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2006 WI APP 8
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                   2004AP2827-CR
                                                                                                                    †Petition for Review Filed
Complete Title of Case:
STATE OF WISCONSIN,
                                            PLAINTIFF-RESPONDENT,
V.
JEFFREY LORENZO SEARCY,
DEFENDANT-APPELLANT.†
Opinion Filed:                              December 21, 2005
Submitted on Briefs:     October 14, 2005
JUDGES:                                     Snyder, P.J., Nettesheim and Anderson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS:                                  On behalf of the defendant-appellant, the cause was submitted on the
                                            briefs of Joseph L. Sommers, Madison.
Respondent
ATTORNEYS:                                  On behalf of the plaintiff-respondent, the cause was submitted on the
                                            brief of Aaron R. O’Neil, assistant attorney general, and Peggy A.
                                            Lautenschlager, attorney general.




2006 WI App 8
COURT OF APPEALS
NOTICE
DECISION
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.
December 21, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                         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.
                                                                                                                                                          Cir. Ct. No.   2001CF646
Appeal No.                                                                              2004AP2827-CR
STATE OF WISCONSIN                                                                                                                                        IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JEFFREY LORENZO SEARCY,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and an order  of  the circuit court for
Racine County:  ALLAN B. TORHORST, Judge.   Affirmed.
Before Snyder, P.J., Nettesheim and Anderson, JJ.
¶1                                                                                      ANDERSON, J.     Jeffrey Lorenzo Searcy appeals from a judgment
convicting him of two counts of burglary, one as party to a crime, and an order
denying  his  postconviction  motion.    He  challenges  his  conviction  on  several
disparate grounds.   First, he argues that there was insufficient evidence to convict




No.   2004AP2827-CR
him of either of the two counts of burglary.    Second, he claims that the jury
received  prejudicial  extraneous  information  relating  to  his  prior  convictions.
Third, he mounts a constitutional challenge to the admission of statements his
cousin, Leisa Adams, made to police officers at the scene of his arrest.   Searcy
complains that the admission of the statements, which tied him to the residence
where the police found stolen items, through the testimony of an officer violated
his confrontation rights under the analysis of “testimonial” statements announced
in Crawford v. Washington, 541 U.S. 36 (2004).   Finally, he raises two additional
constitutional challenges.
¶2                                                                                        We  hold  that  there  was  sufficient  evidence  to  support  Searcy’s
convictions on both counts of burglary.   We uphold the trial court’s finding that
Searcy failed to satisfy his burden of proving by clear, satisfactory and convincing
evidence  that  the  jury  had  been  exposed  to  improper  extraneous  information
regarding  his  prior  convictions.    The  trial  court  simply  made  a  credibility
determination with which we cannot quarrel.   We hold that the admission of the
officer’s testimony concerning Adams’ statements about the location of Searcy’s
residence  did  not  violate  Searcy’s  confrontation  rights.    Adams  initiated  the
contact  with  the  police  officers  and  spontaneously  made  the  unsolicited
statements; therefore, her statements were not “testimonial” within the meaning of
Crawford.    We also reject as harmless Searcy’s other two claims of constitutional
error.   We affirm.
I.   FACTS
¶3                                                                                        On July 8, 2001, the State filed a criminal complaint against Searcy
charging him with burglarizing the home of Darrin and Michelle Hoffman.   Later
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No.   2004AP2827-CR
in July, the State filed an amended complaint charging Searcy with burglarizing
the home of Brad and Lauri DuRocher.
¶4                                                                                           A multiple-day jury trial on the two charges was held in December
2002.    The  State  called  to  testify:    several  of  the  officers  involved  in  the
investigation of the burglaries, an employee of the Department of Justice Crime
Laboratory, Darrin and Michelle Hoffman, and Lauri DuRocher.   Searcy presented
the testimony of his friend, Kimberly Jackson.   Because Searcy challenges the
sufficiency of the evidence to convict him, we recount the pertinent portions of
each witness’ testimony below.
¶5                                                                                           The State first called Darrin Hoffman.   Darrin testified that when he
returned home on May 19, 2001, he found the front screen door and interior door
open and some of the framework broken.   He testified that he called the police
before entering the home because he had left a loaded .357 magnum in his home
and was worried the intruder was still in the house.    After the police arrived,
Darrin discovered that the gun, a VCR, jewelry and a pillowcase were taken from
his home.   He stated that he had not given anyone permission to take the items
from his home.   He also testified that the bedroom window was left wide open and
the window screen was mangled and lying on the bed.   He stated that the only way
to remove the screen from the window was from inside the house.
¶6                                                                                           The  State  then  called  several  of  the  officers  involved  in  the
investigation  of  the  Hoffman  burglary.     Charles  Ashbeck,  a  Racine  Police
Department Patrol Sergeant, testified that he responded to the Hoffman burglary
complaint.   When he arrived at the Hoffman residence, he observed:                          “The front
door appeared to be kicked in, so it looked to me as that was the point of entry.”
Ashbeck testified that he came to the conclusion that the door had been kicked in
3




No.   2004AP2827-CR
because “the door jamb, where the door connects, that was broke and the wood
was all split off, and there was a footprint on the door.”   He also observed that the
window screen from the back bedroom was “all bent” and lying on the bed.
¶7                                                                                        Next, Donald Prudhom, a patrolman and evidence technician with
the City of Racine Police Department, testified.   He stated that he lifted a palm
print and fingerprint from the bedroom window screen.   James Yoghourtjian, a
forensic criminalist for the City of Racine Police Department, testified that he
analyzed the fingerprint impression and it positively matched Searcy’s left thumb.
Jeffrey May, an employee of the identification unit of the Department of Justice
Crime Laboratory, testified that he matched the palm print Prudhom lifted with
Searcy’s print to a reasonable degree of professional certainty.
¶8                                                                                        Amanda  Guth,  a  deputy  with  the  Racine  County  Sheriff’s
Department whose duties included doing bookings at the county jail, was the
State’s next witness.   She initially testified outside the presence of the jury.   The
State presented Guth with proposed Exhibit 22, which was a report generated from
the jail’s database showing the personal information of an inmate booked at the
county jail.   Guth identified the inmate in the report as Searcy.   She explained that
Searcy’s report stated that he was living on Shelbourne Court with his relative,
Leisa Adams.    When pressed on cross-examination, Guth stated that she was
unsure if she was the one who did the intake for Searcy.   Following this testimony,
Searcy  argued  that  the  report  introduced  through  Guth’s  testimony  was
inadmissible hearsay.   The trial court admitted the evidence, the testimony and the
4




