2023 WI 9

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP32-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Oscar C. Thomas,

 Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 399 Wis. 2d 277, 963 N.W.2d 887

PDC No: 2021 WI App 55 - Published 

OPINION FILED: February 21, 2023 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 28, 2022 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Kenosha 

JUDGE: Bruce E. Schroeder 

JUSTICES:

ROGGENSACK, J., announced the mandate of the Court, and 

delivered an opinion, in which ZIEGLER, C.J., joined, and the 

majority opinion of the Court with respect to ¶2 and ¶¶12-24, in 

which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET and 

KAROFSKY, JJ., joined, and in which HAGEDORN, J., joined with 

respect to ¶¶12-24. DALLET, J., filed a concurring opinion, 

which constitutes the majority opinion of the Court, in which 

ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ., 

joined. HAGEDORN, J., filed a concurring opinion. 

NOT PARTICIPATING:

 

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs 

filed by John T. Wasielewski and Wasielewski & Erickson, 

Milwaukee. There was an oral argument by John T. Wasielewski. 

For the plaintiff-respondent, there was a brief filed by 

Sonya K. Bice, assistant attorney general, with whom on the 
2

brief was Joshua L. Kaul, attorney general. There was an oral 

argument by Sonya K. Bice, assistant attorney general. 
2023 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. 2020AP32-CR

(L.C. No. 2007CF1)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Oscar C. Thomas,

 Defendant-Appellant-Petitioner.

FILED

FEB 21, 2023

Sheila T. Reiff

Clerk of Supreme Court

ROGGENSACK, J., announced the mandate of the Court, and 

delivered an opinion, in which ZIEGLER, C.J., joined, and the 

majority opinion of the Court with respect to ¶2 and ¶¶12-24, in 

which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET and 

KAROFSKY, JJ., joined, and in which HAGEDORN, J., joined with 

respect to ¶¶12-24. DALLET, J., filed a concurring opinion, 

which constitutes the majority opinion of the Court, in which 

ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ., 

joined. HAGEDORN, J., filed a concurring opinion. 

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 PATIENCE DRAKE ROGGENSACK, J. We review a published 

decision of the court of appeals1 that affirmed the circuit

 

1 State v. Thomas, 2021 WI App 55, 399 Wis. 2d 277, 963 

N.W.2d 887. 
No. 2020AP32-CR 

2

court's2 judgment of conviction and its denial of Oscar C. 

Thomas's postconviction motion. 

¶2 We accepted two issues for review. First, whether 

Thomas's confession of sexual assault was corroborated by a 

significant fact, and we conclude it was. This opinion is the 

majority opinion for the discussion of corroboration. Second, 

whether the cross-examination of Thomas's expert witness by use 

of a Wisconsin Crime Lab Report ("the Report") that was not in 

evidence and whose author did not testify violated Thomas's 

confrontation right. Four justices conclude the Report's 

contents were used for their truth during cross-examination, 

thereby violating Thomas's right of confrontation. Justice 

Dallet's concurrence is the decision of the court for the 

confrontation issue.3 Six justices conclude Hemphill precludes 

admission of evidence to correct an allegedly misleading 

impression created by the defendant, and seven justices conclude 

that any error related to the Report was harmless. Accordingly, 

we affirm the court of appeals. 

¶3 The court of appeals concluded that the State met its 

evidentiary burden to sufficiently corroborate Thomas's

confession of sexual assault. We agree with this conclusion. 

We also conclude that the State's use of the Report4 that a 

 

2 The Honorable Bruce E. Schroeder of Kenosha County Circuit 

Court presided. 

3 Justice Dallet's concurrence is joined by Justices Ann 

Walsh Bradley, Rebecca Grassl Bradley and Jill J. Karofsky. 

4 The Report, a three-page document, was marked as Exhibit 

36 during the prosecutor's cross-examination of Thomas's expert, 
No. 2020AP32-CR 

3

defense expert reviewed, but which was not admitted into 

evidence, did not violate Thomas's confrontation right under the 

United States' Constitution or the Wisconsin Constitution when 

used for impeachment purposes.5 However, we reject the State's 

argument that it properly used the Report's contents during 

closing argument. Furthermore, following Hemphill,6 a criminal 

defendant does not "open the door" to the introduction of 

testimonial out-of–court statements for the purpose of 

"correct[ing]" a "misleading impression." Although we conclude 

that the State did not use the content of the Report for its 

truth on cross-examination, the State did improperly use the 

Report's content for its truth during closing argument, which 

the circuit court erroneously permitted. However, we conclude 

the error was harmless because it is "clear beyond a reasonable 

doubt that a rational jury would have found [Thomas] guilty 

absent the error." State v. Harvey, 2002 WI 93, ¶46, 254 

Wis. 2d 442, 647 N.W.2d 189 (citing Neder v. United States, 527 

U.S. 1, 18 (1999)). 

 

Dr. Williams. The prosecutor did not attempt to have Exhibit 36 

admitted. 

5 U.S. Const. amend VI; Wis. Const. art. I, § 7. 

6 Hemphill v. New York, 595 U.S. ___, 142 S. Ct. 681, 686 

(2022). We acknowledge that Hemphill was published while this 

case was pending on appeal. 
No. 2020AP32-CR 

4

I. BACKGROUND

¶4 In the early hours of December 27, 2006, officers 

responded to a 911 call and found Ms. Joyce Oliver-Thomas 

unresponsive on the floor of her apartment. Emergency 

responders employed CPR and attempted to resuscitate Ms. OliverThomas as they transported her to the hospital, where she was 

pronounced dead. An autopsy concluded that Joyce died from 

"Strangulation due to Physical Assault." Ms. Oliver-Thomas's 

husband, the defendant Oscar C. Thomas,7 was subsequently charged 

with first-degree intentional homicide, first-degree sexual 

assault, and false imprisonment. Thomas provided three 

statements to police over the course of the investigation, which 

we address below. 

¶5 At his 2007 trial, the jury convicted Thomas of all 

three charges against him. Thomas appealed, and the court of 

appeals affirmed. We denied review.8 Thomas then pursued 

federal habeas corpus relief, and the Seventh Circuit granted 

him a new trial. Thomas v. Clements, 789 F.3d 760 (7th Cir. 

 

7 The record indicates that Thomas and Ms. Oliver-Thomas had 

been married, divorced, and then reconciled without remarrying. 

Accordingly, Thomas refers to Ms. Oliver-Thomas as his wife. 

Striving for consistency with the record, we too, refer to 

Ms. Oliver-Thomas and Thomas as spouses, though we recognize 

this was not technically the case at the time of Ms. OliverThomas's death.

8 State v. Thomas, No. 2010AP1606-CR, unpublished slip op., 

¶1 (Wis. Ct. App. Nov. 9, 2011), review denied, 2012 WI 45, 340 

Wis. 2d 542, 811 N.W.2d 818. 
No. 2020AP32-CR 

5

2015).9 Thomas was retried to a jury in 2018, convicted of all 

charges again, and was sentenced to life imprisonment. 

¶6 Thomas appealed, and the court of appeals affirmed 

Thomas's convictions and the circuit court's denial of his 

postconviction motions. Specifically, the court of appeals 

concluded there was sufficient corroborating evidence of the 

sexual assault confession, and denial of the postconviction 

motion was appropriate. State v. Thomas, 2021 WI App 55, ¶14, 

399 Wis. 2d 277, 963 N.W.2d 887. The court of appeals also 

concluded the Report's DNA evidence was "inadmissible hearsay," 

causing a Confrontation Clause violation when it was used 

erroneously during trial and during the State's closing 

argument. Id., ¶35. However, the court of appeals concluded 

that the error was harmless. Id., ¶¶35, 37.10 

¶7 In its briefing to us, the State did not argue that 

the Report could be used for the truth of its contents. Rather, 

 

9 Thomas argued his 2007 trial counsel was ineffective 

because he failed to call a forensic pathologist or other 

similar expert to refute the State's forensic pathologist's 

testimony. Thomas v. Clements, 789 F.3d 760, 762-63 (7th Cir. 

2015). The court of appeals agreed that failure to call a 

forensic expert demonstrated the deficiency of Thomas's counsel 

and prejudiced his defense. Id. at 763. The Seventh Circuit 

concluded "that a reasonable counsel would have consider[ed] 

and/or consulted with a forensic expert," and "[g]iven the 

weakness of the state's case . . . there is a reasonable 

probability the outcome of the trial would have turned out 

differently." Id.

