                                                                      2014 WI 124

                  SUPREME COURT              OF    WISCONSIN
CASE NO.:                2012AP1818-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Ramon G. Gonzalez,
                                   Defendant-Appellant-Petitioner.



                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                           (Reported at 349 Wis. 2d 789, 837 N.W.2d 178)
                                    (Ct. App. 2013 – Unpublished)

OPINION FILED:           December 3, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           September 9, 2014

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Milwaukee
   JUDGE:                William W. Brash

JUSTICES:
   CONCURRED:            ABRAHAMSON, C.J., concurs. (Opinion filed.)
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For     the      defendant-appellant-petitioner,         the   cause    was
argued by Kaitlin A. Lamb, assistant state public defender, with
whom on the briefs was Andrea Taylor Cornwall, assistant state
public defender.


       For    the       plaintiff-respondent,     the   cause   was   argued   by
Daniel J. O’Brien, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
                                                                      2014 WI 124
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.   2012AP1818-CR
(L.C. No.   2006CF5455)

STATE OF WISCONSIN                           :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent
                                                                     FILED
      v.                                                        DEC 3, 2014

Ramon G. Gonzalez,                                                Diane M. Fremgen
                                                               Clerk of Supreme Court

            Defendant-Appellant-Petitioner




      Review of a decision of the court of appeals.                 Affirmed.



      ¶1    N. PATRICK CROOKS, J.      The       question      we    consider      in

this case is whether Ramon Gonzalez's constitutional right not

to be a witness against himself was violated when the court,
over defense objection, asked in front of the jury that Gonzalez

"display his teeth," and Gonzalez complied.                   Gonzalez argues

that he was compelled to be a witness against himself at trial

because the teeth, which were platinum, were more than physical

evidence——they conveyed a message to the jury because they give

him a "fierce" appearance.         A witness had testified that the

victim had identified one of his attackers as a fellow inmate
                                                           No. 2012AP1818-CR



with platinum teeth.        The circuit court1 ruling came after the

prosecutor   asked   "for    the   jury's   sake,   that    we   show   Mr.

Gonzalez's dental work . . . so the witness can describe whether

or not he has particular dental work."         Gonzalez was convicted

of battery by a prisoner, as a party to a crime.

    ¶2   The question requires us to decide whether, in this

case, teeth are the kind of evidence that implicates the Self-

Incrimination Clause.2       Gonzalez acknowledges that it is well

    1
       The jury trial was held in Milwaukee County Circuit Court,
the Honorable William W. Brash III, presiding; Gonzalez's later
motion for postconviction relief was denied by the Honorable
David A. Hansher of the Milwaukee County Circuit Court.     In an
unpublished opinion, the Court of Appeals affirmed.      State v.
Gonzalez, No. 2012AP1818-CR, unpublished slip op. (Wis. Ct. App.
July 23, 2013).
    2
       The Fifth Amendment to the United States Constitution
provides, in pertinent part, "[n]o person . . . shall be
compelled in any criminal case to be a witness against
himself . . . .” U.S. Const. amend. V.     As will be discussed,
the United States Supreme Court has interpreted that provision
as prohibiting only "testimonial" communications:

    The term "privilege against self-incrimination" is not
    an entirely accurate description of a person's
    constitutional protection against being "compelled in
    any criminal case to be a witness against himself."
    The word "witness" in the constitutional text limits
    the relevant category of compelled incriminating
    communications to those that are "testimonial" in
    character.

United States v. Hubbell, 530 U.S. 27, 34-35 (2000) (footnotes
omitted).   Our discussion concerns what constitutes testimonial
evidence for purposes of the Self-Incrimination Clause, and we
rely on the tests provided in cases dealing with self-
incrimination. We are aware that there are other cases in which
courts determine what is testimonial, such as those involving an
alleged Confrontation Clause violation.    See, e.g., State v.
                                                     (continued)
                                    2
                                                                         No. 2012AP1818-CR



settled that the right against self-incrimination applies only

to testimonial evidence, but he argues that in this case the

physical     evidence      "had     a    'testimonial'          aspect       because    it

revealed content——the 'fierce-looking' appearance of his teeth,"3

and   he    says    this   fits   within          the    category     of    cases    where

physical evidence has been held to have a testimonial aspect

and, as a result, to fall under constitutional protection.                              He

argues in the alternative that even if it has no testimonial

aspect, it was improperly admitted because it was not material,

given that other evidence served the purpose of identification.

The State argues that his platinum teeth were physical evidence

that did not have a testimonial aspect, and were material to the

identification of Gonzalez, which was central to the trial.

      ¶3     We hold that the evidence of his platinum teeth was

physical     evidence      that   did         not    have   a      testimonial      aspect

sufficient     to     implicate         constitutional          protections.           The

relevant question under the case law is whether the evidence in

question     expresses,     makes       use    of,      reveals,    or     discloses   the




Manuel, 2005 WI 75, ¶37, 281 Wis. 2d 554, 697 N.W.2d 811 (stating
that "not all hearsay implicates the Confrontation Clause's core,
only that which is 'testimonial'") (citation omitted).
      3
          Pet'r's Br. 9.


