COURT OF APPEALS DECISION DATED AND RELEASED January 23, 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. 95-1894-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GARY M. KRUCKENBERG,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: BONNIE L. GORDON, Judge. Affirmed.
SULLIVAN,
J. Gary M. Kruckenberg appeals from a judgment of conviction after a
jury trial for operating a motor vehicle while under the influence of an
intoxicant. He also appeals from an
order denying his motion for postconviction relief. He presents three issues for this court to review: (1) whether
the trial court erroneously exercised its discretion by not allowing his expert
witness to testify on—(a) the effects of volatile organic compound on breath
testing equipment, and—(b) the blood absorption rate of alcohol and the
creation of a blood alcohol curve; (2) whether the trial court erroneously
exercised its discretion by allowing only the first page of each of the
defendant's documents into evidence; and (3) whether he is entitled to a new
trial based on the above errors. This
court rejects most of Kruckenberg's arguments; however, the trial court did
erroneously exclude Kruckenberg's proffered expert testimony on the blood
alcohol curve. This error was harmless,
given the police testimony about Kruckenberg's physical condition and his
breath test results. Accordingly, the
judgment of conviction and order are affirmed.[1]
I.
Background.
Kruckenberg was arrested
and charged with operating a motor vehicle while under the influence of an
intoxicant, and operating a motor vehicle with a prohibited alcohol concentration
of .10% or more. He received a jury
trial.
The factual premise of
Kruckenberg's prosecution is unique because police never observed him
driving. Kruckenberg alleged that he
was driving down the street when another driver “cut him off.” He followed the other driver to obtain his
license number, but that driver realized he was being followed and stopped his
car. The two drivers then allegedly had
an altercation and, after it concluded, they both drove to the City of
Greendale police station. While
interviewing Kruckenberg, Officer David Sjoberg smelled alcohol and observed
Kruckenberg's bloodshot eyes.
Kruckenberg admitted drinking three beers earlier in the day, so the
police asked him to perform several field sobriety test. He successfully passed all tests. The police then requested that Kruckenberg
take an intoxilyzer test; the result was a .14% blood alcohol concentration
(BAC).
At trial, Kruckenberg
alleged that he was a painter and that, prior to driving on the day of his
arrest, he had been spray-painting with a series of lacquers and sealers for
about seven hours. Accordingly, he
intended to present expert witness Roy Schenk, a Ph.D chemist, who would
testify that the chemicals contained in the sprays used by Kruckenberg could be
falsely read by the intoxilyzer as alcohol.
Out of the presence of
the jury, Kruckenberg made an offer of proof to allow Schenk to testify as an
expert on the question of whether the chemicals Kruckenberg alleged he was
spraying could affect the intoxilyzer result.
After the offer of proof was made, the trial court issued its ruling:
Based upon the
testimony of Dr. Schenk, the Court is satisfied that he possesses the necessary
education, experience, and skills to give testimony as an expert chemist.
Doctor Schenk's
testimony will be based upon his experiments and experience with volatile
organic compounds and their effects on the Intoxilyzer 5,000.
The Court finds that as
a condition precedent to Dr. Schenk's testimony, medical testimony as to
how these chemicals affect the human physiology is required.
The trier of fact must
know how the paint chemicals, to which Mr. Kruckenberg was exposed, are
absorbed in the body and what, if any, effect that would have on the lungs and
other organs.
Medical testimony is
necessary I believe to provide evidence as to the effects of paint chemicals on
absorption in the human body. This is
not a case where Mr. Kruckenberg presented the officer with a container of fumes
and put it in the Intoxilyzer 5,000. Rather, Mr. Kruckenberg is a painter who is believed to have been
exposed to paint fumes and who had consumed an amount of alcohol prior to being
given a breath test with the Intoxilyzer 5,000.
Dr. Schenk is not an
expert to the effects of chemicals on human physiology. Before Dr. Schenk can testify, the defense
must present medical testimony, without which, Dr. Schenk's testimony is
and would become irrelevant.
Furthermore, the Court
finds that without medical testimony, the doctor's testimony will confuse the
jurors.
....
.... I'm saying he
doesn't have the expertise. That you
need a doctor or a physiologist to testify as to how the body absorbs those
chemicals before he, as a chemist, can testify.
He is qualified as a
chemist, based upon his experience and training to testify. His expertise deals with -- There's a
difference between having a container full of fumes and places it in an
Intoxilyzer 5,000, and in this case we have a human being.
Obviously as a result
of his profession, paint fumes ‑‑ having those paint fumes absorbed
in the body, what effects that has on the body, coupled with the taking of some
form of alcohol, and what that does to the lungs, to the other organs, how that
effects it, and that his testimony ‑‑ without that testimony, it
becomes irrelevant.
Later,
the trial court also prevented Schenk from testifying about the absorption rate
of alcohol and the creation of a blood alcohol curve estimating Kruckenberg's
blood alcohol level at the time he was driving. The trial court concluded that Schenk did not have the sufficient
expertise to qualify as an expert on this subject.
