2017 WI 9

SUPREME COURT OF WISCONSIN

CASE NO.: 2015AP158-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Rozerick E. Mattox,

 Defendant-Appellant.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: February 14, 2017

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 26, 2016

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Waukesha

JUDGE: Jennifer Dorow

JUSTICES:

CONCURRED:

DISSENTED: ABRAHAMSON, J., joined by BRADLEY, A. W., J. 

dissent (Opinion filed).

NOT PARTICIPATING: 

ATTORNEYS:

For the defendant-appellant, there was a brief and oral 

argument by Leon W. Todd, assistant state public defender.

For the plaintiff-respondent the cause was argued by Luke 

N. Berg, deputy solicitor general, with whom on the brief was 

Misha Tseytlin, solicitor general and Brad D. Schimel, attorney 

general.
2017 WI 9

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2015AP158-CR

(L.C. No. 2013CF471)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Rozerick E. Mattox,

 Defendant-Appellant.

FILED

FEB 14, 2017

Diane M. Fremgen

Clerk of Supreme Court

APPEAL from a judgment of the Circuit Court for Waukesha 

County, Jennifer Dorow, Judge. Affirmed.

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

certified this case to the court to determine whether the 

admission of a toxicology report through a medical examiner's 

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

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

 

1 The Honorable Jennifer R. Dorow of Waukesha County 

presided.
No. 2015AP158-CR

2

first-degree reckless homicide for delivering heroin that caused 

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

Does it violate a defendant's rights under the 

Confrontation Clause of the Sixth Amendment to the 

United States Constitution for the State to introduce 

at trial a toxicology report identifying certain drugs 

in a deceased victim's system and/or testimony of a 

medical examiner basing his/her cause-of-death opinion 

in part on the information set forth in such a report, 

if the author of the report does not testify and is 

not otherwise made available for examination by the 

defendant?

¶2 The certification explains that two recent court of 

appeals decisions reached opposite conclusions in heroin 

overdose homicide cases involving toxicology reports. See State 

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

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

During the underlying trials in both Heine and VanDyke, the 

toxicology reports were used during testimony by the medical 

examiners who performed the autopsies and relied on the 

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

The lab analyst who signed the toxicology reports did not 

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

report could be used without violating the confrontation right. 

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

 

2 Mattox was convicted under Wis. Stat. § 940.02(2)(a)(2011-

12), which defines first-degree reckless homicide in pertinent 

part as: "Whoever causes the death of another human 

being . . . [b]y manufacture, distribution or delivery, in 

violation of s. 961.41, of a controlled substance . . . if 

another human being uses the controlled substance . . . and dies 

as a result of that use."
No. 2015AP158-CR

3

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

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

examiner's testimony violated the Confrontation Clause under 

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

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

defendant the opportunity to cross-examine the declarant 

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

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

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

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

¶3 We answer the certified question in the negative and 

therefore overrule VanDyke. Admitting this type of toxicology 

report and the medical examiner's related testimony does not 

violate a defendant's confrontation right because the toxicology 

report was not "testimonial" under the primary purpose test 

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

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

statement's primary purpose is something other than to "creat[e] 

an out-of-court substitute for trial testimony" its admission 

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

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

¶4 The primary purpose of the toxicology report in this 

case was to assist the medical examiner in determining the cause 

of death. All objective indicators show the report was not 

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

testified she requested the toxicology analysis as a part of her 

autopsy protocol; (2) the toxicology report was not sworn, 
No. 2015AP158-CR

4

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

numerals quantifying the concentration of substances contained 

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

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

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

was not requested by or reported directly to law enforcement; 

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

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

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

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

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

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

affirm the judgment convicting Mattox.

I. BACKGROUND

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

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

his locked bedroom door. After receiving no response, the 

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

deceased.

¶6 City of Waukesha police and a Waukesha County deputy 

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

over on the bedroom floor with drug paraphernalia on a chair 

nearby. They also found some non-prescription ibuprofen and 

 

3 Mattox does not raise any other ground for possible 

exclusion of the toxicology report; thus, our review is limited 

to whether its admission violated the Confrontation Clause.
No. 2015AP158-CR

5

prescription Clonazepam, a drug used to treat anxiety. 

Waukesha County Deputy Medical Examiner, Nichol Wayd, spoke with 

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

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

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

under the supervision of City of Waukesha Detective Thomas 

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

including multiple syringes (one of which had been used

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

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

analysis.

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

medical examiner for Waukesha County, performed the autopsy on 

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

autopsy protocol included examining the body and collecting and 

sending biological samples to a toxicology lab. The Waukesha 

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

toxicology lab because a board certified toxicologist runs the 

lab and Waukesha County does not have the equipment to conduct 

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

pulmonary edema, cerebral edema, 13 recent needle puncture marks 

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

signs indicating death caused by drug overdose. Dr. Okia 

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

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

these samples to the toxicology lab with the following 

information: (1) S.L.'s name, age, weight, and race; (2) a 
No. 2015AP158-CR

6

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

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

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

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

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

2013.

¶9 The toxicology report, which is attached in the 

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

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

appears next to any substance identified within the sample. As 

pertinent here, the toxicology report indicates the following:

The blood sample contained:

 "0.61 MICROGRAMS/ML" of total morphine; 

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

and

 "0.27 MICROGRAMS/ML" of free morphine. 

The urine sample contained:

 "0.74 MICROGRAMS/ML" of codeine;

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

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

 "0.13 MICROGRAMS/ML" of hydromorphone.

The tissue samples, including the control sample, all contained 

measurable amounts of morphine:

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

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

fat";
No. 2015AP158-CR

7

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

fat";

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

fat"; and 

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

Dr. Christopher Long signed the toxicology report but the report 

was not sworn or certified and does not contain any affidavitlike assertions. The report does not explain the significance 

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

the chemical levels.

¶10 Upon receiving the toxicology report, Dr. Okia 

completed her autopsy report. Although the autopsy report is 

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

because it lists the blood sample morphine quantities from the 

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

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

autopsy report does not indicate any police involvement with the 

autopsy or the toxicology lab. The police were not involved in 

requesting, sending, or receiving the biological samples from or 

to the toxicology lab.