                                              3
                                                                  No. 2012AP1818-CR



contents of the defendant's mind.4              Teeth do not do so.       We also

hold       that    Gonzalez's     teeth   are   material     to   identification

because they are probative of Gonzalez's identity, which was a

matter at issue.5           This case therefore fits squarely into the

long-recognized category of cases involving the body as evidence

and    does       not   offend   constitutional   principles      against    self-

incrimination.          We affirm the court of appeals.

                                   I.     BACKGROUND

       ¶4     This case arises from an attack by multiple people on

an inmate in the Milwaukee County Jail.                Gonzalez was among the

inmates      who    were   accused   of   attacking    the   victim.        He   was

charged with battery by a prisoner, as a party to a crime, and

went to trial.          Challenging the identification of the accused as

one of the attackers was the focus of the defense.                     The victim

was clearly reluctant to testify and repeatedly said so while


       4
       See, e.g., Pennsylvania v. Muniz, 496 U.S. 582, 598 (1990)
(quoting Doe v. United States, 487 U.S. 201, 210 n.9 (1988))
(holding evidence not testimonial where defendant not "forc[ed]
to express the contents of his mind"); Hubbell at 43 (holding
evidence testimonial where defendant was improperly required "to
make extensive use of" or reveal "the contents of his own mind"
in identifying documents responsive to subpoena); Hutchison v.
State, 424 S.W.3d 164, 179 (Tex. App. 2014) (holding that act of
handing over keys was not testimonial in nature because it did
not disclose the contents of defendant's mind); State v. Holmes,
93 P.3d 212, 215 (Wash. Ct. App. 2004) (holding evidence
testimonial if defendant is forced to disclose the contents of
his mind or speak his guilt).
       5
        State v. Becker, 51 Wis. 2d 659, 667, 188 N.W.2d 449
(1971) (holding that evidence probative of a matter in issue is
material).


                                          4
                                                                                 No. 2012AP1818-CR



under oath; he claimed he was unable to identify his attackers.

While    video     of    the     attack      was       shown       to   jurors,       the    defense

disputed    that        the     grainy       video         was     sufficient         to    make    an

identification, and the State offered further evidence on that

issue.     The jury heard the following during testimony about the

identification of Gonzalez and his involvement in the beating:

     - An eyewitness, a deputy on duty at the jail, saw Gonzalez

          stomp on the victim during the fight.

     - Minutes after the attack, the victim of the assault told

          an investigating officer that one of the persons involved

          was from Cell 10.

     - While in the jail infirmary, the victim told a second

          investigating officer that the inmate in Cell 10 who had

          platinum teeth had hit and kicked him.

     - The victim also testified that he knew Gonzalez by the

          nickname "Platinum" because of his teeth.

     - Gonzalez was housed in Cell 10 and had platinum teeth.

No   evidence      was        introduced          that       any    other       inmate       besides
Gonzalez fit this description.

     ¶5     During            the      trial,          Gonzalez           objected          to      the

prosecutor's        request,          during           a    witness's       testimony,             that

Gonzalez    reveal        his       teeth    to    the       jury.        The    circuit         court

overruled    the        objection.           Gonzalez         complied,         and    the       record

reflects    that     he       smiled    at    the          jurors    to   show    his       platinum

teeth.     Gonzalez's post-conviction motion for a new trial was

denied, and the court of appeals affirmed the conviction on the
grounds     that        the     teeth       were       physical         evidence,          and     thus
                                                   5
                                                                      No. 2012AP1818-CR



Gonzalez's showing of his platinum teeth did not constitute the

kind of compelled testimonial evidence the United States and

Wisconsin      Constitutions       prohibit.         Gonzalez      petitioned      for

review, which we granted.

                            II.    STANDARD OF REVIEW

    ¶6      The   question        we    address     is   whether       Gonzalez    was

compelled to provide the kind of evidence that is protected by

the Fifth Amendment of the United States Constitution6 and its

corollary   in    the   Wisconsin        Constitution,        which    prohibit    the

State   from    compelling     a       defendant    to   be   a   witness     against

himself or herself.         Although this case does not arise from a

suppression motion or motion in limine, it similarly presents a

question of a constitutionally-based objection to the admission

of certain evidence.         "Whether evidence should be suppressed is

a question of constitutional fact. In reviewing questions of

constitutional      fact,    we        uphold   a   circuit       court's     factual

    6
       "The Fifth Amendment, which applies to the States by
virtue of the Fourteenth Amendment, provides that '[n]o
person . . . shall be compelled in any criminal case to be a
witness against himself.' U.S. Const., Amdt. 5."     Maryland v.
Shatzer, 559 U.S. 98, 103 (2010) (internal citations omitted).
The parallel provision in the Wisconsin constitution provides,
"No person may be held to answer for a criminal offense without
due process of law, and no person for the same offense may be
put twice in jeopardy of punishment, nor may be compelled in any
criminal case to be a witness against himself or herself." Wis.
Const. art. I, § 8. "Our interpretation of Article I, Section 8
of the Wisconsin Constitution has generally been consistent with
the United States Supreme Court's interpretation of the Fifth
Amendment to the federal Constitution." State v. Ward, 2009 WI
60, ¶18 n.3, 318 Wis. 2d 301, 767 N.W.2d 236 (citations
omitted).


                                           6
                                                                          No. 2012AP1818-CR



findings     unless       clearly       erroneous,         but     we      independently

determine whether those facts meet the constitutional standard."

