APPEAL from an order of the circuit court for Kenosha County: CHAD G. KERKMAN, Judge. Cir. Ct. No. 2012CF576.
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Marguerite M. Moeller, assistant attorney general, and Brad D. Schimel, attorney general.
On behalf of the defendant-respondent, the cause was submitted on the brief of Eric Schulenburg of Schulenburg and Father, Madison.
Before Reilly, P.J., Gundrum and Hagedorn, JJ. HAGEDORN, J. (concurring).
[366 Wis.2d 795] [¶1] Wisconsin Stat. § 971.23(1)(d) (2013-14) provides that if a defendant demands a witness list from the State, the district attorney " shall, within a reasonable time before trial," provide a list of all witnesses the district attorney intends to call at [366 Wis.2d 796] trial. If the district attorney fails to comply with this demand, " [t]he court shall exclude any witness not listed ... unless good cause is shown for failure to comply." Sec. 971.23(7m).
[¶2] Caroline Prieto was charged on May 24, 2012, with great bodily harm to a child in a type of case often referred to as " shaken baby." Prieto promptly made a statutory demand to the Kenosha county district attorney to disclose all witnesses that the district attorney intended to call against her at trial. The district attorney ignored Prieto's request. On December 4, 2013, the circuit court ordered the district attorney to provide its witness list within sixty days and scheduled a trial for June 23, 2014. The district attorney ignored the court's order to name its witnesses. The court postponed the trial and at a hearing on August 15, 2014, scheduled a trial for February 9, 2015, and ordered the district attorney to provide its witness list within twenty days. The district attorney ignored the court's order.
[¶3] On January 23, 2015, Prieto moved to exclude any witness the State intended to call at trial that it had not already named. The court granted Prieto's motion, leaving the State with one witness whom the court found the State had previously disclosed that it would call. The district attorney's office offered no " good cause" for its failure to list its witnesses over the previous two-plus years. On January 26, 2015, fourteen days before trial, the district attorney filed a witness list followed by a motion for reconsideration of the court's exclusion order. The court denied the motion.
[¶4] In its appeal, the State acknowledges that the district attorney's office did not have good cause for its failure to list its witnesses. The State nevertheless [366 Wis.2d 797] argues that the court erred as Wis. Stat. § 971.23(7m) does not mandate the exclusion of witnesses, and the naming of its witnesses thirteen days before trial was " within a reasonable time before trial." Accepting without deciding that exclusion is discretionary rather than mandatory under § 971.23(7m), we conclude the circuit court did not erroneously exercise its discretion in excluding the State's witnesses given the district attorney's flagrant disregard of § 971.23 and the court's orders.
[¶5] The district attorney charged Prieto with one count of recklessly causing great bodily harm to a child after eight-month-old C.B. was diagnosed with a serious brain injury following a period in Prieto's care. The case centered on the theory that C.B. had suffered shaken baby syndrome at Prieto's hands. Soon after charges were filed, Prieto served the district attorney with a discovery demand pursuant to Wis. Stat. § 971.23(1) that included a request for " [a] list of all witnesses and their addresses whom the district attorney intends to call at trial." Discovery proceeded slowly over the next two and one-half years, during which more than 2000 pages of medical records were released and examined by national experts in preparation for trial.
[¶6] Following several delays, a jury trial was scheduled for February 9, 2015. Seventeen days before trial, the district attorney's office had provided notice of only one witness that it intended to call in its case-in-chief--an expert whose name was submitted in December 2014 in response to a specific request by Prieto and a court order. When questioned at that time regarding her office's failure to file a list of lay witnesses, [366 Wis.2d 798] the assistant district attorney stated that she had intended to file a list, but somehow had failed to do so. The court noted that it had given the parties twenty days after its August 15, 2014 status hearing to file their witness lists. The court also noted another judge who had been assigned the case in 2013 had given the parties a deadline to file their witness lists. After the district attorney's office offered no ...