State v. Rebecca Lea Kamm, 2024AP1944-CR, 8/28/25, District IV (ineligible for publication); case activity
The COA held that the defendant forfeited her argument that the State did not comply with Wis. Stat. § 971.23(1) by not disclosing to her counsel video evidence within a reasonable time before trial. Although the evidence was not provided to counsel until the morning of trial, the issue was forfeited because counsel did not object to its admission.
On the morning of Rebecca Lea Kamm’s trial for retail theft of a jacket from Farm and Fleet, defense counsel advised the circuit court that the State had not provided him a copy of surveillance footage from the store. The court allowed defense counsel to view the footage before the trial started, which was five minutes long. After trial counsel watched the videos, the court asked if he had a chance to look at the video. Counsel said he had. The court then asked if the parties were ready to bring the jury into court, and counsel said yes. (¶¶ 4-5).
The State introduced the videos at trial, which showed Kamm enter the store, pick out a jacket, enter a fitting room with the jacket in her cart, leave the fitting room without the jacket in her cart, and exit the store “with a very full purse.” The jury found Kamm guilty of retail theft. (¶¶ 6, 8).
Kamm filed a postconviction motion asking for a new trial because the video footage was not disclosed to her within a reasonable time before trial, contrary to Wis. Stat. § 971.23(1). The motion was denied. (¶ 8).
Kamm renewed her discovery violation argument on appeal, but the Court found that she forfeited the issue. The Court noted that trial counsel did not object to admitting the video footage before or during the trial:
[A]fter reviewing the video footage, counsel told the court that he was ready to proceed to trial, and counsel did not object to the prosecutor’s intended use of the video footage. Nor did counsel object when the video footage was introduced during the trial. By failing to object before or during trial to the admission of the video footage based on the timing of its disclosure, counsel forfeited this objection.
(¶ 13).
Kamm argued that counsel objected to admitting the videos when he said before trial: “I just don’t know if this video, after seeing the footage, if it will affect the case and the way it will move forward.” (¶ 14). But the Court did not consider Kamm’s interpretation of counsel’s statement “reasonable” because counsel equivocated since he had not yet seen the footage. And after reviewing the footage, counsel did not object. (¶ 14).