¶ 1. The petitioner, Glenn Hale, seeks review of a decision of the court of appeals affirming his convictions, which included two counts of first-degree intentional homicide, party to a crime.1 Hale asserts that he is entitled to a new trial because the circuit court improperly allowed into evidence the former testimony of an unavailable witness.
*596¶ 2. We agree with Hale that the testimony in question should not have been admitted in this case. Such evidence violated Hale's right to confrontation, as he did not have a prior opportunity to cross-examine the witness. However, we also conclude that it is beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained and was therefore harmless. Accordingly, albeit with different rationale, we affirm the court of appeals.
I
¶ 3. On December 8, 2001, two men forced their way into a Kenosha apartment and robbed its three occupants of drugs and money. One of the robbers was masked and armed with a revolver, which he used to fatally shoot two of the victims, Darrel Stone and Joshua Kressel.
¶ 4. Two days later, the police received an anonymous tip that Robert Jones and his brother-in-law, Glenn Hale, had committed the offenses. The police arrested Jones on December 12, 2001, and Hale in the early morning of December 14, 2001. Jones was tried and convicted in May 2002, while Hale was tried separately two months later.
¶ 5. At Hale's jury trial, Mark Bernhardt, the surviving victim, described the crimes in detail. He testified that he, Stone, and Kressel were watching television when he heard a car pull into the adjacent driveway. About two minutes later, a male identifying himself as "Vinnie" knocked on the door. Not knowing anyone by that name, the victims did not initially open the door. When the knocking persisted, however, Stone answered it, and Bernhardt heard what sounded like a gunshot.
*597¶ 6. Bernhardt testified that two men then entered the apartment. He identified the first man to come in as Jones. The other man stood in the doorway dressed completely in black, wearing a ski mask, hooded sweater, and gloves. Bernhardt indicated that the masked man was short and wielded a worn-looking revolver.
¶ 7. According to Bernhardt, Jones did the talking, demanding drugs and money from the victims. When Bernhardt did not respond quickly enough, Jones picked him up by his hair. Bernhardt gave his money to Jones and got on the floor with his back to Jones. Bernhardt then heard two more gunshots. Looking over his shoulder, he witnessed the men exit the apartment and saw Kressel injured and bleeding.
¶ 8. Bernhardt fled to the bathroom and called 911 on his cell phone. He heard a car leaving, looked out the window, and saw what he believed to be the profile of a 1989 Chevy Beretta pulling out of the driveway. Bernhardt testified that as the son of a mechanic he had been around cars all of his life. He explained that when viewed from the side, a 1989 Chevy Beretta looks very similar to a 1989 Chevy Corsica.
¶ 9. The principal question at Hale's trial was whether Hale was the masked gunman who participated in the crimes with Jones. Because Bernhardt could not identify the masked gunman, the State presented a circumstantial case. The admission of former testimony is the sole evidentiary issue in this case. To place the testimony in its proper context, it is necessary initially to review the evidence the State introduced at trial.
*598A. The Case Against Glenn Hale
¶ 10. Jones, Hale, Tammy Jones (Hale's sister and Jones's wife) and Joy Baker (Hale's girlfriend) shared an apartment in Kenosha. Baker testified that Hale and Jones were together at the apartment until 5:00 p.m. on December 8, 2001, approximately 30 minutes before the double homicide. She said the two men left the apartment separately and were headed to the residence of Hale's grandfather, Milton Johnson, Sr.
¶ 11. Vera Blalock, who lived with Hale's grandfather, confirmed the men's arrival. She testified that Hale and Jones met at the residence, talked privately in the bathroom, and then left together. According to Blalock, Hale returned approximately 15 minutes later. He was wearing a black coat with a hood.
¶ 12. Kim Kelly, a friend and visitor to the Jones/Hale apartment, testified that when Jones returned to his apartment later that evening, he was visibly upset. According to Kelly, Hale did not return to the apartment until 7:00 p.m., at which time he and Jones talked in another room. Kelly described their conversation as "not friendly" and "shady."
