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COURT OF APPEALS DECISION DATED AND RELEASED June 06, 1995 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3421-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CORBIN JONES,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County: DANIEL L. KONKOL, Judge. Affirmed.
SULLIVAN,
J. Corbin Jones appeals from a judgment of conviction, after a jury
trial, for one count of disorderly conduct, while armed, and one count of resisting
an officer. He asks this court to grant
a new trial because his due process rights were allegedly violated when the
trial court allowed into evidence testimony about a police report that the
State failed to turn over after a defense discovery request. We conclude that while the State should have
disclosed the police report to Jones, a new trial is not warranted because
failure to disclose the report did not affect the result of the trial. Accordingly, we affirm.[1]
The following facts were
adduced at trial. City of Milwaukee
police officers responded to a domestic argument between Jones and his live-in
girlfriend. Jones's girlfriend had
earlier phoned the police and told them that Jones had threatened her with a
kitchen knife. When the police arrived,
Jones's girlfriend informed them that Jones had tampered with her automobile's
engine, had threatened her with a claw hammer, and was located in the upstairs
apartment of the two-story duplex.
The police requested
back-up officers and then proceeded to the upstairs apartment; knocking on the
outside door, identifying themselves as Milwaukee police officers, and
requesting Jones to come to the door.
After they received no response, the officers entered the apartment
using a key given to them by Jones's girlfriend. They announced their presence several times and then began
searching for Jones. Officer Kenneth
Henning located Jones, lying on a bed in a bedroom. He announced “Milwaukee Police” and told Jones to show the
officer his hands.
Jones sat up, and
Henning saw a kitchen knife in his hands.
The police officers ordered Jones to drop the knife. He failed to do so and the officers next saw
Jones reach for a claw hammer located on the bed. The officer sprayed Jones in the face with pepper spray, but
Jones did not drop the knife. Officer
Kevin Porter struck Jones's arm several times with his baton and Jones released
the knife. Jones then struggled with
the officers as they attempted to handcuff him. He was eventually subdued and arrested. He was charged in a two-count criminal complaint and received a
jury trial.
At trial, during Jones's
counsel's cross-examination of Officer Henning, the issue of Henning's belief
that Jones was under the influence of a controlled substance arose. Jones's counsel asked why Henning had not
written in his police report that Jones was intoxicated. Henning stated that the report form asked
about intoxication, and that he (Henning) believed that “intoxication” only
referred to alcoholic beverages—not controlled substances.
On redirect-examination
by the assistant district attorney, the following exchange took place:
[PROSECUTOR]: Do
you recall if in your green clearance report you indicated any concerns about
the defendant being high or under the influence of an--of some sort of
narcotic?
[COUNSEL]: Objection.
It's not before us. Under Brady
v. Maryland, I have a right to it.
It's extrinsic. It hasn't been
offered. If he's got something, he
should have brought it in and I should have it.
[PROSECUTOR]: You do have it, counsel.
[COUNSEL]: Where?
THE
COURT: All right. The
objection is overruled. Answer the
question.
THE
WITNESS: Yes.
....
[PROSECUTOR:] And
what did you indicate in your report?
Do you recall?
[THE
WITNESS:] I don't recall exact words, but I believe I stated the
victim informed me that the suspect probably was high on cocaine.
[COUNSEL]: Objection. That's already been ruled on. The victim reported--it's been ruled
on. I move to strike.
[PROSECUTOR]: I
disagree.
THE
COURT: Then, officer, if you would just indicate whether that was in
your report or not.
[COUNSEL]: And
I still object, because I have a right to the report. It can't be offered in the record without the discovery given to
me, Judge.
THE
COURT: Your objection is overruled.
[PROSECUTOR]: No
other questions.
The
jury later convicted Jones of all counts.
He now appeals.
Jones argues that the
trial court erred by allowing Officer Henning to testify about the police
report. Jones contends that because the
State did not provide him with a copy of Henning's report pursuant to his demand
for discovery and inspection of all police reports his due process rights were
violated. Accordingly he asks this
court to grant him a new trial. We
decline to do so.
In Brady v.
Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that
the State's failure to turn over evidence favorable to an accused violated due
process where the evidence is material, either to guilt or punishment. Id.
at 87. While the “Brady rule
applies as well where the nondisclosure of the evidence goes to the credibility
of a witness,” such “evidence is material under Brady `only if there is
a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.'” State v. Pettit, 171 Wis.2d
627, 644, 492 N.W.2d 633, 641 (Ct. App. 1992).
The evidence at question
in the case at bar was a police report in which Officer Henning allegedly noted
his belief that Jones was under the influence of a controlled substance. Jones alleges in his appeal that the issue
of Jones's alleged intoxication was the “cornerstone of the defense” because
the police reports that were provided to Jones allegedly did not mention any
suspicion of intoxication. Jones argues
that the lack of such evidence supported his version of the events in which he
alleged that he was not under the influence of any substances and that the
officers used “excessive force” in their investigation. Further, he argues that lack of any
statements in the police reports allowed Jones to impeach the credibility of
the officers. When, however, the trial
court allowed Officer Henning to discuss the undisclosed police report, it
“greatly bolstered [Henning's] credibility” and allowed the State to
rehabilitate the inconsistencies created during Jones's cross-examination of
Officer Henning.
We conclude that while
the State should have turned over the police report during discovery, the
failure to do so and the subsequent procurement of testimony about the report
does not entitle Jones to a new trial.
We reach this conclusion because we do not believe that if the police
report “had been disclosed to the defense, the result of the proceeding would
have been different.” Id.
While evidence of
Jones's alleged intoxication may have been minimally relevant to the
credibility of both Officer Henning's and Jones's version of the arrest,
whether or not Jones was high on cocaine was completely irrelevant as to
Jones's guilt in the offenses charged.
Additionally, there was ample evidence presented to the jury by which it
could find Jones guilty of these offenses—irrespective of whether Jones's
alleged intoxicated state was shown or disproved. Accordingly, even if the defense had received the report, the
result of the proceeding would not have changed. Id.
For the foregoing
reason, Jones is not entitled to a new trial and we must affirm his judgment of
conviction.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.