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COURT OF APPEALS DECISION DATED AND RELEASED April 15, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1553-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Steven Swenson,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: ROBERT W. LANDRY, Reserve Judge, and MAXINE
A. WHITE, Judge.[1] Affirmed.
Before Fine, Schudson
and Curley, JJ.
PER CURIAM. Steven Swenson appeals from a judgment of
conviction, following a jury trial, for homicide by intoxicated use of a motor
vehicle, in violation of § 940.09(1)(a), Stats.
(1991-92)[2], causing
injury by intoxicated use of a vehicle, contrary to § 940.25(1)(a), Stats., and causing injury by
intoxicated use of a vehicle, contrary to §§ 346.63(2)(a)1 &
346.65(3), Stats. He also appeals from an order denying his
postconviction motion. Swenson
argues: (1) that the trial court
erred in admitting the statement he made to the police near the scene; (2) that
the evidence was insufficient; (3) that the trial court erred in denying his
request for an affirmative defense instruction; and (4) that his eight-year
sentence is unduly harsh. We reject his
arguments and affirm.
I. FACTUAL BACKGROUND
In
the early morning hours of May 25, 1992, Swenson crossed the center line of the
35th Street viaduct and caused a head-on collision killing one person and
seriously injuring two others.
Following the accident, Swenson left the scene and went to a nearby gas
station. Shortly thereafter, City of Milwaukee
Police Officer Matthew Schulz found Swenson in the stall of the gas station's
restroom and questioned him about his facial lacerations. Swenson told the officer that he had been in
a fight. Concerned about Swenson's
welfare, Officer Schulz called for an ambulance. Approximately fifteen minutes later, police arrested Swenson and
escorted him to the Milwaukee County Medical Complex for treatment and blood
work.
After receiving his Miranda[3]
warnings, Swenson waived his rights and stated that he had been driving
northbound on the bridge, had looked down to adjust the radio, and that as he
removed his eyes from the radio and looked up, the crash occurred. A blood test, drawn at 3:40 a.m., established
Swenson's blood alcohol concentration (BAC) at .086%.
II. DISCUSSION
A. Statement
Swenson first argues
that the trial court erred in denying his motion to suppress his first
statement to the police. At the Miranda-Goodchild
hearing, Officer Schulz testified that after he found Swenson hiding in the
restroom of the gas station, he asked Swenson how he was injured. According to Officer Schulz, Swenson
replied, “I was in a fight.” Following
the hearing, the trial court denied Swenson's motion concluding:
Well,
rulings on the various proffered statements by the defendant beginning with the
first one which is ... “I was in a fight,” this [statement] was outside the
requirements of Miranda.
He was not in custody.... It
falls outside of Miranda and will be allowed.
We
agree.
For
Miranda warnings to be required, a person must be in “custody”
and under “interrogation” by the police.
State v. Mitchell, 167 Wis.2d 672, 686, 482 N.W.2d 364,
369 (1992). A person need not be under
formal arrest to be in a custodial status requiring Miranda
warnings. See State v. Pounds,
176 Wis.2d 315, 322, 500 N.W.2d 373, 377 (Ct. App. 1993). To evaluate whether a person is in custody
for Fifth Amendment Miranda purposes, courts must consider the
totality of the circumstances and determine whether a “reasonable person in the
defendant's position would have considered himself or herself to be ‘in
custody,’ given the degree of restraint.”
State v. Swanson, 164 Wis.2d 437, 446-47, 475 N.W.2d 148,
152 (1991). This court independently
reviews a trial court's conclusions about whether certain undisputed facts
establish custody and interrogation. See State v. Lee, 175 Wis.2d
348, 354, 499 N.W.2d 250, 252 (Ct. App. 1993) (application of evidentiary or
historical facts to constitutional principles presents questions of law
independently reviewed on appeal).
Swenson claims that “as
of the time of questioning, [he] was the target of a hit-and-run investigation
and would not have been free to leave the scene. The inquiry by the officer was not for any other purpose than to
derive information linking [him] to the accident, and thereby inculpating
him.” He also contends that the environment
in which he was questioned was isolated and coercive by its very nature.
The State counters by
pointing out that, contrary to Swenson's assertion, the officer who questioned
him about his injuries was not the arresting officer. Further, the State notes, it was Swenson, not the officer, who
selected the location of the questioning.
The State is correct. We
conclude, therefore, that a reasonable person under the same or similar
circumstances would not have believed he or she was in custody. Accordingly, the trial court properly denied
Swenson's motion to suppress his initial statement to the police.
B. Sufficiency of Evidence
Swenson contends that
the evidence was insufficient to convict him of the three crimes. We disagree.
The standards governing
appellate review of the sufficiency of evidence to support a conviction are
well-established.
