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COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 25, 1995 |
NOTICE |
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A party may file
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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.
95-0851
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
CITY OF OSHKOSH,
Plaintiff‑Respondent,
v.
ROSE M. FORBES,
Defendant‑Appellant.
APPEAL
from a judgment of the circuit court for Winnebago County: BRUCE K. SCHMIDT,
Judge. Affirmed.
ANDERSON,
P.J. Rose M. Forbes appeals from a judgment of
conviction of operating a motor vehicle with a prohibited alcohol concentration
contrary to § 346.63(1)(b), Stats. We affirm the conviction and conclude that
the trial court did not err in limiting the scope and content of Forbes's
closing argument.
At
the conclusion of trial, Forbes argued that she should be allowed, in closing
arguments, to present her defense that the chemical test result reported by the
Intoxilyzer 5000 was unduly enhanced by condensation which accumulated in the
machine's mouthpiece. Her argument was
based on the inference that when saliva, which has a much higher alcohol
concentration than one's breath, is left to accumulate on the mouthpiece, the
results are subsequently skewed since the alcohol is picked up when deep lung
air passes over it. Forbes contended
that the contamination was similar to the contamination which occurs during the
calibration check on the machine, in which air bubbles pass through the
simulator solution at the back end of the machine and are contaminated by 0.10%
of alcohol.
Although
the trial court heard Forbes's defense, it would not permit Forbes to make the
argument to the jury in closing statements because expert witnesses were needed
to establish that the test result was skewed by the saliva. The court reasoned, “You can't testify in
your closing arguments as to what may or could have happened, or how the results
could be skewed by, by saliva on the mouthpiece.” Since no evidence or testimony had been provided about the
internal components of the machine to prove the results could have been skewed
by saliva on the mouthpiece, the trial court prevented Forbes from arguing
facts not included in the evidence.
Instead,
the court permitted Forbes to argue the inference that the test results did not
correspond to Forbes's driving, in so much that the officer would have noticed
by her driving that she was intoxicated if she actually had a 0.19% alcohol
content, twice the legal limit.
The
jury subsequently convicted Forbes on two counts—operating a motor vehicle
while under the influence of an intoxicant and operating a motor vehicle with a
prohibited alcohol concentration.
Forbes appeals, arguing that the trial court erred in limiting the scope
and content of her closing argument based on the absence of expert testimony to
support her theory of how the chemical results were skewed.
Standard of Review
As
a general rule, the content, duration and form of closing arguments are within
the trial court's sound discretion. State
v. Lenarchick, 74 Wis.2d 425, 457, 247 N.W.2d 80, 97 (1976). Absent an unreasonable exercise of this
discretion, the trial court's ruling will be affirmed on appeal. See Wingad v. John Deere Co.,
187 Wis.2d 441, 454, 523 N.W.2d 274, 279 (Ct. App. 1994). Proper exercise of discretion requires the
trial court decision to have a reasonable basis, be based upon the facts in the
record, and be in accord with accepted legal standards. See id. at 454-55, 523
N.W.2d at 279-80. In addition, it is
within the trial court's discretion as to whether expert testimony should be
admitted. State v. Hamm,
146 Wis.2d 130, 142-43, 430 N.W.2d 584, 590 (Ct. App. 1988).
Although
Forbes argues that a determination of whether expert testimony is required is a
question of law to be reviewed de novo, no case law backs this contention. The cases cited by Forbes deal with issues
of res judicata and collateral estoppel as matters of law reviewed de novo, not
matters concerning the trial court's requirement of expert testimony.
I.
Expert Testimony Requirement
First,
it is essential to recognize that expert testimony is required if the matter is
“complex and esoteric” and “not within the realm of ordinary experience and lay
comprehension.” White v. Leeder,
149 Wis.2d 948, 960, 440 N.W.2d 557, 562 (1989); see also Wingad,
187 Wis.2d at 456, 523 N.W.2d at 280.
In
T.A.T. v. R.E.B., 144 Wis.2d 638, 654, 425 N.W.2d 404, 411
(1988), the supreme court concluded that the validity and reliability of test
results should not be argued to the jury in closing statements where there is
no basis in the record, in expert testimony or other explanatory evidence to
attack the test. Similarly, although
juries may draw inferences to reach their conclusions, the inferences must be
based on “evidence adduced at trial.” State
v. Fettig, 172 Wis.2d 428, 448, 493 N.W.2d 254, 262 (Ct. App. 1992).