10 Thomas presented a third issue to the court of appeals 

regarding an allegedly-biased juror, which he has not petitioned 

for us to review.
No. 2020AP32-CR 

6

it set the issue up as: "[W]hen Thomas's expert gave testimony 

directly contradicting the lab report on which he relied, it was 

an implied waiver of Thomas's right to confront the author of 

the lab report." However, Dr. Williams did not say he "relied" 

on the Report, but rather, that he "reviewed" the Report along 

with hundreds of other pages of material relative to this case.11 

Nevertheless, the State veered from the argument it raised 

consistently below that the prosecutor used the Report to 

impeach Thomas's defense expert. Instead, at oral argument the 

State argued that we should analyze the Report based on the 

contention that its contents were properly used during crossexamination and during closing argument for the truth of the 

matters asserted therein. 

¶8 Thomas petitioned us for review, which we granted on 

two matters: first, to review whether the State sufficiently 

satisfied its burden to corroborate Thomas's confession with any 

significant fact; second, to review whether the State's crossexamination of Thomas's expert witness through the use of the 

Report violated Thomas's right under the Sixth Amendment to 

confront the author of the Report. We also review the State's 

use of the DNA findings of the Report in the prosecutor's 

closing argument. We conclude that error occurred in the 

 

11 Prosecutor: "Now, you also reviewed Wisconsin crime lab 

reports, correct?"

Answer: "Correct." 
No. 2020AP32-CR 

7

prosecutor's use of the contents of the Report in closing 

argument; however, the error was harmless as we explain below. 

II. DISCUSSION

A. Standard of Review

¶9 Whether evidence corroborates a criminal defendant's 

confession(s) or statement(s) presents a question of evidentiary 

sufficiency, which is ultimately a question of law subject to 

our independent review. State v. Bannister, 2007 WI 86, ¶¶22, 

33, 302 Wis. 2d 158, 734 N.W.2d 892. 

¶10 We review constitutional issues independently, 

although we benefit from the discussions of the court of appeals 

and circuit court. State v. Smith, 2012 WI 91, ¶25, 342 Wis. 2d 

710, 817 N.W.2d 410. 

¶11 Lastly, we review whether an error was harmless by 

placing the burden on the party that benefitted from the error 

to establish it is "clear beyond a reasonable doubt that a 

rational jury would have found [Thomas] guilty absent the 

error." Harvey, 254 Wis. 2d 442, ¶46 (citing Neder, 527 U.S. at

18).

B. Corroboration

¶12 Thomas first argues that the State did not present 

evidence to corroborate the statements he made to police in 

which he confessed to the crime of sexual assault. Accordingly, 

Thomas argues the jury convicted him based solely on the two 
No. 2020AP32-CR 

8

relevant statements he made to police following Ms. OliverThomas's death.12 

¶13 In Thomas's first statement to officers, he reported 

that Ms. Oliver-Thomas had complained of chest and ear pain in 

the early evening. Throughout the evening, Thomas and a friend 

were smoking crack in the basement of the four-plex apartment, 

and Thomas checked on his wife frequently. Each time he left 

the basement to check on Ms. Oliver-Thomas, she was "in bed 

dozing off." Thomas began watching a pornographic video in the 

apartment sometime after midnight, during which he became 

aroused and approached his wife, who agreed to consensual sex. 

During sex, the couple fell off of the bed and onto the floor. 

Following their encounter, Thomas noted that Ms. Oliver-Thomas 

complained her "chest was still hurting." Thomas checked on his 

wife a few more times, left the building and, upon returning to 

the apartment, he found Ms. Oliver-Thomas on the floor in the 

bedroom. Thomas then called 911 and administered CPR until 

officers arrived.

¶14 In Thomas's second statement to police,13 he and a 

friend were smoking crack in the apartment building's basement. 

 

12 Thomas's third statement was made while he was in 

custody. The third statement implicated a drug dealer, who 

Thomas believes entered the apartment while Thomas was with his 

friend and killed Ms. Oliver-Thomas over an outstanding debt 

Thomas owed. As this statement is not relevant to the sexual 

assault conviction at issue, we do not address it further. See

Thomas, 399 Wis. 2d 277, ¶6 n.3. 

13 Though not initially under arrest, Thomas was placed 

under arrest while providing his second statement to police. 

Officers read Thomas his Miranda rights (Miranda v. Arizona, 384 
No. 2020AP32-CR 

9

Thomas repeatedly returned to the apartment. On one trip to the 

apartment, Thomas noticed Ms. Oliver-Thomas was lying down 

because "her chest was hurting." On a subsequent trip upstairs, 

Ms. Oliver-Thomas said "she was feeling better." Thomas began 

watching a pornographic video and approached his wife to 

initiate sex. Even though she initially told him to stop, 

Thomas persisted, and, according to Thomas, the pair engaged in 

consensual sex, during which they fell to the floor. While 

engaged in sex, Thomas stated he had his left arm up around his 

wife's neck. 

¶15 After Ms. Oliver-Thomas returned to the bed, Thomas 

said he began "humping" Ms. Oliver-Thomas's hip area. Thomas 

and Ms. Oliver-Thomas again fell to the floor, where Thomas had

his left arm around Ms. Oliver-Thomas's neck a second time. 

Thomas stated:

I didn't think I was squeezing hard, but Joyce was 

struggling and was yelling for me to stop and to quit 

it. Joyce's feet were kicking the floor while she was 

telling me to stop. Joyce was telling me she loved me 

and for me to quit playing. I kept squeezing for a 

little while . . . Joyce's breathing started to slow 

down, so I turned her loose. After I turned her 

loose, Joyce was breathing funny and looking at me. I 

got up and left [the apartment].

When Thomas returned, he found Ms. Oliver-Thomas laying face 

down on the floor. Thomas tried to lift her, but lost his grip 

twice. Each time, Ms. Oliver-Thomas's face hit the bed or the 

 

U.S. 436 (1966)), which Thomas then waived to continue speaking 

with police. 
No. 2020AP32-CR 

10

floor. Thomas called 911, and the dispatcher instructed Thomas 

to begin CPR, which he performed until officers arrived. 

¶16 The State charged Thomas with sexual assault pursuant 

to Wis. Stat. § 940.225(1)(a) (2021-22),14 the conviction of 

which requires a jury to find beyond a reasonable doubt that a 

defendant had: (1) sexual contact with another person 

(2) without consent and (3) caused great bodily harm to that 

person. "Sexual contact" is statutorily defined to include 

intentional touching, either directly or through clothing, for

the purpose of sexually arousing or gratifying the defendant.15 

The Jury Instructions at Thomas's trial adhered to the statutory 

language, and the jury convicted Thomas of first-degree sexual 

assault of Ms. Oliver-Thomas.16

¶17 Thomas asserts there was insufficient evidence to 

support his conviction for sexual assault independent of the 

statements he made to police. Namely, Thomas points to the 

results from Joyce's autopsy and forensic examination, which 

included the use of a sexual assault kit. The exam's results 

 

14 All subsequent references to the Wisconsin Statutes are 

to the 2021-22 version unless otherwise indicated.

15 See Wis. Stat. § 940.225(5)(b)1.

16 The Jury Instructions at Thomas's trial adhered to the 

statutory language, stating, "Sexual contact includes the 

intentional touching of any part of the body of Joyce OliverThomas by the defendant's penis. The touching may have been by 

the penis directly, or it may have been through the clothing. 

Sexual contact also requires that the defendant acted with 

intent to become sexually aroused or gratified."
No. 2020AP32-CR 

11

did not reveal any evidence of sexual intercourse.17 The State, 

however, alleged first-degree sexual assault consistent with 

Thomas's second statement to police. In that statement, Thomas 

confessed to "humping" Joyce's hip area, during which he had his 

left arm around Joyce's neck and he was squeezing. Joyce 

struggled and yelled at Thomas to stop, but Thomas "kept 

squeezing for a little while," until "Joyce's breathing started 

to slow down." Thomas let her go and noted "Joyce was breathing 

funny." Accordingly, evidentiary results of sexual intercourse 

from a forensic exam were not necessary to support the State's 

theory of sexual assault in this case. 

¶18 One of the many tenets upon which our criminal justice 

system rests is that "conviction of a crime may not be grounded 

on the admission or confessions of the accused alone." State v. 

Verhasselt, 83 Wis. 2d 647, 661, 266 N.W.2d 342 (1978). 

