2010 WI App 162
court of appeals of
Complete Title of Case:
†Petition for Review filed
November 2, 2010
Submitted on Briefs:
August 3, 2010
Curley, P.J., Fine and Brennan, JJ.
On behalf of the defendant-appellant, the cause was
submitted on the briefs of Robert E. Haney,
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Aaron R. O’Neil, assistant attorney general.
2010 WI App 162
COURT OF APPEALS
DATED AND FILED
November 2, 2010
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
Cir. Ct. Nos. 2007CM2031
IN COURT OF APPEALS
from judgments of the circuit court for
¶1 BRENNAN, J. Scottie L. Baldwin appeals
two evidentiary rulings entered on the first day of his jury trial and the
imposition of a DNA surcharge at sentencing. First, he argues that the trial court violated
the Sixth Amendment’s Confrontation Clause by admitting statements made by
¶2 We reject Baldwin’s arguments and affirm because the trial
court made the requisite findings under Giles v. California, ___ U.S. ___,
128 S. Ct. 2678 (2008), to establish forfeiture by wrongdoing and the record
reveals sufficient authentication for the telephone recordings under Wis. Stat. § 909.015 and State
v. Williams, 2002 WI 58, 253
I. Prior Dismissed Cases Relevant to Appeal
II. First Case Consolidated on Appeal: Case No. 2007CM1803
¶4 On March 13, 2007,
III. Second Case Consolidated on Appeal: Case No. 2007CM2031
¶5 Ten days later, while
IV. Third Case Consolidated on Appeal: Case No. 2007CF2984
¶6 On June 14, 2007,
suffered serious bodily injuries … including, but not necessarily limited to[:] two black eyes, substantial swelling to the orbital area of each eye and the upper forehead, apparent blood on the surface of her eyes, significant discoloration of the whites of each eye, temporary impairment of her vision, significant pain, bruising, redness, and discoloration, various abrasions to the facial area and a substantial goose-egg like swollen bump to her upper forehead above the right eye.
After Baldwin refused to let
R.Z. leave an upstairs bedroom for over two hours, she was able to escape to her
sister’s house while
¶8 Because Case No. 2007CF2984 charged
To whom it may concern:
I called my baby’s father, Scottie Baldwin, three or four times before he picked up his cell phone in the early morning hours. I was trying to inform him that I had a fight in the club and that I had needed his help because some girl and a boyfriend had jumped on me. Scottie came about thirty minutes after the altercation had went on. He was asking me why did I go out to the club while pregnant with his child. I started to get upset and I really didn’t want to go back to the club and confront them. I called the cops about three or four hours after and informed them that Scottie did it to me. I did not take my medication that morning. I have been diagnosed with bipolar disease. I refuse to come to court knowing that I lied lied [sic] on Scottie. Sorry for the inconvenience.[]
Without R.Z.’s testimony, the
State could not proceed with the felony charges against
V. Fourth Case Consolidated on Appeal: Case No. 2007CF3514
¶9 After R.Z. failed to appear in court on June 21 and 26, 2007,
the State obtained a search warrant to search R.Z.’s residence. Police found written correspondence in the
residence sent to R.Z. from
Call Judge Conen, Branch 30, and tell him about the bipolar situation. And he is the one that put a body warrant for you out before and you went out of town. Until you drop it, you planning to go out of town. If they put a body warrant out again, tell them you didn’t take your medication that day and shit like this that happened before, and you’re not coming to court no matter what. Leave the judge your number in case he want to call and verify it. Call at about 8 o’clock in the morning Thursday. I love you. Everlasting love on my mama. Everything is going to be all right. Papi.[]
¶10 Approximately one month after R.Z. failed to appear at the
preliminary hearing in Case No. 2007CF2984, the State filed the complaint in
the fourth case consolidated on appeal, Case No. 2007CF3514. After filing an amended information, the
¶11 The first count, intimidation of a witness, a felony, alleged that Baldwin intimidated R.Z. from appearing and testifying at the June 21 and 26, 2007 preliminary hearing dates in Case No. 2007CF2984. The allegations were based on: the June 20, 2007 card from Baldwin to R.Z. found in R.Z.’s residence; R.Z.’s June 20, 2007 letter to the trial court; and Baldwin’s subsequent failure to appear at the June 21 and 26, 2007 preliminary hearing dates.
