's performance was deficient and whether a defendant was
prejudiced    thereby,         present    questions          of    law    that       we        review
independently."       Id. (citation omitted).
             B.   Testimonial and Nontestimonial Statements
     ¶19    The Confrontation Clause of the Sixth Amendment to the

United     States     Constitution         states         that     "[i]n       all       criminal
prosecutions,       the    accused       shall       enjoy    the    right . . . to               be
confronted    with     the     witnesses       against       him."4           As    the        United
States     Supreme    Court      has     explained,          understanding               how    this
clause     operates       requires       an        understanding         of        the    context
surrounding its creation.              See Crawford v. Washington, 541 U.S.
36, 38 (2004).
     ¶20    Under English common law, "[j]ustices of the peace or
other officials examined suspects and witnesses before trial.
These examinations were sometimes read in court in lieu of live
testimony."       Id. at 43.           When defendants demanded to confront

     4 Article I, Section 7 of the Wisconsin Constitution makes
substantially the same guarantee.    As mentioned earlier, we
generally apply United States Supreme Court precedent when
interpreting these clauses.


                                               9
                                                                        No.    2017AP850-CR



these witnesses in court, they often were refused.                              Id.        The

inability      to    challenge         a    witness's       incriminating      statements
raised serious concerns about their reliability, which called
into question the legitimacy of some trials.                          See, e.g., id. at
44 (discussing the notorious treason conviction and execution of
Sir Walter Raleigh based on unconfronted hearsay testimony).
       ¶21    The Confrontation Clause was designed to prevent this
type of abuse, prohibiting "the use of ex parte examinations as
evidence against the accused."                    Id. at 36.      The clause's purpose
is    to   ensure     the    reliability           of     testimony   by     allowing      the
accused to challenge a witness's statements "in the crucible of
cross-examination."              Id. at 61; State v. Zamzow, 2017 WI 29,

¶42, 374 Wis. 2d 220, 892 N.W.2d 637.
       ¶22    On the basis of this history and purpose, the Supreme
Court has clarified that the Confrontation Clause applies only
to    statements      that       are   testimonial          in   nature.       See,    e.g.,
Michigan      v.    Bryant,      562       U.S.    344,    354   (2011).      Testimonial
hearsay statements are admissible against a criminal defendant
only if the witness is unavailable and the defendant had a prior
opportunity to cross-examine the witness.                        Crawford, 541 U.S. at
59.
       ¶23    Statements that are not made as substitutes for trial
testimony, such as "casual remark[s] to an acquaintance," do not
raise      similar     concerns            about       reliability     and    legitimacy.
Bryant,      562    U.S.    at    354.        Such      statements    therefore       do   not
implicate the Confrontation Clause, id., and are admissible so
long as the rules of evidence permit their admission.                                      See,
                                                  10
                                                                    No.     2017AP850-CR



e.g., Nieves, 376 Wis. 2d 300, ¶29 ("'the admissibility of a

[non-testimonial] statement is the concern of state and federal
rules     of   evidence,      not    the    Confrontation     Clause'")          (quoting
Bryant, 562 U.S. at 359).5
      ¶24      A statement is testimonial only if "in light of all
the circumstances, viewed objectively, the 'primary purpose' of
the conversation was to 'create an out-of-court substitute for
trial testimony.'"         Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015)
(citations        omitted).          This   "primary      purpose"        test    is    an
objective test.          "[T]he relevant inquiry is not the subjective
or actual purpose of the individuals involved in a particular
encounter, but rather the purpose that reasonable participants

would have had, as ascertained from the individuals' statements
and     actions    and    the    circumstances       in    which     the     encounter
occurred."      Bryant, 562 U.S. at 360.
      ¶25      The Supreme Court has set forth four relevant factors
used to determine whether a statement is testimonial:                            "(1) the
formality/informality           of   the    situation     producing       the     out-of-
court     statement;     (2) whether        the   statement    is    given        to   law
enforcement or a non-law enforcement individual; (3) the age of


      5Reinwand does not suggest any grounds other than the
Confrontation Clause for excluding Meister's statements.     For
this reason, our review regarding Meister's statements is
limited to whether their admission violated the Confrontation
Clause.   See State v. Mattox, 2017 WI 9, ¶4 n.3, 373 Wis. 2d
122, 890 N.W.2d 256 (limiting review to whether admission of
evidence violated the Confrontation Clause when defendant raised
no other grounds for exclusion).


