Novitzke v. State

Decision Date06 November 1979
Docket NumberNo. 77-183-CR,77-183-CR
Citation284 N.W.2d 904,92 Wis.2d 302
PartiesRick B. NOVITZKE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
CourtWisconsin Supreme Court

Howard B. Eisenberg, State Public Defender, and Mark Lukoff, First Asst. State Public Defender, submitted brief for plaintiff in error.

Bronson C. La Follette, Atty. Gen., and John M. Schmolesky, Asst. Atty. Gen., submitted brief for defendant in error.

CALLOW, Justice.

Rick B. Novitzke (defendant) was found guilty of the offense of homicide by intoxicated use of a motor vehicle, contrary to sec. 940.09, Stats. Writs of error were issued to review the judgment of conviction and the order denying the defendant's postconviction motion for a new trial. The errors alleged involve a hypothetical question put to an expert witness and the admissibility of evidence concerning the defendant's hospitalization for treatment of alcoholism.

On September 8, 1975, at about 12:30 p. m., the defendant went to the Ranch House Tavern in Milwaukee where he drank two beers, two double shots of anisette, and a tequila sunrise over a two and one-half hour period. At about 3 p. m., the defendant left the tavern for a forty-five minute period to show his new car to a friend. The bartender who served the defendant testified that, when the defendant returned to the tavern, he appeared to be under the influence "of something," "glassy eyed," and "a lot looser." The defendant admitted on cross-examination that he had taken barbituates about an hour or hour and a half after his last drink. The bartender testified the defendant sat on the floor of the bar for several minutes. The defendant testified he had dropped some antihistamines on the floor and was pushed to the floor as he bent to retrieve them. He stayed there to pick up the pills.

At about 4 p. m., the defendant left the tavern with a friend, and after several stops drove his friend home. The accident occurred at approximately 5:25 p. m., after the defendant had left his friend. The defendant testified that just prior to the accident he saw a gold car make a quick left turn as it approached from the south on an intersecting street into his lane of traffic. This car cut in front of a brown Buick which was immediately ahead of the defendant's car. The defendant noticed that the Buick's brake lights were on; he braced himself, turned the steering wheel to the left, and struck the Buick.

Eyewitnesses testified they saw a white car rapidly approach the Buick from the rear, start to pass the Buick, and strike the Buick in the left rear, sending it airborne until it struck a telephone pole, snapping the pole in half. The driver of the Buick exhibited no life signs at the scene of the accident, and he was pronounced dead on arrival at St. Michael's Hospital.

After impact the white car traveled in the air into a parking lot, striking another car. Both eyewitnesses identified the defendant as the driver of the white car.

Police officer Malejk testified he saw the defendant staggering at the accident scene. A record check on the defendant revealed that a parking warrant had been issued for his arrest, and the defendant was taken into custody. Police officer Schmidt testified that he observed a strong odor of alcohol on the defendant's breath and that the defendant was drunk.

The defendant was taken to the 4th District Station where he refused a breathalyzer test. At about midnight the defendant was placed in the city jail. About 1 a. m., the defendant was advised of his constitutional rights and gave a statement. After giving the statement, the defendant gave a urine sample. The parties stipulated the police maintained an unbroken chain of custody of the sample. At no time while in police custody did the defendant have access to alcohol. A chemist for the Milwaukee Health Department testified that the sample of urine had an alcohol content of .142 percent by weight, equivalent to a blood alcohol content of .107 percent by weight. The defendant gave detectives a statement in which he admitted committing himself in May, 1974, to the DePaul Rehabilitation Center for drug and alcohol addiction. After a hearing on admissibility, the court found the statement admissible. At trial the statement was read by the detective who took it.

Did the trial court commit reversible error in allowing an improper hypothetical question concerning the defendant's blood alcohol level to be answered?

