State v. Rozerick E. Mattox

2017 WI 9

SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP158-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Rozerick E. Mattox,
Defendant-Appellant.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: February 14, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 26, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Jennifer Dorow

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J., joined by BRADLEY, A. W., J.
dissent (Opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant, there was a brief and oral
argument by Leon W. Todd, assistant state public defender.

For the plaintiff-respondent the cause was argued by Luke
N. Berg, deputy solicitor general, with whom on the brief was
Misha Tseytlin, solicitor general and Brad D. Schimel, attorney
general.
 2017 WI 9
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP158-CR
(L.C. No. 2013CF471)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED
v. FEB 14, 2017
Rozerick E. Mattox, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.

APPEAL from a judgment of the Circuit Court for Waukesha

County, Jennifer Dorow, Judge. Affirmed.

¶1 REBECCA GRASSL BRADLEY, J. The court of appeals

certified this case to the court to determine whether the
admission of a toxicology report through a medical examiner's

testimony violated Rozerick E. Mattox's Sixth Amendment right to

confrontation. After a bench trial,1 Mattox was convicted of

1
The Honorable Jennifer R. Dorow of Waukesha County
presided.
 No. 2015AP158-CR

first-degree reckless homicide for delivering heroin that caused

S.L.'s death.2 Specifically, the certified question asks:

Does it violate a defendant's rights under the
Confrontation Clause of the Sixth Amendment to the
United States Constitution for the State to introduce
at trial a toxicology report identifying certain drugs
in a deceased victim's system and/or testimony of a
medical examiner basing his/her cause-of-death opinion
in part on the information set forth in such a report,
if the author of the report does not testify and is
not otherwise made available for examination by the
defendant?
¶2 The certification explains that two recent court of

appeals decisions reached opposite conclusions in heroin

overdose homicide cases involving toxicology reports. See State

v. Heine, 2014 WI App 32, 354 Wis. 2d 1, 844 N.W.2d 409; State

v. VanDyke, 2015 WI App 30, 361 Wis. 2d 738, 863 N.W.2d 626.

During the underlying trials in both Heine and VanDyke, the

toxicology reports were used during testimony by the medical

examiners who performed the autopsies and relied on the

toxicology reports to determine the cause of death in each case.

The lab analyst who signed the toxicology reports did not

testify. In Heine, the court of appeals held the toxicology

report could be used without violating the confrontation right.

Id., 354 Wis. 2d 1, ¶¶1, 15. But in VanDyke, it held the

2
Mattox was convicted under Wis. Stat. § 940.02(2)(a)(2011-
12), which defines first-degree reckless homicide in pertinent
part as: "Whoever causes the death of another human
being . . . [b]y manufacture, distribution or delivery, in
violation of s. 961.41, of a controlled substance . . . if
another human being uses the controlled substance . . . and dies
as a result of that use."

2
 No. 2015AP158-CR

toxicology report was "testimonial"; therefore, according to the

court of appeals, the report's admission through the medical

examiner's testimony violated the Confrontation Clause under

Crawford v. Washington, 541 U.S. 36 (2004) (admission of

"testimonial" out-of-court statements without affording the

defendant the opportunity to cross-examine the declarant

violates the Confrontation Clause). VanDyke, 361 Wis. 2d 738,

¶¶14-17. The certification notes that neither Heine nor VanDyke

sought review in this court but that "a supreme court decision

could lay this issue to rest for the bench and bar."

¶3 We answer the certified question in the negative and

therefore overrule VanDyke. Admitting this type of toxicology

report and the medical examiner's related testimony does not

violate a defendant's confrontation right because the toxicology

report was not "testimonial" under the primary purpose test

recently set forth by the United States Supreme Court in Ohio v.

Clark, 135 S. Ct. 2173 (2015). Under that test, when the

statement's primary purpose is something other than to "creat[e]
an out-of-court substitute for trial testimony" its admission

does not implicate the Confrontation Clause. Id. at 2180, 2183

(quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)).

¶4 The primary purpose of the toxicology report in this

case was to assist the medical examiner in determining the cause

of death. All objective indicators show the report was not

created for an evidentiary purpose: (1) the medical examiner

testified she requested the toxicology analysis as a part of her
autopsy protocol; (2) the toxicology report was not sworn,
3
 No. 2015AP158-CR

certified, or in the form of an affidavit and it comprised only

numerals quantifying the concentration of substances contained

in S.L.'s blood, urine, and tissue samples without any analysis

or interpretation of those numbers; (3) the police were not

involved in the autopsy or toxicology requests; (4) the report

was not requested by or reported directly to law enforcement;

(5) according to the record, the analyst who signed the report

had no knowledge the report related to a crime; and (6) the

report did not give an opinion on the cause of death or any

element of the crime for which Mattox was charged. Accordingly,

the admission and use at trial of this toxicology report did not

violate Mattox's Sixth Amendment right to confrontation.3 We

affirm the judgment convicting Mattox.

I. BACKGROUND

¶5 At about 2:30 a.m. on February 15, 2013, S.L.'s

roommate wanted to talk to S.L. and tried to get S.L. to open

his locked bedroom door. After receiving no response, the

roommate broke open the door to the bedroom, where he found S.L.
deceased.

¶6 City of Waukesha police and a Waukesha County deputy

medical examiner came to the apartment. They found S.L. hunched

over on the bedroom floor with drug paraphernalia on a chair

nearby. They also found some non-prescription ibuprofen and

3
Mattox does not raise any other ground for possible
exclusion of the toxicology report; thus, our review is limited
to whether its admission violated the Confrontation Clause.

4
 No. 2015AP158-CR

prescription Clonazepam, a drug used to treat anxiety.

Waukesha County Deputy Medical Examiner, Nichol Wayd, spoke with

police at the scene to get background facts, took pictures, and

transported S.L.'s body to the morgue for an autopsy.

¶7 After the body was removed from the scene, the police,

under the supervision of City of Waukesha Detective Thomas

Casey, collected the drug paraphernalia from S.L.'s room,

including multiple syringes (one of which had been used

recently), a small metal cooker, a tourniquet, and some cotton

balls. These items were submitted to the State Crime Lab for

analysis.

¶8 On February 15, 2013, Dr. Zelda Okia, an associate

medical examiner for Waukesha County, performed the autopsy on

S.L.'s body in order to determine the cause of death. The

autopsy protocol included examining the body and collecting and

sending biological samples to a toxicology lab. The Waukesha

County Medical Examiner's Office used the St. Louis University

toxicology lab because a board certified toxicologist runs the
lab and Waukesha County does not have the equipment to conduct

its own toxicology tests. During the autopsy, Dr. Okia noted

pulmonary edema, cerebral edema, 13 recent needle puncture marks

in S.L.'s arms, and elevation in the weight of his lungs——all

signs indicating death caused by drug overdose. Dr. Okia

collected samples of S.L.'s blood, urine, and tissue near the

injection sites, as well as one control tissue sample. She sent

these samples to the toxicology lab with the following
information: (1) S.L.'s name, age, weight, and race; (2) a
5
 No. 2015AP158-CR

history reading "Found unresponsive at Home"; (3) a listing of

medications available as "Clonazepam, Ibuprofen"; and (4) a

request to "Please test all above specimens" for "Alcohol" and

"General Unknown." The lab received the specimens on February

19, 2013, and the toxicology report was completed on March 13,

2013.

¶9 The toxicology report, which is attached in the

Appendix, lists the substances for which each sample was tested,

as well as either the word "negative" or "positive." A number

appears next to any substance identified within the sample. As

pertinent here, the toxicology report indicates the following:

The blood sample contained:

 "0.61 MICROGRAMS/ML" of total morphine;

 "LESS THAN 0.05 MICROGRAMS/ML" of "6-MONOACETYLMORPHINE";

and

 "0.27 MICROGRAMS/ML" of free morphine.

The urine sample contained:

 "0.74 MICROGRAMS/ML" of codeine;
 "GREATER THAN 4 MICROGRAMS/ML" of morphine;

 "2.5 MICROGRAMS/ML" of "6-MONOACETYLMORPHINE"; and

 "0.13 MICROGRAMS/ML" of hydromorphone.

The tissue samples, including the control sample, all contained

measurable amounts of morphine:

 "0.28 MICROGRAMS/GM" in "Antecubital vein and fat";

 "0.14 MICROGRAMS/GM" in "Right anterior forearm vein and

fat";

6
 No. 2015AP158-CR

 "0.16 MICROGRAMS/GM" in "Right ventral forearm vein and

fat";

 "0.11 MIRCROGRAMS/GM" in "Right anterior forearm vein and

fat"; and

 "0.14 MIRCROGRAMS/GM" in "Left antecubital vein and fat."