                                            11
                                                                                      No.      2017AP850-CR



the declarant, and (4) the context in which the statement was
given."        State v. Mattox, 2017 WI 9, ¶32, 373 Wis. 2d 122, 890

N.W.2d 256 (interpreting Clark, 135 S. Ct. at 2180-82).                                              In this
case,    an        analysis       of     these       four      factors          demonstrates            that
Meister's          statements          to    his      friends            and    family          regarding
Reinwand were nontestimonial.
      ¶26      The       first    factor        to    consider            is    the       formality       or
informality of the situation in which the out-of-court statement
was made.          The more formal the situation, the more likely it is
to        be            testimonial.                 "'A            formal                station-house
interrogation' . . . is                  more        likely         to     provoke          testimonial
statements,         while     less       formal       questioning              is    less      likely     to

reflect        a    primary       purpose          aimed       at        obtaining          testimonial
evidence against the accused."                       Id. at 2180 (citations omitted).
      ¶27      In this case, Meister's statements all were given in
informal situations.               He expressed his fears to his friends and
family in living rooms, kitchens, dining rooms, and even at an
Arby's.            In     stark        contrast       to    the          "formal          station-house
interrogation"            contemplated          in    Clark,         Meister's            conversations
with family and friends were not interrogations at all.                                                 Even
his conversation with his pastor occurred in the pastor's office
at his church, where Meister regularly visited after attending
services       to       discuss    what      was        going       on     in       his     life.        The
informality          of    the     situations           that        gave       rise       to    Meister's
statements about Reinwand suggest that they were not made for
the     primary         purpose         of   creating           a        substitute            for     trial
testimony.
                                                   12
                                                                          No.     2017AP850-CR



       ¶28     The second factor is whether the statement is given to
law enforcement or a non-law enforcement individual.                              While the
United States Supreme Court has "stopped short of adopting a
'categorical rule'" that only statements made to law enforcement
officers can be testimonial, the Court has held that "statements
to persons other than law enforcement officers were 'much less
likely    to    be     testimonial      than       statements      to    law     enforcement
officers.'"           Mattox, 373 Wis. 2d 122, ¶34 (citing Clark, 135

S. Ct. at 2181).             In this case, none of Meister's statements
about Reinwand were made to law enforcement officers, nor did he
seek to contact law enforcement about his concerns.                             This factor
suggests       that    his    statements         were    not   made     for     the   primary

purpose of creating a substitute for trial testimony.
       ¶29     The third factor is the declarant's age.                         This factor
was relevant in Clark because the declarant was three years old.
Clark, 135 S. Ct. at 2177.                  "Statements by very young children
will     rarely,      if     ever,    implicate         the    Confrontation          Clause,"
because      very     young       children    "'have       little       understanding      of
prosecution'" and would not likely "intend [their] statements to
be a substitute for trial testimony."                          Id. at 2182.           While a
statement is unlikely to be testimonial if it is made by a young
child, it does not follow that a statement is likely to be
testimonial simply because it is made by an adult.                              Rather, that
the    declarant       is    an    adult    is     a    neutral    factor,       making   the
statement neither more nor less likely to be testimonial.                               Here,
the declarant was an adult, so that factor does not help us
determine      the     statement's         primary      purpose.        See     Mattox,   373
                                              13
                                                                          No.    2017AP850-CR



Wis. 2d 122, ¶32 n.7 (explaining that because the declarant in
that case was an adult, the age of the declarant was not helpful
in    determining         whether        the        declarant's        statements          were
testimonial).
      ¶30    The fourth and final factor is the context in which
the   statement      was    given.         "Courts         must   evaluate       challenged
statements      in        context,"       which           includes     evaluating          the
questioner's identity, the relationship between the parties to
the   conversation,          and     the        circumstances          surrounding         the
conversation.        See Clark, 135 S. Ct. at 2182.                        In this case,

Meister's statements all were made during conversations with his
family and friends.              The witnesses reported that Meister was

concerned, stressed, and             agitated            during   these    conversations,
and that he appeared to be genuinely frightened.                            This demeanor
suggests    that     he    was     expressing        genuine      concern       and   seeking
advice, rather than attempting to create a substitute for trial
testimony.
      ¶31    Additionally, Meister spoke to at least 15 friends and
family members about Reinwand's threats, but chose not to speak
with any law enforcement officers.                         Further, when one of his
friends     suggested       that    he    go    to       the   police,     he    explicitly
refused and said "I'm a Meister . . . we can handle things."                                He
told multiple witnesses that if anything happened to him, they
should tell his brother, rather than the police, that it was
Reinwand.      The        only   statement          in    which   he    brought       up   law
enforcement was during the conversation with his pastor, when he
said that the police should "dig deeper" if he died, because it
                                               14
                                                                               No.   2017AP850-CR



would "look staged."          The mere mention of law enforcement is not
enough to make this statement testimonial given the informality
and overall context of the conversation.                             The context in which
Meister's       statements    were      made       suggests             that    their     primary
purpose was not to create a substitute for trial testimony.
     ¶32    For the foregoing reasons, an analysis of the Clark

factors    demonstrates       that      all       of       Meister's       statements          about
Reinwand to his friends and family were nontestimonial.                                   Because
these statements do not implicate the Confrontation Clause, we
do not address the certified questions regarding the forfeiture
by wrongdoing exception to the right of confrontation.
                             C.   Other Acts Evidence

