State v. Mark D. Jensen ( 2021 )

2021 WI 27SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1952-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Mark D. Jensen,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
OPINION FILED: March 18, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 17, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: Chad G. Kerkman
JUSTICES:
DALLET, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, REBECCA GRASSL
BRADLEY, and HAGEDORN, JJ., joined, and in which ZIEGLER and
KAROFSKY, JJ., joined except for ¶35. KAROFSKY, J., filed a
concurring opinion, in which ZIEGLER, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Aaron R. O’Neil, assistant attorney general; with whom
on the briefs was Joshua L. Kaul, attorney general. There was an
oral argument by Aaron O’Neil.
For the defendant-appellant, there was a brief filed by
Lauren J. Breckenfelder and Dustin C. Haskell, assistant state
public defenders. There was an oral argument by Lauren Jane
Breckenfelder.
2021 WI 27NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1952-CR
(L.C. No. 2002CF314)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. MAR 18, 2021
Mark D. Jensen, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
DALLET, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, REBECCA GRASSL
BRADLEY, and HAGEDORN, JJ., joined, and in which ZIEGLER and
KAROFSKY, JJ., joined except for ¶35. KAROFSKY, J., filed a
concurring opinion, in which ZIEGLER, J., joined.
REVIEW of a decision of the Court of Appeals. Modified
and, as modified, affirmed.
¶1 REBECCA FRANK DALLET, J. Fourteen years ago, Mark
Jensen was on trial for killing his wife, Julie.1 Before the
start of that trial, we held that certain hearsay statements
made by Julie were testimonial. State v. Jensen
(Jensen I), 2007 WI 26, ¶2, 299 Wis. 2d 267, 727 N.W.2d 518.
To avoid confusion——and to remain consistent with previous
1
decisions in this case——we refer to Mark Jensen as "Jensen" and
Julie Jensen as "Julie."
No. 2018AP1952-CR
For that reason, and because Jensen had no opportunity to cross-
examine Julie about those statements, the statements were
inadmissible under the Confrontation Clause.2 We are now asked
to determine whether the law on testimonial hearsay has since
changed to such a degree that, at Jensen's new trial,3 the
circuit court was no longer bound by Jensen I. We hold that it
has not. We therefore affirm the court of appeals' decision.4
I
¶2 Julie died from poisoning in 1998. Prior to her
death, she made several statements suggesting that, if she died,
the police should investigate Jensen. She wrote a letter and
gave it to her neighbor with instructions to give the letter to
the police should anything happen to her. She also left two
voicemails with Pleasant Prairie Police Officer Ron Kosman two
weeks before she died stating that if she were found dead,
Jensen should be Kosman's "first suspect." In 2002, Jensen was
charged with first-degree intentional homicide. Over the next
several years, the circuit court held a series of pretrial
hearings addressing the admissibility of Julie's letter and
voicemails.
2 U.S. Const. amend. VI, cl. 4 ("In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . .").
3 The Honorable Chad G. Kerkman of the Kenosha County
Circuit Court presiding.
4 State v. Jensen, No. 2018AP1952-CR, unpublished slip op.
(Wis. Ct. App. Feb. 26, 2020).
2
No. 2018AP1952-CR
¶3 The circuit court initially ruled that Julie's letter
was admissible but her voicemails were not. After that ruling,
however, the United States Supreme Court decided Crawford v.
Washington, 541 U.S. 36 (2004), which established that an
unavailable witness's hearsay statement is inadmissible under
the Confrontation Clause if the statement is testimonial and the
defendant had no prior opportunity to cross-examine the witness.
Id. at 50-54. In light of that decision, Jensen asked the
circuit court to reconsider its previous ruling. Upon
reconsideration, the circuit court determined that, under
Crawford, Julie's letter and voicemails ("Julie's statements")
were testimonial hearsay and were inadmissible because Jensen
had no opportunity to cross-examine Julie.
¶4 The State appealed and we affirmed, applying Crawford
and the United States Supreme Court's subsequent decision, Davis
v. Washington, 547 U.S. 813 (2006).5 Jensen I, 299 Wis. 2d 267.
Davis set out what has come to be known as the "primary purpose
test": a statement is testimonial if its primary purpose is "to
establish or prove past events potentially relevant to later
criminal proceedings." 547 U.S. at 822. The Court explained
that although statements made in response to police questioning
are generally testimonial, such statements are nontestimonial if
their primary purpose is to help the police "meet an ongoing
emergency." Id. at 822. Applying that test, we determined in
5 Unless otherwise noted, all references to Davis v.
Washington, 547 U.S. 813 (2006), are also references to Hammon
v. Indiana, which the Court consolidated with Davis.
3
No. 2018AP1952-CR
Jensen I that the primary purpose of Julie's statements was not
to help the police resolve an active emergency but to
"investigate or aid in prosecution in the event of her death."
Jensen I, 299 Wis. 2d 267, ¶¶27, 30. Thus, under Crawford and
Davis's interpretation of the Confrontation Clause, Julie's
statements were inadmissible. Id., ¶34.
¶5 We remanded the cause to the circuit court to
determine whether Julie's statements were nevertheless
admissible under the forfeiture-by-wrongdoing doctrine, which we
adopted in Jensen I. See id., ¶¶2, 52. At the time, that
doctrine stated that a defendant forfeits his constitutional
right to confront a witness when the defendant caused that
witness's unavailability. See id., ¶57. On remand, the circuit
court found that the State had shown by a preponderance of the
evidence that Jensen caused Julie's unavailability. Therefore,
the Confrontation Clause notwithstanding, Julie's statements
were admissible after all. Relying at least in part on those
statements, a jury convicted Jensen of Julie's murder.
¶6 Jensen again appealed. State v. Jensen
(Jensen II), 2011 WI App 3, 331 Wis. 2d 440, 794 N.W.2d 482.
While that appeal was pending, the United States Supreme Court
decided another case directly affecting Jensen, Giles v.
California, 554 U.S. 353 (2008). There, the Court refined the
forfeiture-by-wrongdoing doctrine, holding that it applies only
when the defendant caused the witness's unavailability with the
specific intent of preventing the witness from testifying. See
id. at 361-68. In Jensen II, the court of appeals "assum[ed]"
4
No. 2018AP1952-CR
that Jensen had not killed Julie specifically to keep her from
testifying at trial; therefore, under Giles, Jensen had not
forfeited his Confrontation Clause rights and the circuit court
had erred in admitting Julie's statements. But the court of
appeals also held that the circuit court's error was harmless,
given the "voluminous" other evidence supporting the jury's
guilty verdict. See Jensen II, 331 Wis. 2d 440, ¶35.
