State v. McClaren

• Decision Date: 09 July 2009
• Docket Number: No. 2007AP2382-CR.,2007AP2382-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jason L. McCLAREN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

767 N.W.2d 550

2009 WI 69

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jason L. McCLAREN, Defendant-Appellant.

No. 2007AP2382-CR.

Supreme Court of Wisconsin.

Argued April 15, 2009.

Decided July 9, 2009.

For the plaintiff-respondent-petitioner the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant there was a brief by Michael C. Witt and Criminal Defense & Civil Litigation, LLC, Jefferson and oral argument by Michael C. Witt.

¶ 1 N. PATRICK CROOKS, J

This case concerns an interlocutory appeal before the court of appeals of a circuit court's pretrial order. The order permitted the defendant-appellant, Jason L. McClaren (McClaren), to introduce in connection with his claim of self-defense what is commonly referred to as "McMorris¹ evidence"—evidence of violent acts the victim had committed which McClaren knew about at the time of the alleged crime, and which would bear on the reasonableness of the claim of self-defense—but only on the condition that he provide a summary of that evidence prior to trial so that the court could make a pretrial determination of its relevance and admissibility. McClaren objected to that requirement on the grounds that the court had no authority to require disclosure of such evidence and that doing so violated certain constitutional rights. He contended that the proper time to resolve concerns about admissibility would be after the testimony was elicited at trial and drew an objection. He sought and was granted review of the non-final order at the court of appeals.

¶ 2 The court of appeals, in a published decision, held that the circuit court's order exceeded its authority because neither Wis. Stat. § 971.23 (2005-06),² which sets forth limited pre-trial disclosure obligations for a defendant, nor Wis. Stat. § 906.11, which authorizes a court to exercise control over the presentation of evidence, extended to an order to provide McMorris evidence in advance of trial. State v. McClaren, 2008 WI App 118, 313 Wis.2d 398, 756 N.W.2d 802. Because the court of appeals resolved the issue in favor of McClaren on statutory grounds, it did not reach McClaren's constitutional arguments.

¶ 3 For the reasons stated below, we reverse the decision of the court of appeals. Wisconsin statutes provide the circuit court with the necessary authority for the order we consider here. Wis. Stat. § 906.11 authorizes a judge to exercise control over the presentation of evidence so that the truth can be effectively ascertained and so that time will not be needlessly wasted. To hold otherwise could frustrate a circuit court's efforts to try to be certain that a jury is presented with admissible, reliable evidence and to make pretrial rulings so that the trial runs smoothly. The authority of a circuit court under Wis. Stat. § 906.11 fits within the broader context of a court's inherent powers "which must necessarily be used to enable the judiciary to accomplish its constitutionally or legislatively mandated functions." City of Sun Prairie v. Davis, 226 Wis.2d 738, 747, 595 N.W.2d 635 (1999) (citing State ex rel. Friedrich v. Dane County Cir. Ct., 192 Wis.2d 1, 16, 531 N.W.2d 32 (1995)). Foreseeing potential obstacles to a smoothly run trial and taking the necessary steps to avoid them is manifestly within the inherent power of a circuit court.

¶ 4 McClaren says that, in requiring him to tell prior to trial which instances of the victim's violent conduct he was aware of at the time of the incident, the order violates his Fifth Amendment rights to remain silent and not incriminate himself. He says the order also runs afoul of the Due Process Clause because it imposes no reciprocal obligations on the State. Finally, he argues that excluding evidence—the sanction the court stated would result for his not complying with the order—would violate his Sixth Amendment right to present a defense.

¶ 5 There is no constitutional bar to the exercise of the circuit court's authority in this case. Ascertainment of the truth is the primary objective of a trial, and such an order serves that objective in a constitutionally permissible manner. Efficiency is a secondary objective of a trial, but where it can be attained with constitutionally permitted measures, it is highly desirable. The United States Supreme Court has, on more than one occasion, upheld measures that ensure fair play and efficient use of trial court time. Where, as here, the evidence to be disclosed is nothing more than what the defendant chooses and has indicated he will put on at trial, such an order does not invade constitutional protections under the Fifth Amendment. As the United States Supreme Court noted in an analogous case, the Constitution does not guarantee a criminal defendant the right to surprise the prosecutor. Williams v. Florida, 399 U.S. 78, 86, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) ("We decline to hold that the privilege against compulsory self-incrimination guarantees the defendant the right to surprise the State with an alibi defense."). Nor does the order violate McClaren's constitutional rights to due process; United States Supreme Court case law holds that so long as disclosure requirements are equally imposed on both parties, there is no constitutional violation. Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973).