¶ 13. A police detective testified that he test drove and timed the three most likely routes that Hale and Jones might have used on the night of the murders. The round-trip travel time between the Jones/Hale apartment and the murder scene was between 10 and 12 minutes. The residences of both Hale's grandfather and Hale's mother were along at least one of these routes.
¶ 14. A few days before the murders, LaQwandris Johnson, who knew both Hale and Jones, went to the victims' apartment to purchase marijuana. Jones accompanied him but remained in the car during the drug transaction. After the purchase, Johnson gave some *599marijuana to Jones, who asked whether the dealer (one of the eventual victims) was "all right," and whether he was a "tough guy."
¶ 15. Johnson's girlfriend, the tipster who had alerted the police to Jones's and Hale's possible involvement, told them that a car generally matching the description of the car given by the victim, Bernhardt, had been "very active in the neighborhood" prior to the murders but not afterwards. The police confirmed that a black 1989 Chevy Corsica, which looks like a 1989 Chevy Beretta in profile, was parked at the residence of Hale's mother two days after the double homicide and had been available for Hale's use.
¶ 16. After arresting Jones, the police attempted to locate Hale. Since December 10, 2001, two days after the murders, Hale had been living in a hotel with his girlfriend, Baker. Knowing that Baker worked at a bar, the police placed it under surveillance. In the early morning hours of December 14, 2001, they saw Baker leave the bar and get into a rental car driven by Hale. The car, which was equipped with an activated police scanner, sped away when the police attempted to initiate a stop.
¶ 17. Hale led 12 to 14 marked units in a high-speed chase from Kenosha to Milwaukee, with speeds in excess of 100 miles per hour. Baker testified that during the chase, Hale asked her to remove the holstered revolver that was strapped across his shoulder and to throw it out the window. She instead put the gun and some ammunition underneath the seat. Hale also told Baker that it "would be probably his last time seeing [her]" and "to write him in jail."
¶ 18. Ultimately, Hale slowed the car down to about five miles per hour, at which point he jumped from the driver’s seat and took off running through the *600neighboring residential area. The officers pursued Hale on foot, eventually apprehending him at gunpoint.2
¶ 19. Hale was wearing dark-colored pants when he was arrested. A black, hooded coat was found in the rear of the rental car. After Hale was taken to jail, the police found a pair of black knit gloves concealed under the seat bench of the squad car where Hale had been sitting.
¶ 20. After his arrest, the police briefly interviewed Hale about the double homicide. He denied committing the murders, stating that he had been at his grandfather's residence. At some point thereafter, Hale tapped on the door of his holding cell to make a bathroom request and, with eyes tearing up, told a detective, "man, if I did it, I just don't remember." Hale repeated this statement to another detective.
¶ 21. Baker testified that a few days before the murders, she was with Hale when he purchased a black ski mask. A day or two after he was arrested, Hale called and told her that he had hidden the ski mask under the "plastic bottom" of her duffel bag and instructed her to "get rid" of it. Baker said she cut up the ski mask and gave it to her friend, Kelly, who was in the room when Hale called. Kelly, in turn, stated that she burned the mask pieces and flushed them down a toilet.
¶ 22. James Toy, who was confined in the same cellblock as Hale, testified that Hale confessed to committing the double homicide. According to Detective Strash, when he and another detective interviewed Toy in the spring of 2002, Toy repeated details of the murders that had neither appeared in the media nor *601been suggested to him by the detectives.3 Toy explained that he came forward because a younger brother of his had been murdered.
¶ 23. Arguably the most critical evidence produced by the State was the fully loaded, single-action .44 magnum revolver found in the rental car Hale had been driving. The officer who searched the car discovered it beneath a shirt on the floor, under the driver's seat. The parties stipulated that this gun fired the shots that killed Stone and Kressel.
¶ 24. Baker testified that Hale obtained a gun and holster from David Sullivan, a life-long friend of Hale's, about one week before the murders and kept the gun on his person "a lot." She stated that the murder weapon "looked like" the gun Hale had obtained from Sullivan. It was the subsequent admission of Sullivan's former testimony that is the sole evidentiary issue in this case.
