author: ¶ 1. ANN WALSH BRADLEY, J.

text:
    State of Wisconsin, Plaintiff-Respondent,  v. Luther Williams, III, Defendant-Appellant.
    Supreme Court

      No. 00-3065-CR.

      Oral argument April 16, 2002.

    Decided June 6, 2002.

    2002 WI 58
    (Also reported in 644 N.W.2d 919.)

      For the defendant-appellant there were briefs and oral argument by Martha K. Askins, assistant state public defender.
    For the plaintiff-respondent the cause was argued by Diane M. Welsh, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

       Motion for reconsideration denied; opinion modified. See 2002 WI 118, 256 Wis. 2d 56, 652 N.W.2d 391.

   ¶ 1. ANN WALSH BRADLEY, J.

The court of appeals certified Luther Williams, Ill's appeal from the judgment convicting him of possession of cocaine with intent to deliver, gambling, and contributing to the delinquency of a child. Williams argues that his right to confrontation was violated when the circuit court admitted into evidence a state crime lab report to prove the presence of cocaine and when the court allowed the crime lab unit leader to testify based on the report in lieu of the analyst who performed the tests.

¶ 2. We determine that Williams' right to confrontation was not violated when the unit leader, rather than the analyst who performed the tests, testified in part based on the report containing the lab test results. In addition, we determine that the circuit court erroneously admitted the report under Wis. Stat. § 908.03(6) (1997-98), the hearsay exception for a record of regularly conducted activity (business record). However, the admission of the report was harmless error in light of the unit leader's testimony and other circumstances. We also reject other arguments Williams makes regarding an evidentiary ruling, the right to present a defense, and sufficiency of the evidence. Accordingly, we affirm the circuit court.

I — I

¶ 3. While on patrol, police officers found Williams and other individuals gambling behind a church. At least one of the individuals, James D., was a minor. An officer witnessed yet another individual fleeing the scene. A jacket was lying on the ground near Williams, and inside the jacket, police found a plastic bag containing a substance that appeared to be cocaine. Williams was charged with possession of cocaine with intent to deliver, gambling, and contributing to the delinquency of a child.

¶ 4. At the trial on these charges, the State introduced a state crime lab report showing that the substance in the jacket tested positive for cocaine base. The analyst who performed the tests underlying the report originally was scheduled to testify, but after Williams requested an adjournment, the State was unable to produce the analyst. Instead, the State presented the testimony of Sandra Koresch, a unit leader in the drug identification section of the crime lab who performed the peer review on the tests the analyst conducted. Based in part on the contents of the lab report, Koresch testified that the substance in the jacket contained cocaine base.

¶ 5. Williams moved to strike Koresch's testimony and asked the court to exclude the crime lab report from evidence. He argued that he was being denied his right to cross-examine the analyst who performed the tests. The circuit court disagreed, determining that the lab report fell within Wis. Stat. § 908.03(6), commonly referred to as the "business records" exception to the general rule that hearsay is inadmissible. In addition, the court determined that Koresch's presence and testimony satisfied Williams' right to confrontation.

¶ 6. The jury convicted Williams on all three charges, and he appealed. The court of appeals certified the case to us pursuant to Wis. Stat. § (Rule) 809.61, noting that "the proposition proffered by the State proposes a rather broad and momentous declaration: that the State no longer need produce the expert or analyst who performs testing in a criminal trial where the business records exception comes into play."

II

¶ 7. The central question we address is whether Williams' right to confrontation was violated when Koresch, rather than the analyst who performed the tests, testified in part based on the crime lab report containing the lab test results. Although a circuit 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. Ballos, 230 Wis. 2d 495, 504, 602 N.W.2d 117 (Ct. App. 1999).

¶ 8. In addition, we must determine whether the state crime lab report was admissible as a business record under the hearsay exception in § 908.03(6). When an evidentiary issue requires the construction of a statute, a question of law is presented for independent appellate review. State v. Jagielski, 161 Wis. 2d 67, 73, 467 N.W.2d 196 (Ct. App. 1991). Finally, we address other arguments Williams makes regarding an eviden-tiary ruling, the right to present a defense, and sufficiency of the evidence.

1 — I H-l r.

¶ 9. We begin with the central issue before us, whether Williams' right to confrontation was violated when Koresch, rather than the analyst who performed the tests, testified in part based on the crime lab report containing the lab test results. Williams asserts that his right to confrontation required that the analyst testify.

¶ 10. This assertion presents a question of first impression in Wisconsin, and we turn to persuasive authority from other jurisdictions addressing identical issues for guidance. Consistent with this authority, we conclude that the admission of Koresch's testimony in lieu of that of the analyst did not violate Williams' right to confrontation.

¶ 11. Various courts have concluded that under certain circumstances the right of confrontation may be satisfied by the admission of expert testimony based upon lab test results even where the actual tester is not also present to testify. See Reardon v. Manson, 806 F.2d 39 (2d Cir. 1986); Adams v. State, 794 So. 2d 1049 (Miss. Ct. App. 2001); State v. Kennedy, 7 S.W.3d 58 (Tenn. Crim. App. 1999). In each case, the testifying expert was highly qualified and had a close connection with the testing in the case such that the expert's presence at trial satisfied the defendant's rights to confront and cross-examine.

¶ 12. For example, in Kennedy, a defendant was convicted of aggravated rape after expert testimony matched his DNA profile to that of semen taken from the rape victim. 7 S.W.3d at 60, 63. The testifying witness, an FBI expert in the field of DNA analysis and identification, was not the person who prepared the DNA samples for evaluation. Id. at 66. However, he "checked the computations of the technician and verified that the technician would have followed the standard laboratory procedures." Id.

¶ 13. The Kennedy court concluded that the admission of the expert's opinion did not violate the defendant's right to confrontation because the expert providing the opinion was available for cross-examination. 7 S.W.3d at 67. Given the expert's close connection to the testing, "the defense was able to thoroughly cross-examine [him] as to the samples, procedures, safeguards, and results reached" in the particular case. Id. at 67.

¶ 14. Similarly, in Adams the testifying witness was "eminently qualified" in molecular biology, and although he did not personally perform the DNA tests, he supervised "all aspects" of the laboratory technician's work. 794 So. 2d at 1057. He testified that the procedures were the same as those used by the FBI and that they were generally accepted procedures in the scientific community. Id. On these facts, the court in Adams rejected the defendant's assertion that he was denied his right to confrontation because the expert did not perform the test. Id.

¶ 15. The analysis in Reardon is also highly persuasive. Reardon was a drug identification case on habeas corpus review. The illegal nature of the substances seized from the two defendants was established through testimony of one of three toxicologists, Dr. Reading, who supervised approximately two dozen chemists at a state laboratory. Reardon, 806 F.2d at 41. Although the testifying toxicologist did not perform the tests on the substances, he oversaw the procedures and promptly examined the results. Id.

¶ 16. The court in Reardon disagreed with the district court's determination that the admission of the toxicologist's testimony violated the defendants' right to confrontation. 806 F.2d at 40. The court reasoned as follows:

In view of the fact that Dr. Reading's laboratory performs some 20,000 chemical tests each year, it is most unlikely that the chemists who assisted Dr. Reading would have any independent recollection of the tests they performed. Their testimony inevitably would have been based on their laboratory notes, which Dr. Reading was well qualified to interpret.

Id. at 41. Thus, the court concluded, "there would have been little potential utility in requiring the State to produce the assisting chemists for cross-examination." Id. The court added, "[ejxpert reliance upon the output of others does not necessarily violate the confrontation clause where the expert is available for questioning concerning the nature and reasonableness of his reliance." Id. at 42.

¶ 17. Also relevant to our confrontation inquiry is United States v. Lawson, 653 F.2d 299 (7th Cir. 1981). There, a chief of psychiatry gave expert testimony for the government against a defendant advancing an insanity defense. Id. at 301. The expert had some contact with the defendant, but based his opinion in part on reports he received from two examining physicians and other staff. Id.

