COURT
OF APPEALS DECISION DATED
AND RELEASED August
9, 1995 |
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. 94-3318
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
CITY
OF NEW BERLIN,
Plaintiff-Respondent,
v.
THOMAS
W. KOEPPEN,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Waukesha County: KATHRYN W. FOSTER,
Judge. Reversed and cause remanded
with directions.
BROWN,
J. Thomas
W. Koeppen appeals his jury conviction for driving a vehicle while
intoxicated. See
§ 346.63(1)(a), Stats. We reverse because evidence that a handgun
was found in the trunk of his car was irrelevant and, even if it had any
probative value, its prejudice outweighed the probative value.
The
facts are as follows. A New Berlin
police officer was dispatched to a home where an unidentified person had
telephoned a death threat to, and later driven past, the home. The officer stationed his vehicle near the
home to watch for a small, dark-colored vehicle described by the
complainant. Shortly thereafter, the
officer observed a red Fiero drive past the location. Believing that it might be the vehicle containing the person
making the threats, the officer followed the Fiero.
The
officer estimated that the Fiero was traveling fifteen to twenty miles per hour
over the speed limit and observed that the driver failed to obey a stop
sign. The officer stopped the vehicle
and recognized Koeppen from prior contacts.
He asked Koeppen to produce a driver's license and, after fumbling
through his wallet, the license was produced.
During questioning about Koeppen's speed and his running the stop sign,
the officer noted Koeppen's glassy eyes, slurred speech and a moderately strong
odor of alcohol. Based upon his
observations, the officer asked Koeppen if he would voluntarily perform field
sobriety tests.
Koeppen
responded that he would like to tape record the dialogue surrounding the
tests. The officer agreed to allow
Koeppen to do so if Koeppen had a tape recorder available. Koeppen then went to the trunk, opened it,
fumbled through it for a few seconds and abruptly closed it without obtaining a
tape recorder. He then performed the
tests, which the officer opined were unsatisfactory. The officer then placed Koeppen under arrest and another officer,
who had arrived on the scene as a backup, conducted a search of the vehicle
incident to arrest. The search of the
trunk revealed the tape recorder in plain view. The search also revealed a .32 caliber handgun lying next to the
recorder, also in plain view.
Koeppen
was then transported to the police department where he consented to a chemical
test of his breath. However, the
intoxilyzer detected an interference and would not yield a valid test
result. Koeppen was then asked to
submit to a blood test and he agreed.
The blood test result came back below the legal limit.
Prior
to trial, Koeppen brought a motion in limine seeking to prevent the City from
eliciting any testimony about the gun on the grounds that it was irrelevant and
prejudicial. The City opposed the
motion and the trial court denied the motion in limine. Following is a complete accounting of the
trial court's ruling:
THE
COURT: ¼ Certainly the facts in the case that the issues of this
event are as correctly stated by the defense but in light of [the] fact that
apparently we have a refusal and also in light of the fact that it is always an
element of event, the judgment as jury will be instructed necessarily to safely
operate a motor vehicle. Mental
understanding of an individual is always in issue. Whether or not Mr. Koeppen fully intended to look for a gun as
opposed to tape recording I guess only Mr. Koeppen knows but there certainly
are a number of facts here. Again the
situation that the defendant went into the trunk as part of the investigative
process if you will as opposed to this being simply a. Stop [sic] the defendant gets out of the
vehicle and does the test, does nothing in relation to the trunk I think
crosses the bounds of irrelevancy into a solid area of relevancy and it is the
sequence of events that the court is hanging its hat so to speak to make that
determination and I think under those circumstances the prosecution is entitled
to present that testimony and have the jury raise whatever inference they wish
from that situation. I also find again
because of the nature of the incident here that it's not unduly prejudicial to
the defendant and therefore would meet the criteria under [§] 904.12 [, Stats.,] and I will not grant the
defendant's motion in limine as I perceive it here and in respect to that particular
evidentiary or testimonial issue.
Both
Koeppen and the City write that it is difficult to discern the reasoning
process of the trial court by this statement.
However, the City distills from the decision three reasons for the
ruling. First, the evidence goes to
Koeppen's state of mind at the time of the incident. Second, the unique sequence of events makes the evidence
relevant. Third, the evidence is
important to the nature of the defense.
In
determining whether the trial court erroneously exercised its discretion in
denying the motion in limine, the record must reflect the trial court's
“reasoned application of the appropriate legal standard to the relevant facts
in the case.” Hedtcke v. Sentry
Ins. Co., 109 Wis.2d 461, 471, 326 N.W.2d 727, 732 (1982). Although this court also has some difficulty
understanding the court's “reasoned application,” our duty is to search for
reasons to sustain the trial court's discretionary decision. See Looman's v. Milwaukee Mut.
Ins. Co., 38 Wis.2d 656, 662, 158 N.W.2d 318, 320 (1968).
We
assume, therefore, that state of mind was one of the reasons employed by the
trial court in support of its denial of the motion. Koeppen was allegedly intoxicated. Perhaps the trial court reasoned that intoxicated persons often
exhibit signs of volatility and ill will that they do not possess when
sober. As such, a jury should be free
to infer a mental state of ill will, and therefore intoxication, from the fact
that Koeppen intentionally sought to open the trunk to his car where a handgun
was located.
If
that was the reasoning of the trial court, we disagree. It does not necessarily follow that an
intoxicated person exhibits ill will as a mental state of mind. To state the premise that way is more of a
general subjective assessment than an objective fact. The assumption, without more, is simply unprovable. As such, it is not probative.
Even
if the evidence were somehow probative to state of mind, the prejudice
resulting to Koeppen would outweigh the probative value. There was evidence that the officers
initially came to the area to search for a person who had made death
threats. The danger that the jury might
connect Koeppen to this circumstance is very real. In addition, evidence that Koeppen had a handgun in his trunk
tends to show that he is a dangerous person for reasons other than his alleged
drunk driving. We conclude that the
evidence could not have been admitted under a state of mind theory.
We
have searched for other reasons to support the trial court's decision and
cannot find any. We are confident that
the trial court erroneously exercised its discretion in allowing the handgun
testimony to be admitted.
The
remaining question is whether the error was harmless. We are satisfied that it is not.
Koeppen tested at below the presumed limit for intoxication. While the officer testified to Koeppen's
fumbling with his wallet, his failing sobriety tests and his inability to find
a tape recorder that was in plain view, we are convinced that the test result,
at least, makes Koeppen's defense a genuine one. Therefore, we are not confident about the reliability of the
outcome. We reverse and remand with
directions that further proceedings take place which are not inconsistent with
this opinion.
By
the Court.—Judgment reversed and
cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.