B. David Sullivan's Former Testimony
¶ 25. Sullivan testified at Jones's trial, which was tried two months prior to Hale's scheduled trial. On direct examination, he said he had known Hale "for a long time," indicating that they have been friends since childhood. Sullivan testified that the gun shown to him at Jones's trial "lookfed] like" the gun he provided to Hale at Hale's request. Although he did not know for sure, he "guess[ed]" that he had given the gun to Hale at the Jones/Hale residence "about six months ago," which would have been November 2001, before the double homicide of December 8, 2001.
*602¶ 26. On cross-examination, Sullivan acknowledged that shortly before the start of the trial, he had written a letter to the prosecutor and the judge, asserting that he was "afraid to take the stand" and had suffered from "some kind of altered mental state" that deprived him of the ability to "distinguish between the truth and [falsity] of what [he had] written in [his] previous statements." Sullivan also testified that he told authorities that he was "sure" he had given the gun to Hale and not to Jones.
¶ 27. Finally, on redirect examination, Sullivan conceded that his "mental state" was attributable in part to the guilt he felt about having given Hale the murder weapon. The jury found Jones guilty of the charges.
¶ 28. Subsequently, the State subpoenaed Sullivan to testify on its behalf at Hale’s trial but was unable to locate him. According to the State, Sullivan's mother gave police his address, but Sullivan's girlfriend refused them access to the residence. The court then issued a material witness warrant for Sullivan. At the close of the second day of trial, the State reported that he was still being sought.
¶ 29. Anticipating that the State may seek to use Sullivan's prior testimony from Jones's trial, Hale's counsel filed a motion to exclude such evidence. She argued that the testimony did not satisfy the applicable hearsay exception because Jones's motive and interest in cross-examining Sullivan were not sufficiently similar to Hale's. Defense counsel also asserted that Hale's right to confrontation was violated by the admission of the testimony.
¶ 30. On the morning of the third day of trial, the State informed the court that police had searched the residence where Sullivan was believed to be staying but *603did not find him. The State submitted that Sullivan's prior testimony from Jones's trial was sufficiently reliable to be admitted at Hale's trial because it was given under oath in a setting where Jones's counsel had complete ability to conduct cross-examination.
¶ 31. The circuit court allowed the State to introduce Sullivan's prior testimony from Jones's trial. It determined that the evidence fit the "former testimony" hearsay exception of Wis. Stat. § 908.045(1) (2001-02) because Jones's interest in cross-examining Sullivan was "similar" to Hale's and Sullivan was unavailable.4 The court also concluded that Sullivan's prior testimony would not violate Hale's confrontation right because the exception was firmly rooted.
¶ 32. Sullivan's prior testimony from Jones's trial was then read to the jury, identified for jurors as "testimony at a prior proceeding." The prosecutor and Hale's counsel read, respectively, the direct and cross-examination questions of Sullivan, while a police detective read Sullivan's answers to the questions.
¶ 33. The jury found Hale guilty of six crimes, including two counts of first-degree intentional homi*604cide, party to a crime. After his conviction, Hale appealed the circuit court's admission of Sullivan's testimony.
¶ 34. On appeal, Hale maintained that Sullivan's prior testimony did not satisfy the "former testimony" exception of Wis. Stat. § 908.045 because Jones did not have "motive and interest similar to" Hale in his cross-examination. Alternatively, Hale argued that admission of Sullivan's prior testimony violated his right to confrontation because the "former testimony" exception, as applied to Sullivan's prior testimony, was not firmly rooted and lacked "particularized guarantees of trustworthiness."
¶ 35. The court of appeals affirmed the circuit court decision. It determined that Sullivan's prior testimony satisfied the "former testimony" hearsay exception because Jones had a motive and interest similar to Hale "to discredit any link between Hale and the murder weapon." State v. Hale, 2003 WI App 238, ¶ 17, 268 Wis. 2d 171, 672 N.W.2d 130.