¶ 18. The court in Lawson agreed with the defendant that expert testimony based in part on such hearsay may raise confrontation problems, but concluded that under the circumstances the defendant had an adequate opportunity to cross-examine the expert. 653 F.2d at 301. At the same time, the court recognized that expert testimony based entirely on hearsay reports would violate a defendant's right to confrontation. Id. at 302. The right to confrontation is not satisfied when the government produces a witness who does nothing but summarize out-of-court statements and opinions made by others. Id.

¶ 19. The critical point illustrated by Lawson is the distinction between an expert who forms an opinion based in part on the work of others and an expert who merely summarizes the work of others. In short, one expert cannot act as a mere conduit for the opinion of another.

¶ 20. Taken together, these cases teach that the presence and availability for cross-examination of a highly qualified witness, who is familiar with the procedures at hand, supervises or reviews the work of the testing analyst, and renders her own expert opinion is sufficient to protect a defendant's right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests. Given Koresch's qualifications and experience, her close connections to the tests and procedures implicating Williams, and her expert opinion that the tested substance contained cocaine, we determine that the admission of her testimony did not violate Williams' right to confrontation.

¶ 21. At trial, Koresch explained that she is a forensic scientist in drug identification who has been employed by the state crime lab for over nine years. She analyzes evidence for the presence or absence of controlled substances and is unit leader of the drug identification section of the lab. In addition, she holds a bachelor's degree in chemistry and has taken postgraduate courses at the University of Wisconsin, Milwaukee. She has analyzed samples for the presence of a controlled substance between 5,000 and 6,000 times. Thus, like the testifying experts in Kennedy, Adams, and Reardon, Koresch was highly qualified to render an expert opinion based on the information before her.

¶ -22.' Also, like the experts in Kennedy, Adams, and Reardon, Koresch was closely connected to the tests and procedures involved in the case and supervised or reviewed the testing. She testified that she was familiar with the various tests performed on the substance found in the jacket pocket. Upon cross-examination, Koresch indicated that she performed the peer review on the tests of this substance. Her testimony also revealed that the peer review entailed "making sure that all the notes coincide with the evidence, that the data coincides with [the] conclusion and just basic overall looking at all the data that has been collected in the case. This is done right after the report is written." On redirect, Koresch added that "peer review is meant to make sure that conclusions written in a report are correct."

¶ 23. Explaining an example of how peer review is conducted, Koresch testified that she would look at the data the tests yielded in the form of graphs and compare those graphs to standard graphs. Such a comparison would, in turn, lead her to the conclusion that the sample being tested was a controlled substance.

¶ 24. In fact, it was some of these circumstances that helped lead the circuit court to its conclusion that Williams' right to confrontation was not violated. The court reasoned as follows:

[A]lthough Ms. Koresch was not the lab analyst, she performed the peer review as part of her regular duties and also testified that she did the peer review specifically as to this test that had been done by another analyst. She indeed reviews all of the information as I understand it and the procedures that were undertaken by Ms. Ronge who's the actual lab analyst.

¶ 25. Finally, Koresch testified that based on this peer review, as well as her review of the relevant records, it was her opinion that the substance tested in this case contained cocaine base. Thus, like the expert in Lawson, although she based part of her opinion on facts and data gathered by someone else, she was not merely a conduit for another expert's opinion.

¶ 26. Consistent with the reasoning of the circuit court and with the reasoning of the courts in Kennedy, Adams, Reardon, and Lawson, we determine that Williams' right to confrontation was not violated when Koresch, rather than the analyst who performed the tests, testified in part based on the crime lab report containing the lab test results. Because Koresch was a highly qualified expert employed by the lab who was familiar with the particular lab procedures and performed the peer review in this particular case, then gave an independent expert opinion, her presence was sufficient to satisfy Williams' right to confrontation.

¶ 27. Williams nonetheless contends that Koresch's testimony was not admissible as an expert opinion because the lab report on which it was partly based is inadmissible hearsay. He argues that Koresch had to test the substance herself in order to render an expert opinion.

¶ 28. An expert opinion may be based on inadmissible hearsay. Wis. Stat. § 907.03; State v. Watson, 227 Wis. 2d 167, 195, 595 N.W.2d 403 (1999). Section 907.03 provides:

Bases of opinion testimony by experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Here, there is little question that the tests are of a type reasonably relied upon by experts in the field. Koresch testified that all the tests performed were routinely used in the identification of controlled substances. The cobalt thiocyanate test is a commonly used color change test useful for preliminary screening. Paul C. Giannelli and Edward J. Imwinkelried, 2 Scientific Evidence § 23-2, 352-54 (3d ed. 1999). The gas chromatography/mass spectrometry and infrared spectroscopy tests described by Koresch and utilized in this case also are widely used. Id. at § 23-2, 352, § 23-3 (A) and (C).

¶ 29. Section 907.03 implicitly recognizes that an expert's opinion may be based in part on the results of scientific tests or studies that are not her own. It is rare indeed that an expert can give an opinion without relying to some extent upon information furnished hy others. Reardon, 806 F.2d at 42. Thus, contrary to Williams' assertion, Koresch need not have performed the tests herself to form an admissible expert opinion based upon them, and Williams' characterization of Koresch's testimony as something other than an expert opinion lacks merit.

¶ 30. Koresch explained that her review of the data for each test indicated the presence of cocaine. The State elicited the following testimony from her:

Q. Before coming to court today did you review all these records?
A. Yes, I did.
Q. And based on your review do you have an opinion as to the contents of Exhibit 2 [the substance taken from the jacket pocket]?
A. Yes, I do.
Q. And what is that opinion?
A. State's Exhibit No. 2 contains cocaine base.

¶ 31. Considering Koresch's qualifications and the nature of her testimony, we agree with the State that she gave expert opinion testimony within the meaning of § 907.03. Her expert opinion properly could be based in part on the report of another, even if that report was otherwise inadmissible hearsay.

IV

¶ 32. Our determination that the admission of Koresch's expert opinion testimony did not violate Williams' right of confrontation does not end our inquiry. Williams asserts that the state crime lab report was erroneously admitted hearsay and presents its own confrontation problem. Similarly, the question certified by the court of appeals includes an inquiry into whether the admission of the lab report into evidence under the business records hearsay exception in § 908.03(6) was proper.

¶ 33. The threshold question in examining whether a defendant's right to confrontation is violated by the admission of hearsay evidence is whether that evidence is admissible under the rules of evidence. State v. Bauer, 109 Wis. 2d 204, 210, 325 N.W.2d 857 (1982). If the evidence does not fit within a recognized hearsay exception, it must be excluded. Id. Only after it is established that the evidence fits within a recognized hearsay exception does it become necessary to consider confrontation. Id. Here, we determine that the lab report does not fit within the business records hearsay exception as the State asserts and therefore do not reach the confrontation question.

¶ 34. The parties do not dispute that the state crime lab report in this case is hearsay. As a general rule, hearsay is not admissible evidence. See Wis. Stat. § 908.02; State v. Cardenas-Hernandez, 219 Wis. 2d 516, 526, 579 N.W.2d 678 (1998). However, there are numerous exceptions to the hearsay rule, one being the business records exception in § 908.03(6).

¶ 35. Section 908.03(6) provides that although hearsay, the following are not necessarily inadmissible:

RECORDS OF REGULARLY CONDUCTED ACTIVITY. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness.

Williams asserts that the crime lab report does not fall within the confines of § 908.03(6). The State, in contrast, argues that it does.

¶ 36. The question of whether state crime lab reports that incriminate a criminal defendant fall within the business records exception is another question of first impression in Wisconsin. Thus, we examine interpretations of the business records exception by courts in other jurisdictions. In addition, we turn to secondary authority for guidance. We also find support for our conclusion in the statutes pertaining to the state crime labs.