Instead, Wisconsin law requires corroboration of any 

"'significant fact' in order to sustain a conviction." State v. 

Hauk, 2002 WI App 226, ¶20, 257 Wis. 2d 579, 652 N.W.2d 393. 

While at times we have upheld a jury's verdict of criminal 

conviction based on "considerable corroborative evidence," 

Verhasselt, 83 Wis. 2d at 662, Wisconsin's corroboration rule 

requires less than that. We have said:

All the elements of the crime do not have to be 

proved independently of an accused's confession; 

however, there must be some corroboration of the 

confession in order to support a conviction . . . . 

 

17 R. 319 at 122-23. 
No. 2020AP32-CR 

12

If there is corroboration of any significant fact, 

that is sufficient under the Wisconsin test.

Holt v. State, 17 Wis. 2d 468, 480, 117 N.W.2d 626 (1962). A 

significant fact is corroborated when "there is confidence in [] 

the fact that the crime the defendant has confessed to indeed 

occurred." Bannister, 302 Wis. 2d 158, ¶26. The primary

purpose of the corroboration rule is to ensure the reliability

of an accused's confession, requiring "evidence that the crime 

actually occurred." Id., ¶24; Hauk, 257 Wis. 2d 579, ¶24. 

¶19 The State points to two pieces of evidence that, in 

its view, corroborate a "significant fact" of Thomas's 

confession of sexual assault: (1) a downstairs neighbor's 

testimony that she was woken by a loud argument upstairs, during 

which she heard a woman scream, "Stop, stop, I love you, I love 

you;" and (2) a pornographic video recovered at the apartment.

¶20 While the State does not, and need not, offer 

corroborating evidence of every element of the crime of sexual 

assault, the State has offered corroborating evidence for a 

"significant fact" of Thomas's statements given to police. 

Holt, 17 Wis. 2d at 480. Thomas's downstairs neighbor testified 

she heard an argument between a man and woman, and the woman 

screamed, "Stop, stop, I love you, I love you." The neighbor 

also testified she heard something big hit the floor, the sound 

of furniture moving, and silence. She then heard the apartment 

door open, and a person she identified as Thomas walked out. 

¶21 We conclude the neighbor's testimony corroborates a 

"significant fact" of Thomas's statements to the police in which 
No. 2020AP32-CR 

13

he confessed to sexually assaulting his wife. The neighbor 

heard a female voice scream "Stop, stop, I love you, I love 

you." This phrase corroborates what Thomas told officers; 

namely, that while Thomas "humped" the victim's hip area, "Joyce 

was struggling and was yelling for me to stop . . . Joyce was 

telling me she loved me and for me to quit playing."18 

¶22 The neighbor's testimony "permits confidence" that the 

crime of sexual assault that Thomas confessed to "indeed 

occurred." Bannister, 302 Wis. 2d 158, ¶30. Wisconsin's 

corroboration rule does not demand more to support a 

factfinder's determination of guilt when the only other evidence 

of a particular crime is the defendant's statements to officers. 

Holt, 17 Wis. 2d at 480. 

¶23 We also conclude that the neighbor's testimony 

regarding Ms. Oliver-Thomas's statement establishes a 

"significant fact" consistent with our case law. See Bannister, 

302 Wis. 2d 158, ¶2 (presence of morphine in an alleged buyer's 

body at time of death constituted a significant fact to 

corroborate confession); see also Holt, 17 Wis. 2d at 480-82 

(charred infant torso found in furnace constituted sufficient 

independent corroboration of defendant's confession that baby 

was alive when placed in the furnace); Verhasselt, 83 Wis. 2d at 

 

18 While the State need not corroborate a confession with 

elements of a crime, we recognize, without deciding, Ms. OliverThomas's statement may do just that because we conclude that it 

is difficult to determine that the phrase "stop, stop" could not 

show a lack of consent. Holt v. State, 17 Wis. 2d 468, 480, 117 

N.W.2d 626 (1962). 
No. 2020AP32-CR 

14

693 (defendant's confession to fellow prison inmate, gun found 

in defendant's car identified as the one from which the bullets 

came, and defendant's confession to friend while showing two 

bullets corroborated significant facts of confession); State v. 

DeHart, 242 Wis. 562, 566, 8 N.W.2d 360 (1943) (location and 

condition of victim's body and expert testimony regarding 

consistency of bone condition with damage from buckshot 

consistent with defendant's confession). Having concluded that 

the neighbor's testimony sufficiently corroborates the 

statements Thomas made to police, we need not further analyze 

the importance of the pornographic video found in Thomas's

apartment.

¶24 We conclude the State satisfied its burden to present 

"some evidence" that the sexual assault charged, and to which 

Thomas confessed, actually occurred. Bannister, 302 Wis. 2d

158, ¶¶24, 25.

C. The Report at Trial

¶25 The Confrontation Clause of the Sixth Amendment of the 

United States Constitution prevents the admission of testimonial 

hearsay when the declarant is absent from trial unless the 

witness is unavailable and the defendant has had a prior 

opportunity to cross-examine the witness. Crawford v. 

Washington, 541 U.S. 36, 51 (2004). The Sixth Amendment right 

of confrontation is a "fundamental right, as made applicable to 

and obligatory on the states by the Fourteenth Amendment." 

State v. Griep, 2015 WI 40, ¶18, 361 Wis. 2d 657, 863 N.W.2d 567 

(citing Pointer v. Texas, 380 U.S. 400, 403 (1965)).
No. 2020AP32-CR 

15

¶26 Thomas asks us to consider whether his right to 

confront his accuser, guaranteed by the Confrontation Clause, 

was violated at his trial. Specifically, Thomas argues his 

confrontation right was violated during the State's crossexamination of his expert witness, Dr. Karl Williams. Thomas 

also asks us to consider the impact of the State's use of 

testimony, elicited from Dr. Williams himself, for the truth of 

the matter asserted at closing argument. 

1. The Cross-Examination

¶27 Thomas called just one witness at trial——Dr. Williams, 

a medical examiner. On direct examination, Dr. Williams 

testified that "in allegations of violence resulting in death," 

he looks for "an exchange of trauma, an exchange of evidence" 

between the victim and accused. When asked specifically, 

Dr. Williams replied that he did not see signs of a struggle or 

of defensive wounds. In his opinion, abrasions on Ms. OliverThomas's face could have resulted from emergency CPR or from 

engaging in face-down sex on the floor, consistent with Thomas's 

statements. 

¶28 On cross-examination, the State challenged 

Dr. Williams's characterization that there were no signs of an 

exchange of trauma through the following cross-examination:

[Prosecutor]: Now, you also reviewed Wisconsin crime 

lab reports, correct?

[Dr. Williams]: Correct.

. . . .
No. 2020AP32-CR 

16

[Prosecutor]: Okay. But in those crime lab reports, 

you are aware that there was some analysis done?

[Defense counsel]: Objection.

[Prosecutor]: It's what he relied on in his

opinion.[19]

[Defense counsel]: I'm objecting to going into 

the details of reports that haven't been introduced 

into evidence, though. It's a back door. 

THE COURT: If he examined it, then it's

presumably something he discounted or relied upon. 

The objection is overruled.

[Prosecutor]: And you are aware in those crime lab 

reports that Oscar Thomas's DNA was found under Joyce 

Oliver-Thomas's fingernail clippings, which were 

clipped from her body at the time of the autopsy, 

correct?

. . . [The State hands the [R]eport to Dr. Williams 

at his request] . . . .

[Dr. Williams]: Yes, this appears to be an analysis

that shows that the DNA found under the [fingernails]

was obviously a mixture. You are going to have her 

DNA, but also evidence of DNA from Oscar Thomas.

[Prosecutor]: And similarly the fingernails from the 

defendant were also swabbed, and her DNA was found 

under that as well; is that correct?

[Dr. Williams]: Yes.

[Prosecutor]: Okay.

[Dr. Williams]: They are living in a consensual 

marriage. A finding of the DNA, they could be 

scratching each other's back. I mean, there is no 

 

19 Dr. Williams "reviewed" the Report. That he did not 

"rely" on it also is clear from his testimony that diminishes 

the importance of the DNA evidence found under the fingernails 

of Thomas and Joyce, saying there "is no evidence of trauma on 

him to support the fact that she was struggling sufficiently."
No. 2020AP32-CR 

17

evidence of trauma on him to support the fact that she 

was struggling sufficiently.

