¶11      Once a defendant has been properly bound over on one count, the prosecutor has the authority to include additional charges in the information “so long as they are not wholly unrelated to the transactions or facts considered or testified to at the preliminary.” Id. at 528 (citing Bailey, 65 Wis. 2d at 341). Charges are “not wholly unrelated,” meaning they are transactionally related, when they are related in terms of “the affinity of parties and witnesses, the charges’ geographical and temporal proximity, the physical evidence required for conviction, and the defendant’s motive and intent.” State v. Richer, 174 Wis. 2d 231, 239, 254, 496 N.W.2d 66 (1993). The supreme court has explained that using these seven factors to determine when counts may be added in the information are “indicative of [the] court’s continuing efforts to further the underlying legislative and constitutional goals ^[6] of the preliminary hearing while also affording prosecutors increasing flexibility in their charging decisions.” Richer, 174 Wis. 2d at 246 (footnote added).

¶16      The State’s position at the preliminary hearing—that the questions about ownership and tenancy were not relevant to the delivery charge—is not “clearly inconsistent” with its subsequent position that it may add the drug-house charge in the information because it is transactionally related to the delivery charge. Case law establishes that the prosecutor may choose after the preliminary hearing to add transactionally related charges in the information. See, e.g., Williams, 198 Wis. 2d at 528; Bailey, 65 Wis. 2d at 341. Nothing in the case law suggests that the scope of the cross-examination at the preliminary hearing is affected by what the prosecutor’s intent might be in this regard or what the prosecutor might later decide to do.

¶13   Both the United States Supreme Court and our supreme court have held prosecutors have the freedom to choose which statutes to charge, as long as the choice is not based “upon an unjustifiable standard such as race, religion, or other arbitrary classification.” State v. Cissell, 127 Wis. 2d 205, 215, 378 N.W.2d 691 (1985); Batchelder, 442 U.S. at 125 n.9. In Wisconsin, prosecutors enjoy “broad discretion in determining whether to charge an accused, which offenses to charge [and] under which statute to charge.” State v. Krueger, 224 Wis. 2d 59, 67, 588 N.W.2d 921 (1999) (footnotes omitted); see also State v. Lindsey, 203 Wis. 2d 423, 440, 554 N.W.2d 215 (Ct. App. 1996).

¶14   Ploeckelman does not argue that double jeopardy attaches or that the State inappropriately charged him based on race, religion, or another arbitrary classification. Thus, as an exercise of prosecutorial discretion, the State could charge Ploeckelman under the general theft statute as it was not restricted to charging him only under the misdemeanor statute.

¶34      The DNA was the same.  Both the RFLP-DNA profile and the PCR-DNA profile contained Davis’s DNA exclusively. His argument elevates form over substance. The State specifically identified Davis’s DNA in a complaint before the statute of limitations expired. The fact that the type of DNA analysis technology changed does not somehow alter the accuracy of the identification. The person with the DNA in the original complaint was the same person with the DNA in the amended complaint— Davis. Thus, his claim that the analysis was different is of no consequence. His DNA did not change, but remained the same. Thus, it satisfied the reasonable certainty requirements for an arrest warrant and answered the “who is charged” question required for a sufficient complaint. Id. Thus, the trial court did not err in finding that the complaint was sufficient.

¶12 We look within the four corners of the complaint to see whether there are facts or reasonable inferences set forth that are sufficient to allow a reasonable person to conclude that a crime was probably committed and that the defendant probably committed it. State v. Haugen, 52 Wis. 2d 791, 793, 191 N.W.2d 12 (1971). A complaint is sufficient if it answers the following questions: "(1) Who is charged?; (2) What is the person charged with?; (3) When and where did the alleged offense take place?; (4) Why is this particular person being charged?; and (5) Who says so? or how reliable is the informant?" State v. White, 97 Wis. 2d 193, 203, 295 N.W.2d 346 (1980); see State ex rel. Evanow v. Seraphim, 40 Wis. 2d 223, 229-30, 161 N.W.2d 369 (1968). Only the fourth question is at issue in this case.

¶31 We have in prior cases referred to American Bar Association Criminal Justice Standard 3.9 pertaining to the exercise of charging discretion, identifying two circumstances in which prosecutorial charging discretion may be abused: "[t]his standard makes it abundantly clear that . . . it is an abuse of discretion to charge when the evidence is clearly insufficient to support a conviction. It is also an abuse of discretion for a prosecutor to bring charges on counts of doubtful merit for the purpose of coercing a defendant to plead guilty to a less serious offense." Thompson, 61 Wis. 2d at 329- 30; Karpinski, 92 Wis. 2d at 609-10. A district attorney generally should not bring a charge unless he or she believes the evidence can sustain a finding of guilt beyond a reasonable doubt. Not all the guilty are convictable; moreover, convicting all the guilty may not be desirable. Full enforcement of the criminal laws "is neither possible nor desirable." 4 Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure § 13.2(d), at 22-23 (1999).

¶32 Accordingly, ABA Standard 3.9 specifies a number of discretionary factors beyond the question of the suspect's guilt that may legitimately be taken into consideration in the charging decision. These include the extent of harm caused by the offense; the threat posed to the public by the suspect; the ability and willingness of the victim to participate; the disproportion between the authorized punishment and the particular offense or offender; possible improper motives of a complainant; cooperation of the suspect with the arrest/prosecution of others; the possibility or likelihood of prosecution by another jurisdiction. American Bar Association Standards for Criminal Justice, Vol. 1, Standard 3-3.9 (2d ed. 1980); see also Karpinski, 92 Wis. 2d at 608-09; Thompson, 61 Wis. 2d at 329-30. There may well be other legitimate discretionary charging factors relating to the particular circumstances of each individual complaint.

Like Giwosky, there was evidence presented at trial in this case, when viewed most favorably to Glenn's one-crime theory, that the encounter on the pier was a short, continuous event. The chase followed immediately after the beating; there was no "break in the action." According to some witnesses, the incident lasted only a few minutes, with the battery and chase confined to the narrow pier until Massaro jumped from the pier to his death. Therefore, we conclude that the incident here may properly be viewed as a single continuous criminal event.

This court has recognized that when charging a defendant who has engaged in a series of separate offenses which may properly beviewed as one continuing offense, "it is within the State's discretion to elect whether to charge 'one continuous offense or a single offense or series of single offenses.'" State v. Lomagro, 113 Wis. 2d 582, 587, 335 N.W.2d 583 (1983), quoting State v. George, 69 Wis. 2d 92, 100, 230 N.W.2d 253 (1975). See also State v. Chambers, 173 Wis. 2d 237, 250, 496 N.W.2d 191 (Ct. App. 1992). Accordingly, we conclude that the State properly exercised its discretion in issuing one charge of intermediate aggravated battery.⁴

¶10 .... The supreme court has clarified that for a charge to not be "wholly unrelated to the transactions or facts considered or testified to" at a preliminary hearing, it "must be 'related in terms of parties involved, witnesses involved, geographical proximity, time, physical evidence, motive and intent.'" Burke, 153 Wis. 2d at 457. All seven factors need not be satisfied; instead, they "form a general framework for determining whether counts can be added to the information and yet meet the goals of the preliminary hearing." Richer, 174 Wis. 2d at 239-40. The second count in the instant case, however, satisfied all seven criteria.

¶11 Except for the difference between the victims, the counts were closely related in every way. The parties involved were related, literally and legally. That is, Alicia and Aaron were related to each other and to their step-grandfather; and their assaults were related to each other, occurring at approximately the same time and location, and under the same circumstances. Further, the witnesses and physical evidence were the same, and Bury's motive and intent for both assaults were indistinguishable. Accordingly, we conclude that the trial court was correct in denying Bury's motion to dismiss the second count of the amended information.

Charging Instrument – Notice -- “DNA Complaint”

State v. Bobby R. Dabney, 2003 WI App 108, PFR filed 5/23/03
For Dabney: Lynn E. Hackbarth
Issue/Holding:

¶28. First, the fact that the original complaint and arrest warrant were issued as "John Doe" and contained only a DNA profile does not create any lack of "notice" issues. A defendant is not entitled to specific notice that the state is issuing a complaint and seeking an arrest warrant. "[A]n arrest warrant issues when it is signed by a judge with intent that it be executed and the warrant leaves the possession of the judge." State v. Mueller, 201 Wis. 2d 121, 129, 549 N.W.2d 455 (Ct. App. 1996). Thus, the warrant is issued without any involvement from the defendant and the defendant is not provided with any notice of the underlying charge until the warrant is executed. Here, the warrant was not executed until Dabney's name was substituted for "John Doe." Thus, whether or not Dabney knew his specific DNA profile is irrelevant.

¶25 Lastly, Brienzo raises the same challenge to the sufficiency of the complaint as he did with regard to the child enticement charge—that the complaint fails to establish probable cause that he attempted to sexually assault a child. The facts alleged and their reasonable inferences permit the conclusion that Brienzo intended to have sexual contact with a person he believed to be under the age of sixteen. Arranging a time and a place to meet that person, arriving at that place at the assigned time, and getting out of the car and entering the restaurant that was the agreed-upon meeting place are acts in furtherance of that criminal objective. It is reasonable to infer from those acts, in light of the preceding Internet communications, that Brienzo would have committed the crime except for the intervention of the extraneous factor that the person with whom Brienzo communicated was an adult law enforcement officer rather than an actual fourteen-year-old boy. More specifically, the facts alleged and their reasonable inferences show that, had a fourteen-year-old boy rather than a law enforcement officer met Brienzo at the McDonald’s, Brienzo would have had sexual contact with the boy. We therefore conclude that the facts alleged in the criminal complaint and their reasonable inferences establish probable cause that Brienzo attempted to sexually assault a child under the age of sixteen.

¶17 We reach the same conclusion in this case. The complaint alleges that Brienzo communicated via the Internet with “Alex,” a person he believed to be a fourteen-year-old boy. During these communications, Brienzo expressed an interest in having sexual contact with Alex and suggested that they go to a hotel. Brienzo and Alex agreed to meet at a fast food restaurant on January 19, 2001, and Brienzo noted that there were hotels in the area. Brienzo drove to the restaurant at the agreed upon meeting time and was arrested when he entered the restaurant. While the agent posing as a minor conducted much of the discussions regarding the putative sexual activity, Brienzo’s appearance at the prearranged site signals probable cause to believe that he had the intent to proceed with the criminal sexual activity discussed between the two and that he would have proceeded except for the intervention of the police. Therefore, none of Brienzo’s alternative arguments prevent us from reversing the circuit court’s ruling. We order that the circuit court, on remand, reinstate the charge of attempted child enticement.

¶20. Turning to the charge of attempted second-degree sexual assault of a child, we conclude the allegations of the complaint are sufficient to show probable cause for this crime as well. As we have already explained, the facts alleged and their reasonable inferences permit the conclusion that Grimm intended to have sexual contact with a person he believed to be under sixteen. Arranging a time and place to meet that person, arriving at that place at the assigned time, and getting out of the car and talking to the person are acts in furtherance of that criminal objective; and it is reasonable to infer from these acts, in light of the preceding conversations, that Grimm would have committed the crime except for the intervention of another person or some extraneous factor. More specifically, the facts alleged and their reasonable inferences are sufficient to show that, had a fourteen-year-old boy rather than a law enforcement officer met Grimm at the McDonald's parking lot, Grimm would have had sexual contact with the boy. Again, we disagree with the circuit court that the complaint was deficient because it did not allege acts more specifically related to sexual contact. Even if it were reasonable to infer from the complaint that Grimm might not have had sexual contact with the fourteen-year-old boy he expected to meet, it is equally reasonable, if not more so, to infer that Grimm would have done so.

¶31      State Violated Criminal Discovery Statute. We agree with the State that the prosecutor had a duty under Wis. Stat. § 971.23(1)(e) and (h) to disclose the two reports regarding the State's unsuccessful attempt to obtain identifiable fingerprints from the plastic baggie. ^[7]

¶32      The reports at issue clearly fall within the scope of Wis. Stat. § 971.23(1)(e). Each report was authored by one of the State's witnesses; the State intended to call the witnesses. Each report therefore qualifies as a "relevant written . . . statement[] of" a witness whom the district attorney intended to call at trial.

¶33      The reports also fall within Wis. Stat. § 971.23(1)(h). As the circuit court explained in its decision denying the defendant's motion for a new trial, the information contained in the reports "is exculpatory because it could raise a question with a juror as to why testing would be attempted if law enforcement was certain that the Defendant was the one who had possessed the crack cocaine in question."

¶34      The State argues, however, that the disclosure was timely. The State urges that the prosecutor met his statutory obligation by disclosing the reports on the day of trial. The State reasons that the reports were promptly turned over to the defense as soon as the prosecutor found them. …

¶35      We disagree with the State's assertion that the State was timely in disclosing the reports. Section 971.23(1) requires the district attorney to disclose, "within a reasonable time before trial," exculpatory evidence if such evidence "is within the possession, custody or control of the state." The State does not dispute that long before the defendant's trial, the State possessed and controlled the reports in question. …

¶36      The State did not have good cause for failing to disclose the two reports. We understand that many district attorneys' offices are short-staffed and the workload is heavy. ^[10] Nevertheless, accuseds whose lives and liberty are at stake have statutory and constitutional rights to information in the district attorney's possession to enable them to prepare adequately for trial. …

¶37      The prosecutor has a special role in the federal and Wisconsin criminal justice systems. …

…

¶39      It is of no moment under the criminal discovery statute that the State was unaware until the day before the trial or during the trial that it possessed the reports in question when the information was in the district attorney's files and could have been located before trial had the files been examined with reasonable diligence. The prosecutor's belated discovery of the evidence in his possession did not absolve the prosecutor of his duty under Wis. Stat. § 971.23(1) to reveal the evidence within a reasonable time before trial. The prosecutor's duty is to seek to know of the existence of reports that should be disclosed. ^[15] The test of whether evidence "should be disclosed is not whether in fact the prosecutor knows of its existence but, rather, whether by the exercise of due diligence the prosecutor should have discovered it." ^[16]

¶105    … The State erred in not complying with timely disclosure of the reports as statutorily required. Although the effect of the State's failure to adhere to the criminal discovery statute on the defendant's trial strategy was not great and the admission of the evidence was not prejudicial, defense counsel was caught by surprise. A defendant should not be surprised by two unproduced reports that were requested, were subject to discovery, and were in the prosecutor's possession. Under the circumstances of the present case, we agree with the defendant that the circuit court should have exercised its discretion to mitigate the effect, if any, of the State's failure to fulfill its statutory discovery obligations by advising the jury pursuant to § 971.23(7m)(b).

¶106    For the reasons set forth, we conclude that the circuit court erroneously exercised its discretion in failing to advise the jury that the State had failed to make timely disclosure of the reports to the defendant under the criminal discovery statute, even though the State's failure to abide by the criminal discovery statute was not prejudicial error.

¶16      Whether good cause exists is an objective inquiry. DeLao, 252 Wis.  2d 289, ¶52. We first determine whether the State acted in good faith. Id., ¶53. In addition to good faith, the State has the burden of establishing good cause by providing a specific reason for the lack of disclosure. Id., ¶¶55-56.

¶17      Here, the prosecutor told the court the only mention of LeFevre in documents from the police investigation was that he sold a van to Rice. The day before trial, the prosecutor was preparing the case for trial and realized Rice had purchased the van shortly after the Ostrand burglary. Because $2,600 in cash was taken in the Ostrand burglary, the prosecutor realized the van might have been purchased with the Ostrand burglary proceeds. By that time, the officer assigned to the case was already gone for the day, so the prosecutor asked him to call LeFevre at work the next morning, the first morning of trial. It was only after the officer talked to LeFevre that the prosecutor learned LeFevre’s testimony would be useful at trial.

¶18      This explanation established both good faith and a specific, reasonable explanation for the late notice. See id., ¶¶53, 56. This case involved three separate burglaries, all proven through numerous pieces of circumstantial evidence. The State ultimately called thirteen witnesses in addition to LeFevre, many of whom testified to only a small piece of the overall picture. In view of the complexity of the case, it is understandable that the potential significance of LeFevre’s testimony was overlooked during the initial investigation, and only uncovered while the prosecutor was preparing the case for trial. The State therefore met its burden of proving just cause, and the court properly admitted the evidence subject to conditions designed to ameliorate the effects of the late notice on Rice. See id., ¶51.

¶21      First, we have no quarrel with Rice’s position that LeFevre’s testimony was important in the context of the entire case. LeFevre was unconnected to any of the defendants, had no way of knowing the significance of his testimony, and yet provided a simple fact that tied in with the prosecution’s theory. While LeFevre’s testimony was by no means the only evidence tying Rice to the burglaries, we agree it was an important piece of the State’s circumstantial case.

¶22      However, the same things that made LeFevre’s testimony so important also made his criminal convictions relatively unimportant. LeFevre was involved in the case simply by happenstance and, as the circuit court noted, he testified to facts that “were only significant in the context of other evidence….” As a result, LeFevre did not have the knowledge, motive, or opportunity to fabricate his testimony. While LeFevre’s criminal convictions might have established an above average willingness to lie, a jury would not conclude he was actually lying without some indication he had the knowledge, motive or opportunity to do so.

¶37      We are satisfied that the State complied with its discovery obligations under Wis. Stat. § 971.23. We agree with the State's argument that it was not required by § 971.23 to disclose or to summarize the oral statements of Steve Stone. The only oral statements that the prosecutor was required to summarize and disclose to the defense were the oral statements of the defendant himself, and the names of witnesses to such oral statements. See Wis. Stat. § 971.23(1)(b). That discovery statute also requires that the prosecutor disclose "[a]ny relevant written or recorded statements" of a witness it plans to call at trial. Wis. Stat. § 971.23(1)(e). The oral statements of Steve Stone to Police Chief Stone obviously were not written, nor were they recorded.

¶38      Furthermore, Nelis was put on notice of the fact that there would be trial testimony about what Steve Stone saw and heard in regard to the alleged sexual assault incident. …

…

¶40      … We are satisfied that, under such circumstances, the State complied with its discovery obligations under Wis. Stat. § 971.23.

¶10. The first sentence of Wis. Stat. § 971.23(7m)(a) plainly requires the court to exclude evidence not presented as required by the section if good cause is not shown. See State v. DeLao, 2002 WI 49, ¶51, 252 Wis. 2d 289, 643 N.W.2d 480. If good cause is shown, the court may exclude the evidence but it is not required to do so; it may instead grant the opposing party a recess or continuance, as provided in the second sentence. Id. (citing State v. Wild, 146 Wis. 2d 18, 28, 429 N.W.2d 105 (Ct. App. 1988)). There is nothing in the paragraph to suggest that the legislature intended to prevent the offending party from introducing the same evidence in a subsequent proceeding if there was no violation in that proceeding of the party's obligations under § 971.23. Similarly, there is nothing in this paragraph to suggest that the State may not obtain a dismissal of charges after evidence is excluded under this paragraph and then refile the charges.

¶11. We therefore reject Miller's argument that the State acted contrary to the statute by asking for a dismissal after Judge Krueger excluded the State's expert's testimony and then refiling charges.

¶15. Miller argues that, although both the State and defendants have obligations to provide discovery and both are subject to the sanctions in Wis. Stat. § 971.23(7m) for not doing so, only the State has the option of dismissing the case and refiling it, thus avoiding the sanction. However, this difference is not the result of any classification made by the legislature in this statute. Both the State and defendants are subject to the sanctions and remedies of § 971.23(7m) if they do not meet their statutory obligations, and, under our construction of this paragraph, neither a defendant nor the State is precluded in a subsequent case from using evidence previously excluded under § 971.23(7m) if the statutory disclosure requirements are met in the later case.

¶15      The statute does not define “alibi.” The state supreme court offered the following definition of the term in State v. Shaw, 58 Wis. 2d 25, 30, 205 N.W.2d 132 (1973), overruled on other grounds, State v. Poellinger, 153 Wis. 2d 493, 505, 451 N.W.2d 752 (1990): “The word, ‘alibi,’ is merely a short-hand method of describing a defense based on the fact that the accused was elsewhere at the time the alleged incident took place. The word, ‘alibi,’ is simply the Latin word for ‘elsewhere.’”

¶21      We agree with Harp that Stahl did not give alibi testimony under Wisconsin law.  Stahl’s testimony on direct examination included nothing about Stahl’s recollections about Harp’s location on May 16. Stahl testified only that she had been paired with Harp until Memorial Day of that month; that they worked together on the dementia end of the hallway; and that Parker was in the mixed end of the hallway. Her testimony thus impeached Kleist’s testimony that Harp was her partner on May 16, 2003 , and that Parker was in the section for which Harp was responsible. Only upon the prosecutor’s repeated questions to Stahl about her recollections of May 16 did Harp’s testimony begin to veer toward alibi territory. The State should have asked for a ruling of the court if it believed that Harp’s direct examination of Stahl had poisoned the well; instead, its cross-examination of Stahl ensured the lethality of the water. ^[5]

¶22      Regardless, Stahl’s testimony did not constitute an alibi because it placed Harp in the same building and in the same hallway of the crime scene. Her testimony not only did not indicate that it was physically impossible for Harp to have committed the offense, it placed her “in the immediate vicinity of the crime.” Shaw, 58 Wis. 2d at 31. Such testimony is not an alibi under Shaw. “[I]n raising an alibi the defendant is in effect denying that he was present at the scene of the crime at the time it was committed.” State v. Horenberger, 119 Wis. 2d 237, 242-43, 349 N.W.2d 692 (1984). ^[6]

¶40. A defendant who seeks to introduce Richard A.P. evidence must notify the court and the state that he or she intends to introduce this evidence at trial and precisely identify the exact testimony that the expert will provide at trial and the bases for the expert's opinion. Upon this disclosure, the state may then bring a motion requesting the court to compel the defendant to undergo an examination by an expert from the state. On this motion, the circuit court must then carefully examine the defendant's disclosure regarding his or her expert's testimony and the expert's basis for his or her opinion. If this disclosure statement shows that the expert will either explicitly or implicitly provide testimony regarding relevant facts surrounding the alleged crime that amounts to the defendant's own denial of the crime, the court may then order the defendant to undergo a reciprocal examination from the state based on the fact that the defendant has waived his or her right against self-incrimination. In this way, the defendant is permitted to introduce expert opinion testimony pursuant to Richard A.P., but restricted from introducing statements that amount to nothing more than the defendant's own statements on the crime.

¶41. In his reply brief, Davis asserted that he did not intend on using the opinions of Levin as a mechanism to present his version of the facts of the alleged offense before the jury. Levin, Davis contends, would only testify to the results of psychological tests and to his opinions based on the results of these tests; Levin would not be used as a conduit. To the extent that Levin will testify that he used only standardized tests that did not require Levin to inquire into the relevant facts surrounding the case, we conclude that no waiver of the right against self-incrimination would have occurred and the State is not entitled to a reciprocal examination of the defendant. However, as he concedes, Davis must disclose all results of Levin's tests to the State if he introduces testimony from Levin. The State may then have its own expert examine these tests and testify to rebut any testimony from Levin. The State, we conclude, is not unfairly prejudiced by this result. The State is afforded sufficient means to question this evidence through cross-examination and through rebuttal expert testimony.

¶30 ... An objective standard is consistent with the due diligence-imputed knowledge rule under Wold and its progeny.

¶31. In contrast, a subjective standard would be difficult if not impossible to reconcile with the rule that a prosecutor is responsible for exercising due diligence in obtaining statements of which she does not know. The State's theory in this case illustrates this problem. Under that theory, the State could escape its obligation to disclose under § 971.23(1)(b) in every case where the prosecutor failed to exercise due diligence by asserting that the prosecutor, not knowing of the evidence, could not have planned to use it.

¶58. Under Martinez, some explanation in addition to good faith is necessary, and the State has been unable to provide that explanation here. As we have already determined using the objective standard embodied in § 971.23(1)(b), the fact that the prosecutor in DeLao's case did not actually know of the evidence is no explanation at all. In short, the State has failed to demonstrate good cause for its violation of the discovery statute. Therefore, DeLao's statements should have been excluded."

¶61. We agree with the court of appeals that the State's failure to comply with § 971.23 placed DeLao on the horns of a dilemma from which no judicial remedy other than a new trial could save her. DeLao's own statements were used against her, and those statements were relevant not just as impeachment evidence but as relating to her entire defense. Thus, the State's discovery violation went to the core of her trial preparation and strategy.

¶27 … (B)oth parties agree that at a minimum, § 971.23(1)(h) requires that a prosecutor disclose the type of information required under Brady. See Sturgeon, 231 Wis. 2d at 497 n.4. In other words § 971.23(1)(h) requires, at a minimum, that the prosecutor disclose evidence that is favorable to the accused if nondisclosure of the evidence undermines confidence in the outcome of the judicial proceeding.

¶28 … The State primarily argues that the undisclosed information is not material because it would not have been admissible, as it does not meet the Pulizzano exception to the rape shield law.

…

¶30 We agree with Harris that here, the undisclosed information is favorable to the accused because it casts doubt on the credibility of the State's primary witnesses and may have supported an inference that B.M.M. was projecting her grandfather's assaults onto Harris. … Thus, the undisclosed information constitutes exculpatory impeachment evidence because it is relevant to B.M.M.'s credibility and that of any expert the State may have called to provide evidence under State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988), as it may have provided an alternate source for B.M.M.'s sexual knowledge and may have created the inference that B.M.M. projected the assaults perpetrated by her grandfather onto Harris. Because this evidence could have undermined the credibility of the State's most influential witnesses, this is one of those situations in which fundamental fairness dictates that the evidence should have been disclosed.

¶31 … While the State argues at length that the undisclosed evidence is not material because it does not meet the Pulizzano test, we find this argument to be unpersuasive because the State never afforded Harris the opportunity to bring a Pulizzano motion in the first place. … By failing to disclose B.M.M.'s prior allegation, the State denied Harris the opportunity to further investigate B.M.M.'s allegations and bring a Pulizzano motion. As the resolution of any Pulizzano motion would have required the circuit court to balance the competing interests involved, the prosecutor here should have disclosed the evidence and let the circuit court determine its admissibility. As the United States Supreme Court has stated, "[b]ecause we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure." Agurs, 427 U.S. at 108. Further, Wisconsin courts have recognized that "[i]mpeachment evidence casting doubt on a witness's credibility is material and subject to disclosure." DelReal, 225 Wis. 2d at 571. See also Tucker v. State, 84 Wis. 2d 630, 641, 267 N.W.2d 630 (1978); Loveday v. State, 74 Wis. 2d 503, 516, 247 N.W.2d 116 (1976).

…

¶33 In the interests of a fair proceeding, Harris was entitled to the opportunity to bring a Pulizzano motion to challenge the reliability of the State's expert witness and challenge the credibility of the victim. As the State failed to disclose B.M.M.'s allegation regarding her grandfather, Harris was never given the opportunity to make use of this exculpatory impeachment evidence. By failing to disclose this evidence, the State denied him a fair judicial proceeding.

¶1. In this OWI case, the State anticipated before trial what the theory of the defense would be and planned to rebut the theory by use of expert witness testimony. The issue we face on appeal, one of first impression in Wisconsin, is whether the State was required to disclose a known and anticipated rebuttal witness regardless of the statement in Wis. Stat. § 971.23(1)(d) (1999-2000) that the duty to disclose expert witnesses" does not apply to rebuttal witnesses or those called for impeachment only." We determine that the discovery statute places no duty on a prosecutor to list a rebuttal witness even if he or she knows before trial that the witness will be called. To put it bluntly, the defense takes its chances when offering a theory of defense and the State can keep knowledge of its legitimate rebuttal witnesses from the defendant without violating § 971.23(1)(d).

¶33 WISCONSIN STAT. § 971.23(7m)(a) provides that as a sanction for
noncompliance with the duty to disclose, the court "shall exclude any witness not
listed ... unless good cause is shown for failure to comply." Under this provision,
the court may grant the opposing party a recess or continuance. If good cause is
not shown, exclusion of the witness is mandatory. See State v. DeLao, 2001 WI
App 132, ¶28, 246 Wis. 2d 304, 629 N.W.2d 825, review granted, 2001 WI 114,
246 Wis. 2d 171, 634 N.W.2d 318 (Wis. July 20, 2001) (No. 00-1638-CR). The
burden to show good cause rests with the State and whether it has satisfied this
burden is a question of law that we review de novo. Id. at ¶23.
...
¶35 Under the facts of this case, we determine that the State has met its
burden to show good cause why it failed to place Williams on its witness list. The
State had been investigating a substantial number of witnesses on an ongoing basis
and had regularly provided the defense with the names of witnesses as it learned
them. At some point, Williams¹ name must have surfaced during the investigation
because Warmington testified that he had known Williams was "Prume" for about
one year and that police had been trying to locate him. However, Williams, as he
testified at trial, had avoided police because he did not want to become involved or
testify in the case. Without being able to interview Williams, the State could not
determine what value he had, if any, as a potential witness.

¶35  The cases demonstrate that John Doe proceedings are conducted through the authority of the presiding judge. Allowing that subpoenas may be issued by the clerk of court would confer authority on someone other than the judge, who has historically had the authority associated with such proceedings. It would in essence dilute the John Doe judge's power. 

¶36  This view also appears to comport with the practice in Wisconsin. A treatise on Wisconsin criminal practice and procedure notes that John Doe proceedings are advantageous to law enforcement officials insofar as they gain access to authority via the judge that is otherwise unavailable. Invoking a John Doe proceeding is usually advantageous to law enforcement officials because, through the presiding judge, they may avail themselves of powers not otherwise available to them. These include: "the power to subpoena witnesses, take testimony under oath and to compel the testimony of a reluctant witness." 9 Christine M. Wiseman, Nicholas L. Chiarkas, & Daniel D. Blinka, Wisconsin Practice: Criminal Practice and Procedure § 9.11, at 219 (1996)(quoting Washington, 83 Wis.  2d at 823 n.9) (emphasis added). In other words, the powers conferred in a John Doe proceeding——including the power to subpoena witnesses and compel testimony——derive from the judge, and are otherwise unavailable, including via the subpoena power conferred to clerks of court pursuant to § 885.01(1). See Wis. JI——Criminal, SM-12 ("Only a judge may conduct a John Doe Proceeding. The judge has the power to subpoena and examine witnesses and to determine the extent of the examination."); see also 1 Wisconsin Judicial Bench Book, CR 48 (2007).

¶37  Thus, the history and current practice of John Doe proceedings support the view that judges have exclusive authority to issue subpoenas in John Doe proceedings. That interpretation is further supported by principles of statutory construction.

¶8. The purpose of a John Doe proceeding is to ascertain if a crime has been committed and who likely committed it. State ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, 22, 260 Wis. 2d 653, 660 N.W.2d 260; State ex. rel. Reimann v. Circuit Court for Dane County, 214 Wis. 2d 605, 621, 571 N.W.2d 385 (1997); Wolke v. Fleming, 24 Wis. 2d 606, 613, 129 N.W.2d 841 (1964), cert. denied, 380 U.S. 912 (1965); Wisconsin Family Counseling Servs., Inc. v. State, 95 Wis. 2d 670, 676, 291 N.W.2d 631 (Ct. App. 1980). Though it involves the investigation of a crime, a John Doe proceeding need not be initiated on probable cause. Wisconsin Family Counseling Servs., 95 Wis. 2d at 674-75. However, the complainant must have "reason to believe" a crime has been committed, and must allege "objective, factual assertions sufficient to support a reasonable belief" that a crime has been committed, though the complainant does not have to name a particular accused. Reimann, 214 Wis. 2d at 623-24. The result of a John Doe proceeding may be a written complaint that is subject to the test of probable cause. Doe, 78 Wis. 2d at 165.

¶9. We have held that witnesses in John Doe proceedings need not be apprised of the scope of the investigation….

¶10. A John Doe judge has broad, but not unlimited, powers….

¶35   Keeping in mind the legal standard the circuit court must apply in determining the appropriateness of bindover, see Dunn, 121 Wis. 2d at 397-98, we conclude that the circuit court’s factual findings are not clearly erroneous and that this evidence supports the court’s probable cause findings. Jones’ testimony regarding Angela’s pattern of “recycling money or generating invoices to match a cashier check so she could say that she was entitled to this money” supports a reasonable inference that the Keyes were aware that the Wettsteins did not consent to the Keyes’ profit-keeping without first paying the subcontractors in full or proportionally. In addition, it can be reasonably inferred that the Wettsteins did not consent to the Keyes paying themselves a profit first before paying the subcontractors for labor and materials because by so consenting, the Wettsteins would unreasonably expose themselves to the subcontractors executing their lien rights.

¶7 The State contends that WIS. STAT. § 970.04 precludes Gillespie’s request for a second preliminary hearing. The statute states:

Second examination. If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if the district attorney has or discovers additional evidence.

...

¶8 We agree with the State. … While the factual scenario set forth in § 970.04, one in which the defendant has been discharged and a new complaint filed, is different from that presented in Gillespie’s case, it nevertheless reveals that the legislature had the opportunity to address a second examination in Gillespie’s situation and chose not to do so. See A. and A.P. v. Racine County, 119 Wis. 2d 349, 354, 349 N.W.2d 743 (Ct. App. 1984).

¶9 We also observe that the Wisconsin Supreme Court has decreed that a motion to dismiss is the proper procedure for obtaining circuit court review of a court commissioner’s bindover ruling and that such review is limited to a transcript of the preliminary examination. State ex rel. Dowe v. Circuit Court for Waukesha County, 184 Wis. 2d 724, 729, 731, 516 N.W.2d 714 (1994)....

State v. Anthony M. Cotton, 2003 WI App 154

For Cotton: Timothy T. Kay

¶22. The facts adduced at the preliminary hearing in this case are undisputed. In that situation, the question of probable cause sufficient for a bindover presents a question of law. Dunn, 121 Wis. 2d at 398-99. There is nothing in the evidence identified by the State or in the record of the preliminary hearing that establishes Cotton's knowledge that Paikowski was likely to be a witness in an action or proceeding. Paikowski testified that Cotton expressed his anger with the service of the subpoenas on his family, claiming that the service had been invalid and that it had ruined his family. However, there is no indication that Cotton believed Paikowski might be a potential witness either in any case against him or in the homicide case pending against his cousin. Nowhere in the exchange between Paikowski and Cotton did Cotton make any reference that could be construed as evidence that he knew Paikowski was likely to be a witness. Evidence limited to the mere fact that Cotton was angry with Paikowski, without more, does not establish that he threatened Paikowski and Paikowski's family because he knew that Paikowski was likely to be a witness for the State.

¶23. Because there was no evidence at the preliminary hearing that Cotton knew or had reason to know that Paikowski was likely to be a witness in any proceeding, we conclude that the evidence did not demonstrate a believable or plausible account of Cotton's commission of a felony. See id. at 393. As such, the evidence was insufficient to support a reasonable inference that Cotton committed a felony. See id. (a defendant may be bound over for trial when the evidence presented at the preliminary hearing is sufficient to support a reasonable inference that the defendant probably committed a felony).

State v. Anthony M. Cotton, 2003 WI App 154

For Cotton: Timothy T. Kay

¶11. As a threshold issue, we address the proper test for a challenge to new charges filed in an information following a bindover when the original charge stated in the complaint is not repeated in the information. Our choices are: (1) the conventional sufficiency of evidence test where the charges stated in the complaint are the same; or (2) the "wholly unrelated" test, generally applied to charges added in an information when the original charge in the complaint is restated.…

¶15. An analysis of the case law persuades us that the "wholly unrelated" test is intended to apply to charges in the information which have been added to the original charge following a bindover at the preliminary hearing.⁴ In Burke, our supreme court held that "in a multiple-offense transaction case, once the defendant has been bound over for trial on at least one count relating to the transaction, the prosecutor may in the information charge additional counts not wholly unrelated." Burke, 153 Wis. 2d at 453 (citation omitted; emphasis added). We construe the supreme court's phrase "once the defendant has been bound over for trial" to assume a bindover that is supported by the evidence adduced at the preliminary hearing.…

¶16. Because this case involves a challenge to counts charged in an information that does not contain charges added to the original charge, but rather two completely new felony charges-neither of which was tested at the preliminary hearing-we conclude that the appropriate test for review of the new charges is the sufficiency of evidence test. As our ensuing discussion will reveal, were we to apply the "wholly unrelated" test, we would allow for the absurd result that the State could file new charges even where the evidence at the preliminary hearing failed to demonstrate probable cause that the defendant had committed any felony.

---

⁴ In State v. Burke, 153 Wis. 2d 445, 452, 451 N.W.2d 739 (1990), the supreme court recognized that early decisions which involved primarily single-offense transactions had held that a prosecutor was not bound in the information to charging the same offense charged in the complaint. See, e.g., Mark v. State, 228 Wis. 377, 384, 280 N.W. 299 (1938). However, the court went on to observe that later cases held that in a multiple-offense transaction case, charges may be added to an original charge if not wholly unrelated. Burke, 153 Wis. 2d at 453.