State v. Zivcic

• Decision Date: 29 June 1999
• Docket Number: No. 98-1381., No. 98-0909
• Citation: 598 N.W.2d 565,229 Wis.2d 119
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Rodney G. ZIVCIC, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

229 Wis.2d 119

598 N.W.2d 565

STATE of Wisconsin, Plaintiff-Respondent, v. Rodney G. ZIVCIC, Defendant-Appellant.¹

Nos. 98-0909, 98-1381.

Court of Appeals of Wisconsin.

Submitted on briefs April 6, 1999.

Decided June 29, 1999.

On behalf of the defendant-appellant, the cause was submitted on the briefs of John J. Carter of Law Offices of John J. Carter of Greenfield.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of E. Michael McCann, district attorney by Mary Anne Smith, assistant district attorney of Milwaukee.

Before Wedemeyer, P.J., Fine and Curley, JJ.

WEDEMEYER, P.J.

Rodney G. Zivcic appeals from a judgment entered after a jury convicted him of operating a motor vehicle while under the influence of an intoxicant (third offense), contrary to §§ 346.63(1) and 346.65(2), STATS. He also appeals from an order finding that Zivcic improperly refused to provide a breath sample under Wisconsin's Implied Consent Law, contrary to § 343.305, STATS.² Zivcic raises four issues: (1) whether he is entitled to a new trial based on our supreme court's decision in State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998), which held that § 756.096(3)(am), STATS., 1995-96, ("A jury in misdemeanor cases shall consist of 6 persons.") was unconstitutional; (2) whether the Milwaukee County deputy sheriff illegally arrested him because the arrest occurred in the City of Greenfield and the sheriff's department has not complied with the requirements of § 175.40(5)(d), STATS.; (3) whether the trial court erroneously exercised its discretion in admitting expert testimony regarding a field sobriety test; and (4) whether the trial court erroneously exercised its discretion in admitting the "deficient sample" printout on the test record card printed by the Intoxilyzer 5000, which was utilized to attempt Zivcic's breath test following his arrest. Because Zivcic did not raise any objection to the six-person jury, because the deputy had authority, pursuant to § 59.28(1), STATS., to arrest Zivcic, and because the trial court did not erroneously exercise its discretion in rendering the evidentiary rulings, we affirm.

I. BACKGROUND

On December 18, 1996, Milwaukee County Deputy Sheriff Michael Pauley was patrolling the I-43 expressway. At about 3:50 a.m., he exited I-43 at 84th Street in the City of Greenfield. A motorist informed him that there was a person passed out or slumped over the wheel of a running vehicle near the intersection of 84th Street and Coldspring Road. The deputy investigated and found Zivcic asleep in his parked vehicle with the motor running. Deputy Pauley reached into the vehicle to turn off the motor and attempted to wake Zivcic. When Zivcic awoke, Deputy Pauley asked him to perform several field sobriety tests. Deputy Pauley also smelled a very strong odor of alcohol inside the vehicle and on Zivcic. He also noticed that Zivcic's eyes were red and bloodshot.

Deputy Pauley administered the horizontal gaze nystagmus test (HGN) and the alphabet test. Zivcic's speech was slurred at times and there was an open twelve-pack of beer in the front of the passenger section of Zivcic's vehicle, with only two unopened cans. Zivcic was arrested and transported to the sheriff's substation for Intoxilyzer testing.

Deputy Sheriff David Szibel attempted to administer a breath test to Zivcic using an Intoxilyzer 5000 machine. Zivcic blew into the machine, but did not blow enough air to provide an adequate sample. The Intoxilyzer machine printed on the test record card that the breath samples were a "deficient sample."

A criminal complaint was issued charging Zivcic with operating a motor vehicle while under the influence of an intoxicant (third offense), and alleging that he refused to submit to the breath test. Zivcic filed a pretrial motion seeking dismissal for lack of jurisdiction or to suppress evidence obtained as the result of an illegal arrest. The motion was denied.

On October 1, 1997, the refusal hearing was conducted, after which the trial court found Zivcic had improperly refused the breath test. The case proceeded to trial before a six-person jury in compliance with § 756.096(3)(am), STATS. Zivcic did not object to the six-person jury, did not request a twelve-person jury, and did not raise an issue as to whether the statute was unconstitutional.

The jury found Zivcic guilty. He now appeals.