Documents submitted prior to trial indicate Dr. Williams 

reviewed the Report, among other things, in preparing his 

testimony. Thomas urges us to conclude that the details 

elicited on cross-examination of Dr. Williams violated his 

confrontation right.

a. Confrontation or Impeachment

¶29 "The Confrontation Clause of the United States 

Constitution and Wisconsin Constitution guarantee criminal 

defendants the right to confront witnesses against them." 

Crawford, 541 U.S. at 42; State v. Manuel, 2005 WI 75, ¶36, 281

Wis. 2d 554, 697 N.W.2d 811. The right to confrontation applies 

to statements that are testimonial. Crawford, 541 U.S. at 68; 

State v. Deadwiller, 2012 WI App 89, ¶7, 343 Wis. 2d 703, 820 

N.W.2d 149 (citing Davis v. Washington, 547 U.S. 813, 821 

(2006)). Testimonial statements are those made "under 

circumstances which would lead an objective witness reasonably 

to believe that the statement would be available for use at a 

later trial." Crawford, 541 U.S. at 52. Forensic or scientific 

reports "prepared in connection with a criminal investigation or 

prosecution" are testimonial and, therefore, within the ambit of 

the Confrontation Clause. Bullcoming v. New Mexico, 564 U.S. 

647, 658 (2011). 

¶30 When forensic or scientific reports are offered for 

their truth, an accused must be able to confront the witness 

against him by subjecting the report's author, as the 
No. 2020AP32-CR 

18

statement's declarant, to the "crucible of cross-examination." 

Id. at 661 (citing Crawford, 541 U.S. at 62). In the event of 

witness unavailability, a testimonial statement may be 

introduced at trial only if an accused has had a "prior 

opportunity for cross-examination." Crawford, 541 U.S. at 68. 

It is not enough for a report's author to testify by other 

means. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11 

(2009) (ex parte affidavits cannot circumvent the right to 

confront the declarant by cross-examination); Bullcoming, 564 

U.S. at 652 (surrogate testimony does not meet the 

constitutional requirement and, an "accused's right is to be 

confronted with the analyst who made the certification, unless 

that analyst is unavailable at trial, and the accused [has] had 

an opportunity, pretrial, to cross-examine that particular 

scientist."). In sum, a forensic report cannot be used as 

substantive evidence against an accused unless an accused may 

confront the report's author through cross-examination in court

or has had a prior opportunity to cross-examine the author. 

Melendez-Diaz, 577 U.S. at 309. 

¶31 Although a criminal defendant must be able to confront 

a forensic report's author, expert witnesses may review 

inadmissible reports in preparing their testimony. In Williams, 

the Supreme Court addressed the constitutionality of "allowing 

an expert witness to discuss others' testimonial statements if 

the testimonial statements were not themselves admitted as 

evidence." Williams v. Illinois, 567 U.S. 50, 67 (2012)

(quoting Bullcoming, 564 U.S. at 673 (Sotomayor, J., 
No. 2020AP32-CR 

19

concurring)). There, the Court concluded an expert may qualify 

the assumptions upon which she bases her conclusions so long as 

the bases themselves are not offered for their truth. Williams, 

567 U.S. at 57-58. The Court reasoned that allowing an expert 

to make such disclosures aids the factfinder in making 

credibility and weight determinations about the validity of the 

expert's opinions. Id. at 77-78.20 Stated otherwise, eliciting 

information from an expert for the purpose of undermining the 

bases of the expert's opinion, serves to impeach an expert; and 

impeachment evidence is not hearsay because it is not offered to 

prove the truth of the matter asserted. Id. at 79 (explaining 

that the Confrontation Clause applies only to out-of-court 

statements that are "use[d]" to "establis[h] the truth of the 

matter asserted."). 

¶32 Although we acknowledge that Williams does not provide 

a majority rationale,21 Wis. Stat. § 907.03 reflects this concept 

 

20 "The purpose for allowing this disclosure is that it may 

'assis[t] the jury to evaluate the expert's opinion.' [Citation 

omitted.] . . . [The approach is] based on the idea that the 

disclosure of basis evidence can help the factfinder understand 

the expert's thought process and determine what weight to give 

to the expert's opinion . . . . The purpose of disclosing the 

facts on which the expert relied is to allay these fears——to 

show that the expert's reasoning was not illogical, and that the 

weight of the expert's opinion does not depend on factual 

premises unsupported by other evidence in the record——not to 

prove the truth of the underlying facts." Williams v. Illinois, 

567 U.S. 50, 78 (2012). 

21 Williams resulted in a 4-1-4 split. Four justices joined 

the lead opinion, and Justice Thomas filed an opinion concurring 

in the judgment.
No. 2020AP32-CR 

20

and permits an expert to review inadmissible reports in forming 

her conclusions.22 Despite a report's inadmissibility, or a 

proponent's failure to obtain admission of the report into 

evidence, a cross-examiner may use the contents of a report for 

the "distinctive and limited purpose" of attacking an expert's 

credibility so a jury may determine the weight to give an

expert's testimony. Id.; see Seifert v. Balink, 2017 WI 2, 

¶¶124-127, 372 Wis. 2d 525, 888 N.W.2d 816. 

¶33 This method of attack may serve to impeach a witness 

even though cross-examination of an expert witness's bases for 

her opinion is not a hearsay exception. This is so because 

substance of reports and data that an expert reviewed are not 

automatically admitted as evidence for the truth of the matter 

asserted when they come up in cross-examination for another 

purpose. See State v. Watson, 227 Wis. 2d 167, ¶78, 595 N.W.2d 

403 (1999) ("[Wisconsin Stat. §] 907.03 does not transform 

inadmissible hearsay into admissible hearsay. It does not 

permit hearsay evidence to come in through the front door of 

direct examination."); Staskal v. Symons Corp., 2005 WI App 216, 

¶22, 287 Wis. 2d 511, 706 N.W.2d 311 ("[Section] 907.03 is not a 

hearsay exception and does not make inadmissible hearsay 

 

22 "The facts or data in the particular case upon which an 

expert bases an opinion or inference may be those perceived by 

or made known to the expert . . . before the hearing . . . . 

[T]he facts or data need not be admissible in evidence in order 

for the opinion or inference to be admitted. Facts or data that 

are otherwise inadmissible may not be disclosed to the 

jury . . . ." Wis. Stat. § 907.03.
No. 2020AP32-CR 

21

admissible."). Instead, parties may strategically determine 

whether to request cautioning or limiting instructions for the 

use of a report that is not eligible to be admitted for the 

truth of the matters asserted therein. Limiting instructions 

aid a factfinder's understanding of how to evaluate, constrain, 

or disregard an expert's opinion "if it is not based on evidence 

of record." Watson, 227 Wis. 2d 167, ¶82. 

¶34 Turning to the case at hand, the State's use of the 

Report to impeach Dr. Williams on cross-examination did not 

violate Thomas's confrontation right. The State challenged 

Dr. Williams's conclusion that there was "no exchange of 

evidence" by referencing the Report that Dr. Williams had 

reviewed, which showed DNA exchanges under the fingernails of 

Thomas and Ms. Oliver-Thomas. Stated otherwise, by drawing 

attention to the "exchange" of DNA between Thomas and 

Ms. Oliver-Thomas, the State attempted to undermine 

Dr. Williams's opinion that Ms. Oliver-Thomas's cause of death 

could have been accidental. The degree to which the State 

succeeded in limiting the usefulness of Dr. Williams's testimony 

was then considered by the jury together with all of the 

evidence in deciding Thomas's guilt. Although we recognize 

Thomas could have asked for limiting instructions that the jury 

not consider the Report's contents for their truth because 

testimony about the contents of the Report was not admitted for 

substantive purposes, he made no such request. We conclude the 

State's questioning on cross-examination relevant to the Report 
No. 2020AP32-CR 

22

did not violate Thomas's right to confront the Report's author 

when used to impeach Dr. Williams's opinion. 

b. Truth of the Report

¶35 The State summarily asserted at oral argument that it 

wanted the Report's discussion of DNA evidence found under 

fingernails employed "for the truth of the matter asserted." 

The portions of the State's brief relevant to the Report, its 

contents, and the confrontation right rely extensively on 

Justice Alito's concurrence in Hemphill v. New York, 595 U.S. 

___, 142 S. Ct. 681 (2022). However, at oral argument the State 

relied on cases not mentioned in its brief, such as, State v. 

