State v. Manuel Garcia

2020 WI App 71

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2018AP2319-CR

†Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,†

V.

MANUEL GARCIA,

DEFENDANT-APPELLANT.

Opinion Filed: October 7, 2020
Submitted on Briefs: January 22, 2020
Oral Argument:

JUDGES: Neubauer, C.J., Reilly, P.J., and Gundrum, J.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
brief of Russell D. Bohach of Russell D. Bohach Attorney at Law,
Wauwatosa and the supplemental brief of Sean Bosack and Emma Jewell
of Godfrey & Kahn, S.C., Milwaukee.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief and the supplemental brief of John A. Blimling, assistant attorney
general, and Joshua L. Kaul, attorney general.
2020 WI App 71

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 7, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP2319-CR Cir. Ct. No. 2010CF365

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MANUEL GARCIA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Racine
County: MICHAEL J. PIONTEK, Judge. Reversed and cause remanded.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

¶1 REILLY, P.J. The issue presented is clear and straightforward: may
the State invoke the impeachment exception to the exclusionary rule during the
State’s case-in-chief to “rehabilitate” one of its witnesses? We conclude that under
Harris v. New York, 401 U.S. 222 (1971), James v. Illinois, 493 U.S. 307 (1990),
No. 2018AP2319-CR

and their progeny, the State may not utilize a defendant’s voluntary statement, taken
in violation of Miranda v. Arizona, 384 U.S. 436 (1966),1 during its case-in-chief.
We reverse as the impeachment exception applies only to the specific circumstance
where a defendant testifies contrary to statements he or she made within an
inadmissible statement.

FACTS

¶2 Manuel Garcia appeals from a judgment convicting him of first-
degree reckless homicide and an order denying his postconviction motion. Garcia
was charged with and found guilty by a jury of first-degree reckless homicide in the
death of his girlfriend’s two-year-old son who died of “blunt trauma to the

1
“[O]ur constitutional protection against self-incrimination is called to duty whenever the
State interrogates a suspect in police custody” and “is one of the nation’s ‘most cherished
principles.’” State v. Harris, 2017 WI 31, ¶¶11-12, 374 Wis. 2d 271, 892 N.W.2d 663 (citing
Miranda v. Arizona, 384 U.S. 436, 458, 478-79 (1966)). While in police custody and prior to
conducting an interrogation, agents of the state are required “to formally instruct the suspect of his
[or her] constitutional rights and then conduct themselves according to how he [or she] elects to
preserve or waive them.” Id., ¶13.

He [or she] must be warned prior to any questioning that he [or
she] has the right to remain silent, that anything he [or she] says
can be used against him [or her] in a court of law, that he [or she]
has the right to the presence of an attorney, and that if he [or she]
cannot afford an attorney one will be appointed for him [or her]
prior to any questioning if he [or she] so desires. Opportunity to
exercise these rights must be afforded to him [or her] throughout
the interrogation. After such warnings have been given, and such
opportunity afforded him [or her], the individual may knowingly
and intelligently waive these rights and agree to answer questions
or make a statement. But unless and until such warnings and
waiver are demonstrated by the prosecution at trial, no evidence
obtained as a result of interrogation can be used against him [or
her].

Miranda, 384 U.S. at 479; see also Harris, 374 Wis. 2d 271, ¶¶13-14.

2
No. 2018AP2319-CR

abdomen.” During a custodial police interrogation, and after signing a waiver of
rights form, Garcia confessed that he struck the child multiple times and threw the
child onto a mattress.2 Upon motions, and following Miranda/Goodchild3 hearings,
the court found that Garcia’s statements were voluntary but not knowing, as Garcia,
not a native English speaker, did not understand his Miranda rights when he waived
them.4 The court denied the State’s request to use Garcia’s statements at trial in its
case-in-chief.

2
The record does not contain either the DVD or the transcript of Garcia’s statement. A
supplementary incident report created by law enforcement indicates that Garcia admitted to being
very angry with the child’s behavior and he “threw [the child] onto the mattress on the floor where
he sleeps” and “punched him one time, and then threw him back on the mattress.” Garcia’s first
appellate counsel had a responsibility to ensure completion of the appellate record. See State v.
McAttee, 2001 WI App 262, ¶5 n.1, 248 Wis. 2d 865, 637 N.W.2d 774. The DVD/transcript is not
determinative given our conclusion of law.
3
Our supreme court has explained that

[t]he hearings considering the admissibility of confessions are
known as Miranda-Goodchild hearings after Miranda v. Arizona,
[384 U.S. 436 (1966)], and State ex rel. Goodchild v. Burke, 27
Wis. 2d 244, 133 N.W.2d 753 (1965). As a rule, the hearings are
designed to examine (1) whether an accused in custody received
Miranda warnings, understood them, and thereafter waived the
right to remain silent and the right to the presence of an attorney;
and (2) whether the admissions to police were the voluntary
product of rational intellect and free, unconstrained will.

