01-1393 State v. Franszczak

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“The flaw in Franszczak’s argument lies in his assumption that the evidence was exculpatory when it was in the possession of the crime lab. When the evidence was seized and submitted to the crime lab, the State did not know whether the crime lab testing would produce inculpatory, exculpatory, or inconclusive results. The State submitted the evidence for testing to resolve that very uncertainty. The ensuing testing established that the evidence was not exculpatory.

Instead, it was highly inculpatory-the testing matched metal fragments on Franszczak’s clothing with metal fragments from the scene of the burglary. So the State was under no obligation to disclose the evidence or the test results to Franszczak under the exculpatory evidence provisions of Wis. Stat. sec. 971.23(1)(h).

“Moreover, the State’s gratuitous disclosure of the crime lab report and tender of the evidence to Franszczak for his own testing rendered the application of Wis. Stat. sec. 165.79(1) moot. …

“In summary, Franszczak got exactly what he was entitled to under the interplay between Wis. Stat. sec. 165.79(1) and 971.23. The privilege set out in sec. 165.79(1) did not bar Franszczak from obtaining the evidence he was entitled to under the discovery and inspection provisions of sec. 971.23. Franszczak received the physical evidence that the State intended to offer at trial pursuant to sec. 971.23(1)(g). He also received a copy of the crime lab report pursuant to sec. 971.23(1)(e). Finally, he was granted permission to submit the evidence for testing by his own expert pursuant to sec. 971.23(5). But Franszczak was not entitled to examine the crime lab analyst at an evidentiary hearing under sec. 165.79(1).”

Affirmed.

Recommended for publication in the official reports.

Dist II, Waukesha County, Gempeler, J., Nettesheim, P.J.

Attorneys:

For Appellant: Martin E. Kohler, Milwaukee; John C. Thomure Jr., Milwaukee; Ernesto Chavez, Madison; Brian Kinstler, Milwaukee

For Respondent: Paul E. Bucher, Waukesha; Christopher G. Wren, Madison