State v. Sohn
| Decision Date | 29 March 1995 |
| Docket Number | No. 94-1414-CR,94-1414-CR |
| Citation | 535 N.W.2d 1,193 Wis.2d 346 |
| Court | Wisconsin Court of Appeals |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Wayne L. SOHN, Defendant-Appellant. d |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Andrew H. Morgan of Charlton Law Firm, Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and James M. Freimuth, Asst. Atty. Gen.
Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.
Wayne L. Sohn appeals from a judgment of conviction for homicide by intoxicated use of a vehicle pursuant to § 940.09, STATS. On appeal, Sohn argues that the trial court: (1) improperly admitted evidence of Sohn's sixteen prior convictions, (2) improperly compelled Sohn to testify when it made a mid-trial ruling that the evidence did not then support a jury instruction on Sohn's affirmative defense pursuant to § 940.09(2), and (3) erroneously ruled that a tractor is a "vehicle" for purposes of criminal liability under § 940.09. We reject all of Sohn's arguments and affirm the judgment of conviction.
At approximately 10:15 p.m. on the evening of June 8, 1993, a motorist came to Sohn's residence and informed him that as a result of an earlier storm, a large tree had fallen west of Sohn's residence and was obstructing the county highway. The motorist asked Sohn to contact the appropriate authorities. Shortly thereafter, Calumet County Sheriff's Lieutenant Jeff Williams, police officer Mark Growe and several utility workers arrived at the scene of the fallen tree.
Sohn, later described by witnesses as being visibly intoxicated, offered the use of his tractor to remove the fallen tree. After the utility workers attached the tree to the tractor, Sohn towed the tree back to his home, following a squad car driven by Williams. Sohn unhooked the tree in his front yard and then drove the tractor on the highway back towards the utility workers. Sohn was operating the tractor with one tire on the pavement and the other tires on the shoulder of the highway. The tractor had an estimated maximum speed of fourteen miles per hour.
En route, Sohn's tractor struck and killed Williams, who was on the shoulder of the highway attempting to light a flare. Williams's squad car was stopped on the opposite side of the highway with its lights on and the trunk and door open. The accident occurred at approximately 11:35 p.m and Sohn immediately ran to the utility workers for assistance.
At about 12:05 a.m. on June 9, Sohn was arrested for operating a vehicle while intoxicated. A 2:43 a.m. breath test revealed that he had a blood alcohol concentration of .22%. Sohn was charged with two counts of homicide by intoxicated use of a vehicle in violation of § 940.09(1)(a) and (b), STATS. On October 7, 1993, after a three-day trial, a jury found Sohn guilty of both charges. Pursuant to § 940.09(1m), a single judgment of conviction was entered against Sohn. He appeals.
We will recite additional facts as we address the appellate issues.
Sohn first argues that the trial court improperly admitted evidence of his sixteen prior convictions. He argues that the evidence was inadmissible other acts evidence under § 904.04(2), STATS., which prohibits the use of other crimes, wrongs or acts "to prove the character of a person in order to show that the person acted in conformity therewith." He contends that the trial court failed to identify a permissible exception under § 904.04(2) for admitting evidence of the prior convictions. 1
The admissibility of evidence is a discretionary ruling for the trial court. See State v. Kuntz, 160 Wis.2d 722, 745, 467 N.W.2d 531, 540 (1991). Our inquiry is not whether this court would have admitted the evidence, but is limited to whether the trial court acted in accordance with accepted legal standards and the facts of record. Id. This court will uphold the trial court's ruling if there exists a reasonable basis for the trial court's determination. See id. at 745-46, 467 N.W.2d at 540.
Sohn's appellate argument misses the focus of the State's use of the prior convictions and the basis of the trial court's ruling permitting use of the evidence. As noted, Sohn brings the issue to us under § 904.04(2), STATS. However, the State did not proffer, and the court did not admit, the evidence under that statute. Instead, the evidence was used for impeachment purposes pursuant to § 906.09, STATS. 2
When evidence of prior convictions is admitted for impeachment purposes under § 906.09, STATS., the scope of the inquiry is very limited. State v. Rutchik, 116 Wis.2d 61, 76, 341 N.W.2d 639, 646 (1984). The witness may be asked if he or she has ever been convicted of a crime and, if so, how many times. Id. If the witness's answers are truthful and accurate, then no further inquiry may be made. Kuntz, 160 Wis.2d at 752, 467 N.W.2d at 543.