No.   2004AP2827-CR
exhibit, under WIS. STAT. § 908.03(6) (2003-04).1   Guth then testified in front of
the jury consistent with her prior testimony.
¶9                                                                                        Following Guth, the State called the police officers who investigated
the DuRocher burglary and also called Lauri DuRocher.   Brian Smith, a Town of
Mount Pleasant police officer, testified that on July 17, 2001, he was called to the
DuRochers’ home for a possible burglary.   He stated that when he entered the
home through the front door, it appeared as though someone had kicked the door
in—the door and the frame around the door were broken and there was a footprint
on the door.
¶10    Lauri DuRocher testified that she had not given anyone consent to
enter the home and that several pieces of jewelry and a pillowcase were taken
from her home.   She testified that she and her husband were able to identify the
items taken from their home from photographs shown to them by the police.
¶11    Mark  Sorenson,  an  investigator  with  the  City  of  Racine  Police
Department, then testified about the circumstances surrounding Searcy’s arrest and
the search of Adams’ apartment.   Sorenson testified that on July 27 he and other
members  of  the  police  department’s  Street  Crimes  Unit  were  conducting
surveillance in the area of Shelbourne Court because they had received a tip from
an informant that Searcy was living in the area.   Sorenson stated that the officers
spotted Searcy and subsequently took him into custody at gunpoint.   According to
Sorenson, while the officers were still at the scene, a large crowd gathered and
“one lady in the crowd came up and said that she was Mr. Searcy’s cousin, and
1  All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise
noted.
5




No.   2004AP2827-CR
that he was staying with her in the neighborhood there.”   The following exchange
then took place between the prosecutor and Sorenson:
[Prosecutor]:   When she provided this information to you,
could  you  describe  her  demeanor  when  she  gave  the
statement to you?
[Sorenson]:   Um, rather excited.
[Prosecutor]:   How so?
[Sorenson]:   We had just taken Mr. Searcy into custody at
gunpoint and she started screaming, um, wanted to know
what we are doing and saying “that’s my cousin, you can’t
do that.”   She was rather excited in that way.
[Prosecutor]:     During  this  time  period  when  she  was
excited did she provide or make any statements which led
you  to  believe  that  Mr.  Searcy  resided  at  a  particular
location?
[Sorenson]:   Yes.
[Prosecutor]:   What information did she provide to you?
At that point, Searcy’s counsel objected on hearsay grounds.   The State responded
that it was admissible pursuant to the excited utterance hearsay exception.   After
hearing arguments outside the presence of the jury, the trial court allowed the State
to continue with its line of questioning.
¶12    The State asked Sorenson how much time had passed between when
the officers took Searcy into custody with weapons displayed and when Adams
approached the officers and made the statements.   Sorenson replied that it had
been maybe a minute or two.   Then the State again asked, “And during this time
period did she provide you again—did she provide you with information as to
where Mr. Searcy resided?”   Over Searcy’s objection, Sorenson quoted Adams as
saying, “[s]he said—she—that he had been staying with her from time to time.”
The trial court overruled Searcy’s objection.
6




No.   2004AP2827-CR
¶13    According to Sorenson, approximately thirty to forty-five minutes
later, the officers obtained Adams’ permission to search her apartment, which was
located on Shelbourne Court.   Sorenson indicated that during the course of the
search another investigator directed his attention to a pillowcase found in the
closet in an upstairs bedroom.   The pillowcase was white with a flower pattern on
it and was secured with a knot.   The pillowcase contained numerous pieces of
jewelry.   Sorenson noted that the pillowcase did not match the bedding in the
apartment  bedroom.    Sorenson  testified  that  after  locating  the  pillowcase,  he
confronted Adams and asked her if she owned the pillowcase.
¶14    On  redirect  examination,  the  following  exchange  between  the
prosecutor and Sorenson took place:
[Prosecutor]:   Defense counsel asked you whether or not
you found any items belonging to Mr. Searcy in the closet.
Did you receive any information as to the ownership of that
pillowcase?
[Sorenson]:   No, not to my knowledge.
[Prosecutor]:   Did anyone claim ownership?
[Sorenson]:   No.
[Prosecutor]:   Did anyone deny ownership?
At that point, Searcy’s counsel objected on hearsay grounds.    The trial court
permitted Sorenson to answer the question.    Sorenson responded,  “Ms. Adams
denied ownership.”   Following an off-the-record conversation with both counsel,
the court instructed the jury to disregard Sorenson’s answer.   The court stated,
“His answer should have been, and he could have given the answer, was:   No, no
one claimed ownership.”   Later, during its recitation of its instructions to the jury,
the court stated:                                                                         “During the trial the Court ordered certain testimony be stricken.
Disregard all stricken testimony.”
7




No.   2004AP2827-CR
¶15    Searcy then called his only witness, Kimberly Jackson, a friend of
two years.   Jackson testified that she dropped Searcy off at the Hoffman home on
two  occasions  in  the  months  prior  to  the  burglary.    She  stated  that  on  both
occasions Searcy rang the doorbell, a white woman answered and Searcy entered
the home.   Jackson could not provide exact dates, days of the week, a precise
description of the home, or any more detail about the woman who allowed Searcy
to enter the home.   Jackson testified that she had been twice convicted of a crime.
¶16    The State called Michelle Hoffman as its rebuttal witness.   Michelle
testified  that  there  were  no  other  adult  white  females  living  at  the  Hoffman
residence during that time and she did not allow any adult African-American
males, including Searcy, to enter her home during that time.   She testified that her
employment with the Department of Corrections would prohibit her from having
any sort of relationship with a convicted felon.
¶17    Following deliberations, the jury found Searcy guilty of committing
the two burglaries in violation of WIS. STAT. §§ 943.10, 939.05 and 939.62.
¶18    On March  22,  2003, juror Rhonda Szabo contacted Searcy’s trial
attorney.    Szabo indicated that she felt the jury was prejudiced against Searcy
because  he  was  African-American.    She  also  informed  Searcy’s  counsel  that
certain members of the jury during the evening after the first hearing went back to
their homes and checked “CCAP”2 to find out what Searcy had been convicted of
in  the  past  and  that  the  jury considered  the  information  during  deliberations.
Searcy’s trial attorney brought this information to the trial court’s attention at the
2                                                                                                 “CCAP”   stands   for   Consolidated   Court   Automation   Programs.   See
http://wcca.wicourts.gov/index.xsl.   The CCAP website provides public access to the records of
the Wisconsin circuit courts under Wisconsin’s open records law.  Id.
8




