Town of Bloomfield v. Barashki, 2015AP226.
| Decision Date | 24 June 2015 |
| Docket Number | No. 2015AP226.,2015AP226. |
| Citation | 364 Wis.2d 529,868 N.W.2d 200 (Table) |
| Parties | TOWN OF BLOOMFIELD, Plaintiff–Respondent, v. Petko Zvetkov BARASHKI, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
¶ 1 In this unusual case we exercise our discretionary power of reversal under Wis. Stat. § 752.35 as: the court erred in its admission of an insufficient municipal court transcript at a de novo trial; the Town of Bloomfield did not establish grounds that its only witness was “unavailable” for purposes of admitting hearsay testimony under Wis. Stat. § 908.04(1)(e) ; and critical questions exist regarding the credibility of the Town's “unavailable” witness.
¶ 2 Town of Bloomfield police officer Aaron Henson stopped Petko Barashki's vehicle on the evening of September 1, 2013, and cited Barashki with operating a vehicle while intoxicated and operating a vehicle without registration lamps, and accused him of improperly refusing to provide a sample of his blood. Barashki, pro se, challenged the stop and the citations before the municipal court on July 10, 2014. The municipal court found that the stop was legal and prevented Barashki from questioning Henson about cash that was in Barashki's car. After Barashki was found guilty of all charges, he appealed to the circuit court for a trial de novo.
¶ 3 The trial de novo occurred on December 1, 2014. Barashki again appeared pro se. The Town submitted the transcript from the July 10, 2014 municipal court trial, claiming that Henson was “unavailable.” The circuit court allowed the transcript to serve as Henson's testimony and, upon consideration of the transcript and Barashki's testimony, found the stop was supported by reasonable suspicion and that Barashki was guilty of all charges.
¶ 4 Barashki appeals to this court. The Town appropriately argues that as Barashki did not supply us with a transcript of the circuit court trial we should assume that all facts supporting the convictions were presented at trial. See T.W.S., Inc. v. Nelson, 150 Wis.2d 251, 254–55, 440 N.W.2d 833 (Ct.App.1989). While the failure to provide a transcript often dooms an appellant's arguments, in this case we were left with the question as to why Henson was “unavailable.” The record supplies the answer. The record reflects that on April 29, 2014, prior to Barashki's municipal court trial, Henson was charged with felony misconduct in office—he was stealing money. See court record in Walworth county case No.2014CF177.2 On July 2, 2014, Henson was arraigned, and on October 13, 2014, Henson pled guilty and was sentenced to jail by the same circuit court judge who presided at Barashki's trial.
¶ 5 Barashki appeals his conviction on the basis that the evidence does not show that Henson had reasonable suspicion to stop his vehicle for nonworking registration lamps. We agree.
¶ 6 In its request to the circuit court to use the transcript from the municipal court trial, the Town claimed that Henson was not cooperating nor agreeing to testify. The circuit court allowed the transcript in lieu of Henson's personal appearance, but therefore had to rely on Henson's testimony found in the municipal court transcript to evaluate “those facts known to the officer at the time of the stop” in its reasonable suspicion analysis. See State v. Washington 2005 WI App 123, ¶ 16, 284 Wis.2d 456, 700 N.W.2d 305 (). Our review of the transcript does not reveal evidence from which the court could determine that Henson saw Barashki operating a vehicle with nonworking registration lamps prior to the stop. On this point, the transcript provides:
The transcript reflects that Henson stopped Barashki after observing him flash his high-beam lights. The transcript does not include any testimony regarding Henson's observations of Barashki's registration lamps before the stop. Nor, we note, does the transcript contain any testimony regarding Henson's training and experience against which his observations can be evaluated.3 The transcript also reflects that Henson was never sworn in as a witness at Barashki's trial (the municipal court felt it sufficient that he had been sworn in on other cases) and that Henson's “expertise” as an officer and in field sobriety tests was accepted without any testimony as the municipal court had heard Henson testify in other cases on those issues.4 We also observe that as Henson did not appear, Barashki could not question Henson's credibility, including the fact that Henson was no longer an officer and had been convicted of theft. Barashki was also prevented at the municipal trial from questioning Henson about the alleged discrepancy in the amount of cash reported to be in his car the night of the arrest.
¶ 7 Despite these glaring omissions in the transcript and questions that should have been raised about the credibility and motives of Henson, the circuit court found that the Town had provided sufficient evidence to support the stop of Barashki's vehicle as well as each of the elements necessary for his conviction on the charges. The transcript does not support the circuit court's finding that “[t]he Bloomfield officer stopped Defendant for driving while his registration lamps were not working.” As the transcript would be the only source for such a finding, this finding was clearly erroneous and cannot support a decision that there was reasonable suspicion for the stop.5 Absent reasonable suspicion, evidence related to Henson's observations of Barashki's intoxication, the blood test, and Barashki's refusal to voluntarily consent to the blood test should have been suppressed at trial.
¶ 8 The transcript bears similar flaws as it relates to the evidence of Barashki's refusal to take a blood test. Under Wis. Stat. § 343.305, a driver who is found to have improperly refused to take a blood test shall have his or her driving privileges revoked. However, if law enforcement does not follow the statutory procedures, including substantially complying with the duty to inform the driver of his or her rights under the law per § 343.305(4), then the State forfeits its opportunity for revocation based on an unreasonable refusal. See State v. Piddington, 2001 WI 24, ¶ 33, 241 Wis.2d 754, 623 N.W.2d 528 ; State v. Zielke, 137 Wis.2d 39, 49, 403 N.W.2d 427 (1987). A law enforcement officer's compliance with § 343.305(4) “is based upon the objective conduct of that officer, rather than upon the comprehension of the accused driver.” Piddington, 241 Wis.2d 754, ¶ 21, 623 N.W.2d 528.
¶ 9 Relevant to the refusal allegation, the municipal court transcript provided the following exchanges:
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