     ¶33    Reinwand next argues that the circuit court improperly
admitted "other-acts" evidence when it permitted the State to
introduce a letter he had written to his granddaughter, in which
he   admitted      to     committing          a    prior           non-violent        burglary.
Evidence    of    other    crimes,      wrongs,             or    acts    committed       by     the
defendant   is admissible at              trial        only if it              satisfies three
requirements:       (1) "it is offered for a permissible purpose,"
(2) "it    is    relevant,"       and     (3) "its               probative      value     is    not
substantially       outweighed       by    the             risk    or    danger      of   unfair
prejudice."       State v. Hurley, 2015 WI 35, ¶57, 361 Wis. 2d 529,
861 N.W.2d 174 (citations omitted).
     ¶34    Regarding      the    permissible               purpose       requirement,         Wis.
Stat.     § 904.04(2)(a)          contains             a     non-exhaustive             list     of
permissible purposes for introducing evidence of other crimes,
wrongs, or acts committed by the defendant.                              We have recognized
                                           15
                                                                       No.    2017AP850-CR



that pursuant to this statute, "[t]he purposes for which other-
acts evidence may be admitted are 'almost infinite.'"                           State v.

Marinez,      2011   WI    12,    ¶25,     331    Wis. 2d     568,    797    N.W.2d    399.
There    is    a    notable      limitation,       however:          evidence    "is    not
admissible to prove the character of a person in order to show
that the person acted in conformity therewith."                        § 904.04(2)(a).
In other words, the State may not seek to prove a defendant's
propensity to commit crimes by showing that the defendant has
committed crimes before.
      ¶35     In this case, the circuit court did not erroneously
exercise      its    discretion      by    concluding       that     the    evidence    was
offered for a permissible purpose.                   When he was interviewed by

law   enforcement         officers   after        Meister's    death,       Reinwand    was
asked about his involvement in the killing and was made aware of
Meister's     statements to his friends                   and family members.            He
admitted that he was not "really arguing about" whether he had
killed   Meister,         but    claimed    that     he    could     not    remember    the
homicide, nor a prior burglary he had committed, due to his
memory problems.
      ¶36     In order to rebut his claim of lack of memory, the
State introduced a letter he had written to his granddaughter in
2012.       In the letter, he explains that the victim "owed him
money and did not pay it back," so he "got pissed off and broke
into his house and stoled (sic) some stuff."                           The letter was

introduced to challenge his asserted lack of memory.                            An attack
on credibility is a permissible purpose.                        The letter was not
introduced as character or propensity evidence in violation of
                                             16
                                                                No.     2017AP850-CR



Wis. Stat. § 904.04(2)(a); the State did not introduce it for
the purpose of showing that because he previously burglarized
his neighbor's house, he is more likely to have killed Meister.
       ¶37    The second requirement, relevance, is satisfied if the
proffered evidence has "any tendency to make the existence of
any fact that is of consequence to the determination of the
action more probable or less probable than it would be without
the evidence."      Wis. Stat. § 904.01.             In this case, the circuit
court did not erroneously exercise its discretion by concluding
that    the    evidence   was   relevant        to    Reinwand's      credibility.
Stated otherwise, it tends to cast doubt on Reinwand's claimed
lack of memory by suggesting that he did remember his prior

burglary.
       ¶38    The third and final requirement is that the evidence's
"probative value of the evidence is substantially outweighed by
the risk or danger of unfair prejudice."                 Hurley, 361 Wis. 2d,

¶58; Wis. Stat. § 904.03.

