00-1638 State v. DeLao

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“Having examined the scope of the prosecutor’s obligation under the statute and the statutory phrase ‘plans to use in the course of the trial,’ we turn to an application of § 971.23(1)(b) to the facts of this case. The issue becomes whether a reasonable prosecutor, exercising due diligence, should have known of DeLao’s statements before trial, and if so, whether a reasonable prosecutor would have planned to use them in the course of trial. Given all the facts here, we conclude that a reasonable prosecutor should have known of the statements and would have planned to use them. …

“In short, it seems that from the beginning of this case, DeLao maintained that she did what she did because she was afraid of Stalsberg. From the outset, she admitted that she removed evidence from the crime scene – the basis of the harboring or aiding a felon charge. She acknowledged that she initially lied to the police – the basis of the obstructing charge. Her response to these charges rested not on denying she committed the acts, but rather on a defense that she committed them out of fear. Thus, the record does not support the State’s assertion that DeLao’s ‘acting out of fear’ theory of defense became apparent only after her trial began. …

“Chaussee knew of the statements before trial began, and under the facts of this case, the State is charged with Chaussee’s knowledge of those statements. In addition, we determine that given all the circumstances, including the fact that DeLao maintained from the outset that she acted out of fear, a reasonable prosecutor who was aware of DeLao’s statements would have planned to use them in the course of trial. Therefore, the State violated § 971.23(1)(b) when it failed to disclose the statements before DeLao’s trial began. …

“Here, the State’s discovery violation undermined the essence of discovery. It placed DeLao on the horns of a dilemma and prejudiced her case. She must have the opportunity to choose a strategy and prepare for trial in light of all the evidence that should have been provided her. Therefore, we determine, as did the court of appeals, that she is entitled to a new trial.”

The decision of the Court of Appeals is affirmed.

DISSENTING OPINION: Prosser, J., with whom Sykes, J., joins. “Wisconsin Stat. § 971.23 outlines the discovery obligations of the prosecution and defense in criminal cases. This decision represents the most important interpretation of that statute in many years. In my view, the majority opinion abandons precedent, rewrites the statute, and unreasonably enlarges the discovery obligations of prosecutors. Its revision of discovery law is mistaken and unworkable. Moreover, the court’s mandate reversing the defendant’s three convictions is a disturbing application of the harmless error rule. Concerned about the consequences of the court’s determinations, I respectfully dissent.”

Court of Appeals; Bradley, J.

Attorneys:

For Appellant: Steven P. Weiss, Madison

For Respondent: Jeffrey J. Kassel, James E. Doyle, Madison