State v. Harris

• Decision Date: 08 June 2004
• Docket Number: No. 02-2433-CR.,02-2433-CR.
• Parties: State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Kevin Harris, Defendant-Respondent.
• Court: Wisconsin Supreme Court

272 Wis.2d 80

2004 WI 64

680 N.W.2d 737

State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Kevin Harris, Defendant-Respondent.

No. 02-2433-CR.

Supreme Court of Wisconsin.

Oral Argument February 11, 2004.

Decided June 8, 2004.

For the plaintiff-appellant-petitioner the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

For the defendant-respondent there was a brief by Steven A. Koch and Seymour, Kremer, Nommensen, Morrissy & Koch, L.L.P., Elkhorn, and oral argument by Steven A. Koch.

¶ 1. JON P. WILCOX, J.

The State appeals from a published court of appeals decision, State v. Harris, 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813, which affirmed an order of the Walworth County Circuit Court, Michael S. Gibbs, Judge, granting the motion of the defendant, Kevin Harris (Harris), to withdraw his guilty plea to a charge of first-degree sexual assault of a child. The circuit court granted the defendant's motion for plea withdrawal on the basis that the State had violated his due process right to receive exculpatory evidence when it failed to disclose that the alleged victim reported being sexually assaulted by her grandfather on a different occasion.

I. ISSUES

¶ 2. The issues on appeal are: 1) whether the State violated Harris's right to due process under the state and federal constitutions¹ by failing to disclose, before entering into a plea bargain with him, that the alleged victim reported being sexually assaulted by her grandfather on a different occasion; 2) whether this nondisclosure violated Wis. Stat. § 971.23 (2001-02),² Wisconsin's reciprocal discovery statute; and 3) whether Harris is entitled to withdraw his plea if either violation is present. We hold that the State did not violate Harris's right to due process because, pursuant to United States v. Ruiz, 536 U.S. 622 (2002), due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain. However, we determine that B.M.M.'s allegation against her grandfather is the type of information the State was required to disclose pursuant to § 971.23(1)(h) because it constitutes evidence favorable to the accused whose nondisclosure undermines our confidence in the judicial proceeding. This information is favorable to the accused because it constitutes impeachment evidence that casts doubt on the credibility of the State's primary witnesses. The nondisclosure of this evidence undermines our confidence in the outcome of the judicial proceeding because Harris would not have pled guilty but for the nondisclosure of this evidence. We further hold that in order to comply with the mandate in § 971.23(1) that such information must be turned over within a reasonable time before trial, the State was obligated to disclose this evidence at a point when Harris would have had sufficient time to make effective use of the information. As Harris entered his plea bargain within two weeks prior to the date on which his trial was scheduled to commence, the State should have disclosed the suppressed evidence by at least this point in the proceedings in order for Harris to be able to effectively use it. Given that 1) the evidence of B.M.M.'s allegation was the type of evidence required to be disclosed under § 971.23(1)(h); 2) the State did not disclose this evidence within a reasonable time before trial; and 3) Harris would not have pled guilty but for this nondisclosure, Harris has demonstrated that a withdrawal of his plea is necessary to avoid a manifest injustice. Therefore, we affirm the court of appeals' decision.

II. FACTUAL BACKGROUND

¶ 3. Harris is a 31-year-old man with an eighth grade education who has a history of serious mental illness. The State filed a criminal complaint against Harris on April 24, 2001, alleging that he had sexual contact with B.M.M., a person who had not yet attained the age of 13, contrary to Wis. Stat. § 948.02(1), and violated the conditions of his bond on a previous matter, contrary to Wis. Stat. § 946.49(1)(a). The State further alleged that Harris was a repeat offender as to count one. See Wis. Stat. § 939.62(1)(c). Subsequently, the State filed an information on May 2, 2001, alleging the same. The complaint alleged that Harris touched six-year-old B.M.M. on her vaginal area over her clothing. The complaint also alleged that Harris admitted to Detective Ray Otto of the Elkhorn Police Department that on April 11, 2001, he had brought B.M.M. into his apartment and that he kissed her head and patted her on the leg but denied touching her in an inappropriate manner.

