State v. Alexander
| Decision Date | 18 December 1997 |
| Docket Number | No. 96-1973-CR,96-1973-CR |
| Citation | 571 N.W.2d 662,214 Wis.2d 628 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. David G. ALEXANDER, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by Christopher A. Mutschler, Michele A. Tjader, and Barry S. Cohen, S.C., Elkhart Lake and oral argument by Dennis M. Melowski.
For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.
The defendant David G. Alexander (Alexander) seeks review of his conviction for operating a motor vehicle while having a prohibited alcohol concentration of 0.08 or more, in violation of Wis. Stat. § 346.63(1)(b) (1993-94). 1 One of the three elements of this offense is that the defendant must have two or more prior convictions, suspensions or revocations as counted under Wis. Stat. § 343.307(1).
¶2 The issue is whether the circuit court erroneously exercised its discretion when it allowed the introduction of evidence of two or more prior convictions, suspensions or revocations as counted under Wis. Stat. § 343.307(1), and further submitted that element to the jury when the defendant fully admitted to the element and the purpose of the evidence was solely to prove that element. Because we conclude that the purpose of the evidence was solely to prove the element of two or more prior convictions, suspensions or revocations, its probative value was far outweighed by the danger of unfair prejudice to the defendant. We conclude that admitting any evidence of the element of prior convictions, suspensions or revocations and submitting the element to the jury in this case was an erroneous exercise of discretion. However, because of the overwhelming nature of the evidence as to the defendant's guilt in this case, we also conclude that the error was harmless. Accordingly, we affirm.
¶3 This case was heard before a jury in the circuit court for Milwaukee County, Timothy G. Dugan, Judge, presiding. The arresting officer, Officer Gallagher of the Oak Creek Police Department, was the State of Wisconsin's (State's) only witness. He testified as follows. In the early morning hours of October 27, 1995, Officer Gallagher was driving northbound on South 27th Street in the City of Oak Creek when he noticed a vehicle approaching from behind. Officer Gallagher was driving in the right driving lane of the two-lane divided highway and the vehicle was approaching in the far right lane which was a turning lane. The vehicle approaching Officer Gallagher's car moved left from the turning lane in front of the officer's vehicle, nearly striking the median strip and then moving forward as Officer Gallagher did a quick turn snap into the left lane to avoid a collision. After going through the intersection, Officer Gallagher observed the vehicle for about two more blocks. The vehicle went back and forth across the "fog line" (the far right illuminated line painted on the street), straddled the fog line, and struck the far right curb.
¶4 After these observations, the officer attempted to stop the vehicle. Driving approximately two car lengths behind the vehicle, Officer Gallagher turned on the red lights and flashers of his squad car. The vehicle did not stop. After several blocks, the officer turned on the siren and the vehicle pulled over.
¶5 When Officer Gallagher approached the vehicle the driver had opened the window and the officer smelled a strong odor of intoxicants on the driver's breath. Officer Gallagher noticed the driver had slurred speech and his eyes were red and glassy. At the officer's request, the driver readily produced his identification. The officer identified the driver as the defendant, Mr. David G. Alexander. In response to Officer Gallagher's questions, Mr. Alexander said that he had had a few drinks. Officer Gallagher asked Mr. Alexander to recite the alphabet. Mr. Alexander went through letters A to F very deliberately, correctly saying all those letters. Mr. Alexander then stopped, looked up at the officer and said, "You got me."
¶6 The officer then conducted three standard field sobriety tests. It was drizzling and the street surface was gently sloped upward, but the surface was generally flat. Although Mr. Alexander had no difficulty exiting his vehicle, he failed each of the field sobriety tests. Officer Gallagher informed him that he was under arrest for operating a motor vehicle while intoxicated (OWI). The officer then transported Mr. Alexander to the Oak Creek Police Department.