Mattox, 2017 WI 9, 373 Wis. 2d 122, 890 N.W.2d 256, Griep, 361 

Wis. 2d 657, and Vinicky v. Midland Mut. Cas. Ins. Co., 35 

Wis. 2d 246, 151 N.W.2d 77 (1967). 

¶36 As we begin, we review Hemphill and Justice Alito's 

concurrence and conclude that the State could not use the Report 

for its truth at Thomas's trial under Crawford or Hemphill.

¶37 In Hemphill, the Supreme Court heard arguments that 

the State violated defendant Hemphill's confrontation right 

during the course of its prosecution of him for murdering a 

young girl who was hit by a stray 9-millimeter bullet. 

Hemphill, 142 S. Ct. at 686. Hemphill maintained his innocence 

throughout trial and premised his defense on the theory another 

man, Morris, was the shooter. Id. at 688. The State had 

initially charged Morris with the murder but offered Morris a 

plea deal mid-trial, which required Morris to admit to 

possession of a .357-magnum revolver, rather than a 9-millimeter 
No. 2020AP32-CR 

23

handgun. Id. at 686. At Hemphill's trial for the same murder, 

Hemphill presented "undisputed testimony" that police had 

recovered a 9-millimeter handgun from Morris's nightstand. Id. 

Over objection, the trial court permitted the State to enter 

parts of the transcript from Morris's plea allocution to rebut 

Hemphill's defense theory, despite Morris's unavailability to 

testify. Id. The trial court based its decision to allow use 

of the transcript on a binding New York case,23 which held that 

"a criminal defendant could 'open the door' to evidence that 

would otherwise be inadmissible under the Confrontation Clause 

if the evidence was 'reasonably necessary to correct a 

misleading impression.'" Id. at 688. New York's highest court 

affirmed the trial and appellate courts, reasoning that at trial 

"[the] defendant created a misleading impression that Morris 

possessed a 9-millimeter handgun [and so the] introduction of 

the plea allocution was reasonably necessary to correct that 

misleading impression." Id. at 688-89. 

¶38 The United States Supreme Court rejected New York's 

corrective ideations, asserting there is "no exception [to the 

Confrontation Clause] for cases in which the trial judge 

believes unconfronted testimonial hearsay might be reasonably 

necessary to correct a misleading impression." Id. at 693. The 

Supreme Court concluded that New York's rule resulted in a judge 

impermissibly making a reliability assessment. Id. at 691-92. 

Under the Confrontation Clause, reliability must be assessed in 

 

23 People v. Reid, 971 N.E.2d 353 (N.Y. 2012).
No. 2020AP32-CR 

24

a particular manner: "by testing in the crucible of crossexamination." Id. at 691 (citing Crawford, 541 U.S. at 61). In 

summing up the opinion, the majority stated, "[T]he Court does 

not decide today the validity of the common-law rule of 

completeness as applied to testimonial hearsay. Under that 

rule, a party 'against whom a part of an utterance has been put 

in, may in his turn complement it by putting in the remainder.'" 

Id. at 693 (citations omitted).

¶39 Justice Alito concurred in Hemphill. He addressed 

"conditions under which [he said that] a defendant can be deemed 

to have validly waived the right to confront adverse witnesses,"

while using the rule of completeness to get there in some 

circumstances. Id. at 694 (Alito, J., concurring). Justice 

Alito said that a defendant may "waive the Sixth Amendment right 

to confront adverse witnesses through conduct." Id. This was 

not a case under New York's opening-the-door-to-correct-amisleading-statement rule because its application was not 

predicated on "conduct evincing intent to relinquish the right 

of confrontation," nor was it predicated on "action inconsistent 

with the assertion of that right." Id. at 694-95. While 

acknowledging the reasons under which the New York rule fails 

constitutional muster as related to the confrontation right, 

Justice Alito stated "[t]here are other circumstances, however, 

under which a defendant's introduction of evidence may be 

regarded as an implicit waiver of the right to object to the 

prosecution's use of evidence that might otherwise be barred by 

the Confrontation Clause." Id. at 695. The concurrence then 
No. 2020AP32-CR 

25

suggested the rule of completeness may invoke one of those 

circumstances. There, "if a party introduces all or part of a 

declarant's statement, the opposing party is entitled to 

introduce the remainder of that statement . . . regardless of 

whether the statement is testimonial or there was a prior 

opportunity to confront the declarant." Id.

¶40 Justice Alito asserted "the rule of completeness fits 

comfortably within the concept of implied waiver [of the 

confrontation right]." Id. By introducing statements of an 

unavailable declarant, "a defendant has made a knowing and 

voluntary decision to permit that declarant to appear as an 

unconfronted witness." Id. Under this theory, a criminal 

defendant may waive his confrontation right by introducing an 

incomplete statement of an unavailable declarant; completing an 

incomplete or misleading statement, the argument goes, demands 

that the entire statement is "fair game." Id.

¶41 In its brief, the State urges us to accept that the 

"rationales for the holdings in [Crawford and Hemphill] simply 

do not apply here."24 The State characterizes Crawford and 

Hemphill as rejecting "open-ended, reliability-based exceptions 

that applied to any kind of evidence."25 Instead, the State 

views the Report at issue in Thomas's conviction as belonging to 

a "narrow category of evidence that a defense expert relied on 

 

24 Resp't. Br. at 28. 

25 Id. (emphasis in original).
No. 2020AP32-CR 

26

and gave factually inaccurate testimony about."26 While 

acknowledging the Hemphill concurrence is not binding, the State 

asserts the concurrence is the guidance courts have in 

evaluating situations like Thomas's where, in the State's view, 

Thomas elicited testimony that "flatly contradicted" the Report.

Because "he made 'a tactical choice' to put the [R]eport in 

play," he "waived his confrontation right as to that [R]eport."27

¶42 The State is incorrect on several bases. First, it 

was the State who introduced the Report in its cross-examination 

of Thomas's expert, not the defendant. Second, to the extent 

the State views Justice Alito's concurrence as "contemplate[ing] 

fact patterns like [the one in the instant case]," we fail to 

see how. Justice Alito plainly states, "The introduction of 

evidence that is misleading as to the real facts does not, in 

itself, indicate a [defendant's] decision regarding whether any 

given declarant should be subjected to cross-examination." 

Hemphill, 142 S. Ct. at 695 (Alito, J., concurring). In other 

words, a defendant's introduction of misleading evidence cannot 

be interpreted to infer a defendant's waiver of his 

confrontation right. Accordingly, we conclude the State's 

complaint that Thomas's expert testified in a way it found 

"misleading as to the real facts," does not amount to an implied 

waiver of the right of confrontation even under Justice Alito's 

concurrence. 

 

26 Id. (emphasis in original). 

27 Id. at 30. 
No. 2020AP32-CR 

27

¶43 The fault in the State's rationale is apparent when 

applied to Thomas: Dr. Williams reviewed 219 pages of reports 

and statements in preparing his testimony. Dr. Williams may 

very well have concluded the Report's contents regarding DNA 

evidence did not show signs of "an exchange of evidence." As 

Dr. Williams testified, the existence of another's DNA under a 

cohabitating couple's fingernails may have innocent origins and 

is not necessarily indicative of a struggle. If the State 

disagreed with his conclusion and sought to challenge it, the 

appropriate method is through impeachment, as occurred here. 

Otherwise, we fail to differentiate the State's argument from 

the reliability determinations that the Supreme Court rejected 

in Crawford and Hemphill. See Crawford, 541 U.S. at 62-68,

rejecting the reliability-based approach of Ohio v. Roberts, 448 

U.S. 56 (1980); Hemphill, 142 S. Ct. at 690-92, reaffirming that 

rejection while overruling People v. Reid, 971 N.E.2d 353 (N.Y. 

2012).

¶44 There is little doubt the Report was testimonial when 

used for its truth. After all, Ms. Oliver-Thomas's fingernails 

were clipped during her autopsy and sent to a crime lab to 

determine whose, if anyone's, DNA could be found there. The 

same could be said for Thomas's fingernails. Under these 

circumstances an objective witness would certainly believe the 

resulting statement in a report would be "available for use at a 

later trial" for its truth. Crawford, 541 U.S. at 52. However, 

if the State wanted to use the Report for its truth, the State 

was required to introduce and authenticate the Report and then 
No. 2020AP32-CR 

28

subject its author to cross-examination by Thomas in accordance 

with the Sixth Amendment and Melendez-Diaz. Melendez-Diaz, 557

U.S. at 305. The information the State elicited from 

Dr. Williams on cross-examination for impeachment purposes did 

not transform the Report into admissible hearsay. We conclude 

that the State's questioning of Dr. Williams served to impeach 

his testimony, and that the State's use of the Report for 

impeachment did not employ the Report's contents for their 

truth.