Dr. Christopher Long signed the toxicology report but the report

was not sworn or certified and does not contain any affidavit-

like assertions. The report does not explain the significance

of any of the numbers nor does it provide an interpretation of

the chemical levels.

¶10 Upon receiving the toxicology report, Dr. Okia

completed her autopsy report. Although the autopsy report is

not dated, it must have been completed after March 13, 2013,

because it lists the blood sample morphine quantities from the

toxicology report. Dr. Okia's autopsy report concludes that

S.L.'s cause of death was "Acute Heroin Intoxication." The

autopsy report does not indicate any police involvement with the

autopsy or the toxicology lab. The police were not involved in
requesting, sending, or receiving the biological samples from or

to the toxicology lab.

¶11 The City of Waukesha Police investigation into

S.L.'s death proceeded independently from the county medical

examiner's office. The only connection in this record between

the medical examiner's office and the police is the fact that

both responded to the scene and together notified S.L.'s next of

kin of his death. Dr. Wayd also sent to police her
investigative report, which is required in all State
7
 No. 2015AP158-CR

investigations and routinely produced. The report contains a

summary of the medical examiner's observations from the scene

and it documents the notification of S.L.'s next of kin

regarding his death.

¶12 The independent police investigation resulted in a

conclusion by law enforcement that S.L. died from an overdose of

heroin supplied by Mattox. The State Crime Lab certified, in an

October 2013 report, that the recently used syringe and metal

cooker police collected from S.L.'s apartment tested positive

for the presence of heroin. Cell phone and financial records,

bank video surveillance, and interviews with S.L.'s family and

friends enabled police to retrace S.L.'s steps the day before

his death. This led police to S.L.'s friend, Terry Tibbits.

Ten days after S.L.'s death, the police spoke with Tibbits, who

admitted he helped S.L. buy heroin from Mattox mid-morning on

February 14, 2013. Video surveillance from a bank ATM confirmed

Tibbits' report that the two withdrew $100 from S.L.'s bank

account shortly before meeting with Mattox. Tibbits told police
he gave $80 of S.L.'s ATM withdrawal to Mattox in exchange for a

half gram of heroin. After the heroin purchase, Tibbits and

S.L. immediately used 25 percent of the half gram, and S.L. kept

the rest. The police learned from Tibbits that he regularly

bought heroin from Mattox, a fact police confirmed when Tibbits

arranged for a controlled buy of heroin from Mattox on March 8,

2013. After the controlled buy, police arrested Mattox for

selling heroin. During police questioning, Mattox admitted he
sold Tibbits heroin two to three times a week, but claimed he
8
 No. 2015AP158-CR

did not remember whether Tibbits bought heroin from him on

February 14, 2013.

¶13 The police obtained cell phone records for Tibbits,

Mattox, and S.L., which supported the details Tibbits told

police. From additional interviews with S.L.'s family and

friends, police learned that S.L. was a heroin addict, had been

arrested for heroin possession earlier that month, and had a

court appearance related to that arrest the afternoon of

February 14, 2013. Police also learned that S.L.'s regular

heroin supplier was in jail and S.L. had been trying to stop

using heroin.

¶14 After being charged in April 2013 with reckless

homicide for S.L.'s death, Mattox pled not guilty and the case

was tried to the court. At trial, Mattox did not deny that he

regularly sold heroin to Tibbits, but he insisted he had not

done so on February 14, 2013. He did not dispute that S.L. died

from ingesting heroin; rather, he argued that S.L. bought the

deadly heroin from some other heroin dealer.
¶15 At trial, Dr. Okia explained the autopsy procedure in

a suspected overdose situation where the cause of death is

unknown. The procedure requires collecting biological specimens

to be sent to the toxicology lab for analysis. When the

prosecutor asked Dr. Okia about the toxicology report, Mattox

objected to its admission on the grounds that it violated his

9
 No. 2015AP158-CR

right to confrontation.4 The circuit court overruled the

objection, holding that the toxicology report was admissible

under Wis. Stat. § 907.03 (2011-12)5 as a basis for expert

opinion testimony and because it was not being admitted for its

truth or to prove an element of the crime. The circuit court

limited the admission of the report accordingly.

¶16 Dr. Okia testified that her cause of death

determination was based on her observations made during the

autopsy as well as the toxicology results she reviewed. She

testified:

 0.61 micrograms per milliliters of morphine in the blood

is a fatal amount; although the toxicology report did not

state this, she knew it from her training and experience.

 Less than 0.05 micrograms per milliliters of 6-

monoacetylmorphine (6-MAM for short) in the blood is

specific for heroin; it means the morphine in the blood

came from heroin and could not have come from any other

substance.

4
Mattox did not object to the admission of the lab reports
finding the presence of heroin on the drug paraphernalia
collected from S.L.'s bedroom and finding that the substance
seized during the March 8, 2013 controlled drug buy was heroin.
He stipulated to the admission of those Wisconsin State Crime
Lab reports without requiring the lab analysts to testify at
trial.
5
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.

10
 No. 2015AP158-CR

 0.27 micrograms per milliliters of free morphine in the

blood is "actual active morphine" and is a fatal amount;

the toxicology report did not explain this but she knew

it from her training and experience.

¶17 Dr. Okia also testified about the other numbers in the

toxicology report. She explained that the codeine in S.L.'s

urine is a contaminant often found in heroin cases because

codeine is used to manufacture heroin. She further explained,

however, that substances detected in urine indicate the presence

of the substances but cannot be used to determine the cause of

death because "urine typically concentrates the drugs." She

looks only for "active drugs in the blood" in assessing cause of

death.

¶18 The circuit court found Mattox guilty. He appealed to

the court of appeals, claiming that admission of the toxicology

report, without testimony at trial by the analyst who signed it,

violated his right to confrontation. The court of appeals

certified the case to this court, and we accepted it for review.
II. ANALYSIS

A. Standard of Review

¶19 Whether the admission of the toxicology report and the

medical examiner's testimony based upon it violates Mattox's

Sixth Amendment right to confrontation is a question of

constitutional law subject to independent review. See State v.

Williams, 2002 WI 58, ¶7, 253 Wis. 2d 99, 644 N.W.2d 919.

¶20 Both the Sixth Amendment to the United States
Constitution and the Wisconsin Constitution guarantee a criminal
11
 No. 2015AP158-CR

defendant the right to confront witnesses who testify against

the defendant at trial. See U.S. Const. amend. VI; Wis. Const.

art. 1, § 7.6 "We generally apply United States Supreme Court

precedent when interpreting these clauses." State v. Jensen,

2007 WI 26, ¶13, 299 Wis. 2d 267, 727 N.W.2d 518 (2007).

B. Precedent

¶21 This case presents an issue of first impression that

neither this court nor the United States Supreme Court has

directly addressed. Since the Supreme Court decided Crawford v.

Washington, 541 U.S. 36 (2004), we have issued only two opinions

involving the application of the Confrontation Clause to

forensic lab reports, and neither opinion involved a toxicology

report requested by the medical examiner as a part of an autopsy

to determine the cause of death where a crime had not yet been

uncovered. See State v. Griep, 2015 WI 40, 361 Wis. 2d 657, 863

N.W.2d 567; State v. Deadwiller, 2013 WI 75, 350 Wis. 2d 138,

834 N.W.2d 362.

¶22 Griep involved a drunk-driving prosecution where an
expert witness relied on a blood alcohol lab report certified by

an analyst who was not available to testify at trial. The

report was not admitted, but an expert witness reviewed the lab

6
The Sixth Amendment to the United States Constitution
provides: "In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses
against him . . . ." Article I, Section 7 of the Wisconsin
Constitution states: "In all criminal prosecutions the accused
shall enjoy the right . . . to meet the witnesses face to
face . . . ."

12
 No. 2015AP158-CR

report and testified about the blood alcohol result it reported.

We held Griep's confrontation right was not violated because the

expert merely reviewed the lab report to form an independent

opinion to which the expert testified. See Griep, 361

Wis. 2d 657, ¶¶1-3. The holding in Griep did not depend on

whether the report itself was testimonial because the report was

not admitted into evidence.

¶23 Deadwiller involved a sexual assault prosecution where

an expert witness used a DNA profile created by an out-of-state

lab using vaginal and cervical swabs from the victim to form an

independent conclusion. Deadwiller, 350 Wis. 2d 138, ¶¶1, 40.

Deadwiller challenged the testimony of the State Crime Lab

analyst who entered the DNA profile into the DNA database and

found it matched Deadwiller. Id., ¶40. Relying on Williams v.

Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012), a plurality

opinion with facts substantially identical to those in

Deadwiller, we determined no confrontation violation occurred.

Deadwiller, 360 Wis. 2d 138, ¶¶1-2. Significantly, the
defendant in Deadwiller did not contest the very fact supported

by the DNA profile——that he had intercourse with the victims——

rather, the defendant testified that the victims consented.

