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May 25, 1983


Appeals from judgments and an order of the Circuit Court for Kenosha County: Michael S. Fisher, Judge.

Petition to Review Granted

Scott, C.j., Voss, P.j., and Brown, J.

The opinion of the court was delivered by: Brown

We reverse these two companion cases, which we understand will necessitate new trials, because the prosecutor failed to comply with the law regarding disclosure of exculpatory and inculpatory information. We are reversing primarily because, after agonizing appraisal, we are convinced a reversal is the only way to assure each defendant a fair trial and, therefore, to best serve the system of criminal Justice.

Richard Woten died of stab wounds about 12:30 a.m. on May 11, 1980 behind an establishment known as Zimmerman's Bar in Kenosha. Raul Ruiz and Antonio Servantez were subsequently tried and convicted of being parties to the crime. Ruiz and Servantez had separate trials and separate attorneys, both of whom are able; Ruiz was tried first. Each appellant testified at his own trial, implicitly pointing the finger at the other as being the culprit while maintaining complete innocence for his own part.

The prosecutor found out some information during the Ruiz trial which inculpated Servantez and was exculpatory as to Ruiz. The information was that Casey Ostrowski, a witness for the state in each case, had overheard a conversation during a car ride in Racine. During the conversation, which occurred within days of the murder, Joe Sanchez reportedly asked Servantez "if he got rid of the knife." Servantez answered that he had. At the preliminary hearing and other proceedings which occurred before the trials, Ostrowski denied hearing any conversation in the car or did not mention she had heard a knife-disposing statement.

The prosecutor did not convey the information to Ruiz' attorney, Martin Hanson. Nor did he tell Servantez' attorney, Thomas Tofte, about the possible change in Ostrowski's version of the car ride, electing, rather, to spring the testimony in the middle of the Servantez trial. The trial court ultimately ruled that the prosecutor should have disclosed the evidence to both attorneys, and we agree. Ruiz had a right to the evidence because it was consistent with his story that Servantez acted alone. The defense has a right to exculpatory evidence. See Rohl v. State, 90 Wis. 2d 18, 279 N.W.2d 722 (Ct. App. 1979), modified, 96 Wis. 2d 621, 292 N.W.2d 636 (1980). *fn1 Servantez was entitled to the information because he had earlier filed a motion, seeking from the court:

an order requiring the District Attorney to furnish the defendant with a written summary of all oral statements which the District Attorney plans to use in the course of trial, together with names of witnesses to the oral statement which the State plans to use in the course of trial pursuant to Sec. 971.23(1) of Wisconsin Statutes. *fn2

When a demand for prior oral statements of the defendant which the state intends to use at trial is made, the prosecution has a continuing duty to reveal all such statements which it subsequently discovers. *fn3 Sec. 971.23(7), Stats. *fn4

The defendants bring their appeals primarily under the rubric of "prosecutorial misconduct." *fn5 The trial court found that concealment of the evidence was present but characterized the concealment as one of "misjudgment" or, alternatively, stated that the nondisclosure "was not the intentional type of error that would be considered in the same vein as vindictive prosecution." The trial Judge also commented: "I don't think [the nondisclosure] was done for the purpose of sandbagging . . . ." After reading the record in these two cases and others that have preceded it, our Conclusion of law is somewhat different. We conclude the nondisclosure was the result of, if not a deliberate act of suppression, a complete and total disregard of duty and indifference to present legal obligations on the part of the Kenosha prosecutor's office. To find anything less would be to ignore a continuing pattern of nondisclosure, buttressed by the prosecutor's inadequate explanations for this -- the latest incident involving suppression of evidence from an accused.

None of the prosecutor's reasons for nondisclosure made to the trial court in either case makes any sense. For example, as to disclosure to Servantez of the prior oral statement, the prosecutor argued that the discovery statute does not obligate the state to turn over statements made to witnesses who are not law enforcement personnel. In fact, there is a case on point which holds exactly the opposite. Kutchera v. State, 69 Wis. 2d 534, 544-45, 230 N.W.2d 750, 756 (1975). The prosecutor also said he was uncertain Ostrowski would repeat the statement under oath. The fact remains, however, that the witness was asked an open-ended question as to "what was said" in the car. As to nondisclosure to Ruiz, the prosecutor at one point explained that Ostrowski's revised recollection was questionable because it was refuted by Joe Sanchez and contradicted by her earlier testimony; thus, in his view, it was inadmissible hearsay. As the trial court pointed out, however, it is the court's function, not the prosecutor's, to determine what may and may not be admitted into evidence. See Nelson v. State, 59 Wis. 2d 474, 484, 208 N.W.2d 410, 414 (1973). Further, the notion that concern for the truth-seeking function of the trials motivated the nondisclosure is called into question by the manner in which the statement was ultimately disclosed. Not only was it withheld from Attorney Hanson, who might have been able to use it to buttress Ruiz' story that Servantez acted alone or to impeach Ostrowski's testimony, but from Tofte as well. It was then sprung without warning during the Servantez trial when, whether it was believable or not, it could do the most damage. These tactics show not a regard for fairness and the truth but, rather, an interest solely in how evidence will best aid the prosecution. At another juncture, the prosecutor said there was no way to know whether the conversation was connected to the murder, implying this justified nondisclosure. This explanation strains the imagination; how could anyone believe that such a statement by a co-defendant in a stabbing case was not related to the crime? Further, if the prosecution actually believed that the events which occurred within days of the murder were unconnected to the crime, why was Ostrowski questioned about the car ride at the Servantez trial?

