State v. Novy

• Citation: 346 Wis.2d 289,827 N.W.2d 610,2013 WI 23
• Decision Date: 14 March 2013
• Docket Number: Nos. 2011AP407–CR, 2011AP408–CR, 2011AP409–CR.,s. 2011AP407–CR, 2011AP408–CR, 2011AP409–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Brent T. NOVY, Defendant–Appellant–Petitioner.
• Court: United States State Supreme Court of Wisconsin

346 Wis.2d 289

827 N.W.2d 610

2013 WI 23

STATE of Wisconsin, Plaintiff–Respondent,

v.Brent T. NOVY, Defendant–Appellant–Petitioner.

Nos. 2011AP407–CR, 2011AP408–CR, 2011AP409–CR.

Supreme Court of Wisconsin.

Argued Oct. 9, 2012.

Decided March 14, 2013.

For the defendant-appellant-petitioner, there were briefs filed by Gerald P. Boyle and Boyle, Boyle & Boyle, S.C., Milwaukee, and oral argument by Gerald P. Boyle.

For the plaintiff-respondent, the cause was argued by Christine A. Remington, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

PATIENCE DRAKE ROGGENSACK, J.

[346 Wis.2d 294]¶ 1 This is a review of a decision of the court of appeals ¹ that affirmed a judgment of the circuit court for Kenosha County. ² Novy raises two issues. First, Novy claims that the trial court erred when it allowed the State to use certain fingerprint evidence and related testimony in rebuttal, which the court had previously excluded from the State's case-in-chief due to a Wis. Stat. § 971.23 (2009–10) discovery violation. ³ Second, Novy asserts that he was deprived of his right to a fair trial by an impartial jury because, he claims, one of the jurors was sleeping during a portion of defense counsel's closing argument.

¶ 2 We conclude that, with regard to the admission of fingerprint-related testimony on rebuttal, the circuit court did not erroneously exercise its discretion. The circuit court initially determined that the State had failed to comply with its discovery obligations under Wis. Stat. § 971.23(1); and therefore, the court excluded fingerprint evidence and related testimony from the State's case-in-chief pursuant to § 971.23(7m)(a). However, after Novy testified such that the excluded fingerprint evidence and related testimony would controvert his testimony, the circuit court concluded that it could be presented in rebuttal. The circuit court properly interpreted § 971.23 under the facts of this case, and given the significant discretion afforded circuit courts on evidentiary matters, we cannot say that the circuit court erroneously exercised its discretion in permitting the rebuttal use of the fingerprint evidence and related testimony.

¶ 3 With regard to the circuit court's treatment of the allegedly sleeping juror, the circuit court did not find that the juror was sleeping; therefore, Novy failed to establish a finding necessary to his contention. The circuit court's findings are not clearly erroneous, and therefore, we will not overturn the circuit court's refusal to strike the juror. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND ⁴

¶ 4 For conduct that occurred between May 2008 and January 2009, Novy was charged in Kenosha County with two counts of stalking, 11 counts of felony bail jumping, and one count of violating a harassment injunction. All of the charges related to Novy's conduct toward his ex-fiancé, Julie N. The two had dated on and off for approximately five years, until September of 2007, when Julie ended the relationship. After the relationship ended, Novy continued to contact Julie, to the point where, in November 2007, Julie sought and obtained a harassment injunction against Novy under Wis. Stat. § 813.125(4). The injunction prohibited Novy from contacting Julie in any way, and required that he avoid her residence.

¶ 5 In early May 2008, Novy was charged with one count of stalking, in violation of Wis. Stat. § 940.32(2)(a), (b), and (c). The complaint (case no. 08–CF–500) alleged that, between October 17, 2007, and February 4, 2008, Novy had engaged in a course of conduct, directed at Julie, which had caused Julie to suffer serious emotional distress, and that Novy knew or should have known that his conduct would cause such distress. Generally, Novy's alleged conduct included following and harassing Julie in public places, calling Julie at work and hanging up, accessing Julie's voicemail and prowling around Julie's house. Novy was released on a $1,000 signature bond, which provided that he was to have “No [c]ontact w/ Julie [N.]; not to be within 1000 feet of her residence.”

¶ 6 Then, on November 12, 2008, Novy was charged with another count of stalking under Wis. Stat. § 940.32(2) and eight counts of felony bail jumping, in violation of Wis. Stat. § 946.49(1)(b). These charges (case no. 08–CF–1307) all involved a course of conduct in which Novy allegedly had engaged between May 4, 2008, and November 10, 2008. Similar to the conduct underlying the previous stalking charge, the alleged conduct involved hang-up calls to Julie's home, following her in public (including waiting for her outside her place of work), lurking around Julie's house and in her neighborhood, and repeatedly calling Julie's friends. Again, Novy was released on bond, this time a $5,000 cash bond, which also provided that he was to have no contact with Julie or her residence.

