COURT OF APPEALS DECISION DATED AND FILED September 29, 2009 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 |
IN COURT OF APPEALS |
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DISTRICT III |
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State of Plaintiff-Respondent, v. Matthew J.
Foley, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 BRUNNER, J.[1] Matthew Foley appeals a conviction for operating while under the influence of an intoxicant in violation of Wis. Stat. § 346.63(1)(a) as a second offense. Foley argues that the circuit court admitted unlawfully seized evidence in violation of his constitutional rights. In addition, Foley claims the court erroneously exercised its discretion by refusing to declare a mistrial when the jury was improperly presented with evidence of Foley’s prior OWI conviction. We conclude that the trial court properly denied Foley’s suppression motion, but erroneously denied his request for a mistrial. We remand for a new trial.
BACKGROUND
¶2 James Armstrong, a patrol deputy for fourteen years, testified at trial that on April 22, 2007, he responded to a one-vehicle crash on a state highway. When Armstrong arrived at the scene, Foley was receiving treatment from medical personnel for multiple injuries. Foley was “verbally disagreeable” with the medics and “kept repeating over and over that he was so stupid for having done this.” Armstrong testified that “a person who had been involved in a car crash would most likely want somebody to help them and yet [Foley] was being resistive towards the help that was being offered to him.” Armstrong could detect the odor of intoxicants on Foley, and asked him if he had been drinking. Foley responded that he had consumed a twelve pack.
¶3 Armstrong further testified that based on his experience and the totality of the circumstances, he concluded “the primary cause of the crash was most likely intoxicants.” April 22 was a clear day, road conditions were good, and the accident occurred in daylight. There were no obvious signs of a second vehicle occupant and no other person at the scene was injured. Armstrong concluded that “had that vehicle been driven prudently, [there was no reason that] it would have wound up traveling across an intersection, overturning numerous times, and landing on its roof.” Based on similar testimony during a suppression hearing, the circuit court found that Armstrong had probable cause to detain Foley for a blood draw after he failed field sobriety tests.
¶4 Foley’s defense theory at trial focused on his identity as the driver. Foley claimed that Armstrong hastily concluded that he was the driver even though Armstrong did not personally observe him operating the car. Foley argued that no one knew the precise time of the accident. The State did not submit any fingerprint or DNA evidence to prove Foley was the driver, a point Foley emphasized at trial. When Foley asked why no fingerprint or DNA evidence was taken, Armstrong testified that the crime lab would not process the evidence unless a felony was involved.
¶5 The forensic evidence questioning led to an exchange that forms the basis for this appeal. Prior to trial, Foley stipulated to the element of the offense requiring proof of a prior OWI conviction. During cross-examination, the court advised Armstrong that “if a question invites a yes or no answer, it really helps the case speed along and helps the jury understand it if you just answer yes or no.” Despite the stipulation and the court’s admonition, the following exchange occurred in the jury’s presence:
Q. This is a criminal charge, isn’t it,
Officer?
A. This is a second offense O.W.I. –
The judge immediately dismissed the jury and Foley moved for a mistrial, which the judge denied. The trial continued and the jury convicted Foley.
DISCUSSION
¶6 Foley first argues that Armstrong lacked probable cause to detain
him for blood testing after he failed the field sobriety tests. Whether an arrest is supported by probable
cause is a question of constitutional fact.
State v. Popke, 2009 WI 37, ¶10, 317
¶7 Probable cause refers to the “quantum of evidence within the
arresting officer’s knowledge at the time of the arrest which would lead a
reasonable police officer to believe that the defendant probably committed or
was committing a crime.” State
v. Secrist, 224
¶8 Foley claims that numerous factors undermine the circuit court’s probable cause determination. Foley argues that we should reverse the suppression decision because no one observed him driving the car. Foley dismisses his failure of the field sobriety tests, claiming he was prejudiced by “the lack of a standardized field sobriety test for people in his condition.” In short, Foley maintains his trial strategy on appeal and argues that Armstrong jumped to conclusions.