¶12 Counts two through four—charging disorderly conduct, criminal
damage to property and battery—were based on an August 5, 2005 incident in
which R.Z. told police that
¶13 Count five, disorderly conduct, was based on a January 13, 2006
incident in which R.Z. told police that she had run outside because Baldwin had
been threatening her and chasing her and she feared for her safety. Once outside,
¶14 Counts six and seven, two misdemeanor counts of intimidating a
witness, were based on additional correspondence police recovered during the
search of R.Z.’s residence.
VI. August 2 and 3, 2007 Preliminary Hearing
¶15 The preliminary hearing in Case No. 2007CF3514 was held on
August 2 and 3, 2007. Milwaukee County
Deputy Sheriff James Urban and Milwaukee Police Department victim liaison Kara
Garcia testified. The exhibits received
at the preliminary hearing included: the
June 20, 2007 card Baldwin sent R.Z. from jail, Milwaukee County Jail records,
Milwaukee Police Department voice mail recordings and two recordings of
¶16 Deputy Urban testified that Milwaukee County Jail recordings
showed that telephone calls were placed to (414) 588-4372 from “pods” that
¶17 Garcia testified that she was assigned to be R.Z.’s liaison. She testified that exhibit 11 was a tape
recording of a voice message left by R.Z. on Garcia’s telephone. The tape recording was played and Garcia
identified R.Z.’s voice. Garcia
testified that exhibit 6 was an accurate transcript of exhibit 11, and in it,
R.Z. told Garcia to call R.Z. at (414) 588-4372, the same number Deputy Urban
identified had been called from the pod in which
¶18 Garcia also testified that she was present during the execution
of the search warrant at 1208 South 7th Street, R.Z.’s home. She identified exhibit 3-A as an envelope
from the Criminal Justice Facility bearing Baldwin’s name and postmarked June
20, 2007. She identified exhibit 3-B as the
card that the police recovered from R.Z.’s bedroom during the execution of the
search warrant. Garcia read the card
into the record, in which
¶19 Following the preliminary hearing, the trial court found that
the telephone calls and writings were admissible and found probable cause
existed on which to charge Baldwin with intimidating a witness, i.e.,
intimidating R.Z. from appearing at the June 20 and 26, 2007 preliminary hearing
in Case No. 2007CF2984. The trial
court bound Baldwin over for trial, rescinded all of
VII. Motion to Admit Hearsay Evidence under the
¶20 In August 2007, the State filed a motion asking the trial court
to admit into evidence, under the forfeiture by wrongdoing doctrine, R.Z.’s
statements to the police about what
VIII. Pretrial Proceedings
¶21 On January 7, 2008, the date on which the jury trial was set to begin, the State filed a written motion for an adjournment because new information had been brought to the State’s attention, requiring additional time to prepare. More specifically, the State’s motion stated that despite the trial court’s August 3, 2007 order that Baldwin be denied telephone, mail and visitation privileges, and despite the trial court’s order that Baldwin have no contact with R.Z., the State had learned that Baldwin had purchased and used telephone calling cards and had utilized the assistance of third parties to call R.Z. from jail. The State claimed to have first received recordings of these calls, dozens of hours in length, on January 4, 2008. The State had listened to them and notified defense counsel of their contents.
¶22 The State also alleged that in one call, made on November 28,
¶23 On December 10, 2007, the court received a notarized statement,
Dear Attorney Mr. Shikora, I looked on the computer and
seen that the State of
Consistent with her November 28, 2007 notarized statement, R.Z. failed to appear for trial on January 7, 2008, even though the State informed the trial court that R.Z. had been successfully served.