No.   2004AP2827-CR
sentencing hearing, but the court ruled that the matter should be left for appellate
counsel to pursue.   In May 2004, Searcy filed a postconviction motion.   He asked
the court to vacate his sentence and conviction and order a new trial, arguing that
the jury received improper extraneous information prior to or during deliberations.
¶19    The trial court held a hearing on the motion on September 24, 2004.
Szabo testified that on the day of the trial she had heard jurors discussing Searcy’s
prior burglaries at Kewpee’s, a restaurant where the jurors dined.   She stated that
while  the  jurors  never  mentioned  CCAP,  she  assumed  the  jurors  must  have
obtained the information concerning the prior convictions from CCAP.   Szabo also
testified that during deliberations a juror had stated something like, “[L]ook, this
isn’t the first time he’s done this, you know, he has robbed or burglarized before.”
She  expressed  concern  over  there  being  racial  bias  amongst  the  jurors.    She
testified that she cried after the jury convicted Searcy because she thought what
happened in the jury room was inappropriate.   She testified that she did not believe
that Searcy had committed the burglaries and that she did not like being in a
position to judge an individual.
¶20    The trial court denied Searcy’s postconviction motion.   The court
stated:
[S]o what we have is a juror who’s disgruntled after leaving
the court process, has second thoughts and that certainly
colors her testimony, her perspective.   She obviously at this
point   doesn’t   believe   the   defendant   is   guilty,   is
second[-]guessing her own decision to find him guilty and
to agree that he was guilty.
The court found it difficult to “put a lot of credibility on what she says based upon
the  inconsistencies  in  her  statements  and  her  perspective  as  a  juror  who  has
obviously  changed  her  mind  and  wants  to  [e]ffect,  quite  frankly,  a  different
9




No.   2004AP2827-CR
result.”    The  court  then  concluded  that  there  was  not  clear  and  convincing
evidence  to  establish  that  extraneous  information  in  the  form  of  the  prior
convictions was brought to the attention of the jurors.
II.   DISCUSSION
A.   Sufficiency of the Evidence
¶21    Searcy maintains that the State did not present sufficient evidence
for the jury to find him guilty of the DuRocher and Hoffman burglaries.   Burglary,
as defined in WIS. STAT. § 943.10, “is committed by one who intentionally enters
a building without the consent of the person in lawful possession and with intent to
steal.”   WIS JI—CRIMINAL 1421 (footnote omitted).
¶22    Our task in reviewing the sufficiency of the evidence is to determine
whether  the  evidence  at  trial,  viewed  most  favorably to  the  State  and  to  the
conviction, is so insufficient in probative value and force that it can be said as a
matter of law that no trier of fact acting reasonably could have found guilt beyond
a reasonable doubt.   State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752
(1990).   In doing so, we must keep in mind that the credibility of the witnesses and
the weight of the evidence is for the trier of fact, and we must adopt all reasonable
inferences which support the jury’s verdict.   Id. at 504.   The test is not whether
this court is convinced of Searcy’s guilt beyond a reasonable doubt, but whether
this  court  can  conclude  that  the  trier  of  fact  could,  acting  reasonably,  be  so
convinced by evidence it had a right to believe and accept as true.   See id. at 503-
04.                                                                                           Furthermore,  although  the  evidence  presented  at  trial  may  have  been
circumstantial, circumstantial evidence is often stronger and more satisfactory than
direct evidence, and a finding of guilt may rest entirely on circumstantial evidence.
Id. at 501-02.   The standard for reviewing the sufficiency of the evidence is the
10




No.   2004AP2827-CR
same in either a direct or a circumstantial evidence case.   Id. at 501.   In short,
Searcy bears a heavy burden in attempting to convince us to set aside the jury’s
verdict.   See State v. Allbaugh, 148 Wis. 2d 807, 808-09, 436 N.W.2d 898 (Ct.
App. 1989).
¶23    Searcy  claims  the  only  evidence  linking  him  to  the  Hoffman
burglary was his fingerprint on the window screen in the Hoffmans’ bedroom.   He
argues that the mere presence of his fingerprint, standing alone, is insufficient to
connect him to the burglary.   Because there is other evidence supporting Searcy’s
conviction, we need not decide whether fingerprint evidence, standing alone, is
sufficient to sustain a burglary conviction.   See State v. Scott, 2000 WI App 51,
¶16, 234 Wis. 2d 129, 608 N.W.2d 753 (refusing to address defendant’s argument
that fingerprint evidence standing alone was insufficient to survive a motion to
dismiss because the State presented other evidence as well).
¶24    Darrin Hoffman testified that he had not given anyone permission to
take the items stolen from his home.   Darrin stated that when he came home and
discovered that the burglary had occurred, his front screen door and interior door
were open and some of the framework was broken.   He also found the bedroom
window screen “mangled” and lying on the bed.   He testified that the only way to
remove the window screen was from inside the house.
¶25    Darrin’s assertions as to the conditions of the doorframe and window
screen were corroborated by the testimony of the officers called to the scene.
Ashbeck testified that when he arrived at the Hoffman residence he noticed that
the front door appeared to be kicked in, as there was a footprint on the door, and
the window screen was “all bent” and lying on the bed.   The testimony of several
officers  then  established  that  the  fingerprint  lifted  from  the  window  screen
11




No.   2004AP2827-CR
positively matched Searcy’s left thumb and a palm print matched his print to a
reasonable  degree  of  professional  certainty.    The  jury could  have  reasonably
concluded from the presence of the fingerprint evidence when combined with the
damage to the doors and window screen and the fact that the window screen could
only be opened from the inside that Searcy had burglarized the Hoffman home.
¶26    Searcy attempted to provide an innocent explanation for the presence
of his fingerprint through the testimony of his friend, Jackson.   Jackson testified
that she had dropped Searcy off at the Hoffman home and had seen a white
woman let him in  on  more than one occasion.    However,  Jackson could  not
provide exact dates, days of the week, a precise description of the home, or any
more detail about the woman who allowed Searcy to enter the home, and Jackson
admitted that she had been twice convicted of a crime.   Furthermore, on rebuttal,
Michelle Hoffman testified that she did not know Searcy, she had not allowed an
African-American male to enter her home around that time and her employment
with the Department of Corrections would preclude her from having a relationship
with a convicted felon.   The jury was certainly well within its rights to (1) adopt as
credible the testimony of Michelle, a Department of Corrections employee, that
Searcy’s fingerprint had no business being in the Hoffman bedroom and (2) reject
as incredible the imprecise testimony of Jackson, a friend of Searcy’s with a
criminal history, that there was an innocent explanation for the presence of the
fingerprint.3   See State v. Toy, 125 Wis. 2d 216, 222, 371 N.W.2d 386 (Ct. App.
3  Searcy argues that even if the jury had concluded that he had put Jackson on the stand
to provide false testimony in order to wrongly support his claim of innocence, this would not be
enough to support his conviction for the Hoffman burglary.   His argument is based on the rule
that a negative inference from a fabricated alibi is not proof of the elements of a crime.   See
Stewart v. State, 83 Wis. 2d 185, 193, 265 N.W.2d 489 (1978) (concluding that “a negative
inference drawn from the witnesses’ testimony is, standing alone, insufficient to support a
conviction and … there must be independent support in the evidence for what is inferred”);
Peters v. State, 70 Wis. 2d 22, 30-31, 233 N.W.2d 420 (1975).   However, as the State points out,
even if the jury concluded that Searcy’s alibi was false, it was not the only evidence against him.
12