¶11 The City of Waukesha Police investigation into 

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

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

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

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

kin of his death. Dr. Wayd also sent to police her 

investigative report, which is required in all State
No. 2015AP158-CR

8

investigations and routinely produced. The report contains a 

summary of the medical examiner's observations from the scene 

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

regarding his death.

¶12 The independent police investigation resulted in a 

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

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

October 2013 report, that the recently used syringe and metal 

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

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

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

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

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

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

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

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

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

account shortly before meeting with Mattox. Tibbits told police 

he gave $80 of S.L.'s ATM withdrawal to Mattox in exchange for a 

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

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

the rest. The police learned from Tibbits that he regularly 

bought heroin from Mattox, a fact police confirmed when Tibbits 

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

2013. After the controlled buy, police arrested Mattox for 

selling heroin. During police questioning, Mattox admitted he 

sold Tibbits heroin two to three times a week, but claimed he 
No. 2015AP158-CR

9

did not remember whether Tibbits bought heroin from him on 

February 14, 2013.

¶13 The police obtained cell phone records for Tibbits, 

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

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

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

arrested for heroin possession earlier that month, and had a 

court appearance related to that arrest the afternoon of 

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

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

using heroin.

¶14 After being charged in April 2013 with reckless 

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

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

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

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

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

deadly heroin from some other heroin dealer.

¶15 At trial, Dr. Okia explained the autopsy procedure in 

a suspected overdose situation where the cause of death is 

unknown. The procedure requires collecting biological specimens 

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

prosecutor asked Dr. Okia about the toxicology report, Mattox 

objected to its admission on the grounds that it violated his 
No. 2015AP158-CR

10

right to confrontation.4 The circuit court overruled the 

objection, holding that the toxicology report was admissible 

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

opinion testimony and because it was not being admitted for its 

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

limited the admission of the report accordingly.

¶16 Dr. Okia testified that her cause of death 

determination was based on her observations made during the 

autopsy as well as the toxicology results she reviewed. She 

testified:

 0.61 micrograms per milliliters of morphine in the blood 

is a fatal amount; although the toxicology report did not 

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

 Less than 0.05 micrograms per milliliters of 6-

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

specific for heroin; it means the morphine in the blood 

came from heroin and could not have come from any other 

substance.

 

4 Mattox did not object to the admission of the lab reports 

finding the presence of heroin on the drug paraphernalia 

collected from S.L.'s bedroom and finding that the substance 

seized during the March 8, 2013 controlled drug buy was heroin. 

He stipulated to the admission of those Wisconsin State Crime 

Lab reports without requiring the lab analysts to testify at 

trial.

5 All subsequent references to the Wisconsin Statutes are to 

the 2013-14 version unless otherwise indicated.
No. 2015AP158-CR

11

 0.27 micrograms per milliliters of free morphine in the 

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

the toxicology report did not explain this but she knew 

it from her training and experience.

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

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

urine is a contaminant often found in heroin cases because 

codeine is used to manufacture heroin. She further explained, 

however, that substances detected in urine indicate the presence 

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

death because "urine typically concentrates the drugs." She 

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

death.

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

the court of appeals, claiming that admission of the toxicology 

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

violated his right to confrontation. The court of appeals 

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

II. ANALYSIS

A. Standard of Review

¶19 Whether the admission of the toxicology report and the 

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

Sixth Amendment right to confrontation is a question of 

constitutional law subject to independent review. See State v. 

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

¶20 Both the Sixth Amendment to the United States 

Constitution and the Wisconsin Constitution guarantee a criminal 
No. 2015AP158-CR

12

defendant the right to confront witnesses who testify against 

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

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

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

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

B. Precedent

¶21 This case presents an issue of first impression that 

neither this court nor the United States Supreme Court has 

directly addressed. Since the Supreme Court decided Crawford v. 

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

involving the application of the Confrontation Clause to 

forensic lab reports, and neither opinion involved a toxicology 

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

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

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

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

834 N.W.2d 362.

¶22 Griep involved a drunk-driving prosecution where an 

expert witness relied on a blood alcohol lab report certified by 

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

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

 

6 The Sixth Amendment to the United States Constitution 

provides: "In all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with the witnesses 

against him . . . ." Article I, Section 7 of the Wisconsin 

Constitution states: "In all criminal prosecutions the accused 

shall enjoy the right . . . to meet the witnesses face to 

face . . . ."
No. 2015AP158-CR

13

report and testified about the blood alcohol result it reported. 

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

expert merely reviewed the lab report to form an independent 

opinion to which the expert testified. See Griep, 361 

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

whether the report itself was testimonial because the report was 

not admitted into evidence.

¶23 Deadwiller involved a sexual assault prosecution where 

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

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

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

Deadwiller challenged the testimony of the State Crime Lab 

analyst who entered the DNA profile into the DNA database and 

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

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

opinion with facts substantially identical to those in 

Deadwiller, we determined no confrontation violation occurred. 

Deadwiller, 360 Wis. 2d 138, ¶¶1-2. Significantly, the 

defendant in Deadwiller did not contest the very fact supported 

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

rather, the defendant testified that the victims consented. 

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

here.

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

issue presented in this case. Unquestionably, the Court 

substantially changed confrontation jurisprudence when it 

decided Crawford in 2004. See Clark, 135 S. Ct. at 2179. The 
No. 2015AP158-CR

14

Crawford Court overruled the Confrontation Clause test 

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

allowed admission of out-of-court statements exhibiting 

"adequate indicia of reliability" if the statement either fell 

"within a firmly rooted hearsay exception" or bore 

"particularized guarantees of trustworthiness." See Crawford, 

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

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

original meaning and held a defendant's right to confrontation 

is violated if the trial court receives into evidence out-ofcourt statements by someone who does not testify at the trial if 

