State v. DeLao

• Decision Date: 07 May 2002
• Docket Number: No. 00-1638-CR.,00-1638-CR.
• Citation: 252 Wis.2d 289,643 N.W.2d 480,2002 WI 49
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Media DELAO, Defendant-Appellant.
• Court: Wisconsin Supreme Court

252 Wis.2d 289

2002 WI 49

643 N.W.2d 480

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Media DELAO, Defendant-Appellant.

No. 00-1638-CR.

Supreme Court of Wisconsin.

Oral argument November 9, 2001.

Decided May 7, 2002.

For the plaintiff-respondent-petitioner the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief and oral argument by Steven P. Weiss, assistant state public defender.

¶ 1. ANN WALSH BRADLEY, J.

The petitioner, State of Wisconsin, seeks review of a published court of appeals decision that reversed Media DeLao's convictions and remanded her case for a new trial.¹ The State argues that the court of appeals erred in determining that the State violated its discovery obligations when it failed to disclose before trial oral statements made by DeLao. In addition, the State asserts that even if it violated its discovery obligations, it did so for good cause, and DeLao was not prejudiced by the admission of her statements.

¶ 2. We determine that the State violated its discovery obligations under the criminal discovery statute, Wis. Stat. § 971.23(1)(b) (1999-2000),² when it failed to disclose DeLao's oral statements before her trial began. In addition, we conclude that the State failed to show good cause for its violation and that DeLao was prejudiced by the subsequent admission of her statements. Accordingly, we affirm the court of appeals decision.³

I

¶ 3. DeLao's boyfriend, Desmond Stalsberg, was a suspect in a May 31, 1999 robbery of a grocery store, along with another man, John Sabala. Detective James Prioletta of the City of Racine Police Department carried out the follow-up investigation of the robbery.

¶ 4. One week after the robbery, Stalsberg and Sabala got into a fight while at DeLao's house. Stalsberg fired shots at Sabala as Sabala fled the house. Investigator Doug Chaussee of the Mount Pleasant Police Department was the central investigator assigned to the shooting, and he interviewed DeLao at her home on the day of the incident. She initially denied involvement with the shooting or knowledge of Stalsberg's whereabouts. However, when Chaussee interviewed her again that night, she admitted that she had been present during the shooting and that Stalsberg had directed her to help him clean up the crime scene. She told Chaussee that she was afraid and that Stalsberg was "acting crazy."

¶ 5. The State filed a criminal complaint against DeLao alleging, among other counts, that she obstructed an officer and harbored or aided a felon.⁴ The charges against her were connected with her conduct after the shooting. The State alleged that she misled the police and cleaned up or sanitized the crime scene.

¶ 6. Sometime after Investigator Chaussee interviewed DeLao about the shooting, he told Detective Prioletta that DeLao may have information about the robbery. Prioletta interviewed DeLao on June 28, 1999, while she was in custody, and he took notes on her oral statements.⁵ The focus of his inquiry was on the robbery investigation.

¶ 7. Prior to trial and pursuant to § 971.23(1)(b), DeLao filed a discovery demand requesting that the State provide her with written summaries of any oral statements she made. Her trial was to begin on Tuesday, July 27, 1999. On Sunday, July 25, Investigator Chaussee spoke with Detective Prioletta, who informed Chaussee of DeLao's statements, which indicated that she was not afraid of Stalsberg.

¶ 8. The trial proceeded as scheduled, and during DeLao's opening statement, her attorney told the jury that DeLao would testify and explain that she acted out of fear of Stalsberg. Her attorney said that DeLao's case could be summed up in one word, "survival," and concluded the opening statement with an acknowledgement that DeLao lied to police but did what she did because she was afraid.

¶ 9. After the State rested its case in chief on the second day of trial, the prosecutor informed the circuit court of DeLao's statements to Detective Prioletta. Indicating that the State intended to use the statements to impeach DeLao, the prosecutor explained that although Investigator Chaussee knew of DeLao's statements before the trial began, the prosecutor had not learned of them until that morning.

¶ 10. DeLao objected to the admissibility of the statements, arguing that the State violated the criminal discovery statute. After the circuit court overruled her objection, she moved for a mistrial. Her counsel explained that DeLao's decision to testify had depended on the information the State provided before trial. Because DeLao's theory of defense was coercion, it was her position that it would be prejudicial to allow the State to cross-examine her based on undisclosed statements that indicated she was not afraid of Stalsberg. At the same time, counsel noted, if DeLao failed to take the stand contrary to what the defense promised, "then I have basically lied to the jury."