Kruckenberg also
presented several chemical data sheets as evidence. The sheets provided detailed information on the chemicals
Kruckenberg alleged he was spraying.
The trial court only allowed the first page of each sheet to be entered
into evidence, concluding that the remaining pages would confuse the jury.
The jury found
Kruckenberg guilty of operating a motor vehicle while under the influence of an
intoxicant. The trial court entered the
judgment of conviction from which Kruckenberg appeals.
II.
Analysis.
Kruckenberg challenges
the trial court's rulings on several evidentiary questions. “A trial court possesses great discretion in
determining whether to admit or exclude evidence. We will reverse such a determination only if the trial court
erroneously exercises its discretion.” State
v. Morgan, 195 Wis.2d 388, 416, 536 N.W.2d 425, 435 (Ct. App.
1995). Applying this standard of
review, this court addresses each of the questions raised by Kruckenberg seriatim.
A. Scientific expert evidence.
Kruckenberg argues that
the trial court erroneously exercised its discretion by preventing his expert
witness to testify. Kruckenberg
misconstrues the trial court's ruling on this issue. The trial court did not preclude Schenk from testifying, but
merely determined that the relevancy of Schenk's testimony was logically
conditioned on the introduction of other scientific evidence.[2] Because Kruckenberg did not present this
other evidence, the trial court concluded Schenk's testimony was irrelevant.
“`Expert testimony is
admissible only if it is relevant.'” Id.
(citation omitted). The trial court
determined that Schenk's expert testimony on the effects of the chemicals on an
intoxilyzer was relevant, conditioned on the testimony of an expert on the
effects of the chemicals on humans.
Essentially the trial court was applying the theory of conditional
logical relevance, which allows a court “to admit conjunctive or coordinate
facts that cannot be proven simultaneously.”
See Edward J. Imwinkelried, Judge Versus Jury: Who Should
Decide Questions of Preliminary Facts Conditioning the Admissibility of
Scientific Evidence?, 25 Wm. &
Mary L. Rev. 577, 590 (1984).
“When Item A and Item B considered
separately are each irrelevant in absence of proof of the other, a relevancy
objection may be interposed to whichever one is offered first. But a party must start somewhere. This rule requires the proponent merely to
bring forward evidence from which the truth of Item A could be found, upon the
representation that evidence of Item B will be offered. Evidence of the conditionally relevant Item
B can then be shown. The dispute as to
the truth of each is ultimately for the jury rather than the judge. But the order of proof is, as generally, for
the judge .... He [or she] can decide
whether to hear evidence of Item A or of Item B first .... Whichever one he elects to hear first will
be admitted conditionally or, in the traditional phraseology, de bene. If the proponent fails to make good on his
representation to offer sufficient evidence of the second item, the evidence of
the first will on the motion be stricken and the jury instructed to disregard
it.”
Id. at
590-91 (citation omitted); see also Rule 901.04(2),
Stats.[3] The trial court determined that Kruckenberg
needed to present the medical expert testimony first, in order to prevent juror
confusion, and that Schenk could then testify on the effects of the chemicals
on the intoxilyzer. This determination
was a proper exercise of trial court discretion. See Rule 906.11,
Stats. (the trial court shall
exercise reasonable control over the order of presenting evidence).
The question then
becomes whether the trial court impermissibly prevented Kruckenberg from
presenting the medical expert evidence when it denied his motion for a
continuance to procure the expert witness.
The record confirms that the trial court properly exercised its
discretion in denying the motion for a continuance.
A trial court's grant or
denial of a motion for a continuance to obtain the attendance of a witness will
not be disturbed on appeal unless the trial court erroneously exercised its
discretion. Elam v. State,
50 Wis.2d 383, 389-90, 184 N.W.2d 176, 180 (1971). “There is no set test for determining whether the trial court
[erroneously exercised] its discretion.
Rather, that determination must be made based upon the particular facts
and circumstances of each individual case.”
State v. Anastas, 107 Wis.2d 270, 273, 320 N.W.2d 15, 16
(Ct. App. 1982). Among the factors to be
considered are “whether the testimony of the absent witness is material,
whether the moving party has been guilty of any neglect in endeavoring to
procure the attendance of the witness, and whether there is a reasonable
expectation that the witness can be located.”
Bowie v. State, 85 Wis.2d 549, 556-57, 271 N.W.2d 110, 113
(1978). In determining whether a trial
court acted erroneously, the reviewing court should also consider “the
defendant's right to adequate representation by counsel and the public's interest
in the prompt and efficient administration of justice.” State v. Echols, 175 Wis.2d
653, 680, 499 N.W.2d 631, 640, cert. denied, 114 S. Ct. 246 (1993).
Applying the above
factors, it is clear that the trial court's earlier conditional relevancy
ruling made an expert medical witness's potential testimony relevant and
material. This court's analysis does
not stop at this factor, however, and it is the remaining factors that this
court must consider which tip the balance in favor of upholding the trial
court's ruling.
