State v. Anthony D. Nemetz

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 27, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1034-CR Cir. Ct. No. 2017CF404

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTHONY D. NEMETZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Shawano County: JAMES R. HABECK, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Anthony Nemetz appeals from a judgment
convicting him of multiple criminal offenses and an order denying his
No. 2020AP1034-CR

postconviction motion. Nemetz claims he is entitled to a new trial based upon the
State’s failure to provide notice pursuant to WIS. STAT. § 971.23(9) (2019-20),1
that it would be using DNA evidence at trial. We conclude the State’s failure to
provide statutory notice was harmless error and therefore affirm.

BACKGROUND

¶2 The charges in this case arose from the burglary of a residential
property. The probable cause portion of the criminal complaint alleged law
enforcement had connected Nemetz to the burglary through DNA evidence.
Among the items reported stolen by the homeowners was a gun safe. Law
enforcement located the gun safe near the intersection of two logging roads in the
woods about a week after the burglary. They recovered several other items in the
immediate area of the safe, including three juice pouches. The State Crime
Laboratory matched DNA samples taken from the juice pouches to Nemetz’s
DNA profile in the Combined DNA Index System database. It also matched the
DNA from the juice pouches to a subsequent sample of Nemetz’s DNA taken by
law enforcement in conjunction with this case. The State attached the State Crime
Laboratory reports to the complaint.

¶3 The State filed a witness list about five months before trial. The list
included two DNA analysts from the State Crime Laboratory. The State did not,
however, provide Nemetz with a separate, mailed, written notice of its intent to
submit DNA profile evidence at trial at least forty-five days before trial, as
required by WIS. STAT. § 971.23(9)(b).

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP1034-CR

¶4 At the final pretrial hearing, Nemetz moved to exclude the DNA
analysts’ testimony based on the State’s violation of the discovery statute. The
circuit court denied the motion, reasoning that the State had provided Nemetz with
adequate notice of its intent to use DNA evidence by listing and identifying two
DNA analysts on its witness list. The State proceeded to introduce the DNA
evidence at trial, and Nemetz was ultimately convicted of the charges. He now
appeals.

DISCUSSION

¶5 Section 971.23(9) of the Wisconsin Statutes provides in relevant
part:

(b) Notwithstanding [other discovery provisions dealing
with the provision of scientific reports and the reports of
expert witnesses], if either party intends to submit
deoxyribonucleic acid profile evidence at a trial to prove or
disprove the identity of a person, the party seeking to
introduce the evidence shall notify the other party of the
intent to introduce the evidence in writing by mail at least
45 days before the date set for trial; and shall provide the
other party, within 15 days of request, [relevant reports
relating to the evidence].

(c) The court shall exclude deoxyribonucleic acid profile
evidence at trial, if the notice and production deadlines
under par. (b) are not met, except the court may waive the
45 day notice requirement or may extend the 15 day
production requirement upon stipulation of the parties, or
for good cause, if the court finds that no party will be
prejudiced by the waiver or extension. The court may in
appropriate cases grant the opposing party a recess or
continuance.

Sec. 971.23(9). We normally review alleged violations of this discovery statute
de novo, following a three-part analysis. See State v. Rice, 2008 WI App 10, ¶14,
307 Wis. 2d 335, 743 N.W.2d 517 (2007) (examining another subsection of the

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No. 2020AP1034-CR

statute). We first determine whether a party failed to disclose information it was
required under the statute to disclose. Id. If so, we next determine whether the
party had good cause for the failure and if the circuit court properly admitted the
evidence in conjunction with other relief, such as a continuance. Id. Finally, in
the absence of good cause or other adequate relief, we decide whether the
admission of the evidence was harmless. Id.

¶6 Here, the State concedes that it failed to comply with WIS. STAT.
§ 971.23(9)(b), but it argues there was good cause to waive the notice deadline
under § 971.23(9)(c), and any error was harmless in any event. We note that the
circuit court explicitly declined to make a good cause determination or to waive
the notice deadline under para. (c), after determining that the State’s provision of
the witness list satisfied the notice requirement under para. (b). We need not
address the good cause issue, however, because we conclude that any error the
circuit court made in concluding that the notice provision had been satisfied was
harmless.

¶7 Under the harmless error rule, this court will not reverse a judgment
based upon “the improper admission of evidence, or for error as to any matter
of … procedure” unless “after an examination of the entire action or proceeding, it
shall appear that the error complained of has affected the substantial rights of the
party seeking to reverse or set aside the judgment, or to secure a new trial.” WIS.
STAT. § 805.18(2). The beneficiary of the error bears the burden of demonstrating
“there is no reasonable possibility that the error contributed to the conviction.”
State v. Harvey, 2002 WI 93, ¶40, 254 Wis. 2d 442, 647 N.W.2d 189 (citation
omitted).

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No. 2020AP1034-CR

¶8 We begin our analysis of harmless error under WIS. STAT.
§ 805.18(2) by addressing the nature of “the error complained of” on this appeal.
Nemetz alleges the circuit court erroneously exercised its discretion or otherwise
erred in permitting the State to introduce DNA evidence in the absence of the
required statutory notice—essentially categorizing the court’s action as an
improper admission of evidence. From that premise, Nemetz argues that the
admission of the DNA evidence was not harmless error because it contributed to
his conviction.

¶9 We note, however, that the circuit court’s decision to allow the State
to introduce the DNA evidence was not based upon its inherent admissibility.
Rather, the court was called upon to determine whether exclusion of the DNA
evidence was warranted as a remedy for the State’s alleged failure to provide the
required notice under the discovery statute. We characterize the State’s alleged
discovery error in this case as a matter of procedure. Because the court would not
need to reach the question of a proper remedy unless and until the State’s alleged
procedural error had been established, we consider the State’s alleged failure to
comply with the discovery statute to be the fundamental “error complained of” on
appeal. Our harmless error analysis is therefore focused on whether there is a
reasonable possibility that the State’s acknowledged failure to provide a separate,
mailed, written notice of its intent to use DNA evidence affected Nemetz’s
substantial rights and contributed to his conviction.

¶10 The State points out that Nemetz had actual notice that the State
intended to use DNA evidence based upon the probable cause portion of the
complaint, the DNA reports attached to the complaint, and the naming of two
DNA analysts from the State Crime Laboratory as witnesses. Each of these items
was provided prior to the forty-five-day notice deadline, with some provided

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No. 2020AP1034-CR

substantially before then. Given the manner in which the DNA evidence was used
to link Nemetz to the burglary, we agree with the State that it was obvious the
State would be introducing the DNA reports and related witness testimony at trial.
Moreover, Nemetz did not ask for a continuance, and he has not identified any
additional DNA testing he would have requested, any additional questions or line
of inquiry that he would have posed to the State’s DNA witnesses, or any
additional DNA witnesses he himself would have called if he had been provided
with a separate, mailed, written notice of the State’s intent to use DNA evidence.
If a statutorily permitted continuance itself would have changed nothing regarding
Nemetz’s ability to defend against the known DNA evidence, we find further
strength in our analysis of harmless error.

¶11 In short, Nemetz had a sufficient opportunity to prepare for the
introduction of DNA evidence at his trial, thus fulfilling the purpose of the notice
statute. We therefore conclude there is no reasonable possibility that the State’s
failure to comply with WIS. STAT. § 971.23(9)(b) contributed to Nemetz’s
conviction.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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