State v. Ramon G. Gonzalez

2014 WI 124

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

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 App. 2013 – Unpublished)

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

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

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

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

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

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent
FILED
v. DEC 3, 2014

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

Defendant-Appellant-Petitioner

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

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

this case is whether Ramon Gonzalez's constitutional right not

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

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

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

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

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

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

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

with platinum teeth. The circuit court1 ruling came after the

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

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

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

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

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

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

Incrimination Clause.2 Gonzalez acknowledges that it is well

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

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

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

settled that the right against self-incrimination applies only

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

physical evidence "had a 'testimonial' aspect because it

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

and he says this fits within the category of cases where

physical evidence has been held to have a testimonial aspect

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

argues in the alternative that even if it has no testimonial

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

given that other evidence served the purpose of identification.

The State argues that his platinum teeth were physical evidence

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

identification of Gonzalez, which was central to the trial.

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

physical evidence that did not have a testimonial aspect

sufficient to implicate constitutional protections. The

relevant question under the case law is whether the evidence in

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

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

3
No. 2012AP1818-CR

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

hold that Gonzalez's teeth are material to identification

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

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

long-recognized category of cases involving the body as evidence

and does not offend constitutional principles against self-

incrimination. We affirm the court of appeals.

I. BACKGROUND

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

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

inmates who were accused of attacking the victim. He was

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

went to trial. Challenging the identification of the accused as

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

was clearly reluctant to testify and repeatedly said so while

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

4
No. 2012AP1818-CR

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

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

disputed that the grainy video was sufficient to make an

identification, and the State offered further evidence on that

issue. The jury heard the following during testimony about the

identification of Gonzalez and his involvement in the beating:

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

stomp on the victim during the fight.

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

an investigating officer that one of the persons involved

was from Cell 10.

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

investigating officer that the inmate in Cell 10 who had

platinum teeth had hit and kicked him.

- The victim also testified that he knew Gonzalez by the

nickname "Platinum" because of his teeth.

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

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

¶5 During the trial, Gonzalez objected to the

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

Gonzalez reveal his teeth to the jury. The circuit court

overruled the objection. Gonzalez complied, and the record

reflects that he smiled at the jurors to show his platinum

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

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

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

kind of compelled testimonial evidence the United States and

Wisconsin Constitutions prohibit. Gonzalez petitioned for

review, which we granted.

II. STANDARD OF REVIEW

¶6 The question we address is whether Gonzalez was

compelled to provide the kind of evidence that is protected by

the Fifth Amendment of the United States Constitution6 and its

corollary in the Wisconsin Constitution, which prohibit the

State from compelling a defendant to be a witness against

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

suppression motion or motion in limine, it similarly presents a

question of a constitutionally-based objection to the admission

of certain evidence. "Whether evidence should be suppressed is

a question of constitutional fact. In reviewing questions of

constitutional fact, we uphold a circuit court's factual

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

6
No. 2012AP1818-CR

findings unless clearly erroneous, but we independently

determine whether those facts meet the constitutional standard."

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

(citations omitted) (evaluating a constitutionally-based

challenge to the admission of certain evidence).

III. DISCUSSION AND ANALYSIS

¶7 The facts relevant to our discussion are not in

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

compelled by the circuit court; Gonzalez was ordered by the

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

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

kind of evidence that cannot be compelled without violating

constitutional guarantees. Gonzalez gives two reasons the

evidence should not have been admitted. After setting out

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

on those two points.

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

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

recognized that certain distinguishing characteristics of a

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

incriminating. It summarized its interpretation of the self-

incrimination clause concisely in United States v. Hubbell prior

to starting its analysis in that case:

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

7
No. 2012AP1818-CR

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

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

omitted).