¶24 On April 10, 2008, the State filed a brief in an attempt to
authenticate the recordings of the telephone calls
IX. Evidentiary Rulings
¶25 The trial court, on April 14, 2008, made two evidentiary rulings based on: the State’s attachments to its motions, the August 2 and 3, 2007 preliminary hearing testimony and corresponding exhibits, and the procedural history and pleadings in the pending domestic violence cases.
¶26 First, the trial court found that the telephone recordings were
admissible over trial defense counsel’s objection as to foundation under Wis. Stat. § 909.015 because the
State’s witnesses had sufficiently identified R.Z.’s voice in the recordings and
had linked the calls to
¶27 Second, the trial court found that R.Z.’s statements to the police were admissible under the forfeiture by wrongdoing doctrine. The trial court based its ruling on its finding that R.Z. was unavailable for trial and that the State had shown, by a preponderance of the evidence, that Baldwin had “intimidated the State’s witness R[.]Z[.], from attending court to testify against him [Baldwin] at trial.”
¶28 The jury trial proceeded without R.Z.
¶29 On June 12, 2009,
STANDARD OF REVIEW
¶30 “Although a [trial] court’s decision to admit evidence is
ordinarily a matter for the court’s discretion, whether the admission of
evidence violates a defendant’s right to confrontation is a question of law
subject to independent appellate review.” State v. Jensen, 2007 WI 26, ¶12,
¶31 A trial court properly exercises its discretion when the record
shows it “‘examined the relevant facts, applied a proper standard of law, and,
using a demonstrated rational process, reached a conclusion that a reasonable
judge could reach.’” State
v. Jenkins, 2007 WI 96, ¶30, 303
I. Forfeiture by Misconduct
¶32 Baldwin argues that the trial court violated the Confrontation
Clause of the United States Constitution when it admitted into evidence at
trial R.Z.’s hearsay statements to police officers about what Baldwin did to
¶33 The State counters that the trial court properly found R.Z. unavailable and that the record shows that the trial court’s finding of forfeiture by wrongdoing comports with the recently adopted test from the United States Supreme Court in Giles. We agree with the State and affirm.
¶34 The forfeiture by wrongdoing doctrine is an exception to the
Sixth Amendment’s Confrontation Clause.
¶35 The forfeiture by wrongdoing doctrine is based on equitable
grounds, not alternative reliability grounds.
¶36 In 1997, Fed. R. Evid. 804(b)(6)
was created, codifying the common law doctrine of forfeiture by wrongdoing. Giles, 128
¶38 Giles was not decided until June 25, 2008, sixteen months after
Jensen. In Giles, the United States
Supreme Court interpreted past precedent to permit only those hearsay
exceptions to the Confrontation Clause that were established at the time of the
founding of the country. See id.,
¶39 Therefore, the Court in Giles held that forfeiture by
wrongdoing required not just that the defendant prevented the witness from testifying,
but also that the defendant intended
to prevent the witness from testifying. See id.
at 2684‑86. In doing so, the Court
reaffirmed the doctrine’s viability generally, but chose the narrower view of
its scope. See id. This narrower view was the one advanced
by Justice Louis Butler’s dissent in Jensen. See
¶40 The holding in Giles did not explicitly dictate the method by which the State must prove the defendant’s intent to prevent the declarant from appearing and testifying. However, the majority addressed the issue when responding to the dissent’s concern that the majority’s narrow view of the doctrine could negatively impact domestic violence cases. Significantly, the majority noted that evidence of past abuse or threats was “highly relevant” to the proof of the defendant’s intent to prevent the victim from testifying, especially if there were ongoing proceedings at which the victim would be expected to testify:
Acts of domestic violence often are intended to
dissuade a victim from resorting to outside help, and include conduct designed
to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates
in murder, the evidence may support a finding that the crime expressed the
intent to isolate the victim and to stop her from reporting abuse to the
authorities or cooperating with a criminal
prosecution—rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.