¶ 36. With respect to Hale's right to confrontation, the court of appeals expressed doubt that the "former testimony" exception was firmly rooted as applied to the facts of the case. Id., ¶¶ 25-30. However, the court noted that it was bound by its prior decision in State v. Bintz, 2002 WI App 204, ¶ 20, 257 Wis. 2d 177, 650 N.W.2d 913, which concluded, without explanation, that the former testimony hearsay exception was firmly rooted.
¶ 37. In addition, the court of appeals observed that Sullivan's testimony would still be admissible even if the "former testimony" exception were not firmly rooted. Id., ¶ 31. It did so because the prior testimony at issue bore "particularized guarantees of trustworthiness." Id., ¶¶ 31-32.
*605¶ 38. Finally, the court of appeals offered two alternative bases for its holding. First, it observed that Sullivan's testimony was also admissible under the "residual hearsay exception" of Wis. Stat. § 908.045(6).5 Id., ¶ 32, n. 5. Second, even if the circuit court had erred in admitting the evidence, the error was harmless. Id.
¶ 39. This court granted Hale's petition for review. Less than two weeks later, the United States Supreme Court decided Crawford v. Washington, 124 S. Ct. 1354 (2004), which dramatically altered the legal landscape of Confrontation Clause jurisprudence.
II
¶ 40. The initial issue in this case is an eviden-tiary one. It asks whether Hale is entitled to a new trial on the ground that the circuit court improperly allowed into evidence former testimony that an unavailable witness had given at a separate trial of Hale's codefen-dant.
¶ 41. While a circuit court's decision to admit evidence is ordinarily a matter for the court's discretion, whether the admission of such evidence violates a defendant's right to confrontation is a question of law subject to independent appellate review. State v. Will*606iams, 2002 WI 58, ¶ 7, 253 Wis. 2d 99, 644 N.W.2d 919 (citing State v. Ballos, 230 Wis. 2d 495, 504, 602 N.W.2d 117 (Ct. App. 1999)).
I — I H-i
¶ 42. We begin our discussion by examining whether Hale's right to confrontation was violated by the circuit court's admission of Sullivan's testimony. Normally this court will not address a constitutional issue if the case can be disposed of on other grounds. Labor and Farm Party v. Elections Bd., 117 Wis. 2d 351, 354, 344 N.W.2d 177 (1984) (citing Kollasch v. Adamany, 104 Wis. 2d 552, 561, 313 N.W.2d 47 (1981)). Nevertheless, we deviate from this general rule here in light of the recent Crawford decision and its import on Confrontation Clause jurisprudence in this state.6 Accordingly, we do not discuss whether the prior testimony is admissible under a recognized hearsay exception. Rather, for purposes of this opinion, we assume the testimony at issue was properly admitted under a relevant hearsay exception.
¶ 43. The Confrontation Clauses of the United States and Wisconsin Constitutions guarantee criminal defendants the right to confront the witnesses against them. The Sixth Amendment of the United States Constitution states, "[i]n all criminal prosecutions, the *607accused shall enjoy the right... to be confronted with the witnesses against him."7 Similarly, Article I, Section 7 of the Wisconsin Constitution provides, "[i]n all criminal prosecutions, the accused shall enjoy the right... to meet the witnesses face to face." Wisconsin courts will generally apply United States Supreme Court precedents when interpreting both Clauses. See, e.g., State v. Weed, 2003 WI 85, ¶ 23, 263 Wis. 2d 434, 666 N.W.2d 485.
¶ 44. At the time of Hale's trial and appeal, Ohio v. Roberts, 448 U.S. 56 (1980), provided the general framework for determining the admissibility of out-of-court statements under the Confrontation Clause. There, the Court upheld the use at trial of preliminary hearing testimony of a witness who the State was unable to locate. Id. at 76. Although the defendant was unable to confront and cross-examine the witness at trial, the Court found no violation of the Confrontation Clause. Id. It concluded that the circumstances under which the prior testimony was given provided sufficient "indicia of its reliability." Id. at 73.
¶ 45. With its decision, the Roberts Court established a two-step approach for analyzing the admission of hearsay evidence under the Confrontation Clause. Id. at 66. First, the witness must be "unavailable" at trial. Id. Second, the statement of the unavailable witness must bear adequate "indicia of reliability." Id. This second prong could be inferred without more in a case where the evidence fell within a firmly rooted hearsay exception or upon a showing of "particularized guarantees of trustworthiness." Id.
