State v. Jonathan Billy Thompson

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.
June 4, 2020
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. 2019AP767-CR Cir. Ct. No. 2018CF33

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JONATHAN BILLY THOMPSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Rock County:
KARL R. HANSON, Judge. Affirmed.

Before Fitzpatrick, P.J., Kloppenburg and Graham, JJ.

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

or authority, except for the limited purpose specified in WIS. STAT. RULE 809.23(3).
No. 2019AP767-CR

¶1 PER CURIAM. Jonathan Thompson appeals a judgment convicting
him, following a jury trial, of theft of movable property as a repeat offender. The
sole issue on appeal is whether evidence that was not disclosed to the defense until
after the trial had begun should have been excluded as a penalty for violating the
discovery statute. We conclude that the evidence at issue was not subject to the
discovery statute because it was not in the State’s possession, custody, or control,
but was instead in the possession, custody, and control of a witness who was not
an agent of the State.

BACKGROUND

¶2 J.L.O. reported to police that several expensive items of jewelry had
been stolen from his residence at a time when Thompson was staying there. When
officers consulted the “Leads Online” database, they found information and
photographs indicating that someone named “Jonathan B. Thompson” had pawned
jewelry matching the description of the stolen items.

¶3 The pawn shop was owned by Richard Erdman. When interviewed,
Erdman told police that he did not recall the transaction and did not think he had
any records of it. On the day of trial, however, in response to the State’s
subpoena, Erdman brought with him two receipts showing that he had bought the
described items from Thompson. The State disclosed the receipts to the defense
during a recess after the first witness had already testified, just after Erdman
provided them to the prosecutor.

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No. 2019AP767-CR

¶4 Thompson objected to the admission of the receipts pursuant to WIS.
STAT. § 971.23(7m) (2017-18)1, as a sanction for the State’s failure to disclose
them during discovery. The circuit court overruled the objection. It concluded
that the State had good cause for its nondisclosure because it did not discover the
receipts until the day of trial. Thompson now asks this court to order a new trial
based upon the alleged discovery violation.

STANDARD OF REVIEW

¶5 This court will independently determine whether a new trial is
warranted based upon an alleged discovery violation. State v. DeLao, 2002 WI
49, ¶¶14-15, 252 Wis. 2d 289, 643 N.W.2d 480.

DISCUSSION

¶6 In assessing whether a new trial is warranted as a sanction for an
alleged discovery violation, we must determine: (1) whether the State violated its
discovery obligations; (2) if so, whether the State has shown good cause for the
violation; and (3) if not, whether the defendant was prejudiced by the admission of
the nondisclosed evidence. Id. Here, we conclude that there was no discovery
violation in the first instance.

¶7 The State is obligated to disclose to the defense in a timely manner
any physical evidence the district attorney intends to introduce that is within the
possession, custody, or control of the State. WIS. STAT. § 971.23(1)(g). Plainly,

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP767-CR

the State did not have actual possession of the receipts prior to the time the witness
turned them over to the prosecutor. Thompson nonetheless argues that the receipts
were within the State’s “control” because the State had the authority to order their
production by subpoena and it should have known to do so based on the Leads
Online information, in conjunction with Erdman’s statutory duty to keep written
records. In other words, Thompson asks us to deem the receipts to have been
within the State’s control because the State could have obtained them prior to trial
by exercising due diligence.

¶8 Thompson cites DeLao, 252 Wis. 2d 289, ¶22, for the proposition
that “[t]he test of whether evidence should have been disclosed is not whether in
fact the prosecutor knows of its existence but, rather, whether by the exercise of
due diligence the prosecutor should have discovered it.” However, DeLao did not
address what it means to “control” evidence that is in the possession of a third
party. Rather, the evidence at issue in DeLao was possessed by an agent of the
State, and the issue was whether the prosecutor could have “planned” to introduce
it even though she was unaware of it prior to trial. Id., ¶18.

¶9 The court in DeLao first noted that the State could properly be
charged with knowledge of material and information in the possession and control
of others “who either regularly report or with reference to the particular case have
reported to the prosecutor’s office.” Id., ¶24. It then concluded that the statutory
phrase “plans to use” embodied an objective standard of what a reasonable
prosecutor should have known and would have done under the circumstances of
the case. Id., ¶30. At no point in its discussion did the court suggest that the State
has some obligation to exercise due diligence to obtain—or be deemed to have
control over—items in the possession of third parties who are not agents of the

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No. 2019AP767-CR

State or otherwise involved in the investigation of the case. We reject that
proposition as unsupported by legal authority.

¶10 In sum, we conclude that the State satisfied its ongoing discovery
obligation in this case by providing the defense with copies of the receipts within
minutes of learning of their existence and gaining possession of them. Because
there was no discovery violation, the circuit court did not err in admitting the
receipts and Thompson has no grounds for a new trial. Accordingly, we affirm.

By the Court.—Judgment affirmed.

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

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