COURT OF
APPEALS DECISION DATED AND
RELEASED March
13, 1997 |
NOTICE |
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. 96-2248
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
CITY
OF MADISON,
Plaintiff-Respondent,
v.
DANIEL
W. MILLER,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: SARAH B. O'BRIEN, Judge. Affirmed.
VERGERONT,
J.[1] Daniel W. Miller appeals from a judgment of
conviction for violation of § 12.24(1)(c)(1) Madison
General Ordinance, which adopts § 346.37(1)(c)1, Stats., and requires stopping at a red signal.[2] Miller contends that the trial court erred
by: (1) denying his request to
admit a copy of the Wisconsin Motorist's
Handbook and Study Guide (handbook), (2) failing to grant a
mistrial based upon comments made by the prosecution on the credibility of a
witness, and (3) denying his requested jury instruction on his theory of
defense. We hold that the trial court
properly exercised its discretion in denying the admission of the handbook and
denying the request for a mistrial, and that the trial court properly
instructed the jury. We therefore affirm.
BACKGROUND
Miller
was traveling on East Washington Avenue toward the State Capitol when he was
pulled over by Officer Susan Armagost approximately three blocks past the
intersection of Ingersoll Street and East Washington Avenue. Miller asked Armagost why he was being
stopped and she stated that it was for a red signal violation. Miller told Armagost that he was unable to
stop for the yellow light and proceeded through the intersection. Armagost issued Miller a citation for a red
signal violation.
Miller
challenged the citation before the Madison Municipal Court. The municipal court issued a decision and
order finding Miller guilty of the red signal violation. Pursuant to § 800.14(4), Stats., Miller appealed the verdict to
the Dane County Circuit Court and posted the necessary jury fees.
At
trial, the jury trial in circuit court, Miller attempted to introduce into
evidence two pages from the handbook.
One page dealt with Wisconsin Rules of the Road relating to traffic
lights and the other contained a section entitled, "Keeping A Space
Cushion" which dealt with safe spacing between vehicles. The prosecutor objected to the admission of
the handbook pages as irrelevant because the material did not assist in proving
or disproving the red signal violation.
The prosecutor also argued that the duty regarding following distance is
pertinent only to the following vehicle, not the vehicle in front. The trial court declined to admit the pages,
stating:
The information about stopping on a yellow
light is not relevant and may be confusing to the jury since the allegation
here is that Mr. Miller drove through a red light. The allegation or the information following this two second rule
is not relevant because it applied to the car following, and according to the
argument of counsel, Mr. Miller is the first car in line, not the car
following. He can certainly testify that a car behind him was too close.
I don't think this
manual would prove any additional information to the jury that would assist
them in reaching their decision, and frankly, your client testifies that he was
counting the seconds and watching milestones as the car behind him is driving,
he would have to be looking through his rearview mirror and couldn't very well
see the safety light in front of him.
So, in any event, that exhibit is denied.
The
admission of evidence is addressed to the sound discretion of the trial
court. State v. Jenkins,
168 Wis.2d 175, 186, 483 N.W.2d 262, 265 (Ct. App. 1992). We will affirm the trial court's exercise of
discretion if it has a reasonable basis and was made in accordance with
accepted legal standards and the facts of record. Id.
Miller
contends that the handbook would have explained the reason he did not stop at
the intersection. He claims that he
proceeded through the intersection on a yellow light, not a red light, and that
this evidence was relevant not only to his defense that he did not run the red
light but also explained why he could not safely stop for the yellow light. We are not persuaded.
"Relevant
evidence" is evidence that has "any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." Section 904.01, Stats. The handbook
pages do not make the existence of any fact of consequence more or less
probable. Miller was charged with
running a red light. His defense was
that the traffic light was yellow when he entered the intersection, and he so
testified. The handbook pages do not
make one color of the traffic signal more probable than another. Whether Miller could or could not have
stopped safely on the yellow light is not the issue. The handbook pages would not have provided the jury with any
additional information that would assist it in reaching a verdict. We conclude that the trial court properly
exercised its discretion in refusing to admit the handbook pages.
Next,
Miller contends that the trial court erroneously exercised its discretion in
failing to grant a mistrial based on the prosecutor's comments regarding the
credibility of the State's only witness, Officer Armagost. In closing arguments the prosecutor referred
to Armagost's testimony and stated:
"She was honest from the moment she got up there to the moment she
sat back down." Defense counsel
objected immediately, stating: "I
think the Court determines credibility."