In addition to the numerous questionable answers supplied by the prosecutor at various points in the proceedings, we note that this is not the first time this court has been faced with a challenge to the attitude of this same prosecutor towards release of information to which the defense is entitled pursuant to statute and case law. In an unpublished decision of this court, of which we take judicial notice, State v. Copening, No. 79-246-CR unpubl. slip op. (Wis. Ct. App. Jan. 10, 1980), rev'd, 100 Wis. 2d 700, 303 N.W.2d 821 (1981), a mistrial was granted because the prosecutor, for no good reason and despite trial court remonstrations that he comply with the law, neglected to comply with the requirements of sec. 971.24(1), Stats., which requires that written statements of witnesses be given to the opposition in advance. Calling the prosecutor's action a "flagrant violation of the statutory mandate," Copening, unpubl. slip op. at 5-6, and emphasizing that disregard of a trial court's "prior ruling cannot be condoned or tolerated," this tribunal concluded that the conduct constituted prosecutorial overreaching which operated to bar retrial of the defendant under the double jeopardy clause. Copening, unpubl. slip op. at 5. Although the supreme court reversed our holding that prosecutorial overreaching occurred, it had no quarrel with our characterization of the prosecutor's conduct, alternatively describing it as "inexcusable," 100 Wis. 2d at 716, 303 N.W.2d at 830, and "an insult to the institutional values of an orderly trial." Id. at 719, 303 Wis. 2d at 831.

Similarly, in State v. Lamboy, *fn6 another unpublished decision of this tribunal of which we take judicial notice for purposes of this Discussion the Kenosha district attorney's office failed to promptly disclose exculpatory evidence tending to show the defendant could not have formed the intent to commit first-degree murder. There, as in the Servantez post-conviction motion, the defendant offered a series of cases to show that it was the practice of the prosecutor's office to withhold evidence. Despite the record made, this court indicated we were not yet convinced the conduct of the Kenosha district attorney's office showed an intentional pattern of suppression. We acquiesced in the state's explanation that the nondisclosure was a result of the district attorney's inaccurate assumption that he was the Judge of what was and was not exculpatory evidence. We, however, advised that the adversary system is not an end in itself but a means to search for the truth; we cautioned that, when in doubt, disclosure is required. The advice in Lamboy came soon after Copening. The instant appeals indicate the warning signs in Copening have been, if not unnoticed, unheeded. We further note that the same or similar nondisclosure allegations have surfaced in other unpublished Kenosha county cases of which we take judicial notice. State v. Dissmore, No. 80-1178-CR unpubl. slip op. (Wis. Ct. App. Oct. 7, 1981); State v. Vite, No. 80-1194-CR unpubl. slip op. (Wis. Ct. App. June 5, 1981); State v. White, No. 79-1559-CR unpubl. slip op. (Wis. Ct. App. July 14, 1980). In each of these cases, we affirmed.

Nevertheless, the state urges us to look at all of the evidence adduced against Ruiz and Servantez and conclude the nondisclosure to them was mere non-prejudicial error not requiring reversal under traditional harmless error doctrine. Under the relevant standards, Ruiz would be entitled to a new trial if the nondisclosure of the exculpatory evidence could have affected the jury verdict. See Rohl, 90 Wis. 2d at 35-36, 279 N.W.2d at 728. In the Servantez situation, where the nondisclosure involved a violation of statutory rather than constitutional precepts, reversal is warranted if, absent the error, the result might probably have been more favorable to the defendant. See State v. Gavigan, 111 Wis. 2d 150, 162-63, 330 N.W.2d 571, 578 (1983). The trial court held that in view of the other evidence, the error was harmless in each case.

Review of the evidence indicates that under normal circumstances, a finding of harmless error by using the standard formula would certainly be appropriate. The circumstantial evidence adduced paints a picture of racial animosity on the part of the defendants which resulted in a confrontation beginning in the late night hours of May 10 and leading up to a murderous attack on Woten. The sequence of events began about ten o'clock in the evening when Raul Ruiz, Antonio Servantez and John Reyes arrived at the home of Casey Ostrowski, who lives across the street from Zimmerman's Bar. Shortly thereafter, Ruiz went to the tavern to play pool. He became ...

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