State v. Novy
338 Wis. 2d 439, 809 N.W.2d 889, 2012 WI App 10 (2011)
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Rule of Law:
Evidence initially excluded from the prosecution's case-in-chief due to a discovery violation may be admitted on rebuttal to impeach a defendant's testimony, provided it constitutes bona fide rebuttal evidence, is trustworthy, and directly contradicts statements made by the defendant on the stand.
Facts:
- Brent Novy was formerly engaged to Julie N.
- Novy engaged in conduct toward Julie N., leading to charges of stalking and bail jumping between October 2007 and November 2008.
- As a condition of his bail, Novy was ordered to have no contact with Julie N. and to stay within 1000 feet of her residence.
- In October 2006, prior to the stalking incidents, Novy had secretly placed a hidden video recorder in Julie N.'s bedroom without her knowledge.
- Starting in late October 2008, Julie N. received phone calls at her home from various public payphone locations.
- On November 9, 2008, Julie N. received a call from a payphone at L&M Meats, a location Novy had been seen near and which was close to his residence.
- During his trial, Novy testified in his own defense and explicitly denied calling Julie N. from the L&M Meats payphone on November 9, 2008.
- Later, in surrebuttal, Novy testified that he had used the L&M Meats payphone on November 9, 2008, but claimed he had called a friend in the Philippines.
Procedural Posture:
- On May 8, 2008, the State charged Novy with one count of stalking Julie N. in a trial court.
- On November 12, 2008, the State filed additional charges against Novy in the trial court, including another count of stalking and eight counts of bail jumping for violating release conditions.
- On January 14, 2009, the State filed further charges against Novy in the trial court, including three counts of bail jumping and one count of violating a harassment injunction.
- The trial court consolidated all cases, and they proceeded to a jury trial on May 24, 2010.
- During opening statements, Novy's defense counsel moved to exclude the State's fingerprint evidence, alleging a discovery violation for failure to disclose it properly.
- The trial court excluded the fingerprint evidence from the State's case-in-chief due to the State's discovery violation.
- At the close of the State's evidence, Novy moved to dismiss the bail jumping count (Count 7) related to the L&M Meats phone call due to insufficient evidence without the fingerprint evidence, and the trial court granted the motion.
- After Novy testified in his defense and denied making the L&M Meats call, the State sought to introduce the previously excluded fingerprint evidence on rebuttal.
- The trial court ruled that the fingerprint evidence was admissible as bona fide rebuttal evidence and allowed the State to present it.
- A jury convicted Novy on multiple counts of stalking, bail jumping, and violating a harassment restraining order, but acquitted him on four counts of bail jumping.
- Novy appealed his judgments of conviction, including challenges to the admission of the fingerprint evidence, other-acts evidence, and the denial of his motion to remove a juror, to the Wisconsin Court of Appeals.
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Issue:
Does evidence excluded from the State's case-in-chief due to a discovery violation under Wis. Stat. § 971.23(7m) become admissible on rebuttal to impeach a defendant's testimony, even if the underlying charge to which the evidence relates was dismissed?
Opinions:
Majority - Neubauer, PJ.
Yes, evidence excluded from the State's case-in-chief due to a discovery violation may be admitted on rebuttal to impeach a defendant's testimony if that testimony makes the evidence necessary and appropriate. Wisconsin Stat. § 971.23(l)(d) explicitly exempts rebuttal witnesses and impeachment-only witnesses from discovery disclosure requirements, meaning sanctions under § 971.23(7m) do not apply to such evidence. The court, citing State v. Konkol, emphasized that the focus is on whether the evidence is bona fide rebuttal, becoming necessary only after the defendant presents their case-in-reply, rather than whether it could have been part of the State's initial case. The court also drew guidance from Wold v. State and Harris v. New York, which permit using evidence inadmissible in the case-in-chief for impeachment purposes if the defendant takes the stand and testifies untruthfully, provided the evidence is trustworthy. Here, the fingerprint evidence was excluded due to a statutory discovery violation, not untrustworthiness, and Novy did not challenge its accuracy. Novy's denial of making the call from the L&M Meats payphone made the fingerprint evidence bona fide rebuttal evidence. The court affirmed the trial court's broad discretion in admitting such evidence. Additionally, the court upheld the admission of other-acts evidence (hidden camera) due to Novy's failure to provide a transcript of the hearing where it was admitted, thereby assuming the record supported the ruling. Finally, the court found no error in denying Novy's request to remove a juror for allegedly sleeping during closing arguments, as closing arguments are not evidence, and the trial court did not observe the juror sleeping during testimony.
Dissenting - Reilly, J.
No, the evidence of the L&M Meats phone call and the related fingerprint evidence should not have been admitted on rebuttal because the underlying bail jumping charge associated with that phone call had been dismissed by the trial court, rendering the evidence irrelevant to any remaining charges before the jury. The dissent argued that once the specific charge was dismissed, the evidence connecting Novy to the phone call ceased to be legally or logically relevant to the crimes for which he was being tried. While a defendant's testimony may open the door to impeachment, this principle should apply only to evidence relevant to the charges still under consideration. The State did not seek to introduce the fingerprint evidence as 'other-acts' evidence under Wis. Stat. § 904.04(2), nor did the trial court apply the proper analysis for such evidence. Allowing its admission rewards the State for both a discovery violation and a failure to follow proper procedure for other-acts evidence. The cases cited by the majority (Konkol, Wold, Harris) are distinguishable, as they involved relevant rebuttal evidence pertaining to charges that were actively being tried, unlike the dismissed charge in this case. Therefore, the expert testimony and fingerprint evidence were not 'bona fide rebuttal evidence' under these circumstances.
Analysis:
This case significantly clarifies the parameters for admitting rebuttal evidence in Wisconsin, particularly when that evidence was initially excluded for a discovery violation. It reaffirms that the State’s duty to disclose witnesses and evidence does not typically extend to bona fide rebuttal evidence, even if known or anticipated prior to trial, emphasizing the importance of impeaching untruthful defendant testimony. The ruling balances a defendant's right to discovery with the truth-finding function of the adversarial process, setting a high bar for excluding otherwise trustworthy evidence used to contradict a defendant's direct testimony. Future cases will likely rely on this decision to navigate disputes over the admissibility of impeachment evidence that was previously sanctioned or known but not disclosed, highlighting the broad discretion afforded to trial courts in such matters.
