COURT OF
APPEALS DECISION DATED AND
RELEASED June
20, 1996 |
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. 95-0492-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
VERNON
C. KUKES,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Crawford County: MICHAEL KIRCHMAN, Judge. Affirmed.
Before
Gartzke, P.J., Dykman and Vergeront, JJ.
PER
CURIAM. Vernon Kukes appeals from a judgment of conviction for
recklessly causing bodily harm to a child and disorderly conduct, contrary to
§§ 948.03(3)(b) and 947.01, Stats.,
and from an order denying his postconviction motion. Kukes raises three issues on appeal: (1) whether the trial court erred in refusing to admit the
results of a preliminary breath test administered to a prosecution witness; (2)
whether the trial court erred in permitting a defense witness to testify during
the jury trial by telephone; and (3) whether he was denied effective assistance
of counsel when his attorney waived his right to individually poll the jury
without informing him of that right and without advising him that it was his
personal decision to make. We resolve
each issue against Kukes, and affirm.
BACKGROUND
Kukes
was charged with disorderly conduct and recklessly causing bodily harm to his
girlfriend's four-year-old daughter, Heidi.
Kukes' girlfriend, Patricia Miller, reported the incident giving rise to
the charges to the police. After Miller
reported the incident, a police officer asked her to perform a preliminary
breath test (PBT). The result was .169.
Before
trial, Kukes asked for a continuance because a defense witness, Eugene Kumbera,
who had observed the incident, was in the hospital. The motion requested that, if the continuance was not granted,
the court allow the witness to testify by telephone during the jury trial. The trial court denied the request for a
continuance, but permitted Kumbera to testify by telephone.
At
trial, Miller testified against Kukes.
Kukes sought to impeach Miller with the results of the PBT. Kukes argued that the PBT result would
establish that Miller was intoxicated at the time of the incident and that the
accuracy and credibility of her testimony about the incident could be
questioned. The trial court ruled that
the PBT result was inadmissible under § 343.303, Stats.[1]
When
the jury returned its verdict, Kukes' trial counsel declined an opportunity to
individually poll the jury.
PRELIMINARY
BREATH TEST RESULT
Kukes
contends the trial court erred by refusing to allow evidence of Miller's PBT
test. The trial court relied on
§ 343.303, Stats., which
generally bars the evidentiary use of PBT results. The State concedes that, under State v. Beaver, 181
Wis.2d 959, 512 N.W.2d 254 (Ct. App. 1994), the trial court's reliance on
§ 343.303 was incorrect. In Beaver,
we held that § 343.303 bars the use of PBT evidence only in proceedings
relating to arrests for the offenses contemplated under that statute, which
include operating a motor vehicle while intoxicated, injury by intoxicated use
of a motor vehicle, and homicide by intoxicated use of a vehicle. Id. at 970 n.5, 512 N.W.2d at
258.
Although
the trial court incorrectly relied on § 343.303, Stats., we nonetheless sustain the trial court's ruling to
exclude the evidence. We may sustain a
trial court's evidentiary ruling on a legal theory that was not considered or
articulated by the trial court. Beaver,
181 Wis.2d at 970, 512 N.W.2d at 258.
If the trial court's legal reasoning was flawed, we may independently
review the record to determine if the evidence supports the trial court's
ruling. State v. Shillcutt,
116 Wis.2d 227, 235-36, 341 N.W.2d 716, 719-20 (Ct. App. 1983), aff'd,
119 Wis.2d 788, 350 N.W.2d 686 (1984).
The
results of a PBT, standing alone, contribute nothing on the question of whether
a person's statement given at a certain alcohol concentration level is
trustworthy. Beaver, 181
Wis.2d at 971, 512 N.W.2d at 258. Of
equal importance, Kukes did not offer any testimony in conjunction with the PBT
result to explain the degree of Miller's intoxication. If admitted, the result of Miller's PBT
would not have aided the jury's analysis of the trustworthiness of Miller's
statement or the reliability of her testimony.[2]
TESTIMONY BY
TELEPHONE
Kukes
contends that the trial court erred in ruling that Eugene Kumbera, who observed
the incident, would have to testify by telephone or not at all. Citing § 967.08, Stats., Kukes argues that there is no
statutory authority for taking the testimony of a witness by telephone in a
jury trial. He takes the position that
he had a statutory and constitutional right to present Kumbera's testimony
"live."
We
conclude that by asking the court for permission to present the testimony of
Kumbera by telephone if his motion for a continuance was denied, Kukes waived
his right to argue on appeal that the telephone testimony was error because it
was without statutory authority. If a
defendant selects a course of action, he or she will not be heard later to
allege error or defects precipitated by such action; such an election
constitutes a waiver or abandonment of the right to complain. State v. Robles, 157 Wis.2d
55, 60, 458 N.W.2d 818, 820 (Ct. App. 1990), aff'd, 162 Wis.2d 883, 470
N.W.2d 900 (1991). Kukes does not argue
on appeal that the trial court erroneously exercised its discretion in denying
his motion for a continuance.
JURY POLLING
Kukes contends that he
was denied effective assistance of counsel when his trial counsel waived his
right to individually poll the jury without informing him of that right and
without advising him that it was his personal decision to make.
After
a postconviction hearing, the trial court found that Kukes was not advised of
his right to poll the jury. However,
the trial court denied Kukes' motion for a new trial on the ground that the
decision whether to poll the jury belongs to counsel, not the defendant.
In
State v. Yang, No. 95-0583-CR, slip op. (Wis. Ct. App. April 18,
1996, ordered published May 28, 1996), we held that the decision whether to
request an individual polling is one delegated to counsel, and that counsel's
failure to inform his or her client of the right to an individual polling is
not, in itself, deficient performance.
Kukes does not contend on appeal that his counsel's decision not to poll
the jury was deficient. We therefore
reject Kukes' ineffective assistance of counsel claim.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. Rule 809.23(1)(b)5, Stats.
[1] Section 343.303,
Stats., provides in relevant
part:
The result of the preliminary breath screening test shall
not be admissible in any action or proceeding except to show probable cause for
an arrest, if the arrest is challenged, or to prove that a chemical test was
properly required or requested of a person under s. 343.305(3).
[2] In light of our
conclusion that the result of a PBT, standing alone, contributes nothing to the
question of whether a person's statement given at a certain alcohol
concentration level is trustworthy, we also reject Kukes' single-sentence
argument that the trial court's ruling violated his constitutional right to
confrontation.