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Prosecutorial Failure to Disclose Evidence; Deficient Performance – Failure to Suppress Showup

State v. Melvin G. Walton, No. 2009AP001304-CR, District I, 6/22/10

court of appeals decision (3-judge, not recommended for publication); for Walton: Byron C. Lichstein; BiC; Resp.; Reply

Prosecutorial Failure to Disclose Evidence

¶28     The State has two separate evidence-disclosure responsibilities: a statutory responsibility imposed by WIS. STAT. § 971.23 and a constitutional responsibility imposed by Brady v. Maryland, 373 U.S. 83 (1963). Section 971.23(1) identifies what the State must disclose to a defendant. If the State does not show good cause for failing to disclose the information, the court must determine whether the defendant was prejudiced, applying the harmless error test. See State v. Harris, 2008 WI 15, ¶¶15, 41-42, 307 Wis. 2d 555, 745 N.W.2d 397. Whether a defendant has been prejudiced presents a question of law subject to our independent review. Id., ¶15.

¶29     Under Brady, “a defendant has a constitutional right to evidence favorable to the accused and that a defendant’s due process right is violated when favorable evidence is suppressed by the State either willfully or inadvertently, and when prejudice has ensued.” Harris, 307 Wis. 2d 555, ¶61. “Prejudice means that ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Id. (citations and one set of quotation marks omitted). Harris continued: “‘[S]trictly speaking, there is never a real Brady violation unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.’” Harris, 307 Wis. 2d 555, ¶61. (citations and one set of quotation marks omitted).

The prosecution failed to provide the defense with a CD of a witness’s interrogation. The court of appeals itself reviews the CD and determines that it neither contained evidence that the witness’s statement was coerced nor that it added much if anything to trial testimony, hence non-disclosure wasn’t prejudicial.

Deficient Performance – Failure to Suppress Showup

Counsel performed deficiently in failing to seek suppression of both a concededly unnecessary showup and the in-court identification by that witness, but the deficiency wasn’t prejudicial, given strong independent evidence of the reliability of the identification, ¶¶39-43.

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