State v. Jiles, 2003 WI 66, ¶25, 262 Wis. 2d 457, 663 N.W.2d 798.
4
The Honorable Wayne J. Marik originally ruled on the admissibility of the confession.
Prior to trial, the Honorable Michael J. Piontek was assigned to the case. Judge Piontek reviewed
Judge Marik’s ruling in the context of Garcia’s motion in limine, which asked that the State be
prohibited from having any witnesses testify directly or indirectly as to Garcia’s confession. In
reviewing Judge Marik’s decision, Judge Piontek noted that there was no finding of misconduct by
the police and that “Mr. Garcia made a voluntary statement.” Neither Judge Marik’s nor Judge
Piontek’s rulings on these issues are being challenged on appeal.

3
No. 2018AP2319-CR

¶3 The investigating officer testified at trial regarding his investigation
without any discussion of Garcia’s custodial statements. The officer had been told
by Garcia at the hospital that the child had injuries from two accidents in the week
prior to the child’s death: slipping on some stairs and jumping out of a vehicle.5 On
cross-examination, trial counsel questioned the officer at length as to why the officer
did not investigate other ways, aside from the stairs and the vehicle, that the child
may have been injured. In response to these questions, the State moved the court to
allow the officer to be rehabilitated by utilizing Garcia’s excluded statements to
explain why the officer did not investigate other incidents, to wit, he did not continue
his investigation as Garcia confessed to hitting and throwing the child during his
custodial interrogation. The State argued that counsel had “opened the door to the
confession.”

¶4 The court granted the State’s request on the ground that while Garcia’s
cross-examination was proper, it was likely to mislead the jury if the State could not
rebut Garcia’s implication that the officer did not do a full investigation.6 A portion
of Garcia’s videotaped statements were shown to the jury in which Garcia admitted
to punching and throwing the child. In response, trial counsel argued that Garcia
was being forced to testify: “[G]iven the Court’s previous ruling earlier today … I
will have to put Mr. Garcia on the stand to explain many of the things that came up
during his statements…. [Garcia] feels that he now is in a position where he must
testify.” Garcia’s testimony centered on explaining that he did not understand the
difference between the word “punch” and “spank” due to English not being his

5
There is no dispute that these were non-custodial statements by Garcia and properly
admitted as evidence.
6
The circuit court took the matter under advisement, ordered a copy of the transcript of
trial counsel’s cross-examination, and issued its ruling the next morning.

4
No. 2018AP2319-CR

primary language and that he only “spank[ed]” the child as a form of punishment
on his back, butt, or side. Garcia testified that he never touched the child in the
stomach/abdomen and never punched him with a closed fist. The officer testified
that Garcia never “directly” told him that he touched the child in the abdomen.

¶5 The jury found Garcia guilty of first-degree reckless homicide and he
received a lengthy prison sentence. Garcia filed a postconviction motion arguing
that the circuit court erred when it allowed Garcia’s confession to be used during
the State’s case-in-chief and, in the alternative, that trial counsel failed to provide
effective assistance of counsel in its cross-examination of the investigating officer.7
The circuit court denied the motion without a hearing. Garcia appeals.8

¶6 On appeal, Garcia argues that the circuit court violated his
constitutional rights when it allowed the State, during its case-in-chief, to introduce
his previously excluded and inadmissible statements for the purpose of
rehabilitating one of its witnesses. The State counters that “when a defendant seeks
to use the exclusion of his inculpatory statements from the State’s case-in-chief to
mislead the jury about the nature of a police investigation, the rule established in
Harris and its progeny permits the trial court to admit the confession during the
State’s case-in-chief in order to rehabilitate a witness.”9 As we conclude that Harris

7
Garcia does not reassert his ineffective assistance of counsel claim on appeal. We,
therefore, deem it abandoned. Reiman Assocs., Inc. v. R/A Adver., Inc., 102 Wis. 2d 305, 306 n.1,
306 N.W.2d 292 (Ct. App. 1981).
8
We ordered supplemental briefing and scheduled oral argument in this case. In the
interim, Garcia’s appointed counsel withdrew from representation for good cause, and new counsel
was appointed. Due to the COVID-19 pandemic, oral argument was delayed, and after reviewing
the supplemental briefs, this court determined that oral argument was no longer necessary, and it
was not rescheduled.
9
The State, in its supplemental brief, concedes that the rule of completeness, codified in
WIS. STAT. § 901.07, “does not control the outcome in this case.” We deem any argument on the
rule of completeness waived.

