State v. Harp
288 Wis. 2d 441, 2005 WI App 250, 707 N.W.2d 304 (2005)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A witness's testimony does not constitute 'alibi testimony' requiring prior notice if it places the defendant in the immediate vicinity of the crime scene and does not establish the physical impossibility of the defendant's guilt, as an alibi defense requires showing the defendant was 'elsewhere' and thus could not have committed the offense.
Facts:
- Barbara Harp, a certified nursing assistant (CNA) at the Columbia County Healthcare Facility, was charged with two counts of intentionally abusing a patient, Jody Parker.
- CNA Stephanie Kleist reported an incident on July 20, 2003, where she heard Harp slap Parker and then saw Harp wiping blood off Parker's face.
- The criminal complaint was later amended to include a second alleged incident involving Harp and Parker on May 16, 2003.
- Stephanie Kleist testified that on May 16, 2003, Harp was her partner on Birch Boulevard, and Parker was in the section for which Harp was responsible.
- Leah Stahl, another CNA, testified that in March 2003, Birch Boulevard was split into two sections: one for patients with dementia and another mixed section, where Parker resided.
- Leah Stahl testified that she was Harp's partner on the dementia end of the hallway until after Memorial Day 2003 (May 26) and that Parker was not on the dementia end.
- During cross-examination, Leah Stahl affirmed she was 'pretty sure' she was working with Harp on the dementia unit on May 16, 2003, and if she wasn't, Harp would not have been on the non-dementia end.
Procedural Posture:
- Barbara Harp was charged with two counts of intentionally abusing a patient at a health care facility in a criminal complaint, which was later amended.
- The case against Harp proceeded to trial on September 23, 2004.
- After the defense called witness Leah Stahl, the prosecutor moved for a mistrial, arguing Stahl had provided alibi testimony without the required prior notice.
- The trial court initially declined to order a mistrial, but later, after a recess to search for relevant work records which were not found, the court declared a mistrial.
- Harp filed a motion to dismiss the charges against her based on double jeopardy clauses, which the trial court denied.
- Harp appealed the trial court's mistrial order and its order denying her motion to dismiss the complaint to the Court of Appeals of Wisconsin.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a witness's testimony constitute 'alibi testimony,' requiring prior notice to the prosecution under Wis. Stat. § 971.23(8)(a), when it places the defendant in the same building and hallway as the crime scene but not at the exact location of the alleged incident?
Opinions:
Majority - DYKMAN, J.
No, a witness's testimony does not constitute 'alibi testimony' requiring prior notice when it places the defendant in the same building and hallway as the crime scene but not at the exact location of the alleged incident, because it fails to establish the physical impossibility of the defendant's guilt. The court concluded that Stahl's testimony did not meet the definition of alibi under Wisconsin law, which, as established in State v. Shaw, requires proving the defendant was "elsewhere" and thus physically unable to commit the crime. Stahl's testimony, which placed Harp in the same building and "immediate vicinity" (the other end of the hallway) of the crime scene, did not show physical impossibility. The court distinguished Jensen v. State, noting it predated Shaw and involved a defendant who had already presented an alibi defense, which Stahl's testimony would have reinforced, unlike Harp's case. Moreover, the court highlighted that any testimony from Stahl approaching "alibi territory" was primarily elicited during the prosecutor's cross-examination, not on direct examination by Harp's counsel.
Analysis:
This case significantly clarifies the precise definition of 'alibi testimony' under Wisconsin law, reinforcing that it must demonstrate the defendant's physical impossibility of presence at the crime scene. By narrowly interpreting the alibi notice statute, the ruling protects defendants' double jeopardy rights from mistrials based on testimony that merely rebuts the prosecution's account of location within a general area rather than asserting complete absence. This precedent will guide lower courts in distinguishing between true alibi defenses, which require notice, and general defense testimony that aims to discredit the prosecution's timeline or location assertions without claiming physical impossibility. Future cases will likely scrutinize whether a witness's statement establishes physical impossibility or simply offers an alternative, proximate location.