State v. Samuel, 2002 WI 34, ¶15, 252 Wis. 2d 26, 643 N.W.2d 423

(citations        omitted)       (evaluating          a      constitutionally-based

challenge to the admission of certain evidence).

                      III.       DISCUSSION AND ANALYSIS

       ¶7   The    facts       relevant     to     our     discussion       are    not     in

dispute.     It is not disputed that the evidence in question was

compelled by the circuit court; Gonzalez was ordered by the

court in open court to display his teeth to the jury.                                    The

dispute we address is solely one of law:                         whether this is the

kind   of   evidence      that   cannot       be   compelled       without       violating

constitutional       guarantees.          Gonzalez         gives    two     reasons      the

evidence    should       not   have    been     admitted.          After    setting        out

briefly the relevant law, we will address the parties' arguments

on those two points.

  A.     The Self-Incrimination Clause And Body-As-Evidence Cases

       ¶8   The United States Supreme Court has, in cases in which
the    self-incrimination          clause       has   been       invoked,        repeatedly

recognized    that       certain      distinguishing         characteristics          of    a

defendant    may    be    used   against        him   or    her    even     if    they     are

incriminating.        It summarized its interpretation of the self-

incrimination clause concisely in United States v. Hubbell prior

to starting its analysis in that case:

            It is useful to preface our analysis of the
       constitutional issue with a restatement of certain
       propositions that are not in dispute. The term
       "privilege against self-incrimination" is not an

                                            7
                                                                      No. 2012AP1818-CR


      entirely   accurate    description   of    a   person's
      constitutional protection against being "compelled in
      any criminal case to be a witness against himself."

           The word "witness" in the constitutional text
      limits    the    relevant    category    of   compelled
      incriminating   communications   to   those  that   are
      "testimonial"   in character.       As Justice Holmes
      observed, there is a significant difference between
      the use of compulsion to extort communications from a
      defendant and compelling a person to engage in conduct
      that may be incriminating. Thus, even though the act
      may provide incriminating evidence, a criminal suspect
      may be compelled to put on a shirt, to provide a blood
      sample or handwriting exemplar, or to make a recording
      of his voice.     The act of exhibiting such physical
      characteristics    is  not   the   same   as  a   sworn
      communication by a witness that relates either express
      or implied assertions of fact or belief.
United States v. Hubbell, 530 U.S. 27, 34-35 (2000) (footnotes

omitted).

      ¶9        In clarifying what constituted testimonial evidence,

the   United      States      Supreme   Court       has    differentiated      between

"communications" from the defendant and "his body as evidence":

"The prohibition of compelling a man in a criminal court to be

witness against himself is a prohibition of the use of physical
or moral compulsion to extort communications from him, not an

exclusion of his body as evidence when it may be material."

Schmerber v. California, 384 U.S. 757, 763 (1966) (quoting Holt

v. United States, 218 U.S. 245 (1910) (emphasis added)).                          "The

distinction       which    has    emerged,     often      expressed    in   different

ways,      is    that   the    privilege       is   a     bar   against     compelling

'communications' or 'testimony,' but that compulsion which makes

a suspect or accused the source of 'real or physical evidence'
does not violate it."            Id. at 764.        The Court has also described

                                           8
                                                                           No. 2012AP1818-CR



testimonial evidence as "knowledge of facts [compelled from the

defendant]       relating     him     to    the     offense,"       "his      thoughts    and

beliefs"       and    "evidence       of     a     testimonial       or       communicative

nature."       Doe v. United States, 487 U.S. 201, 210, 213 (1988).

In keeping with this distinction, courts have held that there is

no violation of the Self-Incrimination Clause where a defendant

is compelled to show his or her body, or to display tattoos,

scars, physique, or limbs.7

       ¶10     However,       the     United        States       Supreme        Court     has

recognized       that     some      physical       evidence        has    a    sufficiently

testimonial aspect to warrant Fifth Amendment protection.8                              As we

will       explain,   those      cases     arise    when     a   particular       piece    of

compelled       physical       evidence          reveals     the     thoughts      of     the

defendant      and    those    thoughts      are     incriminating.             There    are,

       7
       3 American Law Reports 4th 374, § 10[a] (1981), Propriety
of requiring criminal defendant to exhibit self, or perform
physical act, or participate in demonstration, during trial and
in presence of jury (collecting cases where no violation of
self-incrimination clause was found).
       8
       Fisher v. United States, 425 U.S. 391, 411 (1976) (framing
the relevant question as whether the evidence in question "rises
to the level of testimony within the protection of the Fifth
Amendment" and stating that a compelled handwriting sample is
not "deemed to be sufficiently testimonial for purposes of the
privilege").   In Fisher, the Court stated that "[t]he act of
producing evidence in response to a subpoena nevertheless has
communicative aspects of its own . . . but the more difficult
issues are whether the tacit averments of the taxpayer are both
'testimonial' and 'incriminating' for purposes of applying the
Fifth Amendment." Id. at 410. It concluded that even conceding
the existence of some testimonial aspects, the evidence was not
testimonial enough to warrant Fifth Amendment protections.    Id.
at 429-30.


