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COURT OF APPEALS DECISION DATED AND RELEASED November 7, 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. |
Nos. 95-0991-CR, 95-1323-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KEVIN L. GUIBORD,
Defendant-Appellant.
APPEAL from a judgment
and orders of the circuit court for Eau Claire County: BENJAMIN D. PROCTOR, Judge. Affirmed.
MYSE, J. Kevin L. Guibord, pro
se, appeals a judgment of conviction for operating a motor vehicle while
intoxicated and with .10% or more alcohol by weight in blood contrary to §§
346.63(1)(a) and (b), Stats.,
second offense, and orders denying his motions for postconviction relief. Guibord contends the trial court abused its
discretion when it denied his motions for postconviction relief without stating
its reasons. Guibord further contends
that this court should exercise its power of discretionary reversal because the
trial court did not allow him to explain probable cause to the jury and to
argue that the officer was acting without probable cause. Because this court concludes that the trial
court did not erroneously exercise its discretion and that the interests of
justice do not warrant a new trial, the judgment and orders are affirmed.
At approximately 1:55
a.m., officer Alec Christianson was in the McDonald's parking lot across the
street from a group of bars when he noticed Guibord driving without his lights
on. After following him for several
blocks, Christianson stopped Guibord and noticed an odor of intoxicants on
Guibord's breath and that Guibord's eyes were glassy. Guibord admitted to having three beers. Christianson conducted several field sobriety tests and concluded
that Guibord failed to perform them properly.
Christianson then arrested Guibord for operating a motor vehicle while
under the influence of an intoxicant.
Guibord was later transported to the hospital where a blood sample was
taken that showed a .181% blood alcohol content.
At trial, Guibord,
acting as his own counsel, indicated to the trial judge at a side-bar
conference that he wanted to question Christianson about what he was doing in
the parking lot the night he arrested Guibord.
Guibord's purpose was to show that Christianson was acting without
probable cause. The court allowed
Guibord to ask the questions but told Guibord that he could not use the words
"probable cause" in front of the jury and could not explain those
words to the jury. While Guibord asked
questions using the words "probable cause," he did not explain those words
to the jury. At the close of the
evidentiary portion of trial, Guibord again requested to explain the words
"probable cause" to the jury during closing arguments. The trial court denied his request.
The jury convicted
Guibord of operating a motor vehicle while intoxicated and with a prohibited
alcohol content. The trial court
subsequently denied Guibord's post-trial motions.[1] Guibord then filed amended post-trial
motions to set aside the jury's verdict, for a new trial pursuant to §
805.15(1), Stats., and to stay
enforcement of the judgment of conviction.
In the amended motions, Guibord claimed that he was denied his due
process rights because the trial court did not allow him to explain probable
cause to the jury and to argue that the officer acted without probable
cause. The trial court denied the
motions without comment.
The denial of Guibord's
amended post-trial motions is addressed to the trial court's discretion. See State v. Harp, 161 Wis.2d
773, 779, 469 N.W.2d 210, 212 (Ct. App. 1991); State v. Hancock,
48 Wis.2d 687, 694-95, 180 N.W.2d 517, 520 (1970). The decision whether to admit evidence is also addressed to the
trial court's discretion. State
v. Jenkins, 168 Wis.2d 175, 186, 483 N.W.2d 262, 265 (Ct. App.
1992). When the trial court fails to
set forth its reasoning in exercising its discretion, this court independently
reviews the record to determine whether it provides a basis for the trial
court's exercise of discretion. Camelot
Enters., Inc. v. Mitropoulos, 151 Wis.2d 277, 284, 444 N.W.2d 401, 404
(Ct. App. 1989); State v. Pharr, 115 Wis.2d 334, 343, 340 N.W.2d
498, 502 (1983).
An independent review of
the record conclusively demonstrates that Guibord is not entitled to
relief. In Guibord's motion, he argued
that Christianson was sitting in the McDonald's parking lot for the sole reason
of observing people leaving the bars located across the street. He argues that as a result Christianson was
conducting a "search" without probable cause of all bar patrons as
they left. Guibord further argues that
he should have been allowed to explain the importance of probable cause to the
jury in showing the illegality of the officer's "search" on the night
of his arrest.
This court concludes
that the trial court properly denied Guibord's motions without an evidentiary
hearing because his claim has no merit.
Guibord is proposing that the officer must have probable cause to park
his car in the parking lot and observe people driving their cars. However, parking in a parking lot and
observing people and cars does not amount to a "search" which
requires probable cause under the Fourth Amendment. If Guibord's reasoning were followed, police officers would never
be allowed to observe any people who were on public streets. Guibord could properly ask questions
regarding the reasons that the officer was in the parking lot, but the officer
is not required to have probable cause to park in a parking lot and observe
people. Because the evidence elicited
by Guibord did not involve probable cause, the trial court reasonably exercised
its discretion when it denied the motions and when it denied Guibord's request
to explain the words to the jury.
This court further
concludes that the interests of justice do not require a new trial. This is a discretionary decision with this
court. State v. Penigar,
139 Wis.2d 569, 577-78, 408 N.W.2d 28, 32 (1987). Because Guibord's claim regarding probable cause has no merit,
this court finds no basis to conclude that justice has miscarried or that a new
trial would lead to a different result.
Accordingly, the judgment of conviction and the orders denying
postconviction relief are affirmed.
By the Court.—Judgment
and orders affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.