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Postconviction Discovery

State v. Timothy M. Ziebart, 2003 WI App 258
For Ziebart: Robert R. Henak
Issue: Whether defendant was entitled to postconviction discovery on the issue of whether the sexual assault complainant had been located at a drug house and held in custody pending her testimony.

¶32. A defendant has a right to postconviction discovery if the desired evidence is relevant to an issue of consequence. State v. O’Brien, 223 Wis. 2d 303, 321, 588 N.W.2d 8 (1999). Further, a defendant seeking such discovery must establish that the evidence probably would have changed the outcome of the trial. Id. “The mere possibility that an item of undisclosed information might have helped the defense” is not enough. Id. We will uphold a court’s denial of postconviction discovery absent an erroneous exercise of discretion. Id. at 320.¶33. A defendant is not automatically entitled to a hearing on a postconviction motion. State v. Bentley, 201 Wis. 2d 303, 313, 548 N.W.2d 50 (1996). If a defendant presents only conclusory allegations that fail to raise a question of fact, or if the record conclusively demonstrates that the defendant is not entitled to relief, the court may deny the motion on its face. Id. at 309-10. Whether a motion alleges facts warranting relief, thus entitling a defendant to a hearing, is a legal issue we review de novo. Id. at 310. If the motion fails to allege sufficient facts, the trial court has discretion to deny the postconviction motion without a hearing, id. at 310-11, and this court reviews that denial solely to determine whether the court erroneously exercised discretion, id. at 311.

¶34. Here, we see no erroneous exercise of discretion. Responding to Ziebart’s motion, the State conceded its difficulty in producing Mary but represented that she was never held in state custody or coerced for her testimony. Ziebart offered nothing more than Mary’s acquaintance’s impression to suggest otherwise. Moreover, as Ziebart concedes in his brief to this court, “the [S]tate, like any party, may use a subpoena or material[-]witness order to coerce a witness to attend the trial and answer questions.” Thus, given that the State could have lawfully held Mary in custody to gain her testimony, the details of any such custody could establish nothing more than the “mere possibility” that such information “might have helped the defense.” See id.

Well, how this witness’s presence was obtained might not be important, but the court doesn’t quite explain why this is so. The fact that she had been found in a crack house and held in custody before testifying (assuming that to be so) might well have given the defense a line of impeachment. A pending charge is certainly relevant to witness-credibility, whether or not a deal has been struck for testimony. State v. Barreau, 2002 WI App 198, ¶55. But that principle may not be as meaningful in this case, if the jury heard testimony anyway that the complainant was a “crack whore.” The court doesn’t say. The court seems to dispose of the issue on procedural as well as (tersely stated) substantive grounds: the motion was conclusory, offering “only” the assertion of the complainant’s acquaintance. It’s not clear why this isn’t enough – an assertion made by someone with personal knowledge of the matter isn’t exactly conclusory. It could be that the court expects documentation, such as jail records, where they can be produced. In this context, apparently, less is not more.

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