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COA affirms postconviction court’s reconstruction of the record, denies Brady violations

State v. Scott L. Nutting, 2017AP2049, 10/2/19, District 2, (not recommended for publication); case activity (including briefs)

At Nutting’s trial for sexual assault of a child, the State played parts of an audio recording of his custodial interview, but court and counsel neglected to make a record of them. Some would have been highly prejudicial to Nutting, so he requested a new trial. The court of appeals held that the postconviction court, the DA and defense counsel were able to  reconstruct the record sufficiently to give Nutting a meaningful appeal. It also denied Nutting’s claims for Brady violations.

Reconstruction of record. During his custodial interview Nutting said that he had been in prison for attempted possession of child porn, and he admitted that he was already a sex offender and that people think he’s a “piece of shit” and a “pedophile.” Understandably, he did not want the jury to hear these statements. He argued that the trial court’s failure to make a record of which parts of the recording were played to the jury violated SCR 71.01(2)(e) and prevented the parties and the courts from determining what the jury actually heard.

At the postconviction evidentiary hearing, Nutting’s trial counsel testified that he knew parts of the audio were prejudicial. He talked to the DA, reviewed the DA’s note sheet listing start and stop times, and matched them to his own notes. He also listened to the parts played at trial (2 years earlier) and did not hear any prejudicial parts played.  If they had been, he would have objected.

Trial counsel’s testimony and the State’s introduction of the DA’s note sheet doomed Nutting’s request for a new trial and his argument that the defective record undermined his appellate rights. The postconviction court was able to reconstruct the record per State v. De Filippo, 2005 WI App 213, 287 Wis. 2d 193, 704 N.W.2d 410. So the court of appeals affirmed. Opinion, ¶38.

State v. Robert James Pope, pending in SCOW, raises a similar issue–whether a defendant is denied his right to a meaningful appeal when all of his trial transcripts are missing and it is impossible to reconstruct them.

Nutting also argued that the State committed 2 Brady violations. The 14-year old victim in this case posed as an 18-year-old online. She had told her mom that she was going to have sex with 2 men in their house and her mom said “just don’t get pregnant.” The State did not promptly tell Nutting that it had charged the mom with “failure to protect” and that the 14-year-old had given a victim impact statement acknowledging that she was a liar and frequently disobeyed her mom and talked to older men when she knew that was wrong.

The court of appeals refused to address the first violation saying that Nutting failed to develop it at the postconviction stage. Opinion, ¶49 n.5. As for the the victim impact statement, the court of appeals first said that it undercut Nutting’s defense by showing that the victim was subject to exploitation. It also said that the evidence was cumulative. It found no reasonable probability of a different outcome and hence no Brady violation. Opinion,. ¶49

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