¶ 6 A corollary to the question of the constitutionality of the order is the constitutionality of any sanctions available for a violation of the order. McClaren contends that exclusion of evidence is simply not an option. However, in Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), the United States Supreme Court set forth the appropriate analysis for such a violation and established that sanctions up to and including exclusion of evidence are permissible if warranted. It appears from the record that the circuit court intended to exclude from trial any evidence that McClaren attempted to offer at trial in violation of the order; we clarify here that while such a sanction may be permitted, lesser sanctions must be considered first, and that the extreme sanction of exclusion is permissible only after the circuit court has determined that the violation was "willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence," the test set forth in Taylor. Id. at 415, 108 S.Ct. 646.

¶ 7 We therefore reverse the decision of the court of appeals and remand to the circuit court for further proceedings.

I. BACKGROUND

¶ 8 McClaren spent a spring evening drinking with his wife's ex-boyfriend, Conrad Goehl (Goehl), and the night ended with an altercation—arising, ironically, from a discussion of anger management counseling—in which McClaren hit Goehl with a pickaxe. When the police arrived at the scene, Goehl said he had been attacked without provocation; McClaren claimed self-defense. McClaren was charged with several crimes, including attempted first-degree intentional homicide. Prior to trial, which was scheduled to begin October 29, 2007, McClaren filed a motion in limine seeking a ruling on the admissibility of information about Goehl's extensive criminal record and time in prison, and evidence of his "dangerous character and prior acts of violence." A hearing was held on McClaren's motion on October 2, 2007, four weeks before the day of trial.

¶ 9 Following the hearing, the Jefferson County Circuit Court, the Honorable Randy R. Koschnick presiding, ruled that McClaren would be allowed to introduce evidence about Goehl's violent past but gave McClaren a pretrial deadline to disclose to the State and to the court the nature of the evidence he intended to introduce. The court required "a summary of all specific instances of the victim's violent conduct of which the defendant was aware and that the defendant intends to introduce at trial, including witnesses to such conduct and the date and place such conduct occurred." The record showed that Goehl had 11 prior convictions,³ and the circuit court expressed concern about the length of a mid-trial hearing, outside the jury's presence, on the admissibility of evidence of this nature.

¶ 10 In its oral ruling, the circuit court imposed a reciprocal requirement that the State in turn provide a summary of any evidence it intended to use to rebut McClaren's McMorris evidence regarding Goehl.

¶ 11 Since the order was not appealable as of right, McClaren filed a petition for leave to appeal the order, pursuant to Wis. Stat. § 809.50, and the court of appeals granted the petition.

¶ 12 The court of appeals reversed. The court of appeals viewed the order, "in essence, as a discovery device," and thus centered its analysis on Wis. Stat. § 971.23, which addresses what evidence a prosecutor must disclose and what evidence a defendant must disclose. McClaren, 313 Wis.2d 398, ¶ 25, 756 N.W.2d 802. Because that statute has nothing to say about McMorris evidence, the court held that the order exceeded the circuit court's authority; it found Wis. Stat. § 906.11 inapplicable and, because it found no statute or case that required such disclosure, held that the order was not permitted. Id. It cited this court's holding in State v. Miller, 35 Wis.2d 454, 151 N.W.2d 157 (1967), that discovery in criminal cases was not a matter to be determined by case law but depended on statute or the rule-making process. Id., ¶ 14.

¶ 13 The State filed a petition with this court seeking review of the court of appeals' decision, and we granted review.

II. STANDARD OF REVIEW

¶ 14 This case involves questions of judicial authority, statutory interpretation, and constitutional issues, all of which are reviewed de novo. Custodian of Records for the LTSB v. State, 2004 WI 65, ¶ 6, 272 Wis.2d 208, 680 N.W.2d 792; State v. Floyd, 2000 WI 14, ¶ 11, 232 Wis.2d...