The trial court found
that Kruckenberg's trial, for various reasons, had been pending from 1993 to
December 1994; that although the pre-trial proceedings began on December 12, Kruckenberg did not “wish” to
have Schenk in Milwaukee until the afternoon of December 13; and that the trial
court had informed Kruckenberg that before Schenk could testify as an expert,
Kruckenberg needed to make an offer of proof as to his qualifications. Further, the trial court stated that
Kruckenberg should have been “prepared for all kinds of contingencies,”
including the trial court's ruling on Schenk's expert testimony. Hence, the trial court denied Kruckenberg's
motion based on the need for the efficient administration of justice and to
lessen the burden on the jury.
The trial court could
reasonably conclude that the failure to have a contingent expert witness
available was at least partly due to Kruckenberg's delay in providing Schenk's
offer of proof and lack of preparation for “all kinds of contingencies.” Further, the trial court also took into
consideration the effect further delays in the trial would have on the jury. Based on the particular facts and circumstances
in the case, this court cannot conclude that the trial court erroneously
exercised its discretion in denying the motion for continuance.
B. Blood-alcohol curve.
The trial court also
prevented Schenk from testifying about the absorption of alcohol in the human
body and, more specifically, about a blood alcohol curve which would establish,
based on his expert opinion, Kruckenberg's blood alcohol level at the time he
was driving. We conclude that trial court
erroneously exercised its discretion in excluding Schenk's expert testimony on
this topic.
Schenk's testimony in
Kruckenberg's offer of proof establishes that he was qualified to testify about
the absorption rates of alcohol on the human body, and creation of blood
alcohol curves. He discussed how
alcohol was absorbed by the body, and the factors that could effect this
absorption. In addition, he testified
that he had constructed over 1000 blood alcohol curves in the ten years prior
to his testimony. Further, he had
previously testified in an estimated 150 other trials about the blood alcohol
curve. Under the standards of Rule 907.02, Stats., Schenk clearly possesses the
minimal necessary requirements to qualify as an expert on this limited
subject. The State, of course, would be
free to challenge the credibility of Schenk's expertise through
cross-examination and by providing its own expert witnesses. Thus, the trial court committed an error
when it concluded Schenk was not qualified to testify on such matters; however,
this error was harmless.
Detective Steven Brinza
testified that Kruckenberg was swaying when he entered the police station, that
he had a strong odor of intoxicants on his breath, and that he slurred when
speaking. Further, Detective Brinza
testified that according to the intoxilyzer, Kruckenberg had a .14% BAC when he
was tested.
The effect of any error
in excluding Schenk's expert testimony on the blood alcohol curve was de
minimis given the above evidence.
As such, the error was harmless.
See State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d
222, 231-32 (1985).
C. Chemical data sheets.
Kruckenberg next
challenges the trial court's exclusion of all but the first pages of several
exhibits that provided data on the various chemicals Kruckenberg allegedly
sprayed at work. The trial court
excluded all but the first pages of these exhibits because it concluded that
the remaining pages would confuse the jury.
See Rule 904.03,
Stats.
The exhibits are not
part of the appellate record;[4]
accordingly, this court must presume that the evidence not in the record
supports the trial court's discretionary decision to exclude the pages. See
Austin v. Ford Motor Co, 86 Wis.2d 628, 634, 273 N.W.2d
233, 235 (1979). As such, this court
will not reverse the trial court's ruling.
C. New trial.
Finally, Kruckenberg
asks this court to order a new trial based on the above alleged errors. His argument on this claim is nothing more
than a rehash of his earlier arguments that this court rejected. Accordingly, his arguments need not be
addressed again. See Gross
v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only
dispositive issue need be addressed).
III.
Conclusion.
In short, while this
court rejects most of Kruckenberg's arguments, the trial court did erroneously
exclude Schenk's expert testimony on the blood alcohol curve. Nonetheless, this error was harmless and the
judgment of conviction and order are affirmed.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] The record also supports the
trial court's conclusion that Schenk was not qualified to testify about the
effects of the volatile organic chemicals in question on the human body. Schenk's testimony during the offer of proof
provides this court with no basis for questioning the trial court determination
that Schenk had insufficient knowledge, skill, experience, training, or
education to qualify as an expert on the effects and absorption of such
chemicals on the body. See generally
Rule 907.02, Stats.
Kruckenberg's direct examination and the State's cross-examination of Schenk focused almost exclusively on Schenk's expertise dealing with the effect of volatile organic chemicals on breath testing equipment. Although further testimony by Schenk may have provided a sufficient basis to qualify him as an expert on these chemicals and the effects on human beings, the trial court could validly determine that based upon Kruckenberg's offer of proof, Schenk did not have the minimal expertise necessary to qualify as an expert on this subject under Rule 907.02, Stats.
[3] Rule 901.04(2), Stats., provides:
(2) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.