¶41 Here, the trial court ruled that the State had met its burden
of proving forfeiture by wrongdoing by a preponderance of the evidence because
it demonstrated that “the defendant, Scottie Baldwin, has intimidated the
State’s witness, R[.]Z[.], from attending court to testify against him at trial.” (Emphasis added.) At the time of the trial court’s ruling, Giles
had not been decided and Jensen, with its broader view of the
forfeiture by wrongdoing doctrine, required only that the defendant prevent the
witness from appearing. Despite Jensen’s
broader interpretation of the doctrine, in a prescient decision, the trial
court went beyond finding that Baldwin’s actions satisfied that more lenient holding
and found that
¶42 In his reply brief,
¶44 Second, as noted in Giles, Baldwin’s past physical
violence and threats to R.Z. are “highly relevant” to a finding of wrongdoing
by forfeiture, even if alone such evidence is not sufficient proof of his
present intent. Giles, 128
¶45 Finally, with regard to the trial court’s forfeiture by
wrongdoing finding, we note that Baldwin does not challenge the sufficiency of
the record to support the trial court’s factual findings that he intimidated
R.Z., preventing her from appearing to testify at trial. Indeed, Baldwin could not challenge the
sufficiency of the evidence because the jury subsequently found
¶46 Baldwin also argues that the trial court’s finding that R.Z.
was unavailable on April 14, 2008, the first day of trial, was an erroneous
exercise of discretion because the State did not do enough to return R.Z. on
the body attachment that was issued early that morning.
¶48 Nonetheless, we note that the record supports the trial court’s
unavailability finding. Wisconsin Stat. § 908.04(1)(e)
requires the proponent of a witness to secure the witness’s appearance “‘by
process or other reasonable means.’” Williams,
¶49 Here, the trial court properly found that the State had met its
burden of showing that R.Z. was unavailable under Wis. Stat. § 908.04 and that the State exercised due
diligence and good faith in attempting to secure her presence. See
THE COURT: The State has provided me with a subpoena that demonstrates that R[.]Z[.] was served with a copy of the subpoena on April 14th—excuse me—on March 31, 2008, at 2:16 p.m. requiring her attendance in court today, April 14th, at 8:30 in the witness waiting room of the courthouse. This case was called earlier today, and R[.]Z[.] had not appeared, and I take it the State double‑checked that she was not in the waiting area; is that correct?
[STATE]: Yes, Judge.
THE COURT: And I issued a body attachment. I don’t recall, exactly, what time that was. It took some time to bring the defendant over from court staging. I’m just guessing maybe around 9:30 or so. It was signed by the court, but I’m just guessing sometime this morning it was signed by the Court. And—and the State has sent out officers looking for Ms. Z[.], and she is not in court.
I believe, based upon the State’s attempts, they have made a good faith attempt to secure her appearance in court on today’s date, and R[.]Z[.] is not here.
¶50 In addition to successfully serving R.Z. with process for the
trial, the record shows that the State successfully served R.Z. with process
two previous times—on June 21, 2007 and January 7, 2008—and once in 2005. Each time, R.Z. failed to appear. Despite R.Z.’s past failures to appear, the
State served her again, and on the morning of the jury trial, April 14, 2008,
the State obtained a body attachment and again unsuccessfully attempted to
return R.Z. to court. Based on the above
record, the trial court found that the State had exercised due diligence and made
a good faith effort to produce R.Z. for trial, but that despite that effort R.Z.
was unavailable. See La Barge v. State, 74
¶51 Accordingly, we conclude that the record shows that the trial
court “examined the relevant facts, applied a proper standard of law, and,
using a demonstrated rational process, reached a conclusion that a reasonable
judge could reach.’” See Jenkins,
II. Authentication of Telephone Recordings
¶52 Next, we address the admissibility of the telephone recordings.
