Admission of photos provided to defense on day of trial was harmless

State v. Richard Brian Lopez, 2020AP108-CR, 3/29/2022, District 1; (not recommended for publication); case activity (including briefs)

Lopez was convicted of battering his girlfriend, “Margaret,” with whom he had children. Before trial, the DA turned over photos depicting the bruising on Margaret’s face.  But at trial, it surprised Lopez with a second set of photos showing the progression of her bruising. The defense objected. The circuit court refused to exclude the second set based on harmless error. The photos only depicted what Margaret and police described in their testimony.  The court of appeals affirmed.

Section 971.23(1) requires the DA to give the defense any physical evidence that it intends to offer into evidence within a reasonable time before trial.  The circuit court may sanction the State for violating this statute by excluding the DA’s evidence, granting a continuance, advising the jury of the violation, and so forth.

When analyzing a §971.23 violation, a court considers (1) whether the State failed to disclose required information; (2) whether the State had good cause for failing to disclose the information; and (3) whether the admission of the evidence was harmless. State v. Rice, 2008 WI App 10, ¶14, 307 Wis. 2d 335, 743 N.W.2d 517.

There are several variations of the harmless error standard, but they boil down to whether, given the other evidence at trial, the admission of the challenged evidence prejudiced the defense.  Opinion, ¶12 (citing State v. Harris, 2008 WI 15, ¶48, 307 Wis. 2d 555, 745 N.W.2d 397).

The court of appeals held that admission of the second set of photos did not prejudice Lopez. The jury had already seen the first set of photos depicting bruising. Margaret and the police testified to the progression of the bruising. And the new photos did not alter Lopez’s defense.

¶14 . . . The second set of photographs did not provide the jury with any information it had not already heard. The second set of photographs also did not provide that information in any more vivid of a picture than was already painted for the jury. As the trial court recognized when it addressed the photographs, Margaret was available to provide testimony at trial to describe the two punches she received, the injuries that resulted, and how long those injuries lasted. Furthermore, while the photographs “do depict bruises, but they’re not particularly graphic or they’re not something that would—that are pictures of horrific injuries.” Indeed, they are not significantly different from the first set of photographs taken on the night of the incident admitted into evidence and shown to the jury.

¶15 Moreover, the second set of photographs did not alter Lopez’s defense at trial in which he admitted to hitting Margaret and argued that he hit her in self-defense after she attacked him. In other words, this is not a case where the State’s discovery violation “went to the core of [his] trial preparation and strategy” such that a new trial is required. See DeLao, 252 Wis. 2d 289, ¶61; see also Harris, 307 Wis. 2d 555, ¶¶46-48. “The penalty for the breach of disclosure should fit the nature of the proffered evidence and remove any harmful effect on the defendant.” DeLao, 252 Wis. 2d 289, ¶60 (citation omitted). This court concludes that, beyond a reasonable doubt, the admission of the second set of photographs did not contribute to the verdict