¶ 7 Relevant for purposes of this appeal, one of the eight counts of bail jumping in case number 08–CF–1307 (Count 7) alleged that, on the night of November 9, 2008, Julie received a hang-up call from a payphone at L & M Meats in Kenosha, which was close to Novy's residence. Julie had previously noticed Novy's vehicle near L & M Meats, and had called her sister from that payphone to determine the phone number associated with that phone. After receiving the hang-up call on the night of November 9, Julie called the police, who went to the payphone at L & M Meats and verified that was the number from which Julie had recently received the phone call. Officers also lifted fingerprints from the receiver of the payphone. Police analysts later determined that these fingerprints matched Novy's fingerprints.

¶ 8 On January 14, 2009, Novy was charged with three additional bail jumping counts, as well as one count of violating the harassment injunction, contrary to Wis. Stat. § 813.125(7). The complaint (case no. 09–CF–58) alleged that Novy had been seen driving slowly past Julie's house, in violation of the harassment injunction and the conditions of his bonds for the prior charges. Novy was again released on a cash bond ($20,000), which reiterated the prohibition on contacting Julie or being within 1,000 feet of her residence.

¶ 9 In late May 2010, a jury trial was held in Kenosha County, wherein the three separate cases were joined and Novy was tried on all 14 counts. During opening statements, counsel for the State referred to testimony about fingerprint evidence that would tend to show that Novy had called Julie from L & M Meats on November 9, 2008. After opening statements, defense counsel moved to exclude the fingerprint evidence and related testimony on the ground that the defense had requested all evidence subject to disclosure under Wis. Stat. § 971.23(1), but the State had failed to provide access to the cards on which the fingerprints were exhibited.⁵

¶ 10 The circuit court concluded that the State had failed in its obligation to properly disclose the fingerprint evidence, as required by Wis. Stat. § 971.23(1)(g). Therefore, the court granted the defendant's motion to exclude the evidence. When counsel for the State asked whether the fingerprint evidence would be available for rebuttal, Judge Kluka responded, “I don't know.”

¶ 11 After the State completed its case-in-chief, the defense moved to dismiss Count 7 in case number 08–CF–1307, the bail jumping charge relating to the alleged phone call from the L & M Meats payphone, arguing that without fingerprint-related testimony, the State no longer had any evidence linking Novy to the phone on the night in question. The State conceded that, without the fingerprint-related testimony, the State would be unable to prove the elements of bail jumping for Count 7. Accordingly, the circuit court granted the defendant's motion to dismiss that count.

¶ 12 During the defense's case, Novy chose to testify. Prior to his testimony, defense counsel sought to prevent any questions regarding the phone call from L & M Meats on November 9, 2008, on the ground that the alleged call related solely to the dismissed bail jumping charge. The State responded that the phone call from L & M Meats was a proper subject for questioning because the call related to the course of conduct supporting the second count of stalking, which allegedly occurred between May 4, 2008, and November 10, 2008 (case no. 08–CF–1307). The circuit court agreed with the State and concluded that such questioning was relevant to the second stalking count.

¶ 13 During cross-examination of Novy, counsel for the State asked Novy, “[D]id you call Julie from L and M Meats here in Kenosha on November 9th of 2008 at approximately 8:00 p.m.?” Novy responded, “No, I did not.” During Novy's redirect, defense counsel did not ask Novy any clarifying questions regarding his use of the payphone at L & M Meats on the night in question.

¶ 14 As the State prepared to present its case-in-rebuttal, counsel for the State asked whether the fingerprint evidence from L & M Meats and related testimony would be allowed at that point, given Novy's denial of having called Julie from that phone. Defense counsel protested, arguing that the fingerprint-related testimony showed only that Novy had at some point used the payphone at L & M Meats, not that he had necessarily used it that night. Additionally, defense counsel argued that the discovery statute, Wis. Stat. § 971.23(1) and (7m), mandated that evidence that had been excluded for discovery violations be excluded throughout the trial, not solely for the State's case-in-chief. The circuit court, however, disagreed and allowed the State to present the fingerprint evidence and related testimony, calling it “bona fide rebuttal evidence” as to the second stalking charge.

¶ 15 In its case-in-rebuttal, the State presented the testimony of two officers from the Kenosha Police Department, Officers Hamilton and Primmer. Officer Hamilton testified that he was an...