*608¶ 46. The continuing vitality of the Roberts approach was recently called into question in Crawford v. Washington, 124 S. Ct. at 1354. There, the defendant had stabbed a man who allegedly tried to rape his wife. Id. at 1356. At trial, the wife did not testify because of the invocation of the marital privilege. Id. at 1357. The State played for the jury the wife's tape-recorded statement taken by the police during the investigation, which described the stabbing. Id. at 1356-57. The question presented was whether this procedure violated the defendant's right to confrontation. Id. at 1357. The Court determined that it did and reversed the defendant's convictions. Id. at 1374.
¶ 47. Writing for the majority, Justice Scalia first examined the historical roots of the Confrontation Clause. Id. at 1359-63. Of particular significance was the 1603 English treason trial of Sir Walter Raleigh. Id. at 1360. Raleigh was convicted and put to death on the basis of an out-of-court accomplice statement obtained by the Crown. Id. He was never permitted a face-to-face confrontation of the accuser. Id. Raleigh's death provoked outrage at the fundamental unfairness of convicting a person based on such evidence. Id.
¶ 48. The Court concluded that this and other historical precedent supported two inferences about the meaning of the Confrontation Clause. First, "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations against the accused." Id. at 1363. Second, "the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 1365.
*609¶ 49. After its historical analysis, the Court turned to the relevant case law. It observed that "[although the results of our decisions have generally been faithful to the original meaning of the Confrontation Clause, the same cannot be said of our rationales." Id. at 1369. The Court then identified the Roberts case as the primary source of infidelity. Id. One of Roberts' flaws was admitting statements that consist of ex parte testimony upon a mere finding of reliability. Id. Such a standard "often fails to protect against paradigmatic confrontation violations." Id.
¶ 50. Expounding on its criticism of Roberts, the Court noted that, "[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of 'reliability.'" Id. at 1370. The Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Id. The Roberts approach, by contrast, replaced this prescribed method of assessing reliability with a "wholly foreign one" based on judicial determination. Id.
¶ 51. Although the Court acknowledged that it could resolve the case by reweighing the "reliability factors" of Roberts, it declined to do so. Id. at 1373. Such a result "would perpetuate, not avoid, what the Sixth Amendment condemns." Id. Consequently, the Court abrogated the Roberts approach for determining the admissibility of "testimonial" hearsay statements. It held that where "testimonial" hearsay evidence is at issue, the Sixth Amendment demands what the corn-*610mon law required: (1) unavailability and (2) a prior opportunity for cross-examination. Id. at 1374.8
¶ 52. With the Crawford decision, a new day has dawned for Confrontation Clause jurisprudence. Hale is the beneficiary of this renaissance because he properly preserved the constitutional issue and his case is still on direct appeal. State v. Koch, 175 Wis. 2d 684, 694, 499 N.W.2d 152 (1993) (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). Accordingly, we consider the applicability of Crawford to his case.
¶ 53. A threshold question for applying the Crawford framework is whether the State is proffering "testimonial" hearsay evidence. Although the Court distinguished between testimonial and non-testimonial hearsay evidence in its opinion, it left "for another day any effort to spell out a comprehensive definition of 'testimonial.'" Crawford, 124 S. Ct. at 1374. Despite this fact, we have little difficulty concluding that Sullivan's testimony from Jones's trial meets this definition. As the Court explained, "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. (Emphasis added.)
¶ 54. Because Sullivan's hearsay evidence was "testimonial" in nature, we turn next to the require*611ments of the Confrontation Clause as interpreted by Crawford: (1) unavailability of the declarant and (2) a prior opportunity for cross-examination. Id. at 1374. In this case, the parties do not dispute the fact that Sullivan was unavailable. However, they do disagree as to whether Hale was properly afforded an opportunity to cross-examine Sullivan.
