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Evidence excluded from state’s case-in-chief because of discovery violation is admissible in rebuttal; “sleeping juror” issue resolved by lack of finding that juror was sleeping

State v. Brent T. Novy, 2013 WI 23, affirming 2012 WI App 10; case activity

Evidence excluded from state’s case-in-chief because of discovery violation is admissible as rebuttal evidence

The trial court excluded the state from presenting fingerprint evidence in its case-in-chief because the state failed to properly disclose the evidence under Wis. Stat. § 971.23(1)(g). But after Novy testified, the court allowed the state to put the evidence in during its rebuttal case. The supreme court concludes the circuit court had discretion to admit the evidence:

¶40      …[T]he discretion afforded circuit courts has been reaffirmed numerous times since the enactment of the discovery statute. See Konkol, 256 Wis. 2d 725, ¶¶15–18. In Konkol, the court of appeals determined that the circuit court had erroneously excluded rebuttal evidence, where the circuit court had concluded that the State’s use of the evidence in rebuttal was an attempt to circumvent the disclosure requirements of Wis. Stat. § 971.23(1)(d). Id., ¶¶5–7, 18. Relying on our decision in Lunde, 85 Wis. 2d at 91–92, the court of appeals in Konkol reaffirmed the principle that the proper analysis for determining whether evidence is “bona fide rebuttal evidence” is not whether the evidence could have been admitted in the State’s case-in-chief, but rather whether the evidence became necessary and appropriate upon presentation of the defense’s case. Konkol, 256 Wis. 2d 725, ¶18.

¶41      This test for bona fide rebuttal evidence effectively harmonizes the plain language of the sanctions provision in the discovery statute and the discretion of the circuit court. The sanctions provision of the discovery statute, Wis. Stat. § 971.23(7m)(a), provides that “[t]he court shall exclude” evidence for which the State failed to comply with the disclosure requirements. Here, the circuit court did just that: upon determining that the State failed to provide proper access to the fingerprint cards, that evidence and related testimony was excluded from the State’s case-in-chief.

¶42      However, notwithstanding the initial exclusion, such an exclusion need not be absolute because circuit courts retain significant discretion to admit rebuttal evidence, even when such evidence was not disclosed for use in the case-in-chief. See id. (relying on Lunde, 85 Wis. 2d at 91–92);…

Because the fingerprint evidence contradicted a claim made by Novy in his testimony, it was admissible as “necessary and appropriate” rebuttal evidence. (¶¶43-45). A concurrence by Chief Justice Abrahamson (joined by Justice Bradley) argues § 971.23 does not clearly authorize admission of physical evidence (like fingerprints) on rebuttal, but concludes any error in this case was harmless. (¶¶57-76).

If the fingerprint evidence had been used in the state’s case-in-chief it would have been primarily relevant to a bail jumping charge that was dismissed at the close of the state’s case. (¶¶9, 11). The dissent in the court of appeals (¶¶26-29) (and our post on the court of appeals’ decision) suggested that the dismissal of the bail jumping charge would make the fingerprint evidence irrelevant and turn it into inadmissible extrinsic evidence to impeach on a collateral matter—unless the now-dismissed bail jumping was proper other-acts evidence, something never considered by the trial judge or the court of appeals’ majority. The supreme court dismisses this suggestion, however. The bail jumping charge alleged Novy had unauthorized contact with the victim of a pending stalking charge, and the date of the charge occurred during the time period for a second stalking charge against the victim for which Novy was also on trial. Thus, the court says, the fingerprint evidence was still relevant to establish the course of conduct for the second bail jumping charge. (¶44 n. 8). Nonetheless, keep in mind the rule of relevancy and proper methods of impeachment, as they may sometimes give you grounds to argue to limit the state’s rebuttal.

Trial court’s finding juror was not sleeping resolves claim of denial of impartial jury

The court rejects Novy’s claim that his rights to an impartial jury and due process were denied when the trial court denied his motion to remove a juror who was sleeping during his closing argument because the trial court did not find the juror was sleeping or inattentive, a prerequisite to his motion to strike the juror under State v. Hampton, 217 Wis. 2d 614, 621, 579 N.W.2d 260 (Ct. App. 1998):

¶51      In explaining the reason for her ruling, the circuit court did not find that the juror was sleeping, and therefore, Novy did not establish a fact necessary to his motion to strike. On this record, we cannot say that the circuit court’s findings are clearly erroneous because they did not include a finding that the juror was sleeping. Because we accept such findings, we do not discuss this legal challenge further.

The concurrence disputes the majority’s reading of the record, though ultimately concludes the trial court’s finding of lack of prejudice to Novy was reasonable. (¶123). Given the court’s agreement on the result, we won’t summarize their factual dispute here; for readers with the time and inclination, the various portions of the record are set out at length in ¶¶50-51 and 77-102, and attendant footnotes.

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