¶7 That harmless error conclusion formed the basis for
Jensen's federal habeas corpus litigation.6 There, the federal
courts agreed with Jensen that it was not harmless error to
admit Julie's testimonial statements in violation of the
Confrontation Clause. Jensen v. Schwochert, No. 11-C-0803, 2013
WL 6708767 (E.D. Wis. Dec. 18, 2013), aff'd, Jensen v.
Clements, 800 F.3d 892, 908 (7th Cir. 2015) (holding that was it
was "beyond any possibility for fairminded disagreement" that
admitting Julie's statements "had a substantial and injurious
effect" on the jury's verdict (quoted source omitted)).
Concluding that the Wisconsin court of appeals' decision in
Jensen II was an "unreasonable application of clearly
established federal law," the federal court ordered Jensen's
conviction vacated. Schwochert, 2013 WL 6708767, at *16-17.
The State immediately initiated new proceedings against Jensen.
6 We denied Jensen's petition for review regarding
Jensen II. See Jensen v. Schwochert, No. 11-C-0803, 2013
WL 6708767, at *5 (E.D. Wis. Dec. 18, 2013), aff'd, Jensen v.
Clements, 800 F.3d 892 (7th Cir. 2015).
5
No. 2018AP1952-CR
¶8 In this new pretrial period, Jensen filed a motion to
exclude Julie's statements, per our holding in Jensen I. The
State urged the circuit court to address anew whether Julie's
statements were admissible, arguing that the United States
Supreme Court had since "narrowed" the definition of
"testimonial" to such a degree that the circuit court was not
bound by Jensen I. The circuit court agreed. It explained that
"a lot has happened" since Jensen I and that "based upon the law
that we have today," Julie's statements were not testimonial.
The circuit court reached that conclusion by "applying the
factors in Ohio v. Clark, the more recent cases including
Michigan v. Bryant, and other cases that came out since Crawford
v. Washington and Jensen I."7 The State then moved the circuit
court to forgo a new trial and reinstate Jensen's original
conviction and life sentence on the grounds that, if Julie's
statements were again admissible, the evidence now was identical
to that in Jensen's first trial. The circuit court granted the
State's motion. Jensen appealed.
¶9 The court of appeals reversed, holding that neither it
nor the circuit court was "at liberty to decide" that Julie's
statements were nontestimonial, given our holding in Jensen I.
State v. Jensen (Jensen III), No. 2018AP1952-CR, unpublished
slip op., at 12 (Wis. Ct. App. Feb. 26, 2020). The court of
7The circuit court noted, incorrectly, that Davis (and
Hammon) was decided after Jensen I. Not only was Davis decided
before Jensen I but in Jensen I we expressly followed Davis.
See State v. Jensen (Jensen I), 2007 WI 26, ¶19, 299
Wis. 2d 267, 727 N.W.2d 518.
6
No. 2018AP1952-CR
appeals explained that under Cook v. Cook, 208 Wis. 2d 166, 560
N.W.2d 246 (1997), this court is the only one with the power to
modify or overrule one of our previous decisions. The court of
appeals concluded that, because we have never modified or
overruled Jensen I, the circuit court erred in finding Julie's
statements admissible and, in turn, failing to hold a new trial.
It then remanded the cause "for a new trial at which Julie's
letter and [voicemails] may not be admitted into evidence." Id.Having decided Jensen's appeal under Cook, the court of appeals
declined to address Jensen's other challenges, including claims
that the circuit court judge was biased against him and that the
circuit court violated the federal court's habeas order by
reinstating his conviction without a trial.
¶10 We granted the State's petition for review of the
following three issues: (1) whether the court of appeals erred
in reviewing the circuit court's decision under Cook instead of
the law of the case; (2) if so, whether the circuit court
permissibly deviated from the law of the case and correctly
determined that Julie's statements are nontestimonial hearsay;
and (3) whether we should remand the cause to the court of
appeals to decide Jensen's remaining challenges.
¶11 Although we agree with the court of appeals' ultimate
conclusion that the circuit court is bound by Jensen I, we hold
that the court of the appeals erred in relying on Cook to reach
that decision. In Cook, we held that the court of appeals has
no power to overrule, modify, or withdraw language from one of
its own published decisions; only this court has that power.
7
No. 2018AP1952-CR
See Cook, 208 Wis. 2d at 189. The issue here, however, is about
the law of the case, to which Cook does not apply. Accordingly,
we modify the court of appeals' decision to the extent it relies
on Cook. Our analysis proceeds under the doctrine of the law of
the case.
II
¶12 Whether a decision establishes the law of the case is
a question of law that we review de novo. State v. Stuart
(Stuart I), 2003 WI 73, ¶20, 262 Wis. 2d 620, 664 N.W.2d 82.
Although lower courts have the discretion to depart from the law
of the case when a "controlling authority has since made a
contrary decision of the law," State v. Brady, 130
Wis. 2d 443, 448, 388 N.W.2d 151 (1986), whether such a contrary
decision has been made is a question of law that we review de
novo. See Kocken v. Wis. Council, 2007 WI 72, ¶¶25-26, 301
Wis. 2d 266, 732 N.W.2d 828.
¶13 The law of the case is a "longstanding rule" that
requires courts to adhere to an appellate court's ruling on a
legal issue "in all subsequent proceedings in the trial court or
on later appeal." Stuart I, 262 Wis. 2d 620, ¶23 (quoting
Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 38, 435
N.W.2d 234 (1989)). The rule ensures stability for litigants
and reinforces the finality of a court's decisions. See Univest
Corp., 148 Wis. 2d at 37-38. Courts in subsequent proceedings
should therefore "be loathe" to revisit an appellate court's
decision absent "extraordinary circumstances." Christianson v.
Colt Indus. Oper. Corp., 486 U.S. 800, 817 (1988). That
8
No. 2018AP1952-CR
admonition aside, absolute adherence to the law of the case is
not required. As is relevant here, lower courts may depart from
the initial decision if "a controlling authority has since made
a contrary decision of the law" on the same issue.8 Stuart I,
262 Wis. 2d 620, ¶24 (quoting Brady, 130 Wis. 2d at 448).
¶14 Our analysis thus proceeds in two parts. First, we
determine which case established the law of the case that
Julie's statements are testimonial hearsay. Second, we analyze
whether a controlling court has since issued a contrary decision
on the same point of law.