       Offered evidence runs the risk of unfair prejudice
       when it has a tendency to influence the outcome by
       improper means or if it appeals to the jury's
       sympathies, arouses its sense of horror, provokes its
       instinct to punish, or otherwise causes a jury to base
       its decision on something other than the established
       propositions in the case.
State   v.    Muckerheide,   2007   WI     5,   ¶33,    298   Wis. 2d    553,   725
N.W.2d 930.      In this case, the circuit court did not erroneously
exercise its discretion by concluding that the probative value
of the evidence was not substantially outweighed by the risk or
danger of unfair prejudice.         The crime he admitted in his letter


                                      17
                                                                                No.       2017AP850-CR



was a non-violent burglary of an unoccupied home.                                     The circuit
court reasonably concluded that the letter would not unfairly
arouse    a    jury's     sense    of    horror         or    provoke       its       instinct       to
punish Reinwand.           For the foregoing reasons, the circuit court
did     not    erroneously         exercise           its    discretion           by       admitting
evidence of Reinwand's prior burglary.
                     D.    Ineffective Assistance at Trial
      ¶39      Next, Reinwand claims his counsel was ineffective at
trial    for    opening      the       door      to    the    results       of        a    DNA     test
conducted under the now-outdated 2008 testing standards, which
identified him as a possible contributor to a DNA mixture on the
gun grip found under the front seat of his truck.                                     The right to

effective       assistance        of    counsel         is    implicit          in        the     Sixth
Amendment's      guarantee        of    the      right       to    counsel.               See,    e.g.,

Strickland      v.   Washington,         466      U.S.       668,    686    (1984)          ("'[T]he
right to counsel is the right to the effective assistance of
counsel.'" (citation omitted)).
      ¶40      We use the two-prong "Strickland test" to determine
whether counsel was ineffective.                       State v. Maday, 2017 WI 28,
¶54, 374 Wis. 2d 164, 892 N.W.2d 611.                             "Under the first prong,
the     defendant         must    show        that      counsel's          performance              was
deficient."       Id.      This requires the defendant to prove that his
counsel       "'made      errors       so     serious         that       counsel            was     not
functioning as the 'counsel' guaranteed the defendant by the
Sixth    Amendment.'"            State      v.    Starks,         2013     WI    69,       ¶54,     349
Wis. 2d 274, 833 N.W.2d 146 (quoting Strickland, 466 U.S. at
687).
                                                 18
                                                                                   No.    2017AP850-CR



      ¶41    In        determining      whether              counsel's          performance           was
deficient,        we     must    make        every       effort          to      "eliminate           the
distorting        effects         of        hindsight,              to        reconstruct             the
circumstances of counsel's challenged conduct, and to evaluate
the     conduct         from     counsel's             perspective            at         the     time."
Strickland, 466 U.S. at 689.                      For this reason, we are "'highly

deferential' to counsel's strategic decisions" such that "where
a lower court determines that counsel had a reasonable trial
strategy,       the      strategy       'is        virtually          unassailable               in    an
ineffective        assistance          of     counsel          analysis.'"                 State        v.
Breitzman, 2017 WI 100, ¶65, 378 Wis. 2d 431, 904 N.W.2d 93
(citations omitted).

      ¶42    To satisfy the second prong of the Strickland test,
"the defendant must show that he was prejudiced by counsel's
deficient       performance."                 Maday,          374        Wis. 2d          164,        ¶54;
Strickland, 466 U.S. at 687.                      Prejudice requires the defendant
to show that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would    have     been     different."                 Id.    at    694.            "A    reasonable
probability is a probability sufficient to undermine confidence
in the outcome."          Id.
      ¶43    A defendant must prove both elements to succeed in an
ineffective assistance claim.                     Id. at 687.            Therefore, "[i]f the
defendant     fails       to    prove       one    element,         it     is      unnecessary          to
address     the    other."        State       v.       Floyd,       2017      WI    78,        ¶37,    377
Wis. 2d 394, 898 N.W.2d 560.


                                                  19
                                                                   No.     2017AP850-CR



       ¶44    Assuming without deciding or implying that counsel's
performance was deficient with regard to the DNA testimony, we
conclude that Reinwand was not prejudiced by counsel's alleged
error.         First,     regardless       of    whether     the    expert          could
conclusively state            that Reinwand's DNA was found on                 the gun
grip, the grip was found under the front seat of Reinwand's
truck.       Further, the grip came from a pistol identified by at
least one witness as belonging to Reinwand.                   A jury reasonably
could have concluded that the grip belonged to Reinwand without
the DNA evidence.
       ¶45    Second, the jury heard that the 2008 methods used to
test the DNA on the gun grip were outdated.                   Reinwand's counsel

elicited an admission from the State's DNA expert that the 2014
methods,      which     produced    an    inconclusive       result       as   to    the
presence of Reinwand's DNA on the gun grip, were better methods
to use in this situation.
       ¶46    Third,     as     previously      discussed,    the        evidence     of
Reinwand's guilt was overwhelming even in the absence of the DNA

testimony.       The strength of the State's case led Reinwand to
make   the    following       admission    regarding   his    counsel's         alleged
trial error:

       Defendant Reinwand does not contend this error in
       itself is sufficient to warrant a new trial. However,
       this error, coupled with the errors outlined above,
       provides further support for Reinwand's motion for a
       new trial.
We   have    already     concluded,       however,   that    all    of     the      other
evidence challenged by Reinwand was properly admitted.                         There is


                                          20
                                                                   No.    2017AP850-CR



therefore      no     reasonable   probability      that,    but    for    counsel's
alleged error regarding the DNA testimony, the result of the
trial would have been different.                  For this reason, Reinwand's
claim of ineffective assistance of counsel at trial fails.                        See

Floyd, 377 Wis. 2d 394, ¶37 ("If the defendant fails to prove
one element, it is unnecessary to address the other.").
                 E.    Ineffective Assistance at Sentencing
     ¶47       Reinwand alternatively argues that he is entitled to a
new sentencing hearing because his attorney was ineffective at
sentencing.         Reinwand's conviction for first-degree intentional
homicide required a mandatory life sentence; the only potential
issue involves extended supervision, for which he could have

become     eligible      within    20    years.      He   argues     that    counsel
performed deficiently by providing only a cursory argument for
extended supervision eligibility, by failing to include evidence
of mitigating circumstances6 such as his post-traumatic stress
disorder or his love of his grandchildren, and by failing to
request    a    PSI.      Assuming      without   deciding    or    implying     that
counsel's performance at sentencing was deficient, we conclude
that Reinwand was not prejudiced by counsel's alleged errors.



     6 A mitigating circumstance is "[a] fact or situation that
does not bear on the question of a defendant's guilt but that
may bear on a court's possibly lessening the severity of its
judgment."    Circumstance, Black's Law Dictionary (10th ed.
2014). An example of a mitigating circumstance is a defendant's
lack of a prior criminal record. See State v. Lewandowski, 122
Wis. 2d 759, 764, 364 N.W.2d 550 (Ct. App. 1985).


                                          21
                                                                    No.       2017AP850-CR



       ¶48    Regarding the PSI, there is no reasonable probability
that    requesting        a    PSI   would    have       resulted   in    a    different
sentence.      The sentencing court had already reviewed a 2011 PSI
from    Reinwand's        prior      burglary       conviction.          Additionally,
counsel pointed out that a new PSI in this case would elicit
unfavorable testimony and would not help Reinwand's cause.
       ¶49    Likewise, there is no reasonable probability that the
recitation     of   Reinwand's        suggested       mitigating     evidence       would
have resulted in a different sentence.                    The sentencing court was
aware of much of this allegedly mitigating evidence.                            The same
sentencing court previously had presided over two "John Doe"
investigations            involving        Reinwand,         had     reviewed          the

aforementioned 2011 PSI, and had presided over the trial that
gave rise to this conviction.                     Reinwand's counsel stated that
"the court knew more about my client in that case than any other
case I've handled because of the length and breadth of the John
Doe investigation, the pretrial litigation, the trial."                                The
sentencing court already knew, for example, the full extent of

Reinwand's criminal history, his claimed memory issues, and his
love for his family.              Repeating this information at sentencing
would not have affected the outcome.
       ¶50    Additionally, some of Reinwand's proffered mitigating
factors      were   not       considered     by    the    sentencing     court    to    be
mitigating factors at all.                 Regarding his memory issues, the
sentencing court stated that                 he "appeared      to use the         memory
issue as an excuse" and that it was "not a mitigating factor."
The alleged post-traumatic stress disorder was not a mitigating
                                             22
                                                                        No.    2017AP850-CR



factor.      While Reinwand claimed it was caused by his wife's
suicide, the sentencing court knew from a John Doe investigation
that     Reinwand     was    going     to      be     charged      with       first-degree
intentional homicide for killing his wife.                        The sentencing court
explained that "[t]o argue that you have a mental disorder from
the death of your wife, the death that you caused is not a
mitigating        factor    but    rather        an       aggravating      one."       The
sentencing court also considered Reinwand's love for his family,
but concluded that it was outweighed by the fact that he had
killed    Meister.         That   is, he       had intentionally           deprived his
grandchild of her father.
       ¶51   Finally,       the   facts     of      the    case    were    horrific——the

sentencing        court    described      it     as       "a   premeditated,       thought
out . . . [a]lmost an execution-type" killing.                            The sentencing
court made clear that due to the nature of the crime, Reinwand
would have been sentenced to life without the possibility of
release      to     extended      supervision             regardless      of     counsel's
performance at sentencing:

       When a person shoots another human being three times,
       two at point-black range, it's obvious that they are
       doing so with a cold and depraved heart and that type
       of person cannot be put back out into the community at
       any time.