Id., ¶36. Neither Griep nor Deadwiller is squarely on point

here.

¶24 Likewise, the Supreme Court has not yet addressed the

issue presented in this case. Unquestionably, the Court

substantially changed confrontation jurisprudence when it
decided Crawford in 2004. See Clark, 135 S. Ct. at 2179. The
13
 No. 2015AP158-CR

Crawford Court overruled the Confrontation Clause test

articulated in Ohio v. Roberts, 448 U.S. 56 (1980), which had

allowed admission of out-of-court statements exhibiting

"adequate indicia of reliability" if the statement either fell

"within a firmly rooted hearsay exception" or bore

"particularized guarantees of trustworthiness." See Crawford,

541 U.S. at 40; Clark, 135 S. Ct. at 2179 (quoting Roberts, 448

U.S. at 66). Crawford returned confrontation law to its

original meaning and held a defendant's right to confrontation

is violated if the trial court receives into evidence out-of-

court statements by someone who does not testify at the trial if

those statements are "testimonial" and the defendant has not had

"a prior opportunity" to cross-examine the out-of-court

declarant. Crawford, 541 U.S. at 68. The Crawford Court did

not provide a comprehensive definition of "testimonial," but it

concluded that, "at a minimum," "testimonial" statements include

"prior testimony at a preliminary hearing, before a grand jury,

or at a former trial and . . . police interrogations" because
these are the types of evidence "at which the Confrontation

Clause was directed." Id. Crawford's definition of

"testimonial" required the statement to have some degree of

formality. See id. at 51. Post-Crawford, confrontation

challenges begin with an analysis of whether the out-of-court

statements used against a defendant are "testimonial." If the

statements are not testimonial, the Confrontation Clause is not

implicated.

14
 No. 2015AP158-CR

¶25 Since Crawford, the Supreme Court decided several

confrontation cases in a variety of contexts and further defined

whether statements are or are not "testimonial." See Davis v.

Washington, 547 U.S. 813, 822 (2006) (establishing that

statements "are nontestimonial when made . . . under

circumstances objectively indicating that the primary purpose of

the interrogation is to enable police assistance to meet an

ongoing emergency" (emphasis added)); Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 310-11 (2009) (concluding that

affidavit-like certifications, which proved the fact in

question——that a seized substance was cocaine——were testimonial

because they were "functionally identical to live, in-court

testimony, doing 'precisely what a witness does on direct

examination'" (quoting Davis, 547 U.S. at 830)); Michigan v.

Bryant, 562 U.S. 344, 377-78 (2011) (holding that statements

made by a dying shooting victim were nontestimonial where

informal nature of police questioning demonstrated officers'

primary purpose of assessing the situation and responding to
ongoing emergency); Bullcoming v. New Mexico, 564 U.S. 647, 664-

65 (2011) (treating a lab report regarding defendant's blood-

alcohol content as testimonial because, despite the absence of

notarization, the author's certification was a formal, signed

report "created solely for an 'evidentiary purpose' . . . [and]

made in aid of a police investigation" (quoting Melendez-Diaz,

557 U.S. at 311)); Williams v. Illinois, 567 U.S. ___, 132 S.

Ct. 2221, 2243 (2012) (plurality opinion) (concluding that DNA
profile generated from sexual assault victim's vaginal swabs was
15
 No. 2015AP158-CR

not testimonial because its "primary purpose . . . was not to

accuse [the suspect] or to create evidence for use at trial");

Ohio v. Clark, 135 S. Ct. 2173, 2181 (2015) (determining that

child abuse victim's statements to teacher were not testimonial

because the informal questions at a school were asked with a

primary purpose as a "concerned citizen . . . talk[ing] to a

child who might be the victim of abuse," not "to gather evidence

for . . . prosecution").

C. Application

¶26 Three of these Supreme Court cases discussed the

Confrontation Clause within the context of forensic lab reports:

Melendez-Diaz, Bullcoming, and Williams. Melendez-Diaz involved

cocaine drug dealing where the challenged evidence comprised

"affidavits reporting the results of forensic analysis which

showed that material seized by the police and connected to the

defendant was cocaine." Melendez-Diaz, 557 U.S. at 307-08.

Bullcoming involved a drunk-driving arrest where the forensic

lab report was created at the request of and for the "aid of a
police investigation," "solely for an 'evidentiary purpose.'"

Bullcoming, 564 U.S. at 651, 664 (quoting Melendez-Diaz, 551

U.S. at 311). The lab report certified Bullcoming's blood-

alcohol concentration, the chain of custody of the blood sample,

the qualifications of the analyst, the lab procedures, and that

all procedures had been followed. Id. at 653. The Court held

both lab reports were testimonial and their admission, without

the opportunity to cross-examine the authors, violated the

16
 No. 2015AP158-CR

Confrontation Clause. See Melendez-Diaz, 557 U.S. at 311;

Bullcoming, 564 U.S at 663-65.

¶27 Melendez-Diaz and Bullcoming do not control here

because the lab report and its evidentiary use in Mattox's case

bear no resemblance to the reports or their use in Melendez-Diaz

or Bullcoming. First, the forensic reports in Melendez-Diaz and

Bullcoming were requested by police following the seizure of

evidence from a criminal suspect, and the lab reports were

specifically created for use against the suspects in criminal

prosecutions. See Melendez-Diaz, 557 U.S. at 310-11;

Bullcoming, 564 U.S. at 651, 664-65. Second, the Melendez-Diaz

and Bullcoming reports satisfied the formality factor because

each report was affidavit-like or certified——providing the

functional equivalent of trial testimony——significantly, about

an element of the crime in each case. In Melendez-Diaz, the

Supreme Court concluded that "[t]he Sixth Amendment does not

permit the prosecution to prove its case via ex parte out-of

court affidavits." Melendez-Diaz, 557 U.S. at 329.
¶28 Here, the medical examiner took biological samples

during an autopsy of a decedent who died of unknown causes.

The police did not seize the tested evidence from Mattox, who

was not suspected of committing a crime when the samples were

taken. The toxicology report was not requested by the police or

solicited for the purpose of generating evidence against Mattox.

At the time the medical examiner sent the samples for testing,

there was no defendant against whom to generate evidence because
there was no known crime. The medical examiner was simply
17
 No. 2015AP158-CR

looking for information to determine the cause of death and

submitted the biological samples to the toxicology lab pursuant

to autopsy protocols. The police were not involved in sending

the samples to the lab or generating evidence against a

defendant with respect to the autopsy, and the record is devoid

of any suggestion that the medical examiner was working as an

agent of the police in an active criminal investigation to

develop evidence for use in a criminal prosecution.

¶29 Further, the toxicology report in this case lists the

concentration of the various substances present in S.L.'s

biological samples sent for testing. The numbers in the report

relate to S.L., not Mattox. Unlike in Melendez-Diaz and

Bullcoming, the analyst who signed the report was not acting as

a witness against Mattox and was not offering testimony with the

primary purpose of saying that the heroin Mattox sold to S.L.

killed him. The toxicology report does not even contain the

word "heroin," and the report does not accuse Mattox of

anything. Based on these significant differences, Melendez-Diaz
and Bullcoming are easily distinguishable.

¶30 Williams is the third Supreme Court case addressing

confrontation rights where a forensic lab report was used at

trial without the testimony of the author of the report. The

Williams case involved a sexual assault where the defendant

claimed that use of a DNA profile violated his confrontation

rights. See Williams, 132 S. Ct. at 2227. A four-Justice

plurality concluded the DNA report was not testimonial because
it had been prepared not "for the primary purpose of accusing a
18
 No. 2015AP158-CR

targeted individual" but to "catch a dangerous rapist who was

still at large." Id. at 2243. Because Williams does not have

precedential value except in a case with substantially similar

facts, it does not apply here. See Griep, 361 Wis. 2d 657, ¶39.

¶31 Thus, none of the Supreme Court's confrontation cases

specifically discuss the Confrontation Clause within the context

of the issue presented here: whether a toxicology report——

prepared at the medical examiner's request as a part of the

autopsy protocol in a drug overdose death——constitutes testimony

in a homicide prosecution against the dealer who supplied the

heroin responsible for the fatal overdose.

¶32 Ohio v. Clark, 135 S. Ct. 2173, guides our review.

Although Clark did not involve a toxicology report prepared as a

part of an autopsy, it pronounces the controlling principles in

determining whether an out-of-court statement is "testimonial"

and therefore subject to the Confrontation Clause. Clark

reaffirms the primary purpose test: the dispositive "question

is whether, in light of all the circumstances, viewed
objectively, the 'primary purpose' of the [out-of-court

statement] was to creat[e] an out-of-court substitute for trial

testimony." Clark, 135 S. Ct. at 2180 (quoting Bryant, 562 U.S.

at 358). The primary purpose test decides whether the declarant

is acting as a witness against the defendant, see Clark, 135 S.

