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COURT OF APPEALS DECISION DATED AND RELEASED JULY 18, 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. 95-0015-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
EVA M. BAKKEN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Eau Claire County:
BENJAMIN D. PROCTOR, Judge. Affirmed.
MYSE, J. Eva Bakken appeals a
judgment of conviction for operating while intoxicated, second offense,
contrary to § 346.63(1)(a), Stats.,
and operating with a blood alcohol concentration in excess of 0.1%, contrary to
§ 346.63(1)(b). Bakken contends
that: (1) the trial court erred by failing to suppress a statement she made to
the investigating officer that she had not consumed any intoxicating beverages
prior to being stopped; (2) the trial court erred by refusing to permit Bakken
to introduce evidence regarding the procedure used by the State of Colorado for
drawing blood samples; and (3) she is entitled to a new trial in the interest
of justice. This court rejects Bakken's
arguments and affirms the judgment.
On May 4, 1994, officer
Scott Kuehn, an Eau Claire County deputy sheriff, performed a traffic stop on
Bakken's car after noticing that she was driving erratically. Kuehn walked to the side of Bakken's vehicle
and requested that she exit the car. As
Bakken exited her vehicle, Kuehn detected the odor of alcohol emanating from
Bakken. Bakken, however, denied that
she had consumed any intoxicants.
Despite Bakken's denial, Kuehn requested Bakken to perform a series of
field sobriety tests. Bakken failed to
perform the tests in a satisfactory fashion.
Kuehn then administered a preliminary breath test to Bakken, which
revealed an alcohol concentration of .12%.
Based on her performance on the field sobriety tests and her preliminary
breath test, Kuehn placed Bakken under arrest and transported her to the
hospital. At the hospital, Bakken
consented to the withdrawal of a blood sample.
The sample was then forwarded to the State Laboratory of Hygiene where
it was determined that Bakken's blood alcohol level was .199%.
Prior to trial, Bakken
filed a motion to suppress all statements she made at the scene, arguing that
the statements were taken in violation of her Miranda rights.[1] At the hearing on the motion, the following
colloquy occurred:
MR. RAJEK [defense counsel]: Well,
if the state's willing to stipulate there were no statements taken from the
witness. Apparently, on the Informing
the Accused there was none. I would
wonder if there were any other statements of an inculpatory nature that the
state intends to use at trial that were taken in this case. The report doesn't speak to that so I'm
really in the dark as to whether or not there were.
THE COURT: Any statements you're
concerned about, Mr. White?
MR. WHITE [district attorney]: Not
unless they're in the report, and if there aren't any, then there are none.
THE COURT: Do you know if there are any statements in the report?
MR. WHITE: To be honest with you, I
don't. My review of it doesn't show
any, but I didn't do the pretrial. I
don't believe there are any.
MR.
RAJEK: Then if there's no statements of the defendant intended to be
introduced, then we don't need to take up that portion of the motion.
The
hearing then continued with the testimony of Kuehn on the issue of probable
cause. Kuehn testified as to the
circumstances surrounding his stop and arrest of Bakken, including her
statement that she did not consume any intoxicating beverages. Bakken did not object. At the conclusion of the hearing, the trial
court found that there was probable cause for Bakken's arrest and scheduled the
matter for trial.
At trial, Kuehn again
testified regarding the facts surrounding his stop and arrest of Bakken. Kuehn recounted Bakken's statement that she
did not consume any intoxicating beverages.
Bakken objected and requested to be heard outside the presence of the
jury. Bakken argued that the statement
should be suppressed because the State failed to inform her that it would use
the statement at the suppression hearing.
The trial court denied Bakken's request, but offered to provide her with
a suppression hearing on the issue whether the statement was taken in violation
of her Miranda rights.
Bakken accepted the court's offer.
At the conclusion of the hearing, however, the court found that Bakken
was not in custody at the time she made the statement and denied the
motion. The trial then proceeded, and
Bakken was ultimately found guilty of operating while intoxicated, second
offense, contrary to § 346.63(1)(a), Stats.,
and operating with a blood alcohol concentration in excess of 0.1%, contrary to
§ 346.63(1)(b). Additional facts will
be set forth in the opinion.