                                             9
                                                                           No. 2012AP1818-CR



then,    two    types     of    physical    evidence:         1) physical         evidence

(including       the    body)     that     does    not     have        a     sufficiently

testimonial aspect to warrant Fifth Amendment protection, and 2)

physical       evidence    (including       the    body)       that        does    have    a

sufficiently testimonial aspect to warrant such protection.

  B.     Whether Gonzalez's Platinum Teeth Were Physical Evidence

                          With A "Testimonial Aspect"

       ¶11     Gonzalez's first argument is based on the proposition

that physical evidence can nonetheless have a testimonial aspect

that    turns    the    evidence    into    the    kind       barred       by   the   Fifth

Amendment to the United States Constitution.                     Such cases turn on

the fact that the evidence in question in some way disclosed the

contents of the defendant's mind.

       ¶12     Gonzalez argues that his platinum teeth constitute the

kind of physical evidence that has a "testimonial aspect" that

conveys or communicates an additional message, and that evidence

is   therefore     testimonial       for    purposes      of     Self-Incrimination

Clause analysis.          He points to Pennsylvania v. Muniz, a case in
which the United States Supreme Court considered whether the

Self-Incrimination         Clause    barred       use    of     several         pieces    of

evidence obtained from the defendant following a drunk driving

arrest.        The booking officer asked Muniz his "name, address,

height, weight, eye color, date of birth, current age, and the

date of his sixth birthday."               Pennsylvania v. Muniz, 496 U.S.

582, 590 (1990).

       ¶13     As the lower court had found, "[b]oth the delivery and
content of Muniz's answers were incriminating," as both tended
                                           10
                                                             No. 2012AP1818-CR



to support the inference that Muniz was intoxicated.               Id.    The

responses to all questions were spoken in a slurred manner, and

Muniz was unable to give the date of his sixth birthday.                   Id.

But for purposes of Fifth Amendment analysis, the United States

Supreme Court made a distinction between the manner in which

Muniz answered questions, which it deemed a physical attribute,

and   the   particular     answer   that   revealed   something   about   his

thoughts——namely that he was so impaired that he was unable to

perform     the   simple    calculation    of   the   date   of   his    sixth

birthday.    Thus, it held,

      Under Schmerber and its progeny . . . any slurring of
      speech and other evidence of lack of muscular
      coordination revealed by Muniz's responses to Officer
      Hosterman's direct questions constitute nontestimonial
      components of those responses. Requiring a suspect to
      reveal the physical manner in which he articulates
      words, like requiring him to reveal the physical
      properties of the sound produced by his voice, does
      not,   without   more,   compel  him   to   provide   a
      "testimonial" response for purposes of the privilege.

Muniz, 496 U.S. at 592 (citation omitted).

      ¶14   In contrast, it held that Muniz's answer about his

sixth birthday did constitute testimonial evidence, because in

answering it, he was forced to disclose something about his

mental faculties:

      Muniz was left with the choice of incriminating
      himself by admitting that he did not then know the
      date of his sixth birthday, or answering untruthfully
      by reporting a date that he did not then believe to be
      accurate (an incorrect guess would be incriminating as
      well as untruthful). The content of his truthful
      answer   supported  an   inference  that   his  mental
      faculties were impaired . . . .
                                      11
                                                                     No. 2012AP1818-CR



Id. at 599.

    ¶15       Another   case    where        physical       evidence    took    on    a

testimonial aspect involved a subpoena for some tax documents

that were later used as the basis for criminal charges.                        What is

significant for our purposes is the fact that the United States

Supreme Court recognized that in some circumstances, compliance

with a subpoena, which would ordinarily not implicate the Self-

Incrimination        Clause,    could    have       a     "compelled    testimonial

aspect."      Hubbell, 530 U.S. at 45.             In the context of a dispute

over the terms of a grant of immunity, the Court noted that

"[w]e   have     held   that    'the     act       of    production'    itself       may

implicitly communicate 'statements of fact.'                   . . . Moreover . .

. [the custodian] may be compelled to take the witness stand and

answer questions designed to determine whether he has produced

everything demanded by the subpoena."                   Id. at 36-37.

    ¶16       As these two cases illustrate, the factual scenarios

in which physical evidence has a "testimonial aspect" sufficient

to implicate constitutional protections are quite limited and
unusual.       Gonzalez cites only Muniz as an example of such a

case; he argues that the platinum teeth evidence is like the

sixth-birthday answer in Muniz in that both reveal too much—that

both allow jurors to make improper negative inferences about the

defendant.        In    response,      the     State      simply    points     to    the

similarities between the facts of this case and the extensive

body-as-evidence case law.

    ¶17       There is a crucial difference between the evidence in
Muniz   and    the   evidence    here.        In    Muniz,    the   inference       that
                                         12
                                                                         No. 2012AP1818-CR



concerned the United States Supreme Court was an inference about

the working of Muniz's mind that went directly to the crime of

which he was accused: driving while intoxicated.                           The evidence

the Court found problematic in Muniz was problematic not because

it supported a negative inference, but because the particular

negative inference it supported was "that his mental state was

confused," an inference about the contents of his mind that both

parties      acknowledged         was   incriminating          in   a    drunk     driving

prosecution.        Gonzalez's display of his teeth did not disclose

anything to the jury about his mental state or the content or

workings of his mind.

