State v. Barnes
| Decision Date | 16 March 2021 |
| Docket Number | Appeal No. 2018AP2005-CR |
| Citation | 397 Wis.2d 241,959 N.W.2d 75 (Table),2021 WI App 27 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Garland Dean BARNES, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Garland Barnes appeals a judgment of conviction, entered upon a jury's verdict, for delivery of greater than fifty grams of methamphetamine and an order denying his motion for postconviction relief. Barnes asserts he is entitled to dismissal of the criminal complaint or, alternatively, to a new trial based on the State's failure to disclose certain materials during discovery, violations of a pretrial order regarding evidence of prior transactions between Barnes and the police informant, and a bevy of alleged evidentiary errors. For the same reasons, he argues he received ineffective assistance of counsel and requests that we exercise our power of discretionary reversal in the interests of justice. We reject Barnes’ arguments and affirm.
¶2 Barnes was charged with delivering greater than fifty grams of methamphetamine. The crime occurred during a controlled drug transaction using a confidential informant, Charles Marciniak, who was a former drug user and admitted criminal. Marciniak set up the transaction through several recorded telephone calls to Barnes. Police then outfitted Marciniak with a body wire, provided him with documented buy funds and sent him to the buy location, a bar parking lot.
¶3 Marciniak testified that he and Barnes parked their vehicles so that their driver's-side doors were facing one another. Marciniak threw the bag of buy money into Barnes’ vehicle, Barnes threw the methamphetamine into Marciniak's vehicle, and then they went their separate ways. Officers were arriving at the scene just as the transaction was taking place, and there was no surveillance video of the exchange. Barnes and his girlfriend, Bobbi Reed, were apprehended in Barnes’ vehicle after a brief chase, and the buy funds were located in the center console. Reed was found with several grams of methamphetamine and heroin pills in her possession. A short time later, police reunited with Marciniak at an area motel and recovered methamphetamine from a box in his vehicle.
¶4 A jury convicted Barnes following a two-day trial, and he was sentenced to thirty years’ imprisonment, consisting of fifteen years’ initial confinement and fifteen years’ extended supervision. Prior to his sentencing, Barnes filed a motion for a new trial. After sentencing, he filed a motion for postconviction relief. The motions alleged many of the same grounds, and collectively they asserted that the circuit court should have dismissed the criminal complaint as a sanction for discovery violations committed by the State. Alternatively, Barnes sought a new trial based on the State's alleged discovery violations, its alleged violations of an in limine order, and numerous allegedly prejudicial evidentiary errors. He also asserted that his trial attorney was constitutionally ineffective for failing to object to the errors. Finally, Barnes asserted that the cumulative effect of all the errors prevented the real controversy from being fully tried, warranting a reversal in the interests of justice.
¶5 The circuit court denied the motions. Although the court found discovery violations had occurred, it concluded that dismissal was not warranted as a sanction. The court reasoned that the recording of the drug transaction the State had failed to disclose was not exculpatory. Moreover, its absence had been used strategically by Barnes’ trial counsel to bolster the defense case, which was that the police work on the case had been extremely shoddy and that Marciniak had actually sold methamphetamine to Barnes or Reed. Regarding the violation of the in limine order, the court found that Marciniak's mentioning during trial other drug transactions involving Barnes was an "innocuous reference" to past conduct and therefore not prejudicial. Finally, the court rejected Barnes’ arguments regarding the alleged evidentiary errors, reasoning that Barnes’ assertions were either non-meritorious or there had been only harmless error. The court determined that the cumulative effect of any errors did not warrant a new trial, nor did Barnes receive constitutionally ineffective representation from his trial attorney. Barnes now appeals. Additional facts will be set forth in the discussion section as necessary.
¶6 Barnes argues that the charge against him should have been dismissed or, alternatively, that he is entitled to a new trial as a result of the State's "numerous discovery violations and misrepresentations throughout this case." The circuit court thrice chastised the State for discovery violations, and, in two instances, imposed sanctions for the violations.