No.   2004AP2827-CR
1985) (“It is the jury’s task … not this court’s, to sift and winnow the credibility of
the witnesses.”).
¶27    Searcy  contends  that  the  only  evidence  connecting  him  to  the
DuRocher burglary was the pillowcase full of stolen items discovered in Adams’
home and that this was insufficient to support his conviction.   He maintains that
sustaining his conviction for this burglary would be the equivalent of affirming a
conviction if the State merely produces any relevant evidence of guilt in violation
of the principles articulated in Jackson v. Virginia, 443 U.S. 307, 318-20 (1979).
Searcy fails to consider all the relevant evidence the State presented.
¶28    One of the officers, Smith, testified that on July 17, 2001, he was
called to the DuRocher home for a possible burglary.   Smith stated that it appeared
as though someone had kicked in the door because the door and its frame were
broken and there was a footprint on the door.   Sorenson testified that ten days
later, on July 27, he arrested Searcy.   He stated that Adams informed police that
Searcy, who was her cousin, had been staying with her from time to time.4   Adams
permitted the officers to search her home.   Sorenson stated that while searching
Adams’ bedroom closet, the officers found a pillowcase secured with a knot.
According to Sorenson, the pillowcase did not match the sheets on the bed and
contained  several  pieces  of  jewelry.    Sorenson  testified  that  no  one  claimed
ownership  of  the  pillowcase.    Lauri  DuRocher  identified  the  pillowcase  and
several of the items as ones that had been stolen from her home.    DuRocher
4  Searcy challenges the admission of Adams’ statements to the police concerning his
residence through Sorenson’s testimony.   However, as is shown in Part II, section C of our
discussion, the trial court properly admitted the statements and we consider them in our analysis
of Searcy’s sufficiency of the evidence challenge.   We will not consider Adams’ statement to the
police in which she denied ownership of the DuRocher pillowcase.
13




No.   2004AP2827-CR
testified that she did not know Searcy and she had not given anyone permission to
remove the items from her home.
¶29    From this  evidence  the  jury could  have  reasonably come  to  the
conclusion that Searcy was responsible for the DuRocher burglary.   The stolen
items were found in a home where he was staying only ten days after the burglary
occurred.   Additionally, no one claimed ownership of the items and the items were
found  tied  up  in  a  pillowcase  and  hidden  in  a  closet.    The  jury could  have
reasonably drawn  the  inference  that Searcy had stolen the  items  and tried  to
conceal them in his cousin’s closet.
¶30    Finally, the jury could have relied on the similarities between the
two burglaries to convict Searcy.   In both cases, the front door had apparently been
kicked in—there was damage to the doors and their frames, and footprints on the
doors themselves.   Further, in both burglaries, pillowcases were taken off of beds,
most likely to transport stolen property.   From the similarities, the jury could have
concluded  that  the  same  person  committed  both  burglaries  and  the  burglar’s
modus operandi was, in part, to kick in the door and place stolen items in a
pillowcase from the residence.   Thus, the consistencies between both burglaries
bolster our conclusion that the evidence presented at trial was sufficient to convict
Searcy of both the Hoffman and DuRocher burglaries.
B.  Extraneous Information
¶31    We  next  address  Searcy’s  claim  that  extraneous  prejudicial
information was improperly brought to the jury’s attention.   He maintains that the
jury became aware of his prior burglary convictions through a juror’s research on
CCAP.
14




No.   2004AP2827-CR
¶32    Under WIS. STAT.  § 906.06(2), the party seeking to impeach the
verdict must demonstrate that a juror’s testimony is admissible by establishing
that:                                                                                   (1) the juror’s testimony concerns extraneous information (rather than the
deliberative process of the jurors), (2) the extraneous information was improperly
brought to the jury’s attention, and (3) the extraneous information was potentially
prejudicial.5   State v. Eison, 194 Wis. 2d 160, 172, 533 N.W.2d 738 (1995).   Here,
the trial court implicitly determined that Searcy had met his initial three-pronged
burden under  § 906.06(2) and therefore Szabo was competent to testify in an
inquiry into the validity of the guilty verdict.    On appeal, the State does not
challenge this implicit determination.
¶33    If, as here, the defendant meets the threshold burden of showing
juror competency to testify under WIS. STAT.  § 906.06(2), the trial court must
conduct two additional analyses to decide if a new trial is warranted.   See State v.
Broomfield, 223 Wis. 2d 465, 479, 589 N.W.2d 225 (1999).   First, the trial court
must make the “factual determination whether ‘one or more jurors made or heard
the statements [in question] or engaged in the conduct alleged.’”   State v. Wulff,
200 Wis. 2d 318, 328, 546 N.W.2d 522 (Ct. App. 1996) (citation omitted), rev’d
5  WISCONSIN STAT. § 906.06(2) provides:
(2)  INQUIRY  INTO  VALIDITY  OF  VERDICT  OR  INDICTMENT.
Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement occurring
during the course of the jury’s deliberations or to the effect of
anything upon the juror’s or any other juror’s mind or emotions
as influencing the juror to assent to or dissent from the verdict or
indictment  or  concerning  the  juror’s  mental  processes  in
connection therewith, except that a juror may testify on the
question  whether   extraneous   prejudicial  information  was
improperly brought to the jury’s attention or whether any outside
influence was improperly brought to bear upon any juror.   Nor
may the juror’s affidavit or evidence of any statement by the
juror  concerning  a  matter  about  which  the  juror  would  be
precluded from testifying be received.
15