       ¶18   Likewise,       in    Hubbell,        where      physical     evidence       was

found to have a testimonial aspect that brought it under the

Fifth    Amendment,        the    Court   found         it    significant      that     "the

prosecutor needed the [defendant's] assistance both to identify

potential sources of information and to produce those sources"

and this required the defendant to take "the mental and physical

steps    necessary     to     provide     the       prosecutor      with    an    accurate
inventory     of    the     many    sources        of    potentially       incriminating

evidence."         Hubbell,       530   U.S.       at   42   (emphasis     added).        It

therefore concluded that the defendant's "act of production had

a testimonial aspect" that made the Fifth Amendment applicable.

Id. at 45.

       ¶19   The content or message he claims the teeth convey——

that    he   is    tough    and    fierce      (and     therefore       more     likely   to

assault      someone)——is         not   the     type     of    disclosure        that     was
problematic in Muniz; his teeth are not different from other
                                              13
                                                              No. 2012AP1818-CR



non-testimonial      physical   evidence,     such    as   tattoos,9    scars,10

muscular   arms,11   teeth,12   and   results    of   an   in-court    test   of

defendant's eyes,13 that courts have deemed physical evidence

whose compelled display violates no constitutional right——even

though   some   of   those   physical      characteristics    might    likewise

carry    negative     connotations      or    communicate     an      image   of



    9
       State v Rosthenhausler, 711 P.2d 625 (Ariz. Ct. App. 1985)
(finding no constitutional violation where defendant was
required to reveal tattoo).
    10
       People v. Renfrow, 564 P.2d 411 (Colo. 1977) (finding no
constitutional violation where defendant was required to reveal
scar for purpose of corroborating identity).
    11
       Doye v. State, 299 A.2d 117 (Md. Ct. Spec. App. 1973)
(finding no violation where trial court ordered defendant to
roll up sleeve to display muscular arm after victim described
rapist).
    12
       Sholler v. Commonwealth, 969 S.W.2d 706, 711 (Ky. 1998)
(finding no constitutional violation where court compelled
display of teeth after witness testified on cross-examination
that defendant spoke with a lisp and was missing a front tooth);
Huff v. State, 452 So. 2d 1352, 1353 (Ala. Crim. App. 1984)
(finding no constitutional violation where court compelled
display of teeth after a witness described a "big[] gap" in the
robber's upper teeth).
    13
       The Wisconsin Court of Appeals held that evidence gained
during a compelled, in-court horizontal gaze nystagmus (HGN)
test of the defendant's eyes conducted outside the presence of
the jury was not testimonial (State v. Schmidt, 2012 WI App 137,
345 Wis. 2d 326, 825 N.W.2d 521). It has also held that an in-
court voice sample did not constitute testimonial evidence,
State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992),
and that evidence of physical acts during field sobriety tests
was not testimonial, State v. Babbitt, 188 Wis. 2d 349, 525
N.W.2d 102 (Ct. App. 1994).


                                      14
                                                                No. 2012AP1818-CR



fierceness or toughness to some jurors.14             Nor is there use made

by the prosecutors of Gonzalez that is comparable to the use

made by the prosecutors           of   Hubbell's    mind   that rendered the

physical evidence testimonial in that case.

       ¶20    We therefore conclude that this is not a case in which

physical evidence has a "testimonial aspect" that renders its

use unconstitutional.15

      C.     Whether The Display Of Gonzalez's Platinum Teeth Was

                                   Material

       ¶21    Gonzalez's second argument is that the availability of

other identification evidence renders the display of his teeth

for    such     purpose   immaterial,         and   therefore    inadmissible.

Gonzalez      cites   Schmerber    for    the   proposition     that   the   law

permits "[defendant's] body as evidence" only "when it may be

material."      Schmerber, 384 U.S. at 763.          He argues that because

other identification evidence existed, the display of his teeth

was not for the purpose of identification, and therefore it was



       14
       There is no evidence in the record that such a meaning
would necessarily be attached to platinum teeth. We will accept
for purposes of the argument that a negative inference would be
drawn by jurors, but it is also possible that a juror who had
never seen such teeth might have a neutral impression or merely
find them silly.
       15
       We recognize that the court of appeals reached a
conclusion that is not consistent with our holding here when it
considered this issue in a previous case.    See State v. Smith,
No. 00-2947-CR, unpublished slip op. (Wis. Ct. App. Sept. 5,
2001). The opinion was not published, and online court records
show that no petition for review was filed in that case.


                                         15
                                                                       No. 2012AP1818-CR



not,    as    required,       material.16        Specifically,      he   argues      that

"there       was   no   need    for   the     jury     to    determine   whether     Mr.

Gonzalez in fact had platinum teeth,"17 because the victim had

identified         Gonzalez     in    court      as    the    inmate     he   knew    as

"Platinum."