Ct. at 2185 (Scalia, J., concurring), by considering whether the

primary purpose of the out-of-court statement "was to gather

evidence for [the defendant's] prosecution." Id. at 2181.
Clark instructs that some factors relevant in the primary
19
 No. 2015AP158-CR

purpose analysis include: (1) the formality/informality of the

situation producing the out-of-court statement; (2) whether the

statement is given to law enforcement or a non-law enforcement

individual; (3) the age of the declarant7 and (4) the context in

which the statement was given. Id. at 2180-82.

¶33 In order to decide whether the declarant in this case—

—the analyst who signed the toxicology report——was acting as a

witness against Mattox, we must apply the primary purpose test.

We start by examining the purpose of the toxicology report. Dr.

Okia testified that, as a routine part of her autopsy protocol

in suspected overdose cases, she collects biological specimens

and sends them to the toxicology lab for testing to determine

what substances, if any, are present in a decedent's blood,

urine, and tissue. The reason for the testing is to inform the

medical examiner's opinion as to the cause of death. Thus, the

primary purpose of the toxicology report here was to provide

information to the medical examiner as part of the autopsy

protocol, not to establish certain toxicology levels in order to
prove an element of a criminal charge. Indeed, no charges were

pending or contemplated against Mattox at the time the medical

examiner requested this toxicology report. Because the

toxicology report was not intended to substitute for testimony

7
This factor, though pertinent in Ohio v. Clark, 135 S. Ct.
2173, 2181 (2015), is not applicable here and will not be
discussed.

20
 No. 2015AP158-CR

in a criminal prosecution, the report's primary purpose very

clearly is not testimonial.

¶34 Another factor to consider in making the primary

purpose determination is the "informality of the situation."

Clark, 135 S. Ct. at 2180 (quoting Bryant, 562 U.S. at 377). A

formal out-of-court statement is considered more likely to be

testimonial, and an informal one is considered less likely to be

testimonial. As a part of this analysis, Clark looked at

whether the statements at issue were given to law enforcement

officers or non-law enforcement individuals. Id. at 2181.

Clark stopped short of adopting a "categorical rule" that

statements to non-law enforcement individuals will never

implicate the Confrontation Clause, but the Court held that

statements to persons other than law enforcement officers were

"much less likely to be testimonial than statements to law

enforcement officers." Id. The toxicology report at issue in

Mattox's case was not prepared for or given to law enforcement,

making it much less likely to be testimonial. Although the
toxicology report is "formal" in the sense that it is

typewritten, titled, and signed, this slight formality does not

imply a testimonial purpose in a way that traditionally formal

attestations, such as notarization or certification, might.

¶35 The facts in the record provide additional context,

which Clark teaches is "highly relevant" to the primary purpose

analysis in confrontation cases. See Clark, 135 S. Ct. at 2182.

The declarant created the report at the request of the medical
examiner, not the police, to provide the medical examiner with
21
 No. 2015AP158-CR

the numerical concentration of substances, if any, present in

the decedent's biological samples. The report was generated to

help the medical examiner determine S.L.'s cause of death, not

to help the police produce evidence for a criminal prosecution.

Nothing in the record suggests the declarant knew that the

police were conducting a simultaneous investigation into S.L.'s

death or that the police would eventually conclude that a crime

occurred. To the contrary, the information provided to the

toxicology lab declarant gave no indication that S.L.'s death

would prompt a homicide prosecution or that police were involved

in any way. The specimens came from the medical examiner's

office with information that S.L. was found "unresponsive at

home" with Clonazepam and ibuprofen nearby. Under Wis. Stat.

§§ 979.02 and 979.04, a medical examiner has broad, independent

discretion to conduct an autopsy "for the purpose of inquiring

how the person died" if there are "unexplained or suspicious

circumstances" accompanying the death, see also Scarpaci v.

Milwaukee Cty., 96 Wis. 2d 663, 684, 292 N.W.2d 816 (1980), and,
as the State points out, homicides account for "less than one

percent" of the 1300 deaths the Waukesha County Medical

Examiner's Office investigates each year.

¶36 Context shows the primary purpose of the toxicology

report was to provide the medical examiner with the results of

tests performed on the biological specimens of an individual who

died for unknown reasons. It was not to aid police in a

criminal investigation or to prove an element of a later-charged
crime; it was not created as a substitute for out-of-court
22
 No. 2015AP158-CR

testimony to prove Mattox killed S.L. Mattox did not dispute

any fact conveyed by the toxicology report, instead basing his

defense on the theory that S.L. bought the heroin that killed

him from another dealer. A toxicology report used as a partial

foundation for a medical examiner's cause of death

determination——a report lacking any accusation or basis therefor

against the defendant——is not the type of evidence "at which the

Confrontation Clause was directed." See Crawford, 541 U.S. at

68.

¶37 Applying all the pertinent Clark factors in this case

results in a single conclusion: the toxicology report in this

case was not "testimonial" because its primary purpose was to

identify the concentration of the tested substances in

biological samples sent by the medical examiner as a part of her

autopsy to determine the cause of death——not to create a

substitute for out-of-court testimony or to gather evidence

against Mattox for prosecution. Use of this toxicology report

during trial did not infringe Mattox's confrontation right.
D. General Declaration on Autopsies and Toxicology Reports

¶38 The State asks this court to declare that, in general,

admitting autopsy reports and any underlying toxicology reports

will not violate a defendant's confrontation right because these

types of reports do not generate testimonial evidence. The

State asserts this is so because the primary purpose of

autopsies is to determine cause of death and not to generate

evidence against a criminal defendant. Although the Supreme
Court has not declared this to be the law, the State cites a
23
 No. 2015AP158-CR

variety of court decisions supporting its proposition. See

United States v. James, 712 F.3d 79, 87-102 (2d Cir. 2013)

("autopsy report was not testimonial because it was not prepared

primarily to create a record for use at a criminal trial");

People v. Leach, 2012 IL 111534, ¶¶76-138, 980 N.E.2d 570

(autopsy report not testimonial because it was not "prepared for

the primary purpose of accusing a targeted individual" or for

"providing evidence in a criminal case" (citations omitted));

State v. Maxwell, 2014-Ohio-1019, ¶¶54-65, 9 N.E.3d 930 (autopsy

reports are not testimonial because "they are created 'for the

primary purpose of documenting cause of death for public records

and public health'" (quoting Carolyn Zabrycki, Comment, Toward a

Definition of "Testimonial": How Autopsy Reports Do Not Embody

the Qualities of a Testimonial Statement, 96 Calif. L. Rev.

1093, 1130 (2008))). The State acknowledges that some courts

have held autopsies "testimonial," but the State asserts this

occurred only under special circumstances, such as when law

enforcement is physically present at the autopsy or leans
heavily on the medical examiner to produce reports favoring

prosecution against a criminal defendant. See, e.g., United

States v. Moore, 651 F.3d 30, 73 (D.C. Cir. 2011) (ruling

autopsy report testimonial where police "observed the autopsies"

and "participated in the creation of reports"); State v.

Navarette, 294 P.3d 435, 440 (N.M. 2013) (ruling autopsy report

testimonial where "two police officers attended the autopsy").

¶39 We decline the State's request. The medical examiner
who performed the autopsy in this case testified at trial,
24
 No. 2015AP158-CR

eliminating any confrontation argument with respect to the

autopsy report itself. A declaration on autopsies is not

presented under the circumstances in this case.

¶40 We do declare a general rule with respect to the type

of toxicology report at issue here. When a medical examiner——

unilaterally and not in conjunction with law enforcement——

requests a toxicology report while performing an autopsy to

determine the cause of death, admitting the toxicology report

generally will not violate the Confrontation Clause when the

toxicology report contains solely a numerical account of the

concentration of substances within a decedent's blood, urine,

and tissue. The primary purpose of toxicology reports generated

and used under circumstances similar to those presented in this

case is not to generate evidence against a defendant in a

criminal prosecution but to assist the medical examiner in

determining the cause of death. Because admission of this type

of toxicology report bears no "resemblance to the historical

practices that the Confrontation Clause aimed to eliminate,"8
such reports generally will not be "testimonial" and therefore

will not trigger confrontation concerns.

III. CONCLUSION

¶41 This case presented an issue of first impression:

whether an out-of-state toxicology report requested by a medical

examiner as a part of the routine autopsy protocol in a drug

8
Michigan v. Bryant, 562 U.S. 344, 379 (2011) (Thomas, J.,
concurring in the judgment).

25
 No. 2015AP158-CR

overdose death constitutes testimonial evidence in the resulting

homicide prosecution against the drug dealer who supplied the

heroin responsible for the fatal overdose. Guided by the

Supreme Court's most recent confrontation case, Ohio v. Clark,

135 S. Ct. 2173, which requires application of the "primary

purpose" test, we conclude the toxicology report here is not

"testimonial" and its use at trial therefore did not infringe

upon Mattox's confrontation right. We overrule the court of

appeals' decision in State v. VanDyke, 361 Wis. 2d 738, because

the court of appeals erroneously held a substantially similar

toxicology report to be "testimonial." Id., ¶17.