The court responded, "The jury will determine credibility of the
witnesses." The court then
instructed the jury that, "Counsel's opinion about credibility is not
relevant."
After
the jury began deliberation, defense counsel moved for a mistrial. The court denied the motion, stating:
At the time that I heard [the comment] I was satisfied
that instructing the jury that counsel's opinion about the credibility of the
witness is irrelevant was a sufficient curative for any problem that may have
occurred. I am certainly not saying
that the argument was improper, but if it was, I think that that was a sufficient
correction. The motion is denied.
In
reviewing a trial court's denial of a request for a mistrial, we look to see
whether the trial court erroneously exercised its discretion in denying the
motion. State v. Davidson,
44 Wis.2d 177, 194, 170 N.W.2d 755, 764 (1969). We do not reverse unless there has been a clear misuse of
discretion. Id.
We
will assume for purposes of argument that Miller is correct that the
prosecutor's statement is improper comment on credibility. The prosecutor made a single comment, which
was followed immediately by a curative instruction. In addition, the court read the following instructions to the
jury: Wis
J I—Criminal 157, Remarks of Counsel; Wis
J I—Criminal 160, Arguments of Counsel; Wis J I—Criminal 300, Credibility of Witnesses. These advised the jury that remarks of
counsel are not evidence, that counsels' closing arguments, conclusions and
opinions are not evidence, and that they [jurors] are the sole judges of the
credibility of the witnesses and determine the weight and credit given to their
testimony. We presume that jurors
follow the instructions they are given.
State v. Hagen, 181 Wis.2d 934, 948, 512 N.W.2d 180, 185
(Ct. App. 1994). We conclude that the
curative instruction and the other instructions given were sufficient
protection against any prejudice that may have occurred as a result of the
prosecutor's remark.
Finally,
Miller argues that the trial court erroneously denied his request for jury
instructions on his theory of defense.
He requested these non-pattern jury instructions:
(1) When shown with or following the
green, traffic facing a yellow signal stop before entering the intersection
unless so close to it that a stop may not be made in safety. It is a valid
defense to a red signal violation to proceed through the intersection following
safely. If you find from the evidence in this case that the defendant was
unable to make a stop at the red light, you must find him not guilty; and
(2) vehicular
travel facing a red signal shall stop before entering the crosswalk on the near
side of an intersection, or if none, then before entering the intersection or
at such other point as may be indicated by a clearly visible sign or marking
and shall remain standing until green or other signal permitting movement is
shown.
A
trial court has wide discretion in presenting instructions to the jury. State v. Amos, 153 Wis.2d 257,
278, 450 N.W.2d 503, 511 (Ct. App. 1989).
If the instruction given adequately covers the law applied to the facts,
we do not find error even if the refused instructions were not erroneous. Id. A defendant is entitled to an instruction on a valid theory of
defense but not one that merely highlights evidentiary factors. Id.
We
conclude the trial court did not erroneously exercise its discretion in
declining to give the defense's proposed instructions. The trial court instructed the jury that the
plaintiff had the burden of proving, by clear, satisfactory and convincing
evidence, that:
[I]n the course of operating ... [his] vehicle, the
defendant, when facing a red light, failed to stop before entering the
crosswalk on the near side of the intersection, or, if there was no such
clearly visible sign or other marking, or if there was no such sign or marking,
before entering the intersection, and further failed to remain standing until a
green light or other signal permitting movement was shown.
This
instruction adequately instructed the jury on what the prosecution had to prove
for a red signal violation. Miller's
second requested instruction is simply a rephrasing of this. His first requested instruction incorporates
language in § 346.37(1)(a)2(b), Stats.,
concerning what the driver should do when the traffic control signal is
yellow. As we have discussed earlier, a
driver's obligation when facing a yellow signal is not relevant when the charge
is that the driver faced a red signal.
By
the Court.-Judgment affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] Section 346.37(1)(c)1, Stats., provides:
Vehicular traffic
facing a red signal shall stop before
entering the crosswalk on the near side of an intersection,
or if none, then before entering the intersection or at such other point as may
be indicated by a clearly visible sign or marking and shall remain standing
until green or other signal permitting movement is shown.