¶9 In clarifying what constituted testimonial evidence,

the United States Supreme Court has differentiated between

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

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

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

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

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

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

distinction which has emerged, often expressed in different

ways, is that the privilege is a bar against compelling

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

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

8
No. 2012AP1818-CR

testimonial evidence as "knowledge of facts [compelled from the

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

beliefs" and "evidence of a testimonial or communicative

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

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

no violation of the Self-Incrimination Clause where a defendant

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

scars, physique, or limbs.7

¶10 However, the United States Supreme Court has

recognized that some physical evidence has a sufficiently

testimonial aspect to warrant Fifth Amendment protection.8 As we

will explain, those cases arise when a particular piece of

compelled physical evidence reveals the thoughts of the

defendant and those thoughts are incriminating. There are,

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

9
No. 2012AP1818-CR

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

(including the body) that does not have a sufficiently

testimonial aspect to warrant Fifth Amendment protection, and 2)

physical evidence (including the body) that does have a

sufficiently testimonial aspect to warrant such protection.

B. Whether Gonzalez's Platinum Teeth Were Physical Evidence

With A "Testimonial Aspect"

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

that physical evidence can nonetheless have a testimonial aspect

that turns the evidence into the kind barred by the Fifth

Amendment to the United States Constitution. Such cases turn on

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

contents of the defendant's mind.

¶12 Gonzalez argues that his platinum teeth constitute the

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

conveys or communicates an additional message, and that evidence

is therefore testimonial for purposes of Self-Incrimination

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

Self-Incrimination Clause barred use of several pieces of

evidence obtained from the defendant following a drunk driving

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

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

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

582, 590 (1990).

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

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

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

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

But for purposes of Fifth Amendment analysis, the United States

Supreme Court made a distinction between the manner in which

Muniz answered questions, which it deemed a physical attribute,

and the particular answer that revealed something about his

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

perform the simple calculation of the date of his sixth

birthday. Thus, it held,

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

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

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

sixth birthday did constitute testimonial evidence, because in

answering it, he was forced to disclose something about his

mental faculties:

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

Id. at 599.

¶15 Another case where physical evidence took on a

testimonial aspect involved a subpoena for some tax documents

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

significant for our purposes is the fact that the United States

Supreme Court recognized that in some circumstances, compliance

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

Incrimination Clause, could have a "compelled testimonial

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

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

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

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

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

answer questions designed to determine whether he has produced

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

¶16 As these two cases illustrate, the factual scenarios

in which physical evidence has a "testimonial aspect" sufficient

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

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

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

both allow jurors to make improper negative inferences about the

defendant. In response, the State simply points to the

similarities between the facts of this case and the extensive

body-as-evidence case law.

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

concerned the United States Supreme Court was an inference about

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

which he was accused: driving while intoxicated. The evidence

the Court found problematic in Muniz was problematic not because

it supported a negative inference, but because the particular

negative inference it supported was "that his mental state was

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

parties acknowledged was incriminating in a drunk driving

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

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

workings of his mind.

¶18 Likewise, in Hubbell, where physical evidence was

found to have a testimonial aspect that brought it under the

Fifth Amendment, the Court found it significant that "the

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

potential sources of information and to produce those sources"

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

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

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

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

a testimonial aspect" that made the Fifth Amendment applicable.

Id. at 45.

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

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

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

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

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

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

whose compelled display violates no constitutional right——even

though some of those physical characteristics might likewise

carry negative connotations or communicate an image of

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

14
No. 2012AP1818-CR

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

by the prosecutors of Gonzalez that is comparable to the use

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

physical evidence testimonial in that case.

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

physical evidence has a "testimonial aspect" that renders its

use unconstitutional.15

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

Material

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

other identification evidence renders the display of his teeth

for such purpose immaterial, and therefore inadmissible.

Gonzalez cites Schmerber for the proposition that the law

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

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

other identification evidence existed, the display of his teeth

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

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

15
No. 2012AP1818-CR

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

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

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

identified Gonzalez in court as the inmate he knew as

"Platinum."

