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COURT OF
APPEALS DECISION DATED AND
RELEASED May
9, 1996 |
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. 95-1780-CR
95-1781-CR
95-1782-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Appellant,
v.
RYAN
E. BROCKMAN,
Defendant-Respondent.
APPEAL
from an order of the circuit court for Dane County: JACK F. AULIK, Judge. Reversed
and cause remanded.
GARTZKE,
P.J.[1] The State appeals from an order to exclude
from evidence the results of a horizontal gaze nystagmus (HGN) test of the
defendant, Ryan E. Brockman. The issues
are whether: (1) the State can appeal
the order; (2) the trial court erred when it declared a witness unqualified to
testify as an expert on HGN testing; and (3) the trial court improperly entered
an order reversing its prior oral decision without holding an additional hearing. We conclude the State can appeal the order,
and we reverse it.[2]
I. BACKGROUND
On
October 15, 1994, at 12:08 a.m., Dane County sheriff's deputy Randall P.
Wiessinger saw a vehicle traveling about 70 miles per hour on Bailey Road in
the Town of Sun Prairie. He stopped it
after he saw the vehicle's left wheels cross the center line and then drift
back to the right side of the road.
The
driver was Ryan Brockman. Wiessinger
smelled intoxicants on Brockman's breath and asked if he had been
drinking. Brockman said he had been
earlier in the evening. Wiessinger
asked him to perform field sobriety tests, including the HGN test. During that test, Wiessinger saw eye
movements which he later testified indicate possible intoxication. Basing his decision on the results of those
tests, Wiessinger arrested Brockman for operating a motor vehicle while under
the influence of an intoxicant. After
the State charged Brockman with violating § 346.63(1)(a), Stats., operating a motor vehicle while
under the influence of an intoxicant, Brockman moved to suppress the results of
the HGN test.
Wiessinger
testified at the suppression hearing that he was trained in the use of the HGN
test. He has used it regularly and
almost always corroborated it with other field sobriety tests and the
intoxilyzer. He explained that the
person administering the HGN test holds a finger or a pen about eighteen to
twenty inches in front of the subject's eyes and asks the subject to concentrate
on the top of the pen and follow it without moving his head. Eye jerkiness during the test may indicate
intoxication.
The
State called Dr. Paul M. Godich at the suppression hearing to testify on the
scientific foundation of the HGN test as a reliable indicator of intoxication
and to establish that a properly trained officer can readily observe nystagmus.
Dr.
Godich testified that he has practiced as an optometrist since 1965. In 1965 he
received a degree as a Doctor of Optometry from Indiana University School of
Optometry. He had testified as an
expert on HGN testing in two other cases.
Since
1984, Dr. Godich has served as chairman of the Wisconsin Optometric Association
Motorist Vision and Traffic Subcommittee on horizontal gaze nystagmus. As chairman of the subcommittee, he has
studied nystagmus testing beyond the normal course work for an
optometrist. He has not performed
studies on the effects of alcohol on HGN, but tests his patients for nystagmus. Specialized optometric training in HGN is
rare, and most knowledge about HGN is gained by reading research articles. Dr. Godich explained that nystagmus is an
involuntary jerking of the eyes in which the eye muscles pull the eye quickly
in one direction and then slowly back.
Nystagmus can occur without the consumption of alcohol.
Dr.
Godich brought to the hearing thirty articles that he had studied on the
relationship of intoxicants to HGN. He
could not testify on the expertise of the authors, and he was unfamiliar with
articles on alcohol and HGN the defense offered.
The
trial court ruled that Dr. Godich was not qualified to testify as an expert on
the scientific foundations of HGN testing and its relationship to intoxicants.
The court ruled that Dr. Godich's knowledge of HGN and its relationship to
alcohol was based on hearsay and not within the learned treatise exception to
the hearsay rule. The court said:
If you want this witness to qualify as an expert, I can
tell you right now you have not qualified him, and you will not qualify him, as
far as I'm concerned, based upon some articles that he read that you have no
basis to--and if, as I understand it, the witness has no basis to establish
that these, in fact, are learned treatises as defined by law.
Suggesting
that the State could later provide a "properly" qualified expert
witness, the court did not grant or deny the motion to suppress. The court said:
[T]he way to qualify ... an expert is to disclose to the
defense the articles upon which he bases his opinions under the provisions of
the statute, the learned treatise provisions of the statute.... As far as this motion is concerned, I'm not
granting it or denying it, I am simply saying that, unless the State puts on an
expert who qualifies on this particular test, I will not allow this test to be
used in the course of this trial.