¶7 At the police station, Officer Gallagher went over the "informing the accused" form with Mr. Alexander, ensured he understood each section and had him sign the form. This document informs the arrested person that he is under arrest for drunk driving and that he has implied his consent to provide a sample of his breath, blood or urine at the officer's request. The officer observed Mr. Alexander for 20 minutes as required by Wis. Admin. Code § Trans 311.06(3)(a) and then performed the Intoxilyzer test. The defendant's alcohol concentration was .24. The officer then wrote a second citation for driving with a prohibited alcohol concentration.
¶8 After issuing the second citation, Officer Gallagher completed the "alcoholic influence report" which, among other things, informs the defendant of his Miranda rights. The alcoholic influence report also contains a series of questions which the officer posed to the defendant. In response to the questions, Mr. Alexander stated that he did not know where he was coming from when he was stopped; that he was stopped at 11:00 p.m. (when he was really stopped at 3:05 a.m.); that he had been drinking beer; and that he was under the influence of an alcoholic beverage at the time he was answering these questions.
¶9 The defendant also testified at the trial. His testimony materially conflicted with the officer's testimony in only a few respects. Alexander testified that the turning lane in which he was driving continues through the intersection as a third lane. He stated that he did not quickly move to the left as he was going through the intersection. Also, rather than drizzling, he stated that it was raining fairly hard from the time he saw the officer's vehicle through performing the field sobriety tests. Alexander also attempted to explain his actions during his arrest. He explained that when he told the officer, "You got me," he meant the officer caught him not being able to say the alphabet because he was so nervous. Alexander testified that his eyes were probably red and glassy because he had been awake for about 20 hours and he had been at a restaurant/bar with an open kitchen and smoky grill and people were smoking cigarettes. He further testified that he was not able to complete two of the field sobriety tests because his right knee has been operated on seven times over the years. Also, when asked if he was incapacitated when he was stopped, Alexander replied,
¶10 Before the final pre-trial conference the defendant's counsel filed a motion in which the defendant offered to stipulate that his driving record correctly sets forth that he has two prior OWI convictions. With this offer to stipulate the defendant also filed a motion in limine requesting that the court order the State to refrain from introducing any evidence regarding the defendant's prior OWI convictions. Alexander also moved to modify the substantive jury instructions. The thrust of the defendant's proposals, as noted in the State's brief, was to eliminate the element regarding his prior convictions as a matter for the jury to determine at trial, and to have this element considered only by the court at sentencing. The State agreed to stipulate to the existence of the defendant's prior OWI convictions, but it refused to waive that portion of the jury trial which would be relevant to making a finding on that element.
¶11 The circuit court denied the defendant's motion and concluded that the State can be required to stipulate to the fact that the defendant has two prior convictions, suspensions or revocations under Wis. Stat. § 343.307(1) but that the State cannot be forced to waive any portion of the jury trial. Therefore, evidence regarding the element of the defendant's prior convictions, suspensions or revocations was presented to the jury although the extent of information that the State could introduce was limited.
¶12 After the judge's ruling on the defendant's motion the parties agreed to the judge's proposed jury instruction regarding their stipulation to the prior convictions:
The District Attorney and defendant's attorney have stipulated to the following facts:
On the date and time in question in this case that the defendant had two or more convictions, suspensions or revocations as counted under section 343.307(1) of the Wisconsin Statutes.
The judge also proposed giving the following cautionary instruction:
Evidence has been received that the defendant has two or more convictions, suspensions or revocations as counted under section 343.307(1) of the statutes. This evidence is received solely because it bears upon the second element that the State must prove for the offense of driving with a prohibited alcohol concentration. It must not be used for any other purpose and, particularly, you should bear in mind that conviction, suspension or revocation as counted under section 343.307(1) at some previous time is not proof of the guilt of the offense now charged.
The parties agreed to this instruction as well.
¶13 The judge instructed the jury during both his preliminary and final instructions as to the elements of the offense including the element of two or more prior convictions, suspensions or revocations under Wis. Stat. § 343.307(1). When the State rested its case...
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