Bennett v. State
| Decision Date | 02 May 1972 |
| Docket Number | No. S,S |
| Citation | 196 N.W.2d 704,54 Wis.2d 727 |
| Parties | David Leonard BENNETT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 57. |
| Court | Wisconsin Supreme Court |
The plaintiff in error, David Leonard Bennett (hereinafter defendant or Bennett), was found guilty, by the court and jury, of a charge of homicide by negligent operation of a vehicle while under the influence of an intoxicant contrary to sec. 940.09, Stats. He was sentenced to an indeterminate term not to exceed five years at the Wisconsin State Reformatory on December 11, 1970.
A postconviction motion to vacate the judgment and for an acquittal and, in the alternative for a new trial, was made and denied on April 2, 1971.
The defendant appeals from the order denying the post-conviction motion.
Facts will be set forth in the opinion.
Anthony K. Karpowitz, Milwaukee, for plaintiff in error.
Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.
The main thrust of the defendant's argument is that the evidence is not sufficient to sustain the finding of guilty. This contention is based, in part, upon claimed errors in the admission of evidence of speed, intoxication, and admission of volunteered opinion-testimony as to intoxication by a police officer.
Sec. 940.09, Stats., provides in part:
To warrant a conviction under this section the evidence must be established by the requisite degree of proof: (1) That the defendant was the operator of a vehicle involved; (2) that he was negligent in such operation; (3) that he was under the influence of an intoxicant at the time of the accident; (4) that the accident caused the death of another person; and (5) that his negligence was a cause of the accident and resulting death.
While there is some disputed evidence in the record, this court, upon review of the sufficiency of the evidence, does not resolve such factual disputes. We examine the evidence to determine whether there is credible evidence in the record which, if believed by the trier of the facts, is sufficient to convince a reasonable jury or judge that the defendant is guilty of the crime charged (and all its essential elements) beyond a reasonable doubt. We believe this record contains the quantity and quality of evidence necessary to sustain the conviction.
The record reveals the following facts in support of the jury finding of guilty:
At approximately 7 p.m., on May 17, 1970, Frank Corrao, his wife Margaret, and their four-year-old daughter Kelly, were driving north on Highway 145 near Good Hope road in the city and county of Milwaukee. Corrao was driving a green Buick at about 55 to 60 miles per hour.
Highway 145 was a divided highway with three lanes going north and three lanes going south. Corrao testified that he was driving north in the center lane without deviation from that lane.
When his car reached the intersection of Good Hope road and Highway 145, Corrao felt a thud in the rear end of the car and then saw the 'abutments coming flying' at him. Corrao did not actually see the defendant's car strike his.
Salvatore Balistreri testified that he was on an adjacent service road and in the process of entering Highway 145 when he saw a green Buick driving north on Highway 145 pass him, going about 55 to 60 miles per hour. After Balistreri entered Highway 145, a Dodge, driven by defendant Bennett, passed him at a high rate of speed. The Dodge cut in front of him into the right lane and then, as the road turned to the right, it started to cut back into the center lane. Balistreri estimated that the Dodge was going over 100 miles per hour when it passed him. He also testified that the Dodge started to slow down after it passed him.
A few moments after the Dodge passed him Balistreri saw a cloud of dust go up over the Good Hope bridge. At this time Balistreri was going up the slope of a rise and did not see the collision between the Corrao and Bennett vehicles.
As Balistreri drove over the rise he observed the Dodge still moving north on the highway but it had turned around and was going backwards. Balistreri then drove up parallel with the Dodge, which had stopped, and he started to go to the car. He observed three people in the front seat who were fighting. One of the persons was the defendant David Leonard Bennett, who was in the driver's seat. Balistreri also observed several beer cans in the Dodge.
Because no one appeared injured in the Dodge, Balistreri then proceeded to the Buick. He opened the car door and Corrao fell out. Balistreri then noticed Margaret Corrao lying between the front seats of the Buick. She appeared to him to be decapitated. She died four days later from a skull fracture sustained in the accident. Balistreri took the little girl out of the car, walked with her until he came parallel with the Dodge and faced south so that she would not be able to see her car. Balistreri testified that:
Balistreri further testified that the defendant approached him twice more, uttering obscenities and vulgarities and threatening him if he told the police. Balistreri also smelled beer on defendant's breath.
Douglas Rindt was then called as a witness by the state. He testified that about 7 p.m., on May 17, 1970, he was traveling south on Highway 14 when he saw a cloud of dust in the northbound lane. He saw Corrao's car come to a rest against the guardrail on the side of the road. He also saw the defendant's car spinning around, stopping in the center lane. The defendant's car door opened and several beer cans were thrown out of the car into the ditch. Rindt stopped his car, got out and ran to Corrao's car. As he approached he saw Corrao lying on the ground. The defendant approached Corrao and began questioning Corrao, asking him why he was going so slow and other questions of the same nature.
The state then called Thomas Elbert as a witness. He described the defendant's speech as 'very slow and slurred.'
Henry R. Sapinski is a deputy sheriff of the county of Milwaukee and is also a certified breathalyzer operator for the state of Wisconsin. Sapinski testified that after the defendant had been taken to the Sheriff's Department in the Safety Building, he administered a breathalyzer test to the defendant. The result of the test was that defendant's blood contained .17 percent alcohol by weight.
John Kubiak, deputy sheriff for the county of Milwaukee, was then called as a witness. Shortly after the accident he spoke to the defendant. He testified that in his opinion the defendant was intoxicated at the time of the accident. The defendant's speech was slurred, incoherent and very slow. Kubiak further testified:
In response to a question as to whether he had looked into the defendant's car, Kubiak replied:
Kubiak also stated that the defendant had told him that he felt that Corrao's car was not going fast enough to be on the freeway.
The defendant was called as a witness on his own behalf. He testified that he was traveling at about 70 to 75 miles per hour (the legal maximum was 60 miles per hour) when he arrived at the rise before the Good Hope turnoff. He stated that he noticed the Corrao car and slowed to approximately 60 to 65 miles per hour. The car in front of him, which had been in the center lane, then turned into the right lane in which the defendant was traveling. The defendant looked back to see if he could swerve into the center lane, looked ahead, saw the Corrao car directly in front, slammed on his brakes and hit him.
The defendant also testified that he had been drinking shortly before the accident. He had at least three cans of beer at the home of a friend, and three or four 12 ounce bottles of beer at another residence. Two of his passengers testified and in general corroborated his testimony.
We believe the credible evidence offered by the state (the breathalyzer test results and the corroboration of intoxication by other evidence) is sufficient to prove intoxication at the time in question. 1
As is apparent from the statute, the state must prove causal negligence in addition to intoxication.
The defendant contends there is no evidence in the record as to the defendant's negligence other than speed, and that the evidence of speed is not of sufficient probative value to form a basis of a finding of causal negligence. On this point he argues, in effect, that evidence given by the witness Balistreri is without probative value. We disagree.
The maximum speed limit at the time and place was 60 miles per hour....
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