At trial Dr. Chesley Erwin, Milwaukee County Medical Examiner, was called by the state as an expert witness. During direct examination the Assistant District Attorney put to Dr. Erwin the following hypothetical question:

"Okay. Doctor, if the defendant in this action were taken into custody at approximately 5:30 P.M. and then remained in continuous custody for approximately eight and one half hours, not having any access to alcohol, and if after eight hours he submitted to an analysis of his urine which had a result of .142 alcohol in the urine, what, if anything, to a reasonable degree of scientific certainty could you say about the amount of alcohol that would have been in the defendant's urine at 5:30 P.M.?"

Over the defendant's objection, Dr. Erwin was allowed to answer:

"Under those stated conditions I would conclude and it would be my opinion that the blood value would have been higher at an earlier time."

Dr. Erwin's testimony satisfied the requirements of sec. 885.235(3), Stats., 1 for the admission of the results of a test measuring the alcohol content of a sample of the defendant's urine. The defendant contends allowing Dr. Erwin to answer the hypothetical question was error because evidence that the defendant gave a urine sample and evidence that the sample had an alcohol content of .142 percent by weight had not been admitted when the question was asked. The defendant relies on Zebrowski v. State, 50 Wis.2d 715, 727, 185 N.W.2d 545 (1971), where the court quoted from 2 Wharton's, Anderson, Criminal Evidence, (12th ed.) 351, sec. 523: "A hypothetical question put to an expert on direct examination must be based on facts in evidence, or conform to tendencies of the evidence. An expert cannot be asked as to a hypothesis having no foundation in the evidence in the case." We note that this language is qualified by the same authority as follows: "The defect of basing a hypothetical question in part upon matters not in evidence may sometimes be remedied by the admission thereafter of evidence relating to such matters." 2 Wharton's, Anderson, Criminal Evidence, (12th ed.) 1972 Cumulative Supplement, 352, sec. 523. Accord : 2 Wigmore, Evidence, (3d ed.) 795, sec. 673; McCormick, Evidence, (2d ed.) 33, sec. 14; Annot. 56 A.L.R.3d 300, sec. 6(c).

Piorkowski v. Liberty Mutual Insurance Company, 68 Wis.2d 455, 228 N.W.2d 695 (1975), affirms that the defendant's reliance on Zebrowski v. State, supra, is misplaced. In Piorkowski the trial court permitted an expert witness to answer three questions put to the witness on direct examination, even though all the facts on which the questions were based were not yet...

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14 cases
  • State v. Grant
    • United States
    • Wisconsin Supreme Court
    • June 11, 1987
    ...v. State, 99 Wis.2d 269, 295, 298 N.W.2d 820 (1980), Pohl v. State, 96 Wis.2d 290, 312, 291 N.W.2d 554 (1980), and Novitzke v. State, 92 Wis.2d 302, 308, 284 N.W.2d 904 (1979), as examples. The Dyess court reasoned that these cases, using a "reasonable possibility" test, were applying, for ......
  • State v. Dyess
    • United States
    • Wisconsin Supreme Court
    • June 28, 1985
    ...v. State, 99 Wis.2d 269, 295, 298 N.W.2d 820 (1980); Pohl v. State, 96 Wis.2d 290, 312, 291 N.W.2d 554 (1980); and Novitzke v. State, 92 Wis.2d 302, 308, 284 N.W.2d 904 (1979), were all non-constitutional error cases in which this court concluded that the proper test was whether there was a......
  • State v. Pruitt
    • United States
    • Wisconsin Court of Appeals
    • January 16, 1980
    ...that "the result might probably have been more favorable to the party complaining had the error not occurred." Novitzke v. State, 92 Wis.2d 302, 308, 284 N.W.2d 904, 907 (1979); Hart v. State, 75 Wis.2d 371, 394, 249 N.W.2d 810, 820 (1977). Here, the defendant is, in effect, seeking reversa......
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    • Wisconsin Court of Appeals
    • August 11, 1987
    ...evidence must be introduced of an assault and the complainant's ambiguous or contradictory conduct. See Novitzke v. State, 92 Wis.2d 302, 305-07, 284 N.W.2d 904, 906-07 (1979); Schulz v. St. Mary's Hosp., 81 Wis.2d 638, 648-49, 260 N.W.2d 783, 785-86 (1978). In cases where such an inquiry i......
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