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Evidence Excluded from Case-in-Chief for Discovery Violation Admissible on Rebuttal; Appellate Review: Omitted Transcript Presumed to Support Discretionary Trial Court Ruling; Sleeping Juror

State v. Brent T. Novy, 2012 WI App 10 (recommended for publication), petition for review granted, 6/13/12; for Novy: Joseph George Easton; case activity

Rebuttal – Evidence Excluded from Case-in-Chief for Discovery Violation 

Expert witness testimony, excluded from the State’s case-in-chief as a sanction failure to identify the witness during discovery, was admissible on rebuttal to attack the defendant’s testimony after he testified.

¶10      Novy contends that evidence ruled inadmissible in the State’s case-in-chief due to a discovery violation, “should [be] excluded at all stages of the trial, including rebuttal.”  The circuit court found that State v. Konkol, 2002 WI App 174, 256 Wis. 2d 725, 649 N.W.2d 300, provides guidance, as do we.  In Konkol, this court addressed whether the State was required to disclose a known and anticipated rebuttal witness regardless of the statement in Wis. Stat. § 971.23(1)(d) that the duty to disclose expert witnesses does not apply to rebuttal witnesses or those called for impeachment only.  Konkol, 256 Wis. 2d 725, ¶1.  The Konkol court concluded that the State was not required to do so.  Id., ¶10. …  The test for the admissibility of rebuttal evidence is not whether it could have been admitted in the State’s case but rather whether the rebuttal testimony only became necessary and appropriate when the defendant presented his case-in-reply.  Id., ¶18 (citing Lunde, 85 Wis. 2d at 91-92).

¶11      Pointing to Konkol, Novy asks us to draw a bright-line distinction between rebuttal evidence that the State intended for use in rebuttal only and evidence the State offers in rebuttal after having been excluded for use in the State’s case-in-chief under Wis. Stat.§ 971.23(7m) for failure to disclose.  We decline to do so.  …

¶13      Konkol thus affirms that, under Wis. Stat. § 971.23(1)(d), bona fide rebuttal evidence is admissible despite the absence of any disclosure by the State.  Likewise, disclosure of reports accompanying rebuttal testimony is not required under § 971.23(1)(e).[3]  A sanction under § 971.23(7m) is applicable to only those witnesses and evidence required to be disclosed.  Once Novy took the stand and denied calling Julie from the pay phone at L&M Meats, the rebuttal evidence was no less necessary because it was initially intended for the State’s case-in-chief than if it were admissible or more appropriate for the case-in-chief.  One does not necessarily preclude the other; admission lies within the sound discretion of the court.  State v. Watson, 46 Wis. 2d 492, 499, 175 N.W.2d 244 (1970) (whether evidence which could, or should, have been admitted as part of the prosecution’s case-in-chief may be received in rebuttal lies within the discretion of the court).

At a high enough level of generality, the operative principle is non-controversial: discovery provisions don’t apply to rebuttal evidence, therefore evidence excluded from the case-in-chief as a sanction for a discovery violation isn’t for that reason alone off-limits on rebuttal, ¶8. The court’s application of the principle to the specific facts is another matter. Novy was tried on multiple counts, including a bail jumping charge that involved his allegedly using a pay phone to call someone he was barred from contacting. Because the State failed to disclose an expert who would testify that Novy’s fingerprints were on the phone, the State was precluded from adducing this evidence and that particular charge was dismissed after the State rested, ¶5. Novy testified on his own behalf without addressing the matter but during its cross, the State elicited his denial that he used that phone to make that call. The trial court then allowed the State to use the previously barred expert testimony to impeach that denial. The State, in other words, dredged up the dismissed charge to get around the discovery sanction. As the dissent points out, given the dismissal, the fingerprint evidence on rebuttal was simply irrelevant, ¶27. “The majority’s reliance on KonkolWold and Harris are all misplaced as those cases relate to the admission of relevant rebuttal evidence—evidence that was related to the crimes being tried.  The rebuttal expert used against Novy, in contrast, was not a ‘bona fide rebuttal witness’ as he was not offering any evidence related to a crime the jury was considering, nor was the evidence permitted ‘other-acts’ evidence,” ¶29.