A
¶15 The parties largely agree that Jensen I established
the law of the case. Jensen also argues that either federal
habeas case, Schwochert or Clements, could establish the law of
the case because both concluded that admitting Julie's
statements violated the Confrontation Clause. But a federal
habeas proceeding cannot establish the law of the case because
it "is not a subsequent stage of the underlying criminal
proceedings; it is a separate civil case." E.g., Edmonds v.
Smith, 922 F.3d 737, 739 (6th Cir. 2019). Therefore, Jensen I
Courts may also depart from the law of the case in two
8
other situations: when the evidence at a subsequent trial is
"substantially different" than that at the initial trial; and
when following the law of the case would result in a "manifest
injustice." See State v. Stuart, 2003 WI 73, 262
Wis. 2d 620, 664 N.W.2d 82. Neither of those situations applies
here.
9
No. 2018AP1952-CR
is the only decision establishing the law of the case that
Julie's hearsay statements are testimonial.9
B
¶16 We next analyze whether the current law regarding the
admissibility of testimonial hearsay is contrary to that relied
upon in Jensen I. We decided Jensen I under both Crawford and
Davis. Therefore, we must determine whether the United States
Supreme Court has since contradicted Crawford or Davis. See
State v. Stuart (Stuart II), 2005 WI 47, ¶3 n.2, 279
Wis. 2d 659, 695 N.W.2d 259. As Jensen's Confrontation Clause
issue arises under the federal Constitution, we are bound by the
United States Supreme Court's jurisprudence interpreting that
clause. See, e.g., State v. Delebreau, 2015 WI 55, ¶43, 362
Wis. 2d 542, 864 N.W.2d 852.
¶17 Since Jensen I, the United States Supreme Court has
decided two cases that address the definition of testimonial
hearsay: Michigan v. Bryant, 562 U.S. 344 (2011), and Ohio v.
Clark, 576 U.S. 237 (2015). The State argues that Bryant and
Clark narrowed the definition of "testimonial" so extensively
that Jensen I no longer applies, thereby allowing the circuit
9Even if Schwochert or Clements could establish the law of
the case, our conclusion would be the same because both agreed
with our holding in Jensen I that Julie's statements are
testimonial hearsay. See Schwochert, 2013 WL 6708767, at *17
("Jensen's rights under the Confrontation Clause of the Sixth
Amendment were violated when the trial court admitted" Julie's
statements); Clements, 800 F.3d at 908 (adding that "there is no
doubt that" admitting Julie's statements violated "Jensen's
rights under the Confrontation Clause").
10
No. 2018AP1952-CR
court to re-evaluate Julie's statements and conclude that they
are admissible nontestimonial statements. Jensen counters that
neither Bryant nor Clark altered the Confrontation Clause
analysis set forth in Crawford and Davis in any way that
undermines our reasoning in Jensen I.
¶18 We agree with Jensen. At the time we decided
Jensen I, the Confrontation Clause barred the admission at trial
of an unavailable witness's hearsay statement that the defendant
had no prior meaningful opportunity to cross-examine and that
was made for the primary purpose of creating prosecutorial
evidence. Bryant and Clark represent developments in applying
the primary purpose test, but neither is contrary to it.
1
¶19 Prior to Crawford, an unavailable witness's hearsay
statement was admissible under the Confrontation Clause if it
met a certain "reliability" threshold. See Ohio v. Roberts, 448
U.S. 56, 66 (1980). A statement met that threshold if it fell
within a "firmly rooted hearsay exception" or if it bore some
other "indicia of reliability." Id. The United States Supreme
Court had read traditional hearsay rules and the Confrontation
Clause as somewhat redundant, reasoning that "certain hearsay
exceptions rest upon such solid foundations that admission of
virtually any evidence within them comports with" the
Confrontation Clause. See id.¶20 Crawford "fundamentally change[d]" that analysis.
Jensen I, 299 Wis. 2d 267, ¶14. Crawford first focused the
scope of the Confrontation Clause analysis on the circumstances
11
No. 2018AP1952-CR
in which one makes a statement, explaining that the Constitution
is "acute[ly]"——but not exclusively——concerned with "formal
statement[s] to government officers" rather than "casual
remark[s] to an acquaintance." Crawford, 541 U.S. at 51. The
Court then turned to the statement itself, holding that the
Confrontation Clause's application to an unavailable witness's
hearsay statement turns on two key factors: the statement's
purpose and whether the statement had been "tested" on cross-
examination. Id. at 50-56.10
¶21 On the former, Crawford held that the Confrontation
Clause applied only to statements that are "testimonial," which
it defined as a statement "made for the purpose of establishing
or proving some fact." Id. at 51 (quoted source omitted). The
Court declined, however, to "spell out a comprehensive
definition of 'testimonial.'" Id. at 68; see also Davis, 547
U.S. at 822 (declining to "produce an exhaustive classification
of all conceivable statements"). Rather, it identified three
broad "formulations" of testimonial statements: (1) "ex parte
in-court testimony," such as "prior testimony that the defendant
was unable to cross-examine"; (2) out-of-court statements
"contained in formalized testimonial materials," such as an
Before Crawford, cross-examination was but one method of
10
proving that a testimonial hearsay statement was acceptably
reliable. See Ohio v. Roberts, 448 U.S. 56, 70-73 (1980);
Mancusi v. Stubbs, 408 U.S. 204, 216 (1972). But Crawford went
further, holding that a prior opportunity for meaningful cross-
examination was the only way to show that a testimonial hearsay
statement was sufficiently reliable under the Confrontation
Clause. Crawford v. Washington, 541 U.S. 36, 55-56 (2004).
12
No. 2018AP1952-CR
affidavit or a deposition; and (3) "statements that were made
under circumstances [that] would lead an objective witness
reasonably to believe that the statement would be available for
use at a later trial." Crawford, 541 U.S. at 51-52 (quoted
sources omitted). Putting these factors together, but again
declining to limit its holding to the specific facts in
Crawford, the Court held that, "at a minimum," the definition of
"testimonial" includes prior testimony and a statement made
during police interrogation. Id. at 68.
¶22 In Davis and its companion case, Hammon, however, the
Court explained that not all statements to police are
testimonial. There, the Court analyzed statements made to
police during their response to two domestic violence incidents.