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

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

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

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

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

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

or at a former trial and . . . police interrogations" because 

these are the types of evidence "at which the Confrontation 

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

"testimonial" required the statement to have some degree of 

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

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

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

statements are not testimonial, the Confrontation Clause is not 

implicated.
No. 2015AP158-CR

15

¶25 Since Crawford, the Supreme Court decided several 

confrontation cases in a variety of contexts and further defined 

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

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

statements "are nontestimonial when made . . . under 

circumstances objectively indicating that the primary purpose of 

the interrogation is to enable police assistance to meet an 

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

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

affidavit-like certifications, which proved the fact in 

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

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

testimony, doing 'precisely what a witness does on direct 

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

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

made by a dying shooting victim were nontestimonial where 

informal nature of police questioning demonstrated officers' 

primary purpose of assessing the situation and responding to 

ongoing emergency); Bullcoming v. New Mexico, 564 U.S. 647, 664-

65 (2011) (treating a lab report regarding defendant's bloodalcohol content as testimonial because, despite the absence of 

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

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

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

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

Ct. 2221, 2243 (2012) (plurality opinion) (concluding that DNA 

profile generated from sexual assault victim's vaginal swabs was 
No. 2015AP158-CR

16

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

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

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

child abuse victim's statements to teacher were not testimonial 

because the informal questions at a school were asked with a 

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

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

for . . . prosecution").

C. Application

¶26 Three of these Supreme Court cases discussed the 

Confrontation Clause within the context of forensic lab reports: 

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

cocaine drug dealing where the challenged evidence comprised 

"affidavits reporting the results of forensic analysis which 

showed that material seized by the police and connected to the 

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

Bullcoming involved a drunk-driving arrest where the forensic 

lab report was created at the request of and for the "aid of a 

police investigation," "solely for an 'evidentiary purpose.'" 

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

U.S. at 311). The lab report certified Bullcoming's bloodalcohol concentration, the chain of custody of the blood sample, 

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

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

both lab reports were testimonial and their admission, without 

the opportunity to cross-examine the authors, violated the 
No. 2015AP158-CR

17

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

Bullcoming, 564 U.S at 663-65.

¶27 Melendez-Diaz and Bullcoming do not control here 

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

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

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

Bullcoming were requested by police following the seizure of 

evidence from a criminal suspect, and the lab reports were 

specifically created for use against the suspects in criminal 

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

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

and Bullcoming reports satisfied the formality factor because 

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

functional equivalent of trial testimony——significantly, about 

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

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

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

court affidavits." Melendez-Diaz, 557 U.S. at 329.

¶28 Here, the medical examiner took biological samples 

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

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

was not suspected of committing a crime when the samples were 

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

solicited for the purpose of generating evidence against Mattox. 

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

there was no defendant against whom to generate evidence because 

there was no known crime. The medical examiner was simply 
No. 2015AP158-CR

18

looking for information to determine the cause of death and 

submitted the biological samples to the toxicology lab pursuant 

to autopsy protocols. The police were not involved in sending 

the samples to the lab or generating evidence against a 

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

of any suggestion that the medical examiner was working as an 

agent of the police in an active criminal investigation to 

develop evidence for use in a criminal prosecution.

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

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

biological samples sent for testing. The numbers in the report 

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

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

a witness against Mattox and was not offering testimony with the 

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

killed him. The toxicology report does not even contain the 

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

anything. Based on these significant differences, Melendez-Diaz

and Bullcoming are easily distinguishable.

¶30 Williams is the third Supreme Court case addressing 

confrontation rights where a forensic lab report was used at 

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

Williams case involved a sexual assault where the defendant 

claimed that use of a DNA profile violated his confrontation 

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

plurality concluded the DNA report was not testimonial because 

it had been prepared not "for the primary purpose of accusing a 
No. 2015AP158-CR

19

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

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

precedential value except in a case with substantially similar 

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

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

specifically discuss the Confrontation Clause within the context 

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

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

autopsy protocol in a drug overdose death——constitutes testimony 

in a homicide prosecution against the dealer who supplied the 

heroin responsible for the fatal overdose.

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

Although Clark did not involve a toxicology report prepared as a 

part of an autopsy, it pronounces the controlling principles in 

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

and therefore subject to the Confrontation Clause. Clark

reaffirms the primary purpose test: the dispositive "question 

is whether, in light of all the circumstances, viewed 

objectively, the 'primary purpose' of the [out-of-court 

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

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

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

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

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

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

evidence for [the defendant's] prosecution." Id. at 2181. 

Clark instructs that some factors relevant in the primary 
No. 2015AP158-CR

20

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

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

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

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

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

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

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

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

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

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

in suspected overdose cases, she collects biological specimens 

and sends them to the toxicology lab for testing to determine 

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

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

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

primary purpose of the toxicology report here was to provide 

information to the medical examiner as part of the autopsy 

protocol, not to establish certain toxicology levels in order to 

prove an element of a criminal charge. Indeed, no charges were 

pending or contemplated against Mattox at the time the medical 

examiner requested this toxicology report. Because the 

toxicology report was not intended to substitute for testimony 

 

7 This factor, though pertinent in Ohio v. Clark, 135 S. Ct. 

2173, 2181 (2015), is not applicable here and will not be 

discussed.
No. 2015AP158-CR

21

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

clearly is not testimonial.

¶34 Another factor to consider in making the primary 

purpose determination is the "informality of the situation." 

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

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

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

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

whether the statements at issue were given to law enforcement 

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

Clark stopped short of adopting a "categorical rule" that 

statements to non-law enforcement individuals will never 

implicate the Confrontation Clause, but the Court held that 

statements to persons other than law enforcement officers were 

"much less likely to be testimonial than statements to law 

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

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

making it much less likely to be testimonial. Although the 

toxicology report is "formal" in the sense that it is 

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

imply a testimonial purpose in a way that traditionally formal 

attestations, such as notarization or certification, might.

¶35 The facts in the record provide additional context, 

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

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

The declarant created the report at the request of the medical 

examiner, not the police, to provide the medical examiner with 
No. 2015AP158-CR

22

the numerical concentration of substances, if any, present in 

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

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

to help the police produce evidence for a criminal prosecution. 

Nothing in the record suggests the declarant knew that the 

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

death or that the police would eventually conclude that a crime

occurred. To the contrary, the information provided to the 

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

would prompt a homicide prosecution or that police were involved 

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

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

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

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

discretion to conduct an autopsy "for the purpose of inquiring 

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

circumstances" accompanying the death, see also Scarpaci v. 