¶42 We decline the State's request to declare all autopsy

reports, absent special circumstances, to be non-testimonial

because that is not the issue presented here. We do, however,

hold that all toxicology reports similar to the one here——solely

identifying the concentration of substances present in

biological samples sent by the medical examiner as a part of an

autopsy protocol——are generally non-testimonial when requested
by a medical examiner and not at the impetus of law enforcement.

The primary purpose of these toxicology reports is not to create

evidence against a defendant in a criminal prosecution; rather,

the principal purpose is to provide information to the medical

examiner searching for the cause of death. Because there was

nothing "testimonial" about the toxicology report used during

Mattox's trial, the confrontation rights of the defendant were

not infringed.

26
 No. 2015AP158-CR

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

affirmed.

27
 No. 2015AP158-CR

APPENDIX

28
 No. 2015AP158-CR

29
 No. 2015AP158-CR

30
 No. 2015AP158-CR.ssa

¶43 SHIRLEY S. ABRAHAMSON, J. (dissenting). Circuit

courts across the state frequently address the question

presented in the instant case: "How does the Confrontation

Clause apply to the panoply of crime laboratory reports and

underlying technical statements written by (or otherwise made

by) laboratory technicians?"1

¶44 This question lies at the intersection of the

Confrontation Clause and the rules of evidence. Answering the

question requires the application of the Confrontation Clause to

numerous types of laboratory reports and witnesses testifying

about or relying on reports they did not produce.2

¶45 "Testimonial statements of witnesses absent from

trial" violate a defendant's confrontation right unless "the

declarant is unavailable, and only where the defendant has had a

prior opportunity to cross-examine." Crawford v. Washington,

541 U.S. 36, 59 (2004). Crawford substantially changed

confrontation law.

¶46 Since Crawford, the United State Supreme Court has
progressively defined whether out-of-court statements of

different types and in different contexts are testimonial. Some

might say that the United States Supreme Court cases defining

testimonial are in disarray, and this disarray is reflected in

opinions being rendered across the country.

1
State v. Deadwiller, 2013 WI 75, ¶47, 350 Wis. 2d 138, 834
N.W.2d 362 (Abrahamson, C.J., concurring).
2
Deadwiller, 350 Wis. 2d 138, ¶51 (Abrahamson, C.J.,
concurring).

1
 No. 2015AP158-CR.ssa

¶47 The instant case involves an autopsy report and a

toxicology report. The autopsy report was admitted in evidence.

The medical examiner who produced the report testified and was

subject to examination and cross-examination about the autopsy

report. The admission of the autopsy report in evidence does

not present a confrontation issue.

¶48 By contrast, the toxicology report was admitted into

evidence by the circuit court, which stated that the toxicology

report was not being "offered to prove any element that is at

issue in this particular case in terms of what substance was

delivered." The toxicology report was prepared at the request

of the medical examiner by an independent, out-of-state

laboratory. No witness testified about the preparation of the

toxicology report. The medical examiner referred to the

toxicology report in her testimony about the autopsy and her

opinion about the cause of death.3

¶49 On appeal, however, the parties, the certification by

the court of appeals, and the majority opinion apparently are
inconsistent in how they characterize the admission of the

toxicology report in evidence. Although the majority opinion

mentions that the circuit court did not admit the toxicology

report for its truth, majority op., ¶15, the majority opinion is

3
See Williams v. Illinois, 132 S. Ct. 2221 (2012)
(plurality opinion) (No Sixth Amendment violation exists when
"[a]n expert witness referred to the report not to prove the
truth of the matter asserted in the report, i.e., that the
report contained an accurate profile of the perpetrator's DNA,
but only to establish that the report contained a DNA profile
that matched the DNA profile deduced from petitioner's blood.").

2
 No. 2015AP158-CR.ssa

not clear in how it treats the admission of the toxicology

report. Compare majority op., ¶15 ("[T]he toxicology report

"was admissible under Wis. Stat. § 907.03 (2011-12) as a basis

for expert opinion testimony . . . ."), ¶19 ("Whether the

admission of the toxicology report and the medical examiner's

testimony based upon it violates Mattox's Sixth Amendment right

to confrontation . . . .); ¶41 ("[W]e conclude the toxicology

report here is not 'testimonial' and its use at trial therefore

did not infringe upon Mattox's confrontation right.").

¶50 What is clear in the majority opinion is that it

adopts a primary purpose test for determining whether the

toxicology report, a forensic report, is testimonial under the

confrontation clause.

¶51 The majority opinion at ¶32 (emphasis added and

internal citations omitted) asserts that it takes its

formulation of the primary purpose test from Ohio v. Clark, 135

S. Ct. 2173 (2015), and states the test as follows:

[T]he dispositive "question is whether, in light of
all the circumstances, viewed objectively, the
"primary purpose" of the [out-of-court statement] was
to creat[e] an out-of-court substitute for trial
testimony." . . . The primary purpose test decides
whether the declarant is acting as a witness against
the defendant . . . by considering whether the primary
purpose of the out-of-court statement "was to gather
evidence for [the defendant's] prosecution."4

4
Ohio v. Clark, 135 S. Ct. 2173 (2015), involves a
traditional out-of-court declarant's statement. It does not
address forensic reports.

(continued)
3
 No. 2015AP158-CR.ssa

¶52 The majority opinion's approach presents two

difficulties, however——difficulties the majority opinion masks.

• Although the majority opinion states that Clark

"pronounces the controlling principles in determining

whether an out-of-court statement is 'testimonial,'"

majority op., ¶32, the majority opinion's statement of

Clark's primary purpose test is not fully faithful to

Clark. The majority opinion, without explanation,

cherry-picks what might be characterized as the

narrowest formulation of Clark's primary purpose test

and severely limits the definition of "testimonial"

for purposes of the confrontation clause.

In Clark, the United States Supreme Court held that a
child's statement to her teacher, which asserted that her
mother's boyfriend was abusing her, was nontestimonial. The
statement was nontestimonial because the child was too young to
have the primary purpose to accuse the defendant and made the
statements in the context of an ongoing emergency (his mother's
boyfriend's abuse). Clark, 135 S. Ct. at 2184 (Scalia, J.,
concurring).

Justice Scalia, who wrote Crawford v. Washington, 541 U.S.
36 (2004), beginning a new era in confrontation law, concurred
in Clark, declaring that the majority in the United States
Supreme Court is "shoveling fresh dirt upon the Sixth Amendment
right of confrontation so recently rescued from the grave in
Crawford v. Washington . . . ." Clark, 135 S. Ct. at 2184
(2015) (Scalia, J., concurring).

The majority opinion also gleans from the Clark opinion the
following factors relevant in the primary purpose analysis:
"(1) The formality/informality of the situation producing the
out-of-court statement; (2) whether the statement is given to
law enforcement or a non-law enforcement individual; (3) the age
of the declarant and (4) the context in which the statement was
given." Majority op., ¶32 (footnote omitted).

4
 No. 2015AP158-CR.ssa

• Although all nine justices of the United States

Supreme Court (as of the Court's last forays into

defining "testimonial") agree that whether an out of

court statement is testimonial depends (at least to an

extent) on the primary purpose of the out-of-court

statement, the United States Supreme Court justices

have not uniformly or consistently formulated the

primary purpose test. Different primary purpose tests

are set forth by different justices in different

contexts. Slight differences in the formulation of

the primary purpose test can lead a court to a

different conclusion regarding the testimonial nature

of out-of-court statements.

¶53 The majority opinion is not fully faithful to Clark

because it does not reveal or apply a primary purpose test that

Clark derives from confrontation cases. Clark declares that

"[statements] are testimonial when the circumstances objectively

indicate . . . that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later

criminal prosecution." Clark, 135 S. Ct. at 2180 (quoting Davis

v. Washington, 547 U.S. 813 (2006)). I refer to this

formulation of the primary purpose test as the "potentially

relevant" test.

¶54 The United States Supreme Court cases demonstrate that

the justices are not necessarily in agreement about the

formulation of the primary purpose test. I therefore examine
the Court's confrontation cases to set forth the various

5
 No. 2015AP158-CR.ssa

formulations of the primary purpose test, including the

"potentially relevant" test.

