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    Excluded Evidence Okay on Rebuttal, Wisconsin Supreme Court Concludes

    Joe Forward
    Legal Writer

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    Brent Novy won't get a new trial, despite his argument that a trial court wrongly admitted physical evidence on rebuttal that was previously excluded for discovery violations. He also lost an argument that a sleeping juror violated his rights.

    March 14, 2013 – Fingerprint evidence that was excluded from the state’s case-in-chief was properly admitted on rebuttal, a Wisconsin Supreme Court majority has ruled, because the evidence could be used to rebut defendant Brent Novy’s actual testimony.

    In addition, the state supreme court ruled in State v. Novy, 2013 WI 23 (March 14, 2013), that Novy was not deprived of a right to an impartial jury, despite his claims that one juror was sleeping during defense counsel’s closing argument.

    Thus, the court unanimously upheld Novy’s stalking-related convictions. He was accused of stalking his ex-fiancé, felony bail jumping, and harassment.

    Novy said the trial court admitted fingerprint evidence on rebuttal that it was not allowed to admit, because it was excluded as a discovery sanction against the prosecution.

    Specifically, Wis. Stat. section 971.23(1) requires district attorneys to disclose to defendants the witnesses and evidence intended to be used at trial.

    If they don’t, section 971.23(7m)(a) requires the court to exclude the evidence or witnesses, unless good cause is shown for the nondisclosure.

    Fingerprint Evidence Admissible on Rebuttal

    In 2008, Novy had been ordered to avoid contact with his ex-fiancé (Julie) when she received a hang-up call from a store payphone that was close to her residence.

    Julie called police, who then lifted Novy’s fingerprints from the payphone. The state charged Novy for violating the terms of his bail bond, which included a no-contact order.

    His cases, including two counts of stalking, 11 counts of felony bail jumping, and a harassment injunction violation, were consolidated and went to trial in 2010.

    Prosecutors referred to the fingerprint evidence in the opening statement, but the defense moved to exclude the evidence under Wis. Stat. section 971.23(1). The state did not disclose the fingerprint cards as required, the defense argued.

    Based on the discovery statute, the circuit court granted the motion. The defense moved to dismiss a bail jumping count. Without the fingerprint evidence, it argued, the state had no evidence that Novy violated the terms of his bail by making the phone call.

    The court dismissed that count. When Novy testified, though, the court allowed state questioning about the phone call. Novy said he didn’t make the call.

    The state then argued that the fingerprint cards should be admissible to rebut Novy’s testimony, despite defense counsel’s argument that it must be excluded throughout trial.

    The circuit court allowed the evidence to be admitted, on defense counsel’s objection. In addition, police officers testified that they lifted Novy’s fingerprints from the phone. Novy then testified that he used that phone previously, but not on the night question.

    Ultimately, Novy was convicted and sentenced to a year in prison. On appeal, Novy asked for a new trial, but the appeals court affirmed the judgment.

    The supreme court affirmed, noting that prosecutors must disclose the witnesses they intend to call at trial, except for “rebuttal witnesses or those called for impeachment only” under Wis. Stat. section 971.23(1)(d). Police officers were rebuttal witnesses.

    Novy argued that this provision doesn’t allow circuit courts to admit rebuttal evidence that was previously excluded for discovery violations. The supreme court disagreed.

    “[N]otwithstanding the initial exclusion, such an exclusion need not be absolute because circuit courts retain significant discretion to admit rebuttal evidence, even when such evidence was not disclosed for use in the case-in-chief,” Justice Pat Roggensack wrote.

    Sleeping Juror?

    The supreme court also rejected Novy’s claim that he should receive a new trial because a juror was sleeping during the defense counsel’s closing argument. The U.S. and Wisconsin constitutions demand an impartial jury, Novy argued.

    A constitutional violation occurs if a juror is sufficiently inattentive during trial, and the defendant suffered prejudice as a result, the supreme court explained.

    But the supreme court ruled that Novy’s argument failed, because there was no factual determination by the circuit court that the juror was actually sleeping.

    “In explaining the reason for her ruling, the circuit court did not find that the juror was sleeping,” wrote Justice Roggensack, noting that defense counsel’s motion to strike the juror failed. “Novy did not establish a fact necessary to his motion to strike.”

    Concurrence

    Chief Justice Shirley Abrahamson (joined by Justice Ann Walsh Bradley) wrote separately to disagree with the majority’s interpretation and application of Wis. Stat. section 971.23. It also disagreed with the court’s sleeping juror reasoning.

    The chief justice argued that prosecutors could not admit the physical fingerprint evidence that was previously excluded. The majority did not properly distinguish between “rebuttal witnesses” and “physical evidence,” the chief justice explained.

    However, the concurring justices said the error was harmless. It also ruled that Novy was not prejudiced by the sleeping juror, but took issue with the majority’s reasoning.

    The chief justice said the majority “short-circuited” the analysis by deciding the issue on the grounds that the trial court never determined the juror was sleeping.

    “By short-circuiting the analysis, the majority further fails to provide guidance on how circuit courts are to handle an allegation of a sleeping juror,” the chief justice wrote.

    However, Chief Justice Abrahamson also concluded that Novy was not prejudiced, even if the juror was sleeping, because the juror heard all material testimony.

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