Evidence — rebuttal evidence

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Wisconsin Court of Appeals

Criminal

Evidence — rebuttal evidence

Where the defendant testified, it was not error to admit evidence in rebuttal that had previously been excluded as a discovery sanction against the state.

“Here, the expert witness and fingerprint evidence were excluded by the trial court due to a statutory discovery violation. As in Wold, the exclusion of the evidence from the State’s case-in-chief was not due to its untrustworthiness or unreliability. At trial, Novy did not challenge the accuracy of the fingerprint evidence or object that the State’s introduction of the evidence in rebuttal deprived him of the opportunity to retain his own expert. Indeed, he testified that he did use the phone—effectively admitting that the fingerprint testimony and evidence was accurate. And, Novy had an opportunity to reply on surrebuttal.”

“Novy’s complaint is that his testimony was impeached—that he was made to appear untruthful or less credible. However, the discovery statute provides notice that undisclosed rebuttal witnesses may be used. And here, the witness and fingerprint evidence were identified during opening statements and discussed during the subsequent motion to exclude. Further, Novy cannot claim reliance on the initial exclusion of this evidence; the trial court expressly left open the question of whether the fingerprint evidence would be used in rebuttal. Consistent with the reasoning of Konkol, Wold and Harris, having voluntarily taken the stand, Novy was under an obligation to speak truthfully, and the prosecution “did no more than utilize the traditional truth-testing devices of the adversary process.” Harris, 401 U.S. at 225. We see no error in the trial court’s implicit conclusion that there was no apparent justification for permitting the defendant to affirmatively resort to unimpeachable testimony in reliance on the State’s inability to challenge his credibility. Id. at 226. We therefore turn to whether the witness testimony and fingerprint evidence in this case was bona fide rebuttal evidence.”

Affirmed.

Recommended for publication in the official reports.

2011AP407-CR – 2011AP409-CR State v. Novy

Dist. II, Kenosha County, Kluka, J., Neubauer, J.

Attorneys: For Appellant: Easton, Joseph George, Kenosha; For Respondent: Zapf, Robert D., Kenosha; Remington, Christine A., Madison