¶ 37. Courts in some jurisdictions have held that lab reports, including reports like those at issue here, may fall within the business records exception. See, e.g., United States v. Baker, 855 F.2d 1353, 1359 (8th Cir. 1988); State v. Cosgrove, 436 A.2d 33, 37 (Conn. 1980); State v. Kreck, 542 P.2d 782, 785 (Wash. 1975). Other courts have held that such reports do not fall within the business records exception. See, e.g., United States v. Oates, 560 F.2d 45, 68 (2d Cir. 1977); State v. Rivera, 515 A.2d 182, 184, 187 (Del. Super. Ct. 1986); People v. McClanahan, 729 N.E.2d 470, 474 (Ill. 2000); Kennedy, 7 S.W.3d at 67 n.8.

¶ 38. Although these courts do not all use the same approach to the question, we have identified a fundamental underlying tension between the fact that crime lab reports may be records of regularly conducted activity and the fact that they are also records prepared in anticipation of litigation. Records prepared in anticipation of litigation traditionally have been deemed outside the reach of the business records exception. Palmer v. Hoffman, 318 U.S. 109, 113-14 (1943); McLanahan, 729 N.E.2d at 474; see also United States v. Blackburn, 992 F.2d 666, 670 (7th Cir. 1993) (adhering to "well-established rule" that documents made in anticipation of litigation are not admissible under the business records exception).

¶ 39. Commentators are in accord. Professor Blinka explains that even where proffered evidence seems to satisfy the foundational elements of § 908.03(6), the language of the statute makes plain that the evidence is not admissible when "sources of information or other circumstances indicate lack of trustworthiness." 7 Wisconsin Practice § 803.6, 627 (2d ed. 2001). "This consideration will most often come into play where there is some question about the motivation behind the making of the record. Documents prepared in 'anticipation of litigation pose special problems." Id. at 627-28.

¶ 40. Likewise, Professors Giannelli and Im-winkelried write with regard to the business records exception that "the admissibility of records prepared in anticipation of litigation[] remains problematic." 1 Scientific Evidence § 6.2(C), 313 (footnote omitted). They also criticize the ready categorization of lab reports within hearsay exceptions such as § 908.03(6): "Although business and public records generally may bear adequate indicia of reliability, laboratory reports may not. Laboratory reports typically are prepared in anticipation of prosecution and, although probably rare, they can be falsified." Id. at § 6.4(C), 329.

¶ 41. State crime lab reports like the one at issue here reasonably may be characterized as prepared within the regular course of the "business" of the state crime lab. However, such reports are prepared primarily to aid in the prosecution of criminal suspects.

¶ 42. In each of the cases cited by the State in which courts have determined that lab reports may fall within the business records exception, the courts failed to acknowledge or address the rule that records prepared in anticipation of litigation ordinarily do not fall under the business records exception. See Baker, 855 F.2d at 1359-60; Cosgrove, 436 A.2d at 37; Kreck, 542 P.2d at 785. In contrast, we, like the court in McLana- han, are mindful of the fact that state crime lab reports such as the one at issue here are "prepared during the course of criminal investigations and are requested by the State in anticipation of prosecutions." 729 N.E.2d at 474.

¶ 43. Similarly, we agree with the court in Kennedy. In declining to admit a DNA analysis under the business records exception, the court explained "[t]he DNA analysis prepared in the present case was for no other purpose but this litigation, calling into question the report's reliability as a business record." Kennedy, 7 S.W.3d at 67 n.8. Here, the state crime lab report, like the DNA analysis in Kennedy, was prepared for no other purpose but the prosecution of Williams.

¶ 44. That state crime lab reports also may be characterized as records of regularly conducted activity is only incidental. This is underscored by the statute that defines the duties of the state crime labs.

¶ 45. Wisconsin Stat. § 165.75, the primary statute section relating to state crime labs, is placed within the chapter of the statutes entitled "Department of Justice." Section 165.75(3)(a) explains that the primary purpose of the labs is to "provide technical assistance to local law enforcement officers in the various fields of scientific investigation in the aid of law enforcement."

¶ 46. Section 165.75(3)(a) also states that included in the duties of the crime lab is to maintain services and employ the necessary specialists "for the recognition and proper preservation, marking and scientific analysis of evidence material in the investigation and prosecution of crimes." Subsection (d) of the statute adds that "[t]he services of the laboratories available . . shall include appearances in court as expert witnesses."

¶ 47. Additionally, as the court of appeals forewarned in its certification, to allow the admission of such an evaluative report under the business records hearsay exception could constitute a "momentous declaration." Indeed, once an evaluative report such as this is deemed to constitute a business record under § 908.03(6), a mere custodian of the report, who knows nothing about the science underlying the report, is sufficient to lay the necessary foundation for admission of the report. Once that door is opened, the specter of the State submitting its case by means of unchallenged documentary evidence appears, and confrontation principles are compromised.

¶ 48. There can be little question that when state crime labs generate reports like those at issue here, they are acting as an arm of the State in assisting it to prevail in litigation and secure a conviction of the defendant. The state crime lab exists in large part to facilitate the investigation and prosecution of crimes.

¶ 49. Thus, considering the statutory scheme and the rule that records prepared in anticipation of litigation generally do not fall within the business records exception to the hearsay rule, we determine that the state crime lab report prepared for Williams' prosecution was erroneously admitted as a business record under § 908.03(6).

¶ 50. At the same time, however, we determine that the erroneous admission of the lab report was harmless error. The test for harmless error is whether there is a reasonable possibility that the error contributed to the conviction. State v. Jackson, 216 Wis. 2d 646, 668, 575 N.W.2d 475 (1998). A reasonable possibility is a possibility sufficient to undermine our confidence in the conviction. State v. Grant, 139 Wis. 2d 45, 51, 406 N.W.2d 744 (1987).

¶ 51. The lab report was admitted for the purpose of proving that the tested substance was cocaine. There was ample other evidence, however, to support such a conclusion.

¶ 52. As we have already determined, Koresch's testimony, though based in part on the report, was both an admissible expert opinion under § 907.03 and not in violation of Williams' confrontation right. Her testimony was compelling and credible evidence from which the jury could conclude that the substance in the jacket pocket was cocaine.

¶ 53. Other evidence heard by the jury bolsters our confidence. Three police officers who were on the scene when Williams was gambling testified that they believed that the substance they found in the jacket was crack cocaine. Of these officers, two had approximately five years' experience on the City of Racine Police Department and received specialized training for drug investigation. These two officers were members of the target enforcement unit, which deals with, among other crimes, open air drug sales, street-level drug violations, and other narcotics violations. Although Williams' theory of defense was that the jacket, and therefore the substance in it, did not belong to him, both target enforcement unit officers testified they had seen him wearing it on many occasions.

¶ 54. In addition, our harmless error analysis is informed by the fact that on the morning trial was to begin, Williams indicated that he was willing to stipulate that the lab analyst's testimony was unnecessary and that "all the proper tests were done, et cetera" if the court would adjourn until the next morning. His willingness to stipulate, combined with Koresch's properly admitted testimony and the other evidence, preserves our confidence in his conviction and therefore convinces us that the admission of the state crime lab report was harmless error.

¶ 55. In sum, we determine that Williams'right to confrontation was not violated when Koresch, rather than the analyst who performed the tests, testified in part based on the crime lab report containing the lab test results. We further determine that, although the circuit court erroneously admitted the state crime lab report under the business records exception, its admission was harmless error.

V

¶ 56. Having made these determinations, we turn to address other arguments that Williams makes in attacking his conviction. He asserts that the circuit court incorrectly excluded evidence and that the exclusion violated his right to present a defense. He also argues that the evidence at trial was insufficient to sustain a jury finding of guilt on one of the charges. We first address the evidentiary ruling.

¶ 57. The circuit court excluded hearsay testimony offered by Williams in support of his theory of defense that the jacket containing the cocaine did not belong to him. Specifically, Williams offered testimony by Dartavius Shelton that a Robert Winston told Shelton that it was his coat that was left at the church and that there was some "shit" in it, meaning some kind of drugs. Williams asserts, as he did at trial, that this testimony was admissible hearsay because Winston's comment to Shelton was a statement against interest.

