Criminal Procedure — discovery

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Criminal Procedure — discovery

The State of Wisconsin appeals from a postconviction court order granting Joseph Hammer’s motion for a new trial and ordering a hearing to vacate the judgment of conviction. At issue in Hammer’s postconviction motion was trajectory rod evidence that the trial court permitted into evidence at trial, even though the State admitted that it failed to produce the evidence during discovery, in violation of Wis. Stat. § 971.23(1)(g) (2009-10). The postconviction court concluded that the trial court erroneously exercised its discretion by admitting the evidence, not based upon the discovery violation, but because the evidence lacked sufficient foundation and because admission of the evidence prejudiced the defense. We do not directly address the propriety of the postconviction court’s reasoning that the evidence lacked foundation because the issue of proper foundation was never raised before the trial court and because we conclude that other grounds exist for affirming the reversal by the trial court. We affirm the postconviction court because the State admits it violated the discovery statute and because we agree with the postconviction court that admission of the trajectory rod evidence was not a harmless error. See State v. Tolefree, 209 Wis. 2d 421, 424 n.3, 563 N.W.2d 175 (Ct. App. 1997) (We may affirm the postconviction court on grounds other than those addressed by that court.). Consequently, we remand the case back to the trial court for proceedings consistent with the postconviction court’s order. Not recommended for publication in the official reports.

2010AP3019-CR State v. Hammer

Dist I, Milwaukee County, Yamahiro, J., Brennan, J.

Attorneys: For Appellant: Loebel, Karen A., Milwaukee; Lovern, Kent L., Milwaukee; Lloyd, Katherine Desmond, Madison; For Respondent: Anderegg, Rex, Milwaukee

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