State v. Revels

Page 602

585 N.W.2d 602

221 Wis.2d 315

STATE of Wisconsin, Plaintiff-Respondent, v. Rory D. REVELS, Defendant-Appellant. ^d

No. 97-3148-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 9, 1998.

Opinion Released July 30, 1998.

Opinion Filed July 30, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Fred D. Hollenbeck, Rebecca M. Richards-Bria and Paul S. Curran of Curran, Hollenbeck & Orton, S.C. of Mauston.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and James M. Freimuth, Assistant Attorney General.

Before EICH, C.J., DYKMAN, P.J., and VERGERONT, J.

EICH, Chief Judge.

We granted Rory Revels, who is facing a charge of causing death by the intoxicated use of a vehicle, leave to appeal from an interlocutory order requiring him to provide the prosecutor with a summary of his expert witness's findings and the subject matter of the witness's testimony pursuant to § 971.23(2m)(am), STATS. The statute requires the defendant to provide the prosecution with a list of intended witnesses and, with respect to expert witnesses, to provide:

any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, including the results of any scientific test, experiment or comparison that the defendant intends to offer at trial.

Revels challenges the constitutionality of the statute on grounds that (a) it is vague with respect to the extent of allowable discovery, and (b) it is fatally overbroad in that it "requires [him] to forfeit his Fifth Amendment rights against self-incrimination and his Sixth Amendment right to counsel and to present a defense." Alternatively, he argues that the trial court's order, which he says requires him to disclose both a summary of the expert's findings and a statement of the subject matter of the testimony, violates the terms of the statute. We reject Revels's arguments and affirm the order.

The charge grew out of a one-car "rollover" accident that resulted in the death of a passenger in Revels's truck. The prosecutor sought discovery under § 971.23, STATS., quoting the language of subsection (2m) verbatim. Revels responded with a document titled "List of Witnesses to be Called by Defendant," which contained the names of forty-five persons. One of the witnesses was listed as "Dennis D. Skogen, Safety Engineering." Immediately below Skogen's name appears the following notation:

Mr. Skogen is an expert on accident reconstruction. The subject matter of his testimony will be the results of his examination and evaluation of the scene of the accident and the mechanics of the accident. Enclosed is a copy of his drawing which the defense has received.

A diagram, apparently prepared by Skogen and purporting to represent the accident scene, was attached to the document.

The prosecutor complained to the trial court that the summary was inadequate under the statute. Responding, Revels claimed that to the extent the statute required anything more than the statement he provided, it was unconstitutional. The trial court rejected Revels's arguments and ordered him to provide the prosecutor with "a written summary of the findings and anticipated testimony of Dennis D. Skogen."

(1) Scope of Review. We review constitutional challenges de novo, owing no deference to the trial court's decision. State v. McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989). We are guided, however, by several well-established rules. First, all acts of the legislature are presumed to be constitutional and will be upheld "if there is any reasonable basis for the exercise of [the] legislative power." Id. (quoted source omitted). The person challenging the law has the burden of establishing its unconstitutionality beyond a reasonable doubt, State v. Carpenter, 197 Wis.2d 252, 263, 541 N.W.2d 105, 109 (1995), and if we can "conceive any facts on which the legislation could reasonably be based," we must uphold it. McManus, 152 Wis.2d at 129, 447 N.W.2d at 660 (quoted source omitted).

(2) Constitutionality: Vagueness. Revels argues that because the statute can be viewed in two different ways--he says he considered himself in compliance when he provided the prosecutor with a description of the subject matter of Skogen's testimony, while the prosecutor contended that a summary of the actual testimony was required--and the trial court was thus forced to interpret its terms, it must be considered unconstitutionally vague.

The State says first that because § 971.23(2m), STATS., is a procedural rather than a substantive statute, it is not subject to a void-for-vagueness challenge. We agree. Because "[a] challenge of a criminal statute for vagueness requires that the statute prohibit specific conduct," we have held that, where the statute in question "does not prohibit conduct, but instead regulates procedure," a vagueness challenge will not lie. State v. Dums, 149 Wis.2d 314, 324, 440 N.W.2d 814, 817 (Ct.App.1989). Vagueness is essentially a due-process question: whether the statute is "sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation." Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 96 L.Ed. 367 (1952) (quoted in State v. Courtney, 74 Wis.2d 705, 710-11, 247 N.W.2d 714, 718 (1976)).

