|
COURT OF
APPEALS DECISION DATED AND
RELEASED February
1, 1996 |
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. |
Nos. 94-2343-CR
94-2344-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Appellant,
v.
KURT
W. WARRINGTON,
Defendant-Respondent.
APPEALS
from a judgment of the circuit court for Grant County: GEORGE S. CURRY, Judge. Affirmed.
GARTZKE,
P.J. The State appeals from a judgment
acquitting Kurt Warrington of operating a motor vehicle with a blood alcohol
concentration (BAC) of .10% or more, contrary to § 346.63(1)(b), Stats., second offense, a misdemeanor.[1] The issues are (1) whether, as the trial
court concluded, admitting into evidence a BAC test result as a regularly
conducted activity without a showing that the absent declarant was an
unavailable witness would violate Warrington's confrontation right; and (2)
whether the State's evidence establishing his BAC was insufficient in view of
the instructions, notwithstanding an expert's opinion.[2]
We
conclude that the trial court's evidentiary ruling was wrong but the
prohibition against double jeopardy prevents us from ordering a second
trial. We also conclude that the trial
court properly granted the judgment acquitting Warrington.
I. BACKGROUND
The
State based its prohibited BAC allegation upon a blood test result obtained by
the Wisconsin State Laboratory of Hygiene.
The result showed a BAC of .141% by weight. William C. Johnson, a laboratory employee, performed the
analysis. He was not called to testify,
since he was on vacation. On appeal,
Warrington concedes that the BAC test result qualifies as a record for a
regularly conducted activity, and therefore comes within a hearsay exception,
§ 908.03(6), Stats.
Warrington
opposed the introduction of the BAC test result, arguing that merely because
the hearsay exception applies does not mean that his confrontation rights have
been protected. He insists that they
are not protected absent a showing that declarant Johnson is unavailable. During the trial, the court granted
Warrington's motion to exclude the BAC test result. Consequently, the document produced as a result of the BAC test
was not presented to the jury.
The
court admitted the testimony of Thomas Ecker, a supervisor in the State
Laboratory of Hygiene, Toxicology Section.
We summarize his testimony as follows.
He has been a chemist for over seventeen years and has been a supervisor
at the laboratory for about six years.
He performs chemical analysis of blood and urine for alcohol and
drugs. Exhibit 1 (which is not in the
record on appeal) is a copy of Warrington's blood test result and is consistent
with the original. Ecker did not do the
test, but he supervises William Johnson, and Johnson is qualified to do blood
alcohol tests. The laboratory uses a
Hewlett Packard Gas Chromatograph.
Ecker's laboratory keeps on file each day's analyses record, worksheets
that show the results of every test, and original printouts from the instrument
that shows the actual blood alcohol concentration. Based upon the data available to him, Ecker could form an opinion
to a reasonable degree of scientific certainty that Kurt Warrington's BAC when
the blood sample was drawn was 0.141% by weight.
On
cross-examination, Ecker acknowledged that he had no personal knowledge that
the normal procedures were indeed followed for Warrington's sample. Ecker acknowledged that his review of the
BAC through the control samples assumed that the examiner followed proper
procedures and was legitimate only "if" the examiner followed proper
procedures. Ecker admitted he had no
personal knowledge whether Warrington's blood sample was properly prepared for
testing.
II. RIGHT OF CONFRONTATION
The
State persuasively argues that the court erred when it excluded the BAC test
result because the absent declarant Johnson had not been shown to be
unavailable. Warrington concedes that the BAC test result qualifies as a record
for a regularly conducted activity and therefore comes within a hearsay
exception, § 908.03(6), Stats. "Where proffered hearsay has sufficient
guarantees of reliability to come within a firmly rooted exception to the
hearsay rule, the Confrontation Clause is satisfied" without showing that
the declarant is unavailable. White
v. Illinois, 502 U.S. 346, 356 (1992).
A
hearsay exception adopted by the Federal Rules of Evidence and by a large
number of states is "firmly rooted."
White v. Illinois, 502 U.S. at 356 n.8 (1992). Fed.
R. Evid. 803(6) is identical to the regularly conducted activity hearsay
exception in § 908.03(6), Stats.,
except that the federal rule refers to a "regularly conducted business
activity" and the Wisconsin exception does not. The breadth of the term "business" as used in the
federal rule is, however, such that it includes laboratory test results. See United States v. Farmer,
820 F. Supp. 259, 264 (W.D. Va. 1993) (state laboratory certification of
analysis of driver's blood alcohol content admissible as business record under Fed. R. Evid. 803(6)). Sixteen states have adopted Fed. R. Evid. 803(6) verbatim and
seventeen states have adopted the rule with only minor changes. 4 Weinstein's
Evidence, United States Rules § 803(6)[08]. Because two-thirds of the states have
adopted the federal rule or its equivalent, we conclude that the hearsay
exception for records of regularly conducted activities is "firmly
rooted." See also United
States v. Johnson, 971 F.2d 562, 573 (10th Cir. 1992) ("regularly
conducted" records exception, Fed.