5
No. 2018AP2319-CR

and its progeny do not allow the State to use the impeachment exception to
rehabilitate its own witness during its case-in-chief, we reverse.

STANDARD OF REVIEW

¶7 Although determinations regarding the admission of evidence at trial
are issues generally “left to the discretion of the circuit court,” State v. Dunlap,
2002 WI 19, ¶31, 250 Wis. 2d 466, 640 N.W.2d 112, the parties agree that the
standard of review for claims of constitutional error is applicable under the
circumstances.10 With respect to constitutional claims, we “employ a two-step
process.” State v. Harris, 2017 WI 31, ¶9, 374 Wis. 2d 271, 892 N.W.2d 663; State
v. Martwick, 2000 WI 5, ¶16, 231 Wis. 2d 801, 604 N.W.2d 552. “First, we review
the circuit court’s factual findings and uphold them unless they are clearly
erroneous.” Harris, 374 Wis. 2d 271, ¶9. Second, we “independently apply
constitutional principles to those facts” to determine whether there was a
constitutional violation. State v. Hogan, 2015 WI 76, ¶32, 364 Wis. 2d 167, 868
N.W.2d 124; State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421, 857 N.W.2d
120. In this case, Garcia does not dispute the underlying facts; therefore, only the
second step is at issue.

DISCUSSION

¶8 We allow illegally obtained evidence to be introduced at trial only
under narrow exceptions and specific circumstances, and the impeachment
exception under Harris does not allow the introduction of a statement obtained in

10
The State, in its supplemental brief, indicated that it “described the standard of review
for circuit courts’ discretionary decisions based on Garcia’s framing of the issue [in his brief-in-
chief]. To the extent this Court resolves this case on constitutional grounds, the standard of review
differs from that discussed in the parties’ previous briefs.”

6
No. 2018AP2319-CR

violation of Miranda during the State’s case-in-chief to rehabilitate the State’s
witness. The impeachment exception to the exclusionary rule applies only to the
defendant’s testimony.

¶9 Statements obtained in violation of Miranda are normally
inadmissible. Miranda, 384 U.S. at 478-79; see also State v. Knapp, 2003 WI 121,
¶¶111-14, 265 Wis. 2d 278, 666 N.W.2d 881, vacated and remanded by 542 U.S.
952 (2004), reinstated in material part by 2005 WI 127, ¶2 n.3, 285 Wis. 2d 86, 700
N.W.2d 899. However, “[a] statement of the defendant made without the
appropriate Miranda warnings, although inadmissible in the prosecution’s case-in-
chief, may be used to impeach the defendant’s credibility if the defendant testifies
to matters contrary to what is in the excluded statement.” State v. Mendoza, 96 Wis.
2d 106, 118, 291 N.W.2d 478 (1980) (collecting cases); see also Michigan v.
Harvey, 494 U.S. 344, 345-46, 350-51 (1990) (“We have already decided that
although statements taken in violation of only the prophylactic Miranda rules may
not be used in the prosecution’s case in chief, they are admissible to impeach
conflicting testimony by the defendant.”); Harris, 401 U.S. at 223-26; State v.
Franklin, 228 Wis. 2d 408, 412-16, 596 N.W.2d 855 (Ct. App. 1999). This
impeachment exception is applicable only if the excluded statements are found to
have been made voluntarily.11 Mendoza, 96 Wis. 2d at 118-19; see also Franklin,
228 Wis. 2d at 412.

¶10 The impeachment exception as it applies to statements made in
violation of Miranda was first introduced by the United States Supreme Court in

11
“Whether a statement is voluntary or involuntary depends on whether it was compelled
by coercive means or improper police practices.” State v. Franklin, 228 Wis. 2d 408, 413, 596
N.W.2d 855 (Ct. App. 1999). Here, as addressed above, the circuit court concluded that Garcia’s
confession was voluntarily made, but not knowing and intelligent.