II. DISCUSSION

A. Is Zivcic entitled to a new trial with a twelve-person jury?

[1]

Zivcic claims that he is entitled to a new trial, this time with a twelve-person jury deciding his fate. His argument is based on the Hansford decision, which held that the statute proscribing a six-person jury panel for misdemeanor cases violates the Wisconsin Constitution. See Hansford, 219 Wis. 2d at 245,

580 N.W.2d at 179. He contends that the Hansford ruling should be applied retroactively. We reject Zivcic's claim that he is entitled to a new trial before a twelve-person jury.

Whether Hansford should be applied retroactively is an issue of first impression. In addressing this question, we acknowledge that State v. Koch, 175 Wis. 2d 684, 499 N.W.2d 152 (1993) held that "`a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a "clear break" with the past.'" Id. at 694, 499 N.W.2d at 158 (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). We note, however, that although the Hansford holding applies to all cases "pending on direct review," it applies only to those cases where the issue was raised before the trial court.

[2]

The rationale for requiring retroactive application to all cases pending on direct review was that to apply the new rule only to the fortunate case in which the issue was decided, would be unfair to all the other appellants who had similarly preserved the issue, but were not the first in the appellate queue. See Griffith, 479 U.S. at 323

. The Griffith court explains the reasoning:

As a practical matter, of course, we cannot hear each case pending on direct review and apply the new rule. But we fulfill our judicial responsibility by instructing the lower courts to apply the new rule retroactively to cases not yet final. Thus, it is the nature of judicial review that precludes us from "[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule."

Id. at 323 (quoted source omitted). To be a "similar" case, of course, the issue must have been preserved in the trial court — as it was in Griffith, 479 U.S. at 317, 319; Koch, 175 Wis. 2d at 692, 499 N.W.2d at 157 (preserving claim to which subsequently announced ruling by United States Supreme Court applied), and Hansford, 219 Wis. 2d at 232, 580 N.W.2d at 174. By seeking reversal and a new trial based on an argument that he did not make before the trial court, Zivcic seeks not parity with Hansford, Koch and Griffith, but an advantage that would ignore the general rule that, except for unusual circumstances, even constitutional issues must be raised in the trial court before they must be considered on appeal. See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501, 505 (1997)

.³ Although undoubtedly there is some advantage to a defendant to have more rather than fewer jurors, because that increases the numerical chance for a hung jury, that advantage does not require overturning a fair, error-free trial on a ground that Zivcic did not raise before the trial court.

B. Sheriff's Jurisdiction.

Zivcic also claims that Deputy Pauley did not have the legal authority to arrest him because the arrest occurred in the City of Greenfield. He argues that in order for the Milwaukee County Sheriff's Department to have jurisdiction, it would have had to comply with the requirements of § 175.40(5)(d), STATS.⁴ We do not agree.

[3]

The Milwaukee County Sheriff's Department derives its territorial jurisdiction from § 59.28(1), STATS.: "Sheriffs and their undersheriffs and deputies shall keep and preserve the peace in their respective counties ...." Thus, this statute plainly states that the sheriff's department has general jurisdiction throughout Milwaukee County to issue citations, make arrests, and conduct other investigations that are necessary to preserve the peace within the county. It is undisputed that, although the arrest in the instant case occurred in the City of Greenfield, the City of Greenfield is in the County of Milwaukee. Thus, the sheriff's department does not need any additional authority to arrest a person within their territorial jurisdiction and, therefore, § 175.40(5)(d), STATS., is not applicable here.

C. Admission of Expert Testimony.

Zivcic next argues that the trial court erred when it admitted certain expert testimony. Specifically, Zivcic objects to the testimony of Deputy Pauley regarding his administration of the HGN field sobriety test. Zivcic argues that Pauley was not properly qualified to proffer such testimony.

A trial court's decision to admit or exclude expert testimony is a discretionary determination that is made pursuant to Rule 901.04(1), Stats. The decision will not be upset on appeal if it has "a reasonable basis" and was made "`in accordance with accepted legal standards and in accordance with the facts of record.'" A determination of whether a proffered expert witness should be permitted to testify requires an evaluation of whether the testimony will "assist" the jury. Generally, expert testimony will assist the jury when the issue to be decided requires an analysis that would be difficult for the ordinary person in the community.

State v. Blair, 164 Wis. 2d 64, 74-75, 473 N.W.2d 566, 571 (Ct. App. 1991) (citations omitted). Based on this standard of review, we...