Milwaukee Cty., 96 Wis. 2d 663, 684, 292 N.W.2d 816 (1980), and, 

as the State points out, homicides account for "less than one 

percent" of the 1300 deaths the Waukesha County Medical 

Examiner's Office investigates each year.

¶36 Context shows the primary purpose of the toxicology 

report was to provide the medical examiner with the results of 

tests performed on the biological specimens of an individual who 

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

criminal investigation or to prove an element of a later-charged 

crime; it was not created as a substitute for out-of-court 
No. 2015AP158-CR

23

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

any fact conveyed by the toxicology report, instead basing his 

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

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

foundation for a medical examiner's cause of death 

determination——a report lacking any accusation or basis therefor 

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

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

68.

¶37 Applying all the pertinent Clark factors in this case 

results in a single conclusion: the toxicology report in this 

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

identify the concentration of the tested substances in 

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

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

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

against Mattox for prosecution. Use of this toxicology report 

during trial did not infringe Mattox's confrontation right.

D. General Declaration on Autopsies and Toxicology Reports

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

admitting autopsy reports and any underlying toxicology reports 

will not violate a defendant's confrontation right because these 

types of reports do not generate testimonial evidence. The 

State asserts this is so because the primary purpose of 

autopsies is to determine cause of death and not to generate 

evidence against a criminal defendant. Although the Supreme 

Court has not declared this to be the law, the State cites a 
No. 2015AP158-CR

24

variety of court decisions supporting its proposition. See

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

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

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

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

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

the primary purpose of accusing a targeted individual" or for 

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

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

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

primary purpose of documenting cause of death for public records 

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

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

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

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

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

occurred only under special circumstances, such as when law 

enforcement is physically present at the autopsy or leans 

heavily on the medical examiner to produce reports favoring 

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

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

autopsy report testimonial where police "observed the autopsies" 

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

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

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

¶39 We decline the State's request. The medical examiner 

who performed the autopsy in this case testified at trial, 
No. 2015AP158-CR

25

eliminating any confrontation argument with respect to the 

autopsy report itself. A declaration on autopsies is not 

presented under the circumstances in this case.

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

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

unilaterally and not in conjunction with law enforcement——

requests a toxicology report while performing an autopsy to 

determine the cause of death, admitting the toxicology report 

generally will not violate the Confrontation Clause when the 

toxicology report contains solely a numerical account of the 

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

and tissue. The primary purpose of toxicology reports generated 

and used under circumstances similar to those presented in this 

case is not to generate evidence against a defendant in a 

criminal prosecution but to assist the medical examiner in 

determining the cause of death. Because admission of this type 

of toxicology report bears no "resemblance to the historical 

practices that the Confrontation Clause aimed to eliminate,"8

such reports generally will not be "testimonial" and therefore 

will not trigger confrontation concerns.

III. CONCLUSION

¶41 This case presented an issue of first impression: 

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

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

 

8

Michigan v. Bryant, 562 U.S. 344, 379 (2011) (Thomas, J., 

concurring in the judgment).
No. 2015AP158-CR

26

overdose death constitutes testimonial evidence in the resulting 

homicide prosecution against the drug dealer who supplied the 

heroin responsible for the fatal overdose. Guided by the 

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

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

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

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

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

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

the court of appeals erroneously held a substantially similar 

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

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

reports, absent special circumstances, to be non-testimonial 

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

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

identifying the concentration of substances present in 

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

autopsy protocol——are generally non-testimonial when requested 

by a medical examiner and not at the impetus of law enforcement. 

The primary purpose of these toxicology reports is not to create 

evidence against a defendant in a criminal prosecution; rather, 

the principal purpose is to provide information to the medical 

examiner searching for the cause of death. Because there was 

nothing "testimonial" about the toxicology report used during 

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

not infringed.
No. 2015AP158-CR

27

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

affirmed.
No. 2015AP158-CR

28

APPENDIX
No. 2015AP158-CR

29
No. 2015AP158-CR

30
No. 2015AP158-CR.ssa

1

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

courts across the state frequently address the question 

presented in the instant case: "How does the Confrontation 

Clause apply to the panoply of crime laboratory reports and 

underlying technical statements written by (or otherwise made 

by) laboratory technicians?"1 

¶44 This question lies at the intersection of the 

Confrontation Clause and the rules of evidence. Answering the 

question requires the application of the Confrontation Clause to 

numerous types of laboratory reports and witnesses testifying 

about or relying on reports they did not produce.2

¶45 "Testimonial statements of witnesses absent from 

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

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

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

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

confrontation law. 

¶46 Since Crawford, the United State Supreme Court has 

progressively defined whether out-of-court statements of 

different types and in different contexts are testimonial. Some 

might say that the United States Supreme Court cases defining 

testimonial are in disarray, and this disarray is reflected in 

opinions being rendered across the country.

 

1 State v. Deadwiller, 2013 WI 75, ¶47, 350 Wis. 2d 138, 834 

N.W.2d 362 (Abrahamson, C.J., concurring).

2 Deadwiller, 350 Wis. 2d 138, ¶51 (Abrahamson, C.J., 

concurring).
No. 2015AP158-CR.ssa

2

¶47 The instant case involves an autopsy report and a 

toxicology report. The autopsy report was admitted in evidence. 

The medical examiner who produced the report testified and was 

subject to examination and cross-examination about the autopsy 

report. The admission of the autopsy report in evidence does 

not present a confrontation issue.