¶ 58. Wisconsin Stat. § 908.045(4) contains the hearsay exception for statements against interest. This exception has two basic requirements. The declarant must be unavailable and the declarant's statement must be against the declarant's interest as defined by the statute. Section 908.045(4). If the statement is one tending to expose the declarant to criminal liability and offered to exculpate the accused, as here, there is a third requirement: the statement is not admissible "unless corroborated." Section 908.045(4).

¶ 59. The circuit court determined that the proffered hearsay did not meet the requirements of § 908.045(4) because it was not sufficiently corroborated. Williams asserts that this was error while the State argues that Williams failed to meet all three requirements.

¶ 60. As previously noted, the admission of evidence is ordinarily a decision left to the discretion of the circuit court. Ballos, 230 Wis. 2d at 504. However, evidentiary determinations involving hearsay frequently implicate questions of both fact and law.

¶ 61. For example, "unavailability" for purposes of the hearsay rules is a mixed question of law and fact. State v. Buelow, 122 Wis. 2d 465, 474, 363 N.W.2d 255 (Ct. App. 1984). "When mixed questions are presented, the court must determine two matters: (1) what happened, and (2) whether those facts fulfill a particular legal standard. The second determination is an issue of law." Id. at 475 (citations omitted).

¶ 62. Unavailability for purposes of § 908.045(4) is determined by Wis. Stat. § 908.04(1)(e), which requires that the declarant is "absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means." In defining what is required to show efforts to secure the declarant's presence "by process or other reasonable means," this court in State v. Zellmer, 100 Wis. 2d 136, 148, 301 N.W.2d 209 (1981), adopted the Judicial Council Committee's interpretation of § 908.04(1)(e). According to that interpretation, the statute requires a "good-faith effort" and "due diligence." Id.

¶ 63. In addition, the proponent must "specify the facts showing diligence" and not rely on "a mere assertion or perfunctory showing of some diligence." Zellmer, 100 Wis. 2d at 148; see also La Barge v. State, 74 Wis. 2d 327, 336, 246 N.W.2d 794 (1976). Thus, the burden to show unavailability is with the proponent of the hearsay.

¶ 64. Williams made limited efforts to locate Winston. There was conflicting information as to whether Winston was from Chicago or lived in Milwaukee. Accordingly, Williams' trial counsel checked with the other defense witnesses to see if they knew where to find Winston. He also checked the Milwaukee and Racine County jails. However, that was the extent of Williams' efforts. The circuit court specifically found that "[t]here's not any indication that any attempt has been made to check any sort of records in Illinois or in Chicago to determine the whereabouts of this person."

¶ 65. The crux of Williams' position is that the reasonable measures he could take to secure Winston's presence were necessarily minimal because he did not know Winston's precise whereabouts. However, this begs the question of whether Williams used due diligence to discover Winston's whereabouts.

¶ 66. Due diligence is not a standard that lends itself well to-bright line rules. Nonetheless, given that there was at least some reason to believe that Winston was from Chicago, due diligence required that Williams make at least some minimal attempt to check in Illinois. Because Williams did not establish that he made any such attempts, he failed to carry his burden to establish due diligence.

¶ 67. Even Williams' trial counsel recognized this in attempting to argue in the circuit court that Winston's statement to Shelton was covered by § 908.045(4). After explaining the steps he took to locate Shelton, counsel conceded, "Now I know that's kind of, well, weak when asking for a declarant to be declared unavailable." Subsequently counsel stated: "I think I have the corroboration and I have the statement against interest. I'm frankly most worried about whether I've met the burden to have him declared unavailable."

¶ 68. In short, we determine that Williams failed to meet his burden of showing due diligence, and we agree with the State that he failed to establish that Winston was unavailable for purposes of § 908.045(4). Accordingly, we uphold the circuit court's decision to exclude Winston's statement, although we do so based upon the requirement of unavailability.

¶ 69. Williams also contends that the exclusion of Shelton's testimony violated his right to present a defense. There may be circumstances under which the application of an evidentiary rule impermissibly abridges an accused's right to present a defense. State v. St. George, 2002 WI 50, ¶ 51, 252 Wis. 2d 499, 643 N.W.2d 777; see also State v. Pulizzano, 155 Wis. 2d 633, 647-48, 456 N.W.2d 325 (1990). Whether the application of the evidentiary rule deprives a defendant of constitutional rights is a question of constitutional fact subject to independent appellate review. St. George, 2002 WI 50, ¶ 16.

¶ 70. In St. George, this court articulated a two-part framework for analyzing whether the exclusion of expert testimony violates a defendant's right to present a defense. The test is similar to the two-part framework in Pulizzano used to analyze whether the exclusion of evidence under the rape shield statute violates a defendant's right to present a defense. At a more general level, the test for whether the exclusion of evidence violates the right to present a defense has been stated as an inquiry into whether the proffered evidence was "essential to" the defense, and whether without the proffered evidence, the defendant had "no reasonable means of defending his case." State v. Johnson, 118 Wis. 2d 472, 480, 348 N.W.2d 196 (Ct. App. 1984).

¶ 71. Williams has not shown that Shelton's statement was essential to his defense or that its exclusion left him with no other reasonable means of defending his case. On the contrary, the jury heard several other pieces of evidence that supported Williams' theory that Winston left behind the jacket with cocaine in it after gambling behind the church.

¶ 72. Williams' brother testified that Winston was also gambling behind the church the day of the offense and that he had the jacket on, but then took it off to shoot craps. Similarly, Shelton testified that he saw "Rob" wearing the jacket. Williams testified that he sold the jacket to Winston earlier in the day before going to gamble. Also, Williams' brother testified that Williams sold the jacket, although he did not witness the sale. Each of three other witnesses, including Shelton, testified that he did not see Williams wearing the jacket. Based on all of this testimony, Williams was able to argue to the jury during closing argument that it was Winston who owned the cocaine and the jacket, which he had left behind at the church when the police showed up.

¶ 73. Considering all of these circumstances, we determine that additional hearsay evidence in the form of testimony by Shelton as to what Winston said was not essential to Williams' defense. Despite the exclusion of this hearsay, Williams had a reasonable means of presenting and arguing his theory. Therefore, his right to present a defense was not violated by the exclusion of that hearsay.

¶ 74. Finally, we turn to Williams' assertion that the evidence at trial was insufficient to sustain his conviction for contributing to the delinquency of a child. "[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). Additionally, we consider the reasonable inferences the jury could make from the evidence presented. State v. Toliver, 104 Wis. 2d 289, 296, 311 N.W.2d 591 (1981).

¶ 75. Wisconsin Stat. § 948.40(1), provides: "No person may intentionally encourage or contribute to the delinquency of a child." The standard form jury instruction, identical to the instruction given the jury here, reads in part:

The first element requires that the .defendant intentionally encouraged or contributed to the delinquency of (name of child). This element requires not only that the defendant encouraged or contributed to the delinquency of a child but also that the act or failure to act was done intentionally. The term "intentionally" means that the defendant either had a purpose to encourage or contribute to delinquency or was aware that his conduct was practically certain to cause that result.
A delinquent child is one who violates any state or federal criminal law.

Wis JI — Criminal 2170 (footnotes omitted).

¶ 76. Williams does not dispute that, for purposes of § 948.40(1), James D. was a child and was "delinquent" by engaging in gambling. Instead, Williams asserts that the State presented no proof from which a reasonable jury could conclude that he had the intent necessary under § 948.40(1). We disagree.

¶ 77. Although Williams cites no case law involving sufficiency of the evidence in the context of a conviction for contributing to the delinquency of a child, Jung v. State, 55 Wis. 2d 714, 201 N.W.2d 58 (1972), is on point. In Jung, this court upheld a guilty verdict for contributing to the delinquency of a minor against a sufficiency of the evidence challenge. The defendant in Jung housed a truant and wayward minor and became sexually involved with her after meeting her at a bar. Id. at 718-19.