¶55 I begin with the Crawford case, the seminal

confrontation clause case.5

¶56 Although Crawford did not conclusively define

"testimonial," the Court did set forth three "formulations of

[the] core class of testimonial' statements," which appear to

have influenced later formulations of the primary purpose test:

[E]x parte in-court testimony or its functional
equivalent——that is, . . . pretrial statements that
declarants would reasonably expect to be used
prosecutorially.
Crawford, 541 U.S. at 51 (quoting Brief for Petitioner Michael

Crawford).

[E]xtrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions.
Crawford, 541 U.S. at 51 (quoting White v. Illinois, 502 U.S.

346, 365 (Thomas, J., concurring in part & concurring in

judgment).

[S]tatements that were made under circumstances which
would lead an objective witness reasonably to believe
that the statement would be available for use at a
later trial.

5
Crawford v. Washington, 541 U.S. 36 (2004), involved an
assault and attempted murder case. At trial, the State
introduced an incriminating recorded statement made by the
defendant's wife (she did not testify because of marital
privilege). The Court held that the State's use of the recorded
statement violated the Confrontation Clause.

6
 No. 2015AP158-CR.ssa

Crawford, 541 U.S. at 52 (quoting Brief for Amicus Curiae

National Association of Criminal Defense Lawyers).6

¶57 Then, in Davis v. Washington, 547 U.S. 813, 822

(2006),7 Justice Scalia stated the primary purpose test as

follows:

[Statements] are testimonial when the circumstances
objectively indicate . . . that the primary purpose of
the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.
Davis, 547 U.S. at 822.

¶58 In Michigan v. Bryant, 562 U.S. 344 (2011),8 the

primary purpose inquiry was described using Justice Scalia's

"potentially relevant" formulation of the primary purpose test

as follows:

[Statements] are testimonial when the circumstances
objectively indicate that . . . the primary
6
See State v. Manuel, 2005 WI 75, ¶37, 281 Wis. 2d 554, 697
N.W.2d 811 (stating these three formulations).
7
Davis v. Washington, 547 U.S. 813, 822 (2006), involved
two cases consolidated on appeal. Each involved out-of-court
statements made by domestic abuse victims and then used at
trial. One case (Davis v. Washington) held nontestimonial a
domestic abuse victim's statements made to a 911 operator during
an altercation with her boyfriend. The second case (Hammon v.
Indiana) held testimonial an affidavit written by a domestic
abuse victim with the assistance of law enforcement.
8
Michigan v. Bryant, 562 U.S. 344, involved a statement
made to law enforcement by a shooting victim lying mortally
wounded in a parking lot. The victim died shortly thereafter,
but his statement was later used at trial; the petitioner was
convicted of second-degree murder at trial. The Court held that
the statement identifying, describing, and locating the shooter
were not testimonial statements because they had a "primary
purpose . . . to enable police assistance to meet an ongoing
emergency." Bryant, 562 U.S. at 349.

7
 No. 2015AP158-CR.ssa

purpose . . . is to establish or prove past events
potentially relevant to later criminal prosecution.
Bryant, 562 U.S. at 356 (quoting Davis, 547 U.S. at 822).

Justice Sotomayor, writing for the majority in Bryant, stated

the test as follows:

When, as in Davis, the primary purpose of an
interrogation is to respond to an "ongoing emergency,"
its purpose is not to create a record for trial and
thus is not within the scope of the Clause. But there
may be other circumstances, aside from ongoing
emergencies, when a statement is not procured with a
primary purpose of creating an out-of-court substitute
for trial testimony.
Bryant, 562 U.S. at 358.

¶59 In Melendez-Diaz v. Massachusetts, 557 U.S. 305

(2009),9 the Court considered the testimonial nature of forensic

reports for the first time since Crawford. Melendez-Diaz stated

the primary purpose test as follows:

[Statements are testimonial when] "made under
circumstances which would lead an objective witness
reasonably to believe that the statement would be
available for use at a later trial."
Melendez-Diaz, 557 U.S. at 311 (quoting Crawford, 541 U.S. at

52).

9
In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310
(2009), the trial court admitted certificates of state crime
laboratory analysis that concluded that the drugs seized were
cocaine. The Court held that admission of these certificates
without in-person testimony by the analyst violated the
defendant's confrontation right.

8
 No. 2015AP158-CR.ssa

¶60 In Bullcoming v. New Mexico, 564 U.S. 647 (2011),10

another case involving a forensic report, the primary purpose

inquiry was described in "potentially relevant" terms as

follows:

To rank as "testimonial," a statement must have a
"primary purpose" of "establish[ing] or prov[ing] past
events potentially relevant to later criminal
prosecution."
Bullcoming, 564 U.S. at 659 n.6 (quoting Davis, 547 U.S. at

822).11 Concurring in Bullcoming, Justice Sotomayor stated the

primary purpose test as follows:
10
Bullcoming v. New Mexico, 564 U.S. 647 (2011), involved a
forensic laboratory report certifying that the defendant had a
blood-alcohol concentration that was above the legal limit. The
analyst who prepared the report was on unpaid leave, so the
State attempted to use the testimony of another analyst to
validate the report. Over the petitioner's objection, the trial
court admitted the report into evidence. The Court held that
admitting this report violated the defendant's confrontation
rights because the preparing analyst did not testify.
11
The Bullcoming court explicitly rejected the argument
that the report of the forensic lab analyst is nontestimonial
because the analysts are "mere scriveners" who transcribe
results from machines but do not interpret or exercise
independent judgment. Bullcoming, 564 U.S. at 659. Instead,
Justice Ginsburg explained:

[The analyst] certified [in the report] that he
received Bullcoming's blood sample intact with the
seal unbroken, that he checked to make sure that the
forensic report number and the sample number
"correspond[ed]," and that he performed on
Bullcoming's sample a particular test, adhering to a
precise protocol. He further represented, by leaving
the "[r]emarks" section of the report blank, that no
"circumstance or condition. . . affect[ed] the
integrity of the sample or . . . the validity of the
analysis." These representations, relating to past
events and human actions not revealed in raw, machine-
produced data, are meet for cross-examination.
(continued)
9
 No. 2015AP158-CR.ssa

To determine if a statement is testimonial, we must
decide whether it has "a primary purpose of creating
an out-of-court substitute for trial testimony."
Bullcoming, 564 U.S. at 669 (Sotomayor, J., concurring) (quoting

Bryant, 562 U.S. at 357).

¶61 In Williams v. Illinois, 132 S. Ct. 2221 (2012)12, the

Court's third case involving a forensic report, the primary

purpose was described as follows:

In identifying the primary purpose of an out-of-court
statement, we apply an objective test. We look for
the primary purpose that a reasonable person would
have ascribed to the statement, taking into account
all of the surrounding circumstances.

. . . .

Here, the primary purpose of the . . . report, viewed
objectively, was not to accuse petitioner or to create
evidence for use at trial.
Williams, 132 S. Ct. at 2243.

¶62 The dissent in Williams criticized this formulation of

the primary purpose test as devoid of support in either the text

Bullcoming, 564 U.S. at 660 (internal citations omitted).

The Court also noted that "the comparative reliability of
an analyst's testimonial report drawn from machine-produced data
does not overcome the Sixth Amendment bar." Bullcoming, 564
U.S. at 661 (2011).

Finally, the Bullcoming Court reiterated that the Sixth
Amendment confrontation right could not be diminished for the
sake of administrative or prosecutorial convenience.
12
Williams v. Illinois, 132 S. Ct. 2221 (2012), involved a
bench trial for rape. A forensic specialist testified that a
sample of petitioner's blood matched a DNA profile collected
through a vaginal swab and analyzed by an independent
laboratory.

10
 No. 2015AP158-CR.ssa

or the history of the Sixth Amendment's confrontation right.

Justice Kagan wrote that no case has ever suggested that the

statement must be meant to accuse a previously identified

individual. Williams, 132 S. Ct. at 2273 (Kagan, J.,

dissenting). Justice Kagan reiterated that the primary purpose

test using the "potentially relevant" standard is proper as

follows:

We have previously asked whether a statement was made
for the primary purpose of establishing "past events
potentially relevant to later criminal prosecution"——
in other words, for the purpose of providing
evidence. . . . None of our cases has ever suggested
that, in addition, the statement must be meant to
accuse a previously identified individual . . . .
Williams, 132 S. Ct. at 2273-74 (Kagan, J., dissenting) (quoting

Davis, 547 U.S. at 822; citing Bullcoming, 131 S. Ct. at 2716–

17; Bryant, 131 S. Ct. at 1157, 1165; Melendez–Diaz, 557 U.S. at

310-11; Crawford, 541 U.S. at 51–52)

¶63 These several formulations of the primary purpose test

are informative and illustrate that the U.S. Supreme Court has

not adopted a single, definitive formulation of the primary
purpose test.