¶ 4. On May 2, 2001, Harris waived his preliminary hearing and pled not guilty to each of the two counts in the complaint. A jury trial was set for August 6-8, 2001. Harris filed a discovery demand with the court on May 30, 2001, whereby he demanded that the State provide, inter alia, "[a]ll exculpatory evidence ... that could form the basis for further investigation by the defense."³ On June 5, 2001, after substituting counsel, Harris changed his plea to not guilty by reason of mental disease or defect (NGI) and Judge James L. Carlson ordered a psychiatric evaluation. On July 11, 2001, the State gave notice to Harris that it intended to call up to two expert witnesses to testify as to reactive behaviors common among child sexual abuse victims.⁴ Thereafter, on July 25, 2001, approximately two weeks before trial, the psychiatric evaluation not supporting his NGI plea, Harris entered into a plea agreement with the State. Harris agreed to plead guilty to count one (first-degree sexual assault of a child as a repeater) and the State agreed to dismiss and read in count two (bail jumping). In addition, the State agreed to dismiss and read in Harris's previous misdemeanors. There was to be a presentence investigation, and the State agreed to remain silent at sentencing, although Harris was free to argue. After conducting a plea colloquy, the court accepted Harris's plea of guilty to count one.

¶ 5. On September 21, 2001, Judge Carlson sentenced Harris to a 45-year term of imprisonment, composed of 30 years confinement and 15 years extended supervision. On April 30, 2002, Harris filed a postconviction motion to withdraw his guilty plea, which was amended on May 6, 2002. In his amended motion, Harris alleged that shortly after the sentencing hearing Assistant District Attorney Maureen Boyle, at the direction of District Attorney Phillip Koss, informed his trial counsel that the State had failed to disclose that B.M.M. had previously made an allegation that her grandfather had sexually assaulted her on two occasions. A copy of an Elkhorn Police Department case record that was appended to Harris's motion provided that on June 1, 2001, B.M.M. alleged that she had been sexually assaulted by her grandfather on or about February 16-23, 2001. The document also recited that on June 8, 2001, the Walworth County Sheriff's Department conducted an audio and videotaped interview with B.M.M., wherein she provided details of the alleged assault. During the interview, B.M.M. alleged that her grandfather, while staying at her house, had awoken her on two occasions, licked his fingers, and touched the front of her vaginal area and "butt-crack" underneath her pajamas. Following the interview, B.M.M.'s mother was reluctant to have her father interviewed and expressed disbelief that he could have done such a thing. She also stated that the following Sunday, June 10, 2001, the family would be moving out of town.

¶ 6. Harris, relying on Brady v. Maryland, 373 U.S. 83, 86 (1963), and State v. Sturgeon, 231 Wis. 2d 487, 497, 605 N.W.2d 589 (Ct. App. 1999), asserted that the State's failure to disclose this evidence violated his constitutional due process right to all exculpatory evidence. The motion was heard before Judge Michael S. Gibbs on July 25, 2002. At the motion hearing, Harris argued that the State was required to disclose this information to him under State ex rel. Lynch v. Circuit Court for Dane County, 82 Wis. 2d 454, 463, 262 N.W.2d 773 (1978), and that its failure to do so required that Harris be allowed to withdraw his guilty plea under Sturgeon. Harris argued this evidence tended to negate his guilt and would have been admissible under State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990).⁵ ¶ 7. Specifically, Harris argued that B.M.M.'s allegation concerning her grandfather's assault could be the source of prior sexual knowledge. Harris noted that B.M.M.'s grandfather allegedly assaulted her on February 16 and 23 of 2001 and that the State alleged Harris assaulted B.M.M. on April 11, 2001. Further, Harris argued that given the fact B.M.M. did not report the assaults by her grandfather until June of 2001 and her family did not wish to prosecute her grandfather, it was possible that B.M.M. projected these assaults onto Harris. Moreover, Harris argued that such information would have been necessary to cross-examine the State's expert witnesses. Harris noted that B.M.M. had moved out of state and was now unavailable for him to examine. Finally, counsel for Harris put in an offer of proof that he (Harris) would not have entered into his guilty plea had the State complied with his discovery request and disclosed this information. Harris would testify that he pled guilty because he thought a jury would believe the word of a child and two experts over his statement without any other evidence supporting his case. Harris would also testify that he believed he would receive a much harsher sentence had he gone to trial.

¶ 8. The prosecutor argued that she did not disclose this evidence immediately because the investigation of B.M.M.'s grandfather was still ongoing. Apparently, the investigation was never completed because B.M.M. and her grandfather moved to Texas. Thereafter, the prosecutor stated that she simply forgot about...