The
court later granted Brockman's motion in limine to bar the State from
presenting opinions of a police officer at trial of the facts surrounding the
nystagmus test administered to the defendant.
The court ruled that the State had the burden to show a scientific basis
supports HGN testing by an officer to determine the effect of alcohol and the
nystagmus of a subject. The State had
not shown that Dr. Godich was qualified to testify whether police officers had
sufficient training to give an opinion that a driver showed nystagmus from the
consumption of alcohol and had not shown that Dr. Godich qualified as an expert
on the subject of HGN testing.
II. STATE'S RIGHT OF APPEAL
Brockman
argues that the State cannot appeal the order suppressing evidence under
§ 974.05(1)(d)2, Stats. He cites State v. Eichman, 155
Wis.2d 552, 456 N.W.2d 143 (1990), for the proposition that the State may
appeal only pretrial orders "barring" admission of evidence which
might normally determine the success of the prosecutor's case.
Section
974.05(1)(d)2, Stats., provides
in pertinent part:
[A]n
appeal may be taken by the state from any ...
(d) Order or judgment the substantive effect of
which results in:
1. Quashing an arrest warrant;
2. Suppressing evidence; or
3. Suppressing a
confession or admission.
The
Eichman court held that the State may appeal as of right an order
excluding evidence that normally determines the successful outcome of the
prosecution. Id. at 564
n.1, 456 N.W.2d at 148. We have
construed Eichman to mean that the State may resolve by an appeal
under § 974.05(1)(d)2, Stats.,
any "significant evidentiary question prior to trial to avoid delays once
trial has commenced." State
v. Maass, 178 Wis.2d 63, 67, 502 N.W.2d 913, 915 (Ct. App. 1993).
Because
it would tend to establish whether one of the elements of § 346.63(1)(a), Stats., exists for operating under the
influence, Brockman's HGN test result is significant evidence. The trial court's order barred its
admission. The State may appeal the
order under § 974.05(1)(d)2, Stats.
III. EXPERT WITNESS
Whether
a witness is qualified as an expert is a discretionary determination for the
trial court. State v. Donner,
192 Wis.2d 305, 317, 531 N.W.2d 369, 374 (Ct. App. 1995). The court properly exercises its discretion
when it applies the correct theory of law to the facts of record in a reasoned
manner. Hartung, 102
Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981).
If the witness knows something beyond that generally known, the witness
is an expert. State v.
Hollingsworth, 160 Wis.2d 883, 896, 467 N.W.2d 555, 560 (Ct. App.
1991).
The
trial court ruled that Dr. Godich was not qualified because his opinions were
based on hearsay, since no evidence existed that the articles he brought to the
hearing came under the learned treatise exception, but even if they did the
State had not complied with the forty-day notice requirement in that exception,
§ 908.03(18)(a), Stats.
The
articles were not hearsay. They were
not offered to establish the truth of their contents. The State asked Dr. Godich about the articles to establish his
qualifications and not to establish the basis of his opinion.
Even
if the articles formed the basis of Dr. Godich's opinions, an expert may base
his or her opinion on hearsay. E.D.
Wesley Co. v. City of New Berlin, 62 Wis.2d 668, 675, 215 N.W.2d 657,
661 (1974). An expert may testify and
give reasons for his opinions without prior disclosure of the underlying facts
or data. Section 907.05, Stats.
"[C]hallenges to the admissibility of source materials underlying
an expert's opinion go not to the qualifications or competency of the witness,
but only to the weight accorded to his or her testimony." In re Paternity of T.L.S., 125
Wis.2d 399, 401, 373 N.W.2d 55, 56 (Ct. App. 1985).
Because
the trial court's ruling is based in part upon error of law, we reverse and
remand the matter to the trial court for further consideration of Dr. Godich's
qualifications. We do not rule that Dr.
Godich is or is not qualified. An
appellate court will not exercise discretion vested in a trial court. Barrera v. State, 99 Wis.2d
269, 282, 298 N.W.2d 820, 826 (1980).
By
the Court.—Order reversed and
matter remanded for further proceedings.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] The State appeals from the same trial court
order in three cases charging Brockman with violations of § 346.63(1)(a), Stats., operating under the influence,
§ 946.49, Stats., bail jumping,
and § 344.44, Stats.,
operating after revocation. We granted
the State's motion to consolidate the appeals.