¶ 78. On appeal, the defendant in Jung argued that the evidence was insufficient to convict him for contributing to the minor's delinquency because there was no proof before the jury that he knew the minor was wayward or a runaway. 55 Wis. 2d at 721. This court upheld the conviction, concluding that given the circumstances under which the defendant and the girl met, as well as her appearance and the defendant's willingness to let her stay at his house, the jury could reasonably infer the defendant knew she was wayward and truant and that he intentionally contributed to her delinquency. Id. at 722.

¶ 79. Juries often must infer intent. See, e.g., State v. Dix, 86 Wis. 2d 474, 484, 273 N.W.2d 250 (1979). Intent is by its very nature rarely susceptible to proof by direct evidence. Clark v. State, 62 Wis. 2d 194, 197, 214 N.W.2d 450 (1974).

¶ 80. As in Jung, here the jury had to make reasonable inferences about the defendant's state of mind based on the circumstances. The jury reasonably could infer from the evidence that Williams was aware that his participation in illegal gambling with James D. was "practically certain" to cause James D. to violate the law. Williams points to no evidence in the record that would undermine the reasonableness of such an inference. For these reasons, we determine that the evidence before the jury was sufficient to find him guilty of contributing to the delinquency of a child.

VI

¶ 81. In sum, we determine that Williams' right to confrontation was not violated when the state crime lab unit leader, rather than the analyst who performed the tests, testified in part based on the crime lab report containing the lab test results. In addition, we determine that the circuit court erroneously admitted the report under the business records exception to the hearsay rule, but that the admission of the report was harmless error in light of the unit leader's testimony and other circumstances. We also reject the other arguments Williams makes in attacking his conviction. Accordingly, we affirm the judgment of the circuit court.

By the Court. — The judgment of the circuit court is affirmed.

       Williams appealed from a judgment of the Circuit Court for Racine County, Emily S. Mueller, Judge.

       All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated.

       As indicated by the plain language of Wis. Stat. § 908.03(6), and as the parties do not dispute, this hearsay exception is not limited to business records. However, for shorthand convenience we refer to § 908.03(6) as the business records exception throughout this opinion.

       The State moves to strike Williams' appendix to his brief. It asserts that the inclusion of excerpts from the BNA Criminal Practice Guide and copies of articles pertaining to drug analysis and crime labs are outside the scope of what is permissible in an appendix. Wisconsin Stat. § (Rule) 809.19(2) indicates that an appellant's brief "shall include a short appendix providing" certain enumerated items.
      The State's position assumes that these enumerated items are to the exclusion of all others. We decline to give the rule such a restrictive interpretation. The Judicial Council Committee's Note to § (Rule) 809.19 provides that an appendix "is designed to be nothing more than a useful tool to the members of the court." Members of the court on occasion find materials such as those at issue here to be of some assistance. We note that Williams' appendix contains "portions of the record essential to an understanding of the issues raised" as required by the rule. Accordingly, we deny the motion to strike.
      Nonetheless, we take this opportunity to remind litigants that the rule calls for a "short" appendix. It is the rare case where a lengthy appendix is more boon than bane.

        Cf. State v. Towne, 453 A.2d 1133 (Vt. 1982). In Towne, also an insanity defense case, the government's expert gave his opinion as to the defendant's sanity, then testified that a leading expert in the field with whom he had consulted agreed with his opinion. The court determined that this testimony violated the defendant's right to confrontation. Id. at 1136. It explained that although an expert may rely on facts or data provided by another expert in rendering his own opinion, confrontation is offended if one expert is merely "acting as a conduit" for the expert opinion of another. Id. at 1135.

       In two Wisconsin cases addressing the admissibility of police reports under the business records exception, courts determined that the reports at issue were not admissible under the exception. See Mitchell v. State, 84 Wis. 2d 325, 330, 334, 267 N.W.2d 349 (1978); State v. Gilles, 173 Wis. 2d 101, 113-14, 496 N.W.2d 133 (Ct. App. 1992). The courts noted, however that police reports may be admissible under some circumstances. See

        Mitchell, 84 Wis. 2d at 330; Gilles, 173 Wis. 2d at 113. Neither Mitchell nor Gilles addressed the significance of whether such reports were prepared in anticipation of litigation.

       The letterhead on the crime lab report indicates that the lab is part of the Department's "Division of Law Enforcement Services."

       Our determination does not mean that state crime lab reports are inadmissible in every case. For example, the court in Reardon v. Manson, 806 F.2d 39, 41 (2d Cir. 1986), recognized that analysts testifying at trial may in some cases have no independent recollection of tests performed. In such cases, the report would be admissible under Wis. Stat. § 908.03(5), the hearsay exception for recorded recollection. See State ex rel. Huser v. Rasmussen, 84 Wis. 2d 600, 609-10, 267 N.W.2d 285 (1978).

       After the court denied Williams the full amount of time for adjournment that he requested, he withdrew his stipulation.


source: Caselaw Access Project

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Adam S. Gonzales, Defendant-Appellant.
    Supreme Court

      No. 01-0224-CR.

      Oral argument April 16, 2002.

    Decided June 13, 2002.

    2002 WI 59
    (Also reported in 645 N.W.2d 264.)

      For the defendant-appellant there were briefs and oral argument by Suzanne L. Hagopian, assistant state public defender.
    For the plaintiff-respondent the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

      An amicus curiae brief was filed by Michael Patrick Murray, South Riding, Virginia, and Robert Dowlut, Fairfax, Virginia, on behalf of the National Rifle Association of America.
   1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This case comes before this court on certification by the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (1999-2000). The Circuit Court for Kenosha County, Michael S. Fisher, Judge, entered a judgment of conviction and an order denying the post-conviction motion of Adam S. Gonzales, the defendant. The defendant sought to vacate his conviction for going armed with a concealed and dangerous weapon in violation of Wis. Stat. § 941.23. The defendant's sole ground for challenging his conviction was that § 941.23 is unconstitutional. He asserts that § 941.23 is incompatible with Article I, Section 25 of the Wisconsin Constitution, which creates a right to keep and bear arms. The circuit court rejected the defendant's argument.

¶ 2. We do not address whether Wis. Stat. § 941.23 is rendered unconstitutional by Article I, Section 25. We conclude that Article I, Section 25 was not in effect on the day on which the defendant violated § 941.23. Accordingly, we further conclude that the defendant's sole defense to his conviction, namely, the unconstitutionality of § 941.23, fails. We therefore affirm the judgment of conviction and the order of the circuit court.

I

¶ 3. Following a jury trial, the defendant was convicted of disorderly conduct in violation of Wis. Stat. § 947.01 and carrying a concealed weapon in violation of § 941.23. Section 941.23 provides: "Any person except a peace officer who goes armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor." The circuit court then sentenced the defendant as a repeater to thirty months for the disorderly conduct charge and twenty-four months for the concealed weapon charge, the sentences to be served consecutively.

¶ 4. For the purposes of this appeal, the facts are not in dispute. On November 6, 1998, the defendant, Adam Gonzales, created a disturbance at the apartment building in which he lived, and he was arrested. The arresting officer patted down the defendant and found a gun magazine in the defendant's pants pocket and found a gun in the pocket of a black leather jacket that the defendant had been wearing during the disturbance.

¶ 5. The defendant filed a post-conviction motion, seeking to vacate his conviction for carrying a concealed weapon. He argued that Wis. Stat. § 941.23, Wisconsin's concealed weapon law, was unconstitutional on its face and unconstitutional as applied to him as a result of the adoption of Article I, Section 25 of the Wisconsin Constitution. Article I, Section 25 provides in its entirety as follows: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

¶ 6. The circuit court denied the post-conviction motion. The defendant appealed the order, and the court of appeals certified to this court the question of whether the prohibition against going armed with a concealed and dangerous weapon as set forth in § 941.23 is unconstitutional in light of Article I, Section 25. This court granted the certification.

