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COURT OF APPEALS
DECISION
DATED AND FILED
April 28, 2009
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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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.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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State of Wisconsin,
Plaintiff-Appellant,
v.
Ernest C. Gardner,
Defendant-Respondent.
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APPEAL
from an order of the circuit court for Eau Claire County: paul
j. lenz, Judge. Reversed and cause
remanded.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. The State appeals an order
granting Ernest Gardner’s motion for a new trial. The State argues that because information
about the victim’s past sexual assault by another perpetrator was not
exculpatory under the facts of this case, the circuit court erred by granting Gardner a new trial. We agree and reverse the order.
Background
¶2 The State charged Gardner
with two offenses: second-degree sexual assault
of a fourteen-year-old girl and bail jumping.
At trial, Leeanna H. testified that Gardner was visiting the house where she was
babysitting. As Leeanna lay on the
couch, Gardner
asked to sit by her feet. Gardner started rubbing
Leeanna’s feet, put his hand up her pants, and rubbed her leg. Leeanna tried to pull away when Gardner started kissing her, but allowed Gardner to remove her clothes out of
fear. Gardner inserted his finger into Leeanna’s vagina
approximately five times and attempted to place Leeanna’s hand on his
penis. Gardner also tried unsuccessfully to have
sexual intercourse with Leeanna. When
Leeanna ultimately pulled away, Gardner
cautioned her not to tell anybody what happened. The jury found Gardner guilty of both offenses.
¶3 During the presentence investigation, the PSI writer
explained the sex offender registry to Leeanna, who responded “she was aware of
it due to her and her sister both being sexually assaulted several years ago by
a neighbor.” At Gardner’s sentencing, the prosecutor noted
that Leeanna “had previously been victimized,” and made no further reference to
the previous sexual assaults. Leeanna
did not speak at the sentencing hearing.
¶4 The court imposed concurrent sentences consisting of seven
years’ initial confinement followed by five years’ extended supervision on the
sexual assault conviction, and six months’ jail time on the bail jumping
conviction. Gardner filed postconviction motions for a
new trial, claiming, in relevant part, that the State failed to disclose
exculpatory information that Leeanna had been sexually assaulted. The State subsequently informed the court
that the previous assaults had been charged and the perpetrators were convicted
and sentenced. The circuit court
ultimately granted Gardner’s
motion for a new trial and this appeal follows.
Discussion
¶5 A request for a new trial is addressed to the trial court’s
discretion. A court properly exercises
its discretion if it relies on the relevant facts in the record and applies the
proper legal standard to reach a reasonable decision. See State
v. LaCount, 2008 WI 59, ¶76, 310 Wis.
2d 85, 750 N.W.2d 780. Thus, we will
find an erroneous exercise of discretion if the trial court’s factual findings
are unsupported by the evidence or if the court applied an erroneous view of
the law. See State v. Martinez,
150 Wis. 2d
62, 71, 440 N.W.2d 783 (1989). When the
trial court’s discretion is based on an error of law, its decision is not
entitled to deference on review. See State v. Giwosky, 109 Wis. 2d 446, 452, 326 N.W.2d 232
(1982). Here, the trial court’s decision
to grant Gardner
a new trial hinged on a question of law—specifically, whether the information
was subject to disclosure. See State v. Chu, 2002 WI App 98, ¶30,
253 Wis. 2d
666, 643 N.W.2d 878.
¶6 Both the due process clause of the United States Constitution
and Wis. Stat. § 971.23(1)(h)
require a prosecutor to disclose exculpatory evidence to the defense. See
State
v. Harris, 2004 WI 64, ¶12, 272 Wis.
2d 80, 680 N.W.2d 737. To be subject to
disclosure, however, the evidence must be “favorable” to the accused, either
because it tends to establish the defendant’s innocence or because it impeaches
the credibility of a prosecution witness.
Id. In addition to being favorable, the withheld
evidence must be “material”—in other words, there must be a reasonable
probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.
Id.,
¶¶13-14. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.,
¶14. A prosecutor, however, is not
required to share all useful information with the defendant. Id.,
¶16. The mere possibility that
information “might have helped the defense does not establish
materiality.” Id.