Revels claims the statute is penal in that compliance with its terms--as interpreted and applied by the circuit court--would require him to produce a statement of his expert's opinion, which is, in turn, based on his own statement to the expert as to how the accident occurred. Viewed in this light, says Revels, the statute has an "undeniable and unavoidable penal aspect."

As indicated above, the statute requires production of statements or reports prepared by expert witnesses intended to be called at trial--or, if the witnesses have prepared no reports or statements, a written summary of their findings or the subject matter of their testimony. While there are possible sanctions for failure to comply with a discovery order based on the statute--exclusion of evidence, granting a continuance to the opposing party or advising the jury of the noncompliance--the trial court may excuse the violation "for good cause shown." Section 971.23(7m), STATS. And Revels has not persuaded us that either the existence of such remedial sanctions or the fact that the expert witness's statements or reports may be based on information Revels himself provided effectively changes § 971.23 from a procedural into a penal statute which may be challenged for vagueness. ¹

(3) Constitutionality: Overbreadth. Revels next argues that the statute is overbroad and "chills [his] Fifth and Sixth Amendment rights." With respect to the Fifth Amendment, he claims (again) that because his expert's opinion will be based upon his own (Revels's) version of the events leading up to the accident, pretrial disclosure of that opinion to the prosecutor will have the effect of requiring him to provide evidence that "will be used against [him]." His Sixth Amendment challenge is based on his assertion that expert-witness materials must necessarily include information "which he has provided in confidence to his attorney," and thus the statute infringes upon the exercise of his right to counsel and also implicates the attorney-client and attorney work-product privileges. Finally, he claims the statute deprives him of his right to present a defense--in particular, the "right to develop a theory of the case with [his] attorney."

A statute will be struck down as overbroad "only when its language is so sweeping that its sanctions could be applied to activities protected by the Constitution." State v. Corcoran, 186 Wis.2d 616, 635, 522 N.W.2d 226, 233-34 (Ct.App.1994). The particular vice of an overbroad law "is that by sweeping protected activity within its reach it deters citizens from exercising their protected constitutional freedoms, the so-called 'chilling effect.' " State v. Neumann, 179 Wis.2d 687, 711, 508 N.W.2d 54, 63 (Ct.App.1993) (citation omitted). And because a reviewing court "must apply the overbreadth doctrine only with hesitation and as a last resort, the challenge must be both 'real and substantial.' " State v. Janssen, 213 Wis.2d 471, 479, 570 N.W.2d 746, 750 (Ct.App.1997). Thus, we must be "confident in our prediction that the [statute] will deter [a] constitutionally protected [right]" before we may declare it unconstitutional on grounds of overbreadth. Id.

Addressing Revels's self-incrimination argument first, we note that the privilege against self-incrimination protects a person only against being incriminated by his or her own compelled testimonial communications. State v. LaPlante, 186 Wis.2d 427, 437, 521 N.W.2d 448, 452 (Ct.App.1994). There are four requirements that, taken together, trigger the privilege against self-incrimination. "[T]he information sought must be: (i) incriminating; (ii) personal to the defendant; (iii) obtained by compulsion; and (iv) testimonial or communicative in nature." Izazaga v. Superior Court, 54 Cal.3d 356, 285 Cal.Rptr. 231, 815 P.2d 304, 310 (Cal.1991) (citing United States v. Nobles, 422 U.S. 225, 233 n. 7, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Doe v. United States, 487 U.S. 201, 207, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988)). ² It follows that statutorily mandated discovery of evidence that meets these four requirements is prohibited; and, conversely, "discovery of evidence that does not meet each of these requirements is not barred by [the Fifth Amendment]." Izazaga, 285 Cal.Rptr. 231, 815 P.2d at 310 (citing Schme...