Town of Geneva v. Tills, 84-1969

• Decision Date: 16 April 1986
• Docket Number: No. 84-1969,84-1969
• Citation: 384 N.W.2d 701,129 Wis.2d 167
• Parties: TOWN OF GENEVA, Plaintiff-Respondent, v. William A. TILLS, Jr., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 701

384 N.W.2d 701

129 Wis.2d 167

TOWN OF GENEVA, Plaintiff-Respondent, v. William A. TILLS, Jr., Defendant-Appellant.

No. 84-1969.

Supreme Court of Wisconsin.

Argued Nov. 25, 1985.

Opinion Filed April 16, 1986.

Patrick J. Hudec, East Troy (argued), for defendant-appellant; and Greenwald, Maier & Hudec, P.C., on brief.

Paul E. Kremer, Elkhorn (argued), for plaintiff-respondent; and Seymour, Kremer, Nommensen & Morrissy, on brief.

HEFFERNAN, Chief Justice.

This is an appeal from a judgment of the circuit court for Walworth county which we accepted on certification of the court of appeals. We accepted certification of the question, "whether circuit courts may permit trial testimony by telephone during civil jury cases even though an objection has been raised." We reverse the judgment of the circuit court, which found William A. Tills guilty of violating a traffic ordinance of the Town of Geneva, which conformed to sec. 346.63(1)(a), Stats., operating a motor vehicle while under the influence of an intoxicant (OMVI), and sec. 346.63(1)(b), illegal blood alcohol concentration (IBAC). Because we conclude that, under the facts and circumstances of this case, the trial judge's last minute determination to permit the village's scientific witness, a State Laboratory of Hygiene chemist, to testify by telephone was an abuse of discretion, which deprived the defendant of the opportunity to have a meaningful cross-examination of the witness, we reverse and remand for a new trial.

The defendant pleaded not guilty to this first OMVI offense. He was tried before a jury, which found him guilty on a 5-1 vote.

At the start of the trial, the village's attorney announced that he was having some difficulty in securing the appearance of the State Laboratory of Hygiene chemist, Thomas Neuser, because he was appearing at a homicide trial in Waukesha. Village Attorney Paul Kremer, however, stated that he expected Neuser during the afternoon. Counsel for the defendant and the court acquiesced in accommodating the village even if it meant altering the order of proof.

As the trial developed, there was proof that the defendant was in a roll-over accident in his jeep and that at the time the roll-over accident was discovered Tills was hanging head down in the wreckage. There was evidence that he was bleeding from a compound fracture in one arm and a four-inch gash on his forehead. He stated that he blacked out and, at other times, was confused and in shock. He testified that a stability problem with the jeep had caused him to lose control. One of the state's witnesses, a police officer, on cross-examination, testified to the propensity of this model jeep to lose stability and roll over. Tills admitted he had been drinking earlier in the day, but denied that he was under the influence. Three of the state's witnesses, however, testified that, because of the smell of intoxicants and the defendant's slurred speech and conduct, they believed Tills was intoxicated.

Late in the morning after completion of the rest of his case, counsel for the village announced that he did not yet have his next witness, Chemist Neuser, available for examination.

Apparently--the record is not clear--it was during the noon break that Judge Carlson sua sponte decided that he would call Chemist Neuser by telephone and permit him to be sworn and then examined and cross-examined in the hearing of the jury. That this procedure originated with the judge is indicated by the village attorney's initial reaction, to object to the telephone testimony and to request an adjournment until Chemist Neuser could appear in person. Counsel for Tills repeatedly objected to the judge's proposal. Only after Judge Carlson concluded that there was no time in the immediate future when the trial could be rescheduled, and when he stated he was unwilling to adjourn the ongoing proceeding, did the village attorney ask that the testimony of Chemist Neuser be taken telephonically. That motion was granted over defense objections.

Objection was made for the reason that there was no statutory authority for the use of telephonic testimony at trial. Defense counsel also asserted that he would be unable "to confront the witness personally," that he would be unable to effectively cross-examine, and that the jury could not see the reaction and facial expressions of the witness and would therefore have a problem trying to determine credibility. More specifically, counsel objected because he had intended to cross-examine Neuser by use of a chalk board to explain the blood alcohol test techniques to the jury.