No.   2004AP2827-CR
on other grounds, 207 Wis. 2d 143, 557 N.W.2d 813 (1997).   The defendant must
prove the facts by clear, satisfactory and convincing evidence.   Id.; Castaneda v.
Pederson,  185 Wis.  2d  199,  211-12,  518 N.W.2d  246  (1994).    A trial court’s
factual determinations on this first inquiry will not be overturned unless clearly
erroneous.     See  Broomfield,                                                                      223  Wis.   2d  at   479-80   (citing  WIS.  STAT.
§ 805.17(2)).   If the defendant shows that the alleged statements were made or the
alleged conduct occurred, the trial court must determine whether the extraneous
information produced prejudice requiring reversal of the verdict.   Broomfield, 223
Wis. 2d at 479.
¶34    Here, the trial court determined that Searcy failed to establish by
clear and convincing evidence that jurors were exposed to prejudicial information
concerning  Searcy’s  prior  burglary  convictions  through  a  juror’s  research  on
CCAP.6   In determining that Searcy had failed to meet his burden, the trial court
did not find Szabo’s testimony to be convincing, calling her testimony “less than
crystal clear.”   The court explained that Szabo’s testimony was inconsistent and
her testimony evidenced a “disgruntled” juror with second thoughts.
¶35    In reviewing findings made by a trial court:
It is well settled that the weight of the testimony and the
credibility of the witnesses are matters peculiarly within the
province of the trial court acting as the trier of fact.   The
reason for such deference is the superior opportunity of the
6  Searcy seems to make an argument that the trial court erred by focusing on whether the
jurors had been exposed to extraneous information through CCAP rather than whether they
utilized improper information during their deliberations.  However, as our discussion makes clear,
after the defendant satisfies his or her threshold burden, the court must “determine by clear,
satisfactory, and convincing evidence that the juror made or heard the statements or engaged in
the conduct alleged.”  State v. Broomfield, 223 Wis. 2d 465, 479, 589 N.W.2d 225 (1999).  Thus,
the trial court properly analyzed whether the jurors had been exposed to information obtained
from CCAP.
16




No.   2004AP2827-CR
trial court to observe the demeanor of witnesses and to
gauge the persuasiveness of their testimony.
Kleinstick v. Daleiden, 71 Wis. 2d 432, 442, 238 N.W.2d 714 (1976) (footnote
omitted).   Moreover, when more than one reasonable inference can be drawn from
the credible evidence, this court must accept the inference drawn by the trial court.
Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641, 644, 340 N.W.2d 575 (Ct. App. 1983).
The trial court’s credibility conclusion in this case finds support in the record.
¶36    Szabo  testified  that  she  contacted  Searcy’s  attorney  only  after
checking CCAP and seeing what she perceived to be an error in the number of
convictions stemming from the trial.    She  testified that when she was polled
following  deliberations  she  stated  that  she  agreed  with  the  verdict,  but  when
questioned  later  by  detectives  she  said  that  she  did  not  believe  that  Searcy
committed the burglary.   She testified that “[a]fter the fact” she was not happy
with the  “whole process”; she did not want to be in a position of judging an
individual and she would never be a juror again.
¶37    She  also  testified  that  when  she  overheard  jurors  speaking  at
Kewpee’s, it was kind of noisy and she thought she heard one juror say, “[T]his
isn’t the first time this guy did this,” or “[t]here’s been more or many or something
like that.”   However, she testified on redirect examination that she thought she
heard the word “burglary” used in that conversation, but “that one I wouldn’t say
100 percent that that actually happened.   I think I heard that.”   Then, on recross-
examination, she stated that she was not “absolutely certain” that the jurors were
even talking about the case.    She testified that a juror later  “implied” during
deliberations that he knew that Searcy had been convicted of burglary in the past
and she assumed the juror who made the comment had researched Searcy on
CCAP, but that was merely her own opinion.   She testified that no one mentioned
17




No.   2004AP2827-CR
CCAP, any prior bad acts, or any prior dates of convictions.   She testified that,
prior to her taking the witness stand at the motion hearing, she had not told anyone
that  the  statement  from  the  juror  was  that  Searcy had  “committed  burglaries
before.”
¶38    Searcy challenges the trial court’s finding that Szabo’s testimony
was incredible in part because she evidenced regret over her decision to convict
Searcy.    He maintains that Szabo’s regret makes her testimony more credible
because she came forward even though her testimony did not “portray her in the
best of lights.”   While this may be a reasonable inference that can be drawn from
her testimony, we are bound to accept the equally reasonable inference drawn by
the trial court.   See id.
¶39    In light of the ambiguous, indefinite and equivocal nature of Szabo’s
testimony, the trial court was well within its rights to reject her testimony as
incredible and conclude that Searcy failed to prove by clear, satisfactory and
convincing  evidence that the jury had been exposed to extraneous prejudicial
information concerning Searcy’s prior convictions.7   Because we uphold the trial
court’s determination on this point, we need not address the question of whether
the  jury’s  exposure  to  extraneous  information  constitutes  prejudicial  error
requiring reversal of the verdict.
C.   Constitutional Challenge
¶40    Based on the United States Supreme Court’s Crawford decision,
Searcy argues that he  deserves a new trial because his constitutional right to
7  Szabo testified that she thought that Searcy’s race played a role during the jury’s
deliberations.   However, Searcy does not raise a race-based challenge on appeal.   In any event,
the trial court’s credibility determination, which we accept, extinguishes such a challenge.
18




No.   2004AP2827-CR
confront  his  accusers  was  violated  when  the  trial  court  admitted,  through
Sorenson’s  testimony,  Adams’  statements  tying  him  to  her  residence  and  the
stolen  items  from  the  DuRocher  burglary.     Searcy  contends  that  Adams’
statements were “testimonial” in nature because they were the result of a police
effort to create evidence for trial.   Searcy also alleges that the admission of Guth’s
testimony concerning the information in his county jail intake records violated his
confrontation rights because he did not have an opportunity to cross-examine the
individual who provided the information.
¶41    We will begin our discussion of Searcy’s constitutional challenge
with an overview of the principles from Confrontation Clause jurisprudence that
will guide our analysis.   We will then apply the principles to Adams’ challenged
statements and Guth’s testimony separately.8
1.   Confrontation Clause General Principles
¶42    When a defendant asserts a Confrontation Clause challenge, we first
must determine whether the challenged statements are admissible under the rules
of  evidence.    See State v. Manuel,  2005  WI  75,  ¶23,  281 Wis. 2d  554,  697
N.W.2d 811.   A trial court’s decision to admit evidence is discretionary, and this
court must uphold that decision if there was a proper exercise of discretion.   Id.,
¶24.   If the statements are not admissible under the rules of evidence, they are
excluded,  and  we  need  not  proceed  to  the  constitutional  question.    State  v.
Tomlinson, 2002 WI 91, ¶41, 254 Wis. 2d 502, 648 N.W.2d 367.   If admissible,
8  The State argues that Searcy waived review of this issue because he failed to object to
the testimony of Adams and Guth on constitutional grounds.   However, Searcy could not have
raised at trial a Confrontation Clause claim based on Crawford v. Washington, 541 U.S. 36
(2004), because his December 2002 trial preceded the March 2004 Crawford decision by well
over a year.  See State v. Savanh, 2005 WI App 245, ¶11 n.2, __ Wis. 2d __, 707 N.W.2d 549.
19




