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Appellate Procedure – Harmless Error – Discovery Violation

State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke

Issue/Holding:

¶20. Our review of a claimed discovery violation under Wis. Stat. § 971.23 is subject to a harmless error analysis. See State v. Koopmans, 202 Wis. 2d 385, 396, 550 N.W.2d 715 (Ct. App. 1996). The test of harmless error is whether the appellate court in its independent determination can conclude there is sufficient evidence, other than and uninfluenced by the inadmissible evidence, that would convict the defendant beyond a reasonable doubt. See Wold v. State, 57 Wis. 2d 344, 356, 204 N.W.2d 482 (1973). Assuming, without deciding, that the State was required to disclose the letters before or at trial, we conclude that any trial court error in allowing use of the letters, and counsel’s error in failing to object to the second letter, were harmless.

This is the wrong test for harmless error: The correct test is whether there is a reasonable possibility that the error contributed to the conviction. State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222 (1985). The conviction must be reversed unless the court is certain that the error did not influence the jury. Id. at 541-42. The state, as the beneficiary of the error bears the burden of proof. Id., at 547 n. 11. The court of appeals made the same mistake last year, in State v. Eric Pletz, 2000 WI App 221 ¶30.

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