¶ 55. The State maintains that the post-Crawford Confrontation Clause analysis may still be satisfied under the facts of this case. Specifically, it asserts that Hale had an opportunity to cross-examine Sullivan at codefendant Jones's trial through Jones's examination. According to the State, this "confrontation by proxy" is sufficiently reliable to pass constitutional muster because Jones had the same motive and interest as Hale to disavow Hale's participation in the charged crimes.
¶ 56. Although the Crawford case does not directly address whether "confrontation by proxy" can satisfy the Confrontation Clause in the context of testimonial hearsay evidence, language in the opinion strongly suggests that it cannot. Throughout its decision, the Court repeatedly framed the requirement not simply in terms of the witness being cross-examined, but that "the defendant" have the opportunity to cross-examine the witness. Here, the defendant had no such opportunity.
¶ 57. Another problem with the State's position is the Supreme Court's lamentation in Crawford that "[c]ourts have invoked Roberts to admit other sorts of plain testimonial statements despite the absence of any opportunity to cross-examine." Id. at 1372. One of the cases cited for this proposition is the court of appeals' decision in State v. Bintz, 257 Wis. 2d 177. There, two brothers, David and Robert, were tried separately for first-degree murder, party to a crime. Id., ¶ 5. At *612David's trial, a cellmate of his recounted statements that David had made, incriminating both himself and his brother. Id., at ¶¶ 3-5. The cellmate died before Robert's trial, but his statements were nevertheless allowed into evidence under the former testimony hearsay exception. Id., ¶ 5.
¶ 58. We agree with Hale that the Supreme Court would not have considered David Bintz’s opportunity for cross-examination to have satisfied Robert Bintz's confrontation right when it specifically denounced the case as an example of the abuses produced by the Roberts framework. Likewise, here, we determine that Jones's opportunity to cross-examine Sullivan does not satisfy Hale's confrontation right. We conclude that prior testimony may be admitted against a criminal defendant only when that defendant has had a prior opportunity to cross-examine the witness giving that testimony. Because Hale did not have the prior opportunity to cross-examine Sullivan, the admission of Sullivan's testimony violated Hale's constitutional right to confrontation.
IV
¶ 59. Having determined that Hale's right to confrontation was violated, we consider next whether the error warrants a new trial. Violation of the Confrontation Clause does not result in automatic reversal, but rather is subject to harmless error analysis. Weed, 263 Wis. 2d 434, 28 (quoting State v. Williams, 2002 WI 118, 2, 256 Wis. 2d 56, 652 N.W.2d 391).
¶ 60. The test for this harmless error was set forth by the Supreme Court in Chapman v. California, 386 U.S. 18 (1967), reh'g denied, 386 U.S. 987 (1967). *613There, the Court explained that, "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. at 24. An error is harmless if the beneficiary of the error proves "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id.9
¶ 61. Although the Chapman standard is easy to state, it has not always been easy to apply. As a result, this court has articulated several factors to aid in the analysis, including the frequency of the error, the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence, whether the erroneously admitted evidence duplicates untainted evidence, the nature of the defense, the nature of the State's case, and the overall strength of the State's case. State v. Norman, 2003 WI 72, ¶ 48, 262 Wis. 2d 506, 664 N.W.2d 97; State v. Billings, 110 Wis. 2d 661, 668-70, 329 N.W.2d 192 (1983).
¶ 62. Hale contends that the admission of Sullivan's testimony contributed to the verdict obtained. He asserts that the key to the State's case was the .44 Magnum revolver and that Sullivan's testimony was necessary in determining that Hale had acquired *614the gun before the crimes were committed. For support, Hale notes that the prosecution specifically referred to Sullivan's testimony twice during opening statements, four times during closing argument, and once again during rebuttal. Under such circumstances, Hale argues that the jury likely viewed Sullivan's testimony as crucial evidence of his guilt.