No.   2004AP2827-CR
however, the next step is to examine whether admission of the statements violated
the defendant’s right to confront his or her accusers.   See Manuel, 281 Wis. 2d
554, ¶25.   Whether admission of hearsay evidence violates a defendant’s right to
confrontation presents a question of law we review de novo.  Id.
¶43    Crawford   spurred   a   major   shift   in   Confrontation   Clause
jurisprudence.   Until Crawford, Ohio v. Roberts, 448 U.S. 56 (1980), governed a
Sixth Amendment challenge to the admission of an out-of-court statement against
the accused.   Under Roberts, a hearsay statement could be admitted in a criminal
trial without violating  the  right of  confrontation if                                     (1)  it was shown  that the
declarant was unavailable and (2) the out-of-court statement bore adequate indicia
of reliability.   Id. at 66.   This test focused on the reliability of the statement.   As
the Court explained, a statement had adequate indicia of reliability if it either fell
within a firmly rooted hearsay exception or if it bore “particularized guarantees of
trustworthiness.”    Id.                                                                     (footnote  omitted).    The  Crawford  Court  expressed  the
concern that Roberts had fostered an overemphasis on reliability that oftentimes
bore little relation to the abuses the Confrontation Clause targeted, Crawford, 541
U.S. at 51, leading to “unpredictability” and “unpardonable” constitutional error.
Id. at 63.
¶44    Accordingly, Crawford reoriented the focus of Confrontation Clause
claims from reliability back to confrontation.   State v. Savanh, 2005 WI App 245,
¶19, __ Wis. 2d __, 707 N.W.2d 549.   The focus now is on the “testimonial” or
“nontestimonial”  nature  of  the  out-of-court  statements:                                 “Where  testimonial
statements  are  at  issue,  the  only  indicium  of  reliability  sufficient  to  satisfy
constitutional   demands   is   the   one   the   Constitution   actually   prescribes:
confrontation.”    Crawford,  541 U.S. at  68-69.    Regardless of their reliability,
therefore, out-of-court testimonial statements are barred under the Confrontation
20




No.   2004AP2827-CR
Clause unless (1) the declarant is unavailable and (2) the defendant had a prior
opportunity to cross-examine the witness.   Id. at 68.
¶45    The Crawford Court, however, did not dispense with the Roberts
reliability rubric entirely.   See Manuel, 281 Wis. 2d 554, ¶60.   The Roberts test
still governs a Sixth Amendment Confrontation Clause challenge to the admission
of nontestimonial out-of-court statements.   Manuel, 281 Wis. 2d 554, ¶60.
2.   Adams’ Statements Concerning Searcy’s Residence
¶46    Searcy challenges the admissibility of Adams’ statements to police
officers within minutes of his arrest that he was her cousin and was staying with
her.   As indicated, we first must determine whether the statements are admissible
under the rules of evidence.
¶47    The trial court apparently determined that Adams’ statements were
admissible under the excited utterance hearsay exception found in WIS. STAT.
§ 908.03(2).   An excited utterance admissible under § 908.03(2) is “[a] statement
relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.”   When applying this statute
to hearsay statements offered at trial, the trial court considers the spontaneity of
the statements, the stress of the incident provoking the statements, and the lapse of
time between the triggering event and the utterance.   State v. Moats, 156 Wis. 2d
74, 97, 457 N.W.2d 299 (1990).   “The statements of a declarant who demonstrates
the opportunity and capacity to review [the underlying incident] and to calculate
the  effect  of  his                                                                    [or  her]  statements  do  not  qualify  as  excited  utterances.”
Christensen v. Economy Fire & Cas. Co., 77 Wis. 2d 50, 58, 252 N.W.2d 81
(1977) (footnote omitted).   A declarant’s availability as a witness is immaterial
under                                                                                   § 908.03(2).     See                                                 § 908.03   (stating  that  certain  types  of  statements,
21




No.   2004AP2827-CR
including excited utterances, “are not excluded by the hearsay rule, even though
the declarant is available as a witness”).
¶48    Here, Adams’ statements were properly admitted under the excited
utterance hearsay exception.   Adams spontaneously made the statements, without
police prompting, under the stress of watching her cousin being taken into custody
at gunpoint.   It was only one to two minutes after Searcy’s arrest that Adams
emerged  from  the  crowd  that  had  gathered  to  witness  the  arrest  and  yelled,
“[T]hat’s my cousin, you can’t do that.”   She then told officers that Searcy had
been staying with her  “from time to time.”    According to Sorenson, she was
“excited.”    She simply did not have the opportunity or capacity to review the
situation and calculate the likely impact of her statements.
¶49    Because we have determined that Adams’ statements to the officers
concerning Searcy’s residence were admissible under the rules of evidence, we
turn to whether their  admission violated Searcy’s right to confrontation.    See
Manuel, 281 Wis. 2d 554, ¶25.   With the Crawford framework in mind, our first
task is to assess whether Adams’ out-of-court statements were testimonial.
¶50    While the Crawford Court limited the case’s reach to “testimonial”
statements,  it  opted  to                                                                    “leave  for  another  day  any  effort  to  spell  out  a
comprehensive definition of testimonial.”    Crawford,  541 U.S. at  68  (footnote
omitted).   Instead, it laid out three “formulations of this core class.”   Id. at 51.   We
summarize them here:   (1) ex parte in-court testimony or its functional equivalent,
such as affidavits, custodial examinations, prior testimony that the defendant was
unable  to  cross-examine,  or  similar  pretrial  statements  that  declarants  would
reasonably  expect  to  be  used  prosecutorially;                                            (2)  extrajudicial  statements
contained in formalized testimonial materials, such as affidavits, depositions, prior
22