2. Closing Arguments

¶45 The second instance in which the Report surfaces is 

during closing arguments, where the State used evidence elicited 

on Dr. Williams's cross-examination for the truth of the 

contents of the Report. The prosecution asserted its theory of 

the case in closing: 

[Prosecutor]: You would have to be high on crack to 

think that there is any other explanation for Joyce 

Oliver-Thomas's death than that Oscar Thomas killed 

her, but it was more than just killing. It was 

brutal, vicious, violent, choking the life out of her 

for minutes . . . while he is scratching up her face 

with his free hand, with his right hand, trying to 

cover her mouth.

[Defense counsel]: I'm going to object to that. 

I'm objecting to this demonstrative. There is no 

evidence of that, Judge.

[Prosecutor]: Closing argument, Your Honor.

THE COURT: Well, no, no, no. Confined to the 

evidence.

[Prosecutor]: And the evidence supports this 

theory, Your Honor. We have testimony of the 
No. 2020AP32-CR 

29

scratches on her face. . . . Her DNA is found under 

his fingernails. We have testimony from the neighbor 

downstairs.

THE COURT: All right, as long as you are clear 

this is your theory, and that --

[Prosecutor]: Absolutely. It is my closing 

argument, Your Honor. I'm presenting to the jury my 

theory of how Joyce Oliver-Thomas died, and I think 

the evidence supports that. This is exactly what I 

think happened. Oscar Thomas placed his left arm 

around her throat and squeezed, compressing her neck 

while using his other hand to muzzle her nose and her 

mouth to keep her quiet and speed up her death, and 

that's how she got the scratches on her face.

Over defense counsel's objection, the State assured the judge 

that "the evidence supports this theory." The State's 

representation was not correct. There had been no evidence 

admitted for the truth of the DNA found in the fingernail 

clippings. The State presented no independent DNA evidence, did 

not enter the Report into evidence, and it did not otherwise

present evidence as to the scratches' origin. 

¶46 We conclude the State's reliance on hearsay evidence 

that was used to impeach Thomas's expert's opinion was improper 

during closing arguments because the Report then was used for 

the truth of the statements therein. See State v. Marinez, 2011 

WI 12, ¶44, 331 Wis. 2d 568, 797 N.W.2d 399 (limiting the use of 

evidence that had been admitted because of its high potential 

for unfair prejudice); State v. Albright, 98 Wis. 2d 663, 676, 

298 N.W.2d 196 (Ct. App. 1980) (concluding that reference to 

confiscated weapons was improper given its potential for unfair 

prejudice). As stated earlier, the facts or data upon which an 

expert bases her opinion may be introduced under Wis. Stat. 
No. 2020AP32-CR 

30

§ 907.03, but only for the limited purpose of assisting the 

factfinder in determining an expert's credibility. Watson, 227 

Wis. 2d 167, ¶82. Evidence brought in for that purpose does not 

transform into admissible hearsay for subsequent use at trial. 

Id., ¶78. 

¶47 Furthermore, after defense counsel objected, the 

prosecutor incorrectly assured the judge that, "[T]he evidence 

supports this theory, Your Honor. We have testimony of the 

scratches on her face. . . . Her DNA is found under his 

fingernails." It was therefore erroneous to permit the 

prosecutor's statement in closing argument because the DNA 

evidence in the Report was not properly admitted as evidence for 

its substantive content. 

D. Harmless Error

¶48 Our test for harmless error has varied over the years. 

Despite variations, we have consistently noted that there has 

been "little practical difference between the formulations of 

harmless error which the court has used from time to time." 

State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). 

Harmless error analyses have been applied to errors claimed to 

have occurred during closing argument. State v. Johnson, 60 

Wis. 2d 334, 344-45, 210 N.W.2d 735 (1973). Over time, we have 

moved toward implementing a uniform harmless error standard 

regardless of whether the complained-of error is constitutional, 

statutory, or other. Harvey, 254 Wis. 2d 442, ¶40. The 

beneficiary of the error, here the State, has the burden of 

proving the error was harmless. Id., ¶41. 
No. 2020AP32-CR 

31

¶49 In addition, "[Wis. Stat.] § 805.18, made applicable 

to criminal cases by Wis. Stat. § 972.11(1), prohibits reversal 

for error not affecting a party's substantial rights." Id., 

¶39. The harmless-error inquiry considers whether it is "clear 

beyond a reasonable doubt that a rational jury would have found 

the defendant guilty absent the error." Id., ¶46 (citing Neder, 

527 U.S. at 18). 

¶50 In reviewing a contention that the error was harmless,

we consider evidence that was not affected by the error that 

occurred during the State's closing argument. In so doing, we 

examine whether the State has met its evidentiary burden. 

¶51 In regard to the sexual assault, the State offered the 

following evidence at trial: the downstairs neighbor's 

testimony asking that Thomas "stop, stop" and the large bump due 

to something falling on the floor above; and the medical 

examiner's testimony, discussed below. 

¶52 Thomas's friend told the jury the pair had smoked 

crack together in the apartment basement in the early morning 

hours on the day Ms. Oliver-Thomas died. The friend stated at 

one point he waited about "an hour" for Thomas to return from 

checking on his wife. The jury heard that, after Thomas 

returned to the basement, Thomas "seemed nervous and kind of 

edgy . . . it was a whole different person from what I [had] 

seen him like." 

¶53 The medical examiner testified regarding the results 

she found during the forensic examination of Ms. Oliver-Thomas. 

The medical examiner provided testimony as to her autopsy 
No. 2020AP32-CR 

32

report, which was received into evidence. The jury heard the 

medical examiner's testimony that "the decedent had injuries to 

her face and her neck consistent with strangulation," such as

hemorrhage and bruising along the front of the victim's neck and 

throughout the neck muscles. The examiner further testified to 

bruises and bites on the victim's tongue, which she stated may 

have been caused "by a force against the neck pushing the back 

of the neck into the spine." She also testified that she found 

injuries on the victim's lips in addition to scratches on her 

face. She continued by describing petechiae, small burst 

vessels that she observed in the victim's eyes and which are 

commonly seen in strangulation cases. The examiner further 

testified that the victim had approximately 70ccs of bloody 

fluid in her stomach, which the victim swallowed. The State 

also entered nine photographs from Ms. Oliver-Thomas's autopsy 

into evidence.

¶54 None of this evidence was affected by the State's 

substantive use of the hearsay Report in closing argument. 

While Thomas presented a medical expert in his defense, we make 

no determination as to the jurors' assessment of credibility and 

weight. 

¶55 The harmless error query does not reduce to a mere 

quantum of evidence, but instead, whether absent the 

hearsay/Report it is clear beyond a reasonable doubt that a 

rational jury would have found Thomas guilty. Here, we conclude 

that the State offered sufficient evidence for a rational jury 

to determine Thomas sexually assaulted and intentionally took 
No. 2020AP32-CR 

33

the life of his wife. All of the observations of physical 

injury to Ms. Oliver-Thomas are consistent with the jury's 

conclusion that Thomas's interactions with her were not 

consensual and were intentional. Accordingly, we conclude that 

the State has met its burden to show that the error was 

harmless.

III. CONCLUSION

¶56 We affirm the court of appeals and conclude that the 

State met its evidentiary burden to sufficiently corroborate 

Oscar C. Thomas's confession of sexual assault. We also 

conclude that the State's use of the Report that a defense 

expert reviewed, but which was not admitted into evidence, did 

not violate Thomas's confrontation right under the United 

States' Constitution or the Wisconsin Constitution when used for 

impeachment purposes.28 However, we reject the State's argument 

that it properly used the Report's contents, during closing 

argument. Furthermore, following Hemphill, a criminal defendant 

does not "open the door" to the introduction of testimonial outof–court statements for the purpose of "correcting" a 

"misleading impression." Although we conclude that the State 

did not use the content of the Report for its truth on crossexamination, the State improperly used the Report's content for 

its truth during closing arguments, which the circuit court 

 

28 We note that Justice Dallet's concurrence concludes the 

opposite, and is the decision of the court in regard to use of 

the Report during cross-examination of Thomas's expert witness. 