¶ 63. Admittedly, Sullivan's testimony was referenced several times by the prosecutor at trial. However, we disagree with the characterization that his evidence was crucial. To begin, the nature of the references was brief. Moreover, Sullivan's testimony was not particularly important to the determination of Hale's guilt. This is because Sullivan was equivocal on the question of when he gave the gun to Hale. He stated that he was not sure and only "guess [ed]" that it was six months before Jones's trial in May 2002.10
¶ 64. In any event, the jury did not need the testimony of Sullivan to hear how and when Hale acquired the murder weapon. Baker, Hale's girlfriend, testified that Hale obtained the gun from Sullivan about one week before the murders and had kept it on his person "a lot." She also stated that the murder weapon "looked like" the gun Hale had received. In this respect, the untainted evidence of Baker both corrobo*615rated and duplicated Sullivan's testimony that Hale had obtained the gun before the double homicide. The closing argument of the prosecutor reflects this, noting, "David Sullivan in his read testimony here in court confirms Joy Baker in saying he did indeed provide a gun which looked like this gun." (Emphasis added).
¶ 65. Hale's position is further undermined by the nature of his defense at trial. In closing argument, Hale's counsel summarized Sullivan's testimony as follows: "During David Sullivan's — the reading of the testimony and the statement from David Sullivan, what you got is that he provided Glenn a gun about six months before, which was before that time, which would have been about the end of November, beginning of December. No one refuted that. No one disputes that." (Emphasis added).
¶ 66. The reason Hale did not dispute Sullivan's testimony was that it was irrelevant to his overall strategy. At trial, Hale invoked an alibi defense, essentially arguing that he could not have committed the crimes because he was at his grandfather's residence. During closing, his attorney explained this to the jury:
Let's talk about our case. We didn't have to present anything. We didn't need to present anything. We didn't need to. Because when you filter though it all and you break it down, it's really simple. See, Glenn Hale was not that masked person. He was not there when the offenses were committed. He was at Vera Blalock and Milton Johnson Sr.'s house. He did own that gun but other folks had access to it as well.
(Emphasis added).
¶ 67. Thus, Sullivan's testimony of how and when the gun was acquired by Hale became unimportant in light of the strategy of the defense. Hale conceded in *616closing argument that the gun was given to him prior to the murders. Instead, his defense counsel argued that Hale had an alibi and that "other folks had access" to the gun given by Sullivan.
¶ 68. As a result, the State needed to show much more than merely Hale's access to the murder weapon. The State needed to prove beyond a reasonable doubt that Hale was in fact the masked gunman. Although the nature of its case was circumstantial, the evidence it produced was overwhelming.
¶ 69. A brief review demonstrates the strength of the State's case against Hale. As noted above, Bernhardt, the surviving victim, identified codefendant Jones as one of the perpetrators. Jones was married to Hale's sister and was living with Hale. On December 8, 2001, Hale and Jones were together one-half hour before the double homicide. They then went to Hale's grandfather's residence where they talked privately in the bathroom and then left together.
¶ 70. Hale, short in stature, was wearing a black coat with a hood that police later found in the car when they were led on a high-speed chase. Bernhardt testified that Jones's accomplice, the gunman, was short, wearing a black ski mask, black sweater, and black gloves, wielding a worn looking revolver.
¶ 71. After the shooting, Bernhardt went to a bathroom window and saw the perpetrators leave in a car whose profile resembles a 1989 Chevy Berretta. Two days later, a black 1989 Chevy Corsica, which looks like the Berretta in profile, was parked at the residence of Hale's mother. The crime scene was close enough to the residence of Hale's grandfather that Hale could have committed the crimes and returned within 15 minutes afterwards.
*617¶ 72. For several days after the double homicides, Hale and his girlfriend Baker lived in a hotel and drove a rental car. When Hale picked up Baker after work on December 14, 2001, six days after the homicide, police tried to stop them. Hale drove away and led police on a high-speed chase from Kenosha to Milwaukee with speeds in excess of 100 miles per hour. In Milwaukee, Hale jumped from the driver's seat of the moving car and took off running before police caught him.
¶ 73. In Hale's rental car, police found a fully loaded .44 Magnum revolver beneath the driver's seat. The parties stipulated that this was the murder weapon in the double homicide. Also in the car were a shoulder holster for the gun, loose bullets, a black hooded jacket, and a police scanner.
