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State v. Bogdanske9/6/2000
trial is warranted in the interest of justice because, without the testimony, the jury did not have a full opportunity to consider the real controversy in the trial.
. This court is now asked to grant a new trial in the interest of justice by exercising its statutory discretion as provided for in Wis. Stat. § 752.35, rather than to rule on a claimed erroneous exercise of trial court discretion in denying the motion for a new trial. A rule often stated is that "a new trial in the interest of justice will be granted only if there has been an apparent miscarriage of justice and it appears that a retrial under optimum circumstances will produce a different result." Garcia v. State, 73 Wis. 2d 651, 654, 245 N.W.2d 654 (1976). It is generally recognized that appellate courts are reluctant to grant a new trial in the interest of justice upon our own motion. Although this is done only in exceptional cases, this case is one of those exceptions.
. The administration of justice is and should be a search for the truth. See id. at 655. The only fact in dispute at the trial on the hit and run charge was the identification of Bogdanske as the driver of the truck leaving the scene of the accident. In this case, all of the material evidence as to this issue was not presented to the jury. The testimony of the two nephews that Bogdanske was not the driver and in no way participated in leaving the scene of the accident is very material and significant. True, the nephews made themselves unavailable for trial and, thus, did not disclose this evidence. It is also true that counsel could have made a greater effort to locate the nephews. However, the record does not reveal this was an intentional strategic maneuver by Bogdanske or his counsel. While this court cannot condone the conduct of the nephews, it does not go to the matter of whether the controversy was fully tried and whether Bogdanske was, in fact, guilty.
. The major issue was the credibility of the witnesses. The driver of the car identified Bogdanske as the person driving the truck when leaving the accident scene. On the other hand, Bogdanske's version was the same as the nephews' present version. The testimony of the nephews could well have changed the minds of the jury. There is evidence in the record that could challenge the credibility of the nephews, but the jury did not have an opportunity to hear or evaluate their testimony. As Bogdanske correctly observes in his brief, in Garcia, the supreme court granted a new trial in the interest of justice, even though the missing evidence was previously available and the defendant himself was responsible for hiding it. See id. at 655-56. In that case, Garcia was charged with intentionally discharging a firearm into a building with a witness identifying him as one of the men involved in the offense. See id. at 652-53. However, during the trial, Garcia did not reveal that he had a friend who had participated in the crime and could provide testimony exonerating Garcia.
. This is a close case, but the integrity of our system of administration of criminal justice should afford a jury the opportunity to hear and evaluate the evidence of the nephews. A new trial is therefore ordered on the hit and run charge.
. In conclusion, this court affirms the conviction for OWI, but in the interest of justice reverses the hit and run conviction and remands that matter for retrial.
By the Court. -- Judgment and order affirmed in part; reversed in part, and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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