State v. Martinez

• Decision Date: 18 December 1991
• Docket Number: No. 91-1489-CR,91-1489-CR
• Citation: 479 N.W.2d 224,166 Wis.2d 250
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Verian Faith MARTINEZ, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 224

479 N.W.2d 224

166 Wis.2d 250

STATE of Wisconsin, Plaintiff-Respondent, v. Verian Faith MARTINEZ, Defendant-Appellant.

No. 91-1489-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 1, 1991.

Opinion Released Dec. 18, 1991.

Opinion Filed Dec. 18, 1991.

[166 Wis.2d 251] Robert A. Adman, Appleton, for defendant-appellant.

James E. Doyle, Atty. Gen., and Sharon Ruhly, Asst. Atty. Gen., for plaintiff-respondent.

Before NETTESHEIM, P.J., and BROWN and SNYDER, JJ.

NETTESHEIM, Presiding Judge.

Verian Faith Martinez appeals from a judgment convicting her of delivery of a controlled substance, as a party to a crime, contrary to secs. 161.41(1)(h)1 and 939.05, Stats. The issue on appeal is whether the trial court correctly determined that the state had established good cause for its failure to comply with Martinez' discovery demand that the state produce a tape of Martinez' recorded statements as she allegedly participated in a sale of controlled substances. We conclude that the state did not establish good cause, within the meaning of sec. 971.23(7), Stats., for its failure to comply with Martinez' discovery demand. We reverse the judgment of conviction and remand for further proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

We recite the facts and history of this case in some detail. Martinez' conviction arose out of an October 18, 1989 stake-out conducted by two investigators assigned to the Manitowoc County Metro Drug Unit. On that evening, Deputy Elijah Humphreys of the Manitowoc County Sheriff's Department and Officer John Scott Gerard of the City of Two Rivers Police Department made contact with then-confidential informant Shawn Frea for the purpose of planning and executing a controlled purchase.

Officer Gerard and Deputy Humphreys told Frea that they wanted him to attempt to purchase marijuana at a certain apartment in the city of Two Rivers. To that end, Officer Gerard searched Frea and gave him $100 in twenty dollar bills. The bills had been previously photocopied for identification purposes. Deputy Humphreys then fitted Frea with a body microphone so that he and Officer Gerard could monitor and tape record Frea's conversations inside the apartment from their surveillance car, parked outside.

Once inside the apartment, Frea encountered three adults--Martinez, Anthony Herring and Patricia Wetzel. Herring told Frea he could obtain marijuana for him. The two agreed that Herring would sell an eighth of an ounce of marijuana to Frea for $25. Frea gave Herring two of the five twenty dollar bills. Martinez asked Frea if the money had been photocopied. Frea said that it had not. Herring and Martinez prepared to leave the apartment to fetch the marijuana. Frea testified at trial that as they turned to go, Martinez told him he "better not be a snitch because I'm driving the car."

Meanwhile, Deputy Humphreys left the surveillance car and positioned himself so that he could watch as Herring and Martinez left the building. He observed the pair enter Martinez' car and drive away Deputy Humphreys then drove to the Two Rivers police department, where he dropped off Officer Gerard and Frea, and then to the Manitowoc County Sheriff's Department where he unloaded the listening equipment from the car. He removed the tape of the conversations in the apartment, labeled it and placed it in a box reserved for other such tapes.

with Martinez at the wheel. About forty to forty-five minutes later, Deputy Humphreys watched as Herring and Martinez returned with Martinez again driving. The pair reentered the apartment building. Deputy Humphreys rejoined Officer Gerard in the car in time to overhear Frea and Herring discussing making change for a twenty dollar bill. Herring and Frea completed the transaction, and Frea left the apartment.

The preliminary hearing was held on April 19, 1990. At this hearing, Deputy Humphreys was asked if the tape still existed. He responded he "would have to check." Around the same time, ¹ Martinez' trial counsel, Attorney Marshall Haller, served a discovery demand on the district attorney's office seeking, among other things, production of "any ... recorded statement ... concerning the alleged crime made by [Martinez] which is in the possession, custody or control of the State." Haller followed up on the motion by way of several telephone calls over the spring and summer.