¶48 By contrast, the toxicology report was admitted into 

evidence by the circuit court, which stated that the toxicology 

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

issue in this particular case in terms of what substance was 

delivered." The toxicology report was prepared at the request 

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

laboratory. No witness testified about the preparation of the 

toxicology report. The medical examiner referred to the 

toxicology report in her testimony about the autopsy and her 

opinion about the cause of death.3

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

the court of appeals, and the majority opinion apparently are 

inconsistent in how they characterize the admission of the 

toxicology report in evidence. Although the majority opinion 

mentions that the circuit court did not admit the toxicology 

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

 

3 See Williams v. Illinois, 132 S. Ct. 2221 (2012) 

(plurality opinion) (No Sixth Amendment violation exists when 

"[a]n expert witness referred to the report not to prove the 

truth of the matter asserted in the report, i.e., that the 

report contained an accurate profile of the perpetrator's DNA, 

but only to establish that the report contained a DNA profile 

that matched the DNA profile deduced from petitioner's blood.").
No. 2015AP158-CR.ssa

3

not clear in how it treats the admission of the toxicology 

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

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

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

admission of the toxicology report and the medical examiner's 

testimony based upon it violates Mattox's Sixth Amendment right 

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

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

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

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

adopts a primary purpose test for determining whether the 

toxicology report, a forensic report, is testimonial under the 

confrontation clause.

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

internal citations omitted) asserts that it takes its

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

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

[T]he dispositive "question is whether, in light of 

all the circumstances, viewed objectively, the 

"primary purpose" of the [out-of-court statement] was 

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

testimony." . . . The primary purpose test decides 

whether the declarant is acting as a witness against 

the defendant . . . by considering whether the primary 

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

evidence for [the defendant's] prosecution."4

 

4 Ohio v. Clark, 135 S. Ct. 2173 (2015), involves a 

traditional out-of-court declarant's statement. It does not 

address forensic reports. 

(continued)
No. 2015AP158-CR.ssa

4

¶52 The majority opinion's approach presents two 

difficulties, however——difficulties the majority opinion masks. 

• Although the majority opinion states that Clark

"pronounces the controlling principles in determining 

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

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

Clark's primary purpose test is not fully faithful to 

Clark. The majority opinion, without explanation, 

cherry-picks what might be characterized as the 

narrowest formulation of Clark's primary purpose test 

and severely limits the definition of "testimonial" 

for purposes of the confrontation clause.

 

In Clark, the United States Supreme Court held that a 

child's statement to her teacher, which asserted that her 

mother's boyfriend was abusing her, was nontestimonial. The 

statement was nontestimonial because the child was too young to 

have the primary purpose to accuse the defendant and made the 

statements in the context of an ongoing emergency (his mother's 

boyfriend's abuse). Clark, 135 S. Ct. at 2184 (Scalia, J., 

concurring).

Justice Scalia, who wrote Crawford v. Washington, 541 U.S. 

36 (2004), beginning a new era in confrontation law, concurred 

in Clark, declaring that the majority in the United States 

Supreme Court is "shoveling fresh dirt upon the Sixth Amendment 

right of confrontation so recently rescued from the grave in 

Crawford v. Washington . . . ." Clark, 135 S. Ct. at 2184 

(2015) (Scalia, J., concurring).

The majority opinion also gleans from the Clark opinion the 

following factors relevant in the primary purpose analysis: 

"(1) The formality/informality of the situation producing the 

out-of-court statement; (2) whether the statement is given to 

law enforcement or a non-law enforcement individual; (3) the age 

of the declarant and (4) the context in which the statement was 

given." Majority op., ¶32 (footnote omitted).
No. 2015AP158-CR.ssa

5

• Although all nine justices of the United States 

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

defining "testimonial") agree that whether an out of 

court statement is testimonial depends (at least to an 

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

statement, the United States Supreme Court justices 

have not uniformly or consistently formulated the 

primary purpose test. Different primary purpose tests 

are set forth by different justices in different 

contexts. Slight differences in the formulation of 

the primary purpose test can lead a court to a 

different conclusion regarding the testimonial nature 

of out-of-court statements. 

¶53 The majority opinion is not fully faithful to Clark

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

Clark derives from confrontation cases. Clark declares that 

"[statements] are testimonial when the circumstances objectively 

indicate . . . that the primary purpose of the interrogation is 

to establish or prove past events potentially relevant to later 

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

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

formulation of the primary purpose test as the "potentially 

relevant" test.

¶54 The United States Supreme Court cases demonstrate that 

the justices are not necessarily in agreement about the 

formulation of the primary purpose test. I therefore examine 

the Court's confrontation cases to set forth the various 
No. 2015AP158-CR.ssa

6

formulations of the primary purpose test, including the 

"potentially relevant" test.

¶55 I begin with the Crawford case, the seminal 

confrontation clause case.5 

¶56 Although Crawford did not conclusively define 

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

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

have influenced later formulations of the primary purpose test: 

[E]x parte in-court testimony or its functional 

equivalent——that is, . . . pretrial statements that 

declarants would reasonably expect to be used 

prosecutorially. 

Crawford, 541 U.S. at 51 (quoting Brief for Petitioner Michael 

Crawford).

[E]xtrajudicial statements . . . contained in 

formalized testimonial materials, such as affidavits, 

depositions, prior testimony, or confessions.

Crawford, 541 U.S. at 51 (quoting White v. Illinois, 502 U.S. 

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

judgment).

[S]tatements that were made under circumstances which 

would lead an objective witness reasonably to believe 

that the statement would be available for use at a 

later trial. 

 

5 Crawford v. Washington, 541 U.S. 36 (2004), involved an 

assault and attempted murder case. At trial, the State 

introduced an incriminating recorded statement made by the 

defendant's wife (she did not testify because of marital 

privilege). The Court held that the State's use of the recorded 

statement violated the Confrontation Clause.
No. 2015AP158-CR.ssa

7

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

National Association of Criminal Defense Lawyers).6 

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

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

follows:

[Statements] are testimonial when the circumstances 

objectively indicate . . . that the primary purpose of 

the interrogation is to establish or prove past events 

potentially relevant to later criminal prosecution.

Davis, 547 U.S. at 822. 

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

primary purpose inquiry was described using Justice Scalia's 

"potentially relevant" formulation of the primary purpose test 

as follows:

[Statements] are testimonial when the circumstances 

objectively indicate that . . . the primary 

 

6 See State v. Manuel, 2005 WI 75, ¶37, 281 Wis. 2d 554, 697 

N.W.2d 811 (stating these three formulations).