It applied Crawford to both situations, but factual differences
between the two cases led the Court to divergent conclusions.
In Davis, the victim told the 911 operator that Davis was
"jumpin' on [her] again" and beating her with his fists. She
"described the context of the assault" and gave the 911 operator
other identifying information about Davis. Davis, 547 U.S.
at 817-18. In Hammon, the police had responded to a report of
domestic violence, finding the victim on the front porch and
Hammon inside the house. The victim allowed the police to go
inside, where they first questioned Hammon and then her. At the
end of that questioning, the victim "fill[ed] out and sign[ed] a
battery affidavit" in which she explained that Hammon broke a
glass heater, pushed her into the broken glass, hit her in the
13
No. 2018AP1952-CR
chest, damaged her van so that she could not leave, and attacked
her daughter. Id. at 819-21.
¶23 The Court held that the victim's statements in Davis
were not testimonial because their primary purpose was to
"enable police assistance with an ongoing emergency." Id.
at 828. The Court differentiated these "frantic" statements,
made "as they were actually happening" and while the victim was
"in immediate danger," from those in Crawford, which were made
"hours after the events . . . described had occurred." Id.
at 827, 831 (emphasis removed). The statements also helped the
police "assess the situation, the threat to their own safety,
and possible danger to the potential victim." Id. at 832(quoting Hiibel v. Sixth Jud. Dist. Ct., 542 U.S. 177, 186
(2004)). Thus, the victim "simply was not . . . testifying"
because "[n]o 'witness' goes into court to proclaim an
emergency." Id. at 828.
¶24 The Court reached the opposite conclusion in Hammon.
There, it held that the victim's statements were testimonial
because their primary purpose was to provide a "narrative of
past events." Id. at 832. Even though Hammon was present while
the police took the victim's statements, there "was no emergency
in progress." Id. at 829. Her statements did not describe what
was happening at that very moment, as in Davis, but rather what
happened before the police arrived. Id. at 830.
¶25 We decided Jensen I by analyzing Julie's statements
under the primary purpose test as explained in Davis. See
Jensen I, 299 Wis. 2d 267, ¶¶18-19. We must therefore examine
14
No. 2018AP1952-CR
the United States Supreme Court's more recent decisions in
Bryant and Clark to determine if either decision is contrary to
that test, thereby justifying the circuit court's departure from
Jensen I.
2
¶26 The Court's main task in Bryant was to clarify what it
means, outside of Davis's specific factual context, for a
statement to have the primary purpose of "enabl[ing] police
assistance to meet an ongoing emergency." See Bryant, 562 U.S.
at 359 (quoting Davis, 547 U.S. at 822). Indeed, the Court
noted that it "confront[ed] for the first time circumstances in
which the 'ongoing emergency' discussed in Davis extends beyond
an initial victim to a potential threat to the responding police
and the public at large." Id. In Bryant, the police found the
victim, Covington, at a gas station bleeding badly from a
gunshot wound and having trouble speaking. They asked Covington
who shot him and where the shooting occurred. Covington told
the police that Bryant shot him through the back door of
Bryant's house. Covington was then taken to a hospital, where
he died a few hours later. Id. at 349-50. The Michigan Supreme
Court held that Covington's statements were inadmissible
testimonial hearsay similar to those in Hammon because he made
them after the shooting occurred and the police did not
"perceive[] an ongoing emergency at the gas station." Id.
at 351.
¶27 The United States Supreme Court reversed. It held
that the primary purpose of Covington's statements was to help
15
No. 2018AP1952-CR
the police resolve an ongoing emergency, because when the police
arrived on the scene, they did not know whether the person who
shot Covington posed an ongoing threat to the public. Id.
at 371-72. Covington's behavior——profusely bleeding from the
stomach, repeatedly asking when an ambulance would arrive,
having difficulty breathing——objectively revealed that he was
answering the officers' questions only to give them information
about what might be an active-shooter scenario. Id. at 373-74.
Other evidence supporting that conclusion included the fact
that, like the 911 call in Davis, Covington's statements were
"harried" and made during a "fluid and somewhat confused"
situation. Id. at 377. Because the primary purpose of the
statements was to help the police resolve an ongoing emergency,
they were not testimonial.
¶28 In reaching that conclusion, Bryant emphasized that
the test for determining a statement's primary purpose is an
objective one. Id. at 360. When deciding whether a statement
is made to assist the police in resolving an ongoing emergency,
courts must consider the overall circumstances in which the
statement is made, such as whether the statement is made near
the scene of the crime or later at the police station. Id.
at 360–61. Ultimately, the crux of the inquiry is whether the
statement is made to "end[] a threatening situation" (not
testimonial) or to "prove[] past events potentially relevant to
later criminal prosecution" (testimonial). Id. at 361 (quoting
Davis, 547 U.S. at 822, 832). On that point, the Court
16
No. 2018AP1952-CR
cautioned against construing Davis's "ongoing emergency"
definition too narrowly:
Domestic violence cases like Davis and Hammon often
have a narrower zone of potential victims than cases
involving threats to public safety. An assessment of
whether an emergency that threatens the police and
public is ongoing cannot narrowly focus on whether the
threat solely to the first victim has been neutralized
because the threat to the first responders and public
may continue.
Id. at 363–64.
¶29 Bryant also reminded courts that whether an ongoing
emergency exists is only one factor for determining a
statement's primary purpose. Id. at 366. Other factors are
also relevant, such as the statements and actions of both the
declarant and the interrogators and formality of the encounter.
Id. at 366-67. But just as formal police interrogations do not
always produce testimonial statements, informal questioning
"does not necessarily indicate . . . the lack of testimonial
intent." Id. at 366; see also Davis, 547 U.S. at 822 & n.1.
Courts must objectively analyze the declarant's and the
interrogator's "actions and statements." Bryant, 562 U.S.
at 367-68. The Court noted that this approach was the one it
"suggested in Davis" when it first articulated that statements
made to resolve an ongoing emergency are not testimonial. Id.
at 370.
3
¶30 Whereas Bryant's contextual analysis focused on the
person making the statement, Clark focused on the person to whom
17
No. 2018AP1952-CR
the statement was made. In Clark, the Court was asked to
resolve "whether statements to persons other than law
enforcement officers are subject to the Confrontation
Clause." 576 U.S. at 246. There, Clark had been convicted of
assaulting his girlfriend's three-year-old child due, in part,
to statements the child made to his teachers identifying Clark
as his abuser. The child made those statements in response to
his teachers' inquiries about visible injuries on his body.