See ¶2, supra.
No. 2020AP32-CR 

34

erroneously permitted. However, we conclude the error was 

harmless because it is "clear beyond a reasonable doubt that a 

rational jury would have found [Thomas] guilty absent the 

error." Harvey, 254 Wis. 2d 442, ¶46 (citing Neder, 527 U.S. at 

18). 

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

affirmed.
No. 2020AP32-CR.rfd

1

¶57 REBECCA FRANK DALLET, J. (concurring). I join the 

portion of the majority/lead opinion holding that Thomas's 

confession was sufficiently corroborated to be admissible. See

majority/lead op., ¶¶12-24. As noted in the majority/lead 

opinion,1 because this concurrence is joined by Justices Ann 

Walsh Bradley, Rebecca Grassl Bradley, and Jill J. Karofsky, it 

represents the decision of the court with respect to the second 

issue raised in this case: Whether the State violated Thomas's 

rights under the Sixth Amendment's Confrontation Clause when it 

elicited testimony about DNA evidence contained in a Crime Lab 

report not in evidence without affording Thomas the opportunity 

to cross-examine the report's author. 

¶58 I conclude that the State violated Thomas's Sixth 

Amendment rights. The State sought the DNA evidence described 

in the Crime Lab report for its truth at trial. That much is 

clear from the prosecutor's closing argument to the jury. And 

the State confirmed that the DNA evidence was offered for its 

truth throughout briefing and during oral argument in this 

court.2 For that reason, the DNA evidence in the Crime Lab 

report was testimonial hearsay; it was an out of court 

 

1 See majority/lead op., ¶2. 

2 The majority/lead opinion is right that the State's 

position has changed over time. See majority/lead op., ¶7. In 

the post-conviction proceedings, at the court of appeals, and in 

its response to Thomas's petition for review, the State argued

that the DNA evidence was used for impeachment at trial. But 

that does not change what happened at trial or in briefing and 

oral argument before us, where the State took the consistent 

position that the DNA evidence was elicited and used for its 

truth. 
No. 2020AP32-CR.rfd

2

statement, prepared "under circumstances which would lead an 

objective witness reasonably to believe that the statement would 

be available for use at a later trial," and offered by someone 

other than the declarant for the truth of the matters asserted. 

See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009) 

(quotation omitted). Because the author of that report was not 

available for cross-examination, admitting testimony about it 

therefore violated the Confrontation Clause. Nevertheless, 

because that Confrontation Clause violation was harmless, I 

conclude that Thomas's convictions should stand. 

I

¶59 Thomas's forensic expert, the sole defense witness at 

trial, testified on direct examination that he did not see any 

defensive wounds or "signs of a struggle" on the victim. This 

was important because Thomas argued that he killed the victim

accidentally. During cross-examination, the State asked 

Thomas's expert if he reviewed reports from the Wisconsin Crime 

Lab in reaching his conclusions. This was the first time the 

Crime Lab report and the DNA evidence contained in it came up at 

trial, and defense counsel objected to any questioning about the 

contents of the report. The circuit court overruled the 

objection, however, and allowed the State to ask Thomas's expert 

about the report because he reviewed it before reaching his 

opinion. The prosecutor then asked the expert about the 

report's finding that Thomas's DNA was under the victim's 

fingernails at the time of the autopsy. After looking at the 

report, Thomas's expert said "[y]es, this appears to be an 
No. 2020AP32-CR.rfd

3

analysis that shows that the DNA found under the fingerprints 

[sic] was obviously a mixture. You are going to have [the 

victim's] DNA, but also evidence of DNA from Oscar Thomas." He 

also confirmed that the victim's DNA was found under Thomas's 

fingernails. Thomas's expert dismissed those conclusions, 

however, explaining that Thomas and the victim were married, and 

"[a] finding of the DNA, they could be scratching each other's 

back. I mean, there is no evidence of trauma on him to support 

the fact that she was struggling." The report was never 

admitted into evidence.

¶60 The State's actions would have been permissible if, as 

the majority/lead opinion hypothesizes, it was done only to 

impeach Thomas's expert during cross-examination.3 See

majority/lead op., ¶¶29-34. But the record, and the State's 

briefing and presentation at oral argument, all establish that 

the evidence was offered for the truth of matters contained in 

the report——that the victim's DNA was under Thomas's fingernails 

and Thomas's DNA was under her fingernails. That was why, when 

the circuit court told the prosecutor to confine his closing 

arguments to the evidence, he responded——in front of the jury——

that "[w]e have testimony of the scratches on [the victim's] 

face. We have testimony that it could have been caused by DNA. 

 

3 After all, experts may rely on inadmissible evidence, 

including hearsay, in forming their opinions. See Wis. Stat. 

§ 907.03. And if an expert does so, that inadmissible evidence 

can be used to impeach the expert's credibility on crossexamination, but not for the truth of the matters asserted. See

Wis. Stat. § 907.05; see also State v. Heine, 2014 WI App 32, 

¶10, 354 Wis. 2d 1, 844 N.W.2d 409. Nevertheless, as explained 

below, that is not what happened at Thomas's trial. 
No. 2020AP32-CR.rfd

4

Her DNA is found under his fingernails." The only "testimony" 

about DNA was Thomas's expert's answers about the Crime Lab 

report's findings during cross-examination. And if there was 

any remaining question about the purpose of eliciting that 

testimony, it was answered in briefing and at oral argument in 

this court,4 where the State consistently asserted that Thomas 

impliedly waived his right to confront the author of the Crime 

Lab report when his expert's testimony contradicted the report's 

contents. 

¶61 Nevertheless, the majority/lead opinion insists that 

the State used the evidence during cross-examination not for its 

truth, but only to impeach Thomas's expert's credibility. See

majority/lead op., ¶34. That is correct, in the majority/lead 

opinion's view, since the State's briefing "did not argue that 

the Report could be used for the truth of its contents." Id., 

¶7. But the majority/lead opinion misunderstands the State's 

position. Its argument that Thomas impliedly waived his 

confrontation right only matters if the report was used for its 

truth. After all, the Confrontation Clause only prohibits the 

introduction of testimonial hearsay, and hearsay is, by 

definition, an out of court statement that is "offered in 

evidence to prove the truth of the matter asserted." See Wis. 

Stat. § 908.01(3) (emphasis added); see also Crawford v. 

 

4 For example, when speaking about why the evidence was 

admitted, the State's counsel stated that "we want it for the 

truth of the matter asserted," "[t]he State is not asking [for] 

it as impeachment," and "I don't want to go down the path of 

just calling it impeachment . . . ." 
No. 2020AP32-CR.rfd

5

Washington, 541 U.S. 36, 53 (2004). Thus, the State's 

consistent position before us is that it did not violate the 

Confrontation Clause when it sought to establish the truth of 

the Crime Lab report's findings through Thomas's expert's 

testimony on cross-examination. 

¶62 The problem with that position is that the 

Confrontation Clause "prohibits the introduction of testimonial 

statements by a nontestifying witness, unless the witness is 

'unavailable to testify, and the defendant had had a prior 

opportunity for cross-examination.'" Ohio v. Clark, 576 U.S. 

237, 243 (2015) (quoting Crawford, 541 U.S. at 54). Crime lab 

reports are testimonial statements because they are "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 310 (quotation 

omitted); see also Bullcoming v. New Mexico, 564 U.S. 647, 658-

59 (2011). And for that reason, the conclusions reached by such 

reports may be admitted for their truth at trial only if the 

person who prepared the report is subject to cross-examination. 

See Bullcoming, 564 U.S. at 663. 

¶63 That wasn't the case at Thomas's trial. Instead, 

through its questioning of Thomas's expert, the State was able 

to elicit DNA evidence from the Crime Lab report without 

affording Thomas the opportunity to confront the analyst who 

prepared that report——a straightforward Confrontation Clause 

violation. See id. at 662 ("[T]he [Confrontation] Clause does 

not tolerate dispensing with confrontation simply because the 
No. 2020AP32-CR.rfd

6

court believes that questioning one witness about another's 

testimonial statements provides a fair enough opportunity for 

cross-examination."). 

¶64 The State tries to sidestep that violation by arguing 

that Thomas impliedly waived his right to confront the analyst 

who prepared the Crime Lab report when his expert witness 

"relied on" the DNA evidence in that report and then "gave 

factually inaccurate testimony about" it. This argument is 

based on the direct testimony of Thomas's expert that he did not 

see any defensive wounds or "signs of a struggle" on the victim. 