HH HH

¶ 7. During oral argument in the present case, the question arose whether Article I, Section 25 was in effect on November 6, 1998, when the defendant committed the offense of going armed with a concealed and dangerous weapon in violation of Wis. Stat. § 941.23. The constitutional amendment was on the ballot in the general election on November 3, 1998, and was ratified that day by 74 percent of the vote cast.

¶ 8. On November 30, 1998, pursuant to Wis. Stat. § 7.70(3) (h), the chairperson of the State Elections Board determined and certified that the proposed constitutional amendment was approved by a majority of the electors voting thereon.

¶ 9. The court ordered supplemental briefs to address two issues: (1) when did the 1998 constitutional amendment adopting Article I, Section 25 become effective, and (2) in making that decision, what is the importance of Wis. Stat. § 7.70(3)(h), which describes the effective date of a constitutional amendment?

¶ 10. The present case poses questions involving interpretation of the state constitution and a state statute. These are questions of law that this court determines independent of the circuit court but benefiting from its analysis.

HH • i

¶ 11. We first examine Article I, Section 25. This constitutional amendment states in its entirety:

The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.

The legislative records regarding Article I, Section 25 are silent about its effective date.

¶ 12. Article XII, Section 1 of the Wisconsin Constitution, governing the adoption of constitutional amendments, is silent about the effective date of a constitutional amendment. Article XII, Section 1 merely states in pertinent part that if the people ratify an amendment, it shall become part of the constitution:

[I]f the people shall approve and ratify such amendment ... by a majority of the electors voting thereon, such amendment... shall become part of the constitution.

¶ 13. Wisconsin Stat. § 7.70(3)(h) sets forth the effective date of a constitutional amendment as the "time the chairperson of the [State Elections Board] or the chairperson's designee certifies that the amendment ... is approved." Section 7.70(3)(a) provides that the chairperson of the State Elections Board shall publicly canvass the returns and make his or her certifications and determinations on or before the first day of December following a general election.

¶ 14. Although statewide canvassing relating to constitutional amendments has existed since statehood, the language in Wis. Stat. § 7.70(3)(h) governing the effective date of a constitutional amendment was not adopted until 1955. The drafting file of § 7.70(3)(h) does not explain the reason for the adoption of this provision.

¶ 15. The State argues that pursuant to Wis. Stat. § 7.70(3)(h), Article I, Section 25 became effective when the chairperson canvassed and certified the election on November 30, 1998. The State reasons that § 7.70(3)(h) is a valid statute that provides an effective date for constitutional amendments that do not expressly state the date of effectiveness.

¶ 16. In contrast, the defendant argues that the Wisconsin Constitution does not grant the legislature authority to enact Wis. Stat. § 7.70(3)(h) and to delay the effectiveness of a constitutional amendment when a proposed amendment is silent about its effective date. The defendant interprets Article XII, Section 1 of the Wisconsin Constitution to mean that a constitutional amendment becomes effective when a majority of the electors adopts the amendment. According to the defendant, the vote of the electors is the last necessary act to make a constitutional amendment effective.

¶ 17. Records of the Wisconsin constitutional conventions in 1846 and 1847-48 reflect little debate about the procedure for amending the constitution and are not helpful in determining the effective date of a constitutional amendment.

¶ 18. The parties rely on Wisconsin cases to support their respective positions, but no case directly decides the issue presented here. In The Attorney General ex rel. Bashford v. Barstow, 4 Wis. 567 (1855), two gubernatorial candidates asserted a right to the office of governor. One candidate asserted his right based on having received the "highest number of votes" in the general election as provided in Article V, Section 3 of the Wisconsin Constitution. The other candidate asserted his right based on having been issued a certificate as the winner by the board of canvassers. This court held that the right to office is based on the highest number of votes cast by the electors, not the certification by the board of canvassers. The court reasoned that the board of canvassers possessed a strictly ministerial duty created by the legislature, which may not supersede the state constitution's dictate that an election is determined by the candidate receiving the most votes.

¶ 19. Although Barstow established that the vote of the electors determines the right to an office, Bar-stow does not answer the question of when that right becomes effective and thus does not answer the question before the court in the present case.

¶ 20. In State ex rel. Hudd v. Timme, 54 Wis. 318, 326-32, 11 N.W. 785 (1882), this court held that a state constitutional amendment creating a biennial legislature was not effective immediately upon adoption because, as a practical matter, the amendment could not be effective until new legislative elections occurred. The Hudd court did not address the question posed in the present case regarding when a constitutional amendment that requires no subsequent implementing action takes effect.

¶ 21. The issue of the effective date of a constitutional amendment arose in 1955. The joint resolution proposing a constitutional amendment stated that the amendment was to become effective on May 1, 1955. The text of the proposed amendment that appeared before the electors at the election failed, however, to include the delayed effective date of May 1, 1955.

¶ 22. The electors ratified the proposed amendment on April 5,1955. The board of canvassers certified the results of the election on April 18, 1955. Both an Opinion of the Attorney General and a decision of this court, State ex rel. Thomson v. Peoples State Bank, 272 Wis. 614, 76 N.W.2d 370 (1956), found it unnecessary, however, to resolve the issue of whether the 1955 amendment went into effect on April 5 or April 18.

¶ 23. The last Wisconsin case that the parties discuss is Kayden Industries, Inc. v. Murphy, 34 Wis. 2d 718, 150 N.W.2d 447 (1967). The Kayden case addressed the question of whether the state constitutional amendment itself legalized lotteries or whether the constitutional amendment merely permitted the legislature to enact legislation modifying Wisconsin case law that prohibited lotteries based on the language of the pre-amended constitution.

¶ 24. Kayden held that a substantive state constitutional amendment is self-executing and that subsequent legislative action is unnecessary to give effect to the amendment, unless the language of the amendment is ambiguous or legislative action is required. Kayden does not answer the question of when a constitutional amendment takes effect.

¶ 25. The issue posed in the present case is one of first impression in Wisconsin. The states that have considered the issue are divided. Several states with constitutions providing that constitutional amendments shall become part of the constitution if adopted by a majority of electors have determined that a proposed constitutional amendment becomes effective on the date the amendment is ratified by the electors. Several other states have held that a proposed constitutional amendment does not take effect until the result of the election is determined by a canvass of the votes. We are persuaded that unless a constitutional amendment provides otherwise, it takes effect upon the certification. of a statewide canvass of the votes as provided in Wis. Stat. § 7.70(3)(h).

¶ 26. First, we conclude that the language of Article XII, Section 1 allows the legislature to adopt Wis. Stat. § 7.70(3)(h). Although Article XII, Section 1 can be read to mean that a constitutional amendment is effective on the date it is ratified by a vote of the people, this interpretation is not the only reasonable interpretation. The legislature has provided for the canvass of votes and the announcement of election results, including those on constitutional amendments, since the adoption of the Wisconsin constitution. The certification process following the ratification of a constitutional amendment by the people may therefore be considered as part of the vote of the people and as an essential component of the voting process. Therefore, Article XII, Section 1 can reasonably be interpreted to mean that an amendment becomes effective when the last step of the voting process occurs, namely, the canvass.

¶ 27. Second, the state constitution gives the legislature broad powers for submitting the constitutional amendment to the people. Article XII, Section 1 provides: "It shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe." The manner of submitting the proposed amendment can be viewed as including the statutory mode and manner of tabulating the returns of the votes of the election. Other state courts have read language in their state constitutions that is similar to the language in the Wisconsin constitution in this way.

¶ 28. Third, as a practical matter a canvass of the vote upon an amendment is necessary to ascertain the result of the election. Arguments favoring the effectiveness of state constitutional amendments at the time of voter ratification originated as an analogy to the effective dates of newly enacted statutes. Under the common law, statutes are effective immediately upon passage. By analogy, the argument was made that constitutional amendments should also be effective immediately upon ratification.