Concerned that the child was being abused, the teachers asked
him questions "primarily aimed at identifying and ending the
threat" of potentially letting him go home that day with his
abuser. Id. at 247. When the teachers were questioning the
child, their objective was "to protect" him, "not to arrest or
punish his abuser"; they "were not sure who had abused him or
how best to secure his safety." Id.
¶31 The Court held that the Confrontation Clause applied
to "at least some statements made to individuals who are not law
enforcement," but not the child's statements here. Id. at 246.
Reiterating Bryant's guidance to consider all of the relevant
circumstances, the Court explained that "[c]ourts must evaluate
challenged statements in context, and part of that context is
the questioner's identity." Id. at 249 (explaining that it is
"common sense that the relationship between a student and his
teacher is very different from that between a citizen and the
police"). The Court then considered "all the relevant
circumstances," including the child's age, the school setting,
the teachers' objective, and the overall informality of the
18
No. 2018AP1952-CR
situation, and concluded that the primary purpose of the child's
statements was not to "creat[e] evidence" for Clark's
prosecution. Id. at 246. Although the Court again "decline[d]
to adopt a categorical rule" on the issue, id., it pointed out
that statements by someone as young as this child "will rarely,
if ever, implicate the Confrontation Clause," id. at 248.
C
¶32 Bryant and Clark neither contradicted Crawford or
Davis nor drastically altered the Confrontation Clause analysis.
Given that both Crawford and Davis declined to
"comprehensive[ly]" define "testimonial statement," it was
inevitable that future cases like Bryant and Clark would further
refine that term. See Crawford, 541 U.S. at 68; Davis, 547 U.S.
at 821-22. In the "new context" of a potential threat to the
responding police and the public at large, Bryant "provide[d]
additional clarification with regard to what Davis meant by 'the
primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency.'" Bryant, 562 U.S.
at 359. Similarly, in Clark, the Court applied the primary
purpose test to answer a question it had "repeatedly
reserved: whether statements made to persons other than law
enforcement officers are subject to the Confrontation Clause."
Clark, 576 U.S. at 246.
¶33 The Court's own reflections on its post-Crawford
decisions demonstrate that it did not see those decisions as
contradicting Crawford or Davis but rather as efforts to "flesh
out" the test it first articulated there. See id. at 243-46;
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No. 2018AP1952-CR
see also id. at 252 (Scalia, J., concurring) (plainly stating
in 2015 that Crawford "remains the law"). Federal courts of
appeals' interpretations of Bryant and Clark confirm that
progression. See, e.g., United States v. Norwood, 982
F.3d 1032, 1043-44 (7th Cir. 2020); Issa v. Bradshaw, 910
F.3d 872, 876 (6th Cir. 2018); United States v. Lebeau, 867
F.3d 960, 980 (8th Cir. 2017). The Seventh Circuit Court of
Appeals, for instance, recently noted that Bryant "further
elaborated" on Davis's ongoing emergency analysis by "ma[king]
clear that the totality of the circumstances guides the primary
purpose test, not any one factor." Norwood, 982 F.3d at 1043-44
(emphasis removed). That court has likewise cited Clark as a
continuation in the primary purpose test's development. See,
e.g., United States v. Amaya, 828 F.3d 518, 528-29, 529 n.4 (7th
Cir. 2016).
¶34 Our recent jurisprudence also reveals that Crawford
and Davis——and therefore our analysis in Jensen I——have not been
contradicted. Even after Bryant and Clark, we continue to cite
Crawford and Davis in resolving whether an unavailable witness's
statement is testimonial. See State v. Reinwand, 2019 WI 25,
¶¶19-22, 385 Wis. 2d 700, 924 N.W.2d 184; State v. Nieves, 2017
WI 69, ¶¶26-29, 376 Wis. 2d 300, 897 N.W.2d 363; State v.
Zamzow, 2017 WI 29, ¶13, 374 Wis. 2d 220, 892 N.W.2d 367; State
v. Mattox, 2017 WI 9, ¶¶24-25, 373 Wis. 2d 122, 890 N.W.2d 256.
Even more to the point, on the limited occasions we have cited
Bryant or Clark, we have interpreted them as continuing to apply
the primary purpose test. See Reinwand, 385 Wis. 2d 700,
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No. 2018AP1952-CR
¶¶22, 24; Mattox, 373 Wis. 2d 122, ¶32 ("Clark reaffirms the
primary purpose test"). We have never interpreted Bryant or
Clark to be a departure from Crawford or Davis, much less the
type of drastic departure required to justify deviating from the
law of the case.
¶35 In some ways, Jensen I anticipated Bryant and Clark.
For instance, we decided Jensen I by not only analyzing the
content of Julie's statements but also objectively evaluating
the relevant "circumstances" under which she made them.
Jensen I, 299 Wis. 2d 267, ¶¶26-30. That is what the United
States Supreme Court held in Bryant. See 562 U.S. at 359(requiring courts to "objectively evaluate the circumstances"
surrounding the statement's creation when determining its
primary purpose). In Jensen I, we rejected the State's argument
that "the government needs to be involved in the creation of the
statement" for that statement to be testimonial. See
Jensen I, 299 Wis. 2d 267, ¶24. This mirrors the holding in
Clark. See 576 U.S. at 246 (recognizing that "at least some
statements to individuals who are not law enforcement officers
could conceivably raise confrontation concerns"). Far from
being contrary to Jensen I, Bryant and Clark are consistent with
it.
IV
¶36 Our decision in Jensen I that Julie's statements
constituted testimonial hearsay established the law of the case.
Subsequent developments in the law on testimonial hearsay are
not contrary to Jensen I. Therefore, the circuit court was not
21
No. 2018AP1952-CR
permitted to deviate from our holding in Jensen I. Accordingly,
we affirm the court of appeals' decision. We modify that
decision, however, to the extent that the court of appeals
incorrectly relied upon Cook.
By the Court.—The decision of the court of appeals is
modified, and as modified, affirmed.