       . . . .

       I would like to conclude by stating based upon the
       facts of this case, more specifically how the victim
       was killed, there was nothing the defendant's trial
       attorney could have argued that would have swayed me
       into not ordering life without parole.



                                            23
                                                                          No.   2017AP850-CR



For all these reasons, Reinwand was not prejudiced by counsel's
alleged     errors       at   sentencing.             His    claim    of        ineffective
assistance of counsel at sentencing therefore fails.                            See Floyd,

377   Wis. 2d     394,     ¶37     ("If   the     defendant       fails    to    prove   one
element, it is unnecessary to address the other.").
                                   III.     CONCLUSION
      ¶52   We        conclude      the      following.             First,       Meister's
statements       to    family      and    friends         about   Reinwand       were    not
testimonial;          therefore,      they      do    not     implicate         the     Sixth
Amendment's Confrontation Clause.                    Accordingly, we do not reach
the certified questions regarding the forfeiture by wrongdoing
exception to the right of confrontation.

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




                                             24
                                                                        No.    2017AP850-CR.rfd


       ¶54    REBECCA FRANK DALLET, J.                    (concurring).         I agree with
the majority that the "other acts" evidence of Joseph Reinwand's
prior burglary was properly admitted and that Reinwand's counsel
was not ineffective at trial or at sentencing.                             However, I write
separately on the issues surrounding Reinwand's Sixth Amendment
right to confrontation.
       ¶55    The majority concludes that all of the statements made
by    Dale   Meister       were   not    testimonial            and therefore       does not
reach the certified questions.                      I agree with the majority that

almost all of the statements are nontestimonial.                                However, the
statement Meister made to Pastor Martin Baur is testimonial and
therefore         implicates       Reinwand's            Sixth      Amendment      right        to
confront the declarant.              I therefore reach the issues certified
by    the    court    of    appeals:        (1)          "whether    the      'forfeiture       by
wrongdoing'        doctrine       applies      at    a     homicide     trial      where     the
declarant is the homicide victim, but where the defendant killed
the    declarant      to    prevent      him        or    her    from   testifying         at    a

separate proceeding"; and (2) "whether preventing the declarant
from testifying must be the defendant's primary purpose for the
wrongful act that prevented the declarant from testifying in
that separate proceeding."               State v. Reinwand, No. 2017AP850-CR,
unpublished         certification         (Wis.          Ct.     App.   July       26,     2018)
(emphasis in original).
       ¶56    I     conclude      that    for       the     forfeiture        by   wrongdoing
doctrine      to apply,        the defendant             must intend       to prevent the
declarant from testifying at a proceeding against the defendant,
whether      that    proceeding      is     separate           or   otherwise.           Because

                                                1
                                                                   No.       2017AP850-CR.rfd


Meister, the declarant in this case, would not have testified in
a proceeding against Reinwand, the defendant, the forfeiture by
wrongdoing doctrine does not apply.                  I further conclude that in
light of the overwhelming evidence against Reinwand, including
14 other witnesses who testified regarding Meister's fear that
Reinwand would harm or kill him, the circuit court's error in
admitting Meister's statement to Pastor Baur was harmless.
                                 A. Testimonial Statements
      ¶57    I begin with the question of whether the statements

made by Meister were testimonial.                   The Sixth Amendment to the
United      States      Constitution         provides:            "In        all     criminal
prosecutions,        the    accused    shall       enjoy    the    right . . . to          be
confronted with the witnesses against him . . . ."                                 The United
States Supreme Court has clarified that the Confrontation Clause
applies     to   statements that        are testimonial in               nature.         See,

e.g., Michigan v. Bryant, 562 U.S. 344, 354 (2011).                                Statements
are considered testimonial when the "primary purpose" of the

conversation      was      to    "creat[e]    an    out-of-court         substitute       for
trial testimony."           Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015)
(quoted source omitted). The Confrontation Clause generally bars
the   use    of      testimonial      statements         unless      the       witness     is
unavailable and the defendant had a prior opportunity for cross-
examination.         Crawford v. Washington, 541 U.S. 36, 54 (2004).
The   Crawford     court        articulated      three     classes      of    "testimonial
statements," only one of which is applicable to the statements
at issue here:          "'statements that were made under circumstances
which would lead an objective witness reasonably to believe that