Bakken contends that the
trial court erred by failing to suppress her statement to Kuehn that she did
not consume any intoxicating beverages.
Bakken asserts two grounds upon which the statement should be suppressed.
Because both grounds involve questions
of law, this court reviews Bakken's allegations of error without deference to
the trial court. Schlomer v.
Perina, 169 Wis.2d 247, 252, 485 N.W.2d 399, 401 (1992).
Bakken first contends
that the trial court erred by holding a suppression hearing during the trial to
determine the admissibility of her statements.
Bakken contends that under § 971.31(3), Stats., the admissibility of statements challenged by
pretrial motion must be determined before the trial commences. Accordingly, because she filed a pretrial
motion to suppress her statements and because the admissibility of these
statements was not determined before trial, Bakken contends that the trial
court erred by failing to suppress the statements. This court is not persuaded.
Bakken cites no
authority to support the proposition that a trial court is without competence
to determine the admissibility of a statement during trial where a party
challenges the statement in a pretrial motion.
Further, the record demonstrates that the trial court provided Bakken
with a full and complete opportunity to challenge the admissibility of the
statement. Thus, although the hearing
was held during trial, Bakken suffered no prejudice.
Finally, this court
notes that although the statute speaks in terms of a pretrial determination of
the admissibility of statements challenged by a motion in advance of trial, the
statute does not mandate that the admissibility determination be made
pre-trial, nor does it provide a penalty in the event the determination is not
made before trial. See State
v. Perry, 181 Wis.2d 43, 53, 510 N.W.2d 722, 725 (Ct. App. 1993) (lack
of a penalty is indicative of the legislature's intent that the statute be
construed as directory rather than mandatory). Section 971.31(3), Stats.,
provides: "The admissibility of
any statement of the defendant shall be determined at the trial by the court in
an evidentiary hearing out of the presence of the jury, unless the defendant,
by motion, challenges the admissibility of such statement before trial."
The language of this statute
does not preclude a trial court from making admissibility determinations during
trial when a statement is challenged by a motion before trial. Furthermore, a statute prescribing the time
in which the trial court must act is discretionary, unless the statute denies
the exercise of power after such time, or the nature of the act, or the
statutory language, shows that the time was intended to be a limitation. Perry, 181 Wis.2d at 53, 510
N.W.2d at 725.
Here, the statute does
not deny the trial court the power to make an admissibility determination
during trial where the motion challenging the statement is made prior to
trial. Further, this court's reading of
the statutory language does not indicate that the time period was intended to
be read as a limitation on the trial court's power. This court therefore concludes that § 971.31(3), Stats., does not restrict a trial court
from determining at trial the admissibility of a defendant's statement even
though the statement was challenged by a pretrial motion. However, even if such a restriction is found
in the statutory language, the statute is permissive and not mandatory. Accordingly, the statute, while suggestive,
did not compel the trial court to make its admissibility determination
pretrial. For the foregoing reasons,
this court rejects Bakken's contention and concludes that the trial court did
not err by refusing to suppress the statement despite the fact that its
admissibility determination was made during trial.
As a corollary argument,
Bakken contends that because the State did not advise her at the pretrial
hearing that it intended to use the statement at trial, she did not have a
sufficient opportunity to challenge the admissibility of the statement. Therefore, she contends that she was a victim
of unfair surprise and that the trial court erred by permitting the State to
use the statement at trial. This
argument is without merit. The record
of the motion hearing shows that while the State indicated it did not know of
any statements that it would use at trial, this representation was at best an
equivocal response based on the State's preliminary understanding.
Further, immediately
after Bakken withdrew her suppression motion, Kuehn testified as to Bakken's
statement that she did not consume any intoxicating beverages during the
probable cause hearing. Bakken was
present during Kuehn's testimony and made no objection to the State's use of
the statement. Finally, this court
notes that Bakken was given a full and complete opportunity to contest the
admissibility of the statement at trial.