R. Evid. 803(6), is a firmly rooted hearsay exception).
But
we cannot in this appeal reverse the judgment of acquittal on grounds that the
court should have admitted evidence that was not presented to the jury. Nor can we in this appeal order a new trial
at which the excluded evidence may be presented. Either course would violate the constitutional prohibition
against placing a criminal defendant in double jeopardy. Because this is so, the State cannot appeal
from the judgment of acquittal on grounds that the trial court's evidentiary
ruling was wrong. See § 974.05(1)(a),
Stats., (the State may appeal a
"[f]inal order or judgment ... if the appeal would not be prohibited ...
by double jeopardy"). See also
State v. Eichman, 155 Wis.2d 552, 565, 456 N.W.2d 143, 148 (1990)
("[a] defendant, if convicted may seek post-conviction review of an
adverse ruling excluding evidence as a matter of right. The State has no remedy, however, if the
defendant is acquitted.").
III. JUDGMENT NOTWITHSTANDING THE VERDICT
Although
Warrington designated his postverdict motion as one for judgment
notwithstanding the verdict, he challenged the sufficiency of the
evidence. On appeal, the State argues
that the motion for judgment notwithstanding the verdict and a motion regarding
the sufficiency of the evidence should not be combined. The State cites State v. Escobedo,
44 Wis.2d 85, 90-91, 170 N.W.2d 709, 711 (1969). The Escobedo court said it had grave doubt whether
a motion for judgment notwithstanding the verdict could be used in a criminal
proceeding. However, by raising the issue
for the first time on appeal, the State lost the right to challenge the
propriety of the motion. We therefore
turn to the merits of Warrington's contention.
When
ruling on Warrington's motion, the court noted that it had instructed the jury,
"The State is required to establish that the gas chromatograph was in
proper working order and that it was correctly operated by a qualified
person." The court ruled
[S]ince the expert who did testify didn't have any idea
whether or not a person, whose report he was relying on, correctly operated it,
the Court finds that the facts do not meet the test and the law as given in the
jury instructions and, therefore, grants the motion for judgment
notwithstanding the verdict.
We
review a decision reversing a verdict without deference to the trial
court. When the defendant challenges
the sufficiency of the evidence, the test is whether the evidence adduced,
believed, and rationally considered by the jury was sufficient to prove the
defendant's guilt beyond a reasonable doubt.
State v. Koller, 87 Wis.2d 253, 266, 274 N.W.2d 651, 658
(1979). If the jury could have drawn
the appropriate inferences from the evidence to find the requisite guilt, we
will not overturn a verdict even if we believe that a jury should not have
found guilt based on the evidence before it.
State v. Alles, 106 Wis.2d 368, 377, 316 N.W.2d 378, 382
(1982).
On
cross-examination, Ecker acknowledged that he did not know whether the sample
of Warrington's blood was properly prepared for testing. He said that the blood test results for
control specimens run the same day were accurate, from which he inferred that
the procedure used to test samples had been correctly followed.
With each stage run, first the chemical analyst has to
calibrate the instrument, the gas chromatograph, and then verify every sixth
sample is a known sample that we know what the results should be, but by
carrying it through the entire procedure we can find out if everything has been
done correctly. In other words, if I
have a specimen of blood that I know the result is .150 and I take it through
the result--the entire analysis and get .150 or close enough within tolerance,
then I know that the procedure has been followed correctly and also the
instrument is working correctly, and that's the case throughout this day's
run. There were five different levels
of alcohol in water, three different levels in blood, and two different levels
in urine that were interspersed throughout the day's run that show at those
points that the test was done accurately.
On appeal, the State does not challenge Warrington's
assertion that, to meet its burden under the instruction, the State had to
prove that Johnson properly conducted the test, and not just that Johnson had
correctly operated the chromatograph.
Whether or not the correct procedure used to test samples was followed,
the samples themselves had to be properly prepared. Warrington cites Ecker's testimony conceding that he had no
personal knowledge whether Warrington's blood sample was properly prepared for
testing.
The
State asks us to sustain the verdict on grounds that the jury could have
inferred that Johnson had properly conducted the test and properly run the gas
chromatograph. The State asserts that
because the control sample results were correct, Johnson must also have
properly tested Warrington's results.
But there was no evidence that Warrington's blood samples were properly
prepared or prepared in the same manner as the control samples.
We
conclude that the trial court's ruling that the State failed to meet the burden
placed upon it by the instruction must be sustained.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] The State concedes it lost the right to
appellate review of a third issue:
whether the State must prove in an OMVWI case that the blood testing
equipment was in good operating order and was correctly operated by a qualified
person. The State lost the right to
review because it failed to object to a pertinent instruction placing the
burden upon it. State v.
Schumacher, 144 Wis.2d 388, 424 N.W.2d 672 (1988).