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COA affirms and agrees that officer’s violation of sequestration order need not result in new trial

State v. Marqus G. Phillips, 2023AP450, 10/4/23, District 2 (one-judge decision, ineligible for publication); case activity (including briefs)

That the Constitution does not guarantee an “error-free trial” is an unnecessary response to a straw man when a defendant seeks a new trial after it is discovered that the second of two state’s witnesses was found to have violated the circuit court’s witness sequestration order. It’s also an easy out where the circuit court’s lack of prejudice determination in denying a mistrial claim is reviewed under the “clearly erroneous” standard of review.

Phillips exercised his right to a jury trial after the state charged him with operating a motor vehicle while intoxicated. At trial, Phillips’ defense was that he never operated the vehicle, and that the driver of the vehicle was inside the Kwik Trip, in front of which Phillips was parked. The defense highlighted the fact that officers never investigated Phillips’ other driver claim, either by walking inside the Kwik Trip or by obtaining surveillance video that would have established who operated the vehicle. The defense also focused on the fact that no officer claimed to have actually observed Phillips operating the vehicle and the investigation was so lacking that the state never obtained a breath or blood sample to prove that Phillips was intoxicated.

Nevertheless, a jury convicted Phillips based on the testimony of two police officers, Jacob Schwartz and Sarah Pauer, who said they observed Phillips’ vehicle pull into the Kwik Trip and that they didn’t observe anyone get out of the vehicle before they confronted Phillips. Phillips’ intoxication was established based on an interaction the officers had with Phillips earlier on the same date and Phillips’ behavior at the time of his arrest.

Very shortly after the jury’s verdict and sentencing, the court, recalled the case because the court’s judicial assistant informed the court after sentencing that she had observed Pauer leaning her head against the door outside the courtroom while Schwartz was testifying. The assistant advised the trial court that she told Pauer she “couldn’t listen to the testimony,” after which Pauer “walked away.” (Op., ¶10). Phillips moved for a mistrial and the court held an evidentiary hearing at which Pauer and Schwartz testified. Pauer testified that while she sat outside the courtroom waiting to testify, she could hear substantial portions of the video evidence, and the questioning of Schwartz, but that she couldn’t hear his “exact” answers. (Op., ¶11). Further, Pauer also testified that she only leaned against the courtroom wall in an effort to stretch her back and was not doing so to more clearly hear Schwartz’s testimony. (Op., ¶12).

The circuit court found that Officer Pauer violated the court’s witness sequestration order, but that the violation wasn’t prejudicial to Phillips because the state presented “overwhelming video evidence.”

On appeal, Phillips argued (1) that there was no “overwhelming” evidence that he operated the vehcile, (2) that the state’s case hinged on the officers’ testimony, which was corroborated only by the fact that Pauer’s testimony lined up with Schwartz’, and (3) that because Pauer’s conduct came to light only after sentencing, no lesser form of relief was available to Phillips short of a new trial. Phillips further argued that the violation was prejudicial because the jury was entitled to know that prior to testifying, Pauer violated the court’s sequestration order and listened in on Schwartz’s testimony.

Applying the extremely deferential standard of review, and interpreting the court’s “overwhelming video evidence” comments to be about the totality of the case as opposed to whether Phillips actually operated the vehicle, the court of appleals affirms. (Op., ¶¶21-26). In other words, because the circuit court applied the applicable law and reached “a reasonable determination based on the totality of the facts and circumstances in this particular case,” the circuit court’s denial of Phillips’ request for a new trial was not an erroneous exercise of discretion. (Op., ¶20).

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