State can dismiss, refile after discovery error

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“Miller is evidently of the view that the sanction of exclusion of evidence when the State has the option of dismissing and refiling the same charges is not strong enough, but he is arguing for a sanction that the plain language of the statute does not address.” Hon. Margaret Vergeront Wisconsin Court of Appeals

When a court bars the State from presenting evidence, as a sanction for failure to comply with the discovery statutes, the State may dismiss and refile a new case, in which it can present the barred evidence, the Wisconsin Court of Appeals held on May 6.

On June 5, 2000, the State charged Jason C. Miller with OWI, fifth offense, for an incident that occurred on June 3. The State later added a charge for operating with a prohibited alcohol concentration, based on the same incident.

In early September 2000, Miller filed a discovery demand for all reports of expert witnesses or, if none existed, a written summary of the expert’s findings. However, the State did not provide any reports or summaries in response to the request until Feb. 23, 2001, the Friday before the Monday jury selection.

Miller moved to exclude the evidence on blood alcohol concentration, asserting that the State had not provided the summary within a reasonable time before trial as required by sec. 971.23(1)(e).

Dane County Circuit Court Judge Moria Krueger agreed and granted the motion pursuant to sec. 971.23(7m)(a), which provides: “The court shall exclude any … evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance.”

The State then asked for a continuance, to which Miller objected. Judge Krueger concluded that, unless Miller sought or agreed to a continuance, the court was required by secs. 971.23(1) and (7m)(a) to exclude the evidence. Judge Krueger therefore ruled that the expert’s testimony was excluded and denied the State’s motion to stay that ruling pending appeal.

The prosecutor then moved to dismiss the charges, and Miller opposed the motion. Judge Krueger concluded she did not have the authority to deny a prosecutor’s motion to dismiss charges because he or she was not prepared to proceed, nor the authority to dismiss with prejudice. Accordingly, Judge Krueger granted the motion and dismissed the charges without prejudice.

The State then reissued the two charges in a complaint filed in May 2001. The case was assigned to Judge David Flanagan. Miller moved to “enforce” Judge Krueger’s order excluding the State’s expert’s BAC testimony on the grounds of equal protection, issue preclusion, claim preclusion, and estoppel by record.
Judge Flanagan denied the motion, and Miller was convicted. He appealed, but the court of appeals affirmed in a decision by Judge Margaret Vergeront.

The Statute

The court rejected Miller’s argument that permitting the State to refile and present the previously excluded evidence circumvents the statute.

Reviewing the statute, the court noted that the first sentence of sec. 971.23(7m)(a) requires the court to exclude evidence not presented unless good cause is shown. If good cause is shown, the court may exclude the evidence but it is not required to do so; it may instead grant the opposing party a recess or continuance, as provided in the second sentence.

The court thus concluded, “There is nothing in the paragraph to suggest that the legislature intended to prevent the offending party from introducing the same evidence in a subsequent proceeding if there was no violation in that proceeding of the party’s obligations under sec. 971.23. Similarly, there is nothing in this paragraph to suggest that the State may not obtain a dismissal of charges after evidence is excluded under this paragraph and then refile the charges.”

The court added, “Wisconsin Stat. sec. 971.23(7m) prevents a situation in which one party has to proceed to trial without adequate time to prepare in response to the other party’s required disclosures, and that situation was prevented here by Judge Krueger’s ruling. Miller is evidently of the view that the sanction of exclusion of evidence when the State has the option of dismissing and refiling the same charges is not strong enough, but he is arguing for a sanction that the plain language of the statute does not address.”

Equal Protection

The court then held that its construction of the statute does not violate Miller’s right to equal protection.

Miller argued that, although both the State an
d defendants have obligations to provide discovery and both are subject to the sanctions in sec. 971.23(7m) for not doing so, only the State has the option of dismissing the case and refiling it, thus avoiding the sanction.

However, the court found that this difference is not the result of any classification by the legislature, but of the fundamentally different roles of the prosecutor, who files the charges, and the defendant, who defends against them.

The court concluded, “Both the State and defendants are subject to the sanctions and remedies of sec. 971.23(7m) if they do not meet their statutory obligations, and, under our construction of this paragraph, neither a defendant nor the State is precluded in a subsequent case from using evidence previously excluded under 971.23(7m) if the statutory disclosure requirements are met in the later case.”

The court added, “The government has a legitimate interest in the prosecution of criminal charges, consistent with the constitutional rights afforded a criminal defendant.

Allowing the State the opportunity to dismiss and refile charges when evidence has been excluded under sec. 971.23(7m) but might not be excluded in a new action furthers that interest in a rational way, even though the defendant does not have the same option. The defendant, like the State, has the protections in sec. 971.23(7m) against untimely disclosures; and the defendant has the constitutional protections of due process, speedy trial, and double jeopardy prohibition to circumscribe the State’s use of its authority to decide when to file charges, when to dismiss, and when to refile.”

Issue Preclusion

The court then held that admission of the evidence is not barred by the doctrine of issue preclusion, because the facts were different in the two cases.

The court reasoned, “In the second action, the facts were different in that Miller already had a copy of the expert’s summary. Judge Krueger decided that sec. 971.23(7m)(a) required exclusion of the State’s expert testimony in the trial then scheduled because the State had not provided a summary within a reasonable time before that trial and did not have good cause. The issue before Judge Flanagan regarding that testimony was whether sec. 971.23(7m) or some other authority required that the testimony be excluded even though Miller had a summary of the expert’s testimony well in advance of the trial in the second case.”

Rejecting Miller’s argument that the factual context of the issues presented were different only because the State “manipulated” the facts by seeking dismissal and then refiling the charges, the court held, “the doctrine of issue preclusion is not concerned with why the facts are different in the second litigation and, thus, why there is a different issue of law presented.”

Claim Preclusion

The court also held that the prosecution is not barred by the doctrine of claim preclusion for two reasons.

The court wrote, “First, as is evident from the name of this doctrine, its application bars a claim, or cause of action, but Miller does not seek that result. … Rather, Miller is arguing that in the second action on the same charges, which he implicitly concedes the State was not precluded from filing, the State may not present certain evidence because the admissibility of that evidence was determined in the first action. This is not the remedy that the application of claim preclusion affords.”

Second, the court found the doctrine inapplicable because there was no final judgment on the merits: “Judge Krueger’s order excluding the BAC testimony did not in any sense decide the merits of the charges against Miller. The order dismissing the charges also was not a ‘final judgment on the merits’ because it was without prejudice, meaning that no decision on the merits had been made and the State was therefore free to refile the same charges to obtain a judgment on their merits.”

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Estoppel by Record

Finally, the court held that the evidence was not precluded by the “estoppel by record doctrine.”

Estoppel by record has been employed when the prior proceeding was before an administrative agency, and because there was no prior final judgment on the merits from a court of competent jurisdiction, claim preclusion was unavailable.

The court declined to decide whether the doctrine is applicable whenever the third requirement for claim preclusion — absence of a final judgment on the merits — cannot be met for some reason. Even if that were a correct interpretation of the doctrine, the court found it inapplicable, because Miller was not seeking to bar prosecution of a claim, but only admission of evidence.

Accordingly, the court affirmed.

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David Ziemer can be reached by email.