Wis. justices consider early excluded evidence in rebuttal

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If the state fails to produce key fingerprint evidence, which is later deemed inadmissible, before a criminal trial, should the evidence be admissible at any further stage of the proceedings?

The Wisconsin Supreme Court will have a chance to address this question in State v. Brent T. Novy, 2011 AP 407-409 (consol.)

Novy was convicted of two counts of stalking his ex-girlfriend and fiancée Julie, six counts of bail jumping and one count of violating a restraining order by a Kenosha County jury.

The fingerprint evidence that connected Novy to a local meat market telephone was allowed into evidence during the state’s rebuttal. It had been barred from the state’s case-in-chief due to problematic pre-trial disclosure.

Wisconsin Stat. 971.23(1)(d) and (g )require that the state must disclose any physical evidence that it will offer into evidence at trial, and any witness it intends to call in the state’s case-in-chief.

However, the state is “not required to disclose names of rebuttal witnesses or those called for impeachment purposes”, according to subsection (d) and (e) of the statute.

Additionally, Wisconsin caselaw provides that, under certain circumstances, if undisclosed evidence is relevant and helpful, the state may use it in rebuttal to rebut the defense theory of the case.

Court records show that Novy had an on-again and off-again relationship with his girlfriend Julie for approximately five years. Though the two were once engaged, they broke up around September 2007.

A short time after the two split, Julie claimed that Novy started to harass her, showing up when she was out with friends, following and confronting her at a local Walmart, driving by her fitness center and favored coffee shop, and calling her, among other incidents.

The alleged harassing and intimidating behaviors continued for more than a year. Novy was eventually arrested and charged with 14 counts of criminal behavior in three consolidated cases, including stalking, bail jumping, and violating a restraining order/harassment.

The 2009 stalking and bail jumping charges were in part tied to a single telephone call that was made on Nov. 9, 2008, from L & M Meats, a small store within walking distance of Novy’s residence. Phone records indicate that the call was a hang-up. Julie called the police, and the call was traced to the meat store.

On the same day, two officers lifted latent prints from the pay phone at L & M Meats. Further fingerprint matching tied the prints to Novy.

During opening statements, the prosecuting attorney described what the jury would hear and see about the fingerprints lifted from L & M Meats from the officers responsible. The defense objected and demanded the evidence be excluded, claiming the evidence had not been properly disclosed.

The trial court judge ruled that, although the state had provided the names of the officers on a general witness list, and made references in their disclosures to where the fingerprints could be found, this disclosure was not enough to satisfy the requirements of Wisc. Stat. 971.23(1)(g).

The fingerprint evidence and all witness testimony was excluded from evidence in the state’s case-in-chief, and the underlying count of stalking was dismissed after the state’s evidence was presented.

Novy chose to take the stand in his own defense and denied calling Julie from the phone at L & M Meats. He also rebutted the state’s allegations for each and every count of stalking and bail jumping.

The state then asked that the previously excluded evidence be allowed in rebuttal.

The trial court allowed the state to use the fingerprint evidence and witness testimony because Novy’s testimony “was evidence that specifically rebutted information provided in the state’s case-in-chief.”

After the jury found Novy guilty, the defendant appealed, asserting that, among other issues, the trial court had erroneously allowed the fingerprint evidence to be heard at all, had improperly allowed “bad acts” evidence, and failed to act when a juror had allegedly fallen asleep during defense counsel’s closing argument.

The Wisconsin Court of Appeals sided with the prosecution, agreeing that State v. Konkol, 256 Wis. 2nd 725 (2002) was instructive regarding admission of evidence.

As noted in Konkol, the appellate court described that “the test for admissibility of rebuttal evidence is not whether it could have been admitted in the state’s case, but rather whether the rebuttal testimony only became necessary and appropriate when the defendant presented his case-in reply” (citing State v. Lunde).

The court further relied on both State v. Watson and Wold v. State for the proposition that, even if evidence is early excluded, it is not necessarily precluded from later use, with the final decision resting within the sound discretion of the trial court.

In its state Supreme Court brief, counsel for Novy again reiterated that the evidence, once found inadmissible, should not be admissible at any stage of the trial, referring to language from Wisc. Stat. Section 971.23(7m).

“Allowing its use is contrary to the statute and against public policy,” continued Novy, “to reward a party who violates the discovery statute.”

In particular, the brief for the defendant stressed the fact that, once the trial court dismissed the underlying stalking charge after the state’s case in chief, “there were no facts for the fingerprint evidence to rebut.”

The state, the appellate court and the trial court all disagreed with this defense proposition, noting that the second stalking charge included alleged conduct by the defendant which lasted through Nov. 10, 2008. So even when the underlying bail jumping charge was dismissed, the phone call was used to help prove the stalking charge.

The trial court has discretion in these matters, according to the state’s brief, and the state had shown “good cause” in describing why the actual fingerprint cards had not been seen by the defense before trial, in part relying on subsection (a) of Wis. Stat. Sec. 971.23(7m).

Ultimately, the state opined that the disputed evidence should be admitted, one way or another.

“…. regardless of whether the state showed good cause for the discovery violation, the evidence was proper rebuttal evidence and not subject to the discovery statute,” the state concluded.