At trial, the State cross-examined Sohn and asked whether he had ever been convicted of a crime. When Sohn replied that he had, the State asked how many times. Sohn responded that he had been convicted sixteen times, and the State ended its inquiry.
Sohn makes no appellate argument against the evidence under § 906.09, STATS. We affirm the trial court's ruling.
Next, Sohn contends that the trial court improperly compelled him to take the stand in his own defense in order to support his affirmative defense pursuant to § 940.09(2), STATS. This statute provides:
The defendant has a defense if he or she proves by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant or did not have a blood alcohol concentration described under sub. (1)(b) or (bm) or (1g)(b). 3
During the course of the defense case, but before Sohn himself testified, Sohn asked the trial court to rule that the evidence supported a jury instruction pursuant to the statute. The trial court ruled that the evidence to that point did not support the instruction. Thus, in order to obtain the instruction, Sohn did testify. And, after the close of evidence, the trial court granted Sohn's request for the affirmative defense under § 940.09(2), STATS.
On appeal, Sohn argues that had the trial court correctly evaluated the evidence at the time he requested the instruction, he would not have testified and he would not have suffered the substantial impeachment caused by his prior convictions.
We do not address the trial court's mid-trial ruling on the merits. Generally, the procedure for instructions in criminal cases is the same as that provided in civil actions. Section 972.01, STATS. 4 Section 805.13(3), STATS., requires that the trial court conduct an instructions conference with counsel "[a]t the close of the evidence." 5 (Emphasis added.) While this statute permits a party to request an instruction prior to the instructions conference, it does not contemplate the court making definitive jury instructions rulings before the evidence is closed.
Section 972.10, STATS., is also pertinent to our discussion because Sohn was requesting an instruction unique and special to the facts of this case. This statute provides in part:
Order of trial. .... (5) When the evidence is concluded and the testimony closed, if either party desires special instructions to be given to the jury, the instructions shall be reduced to writing, signed by the party or his or her attorney and filed with the clerk, unless the court otherwise directs. Counsel for the parties ... shall be allowed reasonable opportunity to examine the instructions requested and to present and argue to the court objections to the adoption or rejection of any instructions requested by counsel. The court shall advise the parties of the instructions to be given. [Emphasis added.]
Like § 805.13(3), STATS., regarding instructions generally, § 972.10(5), regarding specific instructions, also envisions the trial court making its instructional rulings "[w]hen the evidence is concluded and the testimony closed."
Therefore, under either statute, the trial court's mid-trial ruling was premature. We properly reserve our appellate review of a trial court's instructional rulings based upon the totality of the evidence and the applicable law. Because Sohn was not entitled to a mid-trial "advisory" ruling by the trial court, we do not consider his argument that the trial court somehow erred in that decision. The trial court's ruling was in the nature of a nonbinding advisory opinion which does not form a proper basis for an appeal by Sohn on the issue. See Heideman v. American Family Ins. Group, 163 Wis.2d 847, 867, 473 N.W.2d 14, 22 (Ct.App.1991).
A party is not entitled to obtain periodic rulings during trial as to whether the partial evidence supports contemplated jury instructions. If we ruled otherwise, we would markedly alter traditional jury trial procedure and the traditional role of the trial judge in the matter of jury instructions. The trial judge would become an unwitting partner in the strategic decisions properly left to trial counsel. 6
Last, Sohn argues that a tractor is not a "vehicle" within the meaning of the homicide by intoxicated use of a vehicle statute, § 940.09(1), STATS.
Sohn bases his argument on Schanke v. Wisconsin County Mut. Ins. Co., 177 Wis.2d 746, 754, 502 N.W.2d 866, 869 (Ct.App.1993), in which we held that a motor grader was not a motor vehicle for purposes of the municipal liability statute, § 345.05, STATS. That question was governed by whether the grader was a motor vehicle not exempt from registration under § 341.05, STATS. Schanke, 177 Wis.2d at 750, 502 N.W.2d at 867. We concluded that the grader was "road machinery" as...
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