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    Wisconsin Lawyer
    May 01, 2013

    Supreme Court Digest

    This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1215 W. Michigan Ave., Milwaukee, WI 53233, (414) 288-7090.

    Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

    Criminal Procedure

    Discovery – Admission of Excluded Evidence During Rebuttal – Sleeping Juror

    State v. Novy, 2013 WI 23 (filed 14 March 2013)

    Holding: The circuit court did not erroneously exercise its discretion when it allowed the state to introduce rebuttal evidence that had been excluded, as a result of a discovery violation, from its case-in-chief.

    A jury found the defendant, Novy, guilty of numerous counts, including stalking, bail jumping, and violating a harassment injunction. On appeal, he argued that the circuit court erred when it allowed the state to use in rebuttal certain fingerprint evidence and related testimony, which the court had previously excluded from the state’s case-in-chief as a result of a Wis. Stat. section 971.23 discovery violation. Novy also asserted that he was deprived of his right to a fair trial by an impartial jury because, he claimed, one of the jurors was sleeping during a portion of defense counsel’s closing argument.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    In a published decision, the court of appeals affirmed Novy’s conviction. See 2012 WI App 10. In a majority decision authored by Justice Roggensack, the supreme court affirmed the court of appeals.

    The supreme court concluded that, with regard to the admission of the fingerprint-related testimony on rebuttal, the circuit court did not erroneously exercise its discretion. “The circuit court initially determined that the State had failed to comply with its discovery obligations under Wis. Stat. § 971.23(1); and therefore, the court excluded fingerprint evidence and related testimony from the State’s case-in-chief pursuant to § 971.23(7m)(a). However, after Novy testified such that the excluded fingerprint evidence and related testimony would controvert his testimony, the circuit court concluded that it could be presented in rebuttal. The circuit court properly interpreted § 971.23 under the facts of this case, and given the significant discretion afforded circuit courts on evidentiary matters, we cannot say that the circuit court erroneously exercised its discretion in permitting the rebuttal use of the fingerprint evidence and related testimony” (¶ 2).

    In reaching this conclusion, the court rejected the defendant’s argument that once the circuit court excluded the evidence for a discovery violation, it was without discretion to allow the evidence on rebuttal (see ¶¶ 39-43).

    With regard to the defendant’s motion to remove the allegedly sleeping juror, success on the motion depended in part on the circuit court finding, as a matter of fact, that the juror was actually inattentive to the point of potentially undermining the fairness of the trial; here, that the juror was sleeping (see ¶ 47). The circuit judge did not make a finding that the juror was sleeping. Accordingly, the supreme court declined to overturn the circuit court’s refusal to grant the motion to strike (see ¶ 3).

    Chief Justice Abrahamson filed a concurring opinion that was joined by Justice Bradley. Justice Prosser did not participate in this case. 

    Family Law

    Termination of Parental Rights Proceedings – Defaults – Jury Trial

    Dane Cnty. v. Mable K., 2013 WI 28 (filed 29 March 2013)

    Holding: After the circuit court erroneously granted a default judgment during a termination-of-parental-rights (TPR) jury trial, the proper remedy was for the circuit court to conduct a new trial for the defendant, not to restart the proceedings as a bench trial from the point of the error.

    The county filed an action to terminate a mother’s parental rights to her children. When the mother failed to make a timely appearance one morning during her jury trial, the circuit court entered a default judgment terminating her parental rights. Later, the judge concluded that he erred both in granting a default and in failing to take evidence on the grounds for termination. To remedy his errors, the trial judge ordered the proceedings to begin anew at the point at which the error occurred, which effectively meant that the mother’s evidence would be heard by the judge, not by a jury (see ¶ 31). The court of appeals dismissed a pending appeal on grounds that the mother had no appeal of right and that it would not grant a discretionary appeal.

    The supreme court reversed the court of appeals in a majority opinion authored by Justice Bradley. First, the circuit court abused its discretion in entering a default judgment and by not permitting the mother to present further evidence, as the circuit court later acknowledged (see ¶¶ 43, 51). The circuit court put the “cart before the horse” when it decided the case based “only on one side’s version of the facts” (¶ 56).

    Second, the circuit court’s remedy for its error was “fundamentally unfair” (¶ 62). The trial judge decided the appropriate remedy was to “return Mable K. procedurally to the time of the error” (¶ 58). The supreme court listed the myriad problems with this approach, including the impossibility of empaneling a new jury to hear a case that is halfway through the fact-finding hearing (see ¶ 62). The circuit court’s action also appeared to violate Wis. Stat. sections 48.31(2) and 48.424(2), which provide the statutory right to a jury trial. In this context, the supreme court also observed that the lower court had not imposed the default judgment as a sanction pursuant to Wis. Stat. section 805.03 (¶ 67). Thus, “the only fundamentally fair remedy is a new fact-finding hearing” (¶ 72).

    Justice Ziegler dissented, joined by Justice Roggensack and Justice Gableman. They said that the mother chose to violate the court’s order by not appearing on the second day of the fact-finding hearing before the jury and that the circuit court acted within its discretion by hearing the case as a court trial after it vacated the default judgment (see ¶ 77).

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