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Discovery violation didn’t require mistrial, and evidence was sufficient to support possession of firearm conviction

State v. Francisco Luis Canales, 2013AP1435-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity

Though the state violated its discovery obligation by failing to disclose multiple computer-aided dispatch (CAD) reports describing 9-1-1 calls regarding the incident, the circuit court did not erroneously exercise its discretion in denying Canales’s motion for mistrial after the discovery violation came to light.

A mistrial is appropriate only when there is a “manifest necessity,” for “the law prefers less drastic alternatives, if available and practical.” State v. Bunch, 191 Wis. 2d 501, 507, 512, 529 N.W.2d 923 (Ct. App. 1995). (¶21). Here, once the discovery violation became evident, the trial court granted a continuance until the following morning, at which point the state informed the trial court and counsel it had contacted three witnesses named in the reports. The trial court offered defense counsel additional time to investigate, which she declined. As a remedy to the discovery problem, the trial court struck all the testimony of the 9-1-1 operator along with the 9-1-1 call previously played for the jury and precluded the state from introducing the other anonymous 9-1-1 calls and corresponding CAD reports. (¶¶9-14, 22). Under these circumstances, the missing reports did not create a “manifest necessity”: “Canales did not explain how he would have changed his trial strategy had he known the witnesses’ names prior to trial, nor did he pursue the named witnesses. Canales also did not renew his motion for a mistrial after the witnesses were identified. Canales cannot now argue that he suffered prejudice.” (¶23).

In addition, the evidence presented at trail, though circumstantial, was sufficient to support Canales conviction for being a felon in possession of a firearm, applying State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990). That evidence included Canales’s ex-girlfriend statement identifying him as the shooter; and though she later recanted that statement, there was evidence the recantation was due to the witnesses expressed fear of Canales and his family. In addition, police collected bullet casings from the scene, and those matched the caliber and brand of ammunition found during the search of Canales’s bedroom room at his mother’s home, where the police also found a car matching a description of the car fleeing the scene. (¶¶2-8, 28-29).

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