                                             2
                                                                               No.    2017AP850-CR.rfd


the statement would be available for use at a later trial.'"
Id. at 52 (quoted source omitted).1

       ¶58       In        Clark,      the    United      States      Supreme        Court    recently
affirmed that statements to persons other than law enforcement
officers are subject to the Confrontation Clause.                                     Clark, 135 S.
Ct. at 2180.                The United States Supreme Court held that for a
statement to fall within the Confrontation Clause, the "primary
purpose" of the statement must be testimonial.                                       Id.     The Court
emphasized            that       in    determining         the     "primary          purpose"      of    a

statement,             a     court       must       consider          all    of       the     relevant
circumstances.               Id. (quoting Bryant, 562 U.S. at 369).                            Factors

the    circuit             court       must    consider       include        the      formality         or
informality            of     the      situation       and    the      context        in    which       the
statement is made, including whether the statement is made to
someone          who        is     "principally           charged       with      uncovering         and
prosecuting criminal behavior."                           Clark, 135 S. Ct. at 2182.                    The
question at the heart of the inquiry is whether an ordinary

person in the position of the declarant would have anticipated
that       the    statement            would    be     used      to    establish        evidence         to
prosecute the defendant.                      See Bryant, 562 U.S. at 357, n.3.
       ¶59       Almost          all     of     the       statements        Meister         made    were
nontestimonial:                  they        were   made     to    family      and      friends,         in
informal settings, and related generally to Meister's fears that


       1
       The two other classes of statements are "ex parte in-court
testimony or its functional equivalent" and "extrajudicial
statements . . . contained in formalized testimonial materials."
Crawford v. Washington, 541 U.S. 36, 51-52 (2004).


                                                      3
                                                                              No.   2017AP850-CR.rfd


Reinwand would harm or kill him.                      However, one statement stands
apart from the rest.                  At trial, Pastor Baur testified about a
statement Meister made in the time leading up to the mediation
between      Meister       and     Reinwand's        daughter      over         visitation            with
their daughter, Reinwand's granddaughter.                          Pastor Baur testified
that during a visit at the church, Meister told him "that if he
[Meister]         came   up      dead,    that       the    police        should          dig    deeper
because      it     would      look      staged."           Pastor    Baur           said       Meister
provided the name "Joe Reinwand" and said that "Joe would be

behind it."
       ¶60     In determining the primary purpose of the conversation
at issue in Clark, the United States Supreme Court focused on

whether the declarant knew that the statement would be used to
arrest       or    punish      the      defendant          and   whether            the    declarant
intended his statement to be used by the police or prosecutors.
Clark, 135 S. Ct. at 2181.                    Unlike the other statements Meister
made that expressed fear of death or bodily injury at the hands

of Reinwand, Meister told Pastor Baur to go to the police so
that they could investigate and subsequently prosecute Reinwand
for Meister's murder.                  Meister also instructed Pastor Baur to
tell     the      police      it      would   look        staged     so       that        they    would
investigate        fully      and      "dig   deeper."           Although           it    was     not   a
formal complaint to the police, Meister sought out his pastor,
someone      who    could        be    trusted       to    deliver        a     message          to   law
enforcement.         The statement had a primary purpose——to be used as
evidence to prosecute Reinwand for Meister's death.                                         The fact
that Meister himself did not go to police is inapposite.                                          It is

                                                 4
                                                        No.   2017AP850-CR.rfd


clear from the numerous statements made to family and friends
that Meister genuinely feared that Reinwand would harm or kill
him.    As in Jensen, where this court determined that a letter

and voicemail messages intended for the police were testimonial,
the statement made to Pastor Baur was a statement intended to be
repeated to the police for future prosecution.           State v. Jensen,
2007 WI 26, ¶¶30-31, 299 Wis. 2d 267, 727 N.W.2d 518.                Meister
instructed Pastor Baur to go to the police and tell them that
Reinwand had committed homicide.

                           B. Forfeiture by Wrongdoing
       ¶61   Having determined that the statement to Pastor Baur is
testimonial, I next turn to whether Reinwand's Sixth Amendment
rights were violated by the admission of Meister's statement to
Pastor Baur.       In Giles v. California, 554 U.S. 353, 361 (2008),

the United States Supreme Court held that a defendant forfeits
his    Sixth Amendment     right   to confrontation when       he   not    only
prevents a witness from testifying but also intended to prevent

that witness from testifying.          See also State v. Baldwin, 2010
WI App 162, ¶¶37-39, 330 Wis. 2d 500, 794 N.W.2d 769.
       ¶62   The   issue   here    involves   the   requirement     that   the
defendant intended to prevent the witness from testifying.                 The
State cites to United States v. Gray, 405 F.3d 227, 241 (4th
Cir. 2005), for the general proposition that the forfeiture by
wrongdoing exception applies "without regard to the nature of
the charges at the trial in which the declarant's statements are
offered."     The State further asserts that several federal courts
of appeals have applied the forfeiture by wrongdoing exception