¶7 First, in response to a motion to exclude Marciniak as a witness based on the State's failure to disclose any promises, rewards or inducement he had been given for his assistance, the circuit court concluded the State should have identified such information "a year ago or more." The court declined to exclude Marciniak's testimony, however, preferring instead to fashion a jury instruction if the defense requested it.
¶8 Second, Barnes filed a pretrial motion to exclude officer Duane Clauer's testimony based upon the State's failures to disclose him as a witness and to provide his reports until days before trial. The circuit court concluded there had been an "egregious" discovery violation under WIS. STAT. § 971.23 (2019-20), 1 and it excluded Clauer's testimony as a sanction.
¶9 Still, Barnes primarily focuses on a third alleged discovery violation regarding the contents of a wire audio recording made during the drug transaction. He argues this violation included not only a failure to disclose the recording itself, but also "numerous lies and misrepresentations" by State actors. Specifically, Barnes argues the prosecutor's representation in the State's discovery disclosures that Barnes’ trial attorney had been given access to the police recording in April 2014 was false. Barnes also notes that both the prosecutor and police sergeant Paul Winterscheidt, who had made the recording, had stated repeatedly that there were no audible voices in the recording, only background noise. Winterscheidt's representation occurred during his cross-examination testimony at trial.
¶10 Following Winterscheidt's testimony, another officer was asked at trial about the lack of any voices on the wire recording, and he testified that, in fact, "[t]here were words on the recording" and that he could hear Marciniak's voice. The circuit court addressed this revelation at the end of the day's testimony and outside the presence of the jury, ordering the State to immediately disclose any audio recording from the wire. The next day, a third officer testified as follows about the wire recording: Defense counsel repeatedly elicited the third officer's testimony that Winterscheidt's testimony the previous day had been false.
¶11 On appeal, as to the alleged third discovery violation, Barnes first advances a due process claim under Brady v. Maryland , 373 U.S. 83 (1963). For a defendant to prevail on a Brady claim, he or she must show three things: (1) the evidence at issue was favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) the evidence was material. State v. Wayerski , 2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d 468 ; see also Brady , 373 U.S. at 87. Materiality is measured by the same standard as prejudice in the ineffective assistance of counsel context—namely, whether there was a reasonable probability that the suppressed evidence would have produced a different verdict. Wayerski , 385 Wis. 2d 344, ¶36. We accept the circuit court's findings of historical fact unless they are clearly erroneous, but we independently determine whether a due process violation has occurred. Id. , ¶35.
¶12 The State argues no Brady violation occurred because the existence of the recording was disclosed well in advance of Barnes’ trial, even though the prosecution erroneously believed the recording did not contain voices. We do not address this argument because, even assuming the evidence was suppressed by the State, Barnes has not shown the recording constituted evidence that was favorable to his defense or that it was material.
¶13 Specifically, Barnes argues the contents of the recording are "generally" favorable "because there is significant ambiguity in the discussion, with no clear indication of who is buying from whom." After trial, Barnes had the audio of the transaction enhanced, and it includes him and Marciniak "exchanging general pleasantries, before one male asks, ‘How much dough?’ and another makes a statement along the lines of[,] ‘We're good on that other one, right?’ " Barnes argues that the jury could draw an inference in his favor that Marciniak had bought from Barnes, insomuch as the enhanced recording "fails to refute the theory of defense." Moreover, Barnes claims the recording was material because it contradicted Winterscheidt's and Marciniak's testimony and created "ambiguity in the transaction."
¶14 It is precisely this ambiguity that informs our conclusion that the recording was not favorable to Barnes. Barnes does not argue the contents of the recording directly supported his innocence; rather, the best he can argue is that the recording's contents were not inconsistent with his theory of defense. But when a fact finder might reasonably draw an inference of either guilt or innocence from an item of evidence, that evidence cannot be said to "make the difference between conviction and acquittal," and it is therefore not favorable to the accused....
To continue reading
Request your trial