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COURT OF APPEALS DECISION DATED AND RELEASED October 3, 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. 95-0990-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL W. CORRIGAN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Eau Claire County:
BENJAMIN D. PROCTOR, Judge. Reversed
and cause remanded.
MYSE, J. Daniel W. Corrigan
appeals a judgment of conviction for operating a motor vehicle while
intoxicated in violation of § 346.63(1)(a), Stats. Corrigan contends that he was denied his
constitutional right to confront a witness when the trial court admitted the
then-deceased arresting officer's investigation report under the hearsay
exception for records of regularly conducted activity. Corrigan further contends that the report was
inadmissible because the State failed to lay a proper foundation for its
admissibility. Because this court
concludes that the admission of the investigation report offends Corrigan's
constitutional right of confrontation, the judgment of conviction is reversed
and the cause is remanded.
Officer McCready filed
an investigation report that described the following chain of events. McCready discovered Corrigan asleep behind
the wheel of his illegally parked vehicle with the motor still running. After knocking on the window several times,
McCready opened the door, turned off the vehicle and removed the keys. He observed beer cans on the floor and
smelled a strong odor of alcohol.
Corrigan initially refused to get out of the car. When Corrigan got out, he fell against the
car. After Corrigan refused to take a
field sobriety test, McCready placed Corrigan under arrest for operating a
motor vehicle while under the influence of an intoxicant. On the way to the jail, Corrigan said that
he would take the test. McCready
conducted several field sobriety tests and concluded that Corrigan failed to
perform the tests properly. Corrigan
was again placed under arrest. Corrigan
then complained of an asthma attack and was transported to the hospital by
ambulance. At the hospital, the staff
took a blood sample that showed a blood alcohol content of .24%.
Following this incident
and in a matter unrelated to this case, McCready, the investigating officer,
was killed. Consequently, McCready was
unavailable during Corrigan's trial.
Corrigan moved to exclude the investigation report because it was
inadmissible hearsay and violated his right of confrontation. The trial court denied the motion. At trial before the court, Corrigan
stipulated to admission of the blood test results from the hospital without
requiring the analyst to testify. As a
result, no witnesses testified and the court found Corrigan guilty based on the
investigation report and the blood test.
The dispositive issue is
whether the admission of the arresting officer's investigation report violates
Corrigan's constitutional right of confrontation.[1] Appellate review of constitutional
principles is de novo. State v.
Woods, 117 Wis.2d 701, 712, 345 N.W.2d 457, 463 (1984).
The initial question in
confrontation clause analysis is whether the evidence fits within a recognized
hearsay exception. State v. Bauer,
109 Wis.2d 204, 215, 325 N.W.2d 857, 863 (1982). If the evidence fits within a hearsay exception, the right of
confrontation requires that (1) the witness is unavailable, and (2) the
evidence bears some indicia of reliability.
Id. Reliability of
the evidence can be inferred if the evidence fits within a firmly rooted
hearsay exception. Id. However, this inference does not make the
evidence admissible per se. Id. The evidence may nonetheless be excluded if
there are unusual circumstances warranting its exclusion. Id.
The trial court
determined that the investigation report fits within § 908.03(6), Stats., the hearsay exception for
records of regularly conducted activity.
The trial court further determined that McCready was unavailable and
that § 908.03(6) is a firmly rooted hearsay exception. This court is not required to decide whether
the investigation report fits within § 908.03(6) or whether § 908.03(6) is
a firmly rooted hearsay exception because it concludes that unusual circumstances
render the report unreliable and warrant its exclusion.
When unusual
circumstances exist, the reliability of the evidence turns on "whether the
purposes behind the confrontation clause have been satisfied." Bauer, 109 Wis.2d at 219, 325
N.W.2d at 865. The primary purpose of
the confrontation clause is "to ensure that the trier of fact has a
satisfactory basis for evaluating the truthfulness of evidence admitted in a
criminal case." Id.
at 208, 325 N.W.2d at 859-60.
Two unusual
circumstances render the report unreliable and warrant its exclusion. First, McCready at the time he wrote his
investigative report anticipated testifying in Corrigan's trial. Therefore, the purpose of the report was to
justify McCready's conclusion that Corrigan was guilty of operating a motor
vehicle while intoxicated. Normally one
would not expect exculpatory information to be included in such a report or
expect McCready to specify the degree of certainty with which his observations
and conclusions were made. Second, many
of McCready's personal observations are subjective. Much of the investigation report deals with subjective
conclusions such as the presence of the odor of alcohol, the way Corrigan fell
against the car when he got out, the way Corrigan almost fell twice when he
walked heal to toe, and similar evidence.
Corrigan can no longer question McCready regarding these subjective
conclusions. Accordingly, this court
concludes that under these circumstances the admission of the report would
frustrate the purposes of the confrontation clause.
Because § 908.03(6), Stats., does not require the witness to
be unavailable, a conclusion to the contrary would allow driving while under
the influence trials to be conducted without the presence of the arresting
officer. This court does not believe
that would comport with the constitutional rights of confrontation or sound
public policy. While this decision may
make prosecution of Corrigan impossible, it is better to lose a few prosecutions
under these unique circumstances than to allow driving while under the
influence trials to be conducted solely on an officer's investigation report.
Because this report was
prepared for the purpose of trial and reflects a great deal of subjective
opinion evidence from the witness, this court concludes that the admission of
the investigation report is in violation of the constitutional right of
confrontation as guaranteed by both the United States and Wisconsin
Constitutions. Accordingly, this court
need not decide whether the state failed to lay a proper foundation for the
admissibility of the report. The
judgment of conviction must be reversed and the case remanded for a new trial.
By the Court.—Judgment
reversed and cause remanded.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.