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Defense win: State’s failure to disclose exculpatory Brady evidence warrants new trial

State v. Frank V. Blonda, 2015AP2431-CR, 4/11/17, District 1, (not recommended for publication); case activity (including briefs).

 M.L., the victim in this case, called her sister, Vincenza, and allegedly told her that Blonda had hit her in the head with a telephone. Vicenza reported this to the police.  Later, M.L. told the DA’s victim advocate that she did not want to press charges, Blonda did not hit her with the phone, and she had been drinking and wasn’t sure how she had been injured. She also filed a victim impact statement, which said that her injury was due to an accident that happened in Blonda’s absence. Unfortunately, the State didn’t disclose these statements to Blonda until the first and second days of his trial. The circuit court found a Brady violation, but held the evidence was not material and did not prejudice Blonda because M.L. didn’t testify at trial.

Evidence is material to a defendant’s guilt or punishment “is there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). “A reasonable probability of a different result is shown when the government’s evidentiary suppression undermines confidence in the outcome of the trial.” State v. Chu, 2002 WI App 98, ¶30, 253 Wis. 2d 666, 643 N.W.2d 878. The court of appeals explained:

¶36  As in White, the question in this case “‘is not whether [Blonda] would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.’” See id. (Citation omitted). Here, the jury was not able to make any determination regarding M.L.’s credibility because she did not testify at trial. Rather, the jury heard M.L.’s excited utterances as conveyed by Vincenza. If the jury was given the opportunity to hear M.L.’s recanting statement that she made to the victim advocate and her own written victim impact statement, the jury could have considered whether M.L. in fact made the statement that Vincenza attributes to M.L. and, if she made the statement to Vincenza, which of the statements the jury believed was truthful. Additionally, the jury had an additional option; that is, having heard all M.L.’s statements it could have concluded there was a reasonable doubt whether Blonda committed the crimes charged.

¶37 Because the State failed to timely disclose the existence of M.L.’s statements denying that she ever told anyone that Blonda threw the phone at her or hurt her, the jury could not weigh M.L.’s hearsay statements against each other. As we said in White, “[i]t may very well be that the jury would have adopted the trial court’s analysis, but under our system, [the defendant] had the right to lay a foundation to present his theory to the jury and have the jury decide—every defendant is entitled to ‘a meaningful opportunity to present a complete defense.’” See id. (Citation omitted.)

On a side note, the State’s response brief did not address the exculpatory nature of the evidence or its failure to disclose the evidence, so the court of appeals held that the State was deemed to have conceded these arguments pursuant to Charolais Breeding Ranches, Ltd v. FPC Secs Corp, 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1993).

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