COURT OF APPEALS
DATED AND FILED
May 5, 2009
Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
Christopher J. Anderson,
from the circuit court for Milwaukee
m. witkowiak, Judge. Order denying motion seeking in camera
review reversed and cause remanded
Before Fine, Kessler and Brennan, JJ.
¶1 FINE, J. A jury found Christopher J.
Anderson guilty of possessing more than fifteen but fewer than forty grams of
cocaine with the intent to deliver that cocaine. See
§ 961.41(1)(cm)3. He appeals, pro se, and claims, inter alia, that the trial court erred when
it denied his motion for an in camera
review of the arresting officers’ personnel files. We agree, reverse the trial court’s order
denying Anderson’s motion seeking to have the trial court review in camera the personnel files, and
remand with directions for the trial court to conduct an in camera review of the files to determine whether they
contain any exculpatory or impeachment evidence relevant to this case. Inasmuch as Anderson would be entitled to a
new trial if the State withheld exculpatory evidence that affected the
reliability of his conviction, see State v. Harris, 2004 WI 64, ¶14,
272 Wis. 2d 80, 97, 680 N.W.2d at 737, 746 (The withholding of exculpatory
material warrants a new trial “‘if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would
have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the
outcome.’”) (quoted source omitted), we
do not address the myriad other issues he argues in his appellate submissions.
¶2 Anderson was arrested by City
of Milwaukee Police Officers Bodo
Gajevic and Mitchell Ward for possessing approximately
thirty-six grams of cocaine. After he
was arrested, Anderson filed a complaint with
the Internal Affairs Division of the Milwaukee Police Department, claiming that
Gajevic and Ward planted the drugs and asked Anderson to set up drug transactions.
¶3 Before his trial, Anderson
filed several demands for discovery and inspection, requesting, among other
[A] list of the names and addresses of persons known to
the State or any of its investigative agencies whom the State intends to call
as witnesses at any hearing or trial in this case, together with copies of any
and all of their oral, written, or recorded statements within the possession,
knowledge, or control of the State, as they relate to this case.
Any relevant written or recorded statements of a
witness whom the district attorney intends to call at trial, including but not
written or recorded statements of a witness who appears on the district
attorney’s witness list, including, but not limited to all police officers’
reports and memorandum book entries.
See Wis. Stat. § 971.23(1)(e)
(discovery and inspection; written or recorded statements of witness). Anderson
Any other information which would affect the weight and
credibility of evidence or the credibility of witnesses (including possible
rebuttal witnesses) used against the defendant; Negate or call into question
the guilt of the defendant; Militate the degree of the offense charged or
reduce the defendant’s punishment therefore; or form the basis for further investigation.
See Brady v. Maryland, 373 U.S.
83, 87 (1963) (State obligated to disclose evidence favorable to accused).
¶4 The Milwaukee County District Attorney’s Office turned over
to Anderson a police-department memorandum
recommending that Anderson’s
complaint against the officers be cleared as unfounded, an internal affairs
report in connection with the officers, and Anderson’s handwritten statements. The district attorney’s office refused to
turn over the officers’ personnel files, however, claiming that the files were
¶5 Anderson sought an in camera inspection of the personnel
files under Brady, contending that they might contain
inconsistent statements of the arresting officers or evidence corroborating Anderson’s version of the
arrest. The trial court, the
Honorable Elsa C. Lamelas, denied Anderson’s
request, concluding that the district attorney’s office did not have an
“obligation … to obtain those personnel records and to make them available to
everything that I have learned during the course of the defense of these cases
this is not information that the prosecutor presently has access to. The personnel files of these officers are not
in the possession of the assistant district attorneys.
the information that’s available to me and Kyles [v. Whitley, 514 U.S. 419
(1995)] as I understand it, there is no obligation on the part of the assistant
district attorneys to obtain those personnel records and to make them available
to the defense; and so that request for an in-camera inspection of the
officer’s personnel files is denied.
omitted; bolding and italics added.)
¶6 Gajevic and Ward were on the State’s witness list and the
officers testified at Anderson’s
trial. The officers told the jury that they stopped Anderson after they saw
him take a part from a car that appeared to be abandoned. According to Ward, as he got out of the officers’
squad car, Anderson
began to move away and put his hand in the front left pocket of his pants. Gajevic testified that Anderson then took what
looked like a bag of cocaine out of his pocket and put the bag in the front
wheel well of the car. According to the
officers, Gajevic went up to the car’s wheel well and took out a bag that had
approximately thirty-six grams of cocaine.
¶7 The officers testified that after Gajevic found the drugs,
they put Anderson
in the back of their squad car. According
to Ward, Anderson
told the officers that he wanted to cooperate and admitted that the cocaine was
his. The officers told the jury that
Gajevic wrote a statement but refused to sign it because he wanted the officers
to let him go. Ward testified that Anderson then told the
officers that he would call his supplier to arrange a drug transfer. According to the officers, Anderson’s
supplier would not provide the drugs unless Anderson showed up in person. When it became apparent that a drug deal was
not going to happen, other officers came and took Anderson to jail.
testified at the trial and contended that the officers framed him. He told the jury that he was on his way to a
restaurant when he was pulled over by a police car. According to Anderson, Gajevic told him to get out of the
car, handcuffed him, and told him that he was being arrested for drugs. Anderson
testified that the officers then put him in the back of their squad car, told
him they saw him with drugs, and tried “to get me to cooperate with them about
some drugs.” Anderson
further told the jury that Gajevic had a plastic bag and told him it was
“insurance for [Anderson]
to come through.” Anderson claimed that he did not take a car
part or have any cocaine when the officers stopped him.
