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COA finds no error in denying mistrial for 3 evidentiary issues

State v. Ross Harris, Jr., 2018AP1667, 10/24/2019, District 4 (one-judge opinion; ineligible for publication); case activity (including briefs)

The charges in this case, disorderly conduct and battery, arose from an altercation in a hospital elevator. The state said Harris, newly a grandfather, had attacked A.D., the fiancé of his newborn grandchild’s maternal grandmother, while both were visiting the baby. Harris said it was A.D. who had attacked him.

Harris went to trial and was convicted of the DC and acquitted of the battery. Three times during trial, his counsel moved for mistrial; the court refrained from ruling on the motions until after the verdict, at which point it denied them. Harris contends on appeal that mistrial should have been granted.

The first motion came after A.D. testified that he’d told Harris, before the fight, that “it was wrong to steal from a lady.” (¶12). The conflict between the two men apparently arose from A.D.’s belief that Harris had taken some of the grandmother’s property, and the court had ruled pretrial that though A.D. could talk about the property, he wasn’t to accuse Harris of theft.

The circuit court determined that the violation didn’t carry the sort of prejudice that would require a mistrial, and the court of appeals agrees. Of particular note, Harris’s counsel used the dispute about the property and alleged theft to argue that A.D. was the aggressor, so it’s not clear that the “theft” accusation harmed his chances at all. (¶¶17-22).

The other two motions came after the state introduced testimony about what Harris had supposedly said before and after the fight. Harris contended that the state should have disclosed these statements to him pursuant to his discovery demand and Wis. Stat. § 971.23(1)(b). The court of appeals doesn’t decide whether the failure to do so was a discovery violation, instead again concluding that the statements were not particularly harmful to Harris’s case. (¶¶38-39).

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