The trial judge disposed of the objections by stating:

"I'm not going to waste anymore time on this. As far as I'm concerned, I have looked it up, and that is the law, so I'm going to allow his testimony by telephone and we'll bring the jury in."

Defense counsel also asserted that the record was devoid of proof that Neuser had been properly served with a subpoena to testify. The trial judge disposed of this matter, pointing out that Neuser had stated he had received a subpoena and would have responded to it had not the judge of the Waukesha trial refused to release him. ¹

The procedure employed by Judge Carlson in telephonically using Neuser's testimony was as follows. During the noon hour in the presence of counsel, but out of the presence of the jury, the judge called Neuser at Waukesha. Neuser acknowledged his identity. ²

Chemist Neuser was questioned by Judge Carlson on his understanding of responsibilities in taking an oath or affirming that his testimony would be the truth. Judge Carlson then, in the preliminary proceeding, administered the affirmation in statutory language (Rule 906.03, Stats.) to Neuser over the telephone. He asked Neuser to raise his right hand during the course of the affirmation, and Neuser stated that he had done so. The court's questions, none of which were objected to at the preliminary stage by either counsel, were to determine the reason for Neuser's nonattendance in the proceedings in the Walworth county circuit court. Neuser stated he was in Waukesha pursuant to a subpoena, that the judge there refused to release him, and that his absence from the trial in Walworth county was for no other reason.

It was after this preliminary telephonic questioning of Neuser that counsel were allowed to make the objections referred to above.

After disposing of those objections, Judge Carlson called the jury into his chambers, where they were able to hear the responses of witness Neuser by means of a speaker phone. ³ Judge Carlson then explained to the jury why Neuser was not at the Walworth county trial even though he had been subpoenaed. He again telephonically administered the affirmation to Neuser, this time in the presence of the jury.

Direct examination of Chemist Neuser revealed that Neuser was a certified public health chemist. Then, pursuant to questions by the counsel for the village, he testified as to the contents of a Blood and Urine Analysis form of the State of Wisconsin. The village counsel asked, "And in Block A how does that read?" To this question, defense counsel objected, saying, "I would object. I have no ability to review that document. I don't know what he's testifying to." The objection was overruled.

By referring to the approximate position in which questions appeared in the standard form, prosecution counsel elicited Neuser's response in respect to each entry Neuser had made in the form following the examination of Tills' blood sample. The information thus elicited revealed the subject's name, William A. Tills, Jr., the date, the purpose of analysis (alcohol), the type specimen (blood), at whose request and by whom the specimen was collected, the acknowledgment of the specimen receipt by the laboratory, and the date and results of the analysis--in this case, "the blood ethanol level was 0.209 per cent by weight."

After satisfying the judge, over defense objections, that a proper foundation for the test results had been laid, Neuser was permitted to testify as to the blood alcohol content (BAC) of Tills' blood--0.209 percent. Eventually, all the pertinent information set forth in the form was allowed in evidence, and Neuser testified telephonically that he had "cause[d] all this information to be incorporated in the report."

Defense counsel then proceeded to attempt cross-examination. Without any difficulty he probed the academic and experience background of the witness.

However, in response to defense counsel's question relating to the level of acetone in Tills' blood, Neuser acknowledged that such information--information relevant to the general BAC revealed on the "Blood/Urine Analysis" form--was recorded on a "strip chart recorder" that was in the possession of the witness, but was not then available for examination by the defense counsel or by the court and jury. Defense counsel objected:

"Then I would object to any--I would object to continuing on this basis. I can't cross-examine the witness properly. The witness--he's testifying to matters which I do not have before me and I'm incapable of proceeding in this fashion."

The objection was not sustained and questioning proceeded. Despite the lack of the strip record on which the objection was based, defense counsel cross-examined the chemist on the theory and general operation of the blood-testing device.

After the termination of the telephonic testimony, counsel again met with the judge. Judge Carlson pointed out that the record revealed that at no time did defense counsel make a pretrial demand for "discovery of the tests of the blood results from the chemist." Judge Carlson went on to say:

"I don't feel that on that ground he would have any expectations at all that that chemist would have any records with him when he came whatsoever. He didn't subpoena the chemist himself or did he demand that those items [gas chromatograph strip recordings] be produced...