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COURT OF APPEALS
DECISION
DATED AND RELEASED
OCTOBER 1, 1996
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NOTICE
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats.
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
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No. 96-0140-CR
STATE
OF WISCONSIN IN
COURT OF APPEALS
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
JOHN A. LETTICE,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Vilas County:
JAMES B. MOHR, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. The State appeals an order granting John
Lettice's motion for a new trial. The
State argues that there was insufficient evidence of prosecutorial misconduct,
Lettice received competent representation, and Lettice's due process rights were
not violated. In the alternative, the
State argues that even if its criminal charge against Lettice's defense
attorney was misguided, a new trial is unwarranted. We disagree and affirm the order.
On March 17, 1993,
Lettice was charged with two counts of first‑degree sexual assault. The alleged victim was Lettice's
three-year-old daughter, D.L. This
appeal arises from the conduct of Vilas County District Attorney Steve
Lucareli. On the afternoon of Friday,
March 4, 1994, just three days before the scheduled start of the Lettice trial,
the parties appeared in court to argue motions. At that time, Lucareli served Lettice's defense attorney, Dennis
Burgy, with a criminal complaint charging Burgy with publicly disclosing a
confidential medical record contrary to § 146.82, Stats.
The medical record at
issue was a page of handwritten notes from the files of the State's expert, Dr.
Gina Koeppl. Koeppl, a psychologist,
saw D.L. several times at Lucareli's request to determine whether D.L. had been
sexually assaulted and what services she needed. Koeppl interviewed D.L., performed diagnostic and evaluative
services for D.L., and referred her to another doctor.
Burgy filed motions
requesting access to Koeppl's records, or, in the alternative, for in camera
inspection of those records. At a
September 17, 1993, motion hearing, the court ordered an in camera inspection
of the records and ruled that Koeppl's notes were not confidential treatment
records.
In a motion dated
February 11, 1994, Burgy moved the trial court to admit evidence tending to
show that D.L. had sexual contact with a person other than Lettice. Included with his written offer of proof was
Koeppl's one-page report, which contained information that D.L. had named a
perpetrator other than Lettice. The
criminal complaint against Burgy charged that he violated § 146.82, Stats., when he filed the motion with a
copy of this report attached.
After he served Burgy
with the complaint on March 4, Lucareli filed a motion to disqualify Burgy and
his associates from further representation of Lettice because of a conflict of
interest. The trial court denied the
motion. Lucareli then petitioned this
court for an ex parte stay of the proceedings and for leave to file a petition
for interlocutory appeal. This court
denied the request.
As a result of the
charges, Burgy spent the next few days researching the law applicable to the
charge against him, rather than devoting his time to preparation for the
Lettice trial. He was unable to sleep
Sunday and Monday because he was preoccupied with the charge. Burgy slept normally only after he sought
medical attention and was prescribed sleeping pills.
On Monday, March 7,
Burgy moved to dismiss the case against Lettice on grounds of prosecutorial
misconduct. The motion was denied, and
the jury trial commenced. The trial
court described the case as extremely hard fought on both sides, and an
extremely close case. The victim did not
testify, there was no physical evidence of the assault, and the trial unfolded
in the midst of an ongoing divorce and custody battle. The jury convicted Lettice on both counts.
Two days after the jury
trial ended, Lucareli filed a motion to dismiss the charge against Burgy in
the interest of justice and judicial
economy. By order dated March 21, 1994,
the trial judge granted the motion.
Lettice filed a
postconviction motion, asserting that prosecutorial misconduct created a
conflict of interest that interfered with Burgy's ability to effectively
represent Lettice. The court found that
there was no conflict of interest, but ordered a new trial in the interest of
justice, to preserve the integrity of the judicial process, and because the
prosecutor's misconduct deprived Lettice of his rights to counsel and due
process. It is from this order that the
State now appeals.
Our review of the trial
court's decision to grant a new trial is deferential. State v. Bembenek, 111 Wis.2d 617, 634, 331 N.W.2d
616, 625 (Ct. App. 1983). The determination of whether prosecutorial misconduct
occurred and whether such conduct requires a new trial is within the trial
court's discretion. Id. "An appellate court will sustain a
discretionary act if the trial court examined the relevant facts, applied a
proper standard of law, and used a rational process to reach a conclusion that
a reasonable judge could reach." City
of Muskego v. Godec, 167 Wis.2d 536, 546, 482 N.W.2d 79, 83
(1992).
Prosecutorial misconduct
"can rise to such a level that the defendant is denied his or her due
process right to a fair trial." State
v. Wolff, 171 Wis.2d 161, 167, 491 N.W.2d 498, 501 (Ct. App.