Given these circumstances, there is no basis for Bakken to claim that
she suffered unfair surprise or that she did not have a fair opportunity to
address the admissibility of the statement prior to the court's
determination. Therefore, despite the
representations made by the State at the pretrial hearing, this court concludes
that the trial court did not err by refusing to suppress Bakken's statement.
Bakken next contends
that the trial court erred by failing to suppress the statement because it was
taken in violation of her Miranda rights. A trial court's decision whether to suppress
a statement as being obtained in violation of a defendant's Miranda
rights will be upheld on review unless the decision is contrary to the great
weight and clear preponderance of the evidence. Schultz v. State, 82 Wis.2d 737, 747, 264 N.W.2d
245, 250 (1978). After reviewing the
record, this court concludes that the trial court's denial of the defendant's
motion to suppress was sufficiently supported by the evidence.
In State v.
Leprich, 160 Wis.2d 472, 477, 465 N.W.2d 844, 845 (Ct. App. 1991), this
court reiterated the long accepted rule that Miranda warnings are
only required where there is a custodial interrogation. In this case, however, Bakken was not in
custody, nor was she being interrogated.
As our supreme court noted in State v. Swanson, 164 Wis.2d
437, 447, 475 N.W.2d 148, 152 (1991), a person temporarily detained during a
traffic stop is not in custody for purposes of Miranda. Further,
general questions that are investigatory rather than accusatory in nature are
not subject to Miranda. Leprich,
160 Wis.2d at 477, 465 N.W.2d at 845-46.
Here, the record shows that Bakken's statement was made prior to the
time she was placed under arrest and that it was made as a result of Kuehn's
preliminary investigation.
Consequently, because Bakken was not in custody at the time she made the
statement, the trial court properly denied Bakken's motion to suppress the
statement.
Bakken next contends
that the trial court erred by admitting evidence of two partially filled cans
of beer found under the right passenger seat of Bakken's car at the time of her
arrest. No objection was made at trial
to the admissibility of this evidence.
Failure to object to a claimed error at trial constitutes a waiver for
purposes of appeal. State v.
Romero, 147 Wis.2d 264, 274, 432 N.W.2d 899, 903 (1988). Accordingly, this court declines to address
the merits of this argument.
Bakken further argues
that the trial court erred by excluding evidence pertaining to the procedures
used in Colorado for taking blood samples.
At trial, Bakken argued that blood alcohol tests in Wisconsin are
scientifically unreliable because cotton swabs containing alcohol are used to
clean the defendant's arm prior to taking the sample. To demonstrate the detrimental effect that alcohol swabs have on
the scientific reliability of blood alcohol tests in Wisconsin, Bakken sought
to introduce evidence that Colorado uses swabs that do not contain
alcohol. The trial court, however,
found that while Bakken could introduce evidence to show that the method used
in Wisconsin was flawed, the procedures used in other states were not relevant and
Bakken could not introduce this evidence at trial.
On appeal, Bakken contends that the trial
court erred by excluding this evidence because it demonstrates that the
procedure used in Wisconsin for drawing blood is scientifically unreliable. Reliability, however, is not a predicate for
the admissibility of scientific evidence in Wisconsin. See State v. Walstad,
119 Wis.2d 483, 517-18, 351 N.W.2d 469, 486-87 (1984). Rather, scientific evidence need only be
relevant to be admissible in Wisconsin.
Id. at 518-19, 351 N.W.2d at 487. Thus, because Bakken offered the evidence of
the procedure used for drawing blood in Colorado for the sole purpose of
demonstrating the unreliability of Wisconsin's procedure and because the
Colorado procedures had no other relevance, the trial court properly concluded
that the evidence was irrelevant.
Evidence that Wisconsin's procedure for drawing blood may contaminate
the results was relevant and was not excluded by the trial court. Bakken was permitted to attack Wisconsin's
procedure, attempt to prove the claimed contamination and otherwise challenge
the weight to be accorded the blood test results.
Finally, Bakken contends
that the interest of justice demand that she receive a new trial. However, the record in this case shows that
the issues were fully and fairly tried, and there is no reasonable possibility
that justice has miscarried.
Accordingly, there is no basis upon which this court can rely to order a
new trial in the interest of justice.
The judgment of conviction is therefore affirmed.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.