State v. Garrity

• Decision Date: 27 March 1991
• Docket Number: No. 90-1600-CR,90-1600-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. James R. GARRITY, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 219

469 N.W.2d 219

161 Wis.2d 842

STATE of Wisconsin, Plaintiff-Respondent, v. James R. GARRITY, Defendant-Appellant.

No. 90-1600-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 1, 1991.

Opinion Released March 27, 1991.

Opinion Filed March 27, 1991.

Robert R. Henak of Shellow, Shellow & Glynn, S.C., Milwaukee, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen., for plaintiff-respondent.

Before NETTESHEIM, P.J., and SCOTT and ANDERSON, JJ.

SCOTT, Judge.

James Garrity appeals from judgments of conviction for four counts of possession of drugs with intent to deliver and from an order denying his motion for postconviction relief. On appeal, Garrity contends that the state's failure to timely disclose exculpatory evidence deprived him of a fair trial. We agree; accordingly, we reverse the judgments and remand the cause to the circuit court for a new trial. Because of this reversal, we need only address two of Garrity's other issues on appeal. First, we hold that there was sufficient evidence to bind Garrity over on the LSD-related charge. Second, we hold that Garrity was not impermissibly punished twice for a single offense.

On December 1, 1988, while attempting to serve arrest warrants upon Garrity, two law enforcement officers saw him and three other men apparently smoking marijuana in an apartment. The officers entered and ultimately arrested all the men. One of the officers saw a surgical glove containing a block of what appeared to be cocaine. Garrity was asked whose it was, and he replied that it was his. This statement was elicited without Garrity's having been given Miranda warnings. Garrity then began convulsing. A rescue squad took him to the hospital. Other officers arrived and discovered a paper bag containing, among other things, LSD and various papers, some having Garrity's name on them. The next day, at the hospital, a piece of cocaine was discovered in Garrity's bed.

Garrity was initially charged with three counts of possession of drugs with intent to deliver--one for the cocaine found in the apartment, one for the LSD and one for the marijuana (THC). The complaint was later amended to include an additional charge for the cocaine found in Garrity's hospital bed. Following a preliminary hearing, Garrity was bound over on all counts, and a jury trial was had.

During opening statements, Garrity's trial counsel told the jury that Garrity would testify and informed it that Garrity was an addict and previously had been convicted for a drug offense. During the state's case, one of the police officers testified on cross-examination that the paper bag also contained a money belt which mysteriously disappeared while the police were still present at the crime scene. This revelation came as a surprise to Garrity's counsel, who moved for a mistrial, arguing that this evidence was exculpatory and should have been disclosed to him before trial. The circuit court concluded that the information should have been revealed, denied the mistrial motion, but granted a continuance of one day. When the trial resumed, the state finished its case and, as part of the defense's case, Garrity testified much to the same effect as the opening statement had envisioned. Garrity's testimony on cross-examination acknowledged that he did not remember telling the officer that the cocaine was his. The jury found Garrity guilty on all counts.

Following postconviction hearings on motions, the circuit court determined that the money belt evidence was exculpatory and, as such, should have been disclosed to the defense before trial. It further found that, had Garrity's trial counsel known of it before trial, his strategy might have been different. Nevertheless, the court concluded that the error was, in effect, harmless because "the trial would have resulted in the same result." The court denied the postconviction motions. This appeal followed.

Garrity first argues reversible error in the state's failure to timely disclose exculpatory evidence. We agree. We begin, however, by discussing the governing case law on this issue. The circuit court, in its holding, applied standards from two cases: United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and State v. Ruiz, 118 Wis.2d 177, 347 N.W.2d 352 (1984). We believe that the Bagley case has effectively modified the holding of Ruiz; accordingly, we conclude that the Bagley rule governs here.