¶9 We disagree and conclude that Armstrong had probable cause to believe Foley was operating while intoxicated. The one-car rollover occurred on a clear day with good road conditions. Armstrong observed only one injured person at the scene being treated by medics. He detected the odor of alcohol on Foley when he approached and Foley admitted that he had been drinking. Armstrong heard Foley make several other incriminating statements and Foley failed the field sobriety tests. The totality of the circumstances surrounding the scene gave Armstrong probable cause to believe that Foley was operating while intoxicated. The trial court committed no error in denying Foley’s suppression motion.[2]
¶10 Next, Foley argues that the trial court should have declared a
mistrial when the jury heard Armstrong’s testimony regarding Foley’s prior OWI
offense. Declaring a mistrial is an
act within the sound discretion of the trial court. State v. Thurmond, 2004 WI App 49,
¶10, 270
¶11 Our decision on this issue is controlled by State
v. Alexander, 214
[W]e hold that when the sole purpose of introducing any evidence of a defendant’s prior convictions ... is to prove the status element and the defendant admits to that element, its probative value is far outweighed by the danger of unfair prejudice to the defendant. We hold that admitting any evidence of the defendant’s prior convictions ... and submitting the status element to the jury in this case was an erroneous exercise of discretion.
¶12 Here, as in Alexander, the trial court erroneously exercised its discretion by denying Foley’s mistrial motion. The court refused to declare a mistrial because it found that “the public is well informed now about the O.W.I. laws to know that [the] first offense is not a criminal offense.” The court erred by assuming all jurors understand the distinction between a first- and second-offense OWI. No evidence in the record supports the court’s assumption that most jurors know the noncriminal nature of first offense OWI. The court’s speculation that “60 to 75 percent of the population know if it’s a criminal offense it has to be at least a second” is similarly unfounded. The trial court’s decision to deny the mistrial motion cannot be considered an appropriate exercise of discretion given such faulty reasoning.
¶13 The State does not argue that Armstrong’s testimony has value independent of proving the status element. Instead, the State attempts to distinguish Alexander because in that case the prosecution elicited the offending statement from the witness and here the witness was under cross-examination by the defense. We do not see the relevance of the State’s distinction. Foley’s question was proper in light of earlier testimony that the State took fingerprints and tested DNA only in felony cases. The court previously cautioned the officer to provide “yes” or “no” answers. Armstrong, an experienced veteran of the police force, ignored the court’s admonition and provided an answer he knew to be improper and unresponsive.[4] We cannot ascertain how the identity of the party examining the witness could have dispositive significance under these facts.
¶14 “[P]rejudice to a defendant is presumptively erased from the
jury’s collective mind when admonitory instructions have been properly given by
the court.” Roehl v. State, 77
Wis. 2d 398, 413, 253 N.W.2d 210 (1977); see also State v. Payano, 2009 WI 86, ¶99, 768
N.W.2d 832. “The jury is presumed to follow
all instructions given.” State
v. Grande, 169
¶15 Finally, Foley argues that the district attorney failed to lay
a proper foundation for the admission of the blood draw evidence pursuant to Wis. Stat. § 885.235(1g). We decline to reach that issue in light of
the remand for a new trial.
By the Court.—Judgment reversed and cause remanded with directions.
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. § 752.31(2). All references to the Wisconsin Statutes are
to the 2007-08 version unless otherwise noted.
[2] We note that Foley’s citation to State
v. Swanson, 164
[3] The State notes that “[i]nterestingly, in
State
v. Alexander[, 214
[4] Immediately prior to the prejudicial testimony, Armstrong inquired whether he was allowed to answer whether this was a criminal case. The court advised Armstrong that he could, no doubt assuming that he would act in accordance with the numerous instructions to answer questions with a “yes” or “no.” Armstrong acknowledged that he understood defense counsel was not soliciting the answer he provided.