The State claims that was inaccurate because the DNA evidence 

showed that Thomas's DNA was under the victim's fingernails (and 

her DNA under his).5 And for that reason, the State did not 

violate the Sixth Amendment by establishing the facts contained 

in the report through cross-examining Thomas's expert. 

¶65 This argument, however, mirrors an evidentiary rule 

the United States Supreme Court recently held was 

unconstitutional in Hemphill v. New York, 142 S. Ct. 681 (2022). 

That rule allowed evidence that would otherwise violate the 

Confrontation Clause to be admitted when the defendant "opened 

the door;" that is, when the defendant created "a misleading 

impression that requires correction with additional materials 

from the other side." Id. at 691 (quotation omitted). The 

 

5 This argument is questionable even on its own terms since, 

as Thomas's expert explained, the DNA evidence does not 

necessarily indicate that a struggle occurred. Indeed, the 

expert stated that because Thomas and the victim lived together, 

he would expect to find their DNA under each others' 

fingernails. 
No. 2020AP32-CR.rfd

7

Court rejected that rule because the Sixth Amendment's text 

"'does not suggest any open-ended exceptions from the 

confrontation requirement to be developed by courts.'" Id. at 

690 (quoting Crawford, 541 U.S. at 54). As the Court explained, 

"[f]or Confrontation Clause purposes, it was not for the judge 

to determine whether the [defendant's] theory . . . was 

unreliable, incredible, or otherwise misleading in light of the 

State's proffered . . . evidence," or whether that proffered 

evidence was "reasonably necessary to correct that misleading 

impression." Id. at 692. 

¶66 The State attempts to distinguish Hemphill by arguing 

that Thomas impliedly waived his confrontation right. As the 

State notes, Hemphill left open the possibility that one type of 

implied waiver, the common-law rule of completeness, might allow 

testimonial hearsay to be admitted under certain circumstances. 

See id. at 693. And Justice Alito's concurrence in Hemphill

suggested that defendants can impliedly waive their 

confrontation right in other ways, by engaging in "conduct 

evincing intent to relinquish the right of confrontation" or by 

taking an "action inconsistent with the assertion of that 

right." Id. at 694-95 (Alito, J., concurring). 

¶67 Drawing on that framework, the State argues for a 

"narrow solution" that applies to the "narrow category of 

evidence that a defense expert relied on and gave factually 

inaccurate testimony about." The problem with this argument is 

that it rests on the same flawed approach the U.S. Supreme Court 

rejected in Hemphill. See Hemphill, 142 S. Ct. at 691. As 
No. 2020AP32-CR.rfd

8

Justice Alito acknowledged in his concurrence, a defendant's 

introduction of evidence that is allegedly misleading as to the 

real facts is not, by itself, the kind of act that signals an 

intent to relinquish the Sixth Amendment right to confrontation. 

See id. at 695 (Alito, J., concurring). Yet that is what the 

State asks us to conclude: that the DNA evidence contained in 

the Crime Lab report "was reasonably necessary to correct [the] 

misleading impression" created by Thomas's expert's testimony 

that he did not see any defensive wounds or "signs of a 

struggle" on the victim. See Hemphill, 142 S. Ct. at 692. But 

adopting the State's position would defy Hemphill——something we 

cannot do. Accordingly, Thomas did not impliedly waive his 

Confrontation Clause right, and admitting testimony about the 

contents of the Crime Lab report without affording him the 

opportunity to confront its author violated the Sixth Amendment. 

II

¶68 Nevertheless, I conclude that the Confrontation Clause 

violation that occurred here was harmless. An error is harmless 

if the State proves "beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained." 

Chapman v. California, 386 U.S. 18, 24 (1967). Thus, we look 

"not [to] what effect the constitutional error might generally 

be expected to have upon a reasonable jury, but rather what 

effect it had upon the guilty verdict in the case at hand." 

Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (citing Chapman, 

386 U.S. at 24); see also id. ("The inquiry, in other words, is 

not whether, in a trial that occurred without the error, a 
No. 2020AP32-CR.rfd

9

guilty verdict would surely have been rendered, but whether the 

guilty verdict actually rendered in this trial was surely 

unattributable to the error." (emphasis in original)). 

¶69 Here, it is clear beyond a reasonable doubt that the 

admission of the DNA evidence did not contribute to the guilty 

verdict. To be sure, the DNA evidence was used as support for 

the State's theory that Thomas intended to kill the victim and, 

conversely, to rebut Thomas's theory that the death was 

accidental. And admittedly, the DNA evidence was somewhat 

useful in that regard as it bolstered the State's narrative that 

Thomas scratched the victim's face with his free hand while 

choking her to death. But the evidence wasn't necessary to 

support that theory since the State's case was already strong 

without it. The jury heard testimony from the medical examiner 

about injuries to the victim's face, neck, tongue, and lips, all 

of which were consistent with Thomas violently and intentionally 

strangling the victim. Additionally, the jury also heard from 

Thomas's neighbor, who awoke to a loud argument in the middle of 

the night and a woman screaming "[s]top, stop, I love you, I 

love you." She then heard a loud noise, furniture moving, and 

silence. 

¶70 Finally, even though the jury heard evidence that the 

victim's DNA was found under Thomas's fingernails, the rest of 

Thomas's expert's testimony undercut the importance of that 

fact. When the prosecutor asked Thomas's expert about the DNA 

evidence, he said the presence of the DNA was unsurprising given 

that Thomas and the victim were a couple that lived together. 
No. 2020AP32-CR.rfd

10

Thus, even though it was erroneous to admit the DNA evidence in 

violation of Thomas's Confrontation Clause rights, it is clear 

beyond a reasonable doubt that the error did not contribute to 

the jury's guilty verdict. See id. 

¶71 I am authorized to state that Justices ANN WALSH BRADLEY, REBECCA 

GRASSL BRADLEY, and JILL J. KAROFSKY join this opinion. 
No. 2020AP32-CR.bh

1

¶72 BRIAN HAGEDORN, J. (concurring). A majority of this 

court holds that the testimony of Oscar Thomas's neighbor 

corroborates a significant fact underlying his conviction for 

first-degree sexual assault. I agree and join ¶¶12-24 of 

Justice Roggensack's majority/lead opinion. A majority of the 

court also rejects Thomas's plea for a new trial on the grounds 

that his Sixth Amendment Confrontation Clause rights were 

violated. This alleged error arose when, during crossexamination, the State elicited testimony from a defense expert 

about certain DNA evidence in a crime lab report that was not 

admitted into evidence. During its closing argument, the State 

urged conviction in partial reliance on that DNA evidence. I 

agree with my colleagues that any alleged Confrontation Clause 

violation was harmless. But I do not join their analysis of the 

Confrontation Clause issues for two reasons.

¶73 First, it is unclear how to analyze and categorize the

State's use of the report. In response to Thomas's 

postconviction motion and his appeal, the State argued the DNA 

evidence was used for impeachment purposes. However, in 

briefing and at argument before us, the State asserts, and 

Thomas agrees, that the DNA evidence was admitted for its truth 

during cross-examination. Justice Roggensack's opinion 

concludes that the DNA evidence was properly used to impeach the 

defense expert——relying on the parties' prior arguments. By 

contrast, Justice Dallet's opinion relies on the State's current 

representation, despite the fact that is not how this issue was 

litigated or represented below. This is unusual, to say the 
No. 2020AP32-CR.bh

2

least, and forms a questionable foundation upon which to opine 

on these matters.

¶74 Second, the confrontation issues in this case are 

novel and factually complicated. They center on how to treat a 

report not admitted into evidence that is nonetheless reviewed 

by a testifying defense expert. May the contents of such a 

report be explored on cross-examination by the State? To what 

end? The United States Supreme Court, whose decisions we are 

principally applying in this area of law, has not addressed this 

question. With little guidance from the Supreme Court in this 

still emerging area of law, and because this case is 

sufficiently resolved on harmless error, I would not wade into 

these uncharted waters at this time.

¶75 Rather than forge our own path on the State's use of 

the evidence, or analyze a novel area of federal constitutional 

law where the United States Supreme Court has left much 

unaddressed, I would simply conclude the Confrontation Clause 

errors Thomas alleges, if they are errors at all, were harmless. 

Thomas is not entitled to a new trial and his convictions should 

be affirmed. I respectfully concur.
No. 2020AP32-CR.bh

1