¶64 The "potentially relevant" test, however, is the most

prevalent in the Court's cases,13 and is helpful in the instant
13
See People v. Lopez, 286 P.3d 469, 490 (Cal. 2012) (Liu,
J., dissenting) (the "potentially relevant" formulation of the
primary purpose test is the "most faithful to the high court's
authoritative pronouncements in prior cases going back to
Crawford.").

For a discussion of hearsay, constitutional confrontation,
and due process, see 2 McCormick on Evidence § 252 (Kenneth S.
Broun ed., 7th ed. 2013 & Supp. 2016).

11
 No. 2015AP158-CR.ssa

case: "To rank as 'testimonial,' a statement must have a

'primary purpose' of 'establish[ing] or prov[ing] past events

potentially relevant to later criminal prosecution."

Bullcoming, 564 U.S. at 659, n.6 (quoting Davis, 547 U.S. at

822.

¶65 In applying the various formulations of the primary

purpose test, I would look first and foremost to the three

United States Supreme Court cases involving forensic reports:

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), Bullcoming

v. New Mexico, 564 U.S. 647 (2011), and Williams v. Illinois,

132 S. Ct. 2221 (2012).

¶66 In the first two of these three cases, the United

States Supreme Court concluded that the forensic reports were

testimonial and did bear a resemblance to the historical

practices that the confrontation clause aims to eliminate. The

third case did not produce a majority opinion and has been

subject to a variety of interpretations, but may hold no

precedential value except in cases with identical facts. See
majority op., ¶30 (explaining the limited precedential value of

Williams v. Illinois).

¶67 Clark involves a traditional out-of-court declarant's

statement, not a forensic report. Clark does not address these

three prior Supreme Court cases involving the confrontation

clause and forensic reports.14 The majority opinion's
14
The three United States Supreme Court forensic report
cases, however, are lost along the way as Clark does not cite
Bullcoming, Melendez-Diaz, or Williams and does not address
forensic reports.

12
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application of the primary purpose test fails to consider the

guidance that these prior three cases dealing with forensic

reports offer.

¶68 The "potentially relevant" test was used in

Bullcoming, which involves a forensic report, as does the

instant case. The forensic report in the instant case is similar

to the forensic tests used to determine whether a substance is a

controlled substance. See, e.g., Melendez-Diaz, 557 U.S. 305

(holding testimonial an analyst's report that substance was

cocaine).

¶69 With little success, the majority opinion attempts to

distinguish Melendez-Diaz and Bullcoming because the toxicology

report in the instant case "lists the concentrations of the

various substances present in S.L.'s biological samples sent for

testing," so "the analyst who signed the report was not acting

as a witness against Mattox . . . ." Majority op., ¶29.

¶70 This argument appears to be similar to the "mere

scrivener" argument already rejected in Bullcoming. The
Bullcoming court explicitly rejected the argument that forensic

lab analysts' reports are nontestimonial because the analysts

are "mere scriveners" who transcribe results from machines but

do not interpret or exercise independent judgment. Bullcoming,

564 U.S. at 659.15

15
Justice Ginsburg explained:

[The analyst] certified [in the report] that he
received Bullcoming's blood sample intact with the
seal unbroken, that he checked to make sure that the
forensic report number and the sample number
(continued)
13
 No. 2015AP158-CR.ssa

¶71 The "potentially relevant" test seems in keeping with

the purpose of the confrontation clause: "[T]he Clause's

ultimate goal is to ensure reliability of evidence . . . by

testing in the crucible of cross-examination." Crawford, 541

U.S. at 61. And the "principal evil at which the Clause was

directed . . . [was] use of ex parte examinations as evidence

against the accused." Crawford, 541 U.S. at 50. In the instant

case, the toxicology report is a form of ex parte examination

insofar as the report was prepared outside of the circuit court

or the defendant's presence. Because the State used the

toxicology report as evidence against the defendant, he had the

right to test the reliability of the report through cross-

examination.

¶72 Furthermore, the "potentially relevant" formulation of

primary purpose seems to fit the circumstances of the instant

case. "None of [the Court's] cases has ever suggested

that . . . the statement must be meant to accuse a previously

"correspond[ed]," and that he performed on
Bullcoming's sample a particular test, adhering to a
precise protocol. He further represented, by leaving
the "[r]emarks" section of the report blank, that no
"circumstance or condition . . . affect[ed] the
integrity of the sample or . . . the validity of the
analysis." These representations, relating to past
events and human actions not revealed in raw, machine-
produced data, are meet for cross-examination.

Bullcoming, 564 U.S. at 660 (internal citations omitted).

The Court also noted that "the comparative reliability of
an analyst's testimonial report drawn from machine-produced data
does not overcome the Sixth Amendment bar." Bullcoming, 564
U.S. at 661.

14
 No. 2015AP158-CR.ssa

identified individual . . . ." Williams, 132 S. Ct. at 2274

(Kagan, J., dissenting). Even though the toxicology report was

not about Mattox, it could be (and was) used against Mattox.

¶73 The majority opinion does not explain why it ignores

the "potentially relevant" formulation of the primary purpose

test and how the "potentially relevant" formulation would apply

in the instant case. Instead, the majority states and applies a

primary purpose test that limits "testimonial" to those

statements that create "an out-of-court substitute for trial

testimony" in which the declarant "act[s] as a witness against

the defendant." The majority opinion looks to whether the

"primary purpose of the out-of-court statement was to gather

evidence for the defendant's prosecution." Majority op., ¶32

(emphasis added).16

16
Although the majority says that Clark "pronounces the
controlling principles in determining whether an out-of-court
statement is 'testimonial,'" majority op., ¶32, the majority's
restatement of the primarily purpose test is not fully faithful
to Clark. Clark actually uses the language "the primary purpose
of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution." Clark, 135
S. Ct. at 2180 (emphasis added).

Because Clark uses "potentially relevant," I do the same.
The majority's language, "to create an out-of-court substitute
for trial testimony," implies a higher Sixth Amendment bar.

15
 No. 2015AP158-CR.ssa

¶74 The question is whether this formulation of the

primary purpose test comports with the bulk of the Court's

confrontation cases. It does not.17

¶75 The majority opinion should refocus its inquiry to

include as a primary purpose whether the toxicology report had a

primary purpose of establishing "past events potentially

relevant to later criminal prosecution." Davis, 547 U.S. at

822.

¶76 Applying the "potentially relevant" formulation in the

instant case, as well as the other formulations of the primary

purpose test, I conclude that the toxicology report's primary

purpose was to establish whether S.L. died of a heroin overdose,

a fact that was "potentially relevant to later prosecution."

¶77 When the Waukesha Medical Examiner's Office requested

a toxicology report conducted with samples taken from S.L., the

report's primary purpose was to aid in determining the cause of

S.L.'s death——a fact "potentially relevant" to a later

prosecution. While external signs at the scene of the death, as
well as those discovered during the autopsy, suggested an

overdose, the toxicology report was needed to determine what

type of drug caused the overdose. When the circumstances

surrounding the report are considered, the "primary purpose" of

17
"None of our cases has ever suggested that, in addition,
the statement must be meant to accuse a previously identified
individual; indeed, in Melendez–Diaz, we rejected a related
argument that laboratory 'analysts are not subject to
confrontation because they are not "accusatory" witnesses.'"
Williams, 132 S. Ct. at 2274 (Kagan, J., dissenting) (quoting
Melendez-Diaz, 557 U.S. at 313.

16
 No. 2015AP158-CR.ssa

the toxicology report was arguably to "establish or prove past

events potentially relevant to later criminal prosecution."

Clark, 135 S. Ct. at 2179-80 (emphasis added).

¶78 The report was "made for the purpose of establishing

or proving some fact," Melendez-Diaz, 557 U.S. at 310-11, and

that fact was "potentially relevant to later criminal

prosecution." Clark, 135 S. Ct at 2180. That fact being, of

course, that S.L.'s death was caused by an overdose of heroin——a

fact that, at that time, Dr. Okia surely considered to be

relevant to a later criminal prosecution.

¶79 Remember, S.L.'s death was the subject of a law

enforcement investigation from the outset. When Dr. Okia's

colleague, Deputy Medical Examiner Nichol Wayd,18 arrived at the

scene of S.L.'s death in the predawn hours of February 2, 2013,

after being called to the scene by law enforcement, she was

briefed by law enforcement before investigating the death. Wayd

also had to wait for a detective to arrive before touching

anything at the scene of the death. At trial, the prosecutor
asked about what Wayd does with death-related evidence when she

investigates a death. Wayd responded:

18
Nichol Wayd was a "deputy medical examiner/investigator
for the Waukesha County Medical Examiner's Office." She
testified at Mattox's trial. Part of her testimony involved her
qualifications and her qualification as an expert "in the field
of crime scene investigations" (emphasis added). Significantly,
she has special training "in the area of crime scene
investigations involving drug overdoses" and is a "diplomate" of
and member of "the American Board of Medicolegal Death
Investigators." In addition to testifying at trial, Wayd
prepared an "Investigative Report" that was admitted at trial.