¶53 The trial court found that the telephone recordings were properly authenticated because the State had sufficiently identified Baldwin as the caller and R.Z. as the recipient of the calls, by presenting: (1) the testimony of a lay witness (Garcia) who identified the voice of the recipient of the calls as belonging to R.Z.; (2) Milwaukee County Jail records identifying the specific pods in the jail from which the calls were made as the same pods that Baldwin was assigned to and identifying the times the calls were made as times when Baldwin was there; and (3) the details in the telephone calls themselves, which demonstrated knowledge familiar only to Baldwin and R.Z. We agree and affirm.
¶54 Wisconsin Stat. ch. 909 sets forth the rules on
authentication. Wisconsin Stat. § 909.01 provides: “General
provision. The requirements of
authentication or identification as a condition precedent to admissibility are
satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.” In other words, as applied here, § 909.01
provides that the trial court, as gatekeeper, must exercise its discretion to
determine whether the evidence is sufficient to prove that
¶56 We conclude that the record identifies
¶57 Additionally, Deputy Urban testified at the preliminary hearing
that Milwaukee County Jail records, admitted into the record, revealed several telephone
calls made to (414) 588-4372, R.Z.’s phone number, from the pod that Baldwin
was housed in during the time he was in jail, providing circumstantial evidence
that Baldwin was the caller. Further, in
one of the recordings, a three‑way call to
¶58 Finally, the telephone transcripts reveal that the caller and
receiver in the recordings spoke about details surrounding Baldwin’s cases that
would be familiar only to
III. DNA surcharge
¶59 Finally, Baldwin appeals the trial court’s imposition of the
DNA surcharge on the grounds that the trial court erroneously exercised its
discretion under Cherry because it did not adequately explain its reasons for
imposing the surcharge. The State argues
that this court lacks jurisdiction over the issue because
¶60 On June 12, 2009,
¶61 Wisconsin Stat.
§ 809.10(1) provides that an appeal is initiated by the filing of a notice
of appeal from the “judgment or order appealed from.” Pursuant to Wis.
Stat. § 809.10(4), the notice of appeal “brings before the court
all prior nonfinal judgments, orders and rulings adverse to the appellant.”
(Emphasis added.) The notice of appeal
must sufficiently identify the order being appealed from.
¶62 Baldwin inaccurately states in his reply brief that he was unable to file a notice of appeal from
the trial court’s order denying his pro
se postconviction motion because “there was no order of the court made
which could be appealed.”
By the Court.—Judgments affirmed.
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 The record we received on appeal did not contain R.Z.’s June 20, 2007 letter to the trial court. However, the contents of the letter were read into evidence during the August 2 and 3, 2007 preliminary hearing in Case No. 2007CF3514. Because the parties do not argue over the letter’s existence or over whether the transcript from the August 2 and 3, 2007 preliminary hearing accurately reflects the contents of the letter, we accept that transcript as an accurate recitation of the letter’s contents.
 Again, the letter itself was not included in the record on appeal. Because the parties appear to agree that the card exists and that the recitation of the card’s content during the August 2 and 3, 2007 preliminary hearing is accurate, we accept that recitation as true.
the complaint charged that
 Once more, the actual statement is not in the record before this court. We accept as true the recitation of the statement in the record at the January 7, 2008 hearing on the State’s motion for adjournment because the parties appear to agree that the recitation of the statement is an accurate one.
 Defense counsel did not challenge the accuracy of the transcripts, agreeing with the trial court that the content of the transcripts accurately reflected the recordings. (“Q: So, with respect to the recordings, you believe they [transcripts] accurately portrayed what’s stated on those tapes? A: I believe so.”).
prison and extended supervision portion of
Sixth Amendment provides that ‘[i]n all criminal prosecutions, the accused
shall enjoy the right … to be confronted with the witnesses against him.’” Giles v.
 Although Wis. Stat. § 809.10(4) provides that “[a]n appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant,” (emphasis added), by exclusion, it does not bring before the appellate court orders filed after the judgment or order appealed from is entered.
 We note that although
we resolve this issue by concluding that we lack jurisdiction to review the DNA
surcharge, we also note that