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COURT OF APPEALS DECISION DATED AND FILED April 22, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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Appeal No.� |
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STATE OF WISCONSIN��� |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of ��������� Plaintiff-Respondent, ���� v. David R.
Knapp, ��������� Defendant-Appellant. |
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����������� APPEAL
from a judgment of the circuit court for
�1������� HIGGINBOTHAM, J.[1] David Knapp appeals a judgment of conviction for operating while intoxicated, third offense, entered upon a jury verdict, and an order denying his motion for mistrial.� Knapp moved for a mistrial after the jury heard inadmissible testimony suggestive of a prior conviction.� Knapp argues that the trial court misused its discretion in denying his motion for a mistrial because it applied the wrong legal standard in deciding the motion, and because the underlying defect in the proceedings was prejudicial to him.� Knapp is correct that the trial court failed to apply the proper standard to the mistrial motion.� Nonetheless, we conclude that the court did not err in denying his motion for a mistrial because the inadmissible testimony suggesting Knapp had a prior conviction was not sufficiently prejudicial to warrant a new trial.� We therefore affirm.
�2������� The following undisputed facts are taken from the trial transcript in this case.� Before trial, the court granted a motion to exclude evidence of Knapp�s prior OWI adjudications.� During opening statements, the defense stated that Knapp would testify.� The second witness called by the State, Chief of Police Brent McDonald, testified that, upon Knapp�s arrest at his home, �[Knapp] stated that he wanted to go in and let his girlfriend Rita know that he was going to jail again,� and that �[Knapp] walked over towards the bedroom and stuck his head in the door and commented to Rita that he was going to jail again.�� Knapp� moved for a mistrial on grounds that� the officer�s references to Knapp �going to jail again� was evidence of a prior conviction.� The court denied the motion, concluding that there was no manifest necessity for a new trial.��
�3������� The trial continued after the judge denied Knapp�s motion for a mistrial.� Knapp took the stand during his case in chief. �On cross-examination, Knapp testified to having one prior criminal conviction.� No evidence was presented regarding the nature of the prior offense for which Knapp was convicted.� Ultimately, the jury found Knapp guilty of operating a motor vehicle while intoxicated and operating a motor vehicle with a prohibited alcohol concentration.� A judgment of conviction was entered for operating a motor vehicle while intoxicated, third offense.�
�4������� A trial court addressing a motion for a mistrial �must
decide, in light of the entire facts and circumstances, whether the defendant
can receive a fair trial� despite the claimed error.� State v. Ford, 2007 WI 138, �29, 306
�5������� Knapp argues that the trial court erroneously exercised its
discretion in denying his motion for a mistrial by deciding it under the �manifest
necessity� standard. �Knapp is correct
that the court erred in considering whether a manifest necessity existed for a
mistrial, the standard applicable when the State moves for a mistrial over the
defendant�s objection, State v. Seefeldt, 2003 WI 47, �19,
261 Wis. 2d 383, 661 N.W.2d 822, or when the basis for a defendant�s mistrial
motion is alleged laxness or overreaching by the State.� State v. Bunch, 191
�6������� Despite a court�s failure to use the correct legal standard,
we may nonetheless affirm �if we can independently conclude that the facts of
record applied to the proper legal standards support the court�s decision.�� �Rogers
v. Rogers, 2007 WI App 50, �7, 300
�7������� The officer�s testimony about Knapp�s references to �going to jail again� support an obvious inference that Knapp had a prior criminal conviction.� However, Knapp himself testified that he had a prior conviction.� Had the jury heard testimony that this prior conviction was for operating a motor vehicle while intoxicated, such evidence might well have tainted the jury�s deliberations in this case.� But nothing in the officer�s testimony about Knapp�s statements that he was �going to jail again� suggests that Knapp�s prior conviction was for intoxicated operation of a motor vehicle.� Knapp provides no further argument explaining how this testimony materially prejudiced his case.� Thus, we conclude that the claimed defect in the proceedings was not sufficiently prejudicial to Knapp to warrant a mistrial.[2]� We therefore affirm the trial court�s denial of Knapp�s motion for a mistrial.�
����������� By the Court.�Judgment affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)(4).
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.21(2)(d) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Any hint of prejudice resulting from the officer�s testimony could have been mitigated by a remedial instruction to the jury.� No such instruction was requested in this case, and none was given by the court.���