17
 No. 2015AP158-CR.ssa

It depends on the circumstances. In this
circumstance, I was asked to wait for the detectives
to arrive before I touched anything that could
potentially need to be preserved, so in this
situation, I did not touch any evidence in the room or
even in the residence for that matter, so I stood by,
waited for the detectives to arrive . . . .
Once the detective arrived, the detective and the deputy medical

examiner investigated S.L.'s room and the deputy medical

examiner did a preliminary examination of the body before

transporting it to the morgue. Even at this early stage, the

detective's presence indicates that law enforcement were

conducting a law enforcement investigation of S.L.'s death.

¶80 Dr. Okia performed an autopsy the next morning.

Before conducting the autopsy of S.L.'s body, Dr. Okia would

presumably have reviewed the deputy medical examiner's

"Investigative Report" or another document to apprise herself of

the situation surrounding S.L.'s death. She must have noted

that S.L.'s death occurred under suspicious circumstances (he

was, after all, an apparently healthy 27-year-old found dead),

suggesting that the death may have been the result of a crime.

¶81 By her examination of the body (and review of the
report's discussion of the evidence obtained in S.L.'s room,

such as syringes), Dr. Okia must have suspected that S.L. died

because of a drug overdose and that there might be a homicide

charge against the deliverer of a controlled substance. Wis.

Stat. § 940.02(2)(a). Therefore, when she ordered the

toxicology report, her primary purpose was to determine whether

an illegal drug caused an overdose.

18
 No. 2015AP158-CR.ssa

¶82 Ultimately, Dr. Okia would use the toxicology report

as a basis for her conclusion that S.L. died of a heroin

overdose. Establishing that S.L. died from heroin was essential

to the prosecution's charge against Mattox: homicide by

distribution of a controlled substance. Dr. Okia testified that

the signs of overdose discovered through her examination were

consistent with the signs of an over-the-counter opiate

overdose.

¶83 Surely, under these facts, the toxicology report was

"prepared in connection with a criminal investigation or

prosecution . . . [and] therefore within the compass of the

Confrontation Clause." Bullcoming, 564 U.S. at 658-59.

¶84 It bears repeating that law enforcement and the

Waukesha Medical Examiner's Office worked together from the

beginning.

¶85 The close legal relationship between medical

examiners, law enforcement, and district attorneys in Wisconsin

also evidences a testimonial purpose.
¶86 In Wisconsin, medical examiners work in close

conjunction with law enforcement pursuant to Wis. Stat. ch. 979

when investigating deaths and their duties overlap with those of

law enforcement. By statute, police must immediately notify the

medical examiner when a death occurs under a variety of

19
 No. 2015AP158-CR.ssa

circumstances, including suspected homicides or other suspicious

circumstances. Wis. Stat. § 979.01(1g).19

¶87 Furthermore, the resulting toxicology report helped to

prove a fact (cause of death) that was "potentially relevant" to

a future prosecution, even if not yet commenced. Clark, 135 S.

Ct. at 2179.

19
Medical examiners (or district attorneys) may order
autopsies "in cases where an inquest might be had as provided in
s. 979.04 . . . ." Wis. Stat. § 979.02. Inquests may be
ordered if

there is reason to believe from the circumstances
surrounding the death that felony murder, first−degree
or 2nd−degree intentional homicide, first−degree or
2nd−degree reckless homicide, homicide by negligent
handling of dangerous weapon, explosives or fire,
homicide by negligent operation of vehicle, homicide
resulting from negligent control of a vicious animal
or homicide by intoxicated user of a vehicle or
firearm may have been committed, or that death may
have been due to suicide or unexplained or suspicious
circumstances . . . .

Wis. Stat. § 979.04(2) (emphasis added).

See Olejnik v. England, 147 F. Supp. 3d 763 (W.D. Wis.
2015):

[A] medical examiner acts outside his jurisdiction
when he orders or conducts an autopsy either without
having made a subjective determination that there is
any reason to believe that any of the statutory
circumstances justifying an autopsy exists or having
made a subjective determination that there is no
reason to believe that any of the statutory
circumstances justifying an autopsy exists.

Olejnik, 147 F. Supp. 3d at 775 (quoting Scarpaci v. Milwaukee
Cty., 96 Wis. 2d 663, 292 N.W.2d 816 (1980)).

20
 No. 2015AP158-CR.ssa

¶88 I turn from the majority opinion's analysis of primary

purpose to additional factors set forth in Clark that

demonstrate that the toxicology report is nontestimonial. See

majority op., ¶¶32, 35-37.

¶89 In the instant case, the pertinent factors are the

statement's context and formality, including whether the

statement was given to law enforcement. Because I have already

discussed context as part of my application of the primary

purpose test——which the majority seems to do, as well, majority

op., ¶¶33, 35, 36——I consider the formality of the toxicology

report.

¶90 Although the majority tries to downplay the formality

of the toxicology report, see majority op., ¶34, the toxicology

report's formality is functionally equivalent to that of the

forensic report in Bullcoming.

¶91 The toxicology "report" is a "signed document[s]

providing the results of forensic testing designed to "'prove[e]

some fact' in a criminal proceeding." Williams, 132 S. Ct. at
2266 (Kagan, J., dissenting) (discussing Bullcoming). And like

the report in Bullcoming, the toxicology report's formal

certification is limited to a signature by the analyst on a

formal document entitled "St. Louis University Toxicology

Laboratory Report." Although Waukesha County did not have to

produce at trial "everyone who laid hands on the evidence,"

Melendez-Diaz, 129 S. Ct. at 2532, n.1, the defendant Mattox had

a right to confront someone who helped produce the toxicology
report or could give an independent opinion of the report.

21
 No. 2015AP158-CR.ssa

¶92 The analyst's signature on this sort of document is an

important indicium of formality because it certifies a constant

chain of custody, integrity of the processes used by the St.

Louis University Laboratory, and, overall, the accuracy of the

report's contents——that is, the signature certifies the

assertions contained in the report regarding levels of toxicity

contained in S.L.'s blood and tissue samples. See Bullcoming,

564 U.S. at 661-62.

¶93 I conclude that the majority opinion erroneously

classifies the report as non-testimonial. Dr. Okia ordered the

toxicology report in circumstances indicating that the autopsy

she was conducting might be potentially relevant to a later

criminal prosecution. Indeed, she ordered the toxicology report

pursuant to the quasi-law enforcement role set forth for medical

examiners in Wis. Stat. § 979.04(2).

¶94 Finally, like in Bullcoming and Melendez-Diaz, the

problem with the toxicology report's admission was that it was

used to prove a fact at trial, but no one was able to testify
about the processes used at the testing facility.

¶95 The majority opinion's flawed application of the

primary purpose test has not provided a "Crawford boundary,"

where courts may find a "logical stopping place between

requiring the prosecution to call as a witness one of the

laboratory experts who worked on the matter and requiring the

prosecution to call all of the laboratory experts who did so."

Williams, 132 S. Ct. at 2246, 2248 (Breyer, J., concurring).

22
 No. 2015AP158-CR.ssa

¶96 Moreover, the majority opinion goes further than

applying the primary purpose test and other factors to the facts

of the instant case. It sets forth a general rule: Toxicology

reports ordered in circumstances similar to those presented in

the instant case are non-testimonial. Majority op., ¶¶40, 42.

¶97 The majority opinion's general rule is unwarranted.

The primary purpose test is necessarily fact-specific. The

majority opinion should not attempt to issue a bright-line rule

covering all cases under the auspices of a fact-driven test.

Future cases will differ from the instant case in one aspect or

another, but the majority opinion's bright-line rule may not

respect these differences.

¶98 Finally, although this court has declared that "we

believe a broad definition of testimonial is required to

guarantee that the right to confrontation is preserved," State

v. Jensen, 2007 WI 26, ¶24, 299 Wis. 2d 267, 284, 727

N.W.2d 518, 527, the majority opinion provides, instead, a broad

definition of "nontestimonial."
¶99 The demands of the Confrontation Clause were not

satisfied in the instant case. No witness was available for

cross-examination who could testify to the means by which the

toxicology report was produced or could give his or her

independent opinion of the data. See State v. Griep, 2015 WI

40, 361 Wis. 2d 657, 863 N.W.2d 567; State v. VanDyke, 2015 WI

App 30, 361 Wis. 2d 738, 863 N.W.2d 919.

¶100 For these reasons, I respectfully dissent.

23
 No. 2015AP158-CR.ssa

¶101 I am authorized to state that Justice ANN WALSH

BRADLEY joins this dissenting opinion.

24
 No. 2015AP158-CR.ssa

1