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Discovery Violation, § 971.23(1)(g) – Prejudice

State v. Joseph Hammer, 2010AP3019-CR, District 1, 11/22/11

court of appeals decision (not recommended for publication); for Hammer: Rex Anderegg; case activity

The State’s conceded discovery violation (failure to produce reports or photographs related to a trajectory rod investigation) prejudiced the defense and therefore entitles Hammer to a new trial on two counts of attempted first-degree intentional homicide: 1. the erroneously admitted trajectory rod evidence “severely undermined” the defense, by “giving an aura of science to the State’s theory that Hammer was shooting to kill,” ¶27; the State’s evidence (both eyewitness and physical) wasn’t “particularly persuasive,” ¶28; and, failure to provide this material in a timely manner prevented Hammer “from effectively rebutting the evidence with an expert witness,” ¶29. (Hammer’s postconviction motion included an affidavit form an expert indicating that the State’s investigation couldn’t “reliably yield the conclusions that it purported to yield,” ¶30.)

¶31      In sum, we cannot conclude beyond a reasonable doubt that the admission of the trajectory rod evidence at trial did not lead to the guilty verdict.  See Harris, 307 Wis. 2d 555, ¶42.  Without the trajectory rod evidence, the principal evidence of Hammer’s intent was Korhonen’s and LaRonge’s testimonies and they both admitted to feuding with Hammer and to having a compromising view of the shooting.  The only other evidence was the presence of holes, which may or may not have been bullet holes, of an undetermined age, in a neighboring house’s siding—hardly corroboration of the witnesses’ testimonies as to aim and intent.  By admitting the trajectory rod evidence without proper notice, the trial court permitted an aura of scientific corroboration to the testimony of Korhonen and LaRonge, which significantly harmed the defense, and denied Hammer the opportunity to rebut the harmful evidence.  Thus, we cannot say, beyond a reasonable doubt, that the admission of the trajectory rod evidence did not lead to the guilty verdict.

¶32      Furthermore, we find it troublesome that it took the State ten months to turn evidence of the trajectory rod investigation over to the defense.  While the trial court seemed to accept this discovery violation in due course, we do not.  Wisconsin Stat. § 971.23(1)(g) requires the State to turn over to the defense “within a reasonable time before trial” “[a]ny physical evidence that the [State] intends to offer in evidence at trial.”  The State failed to do so here, without any good reason, and Hammer was prejudiced as a result.  Consequently, we affirm the postconviction court, albeit, on different grounds, and remand the case back to the trial court for proceedings consistent with the postconviction court’s order.

Discussion of “variety of” tests for harmless error, ¶25; and the “several factors” considered when assessing harmful error, ¶26.

The postconviction court granted relief on a different rationale, inadequate foundation for trajectory testimony. The court of appeals affirmance on a different basis (discovery violation) is premised on the principle that a trial court ruling may be affirmed on grounds other than those addressed by the lower court, ¶1, citing, State v. Tolefree, 209 Wis. 2d 421, 424 n.3, 563 N.W.2d 175 (Ct. App. 1997).

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