7
No. 2018AP2319-CR

Harris. There, after the defendant testified at trial in his own defense and denied
all the charges, he was impeached with statements he made to the police without
being provided Miranda warnings. Harris, 401 U.S. at 223-24. The Harris Court
upheld the trial court’s impeachment exception ruling, explaining that

Miranda barred the prosecution from making its case with
statements of an accused made while in custody prior to
having or effectively waiving counsel. It does not follow
from Miranda that evidence inadmissible against an accused
in the prosecution’s case in chief is barred for all purposes,
provided of course that the trustworthiness of the evidence
satisfies legal standards.

Harris, 401 U.S. at 224. An exception, the Court concluded, was admission of the
statements where the defendant commits perjury12:

Every criminal defendant is privileged to testify in his
own defense, or to refuse to do so. But that privilege cannot
be construed to include the right to commit perjury….

The shield provided by Miranda cannot be perverted into
a license to use perjury by way of a defense, free from the
risk of confrontation with prior inconsistent utterances.

12
The Court in Harris v. New York, 401 U.S. 222, 224 (1971), relied on its previous
holding in Walder v. United States, 347 U.S. 62, 66 (1954), a Fourth Amendment case, where the
Court carved out a narrow exception to its earlier holding in Agnello v. United States, 269 U.S. 20,
35 (1925), that illegally seized evidence must be excluded for all purposes. The Walder Court
created an exception, which allows the government to introduce unlawfully seized physical
evidence in the specific circumstance where a defendant offers contrary (perjured) testimony so as
to impeach the credibility of the defendant: “It is one thing to say that the Government cannot
make an affirmative use of evidence unlawfully obtained. It is quite another to say that the
defendant can turn the illegal method by which evidence in the Government’s possession was
obtained to his own advantage, and provide himself with a shield against contradiction of his
untruths.” Walder, 347 U.S. at 65. The Walder physical evidence impeachment exception was
extended by Harris to statements made in violation of Miranda.

8
No. 2018AP2319-CR

Harris, 401 U.S. at 225.13

¶11 The United States Supreme Court revisited the impeachment
exception nineteen years later in James. James was a suspect in a murder, and
police arrested him at a hair salon while he was in the process of altering his
appearance. James, 493 U.S. at 309. James told officers that “the previous day his
hair had been reddish brown, long, and combed straight back” and that “he had gone
to the [hair salon] in order to have his hair ‘dyed black and curled in order to change
his appearance.’” Id. James’ statements to police were suppressed as fruits of an
unlawful arrest. Id. at 309-10. At trial, James did not testify, but a family friend
testified for the defense that on the day of the shooting James’ hair had been black,
not reddish as witnesses said it was on the day of the crime. Id. at 310. The State
argued that the impeachment exception should be extended to defense witnesses,
and the trial court, over James’ objection and after determining that the suppressed
statements were voluntary, permitted the prosecution to offer James’ suppressed
statements to impeach his friend’s credibility. Id.

¶12 The Court reversed and refused to extend the impeachment exception
to “defense witnesses.” Id. at 313. The Court explained that the impeachment
exception is appropriate as a way to prevent a defendant from “perverting the
exclusionary rule ‘into a license to use perjury by way of a defense.’” Id. at 313
(quoting United States v. Havens, 446 U.S. 620, 626 (1980)). The Court provided

13
The holding of Harris has also been applied in other similar circumstances. See, e.g.,
Michigan v. Harvey, 494 U.S. 344, 345, 351 (1990) (allowing statement to police taken in violation
of Sixth Amendment right to counsel to be used to impeach defendant’s testimony); United States
v. Havens, 446 U.S. 620, 627 (1980) (applying impeachment exception to illegally seized evidence
used to impeach the defendant’s credibility as to statements he made on cross-examination);
Oregon v. Hass, 420 U.S. 714, 722-24 (1975) (applying impeachment exception where defendant
was given Miranda warnings but failed to honor his invocation of the right to counsel and he
subsequently made incriminating statements).

9
No. 2018AP2319-CR

two reasons for refusing to extend the impeachment exception to witnesses beyond
the defendant: (1) “the mere threat of a subsequent criminal prosecution for perjury
is far more likely to deter a witness from intentionally lying on a defendant’s behalf
than to deter a defendant, already facing conviction for the underlying offense, from
lying on his own behalf,” and (2) expanding the exception to all defense witnesses
“likely would chill some defendants from presenting their best defense and
sometimes any defense at all—through the testimony of others.” Id. at 314-15. The
Court was concerned that if the exception was extended beyond just the defendant
that a defendant would fear that a defense witness, “in a position to offer truthful
and favorable testimony, would also make some statement in sufficient tension with
the tainted evidence to allow the prosecutor to introduce that evidence for
impeachment.” Id. at 315. The Court concluded that “[s]o long as we are committed
to protecting the people from the disregard of their constitutional rights during the
course of criminal investigations, inadmissibility of illegally obtained evidence
must remain the rule, not the exception.” Id. at 319.

