State v. Novy
809 N.W.2d 889
Wis. Ct. App.2011Background
- Novy was charged with stalking Julie N. and multiple bail-jumping counts following bail conditions restricting contact and proximity; cases were consolidated for trial and May 24, 2010, verdicts convicted on most counts with some bail-jumping acquittals.
- At trial, the State sought fingerprint evidence from a pay phone (L&M Meats) linking Novy to a November 9, 2008 call, but that evidence was excluded in the State's case-in-chief for discovery violations.
- Julie testified to calls from various pay phones, including L&M Meats, and identified the phone’s number by caller ID; the State had disclosed the officer and his report but not the officer as an expert or the fingerprint evidence.
- Novy testified denying calling Julie from the L&M Meats pay phone; the State sought to use the fingerprint evidence in rebuttal, arguing it rebutted Novy’s denial.
- The State also introduced other-acts evidence of Novy placing a hidden camera in Julie’s bedroom in October 2006 to provide context, motive, and a common plan for the charged offenses.
- Novy challenged the juror-sleeping finding during closing arguments; the court exercised discretion and denied removal, upholding the right to an impartial jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fingerprint evidence excluded for discovery can be used on rebuttal. | Novy argues the discovery violation barred admission even in rebuttal. | Novy contends rebuttal evidence should be limited by the same sanctions as in chief. | Yes; admissible as bona fide rebuttal evidence despite discovery sanction. |
| Whether the court properly admitted other-acts evidence of a hidden camera. | State asserts context, motive, and common scheme." | Novy objects to unduly prejudicial “other-acts” without pretrial Sullivan analysis. | Yes; court properly admitted under discretionary standard, evidence relevant to context and intent. |
| Whether the alleged juror sleeping خلال closing denied Novy a fair trial. | State asserts closing arguments are not evidence; juror asleep did not affect deliberations. | Novy argues the sleep deprived him of impartial jury and fair trial. | Yes; trial court did not err in denying removal, discretion supported by record. |
Key Cases Cited
- Konkol v. State, 256 Wis. 2d 725 (Wis. Ct. App. 2002) (rebuttal evidence admissible despite lack of disclosure if bona fide rebuttal evidence)
- Wold v. State, 57 Wis. 2d 344 (Wis. 1973) (impeachment of defendant with excluded statements if trustworthiness satisfied)
- Harris v. New York, 401 U.S. 222 (U.S. 1971) (Miranda-excluded statements may be used for impeachment if necessary to test truthfulness)
- Lunde v. State, 85 Wis. 2d 80 (Wis. 1978) (rebuttal evidence admissible when credibility is challenged by defendant's testimony)
- Watson v. State, 46 Wis. 2d 492 (Wis. 1970) (trial court has discretion to admit rebuttal evidence)
- DeLao v. State, 252 Wis. 2d 289 (Wis. 2002) (discovery violations; rebuttal witness considerations differ from oral statements)