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COURT OF APPEALS DECISION DATED AND RELEASED June
1, 1995 |
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. 94-2175
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COUNTY
OF DANE,
Plaintiff-Respondent,
v.
JAMES
V. BUCHANAN,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: MARK J. FARNUM, Judge. Affirmed.
SUNDBY,
J. Appellant James V. Buchanan appeals from a judgment entered
after a trial to the court convicting him of speeding.[1] He presents the following issues:
(1)
Did the trial court err when it determined that the sheriff's deputy properly
operated the moving radar unit and that the County met its burden to show that
Buchanan operated his vehicle in excess of the posted speed limit? We conclude that the trial court did not
err.
(2)
Did the trial court err as a matter of law when it drew an inference of guilt
from Buchanan's failure to testify? We
conclude that the trial court's statement relative to inferences which could be
drawn from Buchanan's failure to testify was merely a response to statements
defense counsel made during closing argument.
The trial court's decision does not show that the court relied on
Buchanan's failure to testify.
We
therefore affirm the judgment.
On
April 21, 1994, Dane County Deputy Sheriff William J. Farmer was proceeding
westbound on U.S. Highway 18/151 when he observed a vehicle proceeding
eastbound travelling at a high rate of speed.
Farmer estimated the vehicle's speed at approximately eighty miles per
hour. The speed limit at that location
was fifty-five miles per hour. Upon
cresting a hill, Farmer beamed in on Buchanan's vehicle. He received both a visual and audio reading
of eighty-one miles per hour and eighty-two miles per hour. Farmer estimated he was approximately 200 to
300 feet from Buchanan's vehicle when he first activated the radar.
Farmer
used a moving radar system with the tradename H.A.W.K. Farmer had been trained in the operation of
this unit and had practiced using this unit in the field. He had nearly two years of practical
experience using the unit.
Prior
to Buchanan's arrest, Farmer checked the calibration of the unit, using both
internal and external means, and determined that the unit was operating
properly. After issuing Buchanan a
citation, Farmer performed follow-up tests on the unit. These tests were identical to the ones he
performed earlier, which included the use of tuning forks. He found no reason to question the accuracy
of the speed readings.
At
trial, James R. Rekowski, testified for Buchanan. The court accepted that Rekowski was an expert in the use of
radar devices, although he had merely reviewed the operating manual of the unit
Farmer used. He gave his opinion based
on time and distance measurements that Farmer could not have gotten an accurate
reading as to the speed of Buchanan's vehicle or verified the unit's
accuracy. He also testified that Farmer
did not follow proper training procedures.
Specifically, Farmer did not verify the input speed of his patrol
car.
In
rebuttal, Farmer testified that in patrolling the location where he arrested
Buchanan, he used the radar unit on a daily basis. He had patrolled this area on and off for twenty-seven years. Rekowski testified that the location of high
voltage lines in the area could have affected the unit's ability to accurately
record Buchanan's speed. However,
Deputy Farmer testified that he would not have gotten the signals or readings
he got from the unit if it was not operating properly or was obstructed or
influenced by environmental factors.
During
closing arguments, the trial court interrupted Buchanan's counsel and stated
that "some inferences could be drawn from the fact that [Buchanan] didn't
testify." The trial court's remark
was merely a response to statements defense counsel made during his closing
argument. It is evident, however, from
the trial court's decision that it did not rely on Buchanan's failure to
testify. Further, this was a civil
case. The privilege against
self-incrimination does not apply in a civil case. Section 905.13(4), Stats.
Buchanan
acknowledges that the constitutional privilege against self-incrimination did
not apply in this case. He argues,
however, that he was deprived of his due process right to a fair trial because
the court relied on Buchanan's failure to testify. He argues that the fairness to which a defendant is entitled
includes the right to require the state or a municipality to meet its burden of
proof without attaching any significance to defendant's failure to
testify. Buchanan also points out that
the County could have called him adversely; therefore, it was unfair for the
trial court to draw any inference from Buchanan's failure to testify.
Whether
to call the defendant in a civil forfeiture case is a matter of trial
strategy. As between the prosecutor and
the defense counsel, we believe the prosecutor may elect not to call the
defendant where he or she believes that such evidence is unnecessary to establish
the state's or municipality's case. We
do not accept that the prosecutor's case is in any way diminished by the
prosecutor's failure to use defendant's testimony to convict. We also reject the proposition that the
weight of the prosecution's evidence is in any way affected by the prosecutor's
failure to call the defendant as a witness.
We
do not believe that the testimony of Buchanan's expert witness eroded the
reliability of the readings Farmer recorded from the moving radar unit. Further, while it has become customary for
jurisdictions to rely on scientific instruments and scientific evidence to
establish defendant's guilt in traffic cases, the state's or municipality's
case does not stand or fall on the evidence presented by such devices. While science has greatly aided in the measurement
of physical events or conditions, any doubt as to the accuracy or reliability
of such devices merely affects the quantity and quality of the evidence. Defendants may be convicted simply upon the
testimony of an experienced and properly trained law enforcement official. Deputy Farmer had patrolled this highway and
the specific area where Buchanan was arrested, on and off for twenty-seven
years. His trained observations may be
as reliable as scientific measuring devices such as radar units and intoxilyzers. We are satisfied that the County established
its case by clear and convincing evidence.
We therefore affirm the judgment.
By
the Court.--Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.