State v. Kandutsch
| Decision Date | 19 July 2011 |
| Docket Number | No. 2009AP1351–CR.,2009AP1351–CR. |
| Citation | 2011 WI 78,799 N.W.2d 865 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent,v.Gregg B. KANDUTSCH, Defendant–Appellant–Petitioner. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the defendant-appellant-petitioner there were briefs by Eileen A. Hirsch, assistant public defender, Madison and oral argument by Eileen A. Hirsch.For the plaintiff-respondent there was a brief by Steven P. Means, assistant attorney general with whom on the brief was J.B. Van Hollen, attorney general, Madison and oral argument by Steven P. Means.DAVID T. PROSSER, J.
¶ 1 This is a review of an unpublished decision of the court of appeals, 1 affirming a judgment of conviction 2 for operating a motor vehicle while under the influence of an intoxicant, fifth and subsequent offense, in violation of Wis. Stat. § 346.63(1)(a) (2007–08).3
¶ 2 The interesting feature of this case is that the defendant's conviction rests entirely on circumstantial evidence because no witness saw him operating a motor vehicle or even sitting in a motor vehicle. The evidence that Gregg Kandutsch (Kandutsch) was operating a motor vehicle after heavily drinking is based in large part upon inference from a report generated by an electronic monitoring device (EMD) that Kandutsch was wearing. The report showed that Kandutsch left a house in Rib Mountain at 10:03 p.m. That house is approximately a 15 minute drive away from a house in Wausau where he was arrested at 10:23 p.m., heavily intoxicated.
¶ 3 Focusing on this timeframe, the State asked a Marathon County jury to draw the inference that Kandutsch drove from one place to the other under the influence of an intoxicant.
¶ 4 Kandutsch admits driving but he claims the driving occurred earlier in the evening—before he began drinking. He challenges both the accuracy and admissibility of computer generated reports derived from the EMD. In this review, he presents two issues:
(A) Did the circuit court err by admitting a computer-generated report from the defendant's EMD without requiring expert testimony to establish that the EMD produced accurate and reliable time-based reports?
(B) Did the circuit court erroneously determine that the electronic monitoring report fit within the exception to the hearsay rule for records of regularly conducted activity?
¶ 5 We conclude the following:
(A) Neither the EMD itself nor the report derived from it is so “unusually complex or esoteric” that expert testimony was required to lay a foundation for the admission of the report as evidence. The testimony of two Department of Corrections (DOC) agents was sufficient in this case to provide a foundation for the report's accuracy and reliability.
(B) A computer-generated report is not hearsay when it is the result of an automated process free from human input or intervention. Although the EMD report was not hearsay, it was subject to the authentication requirements of Wis. Stat. § 909.015(9). The report was properly authenticated through the testimony of the two DOC agents.
¶ 6 At 10:23 p.m. on June 19, 2006, several City of Wausau police officers and two Marathon County deputies responded to a 911 call from Kandutsch's estranged wife that someone was trying to break into her home. When the officers arrived on the scene, they discovered Kandutsch inside the home, having sustained serious injuries from breaking a glass door.
¶ 7 Kandutsch was transported to the hospital for treatment of his injuries, and a blood draw there revealed a blood alcohol content of .23 percent. At the hospital, he was placed under arrest for operating while intoxicated. The police concluded that Kandutsch had driven a vehicle while intoxicated because, when asked how Kandutsch arrived at her home, Kandutsch's wife explained that he would have driven a green van, and later she identified the vehicle parked in a nearby lot.
¶ 8 Kandutsch was subsequently charged with operating a motor vehicle on a highway while under the influence of an intoxicant, fifth and subsequent offense, contrary to Wis. Stat. §§ 346.63(1)(a), 346.65(2)(cm)5., and 939.50(3)(h).4
¶ 9 At trial, the disputed issue concerned whether Kandutsch operated the vehicle before or after he consumed alcohol. At the time of the incident, Kandutsch was supervised by an electronic monitoring system through the DOC. The State relied on a computer report generated by the EMD that purported to show when Kandutsch was in and out of range of a monitor in Rib Mountain on the day in question to establish a timeframe showing that Kandutsch must have been intoxicated at the time he drove to his wife's home.
