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Brief of appellant
Case no.: 023AP2136
Case name: State v Derek Jarvi
Court of Appeals District: IV
Filing attorneys: Sarah Burgundy
Title: Assistant state attorney general
Law firm / agency: Wisconsin Department of Justice
Circuit Court: Lafayette County
Judge: Duane Jorgenson
Introduction
Like many sexual assault cases, this was a credibility contest between Jarvi and Mia. Here, the jury believed Mia’s version of events, details of which were corroborated by testimony from a witness. After his conviction, Jarvi raised numerous claims of error in a postconviction motion. The circuit court reversed Jarvi’s conviction after declaring its original trial “messy” and stating that Jarvi should have a “clean” new trial. In doing so, the court seemingly reversed some of its own discretionary trial decisions, though it did not clearly explain what errors it perceived, and it expressed uncertainty about whether any errors were ultimately harmful or prejudicial. Ultimately, the court told postconviction counsel and the prosecutor that “we can do better” and that a new trial would allow the court and parties to “clean up the mistakes.”
No trial is error-free; this one was no exception. But granting a new trial to “clean up” mistakes that a postconviction court was unsure were even mistakes to begin with or were reasonably likely to have affected the verdict is not the proper standard for reversing a jury verdict and requiring a new trial. The bottom line is that the alleged “errors” here were not errors, they involved sound exercises of discretion, and they were not reasonably likely to have affected the verdict.
Accordingly, a new trial is unwarranted. This Court should reverse.
Issues presented
A jury convicted Derek Jarvi of second-degree sexual assault of a person under the influence of an intoxicant. The charge was based on allegations by “Mia,” a coworker, that Jarvi entered her tent during a camping trip and had sex with her while she was heavily intoxicated.
Jarvi filed a postconviction motion seeking a new trial on numerous grounds. The circuit court granted the motion.
The issues on appeal are as follows:
1. Whether it was error for the jury to hear testimony that Jarvi declined to talk to police during the investigation, where Jarvi was never in custody or given Miranda warnings, or for the prosecutor to comment in closing — after Jarvi had testified — that Jarvi first told his version of events at trial.
The postconviction court called those references to Jarvi’s declining to talk to police before trial “a problem.” This Court should hold that those references were all permissible.
2. Whether it was an erroneous exercise of discretion (and if so, whether it was harmless) for the court to strike Jarvi’s testimony about words Mia allegedly said indicating consent, where consent was not an element of the crime.
The postconviction court appeared to hold that it wrongly struck some of the testimony and that the error was not harmless, though it did not explain which strikes were erroneous, why, or why those errors were not harmless.
This Court should hold that the circuit court’s initial exercise of discretion in excluding the testimony was sound under the circumstances.
3. Whether the alleged errors were harmless and nonprejudicial.
The postconviction court was unsure whether the alleged errors satisfied the harmless error or prejudice standards, but it noted that the trial was “messy” and that Jarvi should have a “clean” trial.
This Court should reverse and hold that any errors were harmless and nonprejudicial.
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