Criminal Procedure — due process — amendment of complaint

Listen to this article

Wisconsin Court of Appeals

Criminal

Criminal Procedure — due process — amendment of complaint

Following a jury trial, Joel Hurley was convicted of one count of repeated sexual assault of the same child. Hurley moved for postconviction relief, raising several arguments, the majority of which the circuit court rejected. However, the court agreed Hurley was entitled to a new trial based on an improper remark the prosecutor made during his closing argument about certain other acts evidence. The court therefore entered an order vacating Hurley’s conviction, granting him a new trial, and denying his remaining postconviction claims.

The State appeals from the circuit court’s postconviction order, arguing a new trial is not warranted because the prosecutor’s remark about the other acts evidence was not improper. Hurley cross-appeals, arguing the circuit court erred by denying his other postconviction claims. He first argues the charge against him should have been dismissed because the amended complaint violated his right to due process. He also argues he is entitled to a new trial based on a different remark the prosecutor made during his closing argument. Finally, he argues a new trial is warranted because the circuit court erroneously admitted the other acts evidence.

We agree with Hurley that the amended complaint violated his right to due process. We therefore reverse the circuit court’s postconviction order in part and remand for the court to dismiss the charge against Hurley without prejudice. We also conclude the circuit court erred by admitting the other acts evidence, and the error was not harmless. Consequently, even absent dismissal of the charge, Hurley would be entitled to a new trial. Given our disposition of these two issues, we need not address the parties’ remaining arguments regarding the prosecutor’s closing argument. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided on narrowest possible ground). This opinion will not be published.

2013AP558-CR State v. Hurley

Dist III, Marinette County, Miron, J., Per Curiam

Attorneys: For Appellant: Brey, Allen R., Marinette; Weber, Gregory M., Madison; Hoffmann, Kent R., Marinette; Wittwer, Jacob J., Madison; For Respondent: Powell, Craig S., Milwaukee