¶13 Two years later, the Eastern District of Wisconsin decided Kuntz v.
McCaughtry, 806 F. Supp. 1373 (E.D. Wis. 1992), a federal habeas case, which
presented a similar issue to the one before this court. There, the government and
the courts assumed that Kuntz’s interrogation constituted a violation of his rights
under Miranda and Edwards,14 but Kuntz’s statements were found to be voluntary
and trustworthy. Kuntz, 806 F. Supp. at 1378. The illegally obtained statements

14
Edwards v. Arizona, 451 U.S. 477 (1981).

10
No. 2018AP2319-CR

were then used at trial to impeach the state’s witness, who was a friend of Kuntz.15
Id. at 1379. The court concluded that the admission of the illegally obtained
statement was in error. According to the Kuntz court:

Evidence that has been illegally obtained “is inadmissible
on the government’s direct case, or otherwise, as substantive
evidence of guilt.” [Havens, 446 U.S. at 628]. Under
Havens, use of an illegal statement is thus prohibited during
any part of the state’s case, even if used to impeach its own
witness. If impeachment of other defense witnesses by use
of an illegally obtained statement is prohibited, as it is under
James, use of the statement to impeach prosecution
witnesses is foreclosed a fortiori. The Court’s concern in
James was the chilling effect on presentation of other
defense witnesses. That concern about a fair trial is
magnified in regard to prosecution witnesses. Allowing the
prosecution to use the illegal statement during the
presentation of its case—even if used to impeach its own
witness—would virtually negate the exclusionary rule
altogether. The prosecution would have free reign to present
witnesses just for their impeachment value in order to get the
illegal statement before the jury. Although defendants
should not be able to “‘pervert’ the exclusion of illegally
obtained evidence into a shield for perjury,… it seems no
more appropriate for the State to brandish such evidence as
a sword….” James, [493 U.S. at 317].

Kuntz, 806 F. Supp. at 1380. The court determined “under the rules and reasoning
of Harris and James, impeachment use of an illegal statement is allowed against
the defendant alone.” Kuntz, 806 F. Supp. at 1380 (emphasis added); see also

15
The Kuntz case began in our state courts. See State v. Kuntz (Kuntz I), No. 88-1565-
CR, unpublished slip op. at *9-11 (WI App Dec. 21, 1989) (agreeing with the state and reading
Harris to mean that defendant’s statements to police may be used to attack the veracity of “any
witness,” but acknowledging that the United States Supreme Court had just heard oral arguments
in James, and determining that even if the James Court disagreed, harmless error applied). On
appeal, our supreme court did not reach the issue, concluding instead that “nothing in the illegally
obtained statement of the defendant that was admitted contradicts [the state’s witness’] testimony
or calls into question her credibility” and it was at most “cumulative” and “harmless beyond a
reasonable doubt.” State v. Kuntz (Kuntz II), 160 Wis. 2d 722, 744, 467 N.W.2d 531 (1991); see
also Kuntz v. McCaughtry, 806 F. Supp. 1373, 1379-80 (E.D. Wis. 1992). Kuntz subsequently
filed a petition for a writ of habeas corpus in federal district court.

11
No. 2018AP2319-CR

Smiley v. Thurmer, 542 F.3d 574, 579 n.2 (7th Cir. 2008) (“The Supreme Court has
limited the impeachment exception to Miranda, first articulated in [Harris], to
situations in which the defendant elects to testify at trial.” (emphasis added;
collecting cases)).16

¶14 It is on this basis that we conclude that a defendant’s statements
obtained in violation of Miranda may be used to impeach only the defendant’s
testimony, and, accordingly, may not be used during the State’s case-in-chief. The
State presents no case law holding to the contrary. Instead, the State argues that “[a]
multitude of courts … have expanded the lessons of Harris to other situations,”
suggesting that if we are engaged in a search for the truth and if a statement is
reliable (voluntary and uncoerced), then Harris allows the impeachment exception
to be used during the State’s case-in-chief. We disagree. Harris, James, and their
progeny all hold that the impeachment exception is allowed only as to the defendant.