Forbes
contends that the single inference to be drawn by the jury to accept her
argument as valid could be made without scientific knowledge, based solely on
testimony of how the Intoxilyzer 5000 functions. However, it is our belief that expert testimony is needed since
breath sample contamination is beyond a lay person's everyday knowledge and
comprehension.
Differences
may exist between the condensation found in the machine's mouthpiece and a
laboratory-prepared testing sample, especially if the saliva contained other
contaminants. Additionally, no evidence
has been provided to support Forbes's contention that the front and back of the
machine work in the same way. The
officer contended that there were baffles in the mouthpiece to prevent saliva
from entering the machine, but use of the baffles in the back end was never
established by Forbes. Therefore, many
questions remain concerning the design of the machine and the safeguards used
to prevent contamination that cannot be left for the jury to infer.
According
to Forbes, six different parts of the officer's testimony, when linked
together, are sufficient for the jury to draw the inference that her breath
sample was contaminated.[1] Based on T.A.T., there must
be some explanatory evidence or expert testimony to verify a conclusion argued
in closing arguments. See T.A.T.,
144 Wis.2d at 654, 425 N.W.2d at 411.
However, the testimony alluded to by Forbes essentially builds inference
upon inference leading to a conclusion that was never presented during trial.
Based
on the inferences needed to be drawn from the testimony and lack of evidence
concerning the interworkings of the Intoxylizer 5000, the argument Forbes
wanted to make needed to be supported by expert testimony. Therefore, we affirm the trial court's
decision to require expert testimony and find that the trial court did not use
its discretion unreasonably by requiring expert testimony to verify Forbes's
argument.
II.
Scope and Content of Closing Arguments
Closing
arguments are limited to fair comment on the facts of the record; however, the
introduction of new evidence or arguing facts not found in the evidence, is
inappropriate. State v. Richardson, 44 Wis.2d 75, 83, 170 N.W.2d
775, 780 (1969) (citing Flamme v. State, 171 Wis. 501, 507, 177
N.W. 596, 598 (1920)).
The
court, during jury instructions, requested the jury to “Consider carefully the
closing arguments of the attorneys, but [recognize] their arguments and
conclusions and opinions are not evidence.
Draw your own conclusions and own inferences from evidence received and
decide upon your verdict according to the evidence under the instructions given
to you by the Court.”
Although
the trial court instructed the jury to make its own conclusions, allowing
Forbes to make her contamination argument would have enabled Forbes to argue
facts not included in the evidence—facts that the court found could only be
provided by expert testimony.
We
conclude that the trial court properly limited the scope and content of
Forbes's closing argument. Therefore,
the trial court did not unreasonably exercise its discretion in limiting
Forbes's closing argument.
By
the Court.—Judgment affirmed.[2]
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] Forbes contended
in her appellate brief that the six following excerpts from Officer Wilson's
testimony are a foundation to her conclusion that saliva in the mouthpiece
contaminated the lung sample:
(1) Officer
Wilson agreeing that the gathering of a breath test sample is a “critical
stage” in breath analysis because “if [the gathering] procedures are not
followed properly and error gets in, it can throw off the test result¼.”
(2) Officer Wilson admitting that when an individual
exhales into the Intoxilyzer, the mouthpiece “fogs up” with “a concentration
that comes from the moisture in [the subject's] air that they breathe out.”
(3) Officer Wilson discussing the design of the
mouthpiece and acknowledging that it is designed with “baffles” which serve the
purpose of keeping “contaminants like saliva” out of the machine.
(4) Based upon the information in the State of
Wisconsin's breath test operator's training manual, Officer Wilson
acknowledging that “saliva has a twelve percent higher concentration of alcohol
in it than blood ¼,” and “that blood has twenty-one hundred times more
alcohol in it than [a] sample of breath.”
(5) When discussing how the Intoxilyzer 5000 performs a
calibration check, Officer Wilson stating that the machine tests a sample of
air which has bubbled up through a solution of water containing 0.10% ethanol.
(6) Officer Wilson acknowledging that it is the air bubbling up
through the solution and not the solution itself which is used to
perform the calibration check.
[Citations omitted.]