¶9 As we have seen, the jury found Anderson guilty. Anderson
filed a pro se postconviction motion,
claiming, among other things, that his due-process right to Brady
evidence and Wis.
Stat. § 971.23(1)(e) were violated by the State’s failure to turn
over the officers’ personnel files. In a
related motion, Anderson
again sought an in camera review of
the personnel files. The trial court,
the Honorable Timothy M. Witkowiak, denied both motions “for the same reasons
set forth by Judge Lamelas in her oral decision.”
claims that the trial court erred when it denied his request for an in camera review of the personnel files because
he had both a constitutional and statutory right to any exculpatory or
impeachment evidence in the files. We
¶11 Under the Fourteenth Amendment to the
United States Constitution, the State’s suppression of evidence favorable to an
accused violates due process where the evidence is material either to guilt or to punishment. See
Brady, 373 U.S. at 87. To establish a Brady
violation, the defendant must show that: (1) the State suppressed the evidence in
question; (2) the evidence was favorable to the defendant, either because
it was exculpatory or impeaching; and (3) the evidence was material to the
determination of the defendant’s guilt or punishment. See Strickler v.
Greene, 527 U.S. 263, 281–282 (1999); see also United
States v. Bagley, 473 U.S.
667, 676 (1985) (“Impeachment evidence … as well as exculpatory evidence, falls
within the Brady rule.”). Whether the
State violated a defendant’s right to due process under Brady is a question of constitutional fact that we review
independently. See State v. DelReal, 225 Wis. 2d 565, 571, 593 N.W.2d 461, 464
(Ct. App. 1999).
¶12 It is undisputed that, although the personnel files were not in
the possession of the district attorney’s office, it had a duty to determine whether
they had exculpatory material relevant to this case. See Kyles, 514 U.S. at 437 (“[T]he individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government’s behalf in the
case, including the police.”). The
district attorney’s office, however, did not get the files from the police
department. Accordingly, the prosecution violated its duty as recognized by Kyles.
The issue is thus whether any
information in the personnel files was potentially favorable to Anderson.
¶13 “When 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 v. United States, 405 U.S.
150, 154 (1972) (quoted source omitted).
As we have seen, Anderson’s
theory of defense was that the arresting officers planted the drugs despite
their testimony to the contrary. He had
complained about the officers’ conduct, and an internal affairs investigation
was conducted. The officers denied the
conduct. Credibility was thus an
essential element of the case. If the
personnel files have impeachment material that in the context of this case and
the internal affairs proceeding casts doubt on the officers’ veracity, that
material would be exculpatory, given the conflict between the officers’
testimony and Anderson’s
testimony. See State v. Harris, 2004 WI
64, ¶30, 272 Wis. 2d at 108, 680 N.W.2d at 752 (child sexual assault victim’s
statement that she was previously sexually assaulted by her grandfather
“favorable to the accused because it casts doubt on the credibility of the
State’s primary witnesses and may have supported an inference that [the victim]
was projecting her grandfather’s assaults onto [the accused]”); DelReal, 225 Wis. 2d at 571, 593 N.W.2d at 464
(“Impeachment evidence casting doubt on a witness’s credibility is material and
subject to disclosure.”). Accordingly,
the failure to provide the personnel files for an in camera inspection violated Anderson’s
due-process right to have the State produce all potentially exculpatory
¶14 Further, the State was required by Wis. Stat. § 971.23(1)(e) to disclose to the
defendant, within a reasonable time before trial, any
relevant written or recorded statements of a named witness.
There has been an internal affairs inquiry in
connection with the charges against Anderson. Thus, the district attorney’s office had a duty
to discover and disclose any written or recorded statements Ward and Gajevic
may have made in connection with those charges. See State v. Harris, 2008
WI 15, ¶¶2, 32, 307 Wis. 2d 555, 564, 573–574, 745 N.W.2d 397, 401, 406
(written police reports “stating that law enforcement
officers unsuccessfully attempted to obtain identifiable fingerprints from a
plastic baggie containing cocaine allegedly belonging to the defendant”
discoverable under § 971.23(1)(e)); State v. DeLao, 2002 WI
49, ¶21, 252 Wis.
2d 289, 301, 643 N.W.2d 480, 486 (“Under § 971.23, the State’s discovery
obligations may extend to information in the possession of law enforcement
agencies but not personally known to the prosecutor.”). Knowing that there was an internal affairs
inquiry, the State had to determine whether any personnel action resulted from
that inquiry and to disclose that and other relevant information to the
defendant, who properly requested it in discovery.
¶15 In sum, the district attorney’s office’s failure to produce the
personnel files for in camera review deprived
potentially exculpatory material. Accordingly,
we remand to the trial court for an in
camera inspection of the files. See
v. Navarro, 2001 WI App 225, ¶10, 248 Wis. 2d 396, 403, 636 N.W.2d 481,
485 (defendant does not have unlimited access to confidential personnel
records; “a trial court’s in camera review is a limited intrusion that often
provides the best tool for resolving conflicts between the sometimes competing
goals or confidential privilege and the right to put on a defense”) (internal
quotation marks and quoted source omitted).
If the trial court determines that the files have exculpatory or
impeachment material, those parts shall be disclosed to Anderson and he may
seek a new trial. See, e.g., Giglio, 405 U.S. at 154 (Brady violation warrants
new trial where concealed evidence is material); DeLao, 2002 WI 49, ¶¶59–60, 252 Wis. 2d at 316–317, 643 N.W.2d at 493–494
(new trial for violation of § 971.23 if error prejudicial).
the Court.—Order denying
motion seeking in camera review reversed
and cause remanded
Publication in the official reports is not recommended.