[I]n
reviewing the sufficiency of the evidence to support a conviction, an appellate
court may not substitute its judgment for that of the trier of fact unless the
evidence, viewed most favorably to the state and the conviction, is so lacking
in probative value and force that no trier of fact, acting reasonably, could
have found guilt beyond a reasonable doubt.
If any possibility exists that the trier of fact could have drawn the
appropriate inferences from the evidence adduced at trial to find the requisite
guilt, an appellate court may not overturn a verdict even if it believes that
the trier of fact should not have found guilt based on the evidence before it.
State
v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990)
(citations omitted). We employ these
standards regardless of whether the trial evidence was direct or
circumstantial. Id. at
503, 451 N.W.2d at 756. We will not
substitute our judgment for that of the jury unless its verdict was based on
evidence that was “inherently or patently incredible—that kind of evidence
which conflicts with the laws of nature or with fully-established or conceded
facts.” State v. Tarantino,
157 Wis.2d 199, 218, 458 N.W.2d 582, 590 (Ct. App. 1990).
The jury clearly had
sufficient evidence upon which to find Swenson guilty. Michelle Powless, the driver of the other
vehicle, testified that the last thing she remembered before the crash was
seeing headlights straight ahead of her in the southbound lane. Officer Charles Harrison, an accident
reconstruction expert, testified that the collision took place in the
southbound lane. From this testimony,
the jury could have inferred that it was Swenson who crossed over onto the
wrong side of the road and caused the accident.
The evidence also
established that Swenson was under the influence of an intoxicant. Officer Schulz testified that when he
encountered Swenson at the gas station, Swenson had poor balance, an odor of
alcohol, and slurred speech. Moreover,
Swenson's behavior—hiding in the stall of the restroom—could have led the jury
to infer that Swenson was trying to avoid detection because he knew that he was
intoxicated.
In addition, the State
introduced two expert witnesses. James
Oehldrich, a forensic scientist in the Toxicology Section of the State Crime
Lab, testified that Swenson's blood alcohol concentration at 3:40 a.m. was
.086%. He calculated that Swenson's
blood alcohol concentration would have been in a range between .101% to .121%
at the time of the accident. Patricia
Field, Chief of the Toxicology Section of the Wisconsin State Laboratory of
Hygiene and Chairperson of the Committee on Alcohol Pharmacology and Technology
for the National Safety Commission, testified that crossing over the center
line of the road would be very consistent with driver intoxication, and that a
BAC of .086% would impair judgment and coordination.
Defense
expert, Roger Burr, offered a different opinion. He testified that Swenson's alcohol concentration could not have
been as high as the State's expert opined.
Burr nevertheless did concede that drinking can cause drowsiness and
crossing a center line on dry pavement could be a symptom of someone who has
had too much to drink.
In cases with
conflicting expert testimony, it is the role of the trier of fact to determine
weight and credibility. Schultz
v. State, 87 Wis.2d 167, 173, 274 N.W.2d 614, 617 (1979). Based on the evidence, the jury, acting
reasonably, could have concluded beyond a reasonable doubt that Swenson was
intoxicated; thus, the evidence was sufficient.
C. Jury
Instructions
Swenson next argues that
the trial court erred in refusing to give his requested affirmative defense
instruction. The trial court rejected
the request, stating that “[t]he affirmative defense has not been presented to
the court. I'm not going to present
it. That will not be included.” We agree with the trial court.
A trial court has wide
discretion regarding jury instructions.
State v. McCoy, 143 Wis.2d 274, 289, 421 N.W.2d 107, 112
(1988). A defendant is entitled to an
instruction on a valid applicable theory of defense only where such instruction
is supported by the credible evidence. Turner
v. State, 64 Wis.2d 45, 51-52, 218 N.W.2d 502, 505-06 (1974). Thus, the question is “whether a reasonable
construction of the evidence [would] support the defendant's [theory of
defense].” State v. Mendoza,
80 Wis.2d 122, 153, 258 N.W.2d 260, 273 (1977).
Under §§ 940.09(2),
940.25(2), and 346.63(2)(b), Stats.,
as amended by 1989 Wis. Act 275, a defendant must establish, by a preponderance
of the evidence, that the death, great bodily harm, or injury “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.”
Swenson contends that he was entitled to the instruction because the
driver of the other vehicle had alcohol in her blood and because the accident
occurred while he was adjusting the radio dial. We disagree.
First, the record does
not establish that Swenson explained his basis for the affirmative defense
instruction. In addition, Swenson's
proposed instructions did not accurately set forth the law. Swenson's proposed instructions stated:
Wisconsin
law provides that it is a defense to the crime charged in this case if you are
satisfied to a reasonable certainty by the greater weight of the credible
evidence that the death would have occurred even if the defendant had not been
under the influence.