Our discussion of the law governing prosecutorial failure to disclose exculpatory evidence must begin with United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), which Ruiz discusses at length. See Ruiz, 118 Wis.2d at 187-92, 347 N.W.2d at 357-59. As the Ruiz court stated, "In deciding whether the prosecution had a duty to turn over the allegedly exculpatory evidence, the Court [in Agurs ] described three different situations of prosecutional nondisclosure and found a different standard for each." Id. at 188, 347 N.W.2d at 357-58. "The first situation is where the undisclosed evidence shows that the prosecutor's case included perjured testimony and the prosecutor knew or should have known that fact. Such a conviction obtained through perjured testimony is 'fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.' " Id. at 188, 347 N.W.2d at 358 (quoting Agurs, 427 U.S. at 103, 96 S.Ct. at 2397). "The second situation ... is where the defense makes a pretrial request for specific evidence which would tend to exculpate the defendant or reduce the penalty. In those circumstances ... 'the failure to make any response is seldom, if ever, excusable.' " Ruiz, 118 Wis.2d at 189, 347 N.W.2d at 358 (quoting Agurs, 427 U.S. at 106, 96 S.Ct. at 2399).

Since Ruiz, however, the United States Supreme Court has further modified the Agurs test. In Bagley, the Court, in a plurality opinion, ¹ stated:

We find the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] formulation of the Agurs test for materiality sufficiently flexible to cover the "no request," "general request," and "specific request" cases of prosecutorial failure to disclose evidence favorable to the accused: The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.

Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

Because the Ruiz court made clear that it was implementing the rule of Agurs, ² and because the Agurs rule concerns due process rights under the federal constitution, ³ we conclude that Bagley modifies the rule of Ruiz to the same extent as it modified Agurs. Hence, the standard of materiality we apply here is derived from Bagley rather than from Ruiz. ⁴

We then begin with the law as articulated in Bagley. There, the Court stated that "[t]he holding in Brady v. Maryland [373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963) ] requires disclosure only of evidence that is both favorable to the accused and 'material either to guilt or to punishment.' " Bagley, 473 U.S. at 674, 105 S.Ct. at 2379. Similarly, our supreme court has stated that "[d]ue process requires the prosecutor to disclose all exculpatory evidence." State v. Nerison, 136 Wis.2d 37, 54, 401 N.W.2d 1, 8 (1987) (citing Bagley, 473 U.S. at 675-76, 105 S.Ct. at 2379-80).

We first address the question of whether the money belt evidence was favorable to the accused. The state contends it was not. We disagree. According to the officers present at the time, the bag containing the money belt was left unattended for approximately thirty seconds, during which time the money belt disappeared. This situation was later investigated by a sheriff's department lieutenant who concluded that "unknown to any of the officers involved that another person was hidden in the apartment, possibly in the dark bedroom and this person may have been responsible for removing the money belt and contents and leaving the apartment undetected." ⁵

The thrust of the state's argument concerning whether this evidence favors the accused is that "no reasonable jury could conclude that there ever was a phantom cash snatcher." The state, however, is not the arbiter of the weight and credibility of evidence. The jury was entitled to believe the lieutenant's conclusion, which is not patently incredible. If there were, then, another occupant in the room, unknown to police, who knew enough about the contents of the bag to take the money belt and slip away in as short a time as half a minute, there can be little question that such evidence favors Garrity's defense that the drugs were not his.

Nor are we persuaded by the state's alternative argument that, were there an unknown occupant whose bag it was, he or she would have taken the whole bag, and not just the money belt. While this surmise is plausible, we believe it at least equally plausible that this person believed that his or her chances of being apprehended while trying to escape unnoticed were great enough that it would be unwise indeed to be caught with the LSD.

Having determined the money belt evidence to be favorable to the accused, we turn now to the materiality prong of the Bagley test: "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 105 S.Ct. at 2383.

In Garrity's case, of course, the evidence was disclosed to the defense before the trial ended. In its brief, the state "does not dispute the obvious proposition that to avoid the need for a new trial...