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Evidence — rebuttal evidence

By: WISCONSIN LAW JOURNAL STAFF//March 14, 2013//

Evidence — rebuttal evidence

By: WISCONSIN LAW JOURNAL STAFF//March 14, 2013//

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Wisconsin Supreme Court

Criminal

Evidence — rebuttal evidence

Even though the circuit court excluded fingerprint evidence as a discovery sanction, it properly allowed the evidence in rebuttal, where it contradicted the defendant’s testimony.

“During the defense’s case, Novy testified that he did not call Julie from the payphone at L&M Meats on the night of November 9, 2008. This statement raised an issue of credibility between Novy’s and Julie’s accounts of what occurred that evening because Julie had previously testified that she had received such a phone call and implicated Novy. Accordingly, after Novy’s testimony, admission of testimony related to the fingerprint evidence became necessary and appropriate as rebuttal testimony to contradict Novy’s testimony.”

“Furthermore, neither the State’s pointed question (whether Novy called Julie from the payphone that night) nor the fact that Novy might have used the phone on other occasions diminished the propriety of the State’s use of the fingerprint evidence and related testimony in rebuttal. As we have said, the standard for rebuttal evidence is quite broad: any evidence otherwise admissible that ‘in any respect tends to contradict the witness, is admissible’ for rebuttal. Id. at 500 (internal quotation marks omitted). On this standard, we cannot say that the circuit court erroneously exercised its discretion in allowing the State to offer testimony that tended to undermine or contradict Novy’s testimony regarding his use of the payphone at L&M Meats on November 9, 2008.”

Affirmed.

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

Roggensack, J.

Attorneys: For Appellant: Boyle, Gerald P., Milwaukee; For Respondent: Zapf, Robert D., Kenosha; Remington, Christine A., Madison

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