¶7 Citing Harris, Gardner intimates that any information that a
victim has been sexually assaulted in the past is exculpatory per se. We are not persuaded. In Harris, the defendant was convicted
of having sexual contact with a six-year-old girl. The prosecutor failed to disclose that after
the charges were filed, the victim reported that her grandfather had sexual
contact with her approximately two months before the charged offense was
committed. Id., ¶5. Although our supreme court concluded the
information was exculpatory, that conclusion was not based merely on the nature
of the information but, rather, on an evaluation of the circumstances of that
case. Id., ¶30.
¶8 The Harris court held the information was
favorable to the accused because it related to the credibility of the young
victim since it raised an inference that she might be projecting the assaults
committed by her grandfather onto Harris.
Id.,
¶¶28-30. The court also concluded that by
providing an alternate source for the victim’s knowledge of sexual matters, the
information could be used to impeach any expert witness called to establish
that the charged assault was the source of the victim’s sexual knowledge and
reactive behaviors.
¶9 In the present case, the information related to a sexual
assault or assaults that were reported and prosecuted before the instant
assault occurred. Gardner
nevertheless argues that had the information been disclosed, he could have
explored a “possible bias or interest” on Leeanna’s part in testifying falsely
to punish Gardner. As noted above, the mere possibility that
information “might have helped the defense does not establish
materiality.” Id., ¶16. Here, the record does not support a claim
that any trauma from the prior assault motivated an accusation against Gardner in the present
case. Leeanna never mentioned the prior assault
to the prosecutor and only referred to it in order to explain to the PSI writer
why she knew about the sex offender registry.
Further, in her interview with the PSI writer, Leeanna attributed any
distress she was experiencing at the time to the assault by Gardner. The record does not support an inference that
Leeanna might be projecting the past assault onto Gardner.
¶10 Further, no expert testified that the instant assault was the
source of Leeanna’s sexual knowledge.
Therefore, the information was not relevant to impeach the credibility
of an expert witness. Reasonably
commensurate with the knowledge of most fourteen-year-olds, Leeanna’s testimony
exhibited awareness of the male and female sexual organs and their
functions. Moreover, Gardner’s acts could not be misinterpreted
regardless of Leeanna’s prior sexual experience. We conclude that under the circumstances of
this case, information about Leeanna’s past assault was neither favorable nor
material to Gardner’s
defense. Because the information was not
exculpatory, the prosecutor had no duty to disclose it.
¶11 To the extent Gardner
claims the trial court properly granted a new trial based on newly-discovered
evidence, it does not appear that this argument was raised below and it was not
the basis for the trial court’s decision to grant the new trial. Further, Gardner fails to adequately develop this
argument on appeal. We may decline to
review issues inadequately briefed. See State v. S.H., 159 Wis. 2d 730, 738, 465 N.W.2d 238, 241 (Ct.
App. 1990). In any event, to warrant a
new trial in this case, the new evidence must be material and there must be a
reasonable probability that it would create a reasonable doubt about Gardner’s guilt. See State v.
Plude, 2008 WI 58, 310 Wis.
2d 28, 750 N.W.2d 42. As noted above,
the new evidence was not material and does not create a reasonable doubt about Gardner’s guilt.
¶12 Finally, Gardner
asserts that a new trial is warranted in the interest of justice. Gardner
again fails to adequately develop this claim.
Even on the merits, this claim would fail. A new trial may be granted in the interest of
justice if it appears that the real controversy has not been fully tried, or
that it is probable justice has for any reason miscarried. See
Wis. Stat. § 752.35. In order to establish that the real
controversy has not been fully tried, Gardner
must convince us “that the jury was precluded from considering important
testimony that bore on an important issue or that certain evidence which was
improperly received clouded a crucial issue in the case.” State v. Darcy N.K., 218 Wis. 2d 640, 667, 581
N.W.2d 567 (Ct. App. 1998) (internal quotations omitted). To establish a miscarriage of justice, Gardner “must convince us
there is a substantial degree of probability that a new trial would produce a
different result.” Id. An appellate court will exercise its
discretion to grant a new trial in the interest of justice “only in exceptional
cases.” State v. Cuyler, 110 Wis. 2d 133, 141, 327
N.W.2d 662 (1983). Because Gardner has failed to show that the real controversy has
not been fully tried or that justice has for any reason miscarried, we decline
to exercise our discretionary authority to grant Gardner a new trial.
By the Court.—Order reversed and cause
remanded.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.