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No. 2018AP1952-CR.jjk
¶37 JILL J. KAROFSKY, J. (concurring). I join the
majority opinion, with the exception of ¶35, because I agree
that our decision in Jensen I that Julie's statements
constituted testimonial hearsay established the law of the case
and a controlling court has not issued a contrary decision on
the same point of law. State v. Jensen (Jensen I), 2007 WI 26,
299 Wis. 2d 267, 727 N.W.2d 518. I write separately, however,
because I disagree with the majority's assertion that the Jensen
I court "objectively evaluat[ed] the relevant 'circumstances'
under which she made [her statements]." Majority op., ¶35. In
other words, I conclude that the Jensen I court completely
failed to consider the context in which Julie made her
statements.
¶38 Had this court in Jensen I truly considered that
context, it would have recognized that Julie was undeniably a
victim of domestic abuse and that prior to her death she lived
in terror born of the unimaginable fear that her husband was
going to kill her and claim that her death was a suicide. It
was under these circumstances that she left two voicemails for
Pleasant Prairie Police Officer Ron Kosman and wrote a letter
which she gave to a neighbor with instructions to give it to the
police should anything happen to her.
¶39 This writing begins with a discussion of domestic
abuse and how Crawford v. Washington, 541 U.S. 36 (2004),
impacted the prosecution of domestic abuse cases. Next, I
summarize the United States Supreme Court's decisions in
Crawford, Davis v. Washington, 547 U.S. 813 (2006), and Davis'
1
No. 2018AP1952-CR.jjk
companion case, Hammon v. Indiana. I follow with an examination
of Jensen I, since it was decided less than a year after Davis
and Hammon, and with a discussion of three cases from the United
States Supreme Court and this court that were decided
post-Jensen I. This case overview reveals how the United States
Supreme Court and this court have increasingly given weight to
context when assessing whether the hearsay statement of an
unavailable witness is testimonial in nature. Next, to assist
future courts in assessing context, I supply a non-exhaustive
list of contextual questions based off the previously summarized
cases. Finally, I conclude this concurrence with a discussion
of assessing context in domestic abuse cases and an objective
evaluation of the circumstances under which Julie made her
statements.
I. DOMESTIC ABUSE AND VICTIMLESS PROSECUTION
¶40 Domestic abuse, or interpersonal violence, is a
significant public health issue. About one in four women and
one in seven men have experienced an act of physical violence
from an intimate partner in their lifetime. Caitlin Valiulis,
Domestic Violence, 15 Geo. J. Gender & L. 123, 124 (2014). In
addition, and far more sobering, the nation's crime data
suggests that over half of female homicide victims in the United
States are killed by a current or former intimate partner. See
Natalie Nanasi, Disarming Domestic Abusers, 14 Harv. L. & Pol'y
Rev. 559, 563 & n.16 (2020) (citing statistics from the Center
for Disease Control and Prevention regarding the role of
intimate partner violence).
2
No. 2018AP1952-CR.jjk
¶41 To counteract this public health issue, prosecutors
have worked to hold abusers accountable. This is often a
difficult, if not impossible, task because abusers' actions
often render their victims unavailable to testify. Beginning in
the mid-1990s, prosecutors pursued these so-called "victimless"
prosecutions by seeking to introduce reliable evidence using
victims' out-of-court statements through 911 operators, medical
professionals, social workers, and law enforcement officers.
See Andrew King-Ries, Crawford v. Washington: The End of
Victimless Prosecution?, 28 Seattle U. L. Rev. 301 (2005).
Victim advocates and prosecutors applauded this approach because
it maintained victims' safety and avoided retraumatization. Id.This practice, however, came to a screeching halt after the
United States Supreme Court's decision in Crawford,1 in which the
Court profoundly altered the analysis as to when an unavailable
witness's hearsay statement is admissible under the
Confrontation Clause of the Sixth Amendment.
In a 2004 survey of 64 prosecutors' offices in California,
1
Oregon, and Washington, 63 percent of respondents reported that
Crawford v. Washington, 541 U.S. 36 (2004) had significantly
impeded domestic violence prosecution. Tom Lininger,
Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 750
(2005). Further, 76 percent of respondents indicated that after
Crawford their offices were more likely to dismiss domestic
violence charges when the victims refused to cooperate or were
unavailable. Id. at 773.
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No. 2018AP1952-CR.jjk
II. PRECEDENT FROM THE UNITED STATES SUPREME COURT
ABOUT NONTESTIMONIAL HEARSAY
¶42 In Crawford, the United States Supreme Court
fundamentally changed the analysis regarding the admissibility
of an out-of-court witness's statement by deciding that when
such a statement is testimonial in nature, the witness must
testify and face cross-examination. 541 U.S. at 68.
Consequently, if that witness is unavailable, his or her
testimony will be excluded. Id. The Crawford Court did not
further explain what it meant by "testimonial." Writing for the
majority, Justice Scalia reasoned:
Where testimonial evidence is at issue, however, the
Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-
examination. We leave for another day any effort to
spell out a comprehensive definition of 'testimonial.'
Whatever else the term covers, it applies at a minimum
to prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and to police
interrogations.
Id. (Footnote omitted.)
¶43 The United States Supreme Court first applied its
reasoning in Crawford to situations of domestic abuse in Davis
and Hammon. In doing so, the Court created a primary-purpose
test to determine whether or not a statement is testimonial. In
short, the test is designed to ascertain whether the primary
purpose of an interrogation is to enable police to meet an
ongoing emergency. Statements are "testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later
criminal prosecution." Davis, 547 U.S. at 822.
4
No. 2018AP1952-CR.jjk
¶44 In Davis, the Court analyzed a 911 call in which the
victim reported that Davis was "jumpin' on [her] again" and
beating her with his fists. Id. at 817. The victim also
"described the context of the assault" and gave identifying
information about Davis. Id. at 818. The Court held that these
statements were admissible because their primary purpose was to
"enable police assistance to meet an ongoing emergency." Id. at
828.2 The Court distinguished this statement from the one at
issue in Crawford, reasoning that the statements were made "as
they were actually happening" and while the victim was "in
immediate danger." Id. at 827, 831 (emphasis in original). The
Court also determined that the statements were helpful to the
police because they allowed them to assess any potential threats
towards them or the victim. Id. at 832. In sum, the Court
decided that the victim was not testifying because "[n]o
'witness' goes into court to proclaim an emergency and seek
help." Id. at 828.