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

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

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

excluded on certain grounds, including that it is cumulative of

already presented evidence,18 but that decision is one the

circuit court has discretion to make and is subject to highly

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

16
No. 2012AP1818-CR

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

that once any evidence serves the purpose of identification, any

additional evidence offered to corroborate it would be

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

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

corroborate the identification of the defendant by any

permissible means within the ordinary constraints of evidence

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

simply untenable to assert that a central piece of identifying

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

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

"the identity of the assailant remained the central issue in

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

prosecution, it is inappropriate to limit otherwise admissible

evidence on the grounds claimed here.

IV. CONCLUSION

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

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

relevant question under the case law is whether the evidence in

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

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

hold that Gonzalez's teeth are material to identification

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

matter at issue. This case therefore fits squarely into the

long-recognized category of cases involving the body as

17
No. 2012AP1818-CR

evidence, and does not offend constitutional principles against

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

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

affirmed.

18
No. 2012AP1818-CR

1
No. 2012AP1818-CR.ssa

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

this opinion.

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

opinions written and mandated under a new procedure in this

court for circulating and mandating opinions. This case turns

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

unanimous opinion presenting one issue.

¶27 In keeping with this court's longstanding commitment

to transparency and open government and "for the advice of

counsel practicing in the Supreme Court and for information to

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

procedures since 1984. This practice of openness and

transparency should be continued.2

¶28 The Internal Operating Procedures presently set forth

our procedure for the preparation and mandate of a draft opinion

as follows:

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

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

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

1
No. 2012AP1818-CR.ssa

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

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

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

. . . .

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

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

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

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

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

Operating Procedures (published in volume 6 of the Wisconsin

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

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

other state courts.

¶30 A verbatim statement of the new procedure for opinion

preparation and mandate is as follows:

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

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

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

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

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

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

Upon recirculation of the majority opinion and
recirculation of the separate writings, each justice
shall, within 10 days, by email to all justices
participating in the case make a final declaration of
which opinion he or she is joining. If during this
process the opinion originally circulated as the
majority opinion does not garner the vote of a
majority of the court, it shall be referred to in
separate writings as the "lead opinion." If a
separate writing garners the vote of a majority of the
court thereby changing the mandate of the opinion, it
shall be revised as the majority opinion within 14
days of the vote of the court. During that same 14
day period, other separate writings shall be revised
to indicate their status as concurrences or dissents
to the new majority opinion. The majority opinion and
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the separate writings shall be mandated upon final
declaration.

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

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

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

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

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

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

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

follows:

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

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General notes:

All deadlines are calendar days.

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

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

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

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

(which we have generally followed since before 1984 up until

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

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

draft opinion be held and reconferenced; and majority opinions

would be released simultaneously with any concurring or

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

procedure for opinions and mandates in several important ways.

Starting in September, draft opinions cannot be discussed at

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

four justices is required. No single justice can hold an

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

certain circumstances a majority opinion may be released without

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

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

allowed for separate writings, are unwelcoming to concurrences

and dissents.

¶34 Ambiguities and cracks in the process have already

appeared. Some were identified during the adoption of the new

procedure, others not.

¶35 Changing the ways the court does its business is

important. Circumstances change, personnel changes, and

technology changes. Timely release of our opinions after oral

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

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

sacrifice thoughtful discussion and careful collegial review of

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

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

been completed by June 30 (unless additional briefing was

required), regardless of the procedure used for circulating and

mandating opinions.

¶36 Only time will tell whether this new procedure will

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

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

ambiguities and uncertainties of the procedure and the different

timelines for numerous circulating opinions (some addressing

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

chart for each draft opinion is unwieldy and difficult because

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

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¶37 Changes in the newly adopted procedure are being

requested and should be given serious consideration.

Improvements may make this experimental new procedure more

satisfactory.

¶38 The court might even consider a simpler procedure to

accomplish the goals of reducing conferences and establishing

deadlines. For example, there might be an initial conference

discussion of a draft opinion to identify the areas of strength

and weakness, to identify areas of agreement and disagreement,

and to determine whether opinions involving the same legal

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

Deadlines might be established at this conference for each

opinion to fit the circumstances, such as the extent of

revisions required, the number and approaches of separate

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

¶39 There may be other and better suggestions for the

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

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