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State v. Konkol5/1/2002
. In this OWI case, the State anticipated before trial what the theory of the defense would be and planned to rebut the theory by use of expert witness testimony. The issue we face on appeal, one of first impression in Wisconsin, is whether the State was required to disclose a known and anticipated rebuttal witness regardless of the statement in Wis. Stat. § 971.23(1)(d) (1999-2000) that the duty to disclose expert witnesses "does not apply to rebuttal witnesses or those called for impeachment only." We determine that the discovery statute places no duty on a prosecutor to list a rebuttal witness even if he or she knows before trial that the witness will be called. To put it bluntly, the defense takes its chances when offering a theory of defense and the State can keep knowledge of its legitimate rebuttal witnesses from the defendant without violating § 971.23(1)(d).
. Richard N. Konkol's fourth conviction of OWI stems from his arrest on December 11, 2000. At trial, City of Menasha police officer Tim Seaver testified that he stopped Konkol because Konkol's vehicle had crossed the center line. Noticing that Konkol's eyes were bloodshot and that his breath smelled of alcohol, Seaver conducted field sobriety tests. Seaver then arrested Konkol and transported him to the police station. At the station, Konkol underwent an Intoximeter test and blew 0.12%. At the time, Konkol claimed to have consumed only one alcoholic drink before being pulled over. He was charged with operating while intoxicated and operating with a prohibited alcohol concentration.
. Prior to trial, Konkol made a discovery demand that included a list of all witnesses and their addresses whom the district attorney intended to call at trial. At trial, the State's case-in-chief consisted of Seaver's testimony and the Intoximeter results. After the State rested, Konkol asserted his theory of defense that he had consumed only one alcoholic drink at a local restaurant and therefore could not have had a blood alcohol concentration of 0.12%. To corroborate his testimony, he called several individuals who were with him that evening, including the waitress and the bartender. They all supported his claim that he had consumed only one rum and coke.
. In rebuttal, the State attempted to call an expert witness and made the following offer of proof:
e can qualify her as an expert ... in terms of the intoximeter machine itself, she's also qualified to perform calculations with respect to alcohol concentration and body given a variety of facts such as the defendant's weight, how much he has consumed as far as food, how much he has had to drink and when. Essentially, I want to prove to the jury that it's impossible for the defendant to have a blood alcohol level of .12 when he's only consumed one drink.
. Defense counsel objected to the State's rebuttal witness on the ground that the expert was not listed as a witness in the response to his discovery demand. The trial court concurred, stating that the prosecutor was trying to "get kind of around the discovery request here by couching this in terms of the rebuttal when actually it's not really rebuttal." The trial court reasoned that the State had anticipated the defense theory before trial and had known the expert would be called to testify. Therefore, the State had a duty to disclose the witness to prevent unfair surprise and prejudice.
. The prosecutor responded that she had no idea before trial if Konkol's defense strategy would continue to be his "only one drink" assertion or whether he would present a different theory. As it turned out, the prosecutor argued, the expert's testimony would be proper rebuttal because it would directl
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