On Point: 7. Discovery violation

State v. Richard Brian Lopez, 2020AP108-CR, 3/29/2022, District 1; (not recommended for publication); case activity (including briefs)

Lopez was convicted of battering his girlfriend, “Margaret,” with whom he had children. Before trial, the DA turned over photos depicting the bruising on Margaret’s face.  But at trial, it surprised Lopez with a second set of photos showing the progression of her bruising. The defense objected. The circuit court refused to exclude the second set based on harmless error. The photos only depicted what Margaret and police described in their testimony.  The court of appeals affirmed.

State v. Jacky Lee, 2020AP1633, 7/27/21, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

The state arrested Lee for second-offense OWI and PAC violations. The intoximeter breath test he took at the police department was video-recorded. However, due to the state’s delay in charging Lee, he did not request the video until it had already been recorded over, consistent with the department’s practice of keeping such videos for 3-6 months unless there’s been a request to preserve them.

For the 2015 SPD conference, Judge Sankovitz and Attorneys Rob Henak and Melinda Swartz prepared an excellent outline on a problem that plagues many defense lawyers on appeal.  They have a great issue. They win it, but then the court of appeals or supreme court finds the error harmless.  This detailed, well-researched outline walks you through the history of the “harmless error” doctrine and offers ideas for how to beat it in various situations.  

State v. Joel Joseph Lobermeier, 2012 WI App 77 (recommended for publication); for Lobermeier: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

Appellate Procedure – Waiver – Jury Instructions 

Failure to object to a jury instruction amounts to a failure to preserve for review an asserted objection, which must therefore be reviewed in the context of ineffective assistance of counsel. Nonetheless, failure to object to a “material variance”

State v. Joseph Hammer, 2010AP3019-CR, District 1, 11/22/11

court of appeals decision (not recommended for publication); for Hammer: Rex Anderegg; case activity

The State’s conceded discovery violation (failure to produce reports or photographs related to a trajectory rod investigation) prejudiced the defense and therefore entitles Hammer to a new trial on two counts of attempted first-degree intentional homicide: 1. the erroneously admitted trajectory rod evidence “severely undermined”

State v. Daniel E. Krueger, 2011AP571-CR, District 3, 8/2/11 

court of appeals decision (1-judge, not for publication); for Krueger: Ana Lyn Babcock; case activity

Prosecutorial failure to disclose a police report containing his statements that “were incriminating and any reasonable prosecutor would have planned on using them at trial” violated Krueger’s right to discovery, ¶23, citing State v. DeLao, 2002 WI 49,

State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke

Issue/Holding:

¶20. Our review of a claimed discovery violation under Wis. Stat. § 971.23 is subject to a harmless error analysis. See State v. Koopmans, 202 Wis. 2d 385, 396, 550 N.W.2d 715 (Ct. App. 1996). The test of harmless error is whether the appellate court in its independent determination can conclude there is sufficient evidence,