       ¶22     Evidence is material if it is probative of a matter at

issue.       State v. Becker, 51 Wis. 2d 659, 677, 188 N.W.2d 449

(1971).        Evidence that is probative of a matter at issue can be

excluded on certain grounds, including that it is cumulative of

already       presented    evidence,18        but     that   decision    is   one    the

circuit court has discretion to make and is subject to highly

deferential review on appeal.19
       16
       We note that Gonzalez did not make a contemporaneous
objection to the relevance of the evidence, and he does not make
a claim that the potential prejudice outweighs the evidence's
probative value under Wis. Stat. § 904.03.
       17
            Pet'r's Br. 9.
       18
       "Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." Wis. Stat.
§ 904.03 (2013-14). All subsequent references to the Wisconsin
Statutes are to the 2013-14 version unless otherwise indicated.
       19
       "The question on appeal is . . . whether the trial court
exercised its discretion in accordance with accepted legal
standards and in accordance with the facts of record." State v.
Wollman, 86 Wis. 2d 459, 464, 273 N.W.2d 225 (1979).         "An
appellate court will not find an abuse of discretion if the
record shows that the circuit court exercised its discretion and
that there is a reasonable basis for the court's determination."
State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 542, 363 N.W.2d
419 (1985).


                                            16
                                                                          No. 2012AP1818-CR



       ¶23   Gonzalez's approach would appear to require us to hold

that once any evidence serves the purpose of identification, any

additional      evidence         offered       to    corroborate          it     would     be

immaterial.      This case turned on identification, and the State,

which   is     held   to    a    high    burden      of    proof,     was      entitled    to

corroborate      the       identification           of     the      defendant      by     any

permissible means within the ordinary constraints of evidence

law and subject to the discretion of the circuit court.                                 It is

simply untenable to assert that a central piece of identifying

evidence is not material in a case like this.                               As the State

notes, the relevance of the evidence was great in a case where

"the identity of the assailant remained the central issue in

dispute."      Given the heavy burden the State bears in a criminal

prosecution, it is inappropriate to limit otherwise admissible

evidence on the grounds claimed here.

                                    IV.       CONCLUSION

       ¶24   We hold that the evidence of Gonzalez's platinum teeth

was physical evidence that does not have a testimonial aspect
sufficient      to    implicate         constitutional           protections.             The

relevant question under the case law is whether the evidence in

question     expresses,         makes   use    of,       reveals,    or   discloses       the

contents of the defendant's mind.                    Teeth do not do so.           We also

hold    that    Gonzalez's        teeth       are    material        to   identification

because they are           probative of Gonzalez's identity, which was a

matter at issue.            This case therefore fits squarely into the

long-recognized        category         of     cases      involving       the     body     as


                                              17
                                                          No. 2012AP1818-CR



evidence, and does not offend constitutional principles against

self-incrimination.   We therefore affirm the court of appeals.

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

affirmed.




                                  18
    No. 2012AP1818-CR




1
                                                      No.    2012AP1818-CR.ssa


      ¶25   SHIRLEY S. ABRAHAMSON, C.J.          (concurring).        I join

this opinion.

      ¶26   I write separately because this is one of the first

opinions written and mandated under a new procedure in this

court for circulating and mandating opinions.               This case turns

out to be a good case to test our new procedure:                    It is a

unanimous opinion presenting one issue.

      ¶27   In keeping with this court's longstanding commitment

to   transparency   and    open   government   and   "for    the   advice    of

counsel practicing in the Supreme Court and for information to

the public,"1 this court has published its internal operating

procedures    since       1984.   This   practice     of     openness       and

transparency should be continued.2

      ¶28   The Internal Operating Procedures presently set forth

our procedure for the preparation and mandate of a draft opinion

as follows:

      II.F. ASSIGNMENT OF CASES . . . After the cases are
      assigned, the justice prepares a draft opinion for
      circulation to the court.

      G. OPINION To place a draft opinion on the conference
      agenda, a justice must circulate his or her draft

      1
       Introduction, Wisconsin Supreme Court Internal Operating
Procedures, printed in volume 6 of the Wisconsin Statutes (2011-
12), available at http://www.wicourts.gov/sc/IOPSC.pdf (last
visited Nov. 25, 2014).
      2
       The present Internal Operating Procedures   "describe the
manner in which the Supreme Court currently processes, considers
and decides judicial matters brought to the court."    Wisconsin
Supreme Court Internal Operating Procedures, Introduction,
available at http://www.wicourts.gov/sc/IOPSC.pdf (last visited
Nov. 25, 2014).


                                     1
                                              No.   2012AP1818-CR.ssa

     opinion at least seven calendar days prior to the
     conference.   Justices   are   encouraged   to   submit
     objections or suggestions in writing to the author,
     with copies to all justices prior to the conference.

     The court considers each draft opinion carefully as to
     language and substance, and if there are any changes
     to be made that are of more than minimal importance,
     the opinion is recirculated and reconferenced. Any
     justice, whether in the majority or dissent, may at
     any time prior to the issuance of the mandate ask that
     an opinion be held and reconferenced.

     Each justice who elects to write an opinion concurring
     in or dissenting from the court's opinion ordinarily
     announces that intention at an opinion conference.
     The author of a concurring or dissenting opinion and a
     justice who has asked that an opinion be held should
     give first priority to the concurring or dissenting
     opinion and to the opinion being held. Justices must
     circulate concurring or dissenting opinions and remove
     the hold on any opinion before circulating opinions in
     cases assigned to them.     Any justice may reconsider
     his or her vote on the court's decision or opinion
     until the decision is mandated.

          . . . .

     I. MANDATE The court's decision in a case is mandated
     promptly upon approval of the opinion by the court and
     upon notification by the chief justice to the clerk.
     The court's opinion is issued simultaneously with any
     concurring or dissenting opinions.