¶ 29. This analogy is faulty. Upon passage of a statute into law, generally there is no question about the vote that propelled the drafted statute into law. However, in the case of popular votes, a certification process is necessary to assure the results of the vote. As Professor Dodd in his treatise, The Revision and Amendment of State Constitutions, explains: "Unless a constitution specifically provides otherwise, the better rule would seem to be that an amendment does not become effective in any case until the vote has been canvassed and the result announced."

¶ 30. For these reasons we conclude that the legislature has the authority under Article XII, Section 1 of the Wisconsin Constitution to adopt reasonable election laws such as Wis. Stat. § 7.70(3)(h) to provide that state constitutional amendments are effective after canvass and certification. We further conclude that pursuant to § 7.70(3)(h), Article I, Section 25 was not in effect on November 6, 1998, when the offense was committed. Accordingly, the defendant's challenge to the constitutionality of § 941.23 fails, and his conviction is affirmed.

By the Court. — The judgment and order are affirmed.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version, unless otherwise indicated.

       Section 7.70(3)(h) provides in relevant part:
      Whenever a constitutional amendment or other statewide validating or ratifying referendum question which is approved by the people does not expressly state the date of effectiveness, it shall become effective at the time the chairperson of the board or the chairperson's designee certifies that the amendment or referendum question is approved.

       Section 7.70(3)(a) provides:

        The chairperson of the board or a designee of the chairperson appointed by the chairperson to canvass a specific election shall publicly canvass the returns and make his or her certifications and determinations on or before the 2nd Tuesday following a spring primary, the 15th day of May following a spring election, the 4th Tuesday in September following a September primary, the first day of December following a general election, the 2nd Thursday following a special primary, or within 18 days after any special election.

        See Wis. Rev. Stat. Ch. 6, §§ 82, 83 (1849).

       Ch. 384, Laws of 1955. When enacted in 1955, the language appeared in Wis. Stat. § 6.10(1) (1955-57). When the election laws were rewritten in 1965, the language was moved to § 7.70(3)(g), Wis. Stat. (1965-66).

       Legislative Reference Bureau Drafting File to ch. 384, Laws of 1955, LRB-2178.

       "The persons respectively having the highest number of votes . .. shall be elected .. .." Wis. Const, art. V, § 3.

        The Attorney General ex rel. Bashford v. Barstow, 4 Wis. 567, 775 (1855).

         Id. at 825.

       The Opinion of the Attorney General states:
      It could be argued with some force here, that the amendment here involved took effect on April 18, 1955, when pursuant to the provisions of sec. 6.71(7), Stats., the state board of canvassers certified the vote and made the determination that such amendment was adopted by a majority of the electors voting thereon. . .. On the other hand, there are indications in some of the cases that language respecting amendments like that in our art. XII, sec. 1, means just what it says, namely, that an amendment comes into existence immediately upon the casting of the majority vote, and therefore there is no power in the legislature or anyone else to provide for effectiveness at any other time. However it is not necessary at this time to resolve that question, as the question here is not whether this amendment went into effect upon the majority vote on April 5,1955, or not until the certification thereof on April 18, 1955.
      44 Op. Att'y Gen. 108, 111-12 (1955).

       "The amendment went into effect and became a part of the constitution either on April 5, 1955, following the election, or on April 18, 1955, following the certification of the vote by the board of canvassers. It is unnecessary to determine which was the effective date of the amendment." State ex rel. Thomson v. Peoples State Bank, 272 Wis. 614, 625-26, 76 N.W.2d 370 (1956).

        See, e.g., Matheny v. Independence County, 227 S.W. 22 (Ark. 1925) (holding that state constitutional amendment granting rights sixty days from "approval and adoption" referred to sixty days from the election, not sixty days from governor's proclamation as provided for by statute); In re Advisory Opinion to the Governor, 16 So. 410 (Fla. 1895) (stating that language of state constitution mandates that state constitutional amendments become effective upon approval of a majority of voters); Whitcomb v. Young, 279 N.E.2d 566 (Ind. 1972) (holding state constitutional amendment modifying term of office for state officials also elected in same election to be effective on date and time of closing of polls); Seneca Mining Co. v. Secretary of State, 47 N.W 25 (Mich. 1890) (holding that state constitutional amendments take effect at time of their ratification by popular vote); State ex rel. O'Connell v. Duncan, 88 P.2d 73 (Mont. 1939) (holding that state constitution mandates that state constitutional amendments become effective upon approval of a majority of voters regardless of statutory provision stating "the amendment shall be in full force and effect as part of the constitution from and after the date of [governor's public] proclamation"); City of Euclid v. Heaton, 238 N.E.2d 790 (Ohio 1968) (holding that constitutional amendment effective on date of ratification by voters when no effective date listed in text of amendment on ballot despite delayed date for effectiveness appearing in text of legislature's joint resolution).

        See, e.g., Opinion of the Justices, 36 So.2d 499 (Ala. 1948) (stating proposed state constitutional amendment ratified by a majority of voters becomes effective upon the completion of mandatory statewide canvassing to determine voting results); Opinion of the Justices, 287 N.E.2d 910 (Mass. 1972) (stating ratified constitutional amendment becomes effective following completion of a final tabulation of the vote despite state constitutional language indicating a proposed constitutional amendment "shall become part of the constitution if approved ... hy a majority of the voters"); City of Duluth v. Duluth St. Ry. Co., 62 N.W 267 (Minn. 1895) (holding ratified constitutional amendment did not become effective at least until the result was ascertained by the canvass of the vote); State v. Kyle, 65 S.W 763 (Mo. 1901) (holding constitutional amendment takes effect upon the canvass of the vote and not before); Real v. People, 42 N.Y. 270, (N.Y. 1870) (holding ratified constitutional amendment not effective until the result of election is declared by canvassers); Torres v. State, 278 S.W.2d 853 (Tex. Crim. App. 1955) (holding that ratified constitutional amendment becomes effective upon date official canvass of voting returns shows amendment was adopted).

       The court in Real v. People stated:
      The canvass of the votes cast by various boards of canvassers as required by law, and announcing the result and certifying the same as required by law, is as much a part of the election as the casting of the votes by the electors. The election is not deemed complete until the result is declared by the canvassers as required by law.

        Real v. People, 42 N.Y. 270, 276 (N.Y. 1870). See also Opinion of the Justices, 287 N.E.2d 910, 912 (Mass. 1972); Walter F. Dodd, The Revision and Amendment of State Constitutions, Vol. 1, 203 (1910).

        See, e.g., Kyle, 65 S.W. at 766; Duluth St. Ry. Co., 62 N.W. at 268.

        See, e.g., Kyle, 65 S.W 763; Dodd, The Revision and Amendment of State Constitutions, Vol. 1, at 203-04.

       Dodd, The Revision and Amendment of State Constitutions, Vol. 1, at 204.

       Id.


author: ¶ 1. PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against David L. Nichols, Attorney at Law: Office of Lawyer Regulation, Complainant, v. David L. Nichols, Respondent.
    Supreme Court

      No. 01-3032-D.

      Decided June 14, 2002.

    2002 WI 60
    (Also reported in 645 N.W.2d 270.)
   ¶ 1. PER CURIAM.

We review the recommendation of the referee that Attorney David L. Nichols' license to practice law in Wisconsin be suspended for six months and that he be required to pay the costs of this disciplinary proceeding.

¶ 2. We determine that the seriousness of Attorney Nichols' professional misconduct warrants the suspension of his license to practice law for six months, as recommended.

¶ 3. Attorney Nichols was admitted to practice law in Wisconsin in 1981. His most recent practice of law has been in Brillion.

¶ 4. In 1993 Attorney Nichols consented to a public reprimand imposed by the Board of Attorneys Professional Responsibility for misconduct consisting of failure to communicate with a client concerning legal representation, failure to respond to inquiries from the client, and failure to cooperate with the Board's investigation.

