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COURT OF APPEALS DECISION DATED AND RELEASED October 31, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0987-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN C. WHITE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
GEORGE W. GREENE, Judge.[1] Affirmed.
WEDEMEYER, P.J.[2] Steven C. White appeals from a judgment
entered after a jury convicted him of resisting an officer, contrary to
§ 946.41(1), Stats. White claims that the State did not disclose
what he claims is “exculpatory evidence.”
Because the evidence was not exculpatory, this court affirms.
I. BACKGROUND
White was arrested on
August 4, 1993, on the basis of Patricia A. White's report that White had
thrown her to the ground. As White was
handcuffed, he made derogatory remarks to the officers and initially refused to
step into the police van for transport.
When White did enter the van, he kicked Police Officer Michael P.
Sarff in the chest. As a result of this
conduct, White was charged with resisting an officer.
White made a discovery
demand that included a request for any and all exculpatory evidence, including
a list of names and addresses of persons “who are witnesses to the events” but
“whom the state does not intend to call as witnesses.” The State turned over all police reports to
White at the final pretrial. The name
of David Kant was not a part of that material because Kant denied being present
for the arrest.
The case was tried to a
jury. Officer Sarff testified that
citizens were present during the arrest.
Based in part on that testimony, the prosecutor argued in rebuttal
closing that White's claim that the officers “physically threw” him into the
police van was not credible because these citizen witnesses would have reported
such activity. The jury returned a
guilty verdict. White now appeals.
II. DISCUSSION
White argues that the
State did not comply with his discovery request when it failed to turn over
Kant's name, and that the failure to turn over Kant's name violated his right
to receive all exculpatory information that was in the State's possession. He also argues that the prosecutor's
reference in closing argument to the presence of citizen witnesses makes Kant's
name exculpatory because if Kant was not present, the prosecutor's reference to
citizen witnesses was incorrect. This
court is not persuaded.
White's first two claims
are refuted by the fact that Kant stated he was not present for the
arrest. White's discovery request
sought names of any witnesses who would tend to exculpate White from the
resisting an officer charge. Kant
logically would not have any exculpatory information because he was not present
for the arrest. See State
v. Garrity, 161 Wis.2d 842, 469 N.W.2d 219 (Ct. App. 1991) (exculpatory
evidence is evidence that is both favorable to the accused and material to
either guilty or punishment).
In other words, Kant
could not attest to whether White actually resisted arrest because he was not
there to see whether White resisted arrest.
Therefore, Kant's name was neither responsive to the discovery request
not was it exculpatory evidence.
Further, White's claim
that the rebuttal closing somehow makes Kant's name exculpatory is without
merit. The record demonstrates that
citizen witnesses were present. The
record does not state that the only citizen witness was Kant. Accordingly, this court rejects White's
claims and affirms the judgment.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.