By the time he received notice on August 30 that Assistant District Attorney John Daniels would be trying the case for the state, Attorney Haller still had not gained access to the tape or a copy of the tape. He telephoned Daniels on August 31 to again ask that the tape be produced. Daniels told Haller that a copy of the tape would be waiting for him at the sheriff's department later that day. But when Haller stopped by the sheriff's department that evening, the tape was nowhere to be found. Haller checked again the following day, and again after the close of the Labor Day holiday. Still the tape could not be found.

Haller filed a motion in limine with the circuit court seeking, among other things, an order suppressing for use at trial "[a]ny evidence of the contents of conversations in which [Martinez] was a participant and which were taped or recorded by officers or agents of the State, and specifically including the conversation of October 18, 1989...." Haller patterned the motion on sec. 971.23(1), Stats., which enables a criminal defendant to demand access to his or her statements concerning the crime, and on subsec. (7), which prescribes sanctions for the state's failure to comply with such discovery demand. Haller's affidavit in support of the motion in limine recited the history of his unsuccessful attempts to obtain the tape.

At the hearing on the motion, the trial court heard a statement from Assistant District Attorney Daniels concerning how the tape was lost. Although the court and the attorneys engaged in substantial discussion regarding the matter, the extent of the state's explanation for the loss was the following:

I agree with Marshall Haller. We did--We goofed up. A tape was lost of apparently a portion of the facts, that Mr. Haller did mention it was about two weeks ago that he apparently made the request to the district attorney to hear the tape. That relay was sent down to the county jail at which time they took the tape, brought it to the front desk for Mr. Haller to come pick up. We never told Mr. Haller to come pick it up, and at that point it's disappeared. And from that point on, Your Honor, we have not been able to find it....

The state further indicated that suppression of the officers' testimony might be appropriate, but that suppression should not extend beyond such evidence--particularly as to the testimony of Frea. Martinez contended, however, that suppression After hearing the arguments of counsel, the trial court, following up on the state's suggestion, initially declared that the only statements by Martinez which the state would be allowed to introduce at trial were those heard by Frea reflecting Martinez' concern that Frea was a "snitch" and had photocopied the money. ² The court then ordered a brief recess to allow the state to interview its witnesses concerning what other statements Martinez may have made on the tape and to provide Martinez with a summary of those statements. The court stressed, however, that these summaries could not be used at trial.

should extend to all witnesses who participated in the controlled buy.

Apparently some conversations then occurred between the trial court and counsel during the recess. When the proceeding resumed, the court stated that the prosecutor had discovered a possibility that the police had made a tape of Martinez on another occasion. The court stated that the contents of this other statement might support Martinez' argument that the statements attributed to her on October 18 had in fact been made at another time and were not, taken in context, inculpatory. The court further declared that while it could not conclude that the state had acted in bad faith concerning compliance with Martinez' discovery demand, the state had nevertheless failed to establish that it had acted in good faith vis-a-vis Martinez' discovery demand. However, finding dismissal of the charge "too severe a sanction at this point," the trial court adjourned the proceedings so that the state might look for the "new" tape.

Neither the "old" tape nor the "new" tape was ever found. The trial took place on December 19, 1990. Before the jury was selected, the court and the parties again addressed this issue. Martinez continued to press for the exclusion of all evidence concerning the contents of the taped conversation with Frea. As before, Martinez argued that based upon sec. 971.23, Stats., and our decision in State v. Wild, 146 Wis.2d 18, 429 N.W.2d 105 (Ct.App.1988), the state's failure to produce the tape made exclusion mandatory. The state, also citing Wild, contended that the continuance already granted by the trial court was the proper remedy over exclusion.

The trial court denied Martinez' motion to suppress. The court reasoned that the state's explanation demonstrated "nothing other than just simple negligence." The court also concluded that the negligence of the police authorities could not be visited upon the state as the prosecuting entity. Thus, the court ruled that the officers could testify as to their recollections of what they heard as they monitored the transaction from their surveillance vehicle. The court also ruled that Martinez could introduce evidence concerning how the tape was lost. Martinez was convicted as charged.

ANALYSIS

The issue on appeal concerns the proper application of sec. 971.23, Stats. The statute states in relevant part:

(1) DEFENDANT'S STATEMENTS. Upon demand, the district attorney shall permit the defendant within a reasonable time before trial to inspect and copy or photograph any...