     When a decision is ready to be mandated, the court's
     opinion, along with any concurring or dissenting
     opinions, is transmitted to the clerk's office where
     it is reviewed and assigned a public domain citation.
     The case name and number of opinions that are
     scheduled for release are ordinarily posted on the
     court's website two days prior to the scheduled
     release date.   On the day of mandate, the clerk's
     office telephones the attorneys for the parties,
     notifying them of the court's decision,3 releases the
     3
       In practice, the parties' attorneys are no longer notified
by telephone now that opinions are posted to the court's
website.


                                2
                                               No.   2012AP1818-CR.ssa

     opinion to the parties and makes copies of the opinion
     available for public inspection.   The opinion is also
     posted to the court's website.    The opinion remains
     subject to further editing and modification. The
     office of the clerk arranges for the publication of
     the final version of the opinion in the official
     publications.
     ¶29   The new procedure was adopted on September 25, 2014,

by a divided court.4   In adopting this new procedure, regrettably

(in my opinion) the court did not consider the court's Internal

Operating Procedures (published in volume 6 of the Wisconsin

Statutes); did not give notice to or seek comments from the

bench, bar, or public; and did not consult the practices of

other state courts.

     ¶30   A verbatim statement of the new procedure for opinion

preparation and mandate is as follows:

     FIRST: Within 10 days after the first circulation of
     a majority opinion, each justice shall declare by
     email to all justices participating in the case in one
     of four ways: (1) joining the opinion; (2) joining the
     opinion if specifically described changes are made;
     (3) concurring; or (4) dissenting.

     SECOND – MAJORITY OPINION:       Within 10 days of
     receiving   a  request   for  specifically  described
     changes, the author of the majority opinion shall
     consult among members of the majority to determine
     whether some or all of the specifically described
     changes are acceptable.       If some or all are
     acceptable, the majority opinion shall be revised and
     recirculated within 14 days after the initial 10 day
     consultation period.      If some or all of the
     specifically described changes are not acceptable to
     the majority who support the first circulation, the
     justice whose changes were not accepted shall declare

     4
       Justices Crooks, Roggensack, Ziegler, and Gableman voted
in favor of adopting this procedure.       Justices Bradley and
Prosser and I dissented.


                                 3
                                        No.   2012AP1818-CR.ssa

by email that he or she joins the majority opinion,
notwithstanding   the  lack   of   changes  that  were
requested, or that he or she will write separately. A
justice who asked for changes in the majority opinion
and does not join the majority opinion shall declare a
concurrence or dissent and circulate his or her
separate writing within 21 days of circulation of the
revised majority opinion or the determination that the
majority opinion will not be revised to meet his or
her request whichever occurs first.

SECOND – SEPARATE WRITINGS:     Whether concurring or
dissenting, a justice who declares a separate writing
in response to the first circulation of a majority
opinion has 30 days after the justice's declaration to
circulate his or her separate writing.         No new
majority opinions shall be circulated by justices who
are writing separately.

THIRD:   Upon circulation of a separate opinion, the
author of the majority opinion has 14 days in which to
revise, and upon receipt of those revisions, dissents
and concurrences have 14 days to respond to the
majority's revision.    The revision of dissents and
concurrences shall not create a new opinion, but shall
respond only to revisions in the majority opinion.
(In the past, some justices circulated cursory
separate opinions in order to be able to circulate
another majority opinion and then extensively revised
the separate opinion, creating unnecessary delay.   We
are attempting to prevent this delay-causing practice
by limiting the revisions to separate opinions.)

Upon recirculation of the majority opinion and
recirculation of the separate writings, each justice
shall, within 10 days, by email to all justices
participating in the case make a final declaration of
which opinion he or she is joining.    If during this
process the opinion originally circulated as the
majority opinion does not garner the vote of a
majority of the court, it shall be referred to in
separate writings as the "lead opinion."         If a
separate writing garners the vote of a majority of the
court thereby changing the mandate of the opinion, it
shall be revised as the majority opinion within 14
days of the vote of the court.    During that same 14
day period, other separate writings shall be revised
to indicate their status as concurrences or dissents
to the new majority opinion. The majority opinion and
                          4
                                              No.    2012AP1818-CR.ssa

the separate   writings   shall   be   mandated     upon   final
declaration.

Within 5 days of mandate, the majority opinion shall
be placed in the release drive; within 5 days after
that event, the separate writings also shall be placed
in the release drive for transmittal of all writings
to the clerk's office for release to the public,
unless release of separate writings is delayed as
required by step "FOURTH" below.

FOURTH:   If during the course of a separate writing,
the author cites to a case then pending before us for
which the opinion of the court has not been released,
the majority opinion shall be released with the
designation, "separate opinion(s) to follow," unless
the citation can be replaced with ellipses in which
case the separate opinion shall be released with the
majority opinion and the ellipses shall be replaced
with the omitted citation when the cited opinion is
released.    There shall be no further changes to the
separate writings after mandate.    Separate writings
for which the citation cannot be replaced with
ellipses shall be released when the then unreleased
decision that was cited in the separate opinion is
released.

FIFTH:   No one justice may block the release of a
majority opinion by a "Hold."       It shall take the
affirmative vote of the majority of participating
justices to block the release of a majority opinion.
No one justice may tie together the release of two
pending cases. It shall take the affirmative vote of
a majority of participating justices in each case to
tie together the release of two pending cases.