No.   2004AP2827-CR
testimony, or confessions; and (3) statements 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.   Id. at 51-52.   These three formulations
contemplate a measure of formality that gives the declarant some indication of the
statement’s  significance.    Savanh,                                                      707  N.W.2d  549,  ¶22.    The  text  of  the
Confrontation  Clause  contemplates                                                        “witnesses                                      …  bear[ing]  testimony,”  and
“testimony” typically means a  “solemn declaration or affirmation made for the
purpose of establishing or proving some fact.”   Crawford, 541 U.S. at 51 (citation
omitted); Savanh, 707 N.W.2d 549, ¶22.
¶51    Adams’ statements to the police officers do not fall into any of the
identified categories of testimonial statements.   Her informal statements do not fit
within the contours of the first two depictions:   they are not “ex parte in-court
testimony or its functional equivalent” nor are they “extrajudicial statements …
contained in formalized testimonial materials.”    Crawford,  541 U.S. at  51-52
(citation  omitted).     The  record  shows  that  the  remarks  were  spontaneous,
unsolicited statements offered to police officers immediately following the trauma
of her cousin’s arrest at gunpoint.    Adams’ statements simply bear no indicia
common to the official and formal quality of the various types of statements
described in the first two Crawford formulations.
¶52    The  only  depiction  even  arguably  applicable  is  the  third,  which
relates to statements an objective witness reasonably would believe would be
available for use at a later trial.   Id. at 52.   We conclude that an objective witness
in Adams’ position would not have reasonably expected that the statements would
be  used  in  a  future  judicial  proceeding.    A  number  of  factors  support  this
determination.
23




No.   2004AP2827-CR
¶53    Adams initiated the interaction with the officers; the police did not
seek her out.   She approached the police officers after they had arrested her cousin
at gunpoint.   Her statements to the police officers concerning her relationship to
Searcy  and  Searcy’s  residence  were  voluntarily  made  in  the  course  of  her
attempting to prevent the police from taking her cousin into custody.   She yelled at
the officers, “[T]hat’s my cousin, you can’t do that,” and said that Searcy had been
staying  with  her                                                                        “from  time  to  time.”    Sorenson  testified  that  when  Adams
approached  them  she  was                                                                “excited.”     There  is  no  evidence  in  the  record
demonstrating that the statements were made in response to a tactically structured
police interrogation, or in response to any questioning at all.   Given the informal,
unstructured  nature  of  the  interaction,  Adams  could  not  have  reasonably
anticipated that she was bearing witness and her utterances could impact future
legal proceedings.
¶54    We  are  not  persuaded  by  Searcy’s  contention  that  the  officers
obtained the information from Adams with an eye toward his prosecution and
therefore  the  statements  were  testimonial.    Searcy  points  out  the  concern  in
Crawford and Lilly v. Virginia, 527 U.S. 116 (1999), a pre-Crawford decision he
cites, that the                                                                           “[i]nvolvement of the government officers in the production of
testimony with an eye toward trial presents unique  potential for prosecutorial
abuse.”   Crawford, 541 U.S. at 56 n.7; see also Lilly, 527 U.S. at 125 (statements
obviously obtained by government for purpose of creating evidence that would be
useful at a future trial).   As we have recently stated, “Underlying this concern … is
the actual or perceived pressure on the declarant as a result of the government
involvement in producing testimony with an eye toward trial.”    Savanh,  707
N.W.2d 549, ¶28; see also Crawford, 541 U.S. at 56 n.7; Lilly, 527 U.S. at 139
(expressing  concern  that  declarant  was  primarily  “responding  to  the  officers’
24




No.   2004AP2827-CR
leading  questions,  which  were  asked  without  any  contemporaneous  cross-
examination  by adverse  parties”).    However,  neither  that  type  of  government
involvement nor any potentially coercive effect on the declarant was present here.
Unlike Crawford and Lilly, where the declarants had been subjected to police
interrogation, see Crawford, 541 U.S. at 38, 40; Lilly, 527 U.S. at 121, Adams
volunteered her statements to the officers absent any interrogation or other police
prompting.    Rather, like the foreign cases the State cites in its brief, Adams’
statements  were  offered  unsolicited  by a  victim or  witness at  the  scene  of  a
traumatic event, and were not generated by the desire of the prosecution or police
to seek evidence against a particular suspect.9   See, e.g., People v. Corella, 18 Cal.
Rptr. 3d 770, 776 (2004) (holding that statements made under such circumstances
9  We recognize that in determining whether a particular out-of-court hearsay statement is
testimonial or nontestimonial in the post-Crawford era, courts in other jurisdictions have reached
conflicting decisions under same or similar circumstances.   Davis v. State, 169 S.W.3d 660, 668-
69 (Tex. Ct. App. 2005); compare Lopez v. State, 888 So. 2d 693, 695, 700 (Fla. Dist. Ct. App.
2004)  (holding that a victim of assault and kidnapping, although upset and nervous, made
testimonial statements to officers at the scene immediately after the crime had been committed)
with Anderson v. State,  111 P.3d  350,  351  (Alaska Ct. App. 2005)  (holding that an assault
victim’s statement to police at the scene of the crime was nontestimonial); compare Key v. State,
173 S.W.3d 72, 73, 76 (Tex. Ct. App. 2005) (holding that the excited utterance exception to the
hearsay rule had been satisfied and, thus, as a matter of law, the victim’s statements to police at
the scene were nontestimonial) with Drayton v. United States, 877 A.2d 145, 149-50 (D.C. 2005)
(rejecting view that excited utterances are per se nontestimonial).
We also are aware that the United States Supreme Court recently accepted cases for
review that bear upon the testimonial versus nontestimonial inquiry where excited utterances are
involved.  State v. Davis, 111 P.3d 844 (Wash. 2005), cert. granted, 126 S. Ct. 547 (U.S. Oct. 31,
2005) (No. 05-5224), available at http://www.supremecourtus.gov/docket/05-5224.htm (whether
an alleged victim’s statements to a 911 operator admitted under the excited utterance hearsay
exception are testimonial); Hammon v. State, 829 N.E.2d 444 (Ind. 2005), cert. granted, 126 S.
Ct.                                                                                                    552   (U.S.   Ind.   Oct.   31,   2005)   (No.   05-5705),   available   at
http://www.supremecourtus.gov/docket/05-5705.htm  (whether  an  oral  accusation  made  to  an
investigating officer at the scene of an alleged crime is a testimonial statement).   We note,
however, that most of the post-Crawford cases reviewing the issue have held that initial police-
victim or police-witness interaction at the scene of an incident is not an interrogation intended to
produce evidence for trial and admission of testimony about that interaction does not offend the
Confrontation Clause.   See, e.g., Anderson, 111 P.3d at 354 n.26 (compiling cases from several
jurisdictions); Key, 173 S.W.3d at 74-75 (same); Spencer v. State, 162 S.W.3d 877, 882 (Tex. Ct.
App. 2005) (same).
25




