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01-2126-CR State v. Konkol

By: dmc-admin//June 25, 2002//

01-2126-CR State v. Konkol

By: dmc-admin//June 25, 2002//

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Defendant was on trial for OWI; after the State rested, defendant asserted that he had consumed only one alcoholic drink at a local restaurant and therefore could not have had a blood alcohol concentration of .12. The prosecutor attempted to call an expert who would testify that it was impossible to reach .12 with one drink; the trial court refused to allow the previously undisclosed witness, but did allow the use of a chart conveying the same message.

Defendant was convicted and appealed, challenging the use of the chart. We find that allowing the expert to testify would not have violated the discovery statute.

Sound policy reasons support our holding that the State should not be barred from putting on legitimate rebuttal evidence simply because it correctly anticipated the defense. Any contrary rule would cause considerable delay and confusion in the trial process.

“To put it bluntly, the defense takes its chances when offering a theory of defense and the State can keep knowledge of its legitimate rebuttal witnesses from the defendant without violating sec. 971.23(1)(d).”

Affirmed.

Recommended for publication in the official reports.

Dist II, Winnebago County, Hawley, J., Brown, J.

Attorneys:

For Appellant: Brian Hough, Appleton

For Respondent: Joseph F. Paulus, Oshkosh; Jennifer E. Nashold, Madison; Carissa J. Kuecherer, Oshkosh; Susan M. Crawford, Madison

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