¶15 The State offers “fairness” as its basis to overcome the holdings in
Harris and James and points to State v. Brecht, 143 Wis. 2d 297, 421 N.W.2d 96
(1988),17 to support its fairness argument. The State argues that under Brecht,
Garcia “opened the door” to admitting his statement by counsel’s cross-examination

16
Courts have made a narrow exception to the Harris/James rule in cases where the
defendant uses an insanity defense. In these types of cases, the psychiatrist’s testimony/opinions
are based on statements made to him or her by the defendant; therefore, the statements that are
actually being impeached are those of the defendant and not the witness. See United States v.
Rosales-Aguilar, 818 F.3d 965, 970 (9th Cir. 2016); Wilkes v. United States, 631 A.2d 880, 889-
90 (D.C. 1993).
17
In State v. Brecht, 143 Wis. 2d 297, 307-08, 313, 421 N.W.2d 96 (1988), the issue was
whether Brecht’s constitutional rights were violated by the state’s elicitation of testimony from a
police officer pertaining to Brecht’s pre-Miranda silence during the state’s case-in-chief. Our
supreme court allowed the testimony as counsel had “opened the door” to the evidence when
counsel raised the issue of Brecht’s silence on cross-examination; accordingly, the state was free
to elicit the testimony on redirect. Id. at 313-14. We distinguish Brecht as the case did not involve
statements excluded in violation of Miranda, nor did the court address Harris.

12
No. 2018AP2319-CR

of the police officer. See id. at 313. According to the State, “Brecht mentioned the
permissibility of a comment on the defendant’s silence when it was a ‘fair response
to a claim made by defendant or his counsel,’” see id. at 314 (citation omitted), and
“fairness” was a concern to the Court in both Harris and James. We agree that
“fairness” is a concern, but we also recognize that Harris, James, and their progeny
all considered “fairness” in coming to the categorical conclusion that fairness and
constitutional concerns dictated that the impeachment exception may only be used
against the defendant when the defendant testifies contrary to his or her
inadmissible, but voluntary statement.

¶16 While the State acknowledges that Harris/James prohibits the use of
the impeachment exception against defense witnesses and acknowledges the Kuntz
decision, it argues that the “lesson” of “all these cases” is that we have “four primary
concerns” when dealing with the admissibility of previously excluded evidence: (1)
is the evidence reliable; (2) does admission of the evidence ensure proper deterrence
against government misconduct; (3) does the admissibility of previously excluded
evidence stem from something in the defendant’s control so as not to preclude the
defendant from presenting his best case; and (4) does the evidence serve the court’s
fact finding function. If the evidence meets these criteria, argues the State, then the
evidence should be admitted. The State does not cite any case applying its four-part
test. The State’s policy argument may have merit, but we are obligated to follow
precedent rather than make new law. We are an error correcting court, not a policy
making court. Harris, James, and their progeny allow the narrow impeachment
exception to be used only in the specific circumstance where a defendant testifies
contrary to an earlier voluntary, but inadmissible statement.

13
No. 2018AP2319-CR

CONCLUSION

¶17 Garcia’s inadmissible statement was not admitted in response to
Garcia’s testimony; Garcia’s statement was admitted during the State’s case-in-
chief in order to rehabilitate a prosecution witness in response to relevant and proper
cross-examination by defense counsel. The circuit court erred in admitting Garcia’s
statements, and Garcia is entitled to a new trial.18

By the Court.—Judgment and order reversed and cause remanded.

18
While there is a “limited class” of constitutional errors that are considered “structural,”
which require “automatic reversal,” “most constitutional errors can be harmless.” Neder v. United
States, 527 U.S. 1, 8 (1999) (citation omitted). The error complained of here is subject to a harmless
error analysis. See Kuntz, 806 F. Supp. at 1380-81; Kuntz II, 160 Wis. 2d at 744. The harmless
error test is

whether there is a reasonable possibility that the error contributed
to the conviction. If it did, reversal and a new trial must result.
The burden of proving no prejudice is on the beneficiary of the
error, here the state. The state’s burden, then, is to establish that
there is no reasonable possibility that the error contributed to the
conviction.

State v. Alexander, 214 Wis. 2d 628, 652-53, 571 N.W.2d 662 (1997) (quoting State v. Dyess, 124
Wis. 2d 525, 543, 370 N.W.2d 222 (1985)). Here, the State, as the beneficiary of the error, carried
the burden. The State failed to address harmless error in either its response or supplemental briefs
and, therefore, failed to meet its burden. We conclude that the error in admitting Garcia’s
statements at trial was not harmless.

14