1992). If the misconduct "poisons
the entire atmosphere of the trial," it violates due process. United States v. Pirovolos,
844 F.2d 415, 425 (7th Cir. 1988). As
stated by the court, "When the seriousness of prosecutorial misconduct and
the weakness of evidence of guilt cause us to question a trial's fairness, we
will not hesitate to reverse the resulting conviction and order a new
trial." Id. at
427. Unless the government can
demonstrate beyond a reasonable doubt that the error was harmless, reversal is
warranted. Id. at
425.
Reversing a criminal
conviction on the basis of prosecutorial misconduct is a "drastic
step" that "should be approached with caution." State v. Ruiz, 118 Wis.2d 177,
202, 347 N.W.2d 352, 364 (1984). In
order to determine whether a new trial is warranted the court must balance a
number of factors, including the following:
the
defendant's interest in being tried on evidence validly before the jury; the
public's interest in having the guilty punished; the public's interest in not
burdening the administration of justice with undue financial or administrative
costs; the public's interest that the judicial process shall both appear fair
and be fair in fact; and the interest of the individuals involved—the witnesses
and family of the victim—not to be subjected to undue trauma, embarrassment or
inconvenience.
Id. We review allegations of prosecutorial
misconduct in light of the entire record of the case. See United States v. Mealy, 851 F.2d 890,
903 (7th Cir. 1988).
In Wisconsin, the district attorney has great
discretion in deciding whether to file criminal charges. Sears v. State, 94 Wis.2d 128,
133, 287 N.W.2d 785, 787 (1980). However, when the district attorney initiates a prosecution
without sufficient evidence to support a conviction, or for coercive reasons,
he has abused his discretion. Thompson
v. State, 61 Wis.2d 325, 329-30, 212 N.W.2d 109, 111 (1973).
The trial court found
that there was no probable cause to support the charge against Burgy, and we
agree. Before Lucareli filed the
charge, the court had specifically ruled that the one-page record of Koeppl's
notes was not a confidential health care record covered by § 146.82, Stats.
Therefore, Burgy acted in accordance with the court's ruling, and did
not violate § 146.82 when he filed a copy of the report. The suggestion in the state's brief that
Lucareli "may have forgotten" about the court's ruling is an
unacceptable excuse for his behavior.
The trial court
criticized Lucareli's motives for filing the charge on the eve of trial. Assistant District Attorney Strong testified
that Lucareli told him three or four times within a period of two days that he
needed an adjournment in the Lettice trial. In the district attorney's office two days
later, Strong saw Lucareli pull a document from the Lettice file
and say "this is it," or something to that effect. Strong recognized the document as Koeppl's
report, and Lucareli initiated a discussion with Strong as to whether the
document was covered under ch. 146, Stats. Lucareli testified that he filed the charge
to protect D.L. and to ensure that Burgy filed no further medical reports. The court was not persuaded by Lucareli's
testimony, and neither are we.
Instead, the evidence
supports the trial court's finding that Lucareli filed the charge either to
disqualify Burgy or to delay the jury trial.
Lucareli's intentional misconduct had a profoundly negative impact on Burgy's
ability to effectively represent Lettice.
The cumulative effect of Burgy's errors deprived Lettice of his due
process right to a fair trial. Burgy
testified that he spent time over the weekend researching the charge against
him, rather than preparing for the Lettice trial, and was so
preoccupied with the charge that he did not sleep for two nights.
In addition, the trial
court noted specific instances of Burgy's ineffectiveness. We defer to the trial judge's perceptions
because he was able to observe the parties' behavior and the jury's reaction
during the trial. See Mealy,
851 F.2d at 903. The judge recalled
that when Lettice's wife took the stand as a witness for the State, she
testified about a room in their basement where Lettice "worked out, where
he kept his Playboy magazines, where he masturbated, and [where] some of the
child's toys were kept." Despite
the highly prejudicial nature of the testimony, Burgy did not object.
An assistant district
attorney testified that Burgy looked like a "whipped dog" during the
trial. Another attorney described Burgy
as incoherent at times. During the jury
trial, one of the State's witnesses commented on the way Burgy's hands shook,
and the next day Lucareli questioned another witness as to whether Burgy's
shaky hands were a nonverbal cue that would "tell you anything." At the postconviction hearing, Burgy
testified that the charge filed against him hampered his trial performance, and
that his demeanor contributed to the jury's guilty verdicts. The trial court directly attributed Burgy's
ineffectiveness to Lucareli's misconduct.
We
agree with the trial court that prosecutorial misconduct deprived Lettice of a
fair trial and prejudiced his defense, especially in light of the closeness of
the case and the seriousness of Lucareli's misconduct. We therefore affirm the order for a new
trial.
By the Court.—Order
affirmed.