¶ 5. In 1995 Attorney Nichols' license was suspended for 60 days as discipline for professional misconduct consisting of the continued practice of law while suspended for failure to pay dues to the State Bar of Wisconsin and the assessment for supreme court boards and the Client Security Fund.

¶ 6. Attorney Nichols' license was suspended in 2000 for noncompliance with continuing legal education requirements and that suspension remained in effect as of the date of the filing of the complaint in the present matter.

¶ 7. The complaint filed by the Board alleged misconduct with respect to Attorney Nichols' handling of two cases: the first a 1997 negligence/defamation action and the second a 1998 probate of an estate.

¶ 8. In the first matter, Attorney Nichols represented the mother of the child that was the focus of a custody and placement dispute. A psychologist testified on behalf of the child's father that he saw evidence of "emotional incest" or parental alienation syndrome attributable to Attorney Nichols' client.

¶ 9. Attorney Nichols subsequently filed an action on behalf of the mother against the psychologist and his medical malpractice insurer claiming that the psychologist's opinions were negligent and also defamatory. Summary judgment in the defendant's favor was granted in 1998, the circuit court concluding that the suit was frivolous.

¶ 10. The circuit court sent a copy of its decision to the Board which then investigated the matter as a possible violation of SCR 20:3.1(a) which prohibits an attorney from knowingly advancing a claim that is unwarranted under existing law. Attorney Nichols responded to the Board that he was appealing the circuit court's decision which prompted the Board to hold its investigation in abeyance. In 1999 District III of the Court of Appeals issued an order upholding the circuit court's finding of frivolousness. Attorney Nichols failed to respond to subsequent requests by the Board as to the status of his appeal prompting the Board to reopen the file and order a response to the disciplinary action. He responded that he considered the circuit court's and court of appeals' decisions to be in error but failed to indicate why he had not responded to earlier inquiries from the Board as to the status of the appeal. Subsequent inquiries by the Board on the matter did not result in a further response from him.

¶ 11. In the second matter, Attorney Nichols represented the personal representative of the estate who paid him $1640 in attorney's fees. However, approximately one year after Attorney Nichols was retained, the personal representative determined that the estate was still open, although it was eventually closed. Attempted inquiries of Attorney Nichols as to the status of the matter were unsuccessful, the personal representative being informed that he had voluntarily terminated his law practice in the interim.

¶ 12. Based on a grievance filed against Attorney Nichols by the personal representative in 2000, the Board contacted him for a response. He did not respond to the initial inquiry as well as to subsequent inquiries.

¶ 13. Attorney Nichols' actions in both of these matters prompted the Board to file a disciplinary complaint against him on November 14, 2001. The complaint alleged four counts of disciplinary violations with respect to his handling of these two matters.

¶ 14. Count one alleged that Attorney Nichols' filing of the negligence/defamation claim against the psychologist was a violation of SCR 20:3.1(a)(1) in that he knowingly advanced a claim unwarranted under existing law not supported by good faith argument for an extension, modification, or reversal of existing law.

(a) In representing a client, a lawyer shall not:
(1) knowingly advance a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification or reversal of existing law.

¶ 15. Count two alleged that Attorney Nichols' failure to respond to inquiries from the Board was a violation of SCR 21.03(4), failure to cooperate with the Board in investigation of a grievance, and SCR 22.07(3), failure to answer questions, furnish documents, or present relevant information in a grievance investigation.

¶ 16. Count three alleged that Attorney Nichols' failure to properly file the documents necessary to conclude probate of the estate was a violation of SCR 20:1.3, failure to act with reasonable diligence and promptness in representing a client.

¶ 17. Count four alleged that in failing to answer the Board's inquiries regarding the estate, Attorney Nichols violated SCR 22.07(2), failure to fully and fairly disclose all facts and circumstances pertaining to alleged misconduct within 20 days of receipt of an ordinary mail request, and SCR 21.03(4), failure to cooperate in the investigation, prosecution, and disposition of a grievance filed with the Board. In addition, the Board alleged that Attorney Nichols' conduct in the estate matter also violated several new supreme court rules in effect as of October 1, 2000: SCR 22.03(2), failure to fully and fairly disclose all facts and circumstances pertaining to alleged misconduct within 20 days after being served by ordinary mail a request for written response; SCR 22.03(6), wilful failure to provide relevant information, answer questions fully or furnish documents, regardless of the merits of the matters asserted in the grievance; and, SCR 21.15(4).

¶ 18. Attorney Nichols admitted service on November 28, 2001. Attorney Henry A. Field, Jr., was appointed referee by order of this court on December 12, 2001. Attorney Nichols filed an answer on January 30, 2002, entering a plea of no contest to the complaint. The referee subsequently adopted the facts for all four counts as stated in the complaint and concluded that the allegations of the complaint were proven by the requisite burden of proof. The referee further recommended to this court, based upon the recommendation of the Board and Attorney Nichols' agreement, that his license be suspended for six months.

¶ 19. We adopt the referee's findings of fact and conclusions of law. Attorney Nichols' misconduct with respect to his handling of the negligence/defamation action and the estate probate, and his failure to cooperate with the Board's investigation of the grievances arising out of both, are serious failings requiring a suspension of his license. A six-month suspension of his license to practice law is appropriate discipline for his professional misconduct.

¶ 20. IT IS ORDERED that the license of David L. Nichols to practice law in Wisconsin is suspended for a period of six months, effective July 19, 2002.

¶ 21. IT IS FURTHER ORDERED that David L. Nichols comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 22. IT IS FURTHER ORDERED that within 60 days of the date of this order David L. Nichols pay to the Office of Lawyer Regulation the costs of this proceeding in the amount of $1049.65. If the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of David L. Nichols to practice law in Wisconsin shall remain suspended until further order of the court.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process was substantially restructured. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed from the Board of Attorneys Professional Responsibility to the Office of Lawyer Regulation and the supreme court rules applicable to the lawyer regulation system were also revised in part. Because most of the conduct underlying this case arose prior to October 1, 2000, the complainant in this case will be referred to as the "Board" and all references to supreme court rules will be to those in effect prior to October 1, 2000, except as otherwise specified.

       State Bar of Wisconsin, CLE Books, Professional Discipline of Wisconsin Attorneys: A Compendium, Vol. III, Public Reprimand 93-1 (2001).

       The disciplinary proceeding was reported at In re Disciplinary Proceedings Against Nichols, 193 Wis. 2d 295, 532 N.W.2d 712 (1995).

       The circuit court stated:
      A motivation, I find, for this action, was to send a chilling message or a chilling effect to [the psychologist] to pull out of his patient/doctor relationship with [the father] and thus be unavailable to provide opinions in court. .. That's a misuse of the court system ... There was neither a basis in fact nor a reasonable extension of any law which could provide for this action.
      Board complaint against Attorney Nichols, November 14, 2001, ¶ 9.

       SCR 20:3.1(a) provides:
      (a) In representing a client, a lawyer shall not:
      (1) knowingly advance a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification or reversal of existing law;
      (2) knowingly advance a factual position unless there is a basis for doing so that is not frivolous; or
      (3) file a suit, assert a position, conduct a defense, delay a trial or take other action on behalf of the client when the lawyer knows or when it is obvious that such an action would serve merely to harass or maliciously injure another.

       SCR 20:3.1(a)(1) provides:

       Former SCR 21.03(4) provided: "(4) Every attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator."

       Former SCR 22.07(3) provided:
      (3) The administrator or committee may compel the respondent to answer questions, furnish documents and present any information deemed relevant to the investigation. Failure of the respondent to answer questions, furnish documents or present relevant information is misconduct. The administrator or a committee may compel any other person to produce pertinent books, papers and documents under SCR 22.22.

       SCR 20:1.3 provides: "Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client."

       Former SCR 22.07(2) provided:

        (2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.

       Current SCR 22.03(2) provides:
      (2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.

       Current SCR 22.03(6) provides: "(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."

       Current SCR 21.15(4) provides:
      (4) Every attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney's ■vidlful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys.