State v. Kevin Harris
Annotate this Case
Download PDF
2004 WI 64 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 02-2433-CR State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Kevin Harris, Defendant-Respondent. REVIEW OF A DECISION OF THE COURT OF APPEALS 2003 WI App 144 Reported at: 266 Wis. 2d 200, 667 N.W.2d 813 (Ct. App. 2003-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 11, 2004 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Walworth James L. Carlson JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: June 8, 2004 WILCOX, J., concurs (opinion filed). SYKES, J., did not participate. ATTORNEYS: For the plaintiff-appellant-petitioner the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general. For the defendant-respondent there was a brief by Steven A. Koch and Seymour, Kremer, Nommensen, Morrissy & Koch, L.L.P., Elkhorn, and oral argument by Steven A. Koch. 2004 WI 64 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 02-2433-CR (L.C. No. 01 CF 156) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Appellant-Petitioner, JUN 8, 2004 v. Kevin Harris, Cornelia G. Clark Clerk of Supreme Court Defendant-Respondent. REVIEW of a decision of the Court of Appeals. ¶1 JON P. WILCOX, J. Affirmed. The State appeals from a published court of appeals decision, State v. Harris, 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813, which affirmed an order of the Walworth County Circuit Court, Michael S. Gibbs, Judge, granting the motion of the defendant, Kevin Harris (Harris), to withdraw his guilty plea to a charge of first-degree sexual assault of a child. The circuit court granted the defendant's motion for plea withdrawal on the basis that the State had violated his due process right to receive exculpatory evidence when it failed to disclose that the alleged victim reported being assaulted by her grandfather on a different occasion. sexually No. I. ¶2 The violated issues Harris's on ISSUES appeal are: to right 02-2433-CR process due 1) whether under the the State state and federal constitutions1 by failing to disclose, before entering into a plea bargain with him, that the alleged victim reported being sexually occasion; assaulted 2) by whether her grandfather this on a nondisclosure different violated Wis. Stat. § 971.23 (2001-02),2 Wisconsin's reciprocal discovery statute; and 3) whether Harris is entitled to withdraw his plea if either violation is present. We hold that the State did not violate process Harris's right to due because, pursuant to United States v. Ruiz, 536 U.S. 622 (2002), due process does not require the information However, we disclosure before a determine of material defendant that enters B.M.M.'s exculpatory into a impeachment plea allegation bargain. against her grandfather is the type of information the State was required to disclose pursuant to § 971.23(1)(h) because it constitutes evidence favorable to the accused whose nondisclosure undermines our confidence in the judicial proceeding. favorable to the accused because it This information is constitutes impeachment 1 "This court has repeatedly stated that the due process clauses of the state and federal constitutions are essentially equivalent and are subject to identical interpretation." State v. Hezzie R., 219 Wis. 2d 848, 891, 580 N.W.2d 660 (1998)(citing Reginald D. v. State, 193 Wis. 2d 299, 307, 533 N.W.2d 181 (1995)). 2 All references to the Wisconsin Statutes are to the 200102 version unless otherwise noted. 2 No. evidence that casts doubt primary witnesses. undermines our on The confidence the credibility nondisclosure in the of of outcome 02-2433-CR the State's this evidence the judicial of proceeding because Harris would not have pled guilty but for the nondisclosure of this evidence. We further hold that in order to comply with the mandate in § 971.23(1) that such information must be turned over within a reasonable time before trial, the State was obligated to disclose this evidence at a point when Harris would have had sufficient time to make effective use of the information. As Harris entered his plea bargain within two weeks prior to the date on which his trial was scheduled to commence, the State should have disclosed the suppressed evidence by at least this point in the proceedings in order for Harris to be able to effectively use it. Given that 1) the evidence type of B.M.M.'s allegation was the of evidence required to be disclosed under § 971.23(1)(h); 2) the State did not disclose this evidence within a reasonable time before trial; and 3) Harris would not have pled guilty but for this nondisclosure, Harris has demonstrated that a withdrawal of his plea is necessary to avoid a manifest injustice. Therefore, we affirm the court of appeals' decision. II. ¶3 Harris is a FACTUAL BACKGROUND 31-year-old man with an eighth grade education who has a history of serious mental illness. The State filed a criminal complaint against Harris on April 24, 2001, alleging that he had sexual contact with B.M.M., a person who had not yet attained the 3 age of 13, contrary to No. 02-2433-CR Wis. Stat. § 948.02(1), and violated the conditions of his bond on a previous matter, contrary to Wis. Stat. § 946.49(1)(a). The State further alleged that Harris was a repeat offender as to count one. See Wis. Stat. § 939.62(1)(c). Subsequently, the State filed an information on May 2, 2001, alleging the same. The complaint alleged that Harris touched six-year-old B.M.M. on her vaginal area over her clothing. The complaint also alleged that Harris admitted to Detective Ray Otto of the Elkhorn Police Department that on April 11, 2001, he had brought B.M.M. into his apartment and that he kissed her head and patted her on the leg but denied touching her in an inappropriate manner. ¶4 On May 2, 2001, Harris waived his preliminary hearing and pled not guilty to each of the two counts in the complaint. A jury trial was set for August 6-8, 2001. Harris filed a discovery demand with the court on May 30, 2001, whereby he demanded that the State provide, inter alia, "[a]ll exculpatory evidence . . . that investigation by could the form the defense."3 On basis June for 5, 2001, further after substituting counsel, Harris changed his plea to not guilty by reason of mental disease or defect (NGI) and Judge James L. Carlson ordered a psychiatric evaluation. 3 On July 11, 2001, the In his discovery demand, Harris also requested the following: 1) "All exculpatory evidence . . . that would tend to negate the Defendant's guilt;" 2) "All exculpatory evidence . . . that would tend to affect the weight and credibility of evidence used against the Defendant;" and 3) "All exculpatory evidence . . . that would extenuate, mitigate, or reduce the degree of the offense charged or the Defendant's punishment for the offense." 4 No. 02-2433-CR State gave notice to Harris that it intended to call up to two expert witnesses to testify as among child sexual abuse victims.4 to reactive behaviors common Thereafter, on July 25, 2001, approximately two weeks before trial, the psychiatric evaluation not supporting his NGI plea, agreement with the State. Harris entered into a plea Harris agreed to plead guilty to count one (first-degree sexual assault of a child as a repeater) and the State agreed to dismiss and read in count two (bail jumping). In addition, the State agreed to dismiss and read in Harris's previous misdemeanors. There was to be a presentence investigation, agreed and the State to remain sentencing, although Harris was free to argue. silent at After conducting a plea colloquy, the court accepted Harris's plea of guilty to count one. ¶5 to a On September 21, 2001, Judge Carlson sentenced Harris 45-year term of imprisonment, composed of 30 years confinement and 15 years extended supervision. On April 30, 2002, withdraw Harris filed a postconviction motion guilty plea, which was amended on May 6, 2002. to his In his amended motion, Harris alleged that shortly after the sentencing hearing Assistant District Attorney Maureen Boyle, at the direction of District Attorney Phillip Koss, informed his trial counsel that 4 Expert testimony "about the consistency of a sexual assault complainant's behavior with victims of the same type of crime" is commonly referred to as "Jensen evidence," in reference to our decision in State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988). See State v. Dunlap, 2002 WI 19, ¶36, 250 Wis. 2d 466, 640 N.W.2d 112. 5 No. 02-2433-CR the State had failed to disclose that B.M.M. had previously made an allegation that her grandfather had sexually assaulted her on two occasions. A copy of an Elkhorn Police Department case record that was appended to Harris's motion provided that on June 1, 2001, B.M.M. alleged that she had been sexually assaulted by her grandfather on or about February 16-23, 2001. The document also recited that on June 8, 2001, the Walworth County Sheriff's Department conducted an audio and videotaped interview with B.M.M., alleged assault. wherein she provided details of the During the interview, B.M.M. alleged that her grandfather, while staying at her house, had awoken her on two occasions, licked his fingers, and touched the front vaginal area and "butt-crack" underneath her pajamas. of her Following the interview, B.M.M.'s mother was reluctant to have her father interviewed and expressed disbelief that he could have done such a thing. She also stated that the following Sunday, June 10, 2001, the family would be moving out of town. ¶6 (1963), Harris, relying on Brady v. Maryland, 373 U.S. 83, 86 and State v. Sturgeon, 231 Wis. 2d 487, 497, 605 N.W.2d 589 (Ct. App. 1999), asserted that the State's failure to disclose this evidence violated his constitutional due process right to all exculpatory evidence. The motion was heard before Judge Michael S. Gibbs on July 25, 2002. Harris argued that the State was At the motion hearing, required to disclose this information to him under State ex rel. Lynch v. Circuit Court for Dane County, 82 Wis. 2d 454, 463, 262 N.W.2d 773 (1978), and that its failure to do so required that Harris be allowed to 6 No. withdraw his guilty plea under Sturgeon. evidence tended admissible to under negate State v. his 02-2433-CR Harris argued this guilt and would have been Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990).5 ¶7 Specifically, Harris argued that B.M.M.'s allegation concerning her grandfather's prior sexual knowledge. assault could be the source of Harris noted that B.M.M.'s grandfather allegedly assaulted her on February 16 and 23 of 2001 and that the State alleged Harris assaulted B.M.M. on April 11, 2001. Further, Harris argued that given the fact B.M.M. did not report the assaults family did possible by not that her grandfather wish B.M.M. to until prosecute projected June her these of 2001 and her grandfather, it was assaults onto Harris. Moreover, Harris argued that such information would have been necessary to cross-examine the State's expert witnesses. Harris noted that B.M.M. had moved out of state and was now unavailable for him to examine. Finally, counsel for Harris put in an offer of proof that he (Harris) would not have entered into his guilty plea had the State complied disclosed this information. with his discovery request and Harris would testify that he pled guilty because he thought a jury would believe the word of a 5 In State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), this court created a judicial exception to Wisconsin's rape shield law, Wis. Stat. § 972.11(2), that allows a defendant to present evidence of a child's past sexual behavior if the defendant demonstrates that the evidence meets a five-part test and if the court determines that the State's interest in excluding the evidence is outweighed by the defendant's right to present it. See Dunlap, 250 Wis. 2d 466, ¶20. 7 No. child and two experts over his evidence supporting his case. statement 02-2433-CR without any other Harris would also testify that he believed he would receive a much harsher sentence had he gone to trial. ¶8 The prosecutor argued that she did not disclose this evidence immediately because the grandfather was still ongoing. investigation of B.M.M.'s Apparently, the investigation was never completed because B.M.M. and her grandfather moved to Texas. Thereafter, the prosecutor stated that she simply forgot about the prior allegation but later found the paperwork after Harris was sentenced. Further, the prosecutor stated she did not believe that the evidence was exculpatory, as it was not admissible under Pulizzano because B.M.M.'s allegations against Harris did not demonstrate that B.M.M. possessed an unusual level of sexual knowledge for a child of her age. III. ¶9 PROCEDURAL POSTURE The circuit court found that the State was required to disclose the disputed evidence Defendant has an right any exculpatory to investigation of absolute finding right because to absolute evidence further under which may exculpatory Brady, "the constitutional lead to evidence." the The court also stated that it was undisputed that Harris was unaware of his constitutional violation until after he was sentenced. The court determined that Harris would not have pled guilty but for the constitutional violation because the disputed evidence might have been admitted under Pulizzano. Finally, the circuit court found that Harris did not receive a substantial benefit 8 No. 02-2433-CR from the plea bargain and that he only pled guilty because he had no evidence to support his version of events. Therefore, the circuit court granted Harris's motion to withdraw his guilty plea. On September 30, 2002, the State filed a notice of appeal. ¶10 stated The court of appeals affirmed. that its decision in The court of appeals Sturgeon governed whether a defendant is entitled to withdraw a guilty plea when the State fails to disclose exculpatory evidence prior to a plea and that the United States Supreme Court's decision in Ruiz did not alter its analysis. appeals Harris, 266 Wis. 2d 200, ¶¶11, 30. noted that under Brady, "[a] The court of defendant has a constitutional right to all material exculpatory evidence in the hands of the prosecutor." Harris, 266 Wis. 2d 200, ¶32 (citing Brady, 373 U.S. at 87). The court of appeals held that "the State violates the Constitution if it withholds the type of information that could form the basis for further investigation by the defense." "Here, the assault. Id., ¶36. prosecution The court of appeals reasoned: withheld evidence of a prior sexual Thus . . . we hold that this evidence is potentially exculpatory and that it was within the exclusive control of the prosecution. As such, Harris has established a constitutional violation." Id. The court of appeals, relying on the factors stated in Sturgeon, 231 Wis. 2d at 502-04, ruled that Harris would not violation. appeals have pled guilty but for this constitutional Harris, 266 Wis. 2d 200, ¶¶38-39, 45. also held that Harris 9 established a The court of violation of No. 02-2433-CR Wis. Stat. § 971.23(1)(h) because the State failed to disclose the potentially exculpatory evidence of B.M.M.'s prior sexual assault and simply codified Therefore, rejected the the the State's argument requirements court of of appeals that Brady. concluded the statute Id., that ¶46. Harris demonstrated that a withdrawal of his guilty plea was "necessary to avoid a manifest injustice." IV. ¶11 Id., ¶47. DUE PROCESS CLAIM The present appeal involves a motion to withdraw a guilty plea based on both constitutional and statutory grounds. We first defendant address seeks Harris's to constitutional withdraw a guilty argument.6 plea on grounds, he must establish all of the following: When a constitutional "(a) that a violation of a constitutional right has occurred; (b) that this violation caused him to plead guilty7; and (c) that at the time of his plea he was unaware of the potential constitutional challenges to the case against him because of the violation." 6 While generally this court does not address constitutional issues if it can resolve the case on statutory grounds, the court of appeals' constitutional analysis contains several misstatements of the law. This court has not decided whether a portion of a court of appeals decision that is not discussed when the opinion is overruled on other grounds is still precedential. See State v. Gary M.B., 2004 WI 33, ¶44 n.1,___Wis. 2d ___, 676 N.W.2d 475 (Abrahamson, C.J., dissenting). Therefore, we address the constitutional issue presented in this case. 7 We interpret the "cause" element of the test set forth in Hatcher v. State, 83 Wis. 2d 559, 565, 266 N.W.2d 320 (1978), to mean that a defendant must demonstrate that he would not have pled guilty but for the constitutional violation. 10 No. 02-2433-CR Hatcher v. State, 83 Wis. 2d 559, 565, 266 N.W.2d 320 (1978). Having established withdraw his applying this the foregoing guilty plea a a matter of appellate test, as elements, courts review defendant right. Id. the may When underlying historical facts under the clearly erroneous standard but review questions of ultimate constitutional fact independently. Sturgeon, 231 Wis. 2d at 496. ¶12 In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 87.8 The although prosecutor there has has been a no duty formal to Brady, 373 U.S. at disclose request by this evidence the accused. Strickler v. Greene, 527 U.S. 263, 280 (1999). favorable to an accused, when, "if disclosed Evidence is and used effectively, it may make the difference between conviction and acquittal." Evidence United States v. Bagley, 473 U.S. 667, 676 (1985). that is favorable to the accused exculpatory9 and impeachment10 evidence. encompasses both Strickler, 527 U.S. at 8 As the United States Supreme Court has explained, the rule in Brady v. Maryland, 373 U.S. 83 (1963), is based on the right to due process at trial; "[i]ts purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur." United States v. Bagley, 473 U.S. 667, 675 (1985). 9 "Exculpatory evidence" is defined as "[e]vidence tending to establish a criminal defendant's innocence." Black's Law Dictionary 577 (7th ed. 1999). 11 No. 02-2433-CR 281-82 ("The evidence at issue must be favorable to the accused, either because it is impeaching")(emphasis ("Impeachment evidence, added); evidence, falls exculpatory within Bagley, however, the or Brady as because 473 well rule.").11 U.S. as The it at is 676 exculpatory Court has indicated that there is no distinction between the two types of evidence that are "favorable to accused" for Brady purposes. Strickler, 527 U.S. at 280-82; Bagley, 473 U.S. at 676 ("This Court has rejected any such distinction between impeachment evidence and exculpatory evidence."). 10 "Impeachment evidence" is defined as "[e]vidence used to undermine a witness's credibility." Black's Law Dictionary 578 (7th ed. 1999). 11 The Court first recognized that impeachment evidence fell within the Brady rule in Giglio v. United States, 405 U.S. 150, 154 (1972). The Court held: "When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule." Id. (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). The Court has since referred to this type of evidence as "exculpatory impeachment" evidence. United States v. Ruiz, 536 U.S. 622, 628 (2002). In the present case, the undisclosed evidence is not directly exculpatory because the fact that B.M.M. had alleged being previously sexually assaulted by her grandfather does not, in and of itself, tend to negate Harris's guilt regarding the separate assault that B.M.M. alleged he committed. However, as discussed infra, this evidence could be used to challenge the credibility of the State's primary witnesses (B.M.M. and any Jensen experts), witnesses whose reliability would have been determinative of Harris's guilt. Therefore, we believe that this evidence is material exculpatory impeachment evidence. Therefore, throughout the remainder of the opinion, we shall use the phrase "material exculpatory impeachment evidence" to refer to the particular type of evidence at issue in this case. 12 No. ¶13 02-2433-CR In order to establish a Brady violation, the defendant must, in addition to demonstrating that the withheld evidence is favorable to "material." him, Giglio prove v. that United the withheld States, 405 evidence U.S. 150, is 154 (1972)(stating that "[a] finding of materiality of the evidence is required under Brady").12 three circumstances: that the defendant A Brady violation may occur under 1) if the prosecutor fails to disclose was convicted on the basis of perjured testimony; 2) if the defendant makes no Brady request and the prosecutor fails to disclose evidence that is favorable to the defendant; or 3) if the defense makes a specific Brady request and the prosecutor fails to disclose the requested material. Bagley, 473 U.S. at 678-81. ¶14 While previously the standard for materiality varied depending upon the type of Brady violation, see United States v. Agurs, 427 U.S. 97, 103-07 (1976), the Court has since adopted a uniform standard for materiality governing all three categories of Brady violations: "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been 12 Thus, Brady's disclosure requirements apply only to evidence that is favorable to the accused exculpatory evidence and impeachment evidence that is also material. The Court's decisions in Strickler v. Greene, 527 U.S. 263, 280 (1999), and Bagley, 473 U.S. at 676, demonstrate that Brady's disclosure requirements apply to material exculpatory evidence and material impeachment evidence. When referring to the type of evidence that is required to be disclosed under Brady generally, we use the phrase "Brady evidence." 13 No. different. a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at A 682. ineffective 'reasonable Under this assistance probability' test, which of counsel is is 02-2433-CR the under same test for Strickland v. Washington, 466 U.S. 668 (1984): [T]he reviewing court may consider directly any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case. The reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor's incomplete response. Bagley, 473 U.S. at 683. See also State v. DelReal, 225 Wis. 2d 565, 570-71, 593 N.W.2d 461 (Ct. App. 1999)(recognizing the Bagley formulation of the materiality requirement).13 such, "strictly speaking, there is never a real As 'Brady violation' unless the nondisclosure was so serious that there is 13 The United States Supreme Court further elaborated on the requirement of "materiality" in Kyles v. Whitley, 514 U.S. 419 (1995). First, the Court explained: "[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal." Id. at 434. Second, the Court remarked that the Brady requirement of materiality is not a sufficiency of the evidence test and thus it is not necessary to show that there would not have been enough inculpatory evidence to convict once the suppressed evidence is discounted. Id. at 434-35. Third, the Court stated that once there has been a showing of materiality sufficient to establish a constitutional violation, that error cannot be harmless. Id. at 436. Fourth, the Court noted that materiality must be assessed by considering the effect of all of the excluded evidence collectively. Id. at 436-37. 14 No. 02-2433-CR a reasonable probability that the suppressed evidence would have produced a different verdict." ¶15 three The United States prerequisites for a evidence at issue must Strickler, 527 U.S. at 281. Supreme Brady be Court has violation favorable summarized the follows: "The the to as accused, either because it is exculpatory, or because it is impeaching; that evidence must willfully or Strickler, have been suppressed inadvertently; 527 U.S. at and by the prejudice 281-82. State, must have ensued." as Strickler "Prejudice," either provided, encompasses the materiality requirement of Brady so that the defendant is not prejudiced unless "'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Strickler, 527 U.S. at 290 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). Thus, "showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more." 437. Kyles, 514 U.S. at See also Bagley, 473 U.S. at 675 n.7 ("[A] rule that the prosecutor commits error by any failure to disclose evidence favorable to the accused, no matter how insignificant, would impose an impossible burden on the prosecutor and undermine the interest in the finality of judgments."). court explained: would As one "[U]nder the Due Process Clause, prosecutors are required to disclose evidence that is material to either guilt or punishment. however, does not A defendant's request for Brady Material, require a prosecutor to wade through all government files in search of potentially exculpatory evidence." 15 No. 02-2433-CR United States v. Lov-it Creamery, Inc., 704 F. Supp. 1532, 1552 (E.D. Wis. 1989)(citations omitted). ¶16 Therefore, the court of appeals in the instant case misstated the law when it held that "the State violates the Constitution if it withholds the type of information that could form the basis for further investigation by the defense[,]" and that a constitutional violation occurs when the State refuses to disclose "potentially Wis. 2d 200, ¶36. defendant prosecutor disclose. is evidence. Harris, 266 This court has previously cautioned that a not is exculpatory" entitled to evidence constitutionally or beyond the required statutorily which to State v. DeLao, 2002 WI 49, ¶¶49-50, 252 Wis. 2d 289, 643 N.W.2d 480 (rejecting discussion of the court of appeals that suggested requested that constitutional Court a has defendant fell was outside entitled the requirements). noted, "the to scope As the Constitution all of United does evidence statutory States not he and Supreme require the prosecutor to share all useful information with the defendant." Ruiz, 536 U.S. at 629. item of Further, "[t]he mere possibility that an undisclosed defense . . . does information not constitutional sense." might establish have 'materiality' Agurs, 427 U.S. at 109-10. helped in the the Thus, the Constitution does not require the prosecutor to "allow complete discovery of his files as a matter of routine practice." Id. See not also Bagley, 473 U.S. at 675 ("[T]he prosecutor is required to deliver his entire file to defense counsel, but only to disclose evidence favorable 16 to the accused that, if No. suppressed, United would States deprive v. Coppa, 2001)(criticizing prosecution defendant 267 F.3d to the district disclose to possession the all the 82 trial."); 143-44 (2d Cir. ordering for impeachment the evidence without Wis. 2d at fair a 132, court defendant "materiality"); Lynch, of 02-2433-CR regard 463-64 in to (recognizing its its that "[t]he constitutional right to a fair trial does not entitle a defendant to inspect the entire file of the prosecutor"). ¶17 Harris claims that the State violated his constitutional right to Brady evidence by failing to disclose, before he entered his plea, that grandfather had assaulted her. he is entitled determine, decision in in disclosure to withdraw light Ruiz, of B.M.M. that her Therefore, Harris asserts that his plea under of the United States that due process does material alleged exculpatory Sturgeon. Supreme not Court's require impeachment We the information before a defendant enters into a plea bargain. In Ruiz, the Court require held that "the Constitution does not the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant." U.S. at 633. court of Ruiz, 536 However, Harris, following the rationale of the appeals in the instant case, see Harris, 266 Wis. 2d 200, ¶¶15-30, argues that the Ruiz decision is limited 17 No. 02-2433-CR to the context of federal "fast track" plea bargaining.14 We disagree. ¶18 The defendant in Ruiz was offered a "fast track" plea bargain after immigration agents found a significant amount of marijuana on her person. required her to waive Ruiz, 536 U.S. at 625. her right to The agreement impeachment information relating to government witnesses or any affirmative defenses, although the Government was still obligated to produce any Id. Ruiz information that established her factual innocence. rejected the agreement, but eventually pled guilty. 26. At sentencing, Ruiz unsuccessfully argued Id. at 625for the same sentence that the Government would have recommended under the agreement. ¶19 Id. at 626. On appeal, the Ninth Circuit ruled that "fast track" plea bargains were unlawful due to the waiver contained therein because the Constitution requires prosecutors to disclose impeachment evidence prior to the entry of a plea agreement and a defendant cannot waive this right. United States Supreme Court stated: Id. In reversing, the "[W]e have found no legal authority embodied either in this Court's past cases or in cases from other circuits that provides significant support for the Ninth Circuit's decision." Id. at 630. 14 Thus, the Court held When defendants enter into a "fast track" plea bargain in federal court, they waive their right to indictment, trial, and appeal in exchange for a recommendation of a two-level downward departure from the applicable sentencing guidelines. Ruiz, 536 U.S. at 625. 18 No. 02-2433-CR that there is no constitutional right to impeachment evidence prior to the entry of a plea bargain. ¶20 Id. at 633. Harris argues that Ruiz should be limited to its facts because the Court framed the issue very narrowly. on the Court's statement that "[t]he Harris relies constitutional question concerns a federal criminal defendant's waiver of the right to receive from Id. at 628. prosecutors exculpatory impeachment material[.]" We disagree that this single sentence limits Ruiz to its facts because the Court later framed the issue in much broader terms: "We must decide whether the Constitution requires preguilty plea disclosure of impeachment information. Id. at 629. We conclude that it does not." Also, the holding of the Court was not phrased with any limiting language: Constitution does not require the Government to "[T]he disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant." ¶21 Harris also underlying the context federal of Id. at 633. asserts Court's that decision "fast was track" plea much of premised the on rationale the bargaining. unique While the Court did discuss such case specific factors as the pre-guilty plea safeguards in Federal Rule of Criminal Procedure 11, the obligation of the Government under the "fast track" agreement to provide the defendant with information establishing her factual innocence, criminal and the informants, need to protect the id. at 631-32, these bases for the Court's decision. identity were of not federal the only A close examination of the Ruiz decision reveals that the Court's holding was based primarily on 19 No. 02-2433-CR the nature of impeachment evidence and the policy considerations underlying the Brady rule. For instance, the Court stated that the right to impeachment information is relevant to the fairness of a criminal trial, not whether a plea is voluntary. 629. Id. at The Court also reasoned: It is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant. The degree of help that impeachment information can provide will depend upon the defendant's own independent knowledge of the prosecution's potential case a matter that the Constitution does not require prosecutors to disclose. Id. at 630. does not The Court also emphasized that the Constitution require a defendant to be aware of all relevant circumstances surrounding his plea, noting that the Constitution "permits a court to accept a guilty plea . . . despite various forms of misapprehension under which a defendant might labor." Id. at 630. some of The Court then found it difficult to distinguish these defendant's "various ignorance bargaining stage. ¶22 forms of of misapprehension" impeachment from material at the that "due a plea Id. at 630-31. Further, the Court remarked the process considerations, the very considerations that led this Court to find trial-related rights to exculpatory and impeachment information in Brady and Giglio, argue against the existence of the 'right' that the Ninth Circuit found here." Id. at 631. The Court reasoned that any benefit to the defendant of such a 20 No. 02-2433-CR right would be clearly minimal because of a defendant's limited knowledge of the government's case. Id. The Court also noted that such a right would undermine the interest of the government in "securing those guilty pleas that are factually justified, desired by defendants, and administration of justice." ¶23 Therefore, help to secure the efficient Id. neither the express holding nor the rationale of Ruiz was limited to the context of federal "fast track" plea bargaining. Indeed, several other courts have recognized that Ruiz stands for the proposition that a criminal defendant generally does not have a constitutional right to receive impeachment information prior to entering into a plea bargain. See McCann v. Mangialardi, 337 F.3d 782, 787 (7th Cir. 2003) (noting that while the Court in Ruiz held that "the Due Process Clause does not impeachment information defendant's guilty require prior plea," due to the the process government entry may to disclose a criminal of require government actors to disclose evidence of a defendant's factual innocence before he enters into a guilty plea); Gruning v. Dipaolo, 311 F.3d 69, 73 (1st Cir. 2002) (recognizing that Ruiz held that the government is not constitutionally required to disclose material impeachment evidence prior to entering into a plea bargain); United States v. Cottage, 307 F.3d 494, 499-500 & n.5 (6th Cir. 2002) (recognizing that the Court in Ruiz held that "a defendant has no constitutional right to the disclosure of impeachment information before entering a plea agreement"); United States v. Dyess, 293 F. Supp. 2d 675, 688 (S.D.W.Va. 2003)(recognizing 21 No. 02-2433-CR that the Ruiz decision forecloses any argument that a defendant is entitled to impeachment information under Brady and Giglio before entering a plea); People v. Moore, 804 N.E.2d 595, 598600 (Ill. violate App. Ct. 2003) defendant's negotiate a plea due (holding process bargain after that prosecutor rights the did not refusing to requested the when defendant identity of a confidential informant because Ruiz established that defendants do information Brennan, prior not to have entering 72 P.3d 182, 186 petitioner's claim that plea failed to disclose evidence a right into to material a plea (Wash. App. was that invalid could impeachment agreement); In re 2003) (rejecting because prosecutor be used to impeach government witness at trial in light of the Ruiz decision that "rejected the Ninth Circuit's conclusion that the constitution requires prosecutors to make certain impeachment available to defendants before pleading guilty"). information We therefore hold, based on the United States Supreme Court decision in Ruiz, that due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain.15 15 The State asks us to go one step further and overrule the court of appeals' decision in State v. Sturgeon, 231 Wis. 2d 487, 605 N.W.2d 589 (Ct. App. 1999). We decline to do so. Today's decision is limited to the scope of material exculpatory impeachment evidence. We do not determine whether due process requires the disclosure of purely exculpatory information prior to a plea bargain. 22 No. V. ¶24 However, 02-2433-CR DISCOVERY STATUTE VIOLATION Ruiz is not completely dispositive of the case before us, because unlike the defendant in Ruiz, Harris made a statutory demand for exculpatory evidence under § 971.23(1), which requires the prosecutor to disclose certain materials trial. to the defendant within a reasonable time before As will be discussed further below, a defendant making a statutory discovery demand may be entitled to material exculpatory impeachment evidence before he enters into a plea bargain if the plea bargain is entered into within the time frame when the prosecutor would have been statutorily required to disclose the information. ¶25 When a defendant seeks a plea withdrawal on non- constitutional grounds, he may withdraw his guilty plea after demonstrating "manifest that a withdrawal is necessary injustice." Hatcher, 83 Wis. 2d at proceeding on this theory, "the defendant has to avoid 564. the a When burden of proving grounds for withdrawal of his guilty plea by clear and convincing evidence." Id. The fact that the defendant has waived certain defenses by entering into a guilty plea is not dispositive: "'The question on a motion to withdraw a plea is not whether the accused has waived his rights but whether he should be relieved from such a waiver.'" Id. at 565 (quoting Brisk v. State, 44 Wis. 2d 584, 588, 172 N.W.2d 199 (1969)). Harris argues he is entitled to withdraw his guilty plea as a result of Determining the State's whether the violation of court appeals of 23 the discovery correctly statute. concluded No. 02-2433-CR that the State violated its discovery obligations requires the interpretation and application of the discovery statute to a given set of facts and presents a question of law subject to independent appellate review. ¶26 DeLao, 252 Wis. 2d 289, ¶14. Harris argues that the State violated § 971.23(1)(h).16 This section provides: (1) What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it within the possession, custody or control of the state: . . . . (h) Any exculpatory evidence. Wis. Stat. § 971.23(1)(h) (emphasis added). ¶27 The exculpatory parties evidence" dispute merely whether codifies the the phrase "any constitutional requirements of Brady, or whether the phrase requires the State 16 Harris also contended at oral argument that the State violated Wis. Stat. § 971.23(1)(e). That section provides that a prosecutor must disclose "[a]ny relevant written or recorded statements of a witness named on a list under par. (d) . . . ." Wis. Stat. § 971.23(1)(e). Wisconsin Stat. § 971.23(1)(d) provides that the prosecutor must disclose "[a] list of all witnesses and their addresses whom the district attorney intends to call at trial." We agree that the State may have been obligated under § 971.23(1)(e) to disclose B.M.M.'s recorded allegation that her grandfather assaulted her. However, because this issue was not discussed in the parties' briefs and the record does not contain a copy of any witness list provided by the State, we decline to resolve this case on the basis of § 971.23(1)(e). 24 No. to disclose a broader set of information to 02-2433-CR the defendant. However, both parties agree that at a minimum, § 971.23(1)(h) requires that a prosecutor required under Brady. other words disclose the type of information See Sturgeon, 231 Wis. 2d at 497 n.4. § 971.23(1)(h) requires, at a minimum, that In the prosecutor disclose evidence that is favorable to the accused if nondisclosure of the evidence undermines confidence in the evidence was outcome of the judicial proceeding. ¶28 Harris asserts that the undisclosed "favorable to the accused" because it was directly relevant to the credibility of B.M.M., as she grandfather's assault onto him. could have projected her Harris notes that the alleged assaults by her grandfather occurred shortly before Harris is alleged to have assaulted B.M.M., and B.M.M. did not report the assaults by her grandfather until after she had reported being assaulted by Harris. created an claims that credibility inference the and Harris argues this evidence would have that he undisclosed reliability was not guilty. allegation of any was expert Also, relevant witness Harris to the the State would have called because it established a previous source for B.M.M.'s sexual knowledge and reactive behaviors. According to Harris, because the evidence related to the credibility of the State's most influential witnesses, therefore subject to disclosure. that would the not undisclosed have been information admissible, it material, and The State primarily argues is as not it Pulizzano exception to the rape shield law. 25 was material does not because it meet the No. ¶29 "[w]hen 02-2433-CR The United States Supreme Court has recognized that the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within [the Brady] rule." Giglio, 405 U.S. at 154 (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). Brady's The Court has stated that "[o]ur cases make clear that disclosure requirements extend to materials that, whatever their other characteristics, may be used to impeach a witness." ¶30 Strickler, 527 U.S. at 282 n.21. 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. grandfather's assaults onto Harris. was projecting her The United States Supreme Court has noted that "there are situations in which evidence is obviously of such substantial value to the defense elementary fairness requires it to be disclosed . . . ." 427 U.S. at 110. Here, the undisclosed information that Agurs, is not directly exculpatory in the sense that DNA evidence might be because sexually the fact assaulted that by B.M.M. her had alleged grandfather does being not, previously in and of itself, tend to negate Harris's guilt regarding the separate assault that B.M.M. alleged he committed. However, the evidence here constitutes impeachment information that could be used to challenge the credibility of witnesses whose credibility would have been determinative of Harris's guilt. 154. Giglio, 405 U.S. at Thus, the undisclosed information constitutes exculpatory 26 No. impeachment evidence because it is 02-2433-CR to B.M.M.'s relevant 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. grandfather undermined projected onto the the Harris. assaults Because credibility of the this perpetrated evidence State's most by her could have influential witnesses, this is one of those situations in which fundamental fairness dictates that the evidence should have been disclosed. ¶31 We also disagree with the State's argument that this evidence is not material because we determine that the State's nondisclosure confidence of in this the evidence outcome of sufficiently Harris's undermines criminal our proceeding. 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. We need not determine whether the five factor Pulizzano test would have been met in this case because even if the test would have been met, the circuit court would still have been obligated to balance Harris's right to present the evidence against the interest of the State in excluding it. See State v. Dunlap, N.W.2d 2002 Pulizzano, B.M.M.'s WI 155 prior opportunity to 19, ¶20, Wis. 2d at 250 653-54. allegation, further Wis. 2d 466, the investigate 27 640 By failing State denied B.M.M.'s to 112; disclose Harris allegations the and No. bring a Pulizzano motion. motion would have required 02-2433-CR As the resolution of any Pulizzano 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). ¶32 The State's argument is also contrary to the rationale utilized by the court of appeals in DelReal. In DelReal, the court of appeals determined that the State failed to disclose Brady evidence when the State failed to inform the defendant that it had performed gunshot defendant's hands prior to trial. residue swabbing on the DelReal, 225 Wis. 2d at 571. A postconviction investigation revealed that while the State had performed the swabbing, it had not tested the results. 569. Id. at At the behest of the defendant, the tests were performed and the results came back negative. Id. In addressing whether this evidence was relevant and material, the court of appeals reasoned: 28 No. 02-2433-CR [T]he State failed to turn over evidence of an exculpatory nature; i.e., the State failed to disclose that swabbing had in fact been performed, which would have provided DelReal the opportunity to have the swabs tested leading to a negative test result. This was relevant, exculpatory evidence because the negative test result would have some weight and its tendency could have supplied a favorable inference of DelReal's innocence to the jury. Id. at 571 (emphasis added). The court further noted that this evidence was relevant for impeachment purposes because it could have been used to attack the credibility of a police detective who testified that swabbing had not been performed. 576. Id. at 573, The court held that "[i]n the interest of securing a fair trial, DelReal was entitled to challenge the reliability of the police investigation and to challenge the credibility of Gomez." Id. at 575. present Under the rationale set forth by the State in the case, the defendant in DelReal would not have been entitled to the evidence that gunshot residue swabbing had been performed because the results had not been tested prior to trial. ¶33 In the interests entitled to the opportunity challenge the reliability of of a to fair bring the proceeding, a State's challenge the credibility of the victim. Harris Pulizzano expert motion witness was to and 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. 29 No. ¶34 02-2433-CR We recognize that in the constitutional context, the Brady requirement of materiality is dependent upon whether the suppressed evidence undermines confidence in the outcome of the trial and Supreme that Court no trial stated took when place here. discussing how However, a as reviewing the court should evaluate a prosecutor's pretrial decision to not disclose evidence: The reviewing court should assess the possibility that such [prejudicial] effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor's incomplete response. Bagley, 473 U.S. at 683. The State's argument requires us to reconstruct how a hypothetical trial would have proceeded and speculate as to how the jury would have viewed the evidence. decline to do so. We The circuit court accepted Harris's offer of proof that he pled guilty only because of the relative strength of the State's case and would not have pled guilty had this evidence been disclosed. As Harris demonstrated that he would not have pled guilty but for the nondisclosure of this favorable evidence, we are satisfied that the nondisclosure of the evidence sufficiently undermines our confidence in the outcome of the proceeding. As such, the State was under a statutory obligation to disclose B.M.M.'s allegation after Harris made a statutory demand for "any exculpatory evidence." ¶35 statute The next issue we must address is one of timing. requires the State to 30 disclose certain The materials No. demanded by the defendant "within trial." Wis. Stat. § 971.23(1). a reasonable 02-2433-CR time before The statute itself does not define what is a "reasonable time before trial," and there are no cases that establish a per se rule for what is "reasonable" under the statute. However, we note that immediate disclosure is not required under Brady. (criticizing disclose the all district See Coppa, 267 F.3d at 143-44 court impeachment for evidence ordering prosecution immediately upon to demand). What Brady does require is that the prosecution must disclose exculpatory evidence to the defendant "in time for its effective use." Id. at 144. See also United States v. O'Hara, 301 F.3d 563, 569 (7th Cir. 2002) (finding no Brady violation where the defendant "had sufficient time to make use of the material disclosed"); United States v. Grintjes, 237 F.3d 876, 880 (7th Cir. 2001) ("Brady applies only where the allegedly exculpatory evidence was not disclosed in time for the defendant to make use of it."). ¶36 In the constitutional requirement dovetails requirement. Coppa, prosecutor must impeachment information with 267 disclose no context, the F.3d Brady's "materiality" "the 'material' . . . exculpatory and than 142 "timing" that later at this the (noting point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made"). Therefore, "[Brady] demands only that the disclosure not come '"so late as to prevent the defendant from receiving a fair trial."'" Grintjes, 237 F.3d at 880 (quoting United States v. 31 No. 02-2433-CR Adams, 834 F.2d 632, 634 (7th Cir. 1987)(quoting United States v. McPartlin, 595 F.2d 1321, 1346 (7th Cir. 1979))).17 ¶37 However, completely Brady's incorporated timing into requirements § 971.23(1) because cannot the be statute requires that evidence be disclosed "within a reasonable time before trial." on the other Wis. Stat. § 971.23(1)(emphasis added). hand, "does not require pretrial Brady, disclosure." Grintjes, 237 F.3d at 880 (citing United States v. Sweeney, 688 F.2d 1131, 1141 (7th Cir. 1982)). See also United States v. Reyes, 270 F.3d 1158, 1166-67 (7th Cir. 2001)(same). Thus, in regard to the timing of disclosure, § 971.23 is broader than the constitutional requirements of Brady. While we cannot apply the Brady standard for determining when the timing requirement is satisfied, in light of statutory language that clearly requires pretrial disclosures, we do find Brady's initial formulation of the timing requirement to be useful. We hold that in order for evidence to be disclosed "within a reasonable time before trial" for purposes of § 971.23, it must sufficient time for its effective use. be disclosed within a Were it otherwise, the State could withhold all Brady evidence until the day of trial in the hope that the defendant would plead guilty under the false assumption that no such evidence existed. 17 But see State ex rel. Lynch v. Circuit Court for Dane County, 82 Wis. 2d 454, 463, 262 N.W.2d 773 (1978)("The State must therefore disclose such material as soon as the state recognizes its exculpatory character."). 32 No. 02-2433-CR ¶38 The jury trial in Harris's case was set for August 6- 8, 2001. He made his discovery demand on May 30, 2001, and pled guilty pursuant to the plea agreement on July 25, 2001. Thus, at the time Harris entered into his plea agreement, there were approximately two weeks until trial. As discussed previously, had B.M.M.'s allegations against her grandfather been disclosed, Harris would have brought a Pulizzano motion in order to admit the evidence. Also, because this evidence would have been used not challenge only to B.M.M.'s credibility, but also to challenge the credibility and reliability of the State's Jensen experts, Harris would have been required to secure experts of his own. Given the nature of Pulizzano evidence and the fact that the State was planning to call at least one expert witness to provide Jensen-type evidence, the State should have disclosed the suppressed evidence by at least this point in the proceedings in order for Harris to be able to effectively use it. We are satisfied that by the time Harris pled guilty, the State should have disclosed B.M.M.'s statement in order to meet the statutory requirement that such evidence be disclosed within a reasonable time before trial. under Ruiz that the specific Thus, although we concluded type of evidence here was not required to be disclosed prior to Harris's plea bargain as a constitutional matter, we nonetheless conclude that the State was under a statutory obligation to disclose this evidence because § 971.23 requires Brady evidence to be disclosed "within a reasonable time before trial." 33 No. ¶39 02-2433-CR Finally, we address whether the State's violation of § 971.23(1)(h) entitles Harris to withdraw his plea. In Hatcher, this court delineated four circumstances in which a criminal defendant is entitled to withdraw his guilty plea in order to avoid a manifest injustice: 1) if he was denied effective assistance of counsel; 2) if the plea was not entered or ratified by the defendant or his agent; 3) if the plea was involuntary because it was entered without knowledge of the charge or potential sentence; or 4) if the State breached the plea agreement. Hatcher, 83 Wis. 2d at 564. However, we noted that this list was not exhaustive and stated that a defendant may be able to withdraw a plea on injustice in similar circumstances. the grounds Id. of manifest We believe that the circumstances here are sufficiently similar to those delineated in Hatcher. The common thread among the situations listed in Hatcher is that the defendant was deprived of a right guaranteed by the constitution, statute, or rule, induced the defendant to plead guilty. the discovery impeachment statute evidence by that, and deprivation Here, the State violated withholding if that material admitted, would exculpatory have raised serious questions about the credibility of the victim and the reliability of the Harris's own material evidence State's version of that expert events, was witnesses. this "favorable was to the the Aside only from existing accused." The circuit court accepted Harris's postconviction offer of proof that he would not available to him. have pled guilty had this evidence been This court has previously determined that a 34 No. 02-2433-CR prosecutor's violation of discovery statute, if prejudicial to the defendant, entitles the defendant to a new trial. 252 Wis. 2d 289, ¶59. Here, the State's violation DeLao, of the discovery statute prevented Harris from ever having a trial. Harris has demonstrated the State's discovery statute violation resulted in "'a serious flaw in the fundamental integrity of the plea.'" State v. Thomas, 2000 WI 13, ¶16, 232 Wis. 2d 714, 605 N.W.2d 836 (quoting State v. Nawrocke, 193 Wis. 2d 373, 379, 534 N.W.2d 624 (Ct. App. 1995)). Under these circumstances, we believe it necessary to allow Harris to withdraw his guilty plea in order to prevent a manifest injustice. VI. ¶40 CONCLUSION To summarize, we hold that the State did not violate Harris's right to due process because, pursuant to the United States Supreme Court's decision in Ruiz, due process does not require the information However, disclosure before we a determine of material defendant that enters B.M.M.'s exculpatory into a impeachment plea allegation bargain. against her grandfather is the type of information the State was required to disclose pursuant to § 971.23(1)(h) because it constitutes evidence favorable to the accused whose nondisclosure undermines our confidence in the judicial proceeding. favorable to the accused evidence that casts doubt primary witnesses. undermines our The confidence This information is because it on credibility the constitutes nondisclosure in the outcome of of of impeachment the State's this evidence the judicial proceeding because Harris would not have pled guilty but for the 35 No. nondisclosure of this evidence. 02-2433-CR We further hold that in order to comply with the mandate in § 971.23(1) that such information must be turned over within a reasonable time before trial, the State was obligated to disclose this evidence at a point when Harris would have had sufficient time to make effective use of the information. As Harris entered his plea bargain within two weeks prior to the date his trial was scheduled to commence, the State should have disclosed the suppressed evidence by at least this point in the proceedings in order for Harris to be able to effectively use it. Given that 1) the evidence of B.M.M.'s allegation was the type of evidence required to be disclosed under § 971.23(1)(h); 2) the State did not disclose this evidence within a reasonable time before trial; and 3) Harris would not have pled guilty but for this nondisclosure, Harris has demonstrated that a withdrawal of his plea is necessary to avoid a manifest injustice. By the Court. The decision of the court affirmed. ¶41 DIANE S. SYKES, J., did not participate. 36 of appeals is No. ¶42 JON P. WILCOX, J. (concurring). 02-2433-CR.jpw I write separately because I believe that the decision in United States v. Ruiz, 536 U.S. 622 (2002), properly interpreted, is not limited to impeachment evidence, but rather extends to both material impeachment evidence and material exculpatory evidence. While the majority of the discussion in Ruiz focused on impeachment evidence, the waiver contained in the plea agreement at issue in Ruiz contained not only a waiver of the right to impeachment evidence, but also a waiver of the right to evidence supporting any affirmative defense. in Ruiz requires specifically information Ruiz, 536 U.S. at 625. rejected the regarding an disclosed prior to plea bargaining. ¶43 notion The majority that affirmative due process defense to be Id. at 633. Exculpatory evidence includes evidence that tends to support an affirmative defense. See United States v. Agurs, 427 U.S. 97, 98-99 (1976)(Although the court ultimately concluded that the evidence in question, supporting a theory of self- defense, was not material under its now-outdated definition of materiality, the Court never questioned the exculpatory nature of the evidence in question). An affirmative defense is defined as "[a] defendant's assertion raising new facts and arguments that, if true, will defeat the . . . prosecutor's claim, even if all allegations in the complaint Dictionary 430 (7th ed. 1999). supporting an affirmative are true." Black's Law Thus, by definition, evidence defense 1 is exculpatory because it No. 02-2433-CR.jpw tends "to establish a criminal defendant's innocence." Id. at 577. ¶44 In repeatedly addition, held the that United States exculpatory Supreme evidence and Court has impeachment evidence are to be treated the same for purposes of Brady v. Maryland, 373 U.S. 83 (1963). 263, 280-82 (1999). 676 (1985), the Strickler v. Greene, 527 U.S. In United States v. Bagley, 473 U.S. 667, Court stated that there is no substantive difference between impeachment evidence and exculpatory evidence for Brady purposes: distinction evidence." between "This Court rejected evidence impeachment has and any such exculpatory Thus, it logically follows that if due process does not require impeachment evidence to be disclosed prior to a plea agreement, then due process does not require exculpatory evidence to be disclosed prior to a plea agreement. ¶45 The conclusion that due process does not require the disclosure of exculpatory evidence prior to a plea bargain is also consistent with the very underpinnings of Brady. The Court has previously recognized that because the purpose of the Brady rule is to ensure a fair trial, there is no violation unless the government's nondisclosure of the evidence resulted in an unfair trial. violated Agurs, 427 U.S. at 108 ("[T]he prosecutor will not have his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial."); Bagley, 473 U.S. at 678 ("[S]uppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial."). 2 No. Indeed, remarked: in his concurrence in Ruiz, Justice 02-2433-CR.jpw Thomas aptly "The principle supporting Brady was 'avoidance of an unfair trial to the accused.' the plea stage regardless." That concern is not implicated at Ruiz, 536 U.S. at 634 (Thomas, J., concurring)(quoting Brady, 373 U.S. at 87). See also Matthew v. Johnson, 201 F.3d 353, 361-62 (5th Cir. 2000)("Because a Brady violation is defined in terms of the potential effects of undisclosed information on a judge's or jury's assessment of guilt, it follows that the failure of a prosecutor to disclose exculpatory information to an individual waiving his right to trial is not a constitutional violation.").18 18 The Seventh Circuit has noted, despite the holding in United States v. Ruiz, 536 U.S. 622 (2002), that "it is highly likely that the Supreme Court would find a violation of the Due Process Clause if prosecutors or other relevant government actors have knowledge of a criminal defendant's factual innocence but fail to disclose such information to a defendant before he enters into a guilty plea." McCann v. Mangialardi, 3 No. ¶46 Because I would hold, pursuant to 02-2433-CR.jpw Ruiz, that due process does not require the disclosure of material impeachment information or material exculpatory information prior to plea bargaining, I respectfully concur. 337 F.3d 782, 788 (7th Cir. 2003). However, this statement does not diminish the significance of Ruiz's holding with respect to exculpatory evidence relating to affirmative defenses. While evidence that actually establishes a defendant's factual innocence will necessarily be exculpatory, the converse is not true; not all exculpatory evidence actually establishes the factual innocence of the defendant. See Black's Law Dictionary 577 (7th ed. 1999) (defining exculpatory evidence as "[e]vidence tending to establish a criminal defendant's innocence")(emphasis added). I further note that the case at bar does not implicate this statement from McCann because here the State did not withhold evidence that actually established Harris's innocence. 4 No. 1 02-2433-CR.jpw
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