If we eliminate the discovery sanction as an insignificant variable – mere distraction – and instead focus as the dissent does on the key variable (dismissal), then the operative evidentiary principles come into sharper focus. Once the phone charge was dismissed, it became “collateral” to the remaining counts. It is true that Wisconsin follows a rule allowing wide-open cross-examination as to matters relevant to the offense(s) being tried, see generally Neely v. State, 97 Wis. 2d 38, 292 N.W.2d 859 (1980), but it is precisely that showing that the majority here fails to demonstrate, indeed fails even to acknowledge. To be sure, Neely reserves “whether cross-examination purely collateral to the subject matter of direct examination [is] permissible under the wide-open rule,” 97 Wis. 2d at 48. Thus, the State’s cross of Novy may have been permissible, but even so another principle then comes into view: the rule prohibiting impeachment via extrinsic evidence, § 906.08(2). See, e.g., McClelland v. State, 84 Wis. 2d 145, 159, 267 N.W.2d 843, 849 (1978) (“In addition to the specific rule in respect to extrinsic proof of misconduct, another rule is applicable. Impeachment of a witness on the basis of collateral facts introduced by extrinsic testimony is forbidden.”) Of course, if the phone evidence was admissible as other-acts evidence, then it wouldn’t be collateral. But that is precisely the dissent’s point: no attempt was made to introduce it on that basis, nor does the majority bother to analyze admissibility in those terms, ¶27. Instead, the majority relies on boilerplate about the obligation to testify truthfully, ¶16 – if it were that simple, then the extrinsic-impeachment rule would be reduced to rubble.

Appellate Review – Record on Appeal 

¶20      A trial court’s decision to admit other-acts evidence is a discretionary one, and we affirm if the trial court reviewed the relevant facts, applied a proper standard of law, and using a rational process, reached a reasonable conclusion.  State v. Davidson, 2000 WI 91, ¶53, 236 Wis. 2d 537, 613 N.W.2d 606.  Here, Novy has failed to provide this court with a transcript of the February 25, 2010 hearing and we have no record of the trial court’s reasoning.  We therefore assume the record supports the trial court’s ruling.  See State v. McAttee, 2001 WI App 262, ¶5 n.1, 248 Wis. 2d 865, 637 N.W.2d 774 (“It is the appellant’s responsibility to ensure completion of the appellate record and when an appellate record is incomplete in connection with an issue raised by the appellant, we must assume that the missing material supports the trial court’s ruling.”  (Citation and internal quotations omitted)).  We uphold the trial court’s other-acts ruling.

Basic stuff.

Sleeping Juror

The trial court properly exercised discretion in refusing to remove a juror who, according to defense counsel, appeared to fall asleep during closing argument.

¶23      At the outset, we note that the parties and the trial court disagreed as to whether the juror did, in fact, fall asleep during defense counsel’s closing argument.  In considering Novy’s motion to remove the juror, the trial court noted that it had paid “very close attention to the demeanor and conduct of the jurors.”  The court did not notice the juror sleeping during closing argument and did not “notice any of those kinds of problems while testimony was coming in.”  The trial court then correctly observed that removal may be required if a juror is asleep during testimony or during the presentation of evidence.  See Hampton, 201 Wis. 2d at 673 (if there is sufficient demonstration of juror sleepiness, the trial court must inquire as to the importance of the testimony missed).  However, closing arguments are not evidence.  SeeWis JI—Criminal 160 (“Consider carefully the closing arguments of the attorneys, but their arguments and conclusions and opinions are not evidence.”)  We know of no Wisconsin case, and Novy has not cited one, in which a juror was removed for nodding off during closing arguments.  We therefore reject Novy’s argument that the trial court erred in failing to conduct a further inquiry into whether the juror was sleeping.  We also note that Novy never requested the court to conduct further inquiry.  This court does not fault the trial court for failing to undertake a discretionary measure when the defendant did not ask the court to do so.  See State v. Gollon, 115 Wis. 2d 592, 604-05, 340 N.W.2d 912 (Ct. App. 1983).  We uphold the trial court’s discretionary determination denying Novy’s request to remove a juror.

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