SIXTH:    Majority opinions assigned in September,
October and November shall be circulated no later than
January 31.   Majority opinions assigned in December,
January and February shall be circulated no later than
March 31.    Majority opinions assigned in March and
April shall be circulated no later than May 31.

There will be no court conferences on circulated
opinions unless a majority of justices participating
in the case request court conference on the circulated
opinion(s) in that case.



                            5
                                                     No.   2012AP1818-CR.ssa

    The times for responding to majority opinions first
    circulated after April 15 will need to be shortened
    from what is set forth above. We will make a decision
    about what timelines are needed during April 2015 when
    we see how many opinions remain outstanding.

    There also may need to be some flexibility when
    applying this process to the opinions due by January
    31 and March 31. Flexibility may be needed generally
    because this is a new process. It is anticipated that
    if a justice has tried but cannot meet the expected
    deadlines, he or she will request an extension for a
    specified time so all will understand where the court
    is in opinion processing and release.
    ¶31    The   flow   chart   accompanying   the    narrative     is   as

follows:

    The following is a flow chart representing the revised
    Opinion Preparation & Mandate proposal.    For clarity,
    the chart is broken into two separate pieces: the
    first, directly below, represents the process for
    initial circulations of all opinions; the second, on
    page two, represents the process from circulation of
    all opinions through revisions and mandate.




                                   6
    No.   2012AP1818-CR.ssa




7
    No.   2012AP1818-CR.ssa




8
                                                               No.    2012AP1818-CR.ssa

       General notes:

       All deadlines are calendar days.

       •    The maximum time under this proposal from first
       circulation of a majority opinion to mandate is 107
       days. This assumes that all maximum time is taken and
       each of the following occurs:

              •    A Justice does not declare a concurrence or
              dissent until after the majority has been
              recirculated and incorporated suggested changes;
              and

              •    The    majority   flips,    triggering                    the
              additional 14 day revision period.

       •    The five day periods for placing opinions in the
       Release Drive following mandate are for cite checking
       and spelling and grammar revisions.
       ¶32    Key    portions   of     the       Internal   Operating     Procedures

(which we have generally followed since before 1984 up until

September 2014) are as follows:                  All opinions were discussed in

conference, often several times; any justice could ask that a

draft opinion be held and reconferenced; and majority opinions

would    be    released      simultaneously          with    any     concurring     or

dissenting opinions.
       ¶33    The    new    procedure        departs    from    our     longstanding

procedure for opinions and mandates in several important ways.

Starting in September, draft opinions cannot be discussed at

conference.         To hold a conference on a draft opinion, a vote of

four    justices      is   required.     No       single    justice    can   hold   an

opinion; a vote of four justices is required.                        Furthermore, in

certain circumstances a majority opinion may be released without

being accompanied by a concurring or dissenting opinion; the
drafted concurring and dissenting opinions must be released at a

                                             9
                                                                 No.   2012AP1818-CR.ssa


later date.      These provisions, as well as the short time periods

allowed for separate writings, are unwelcoming to concurrences

and dissents.

       ¶34    Ambiguities    and    cracks     in   the    process      have   already

appeared.      Some were identified during the adoption of the new

procedure, others not.

       ¶35    Changing     the   ways    the   court      does    its    business    is

important.          Circumstances        change,     personnel          changes,    and

technology changes.          Timely release of our opinions after oral

argument is important for the litigants, for the bench and bar,

for the public, and for this court.                    We should not, however,

sacrifice thoughtful discussion and careful collegial review of

draft opinions just for the sake of speed.                        For at least the

last 50 years, cases heard from September 1 through June have

been   completed     by     June    30   (unless     additional         briefing    was

required), regardless of the procedure used for circulating and

mandating opinions.

       ¶36    Only time will tell whether this new procedure will

produce      thoughtful,    precise      opinions     that   are       released    more
promptly, or whether it will even produce opinions that are

released more promptly.            At this time, we are encountering the

ambiguities and uncertainties of the procedure and the different

timelines     for   numerous       circulating      opinions      (some    addressing

similar issues).         Figuring out due dates and maintaining a flow

chart for each draft opinion is unwieldy and difficult because

of ambiguities in calculating time periods and numerous redrafts
that are not accounted for in the narrative or flow chart.

                                          10
                                                                  No.    2012AP1818-CR.ssa


      ¶37    Changes       in    the   newly      adopted       procedure          are    being

requested         and     should       be     given        serious       consideration.

Improvements       may     make      this    experimental        new    procedure           more

satisfactory.

      ¶38    The court might even consider a simpler procedure to

accomplish the goals of reducing conferences and establishing

deadlines.        For example, there might be an initial conference

discussion of a draft opinion to identify the areas of strength

and weakness, to identify areas of agreement and disagreement,

and   to    determine      whether      opinions        involving       the    same       legal

issues need to be put on the same timeline for harmonization.

Deadlines     might      be     established       at    this    conference          for     each

opinion     to     fit    the     circumstances,         such    as     the        extent    of

revisions        required,      the    number      and    approaches          of     separate

writings, and the work of the court and the individual justices.

      ¶39    There       may    be   other   and       better   suggestions          for     the

court to consider.
      ¶40    For the reasons set forth, I write separately.




                                             11
    No.   2012AP1818-CR.ssa




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