Background
Tamas Smith was convicted in Dane County Circuit Court of first-degree intentional homicide. A central evidentiary dispute at trial involved statements made by a witness who did not appear to testify. The circuit court, presided over by Judge David D. Conway, admitted those out-of-court statements over objection, finding that Smith had forfeited his right to confront the witness and to raise hearsay objections through his own wrongful conduct.
The circuit court found that Smith, while in jail, made telephone calls designed to discourage the witness from appearing at trial. A detective testified that the witness told him she had received calls from individuals passing along messages from Smith urging her not to cooperate, and that she had also received calls from Smith’s mother. The court found by a preponderance of the evidence that Smith’s conduct was at least a substantial factor in causing the witness’s unavailability, satisfying the requirements for the forfeiture-by-wrongdoing doctrine under State v. Baldwin, 2010 WI App 162.
Smith appealed, arguing that the State failed to prove both that his conduct was intended to discourage the witness and that it actually caused her non-appearance. He also challenged the evidentiary basis for the circuit court’s factual findings, contending that key information had been conveyed to the court through prosecutor’s remarks rather than sworn testimony.
The Court’s Holding
The Court of Appeals affirmed the conviction in a per curiam opinion. The court rejected Smith’s argument that the State failed to meet its burden, finding that the circuit court did not rely on any finding that Smith’s mother actually reached the witness. Instead, the court’s finding rested on the witness’s own statements to the detective — that she had received messages from others purporting to relay instructions from Smith and calls from his mother — which the circuit court credited as sufficient to show Smith’s intervention was a substantial factor in her unavailability.
The court further held that Smith had forfeited his appellate arguments concerning the form in which certain information was presented to the circuit court. Reviewing the hearing transcript, the court found that Smith’s trial-level remarks amounted only to a substantive challenge to connecting the calls to Smith, not an objection to the procedural manner in which that information reached the court. Under State v. Huebner, 2000 WI 59, litigants must raise timely objections at the circuit court level to preserve issues for appeal, and Smith provided no supported ground to overlook forfeiture. The same forfeiture analysis disposed of his argument regarding the witness’s text communications with the victim-witness case manager.
Key Takeaways
- The forfeiture-by-wrongdoing doctrine strips a defendant of his confrontation and hearsay rights when the defendant’s conduct — even through intermediaries — was intended to discourage a witness and caused the witness’s unavailability; actual contact with the witness is not required.
- A defendant’s causal role need only be a “substantial factor” in the witness’s non-appearance, not the sole or exclusive cause.
- Appellate courts will not consider challenges to the form or evidentiary basis of circuit court findings unless a contemporaneous, specific objection was raised below; a general substantive objection does not preserve a separate procedural one.
Why It Matters
This decision illustrates how Wisconsin courts apply the forfeiture-by-wrongdoing doctrine in homicide cases where witness intimidation is alleged. It confirms that a defendant need not make direct contact with a witness — indirect pressure communicated through third parties can be sufficient — and that the state’s burden is met by a preponderance standard, not a higher one. Defense counsel should be aware that the doctrine can reach conduct short of overt witness tampering.
The case also serves as a practical reminder of the strict preservation rules governing Wisconsin appeals. Failing to lodge a specific, contemporaneous objection to the manner in which evidence or information is presented to the trial court — as opposed to its substance — will forfeit that argument on appeal, leaving defendants with limited avenues for relief even when procedural irregularities may have affected the proceedings below.