7 Davis v. Washington, 547 U.S. 813, 822 (2006), involved 

two cases consolidated on appeal. Each involved out-of-court 

statements made by domestic abuse victims and then used at 

trial. One case (Davis v. Washington) held nontestimonial a 

domestic abuse victim's statements made to a 911 operator during 

an altercation with her boyfriend. The second case (Hammon v. 

Indiana) held testimonial an affidavit written by a domestic 

abuse victim with the assistance of law enforcement. 

8 Michigan v. Bryant, 562 U.S. 344, involved a statement 

made to law enforcement by a shooting victim lying mortally 

wounded in a parking lot. The victim died shortly thereafter, 

but his statement was later used at trial; the petitioner was 

convicted of second-degree murder at trial. The Court held that 

the statement identifying, describing, and locating the shooter 

were not testimonial statements because they had a "primary 

purpose . . . to enable police assistance to meet an ongoing 

emergency." Bryant, 562 U.S. at 349. 
No. 2015AP158-CR.ssa

8

purpose . . . is to establish or prove past events 

potentially relevant to later criminal prosecution. 

Bryant, 562 U.S. at 356 (quoting Davis, 547 U.S. at 822). 

Justice Sotomayor, writing for the majority in Bryant, stated 

the test as follows: 

When, as in Davis, the primary purpose of an 

interrogation is to respond to an "ongoing emergency,"

its purpose is not to create a record for trial and 

thus is not within the scope of the Clause. But there 

may be other circumstances, aside from ongoing 

emergencies, when a statement is not procured with a 

primary purpose of creating an out-of-court substitute 

for trial testimony.

Bryant, 562 U.S. at 358.

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

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

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

the primary purpose test as follows:

[Statements are testimonial when] "made under 

circumstances which would lead an objective witness 

reasonably to believe that the statement would be 

available for use at a later trial." 

Melendez-Diaz, 557 U.S. at 311 (quoting Crawford, 541 U.S. at 

52).

 

9 In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 

(2009), the trial court admitted certificates of state crime 

laboratory analysis that concluded that the drugs seized were 

cocaine. The Court held that admission of these certificates 

without in-person testimony by the analyst violated the 

defendant's confrontation right. 
No. 2015AP158-CR.ssa

9

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

another case involving a forensic report, the primary purpose 

inquiry was described in "potentially relevant" terms as 

follows: 

To rank as "testimonial," a statement must have a 

"primary purpose" of "establish[ing] or prov[ing] past 

events potentially relevant to later criminal 

prosecution."

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

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

primary purpose test as follows: 

 

10 Bullcoming v. New Mexico, 564 U.S. 647 (2011), involved a 

forensic laboratory report certifying that the defendant had a 

blood-alcohol concentration that was above the legal limit. The 

analyst who prepared the report was on unpaid leave, so the 

State attempted to use the testimony of another analyst to 

validate the report. Over the petitioner's objection, the trial 

court admitted the report into evidence. The Court held that 

admitting this report violated the defendant's confrontation 

rights because the preparing analyst did not testify. 

11 The Bullcoming court explicitly rejected the argument 

that the report of the forensic lab analyst is nontestimonial 

because the analysts are "mere scriveners" who transcribe 

results from machines but do not interpret or exercise 

independent judgment. Bullcoming, 564 U.S. at 659. Instead, 

Justice Ginsburg explained: 

[The analyst] certified [in the report] that he 

received Bullcoming's blood sample intact with the 

seal unbroken, that he checked to make sure that the 

forensic report number and the sample number 

"correspond[ed]," and that he performed on 

Bullcoming's sample a particular test, adhering to a 

precise protocol. He further represented, by leaving 

the "[r]emarks" section of the report blank, that no 

"circumstance or condition. . . affect[ed] the 

integrity of the sample or . . . the validity of the 

analysis." These representations, relating to past 

events and human actions not revealed in raw, machineproduced data, are meet for cross-examination.

(continued)
No. 2015AP158-CR.ssa

10

To determine if a statement is testimonial, we must 

decide whether it has "a primary purpose of creating 

an out-of-court substitute for trial testimony." 

Bullcoming, 564 U.S. at 669 (Sotomayor, J., concurring) (quoting 

Bryant, 562 U.S. at 357).

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

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

purpose was described as follows:

In identifying the primary purpose of an out-of-court 

statement, we apply an objective test. We look for 

the primary purpose that a reasonable person would 

have ascribed to the statement, taking into account 

all of the surrounding circumstances.

. . . .

Here, the primary purpose of the . . . report, viewed 

objectively, was not to accuse petitioner or to create 

evidence for use at trial.

Williams, 132 S. Ct. at 2243. 

¶62 The dissent in Williams criticized this formulation of 

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

 

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

The Court also noted that "the comparative reliability of 

an analyst's testimonial report drawn from machine-produced data 

does not overcome the Sixth Amendment bar." Bullcoming, 564 

U.S. at 661 (2011).

Finally, the Bullcoming Court reiterated that the Sixth 

Amendment confrontation right could not be diminished for the 

sake of administrative or prosecutorial convenience.

12 Williams v. Illinois, 132 S. Ct. 2221 (2012), involved a 

bench trial for rape. A forensic specialist testified that a 

sample of petitioner's blood matched a DNA profile collected 

through a vaginal swab and analyzed by an independent 

laboratory. 
No. 2015AP158-CR.ssa

11

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

Justice Kagan wrote that no case has ever suggested that the 

statement must be meant to accuse a previously identified 

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

dissenting). Justice Kagan reiterated that the primary purpose 

test using the "potentially relevant" standard is proper as 

follows: 

We have previously asked whether a statement was made 

for the primary purpose of establishing "past events 

potentially relevant to later criminal prosecution"——

in other words, for the purpose of providing 

evidence. . . . None of our cases has ever suggested 

that, in addition, the statement must be meant to 

accuse a previously identified individual . . . . 

Williams, 132 S. Ct. at 2273-74 (Kagan, J., dissenting) (quoting 

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

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

310-11; Crawford, 541 U.S. at 51–52)

¶63 These several formulations of the primary purpose test 

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

not adopted a single, definitive formulation of the primary 

purpose test. 