¶ 10 The report included a notation showing that Kandutsch was “out of range” at 22:03, or 10:03 p.m., on June 19, 2006. The distance between Kandutsch's mother's home, in Rib Mountain, to his wife's home, in Wausau, was approximately a 15–minute drive. The 911 call from Kandutsch's wife was received at 10:23 p.m. on the night in question. Because Kandutsch was highly intoxicated at the time the officers arrived on the scene, shortly after the 911 call, the State theorized that Kandutsch must have been intoxicated before he left his mother's home and began driving.
¶ 11 The theory of Kandutsch's defense, on the other hand, was that he did not become intoxicated until after he had driven to his wife's home. He testified at trial that he left his mother's home a little after 9:00 p.m., arriving at his wife's home around 9:35 p.m. When he initially knocked on his wife's door, no one answered, so he proceeded to walk to a tavern called the Cop Shop about three blocks away.
¶ 12 Kandutsch further testified that, once at the bar, he consumed $20.00 worth of Southern Comfort whiskey liqueur and a pitcher of beer. After consuming the alcohol, he walked back to his wife's home, and it was at that point the break-in occurred. Kandutsch testified that, although he was in fact out of range at 10:03 p.m., the EMD report was inaccurate, because he had actually left his mother's home at 9:10 p.m. He did, however, concede on cross examination that the other times listed on the report showing when he went in or out of range were all accurate.
¶ 13 In laying the foundation for the EMD report to be admitted into evidence, Kandutsch's probation agent, Amy Klarkowski (Klarkowski), described the program as a system consisting of a home monitoring unit and a radio frequency device, usually attached to the person's ankle. Klarkowski testified that the monitoring unit has a range of about 150 feet and is connected by telephone to an electronic monitoring center staffed by the DOC.
¶ 14 Klarkowski also testified in detail about how an EMD is set up and verified.
I'm also going to receive a fax from the home monitoring unit directly to my office indicating both of those things, that there was a closed strap on the RF, and that the home monitoring unit was properly installed and there are no issues.5
¶ 15 Klarkowski explained that any movement by the radio frequency device in and out of the monitoring unit's range is noted on computer-generated reports at the DOC monitoring center in Madison. When asked about the system's reliability, Klarkowski testified that electronic monitoring is commonly used throughout the state, and that she had never had any problems with its functioning. The system is designed to keep working despite power outages or attempts to remove the ankle bracelet. Klarkowski had been employed by the DOC for five years and had personally supervised 30–35 individuals through the electronic monitoring system. She testified that not only had she never had any problems with a unit herself, but also had never heard of a unit generating a false report.
¶ 16 Klarkowski's DOC supervisor, Agent Michael Williams (Williams), also testified at trial. He explained that the electronic monitoring system is a routine supervision tool and that he has used it for 20 years.6 In that time, he had never heard of a faulty unit or report during his employment with the DOC. Williams further testified that the particular EMD unit used to supervise Kandutsch had been reissued to supervise another individual in Ashland County.
¶ 17 After the testimony by Klarkowski and Williams, the State moved to introduce into evidence the EMD report from Kandutsch's unit the night of June 19. The summary reports indicated Kandutsch's RF transmitter went out of range at 10:03 p.m. Kandutsch objected to the summary reports, arguing that the State supplied an insufficient foundation for them, and that they were inadmissible hearsay. The circuit court admitted the exhibits after concluding they were properly authenticated and generated in the ordinary course of business as an exception to the hearsay rule. At the conclusion of trial, a jury convicted Kandutsch of driving while under the influence of alcohol, fifth and subsequent offense.
¶ 18 On appeal, Kandutsch argued that the circuit court erred by admitting the summary reports without any corresponding expert testimony establishing the accuracy and reliability of the electronic monitoring system. The court of appeals held that the system's operation is not so “unusually complex or esoteric” as to demand the assistance of expert testimony. Kandutsch, No. 2009AP1351–CR, ¶ 10. The court further held that the report was not hearsay because it was...
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