No.   2004AP2827-CR
                                                                                                     were  nontestimonial);  State  v.  Forrest,  596  S.E.2d  22,  26-27  (N.C.  Ct.  App.
2004),  aff’d  by  per  curiam,                                                                      611  S.E.2d                                                                              833  (N.C.   2005)   (same).    Adams’
statements were nontestimonial.10
¶55    Because we have determined that Adams’ out-of-court statements
were nontestimonial, the next stage of the admissibility analysis is the two-part
Roberts test.   We hold that part one of the Roberts test, Adams’ unavailability, is
satisfied.   For reasons not made clear to this court, Adams did not testify at trial,
and the parties and the trial court seemed to accept her absence as a settled matter.
Further, the Confrontation Clause does not require proof of unavailability when
the declarant’s statement qualifies as an out-of-court excited utterance.   See White
v. Illinois, 502 U.S. 346, 355-57 (1992); Tomlinson, 254 Wis. 2d 502, ¶46 n.7.
¶56    We  hold  that  the  second  part,  whether  Adams’  statements  bear
adequate  indicia  of  reliability,  also  is  satisfied.    Generally  when  evidence  is
admissible under a firmly rooted hearsay exception, such as the excited utterance
exception, the Confrontation Clause has been satisfied and no further showing of
particularized  guarantees  of  trustworthiness  is  required.    State  v.  Ballos,                 230
Wis. 2d 495, 510, 602 N.W.2d 117 (Ct. App. 1999) (citing White, 502 U.S. at 350
n.1,  356-57).   Such evidence may be excluded, however,  “if there are unusual
circumstances warranting its exclusion.”    Ballos,  230 Wis.  2d at  510  (citation
omitted).   Searcy has offered nothing to suggest any “unusual circumstances” or
“even the slightest taint of unreliability” that would require exclusion.   See id.
10  Searcy complains that any statements Adams made to Sorenson about her precise
street address and apartment number should have been excluded on confrontation grounds.
However, Sorenson did not testify to any statements Adams may have made about her exact
address.   Further, as the State observes, the trial record fails to show how this information was
communicated to the police and Searcy failed to object on any basis to Adams’ communication of
her address to the police.   We therefore cannot analyze the constitutionality of the admission of
the information.
26




No.   2004AP2827-CR
(citations  omitted).                                                                    Adams’  initial  statements  to  the  police  officers  were
admissible.
3.   Adams’ Statements Concerning the Pillowcase
¶57    Searcy  also  challenges  the  admissibility  of  Adams’  statements
denying  ownership  of  the  pillowcase  containing  items  from  the  DuRocher
burglary.    Searcy claims that Adams’ self-serving denial of  ownership of  the
pillowcase  was  an  inadmissible  testimonial  statement.    However,  even  if  the
statements were inadmissible hearsay or testimonial statements violating Searcy’s
confrontation rights, the error in admitting the statements, if any, was harmless.
¶58    A  Confrontation  Clause  violation  does  not  result  in  automatic
reversal but rather is subject to a harmless error analysis.   State v. Weed, 2003 WI
85, ¶28, 263 Wis. 2d 434, 666 N.W.2d 485.   Our supreme court recently explained
that an error is harmless if the beneficiary of the error proves beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained.   State
v. Hale, 2005 WI 7, ¶60, 277 Wis. 2d 593, 691 N.W.2d 637.
¶59    The trial court instructed the jury to disregard Sorenson’s response
to the question about who denied ownership of the pillowcase and later gave a
curative instruction to the jury again explaining that the jury was to disregard any
stricken testimony.   We assume that “‘a properly given admonitory instruction is
followed’ … and that the ‘jury acted according to law.’”   State v. Pitsch, 124 Wis.
2d 628, 644 n.8, 369 N.W.2d 711 (1985) (citations omitted).   We recognize that
cases may arise in which the risk of prejudice inhering in material put before the
jury may be so great that even a limiting instruction will not adequately protect a
criminal defendant’s constitutional right, see id.; the present case does not fall
within this category.   The jury had evidence before it demonstrating that Searcy
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No.   2004AP2827-CR
lived with Adams, that the pillowcase was found tied in a knot and hidden in a
closet, and that the pillowcase and the stolen items it contained were from the
DuRochers’ home.   We, therefore, conclude that the error, if any, in admitting
Adams’ testimony concerning the pillowcase was harmless beyond a reasonable
doubt.
4.   Guth’s Testimony
¶60    Searcy also challenges Guth’s testimony that the intake records show
him  as  residing  with  Adams.     Searcy  argues  that  Guth’s  testimony  was
inadmissible hearsay and he was unable to confront whoever told the booking
agent that he was staying with Adams.   He agrees, however, that he could have
provided this information during his intake or that other law enforcement officers
could have provided this information to the booking agent.
¶61    We conclude that regardless of whether the testimony violated the
rules of evidence or Searcy’s confrontation rights, the error in admitting Guth’s
testimony,  if  any,  was harmless beyond  a  reasonable  doubt.    See  Weed,  263
Wis.  2d  434,  ¶28  (confrontation challenges subject to harmless error analysis).
We have already concluded that the location of Searcy’s residence came into
evidence  via  Sorenson’s  testimony without  violating  the  rules  of  evidence  or
Searcy’s constitutional right to confront his accusers.    The jury therefore had
before it information gratuitously provided by Adams establishing that Searcy
lived with her.
III.                                                                                    CONCLUSION
¶62    In sum, we reject all three of Searcy’s challenges to his conviction.
There was sufficient evidence from which the jury could find beyond a reasonable
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No.   2004AP2827-CR
doubt that Searcy had committed both the Hoffman and DuRocher burglaries.   The
trial  court  did  not  err  in  concluding  that  Searcy  had  failed  to  offer  clear,
satisfactory and convincing evidence showing that the jury had been exposed to
extraneous prejudicial information.    Finally, Searcy’s confrontation rights were
not  violated  by  the  admission,  through  Sorenson’s  testimony,  of  Adams’
statements  concerning  his  residence  and  any  error  in  admitting  the  other
challenged testimony was harmless.
By the Court.—Judgment and order affirmed.
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