The Davis Court described these statements as "frantic,"
2
547 U.S. at 827, a word that connotes a lack of thought or good
judgment. This type of language is emblematic of the obstacles
domestic abuse victims face in effectively conveying the truth
of their experiences to institutional gatekeepers. "[D]omestic
violence complainants can find themselves in a double bind. The
symptoms of their trauma—the reliable indicators that abuse has
in fact occurred—are perversely wielded against their own
credibility in court. [Post-traumatic stress disorder] symptoms
can . . . contribute to credibility discounts that may be
imposed by police, prosecutors, and judges." Deborah Epstein &
Lisa A. Goodman, Discounting Women: Doubting Domestic Violence
Survivors' Credibility and Dismissing Their Experiences, 167 U.
Penn. L. Rev. 399, 422 (2019).
5
No. 2018AP1952-CR.jjk
¶45 The Court reached a different conclusion in Hammon, in
which police called to a domestic violence incident found the
victim on the front porch and Hammon inside the house. Id. at
819. As part of their investigation, the officers asked the
victim to fill out and sign a "battery affidavit." Id. at 820.
In filling out the affidavit, the victim described how Hammon
broke a glass heater, pushed her into the broken glass, hit her
in the chest, prevented her from leaving by damaging her van,
and attacked her daughter. Id. The Court determined the
primary purpose of this statement was to provide a "narrative of
past events," and the Court reasoned that giving a statement
about past events meant there was "no emergency in progress."
Id. at 829, 832. For these reasons, the Court decided the
victim's affidavit was inadmissible hearsay. Id. at 834.
III. JENSEN I
¶46 Shortly after the United States Supreme Court decided
Davis and Hammon, this court determined in Jensen I that the
primary purpose of Julie's letter was not to help the police in
an ongoing emergency, but to "investigate or aid in prosecution
in the event of her death." Jensen I, 299 Wis. 2d 267, ¶27.
Additionally, the court also reasoned that the voicemails "were
entirely for accusatory and prosecutorial purposes." Id., ¶30.
¶47 In Julie's second voicemail, she told Officer Kosman
that she thought Jensen was going to kill her. The letter that
Julie gave her neighbor read as follows:
I took this picture [and] am writing this on Saturday
11-21-98 at 7AM. This 'list' was in my husband's
business daily planner—not meant for me to see, I
don't know what it means, but if anything happens to
6
No. 2018AP1952-CR.jjk
me, he would be my first suspect. Our relationship
has deteriorated to the polite superficial. I know
he's never forgiven me for the brief affair I had with
that creep seven years ago. Mark lives for work [and]
the kids; he's an avid surfer of the Internet....
Anyway—I do not smoke or drink. My mother was an
alcoholic, so I limit my drinking to one or two a
week. Mark wants me to drink more—with him in the
evenings. I don't. I would never take my life
because of my kids— they are everything to me! I
regularly take Tylenol [and] multi-vitamins;
occasionally take OTC stuff for colds, Zantac, or
Immodium; have one prescription for migraine tablets,
which Mark use[s] more than I.
I pray I'm wrong [and] nothing happens . . . but I am
suspicious of Mark's suspicious behaviors [and] fear
for my early demise. However, I will not leave David
[and] Douglas. My life's greatest love,
accomplishment and wish: "My 3 D's"—Daddy (Mark),
David [and] Douglas.
Id., ¶7.
¶48 Although the record in this case was replete with
references to domestic abuse and the Jensen I majority took
great pains to explain that it reached its decision by examining
"[t]he content and the circumstances surrounding the letter" and
applied the same reasoning to the voicemails, id., ¶27, nowhere
in the majority opinion, not even in a passing phrase or
fleeting word, did this court acknowledge that Julie was the
victim of domestic abuse. Instead, employing an ill-suited
analogy, the majority compared Julie's letter and voicemails to
Lord Cobham's letter at Sir Walter Raleigh's trial for treason.
Id., ¶29. Drawing a parallel between a 1603 treason trial—where
Cobham, the missing (but still very much alive) accomplice,
wrote a letter maintaining his innocence while accusing Raleigh—
and a 1998 domestic homicide makes for a particularly inapt
7
No. 2018AP1952-CR.jjk
analogy; it draws a comparison remote in time, place, content,
and circumstance in every possible aspect.
IV. POST-JENSEN I
¶49 Post-Jensen I, the United States Supreme Court issued
two decisions that further illuminated the import of assessing
context when courts are determining the primary purpose of an
unavailable witness's hearsay statement, Michigan v. Bryant, 562
U.S. 344 (2011), and Ohio v. Clark, 576 U.S. 237 (2015). In
Bryant, the police found a gunshot victim at a gas station. 562
U.S. at 349. Although the victim was bleeding profusely and was
having trouble speaking, he told police that Bryant shot him
through the back door of Bryant's house. Id. Unfortunately,
the victim died within hours. Id. The Bryant Court decided
that the victim's statement was admissible because its primary
purpose was to help the police resolve an ongoing emergency,
especially in light of the fact that Bryant posed an ongoing
threat to the community at large. Id. at 371-73. The Court
emphasized that determining the primary purpose of a statement
is an objective test and clarified that an ongoing emergency is
only one factor to be considered. Id. at 360, 366. The Court
outlined other important factors, including the statements and
actions of both the declarant and the interrogators, and the
formality of the encounter. Id. at 366-67. The court noted
that victims may have "mixed motives" when making a statement to
the police. Id. at 368 ("During an ongoing emergency, a victim
is most likely to want the threat to her and to other potential
8
No. 2018AP1952-CR.jjk
victims to end, but that does not necessarily mean that the
victim wants or envisions prosecution of the assailant.").
¶50 Clark, 576 U.S. 237, involved a different type of
violence in the home: child abuse. In that case, Clark was
accused of abusing his girlfriend's three-year old son after the
victim disclosed the abuse to a teacher who observed visible
injuries on the boy's body. Id. at 240-41. The statements to
the teacher were determined to be nontestimonial because the
teacher's objective in asking questions was to protect the
victim, not to arrest or punish his abuser. Id. at 247. The
Clark Court reiterated the importance of context, explaining
"[c]ourts must evaluate challenged statements in context, and
part of that context is the questioner's identity." Id. at 249.
In considering "all the relevant circumstances," including the
child's age, the school setting, the teacher's objective, and
the overarching informality of the situation, the Court
concluded that the primary purpose of the victim's statements
was not to "creat[e] evidence" for Clark's prosecution. Id. at
246. Rather, the teacher's questions were intended to identify
the abuser "to protect the victim from future attacks." Id. at
247.