The affirmative defense
instruction under the statutes in question requires a defendant to prove that
the death, great bodily harm or injury 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. See §§ 940.09(2),
940.25(2), and 346.63(2)(b), Stats. Swenson's instructions failed to mention
this requirement.
Additionally, based on
the facts of the case, the instructions were inapplicable. The evidence established that Swenson's car
was on the wrong side of the road when it collided with the other vehicle. The other vehicle was in the proper lane and
any alcohol in the other driver's bloodstream was not an intervening
cause. Even if the accident took place
because Swenson was averting his eyes to adjust his radio dial, it resulted
from his own failure to exercise due care, not from an intervening cause. Thus, the trial court correctly denied the
request for an affirmative defense instruction.
D. Sentence
Swenson further claims
that, in sentencing, the trial court erroneously exercised discretion and
ordered a sentence that is unduly harsh.
Swenson contends that the sentencing court “emphasized, to excess, the
impact of the accident to (sic) the public” and gave “inordinate weight to the
outcry and sentiment from the emotional victim's friends and relatives.” We disagree.
In reviewing whether a
trial court erroneously exercised its sentencing discretion, we consider
whether the trial court considered appropriate factors and whether the trial
court imposed an excessive sentence. State
v. Glotz, 122 Wis.2d 519, 524, 362 N.W.2d 179, 182 (Ct. App. 1984). Appellate review is tempered by a strong
policy against interfering with the sentencing discretion of the trial
court. State v. Larsen,
141 Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987). Further, the trial court is presumed to have
acted reasonably, and the defendant bears the burden of showing
unreasonableness from the record. State
v. Echols, 175 Wis.2d. 653, 681-82, 499 N.W.2d 631, 640, cert.
denied, 510 U.S. 889 (1993).
Our review is limited to
a two-step inquiry. We first determine
whether the trial court properly exercised discretion in imposing
sentence. If so, we then consider
whether the trial court imposed an excessive sentence. See Glotz, 122 Wis.2d
at 524, 362 N.W.2d at 182. When a
defendant argues that his or her sentence is unduly harsh or excessive, we will
find an erroneous exercise of discretion “only where the sentence is so
excessive and unusual and so disproportionate to the offense committed as to
shock public sentiment and violate the judgment of reasonable people concerning
what is right and proper under the circumstances.” Ocanas v. State, 70 Wis.2d 179, 185, 233 N.W.2d
457, 461 (1975).
The sentencing court
must consider three primary factors: (1) the gravity of the
offense; (2) the character of the offender; and (3) the need to
protect the public. State v.
Harris, 119 Wis.2d 612, 623, 350 N.W.2d 633, 639 (1984). The trial court may also
consider: the defendant's record; the defendant's history of
undesirable behavior patterns; the defendant's personality, character and
social traits; the presentence investigation reports; the viciousness or
aggravated nature of the defendant's crime; the degree of the defendant's
culpability; the defendant's demeanor at trial; the defendant's age,
educational background and employment record; the defendant's remorse,
repentance or cooperativeness; the defendant's rehabilitative needs; the
rehabilitative needs of the victim; the needs and rights of the public; and the
length of the defendant's pretrial detention.
State v. Jones, 151 Wis.2d 488, 495-96, 444 N.W.2d 760,
763-64 (Ct. App. 1989). Additionally,
the weight given each of these factors is within the trial court's discretion. State v. Curbello-Rodriguez, 119
Wis.2d 414, 434, 351 N.W.2d 758, 768 (Ct. App 1984).
The record reflects the
trial court's consideration of all the required sentencing criteria. The trial court referred to the gravity of
the offense and the need to protect the public from the danger that drunk
drivers pose to the community. The
court referred to the defendant's failure to summon help after the crash, the
lies he told investigating officers, and his previous OWI citation. In addition, the court noted that Swenson,
who was only twenty years old, violated the law just by drinking alcohol. Thus, the record reveals that the trial
court considered the appropriate sentencing factors and adequately explained
the bases for the sentence it imposed.
Further, we do not
conclude that “the sentence is so excessive and unusual and so disproportionate
to the offense committed so as to shock public sentiment and violate the
judgment of reasonable people concerning what is right and proper under the
circumstances.” Ocanas,
70 Wis.2d at 185, 233 N.W.2d at 461.
Although the court sentenced Swenson to the statutory maximum, during
sentencing the trial court was advised that the Wisconsin Legislature had
increased the maximum penalty for violators of § 940.09(1)(a), Stats., from five years to ten years,
effective January 1, 1993. Under the
circumstances, and considering the death and devastation to the victims, the
sentence was not unduly harsh or excessive.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.