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Victim’s list of corrections not exculpatory; DA can file NOA; one appellate judge can deny motion to dismiss

State v. Karl W. Nichols, 2016AP88-CR, 3/20/17, District IV (not recommended for publication); case activity (including briefs)

Nichols was convicted, at trial, of a sexual assault of a four-year-old child; the child did not report the alleged assault to anyone until she was 10 years old. Nichols’s postconviction motion alleged that the state had failed to turn over a list, prepared by the child, of changes she wished to make to statements she made during her first forensic interview. The circuit court found the state had acted in bad faith in withholding the list, vacated Nichols’s conviction, and dismissed the charges with prejudice. The court of appeals now reverses and remands for the circuit court to consider Nichols’s sentence modification claim.

The heart of the court’s ruling is that the list–which the state, after Nichols mentioned it at his sentencing, determined could not be found–is neither apparently nor potentially exculpatory. The child alluded to and mentioned one item from the list at the end of her second forensic interview, and the interviewer (who was in Kansas, where the child now lived) said that she would make a a copy for herself and for the Madison police officer who was listening in by telephone. She seemingly did not. In the court of appeals’s view,

The only reasonable inference from the facts—that M.R.W. had reviewed the first interview before participating in the second interview, and that she had a list of changes to make of some things she said in that first interview—is that she spoke accurately, truthfully, and consistently with her corrections, in the second interview. More specifically, if she was telling the truth about the corrections, and through the corrections was making sure that what she had said in the first interview was accurate, then there is no basis to suspect that her detailed description of the touching incident in the second interview was not congruent with whatever corrections were on her list. In other words, if the jury believed her statement that she got some things wrong in the first interview, they would have believed her more detailed description of the touching incident in the second interview.


So, does the above “inference” constitute fact-finding, which is forbidden to the court of appeals? Or is it a determination that the circuit court’s (opposite) inference was clearly erroneous? Or is it the application of the legal standard to the facts as found? The court of appeals doesn’t really say what it thinks it’s doing, though it mentions elsewhere that in reviewing the video of the interview, it stands in the same position as the circuit court.  See State v. Jimmie R.R., 2000 WI App 5, ¶39, 232 Wis. 2d 138, 606 N.W.2d 196 (1999).

In any case, the court of appeals’s inference leads inexorably to its result–if the video wasn’t even potentially exculpatory, Nichols’s counsel can’t have been ineffective for not getting a hold of it before trial, because Nichols can’t show prejudice. Nor did the state violate his Due Process rights by failing to turn it over. This is so even though the circuit court found the detective’s testimony about the list incredible, and further found that she, the prosecutor, and the interviewer had acted in bad faith (which findings the court of appeals’s opinion does not mention).

Nichols also argues that the district attorney was not statutorily authorized to file the notice of appeal, and that only the DOJ is empowered to do so. The court of appeals, reviewing the relevant statutes, disagrees. (¶¶56-60).

It also disagrees with Nichols’s argument that his motion to dismiss the appeal was improperly decided by one judge. The court of appeals’s internal operating procedures provide that

The motions judge may act on all motions, except those that reach the merits or preclude the merits from being reached, which can only be acted on by the panel. The motions judge may direct that any motion be acted on by the panel. The panel considers motions that reach the merits, that preclude the merits from being reached, or that have been referred by the motions judge.

Nichols argues that his motion to dismiss would “preclude the merits from being reached” and thus should have been referred to the panel. The court responds, in essence, that the motions judge may deny such a motion, but must refer it to the panel if he or she thinks it ought to be granted. (¶¶46-55).

{ 1 comment… add one }
  • Cole Ruby March 31, 2017, 10:47 am

    This opinion was infuriating to read. The court of appeals seems to completely ignore the trial court rulings, find its own facts, and draw its own inferences. It repeatedly refers to the list of “corrections,” taking the alleged victim at her word that her second statement was simply more accurate and therefore couldn’t be exculplatory. This is an incredibly narrow view of what constitutes “exculpatory evidence.”

    A list of “corrections” is an itemized list of prior inconsistent statements, and therefore has value for impeaching credibility. Federal and state courts have long recognized that there is no distinction between “exculpatory” evidence and “impeaching” evidence, at least for Brady purposes. See Strickler v. Greene, 527 U.S. 263, 280-82 (1999), United States v. Bagley, 473 U.S. 667, 676 (1985) (“This Court has rejected any such distinction between impeachment evidence and exculpatory evidence.”); see also State v. DelReal, 225 Wis. 2d 565, 570-71, 593 N.W.2d 461 (Ct. App. 1999) (“Impeachment evidence casting doubt on a witness’s credibility is material and subject to disclosure”). I would think the same analysis applies for claims of destruction of evidence and assessing what is “exculpatory.”

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