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

prevalent in the Court's cases,13 and is helpful in the instant 

 

13 See People v. Lopez, 286 P.3d 469, 490 (Cal. 2012) (Liu, 

J., dissenting) (the "potentially relevant" formulation of the 

primary purpose test is the "most faithful to the high court's 

authoritative pronouncements in prior cases going back to 

Crawford.").

For a discussion of hearsay, constitutional confrontation, 

and due process, see 2 McCormick on Evidence § 252 (Kenneth S. 

Broun ed., 7th ed. 2013 & Supp. 2016).
No. 2015AP158-CR.ssa

12

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

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

potentially relevant to later criminal prosecution." 

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

822.

¶65 In applying the various formulations of the primary 

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

United States Supreme Court cases involving forensic reports: 

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

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

132 S. Ct. 2221 (2012).

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

States Supreme Court concluded that the forensic reports were 

testimonial and did bear a resemblance to the historical 

practices that the confrontation clause aims to eliminate. The 

third case did not produce a majority opinion and has been 

subject to a variety of interpretations, but may hold no 

precedential value except in cases with identical facts. See

majority op., ¶30 (explaining the limited precedential value of 

Williams v. Illinois). 

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

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

three prior Supreme Court cases involving the confrontation 

clause and forensic reports.14 The majority opinion's 

 

14 The three United States Supreme Court forensic report 

cases, however, are lost along the way as Clark does not cite 

Bullcoming, Melendez-Diaz, or Williams and does not address 

forensic reports.
No. 2015AP158-CR.ssa

13

application of the primary purpose test fails to consider the 

guidance that these prior three cases dealing with forensic 

reports offer. 

¶68 The "potentially relevant" test was used in 

Bullcoming, which involves a forensic report, as does the 

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

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

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

(holding testimonial an analyst's report that substance was 

cocaine). 

¶69 With little success, the majority opinion attempts to 

distinguish Melendez-Diaz and Bullcoming because the toxicology 

report in the instant case "lists the concentrations of the 

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

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

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

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

scrivener" argument already rejected in Bullcoming. The 

Bullcoming court explicitly rejected the argument that forensic 

lab analysts' reports are nontestimonial because the analysts 

are "mere scriveners" who transcribe results from machines but 

do not interpret or exercise independent judgment. Bullcoming, 

564 U.S. at 659.15 

 

15 Justice Ginsburg explained: 

[The analyst] certified [in the report] that he 

received Bullcoming's blood sample intact with the 

seal unbroken, that he checked to make sure that the 

forensic report number and the sample number 

(continued)
No. 2015AP158-CR.ssa

14

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

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

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

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

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

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

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

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

insofar as the report was prepared outside of the circuit court 

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

toxicology report as evidence against the defendant, he had the 

right to test the reliability of the report through crossexamination. 

¶72 Furthermore, the "potentially relevant" formulation of 

primary purpose seems to fit the circumstances of the instant 

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

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

 

"correspond[ed]," and that he performed on 

Bullcoming's sample a particular test, adhering to a 

precise protocol. He further represented, by leaving 

the "[r]emarks" section of the report blank, that no 

"circumstance or condition . . . affect[ed] the 

integrity of the sample or . . . the validity of the 

analysis." These representations, relating to past 

events and human actions not revealed in raw, machineproduced data, are meet for cross-examination.

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

The Court also noted that "the comparative reliability of 

an analyst's testimonial report drawn from machine-produced data 

does not overcome the Sixth Amendment bar." Bullcoming, 564 

U.S. at 661.
No. 2015AP158-CR.ssa

15

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

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

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

¶73 The majority opinion does not explain why it ignores 

the "potentially relevant" formulation of the primary purpose 

test and how the "potentially relevant" formulation would apply 

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

primary purpose test that limits "testimonial" to those 

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

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

the defendant." The majority opinion looks to whether the 

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

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

(emphasis added).16 

 

16 Although the majority says that Clark "pronounces the 

controlling principles in determining whether an out-of-court 

statement is 'testimonial,'" majority op., ¶32, the majority's 

restatement of the primarily purpose test is not fully faithful 

to Clark. Clark actually uses the language "the primary purpose 

of the interrogation is to establish or prove past events 

potentially relevant to later criminal prosecution." Clark, 135 

S. Ct. at 2180 (emphasis added). 

Because Clark uses "potentially relevant," I do the same. 

The majority's language, "to create an out-of-court substitute 

for trial testimony," implies a higher Sixth Amendment bar. 
No. 2015AP158-CR.ssa

16

¶74 The question is whether this formulation of the 

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

confrontation cases. It does not.17

¶75 The majority opinion should refocus its inquiry to 

include as a primary purpose whether the toxicology report had a 

primary purpose of establishing "past events potentially 

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

822. 

¶76 Applying the "potentially relevant" formulation in the 

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

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

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

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

¶77 When the Waukesha Medical Examiner's Office requested 

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

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

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

prosecution. While external signs at the scene of the death, as 

well as those discovered during the autopsy, suggested an 

overdose, the toxicology report was needed to determine what 

type of drug caused the overdose. When the circumstances 

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

 

17 "None of our cases has ever suggested that, in addition, 

the statement must be meant to accuse a previously identified 

individual; indeed, in Melendez–Diaz, we rejected a related 

argument that laboratory 'analysts are not subject to 

confrontation because they are not "accusatory" witnesses.'" 

Williams, 132 S. Ct. at 2274 (Kagan, J., dissenting) (quoting 

Melendez-Diaz, 557 U.S. at 313. 
No. 2015AP158-CR.ssa

17

the toxicology report was arguably to "establish or prove past 

events potentially relevant to later criminal prosecution." 

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

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

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

that fact was "potentially relevant to later criminal 

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

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

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

relevant to a later criminal prosecution. 