¶ 11. Denying DeLao's motion for a mistrial, the circuit court disagreed that the statements would be prejudicial, and the State proceeded to cross-examine DeLao using the statements. After DeLao testified, the State called Detective Prioletta to the witness stand as part of its rebuttal case. He testified that when he spoke with DeLao, she never expressed any fear of Stalsberg.

¶ 12. In its closing argument, the State maintained that DeLao's statements to Detective Prioletta were inconsistent with her coercion defense. The jury found DeLao guilty, and she appealed. ¶ 13. Reversing DeLao's conviction, the court of appeals determined that the State violated its discovery obligations. In addition, the court determined that the State failed to show good cause for its violation. Concluding that the subsequent admission of DeLao's statements required a new trial, the court reasoned:

DeLao was caught on the horns of a dilemma, placed in that position by the State—either she must testify and accept the consequences of impeachment, or break her promise to the jury that she would testify and accept the consequences of her broken promise.

State v. DeLao, 2001 WI App 132, ¶ 28, 246 Wis. 2d 304, 629 N.W.2d 825. The State petitioned this court for review.

II

¶ 14. The State asks that we address several issues in resolving this case. The first question we address is whether the court of appeals correctly concluded that the State violated its discovery obligations. This requires the interpretation and application of § 971.23(1)(b) to a given set of facts. It presents a question of law subject to independent appellate review. See State ex rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 121, 561 N.W.2d 729 (1997)

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¶ 15. Because we conclude that the State violated § 971.23(1)(b), we must also determine whether the State has shown good cause for the violation, and if not, whether DeLao was prejudiced by the admission of her statements. These are also questions of law subject to independent appellate review. See State v. Messelt, 185 Wis. 2d 254, 275, 518 N.W.2d 232 (1994) (prejudicial error); State v. Martinez, 166 Wis. 2d 250, 259, 479 N.W.2d 224 (Ct. App. 1991) (good cause).

III

¶ 16. Our interpretation and application of § 971.23(1)(b) involves an inquiry into (1) the scope of the prosecutor's obligation under the statute to make herself aware of evidence against the accused and (2) the meaning of the statutory language, "plans to use in the course of the trial."

¶ 17. Section 971.23, entitled "Discovery and inspection" largely controls the scope of the State's statutory discovery obligations in criminal cases. The portion of the statute that is the focus of our inquiry is subsection (1)(b), which reads:

(1) WHAT A DISTRICT ATTORNEY MUST DISCLOSE TO A DEFENDANT. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:

. . . .

(b) A written summary of all oral statements of the defendant which the district attorney plans to use in the course of the trial and the names of witnesses to the defendant's oral statements.

¶ 18. The statute requires the State to provide, within a reasonable time before trial begins, a written summary of the defendant's oral statements that the prosecutor plans to use at trial. Even though the State did not disclose DeLao's statements to Detective Prioletta before her trial began, the State asserts that it complied with § 971.23(1)(b) because the prosecutor could not have planned to use the statements until she knew of them. We reject the State's analysis because it does not comport with the requirements of the statute.

¶ 19. Section 971.23 has been revised over the years, but many of the provisions have remained the same since its creation as three separate statutory sections in the comprehensive 1969 redrafting of the criminal procedure statutes. Jones v. State, 69 Wis. 2d 337, 348, 230 N.W.2d 677 (1975); see also Wis. Stat. § 971.23, and compare with Wis. Stat. §§ 971.23-25 (1993-94), and with Wis. Stat. §§ 971.23-25 (1971). Most recently, 1995 Wis. Act 387 repealed, recreated, and renumbered the discovery provisions found in the present version of § 971.23.

¶ 20. Some of the provisions that were new or revised under 1995 Wis. Act 387 were intended to expand the discovery and disclosure requirements that apply to both the State and the defendant. However, the substance of many of the provisions, including what is now subsection (1)(b), has remained essentially unchanged. See 1995 Wis. Act. 387; 1995 A.B. 721.

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¶ 21. Under § 971.23, the State's discovery obligations may extend to information in the possession of law enforcement agencies but not personally known to the prosecutor....