                                       5
                                                                       No.    2017AP850-CR.rfd


in   cases where the murder that                      made the witness          unavailable
occurs     before the other              proceedings      have       begun.         See, e.g.,

United States v. Stewart, 485 F.3d 666, 672 (2d Cir. 2007);
United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996).
      ¶63       Even      if   this      court    accepts      the    premise        that   the
mediation between Meister and Reinwand's daughter would result
in future court proceedings, those proceedings would be between
Meister and Reinwand's daughter.                      Reinwand would not be a party
in those proceedings.                 The State provides no support for the

proposition that the forfeiture by wrongdoing doctrine applies
where the proceeding in which the declarant is made unavailable
is   not    one        where    the      declarant      would     testify      against      the
defendant.           In    Gray,      the    Fourth     Circuit      concluded       that   the

forfeiture by wrongdoing doctrine applied when the defendant's
wrongdoing       "was      intended         to,   and   did,    render        the    declarant
unavailable as a witness against the defendant."                             Gray, 405 F.3d
at 241 (emphasis added).                    "The common-law forfeiture rule was

aimed      at     removing         the      otherwise      powerful          incentive      for
defendants to intimidate, bribe, and kill the witnesses against
them——in other words, it is grounded in 'the ability of courts
to protect the integrity of their proceedings.'"                                    Giles, 554
U.S. at 372 (emphasis added) (quoting Davis v. Washington, 547
U.S. 813, 834 (2006)).                Because Meister would not have testified
in a proceeding against Reinwand, the forfeiture by wrongdoing
doctrine does not apply.                  Therefore, the admission of Meister's
statement       to     Pastor    Baur       violated    Reinwand's       Sixth       Amendment
right to confrontation.

                                                  6
                                                                        No.    2017AP850-CR.rfd


     ¶64      Because I conclude that the forfeiture by wrongdoing
doctrine does not apply, I decline to reach the second certified
issue.     However, I note that the United States Supreme Court has
never required that preventing a declarant from testifying in a
separate proceeding be the primary purpose for the wrongful act

that prevented the declarant from testifying, and there is no
support for that assertion in the case law.
                                 C.    Harmless Error
     ¶65      The     determination          that    the    admission          of   Meister's

statement       to    Pastor   Baur      violated          Reinwand's          constitutional
right    to   confrontation       does       not     end    the    inquiry.         State       v.

Williams, 2002 WI 118, ¶2, 256 Wis. 2d 56, 652 N.W.2d 391.
Instead, I apply a harmless error analysis.                              Id.      "[B]efore a
federal constitutional error can be held harmless, the court
must be able to declare a belief that it was harmless beyond a
reasonable      doubt."        Chapman        v.    California,          386    U.S.     18,    24
(1967).       This court has articulated several factors to aid in

the harmless error analysis, including:                           the frequency of the
error;    the    importance       of    the        erroneously         admitted     evidence;
whether       other     evidence        corroborates              or     contradicts           the
erroneously admitted evidence; whether other untainted evidence
duplicates the erroneously admitted evidence; the nature of the
defense;      and the nature           and    overall       strength       of the        State's
case.     See State v. Stuart, 2005 WI 47, ¶41, 279 Wis. 2d 659,
695 N.W.2d 259.
     ¶66      The     evidence    presented           against          Reinwand     at    trial
included nontestimonial statements that Meister made to 14 other

                                               7
                                                             No.    2017AP850-CR.rfd


individuals     regarding    threats        that    Reinwand       had     made     and
Meister's fear that Reinwand was going to harm or kill him.
These   statements     duplicated      the    inadmissible         statement      that
Meister made to Pastor Baur.            Moreover, there was overwhelming
evidence   to    convict     Reinwand,       including      physical        evidence
linking him to the murder weapon and a similar bullet, as well
as Reinwand's confession to the police.               In light of all of the
evidence   admitted     at   trial,     I    conclude     that      the    erroneous
admission of Meister's statement to Pastor Baur was harmless

beyond a reasonable doubt.
     ¶67   For the foregoing reasons, I concur.
     ¶68   I    am   authorized   to   state       that   Justices        SHIRLEY    S.
ABRAHAMSON and ANN WALSH BRADLEY join this concurrence.




                                        8
    No.   2017AP850-CR.rfd




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