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

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

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

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

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

briefed by law enforcement before investigating the death. Wayd 

also had to wait for a detective to arrive before touching 

anything at the scene of the death. At trial, the prosecutor 

asked about what Wayd does with death-related evidence when she 

investigates a death. Wayd responded: 

 

18 Nichol Wayd was a "deputy medical examiner/investigator 

for the Waukesha County Medical Examiner's Office." She 

testified at Mattox's trial. Part of her testimony involved her 

qualifications and her qualification as an expert "in the field 

of crime scene investigations" (emphasis added). Significantly, 

she has special training "in the area of crime scene 

investigations involving drug overdoses" and is a "diplomate" of 

and member of "the American Board of Medicolegal Death 

Investigators." In addition to testifying at trial, Wayd 

prepared an "Investigative Report" that was admitted at trial. 
No. 2015AP158-CR.ssa

18

It depends on the circumstances. In this 

circumstance, I was asked to wait for the detectives 

to arrive before I touched anything that could 

potentially need to be preserved, so in this 

situation, I did not touch any evidence in the room or 

even in the residence for that matter, so I stood by, 

waited for the detectives to arrive . . . . 

Once the detective arrived, the detective and the deputy medical 

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

examiner did a preliminary examination of the body before 

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

detective's presence indicates that law enforcement were 

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

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

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

presumably have reviewed the deputy medical examiner's 

"Investigative Report" or another document to apprise herself of 

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

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

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

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

¶81 By her examination of the body (and review of the 

report's discussion of the evidence obtained in S.L.'s room, 

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

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

charge against the deliverer of a controlled substance. Wis. 

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

toxicology report, her primary purpose was to determine whether 

an illegal drug caused an overdose. 
No. 2015AP158-CR.ssa

19

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

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

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

to the prosecution's charge against Mattox: homicide by 

distribution of a controlled substance. Dr. Okia testified that 

the signs of overdose discovered through her examination were 

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

overdose. 

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

"prepared in connection with a criminal investigation or 

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

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

¶84 It bears repeating that law enforcement and the 

Waukesha Medical Examiner's Office worked together from the 

beginning. 

¶85 The close legal relationship between medical 

examiners, law enforcement, and district attorneys in Wisconsin 

also evidences a testimonial purpose. 

¶86 In Wisconsin, medical examiners work in close 

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

when investigating deaths and their duties overlap with those of 

law enforcement. By statute, police must immediately notify the 

medical examiner when a death occurs under a variety of 
No. 2015AP158-CR.ssa

20

circumstances, including suspected homicides or other suspicious 

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

¶87 Furthermore, the resulting toxicology report helped to 

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

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

Ct. at 2179. 

 

19 Medical examiners (or district attorneys) may order 

autopsies "in cases where an inquest might be had as provided in

s. 979.04 . . . ." Wis. Stat. § 979.02. Inquests may be 

ordered if 

there is reason to believe from the circumstances 

surrounding the death that felony murder, first−degree 

or 2nd−degree intentional homicide, first−degree or 

2nd−degree reckless homicide, homicide by negligent 

handling of dangerous weapon, explosives or fire, 

homicide by negligent operation of vehicle, homicide 

resulting from negligent control of a vicious animal

or homicide by intoxicated user of a vehicle or 

firearm may have been committed, or that death may 

have been due to suicide or unexplained or suspicious 

circumstances . . . . 

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

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

2015):

[A] medical examiner acts outside his jurisdiction 

when he orders or conducts an autopsy either without 

having made a subjective determination that there is 

any reason to believe that any of the statutory 

circumstances justifying an autopsy exists or having 

made a subjective determination that there is no 

reason to believe that any of the statutory 

circumstances justifying an autopsy exists.

Olejnik, 147 F. Supp. 3d at 775 (quoting Scarpaci v. Milwaukee 

Cty., 96 Wis. 2d 663, 292 N.W.2d 816 (1980)).
No. 2015AP158-CR.ssa

21

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

purpose to additional factors set forth in Clark that 

demonstrate that the toxicology report is nontestimonial. See

majority op., ¶¶32, 35-37. 

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

statement's context and formality, including whether the 

statement was given to law enforcement. Because I have already 

discussed context as part of my application of the primary 

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

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

report. 

¶90 Although the majority tries to downplay the formality 

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

report's formality is functionally equivalent to that of the 

forensic report in Bullcoming. 

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

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

some fact' in a criminal proceeding." Williams, 132 S. Ct. at 

2266 (Kagan, J., dissenting) (discussing Bullcoming). And like 

the report in Bullcoming, the toxicology report's formal 

certification is limited to a signature by the analyst on a 

formal document entitled "St. Louis University Toxicology 

Laboratory Report." Although Waukesha County did not have to 

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

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

a right to confront someone who helped produce the toxicology 

report or could give an independent opinion of the report.
No. 2015AP158-CR.ssa

22

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

important indicium of formality because it certifies a constant 

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

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

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

assertions contained in the report regarding levels of toxicity 

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

564 U.S. at 661-62. 

¶93 I conclude that the majority opinion erroneously 

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

toxicology report in circumstances indicating that the autopsy 

she was conducting might be potentially relevant to a later 

criminal prosecution. Indeed, she ordered the toxicology report 

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

examiners in Wis. Stat. § 979.04(2). 

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

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

used to prove a fact at trial, but no one was able to testify 

about the processes used at the testing facility. 

¶95 The majority opinion's flawed application of the 

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

where courts may find a "logical stopping place between 

requiring the prosecution to call as a witness one of the 

laboratory experts who worked on the matter and requiring the 

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

Williams, 132 S. Ct. at 2246, 2248 (Breyer, J., concurring). 
No. 2015AP158-CR.ssa

23

¶96 Moreover, the majority opinion goes further than 

applying the primary purpose test and other factors to the facts 

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

reports ordered in circumstances similar to those presented in 

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

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

The primary purpose test is necessarily fact-specific. The 

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

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

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

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

respect these differences. 

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

believe a broad definition of testimonial is required to 

guarantee that the right to confrontation is preserved," State 

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

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

definition of "nontestimonial." 

¶99 The demands of the Confrontation Clause were not 

satisfied in the instant case. No witness was available for 

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

toxicology report was produced or could give his or her 

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

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

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

¶100 For these reasons, I respectfully dissent. 
No. 2015AP158-CR.ssa

24

¶101 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this dissenting opinion.
No. 2015AP158-CR.ssa

1