¶51 Subsequently, we interpreted Clark in Reinwand, in
which Joseph Reinwand was convicted of first-degree intentional
homicide for killing his daughter's former partner. State v.
Reinwand, 2019 WI 25, 385 Wis. 2d 700, 924 N.W.2d 184.
Reinwand's daughter and the victim were planning to mediate a
custody dispute and in the days leading up to the mediation,
9
No. 2018AP1952-CR.jjk
Reinwand threatened to harm or kill the victim if he continued
to seek custody. Id., ¶6. The victim reported these threats to
family and friends, saying he was scared for his life and that
if anything happened to him, people should look to Reinwand.
Id. A short time later, the victim was found dead in his home.
This court looked to four relevant factors in deciding whether
Reinwand's statements were 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 the declarant;
and (4) the context in which the statement was given.
Id., ¶25 (citing State v. Mattox, 2017 WI 9, ¶32, 373 Wis. 2d
122, 890 N.W.2d 256).
¶52 The Reinwand court concluded that the statements were
nontestimonial because: (1) they were given in informal
situations, primarily inside people's houses and at an Arby's
restaurant; (2) none of the statements were given to law
enforcement or intended for law enforcement; (3) the age of the
victim was irrelevant; and (4) the victim's statements were made
to friends and family and his demeanor suggested genuine concern
because he seemed "concerned, stressed, agitated . . . and
genuinely frightened." Id., ¶¶27-30. The court concluded that
the victim's "demeanor suggests that he was expressing genuine
concern and seeking advice, rather than attempting to create a
substitute for trial testimony." Id., ¶30.
V. ASSESSING CONTEXT
¶53 The post-Crawford cases emphasized the importance of
assessing context when courts are determining whether the
10
No. 2018AP1952-CR.jjk
hearsay statement of an unavailable witness is testimonial. The
following non-exhaustive list of questions summarizes the
contextual inquiries the United States Supreme Court and this
court made in post-Crawford cases:
 Is there an ongoing emergency? (Davis)
 Do the statements help the police assess whether there
is a potential threat? (Davis)
 Is the victim in immediate danger? (Davis)
 Is the statement a narrative of past events? (Hammon)
 Is the statement related to an ongoing threat to the
community at large? (Bryant)
 What's the declarant's actual statement? (Bryant)
 What are the actions of the declarant? (Bryant)
 What are the actions and statements of the
interrogators? (Bryant)
 Are the interrogators' intentions to protect the
victim or arrest/prosecute the abuser? (Clark)
 Is the encounter formal (at a police station) or
informal? (Bryant)
 Was the statement given to law enforcement? (Clark)
 Were the statements intended for law enforcement?
(Clark)
 How old is the declarant? (Clark)
 What is the relationship between the declarant and the
suspect? (Clark)
 What was the demeanor of the declarant at the time the
statements were made? (Reinwand)
11
No. 2018AP1952-CR.jjk
 Is the statement a prediction of future events?
(Reinwand)
VI. CONTEXT IN DOMESTIC ABUSE CASES
¶54 Applying the above considerations to situations of
domestic abuse can be challenging because domestic abuse rarely
takes place in a vacuum. That is, there are often multiple
incidents and the abuse can span the course of days, weeks,
months, or years. See, e.g., Eleanor Simon, Confrontation and
Domestic Violence Post-Davis: Is There and Should There Be a
Doctrinal Exception?, 17 Mich. J. Gender & L. 175, 206 (2011)
("[A] domestic violence victim exists in a relationship defined
by long-term, ongoing, powerful, and continuous abuse . . . it
is illogical and impractical to attempt to find the beginning
and end of an 'emergency' in such a context."). In addition,
victims of domestic abuse are often afraid to report acts of
violence, or they recant or refuse to cooperate after initially
providing information because they fear retaliation. Id. at
184-85. Therefore, victims may not make a report or they may
minimize or deny incidents of abuse. It is also important to
understand that no one knows an abuser better than the abuser's
victim. And the most dangerous time for a victim of domestic
abuse is when he or she decides to leave the relationship. See
Lisa A. Goodman & Deborah Epstein, Listening to Battered Women:
A Survivor-Centered Approach to Advocacy, Mental Health, and
Justice 76 (2008) ("Substantial data show that separation from
the batterer is the time of greatest risk of serious violence
and homicide for battered women and for their children.").
12
No. 2018AP1952-CR.jjk
¶55 Having suggested some contextual questions and
acknowledging the challenges of understanding context in cases
of domestic abuse, I conclude this concurrence by objectively
evaluating the relevant circumstances under which Julie made her
statements, a task the majority opinion erroneously claims the
Jensen I court did. That evaluation reveals that Julie:
 was a victim of domestic abuse;
 believed there was an ongoing emergency as she feared
her husband was going to kill her;
 perceived herself to be in immediate danger because
her husband was engaging in behavior that did not make
sense to her;
 had significant safety concerns;
 was afraid her death was going to be made to look like
a suicide;
 loved her sons;
 wanted her sons to know she did not intend to kill
herself;
 was making a prediction about her husband's future
behavior;
 was not questioned/interrogated in this case; and
 did not have a formal encounter in a police station.
¶56 When looking at this evidence in context, it is
apparent that Julie was a victim of domestic abuse and that
prior to her death she lived in terror born of the unimaginable
fear that her husband was going to kill her and claim that her
death was a suicide. It was under these circumstances that she
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No. 2018AP1952-CR.jjk
left the voicemail messages for Officer Kosman and wrote the
letter which she gave to a neighbor with instructions to give it
to the police should anything happen to her.
¶57 With this context in mind, we must ask: Was Julie
making statements for the future prosecution of her husband for
her murder? Or was she a woman trying to survive ongoing
domestic abuse, fearing and predicting an imminent attempt on
her life, telling her sons that she loved them too much to
commit suicide? This is the voice——Julie's voice——that this
court failed to acknowledge in Jensen I.
¶58 Although the law of the case prohibits this court from
reconsidering the determinations reached by the Jensen I court,
had the Jensen I court actually "objectively evaluat[ed] the
relevant circumstances" surrounding Julie's statements, it would
have recognized the atmosphere of domestic abuse that suffused
the factual background and the relationship at the center of
this case and possibly reached a different conclusion.
¶59 For the foregoing reasons, I concur.
¶60 I am authorized to state that Justice ANNETTE
KINGSLAND ZIEGLER joins this concurrence.
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No. 2018AP1952-CR.jjk
1