¶ 74. Baker, who was in the front passenger seat during the car chase, said she helped Hale unstrap the shoulder holster. She testified that Hale had told her to toss the gun and bullets out the window, but she decided to put them under the seat instead. Baker said Hale got the gun from Sullivan a few days before the double homicide and wore it "a lot." She also testified that during the chase, Hale told her that it "would be probably his last time seeing [her]" and "to write him in jail."
¶ 75. Shortly before the double homicide, Baker said that Hale had purchased a black ski mask. After his arrest, Hale told her that he had hidden the ski mask under the "plastic bottom" of her duffel bag and instructed her to "get rid" of it, which she and another woman ultimately did.
¶ 76. After Hale was taken to jail, the police found black gloves stuffed behind the seat of the squad car where he had been sitting. At one point after his arrest, *618Hale, teary eyed, told a detective "man if I did it, I just don't remember." He then repeated that statement to another detective.
¶ 77. Finally, Hale confessed the double homicide to fellow inmate James Toy in details that mimicked survivor Bernhardt's account and were not reported by the media. Given this evidence, along with the above-mentioned factors, we agree with the State that it is clear "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 24.
V
¶ 78. In sum, we agree with Hale that the testimony in question should not have been admitted in this case. Such evidence violated Hale's right to confrontation, as he did not have a prior opportunity to cross-examine the witness. However, we also conclude that it is beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained and was therefore harmless. Accordingly, albeit with different rationale, we affirm the court of appeals.
By the Court. — The decision of the court of appeals is affirmed.
State v. Hale, 2003 WI App 238, 268 Wis. 2d 171, 672 N.W.2d 130 (affirming a decision of the circuit court for Kenosha County, David M. Bastianelli, Judge).
The defense advances that Hale may have had reason to flee because it could be inferred that he was aware of the existence of a probation hold for him relating to another matter.
For example, Toy had knowledge that one of the perpetrators identified himself as "Vinnie" at the victims' apartment. Furthermore, Toy indicated that Jones entered the room before the masked gunman.
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
Wisconsin Stat. § 908.045(1) provides:
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) FORMER TESTIMONY. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, at the instance of or against a party with an opportunity to develop the testimony by direct, cross-, or redirect examination, with motive and interest similar to those of the party against whom now offered.
Wisconsin Stat. § 908.045(6) provides:
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(6) OTHER EXCEPTIONS. A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.
As defense counsel noted at oral argument, there is good reason to address the constitutional question first. To begin, given the recent decision of Crawford v. Washington, 124 S. Ct. 1354 (2004), the confrontation issue is the easiest to resolve. Moreover, Crawford largely renders academic the hearsay exceptions because prior testimony may only be admitted against a criminal defendant when that defendant has had a prior opportunity to cross-examine the witness.
This Sixth Amendment guarantee applies to state prosecutions through the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 403-05 (1965).
Additionally, the Supreme Court reasoned that, "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." Crawford, 124 S. Ct. at 1374. As indicated below, however, the evidence in dispute falls under the category of "testimonial" hearsay, implicating core confrontation right concerns.
At oral argument, both the State and defendant presented the test for harmless error as whether the error contributed to the verdict obtained. This is the test articulated in Chapman v. California, 386 U.S. 18 (1967), reh'g denied, 386 U.S. 987 (1967). In recent years, the United States Supreme Court and this court, while adhering to the Chapman test, have also articulated alternative wording. See, e.g., Neder v. United States, 527 U.S. 1, 2-3 (1999); State v. Weed, 2003 WI 85, ¶ 29, 263 Wis. 2d 434, 666 N.W.2d 485; State v. Harvey, 2002 WI 93, ¶ 48, n. 14, 254 Wis. 2d 442, 647 N.W.2d 189.
During direct examination, the following exchange took place concerning the timing of the transaction:
PROSECUTOR: Okay. And what is your best estimate about the month or the time period when ypu gave him the gun? Do you know when that was?
SULLIVAN: I don't know, about six months ago, I guess.
PROSECUTOR: Okay. Was it before - was it in November of 2001?
SULLIVAN: I'm not sure.