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State v. Bogdanske9/6/2000
APPEAL from a judgment and an order of the circuit court for Marinette County: CHARLES D. HEATH, Judge.
Affirmed in part; reversed in part, and cause remanded with directions.
. Joseph Bogdanske appeals from his convictions for operating while intoxicated (third offense), in violation of Wis. Stat. § 346.63(1)(a), and hit and run, in violation of Wis. Stat. § 346.67(1)(a), and from an order denying post-conviction relief. Bogdanske contends that he is entitled to a new trial in the interest of justice on the hit and run conviction because two key witnesses who could provide exculpatory testimony were not available at trial and, thus, the controversy was not fully tried. Bogdanske also argues that he is entitled to a new trial on the OWI conviction because defense counsel was ineffective for failing to object to the jury instruction on expert testimony and hypothetical questions that he claims impermissibly shifted the burden of proof to the defense. This court rejects Bogdanske's argument on the OWI charge, but agrees that in the interest of justice, he is entitled to a new trial on the hit and run charge.
. In the late evening of July 16, 1998, Bogdanske's truck stalled while crossing a main highway. An approaching car on the highway then ran into the driver's side of Bogdanske's truck. A few moments later, the truck started and left the scene of the accident. It is undisputed that no person from the truck stopped to give any identification or insurance information. Less than a mile from the accident, a sheriff's deputy who was dispatched to the accident scene observed the truck with a blown tire riding on a rim, throwing sparks. The deputy stopped the truck, finding Bogdanske's nephew, Russell Brunette, sitting behind the steering wheel. Mark Brunette, Bogdanske's other nephew, sat in the passenger seat, and Bogdanske sat in the middle between his two nephews. Because the deputy suspected Bogdanske had been driving while intoxicated at the time of the accident, she arrested Bogdanske for OWI and then took him to the hospital for a blood tests and treatment of his injuries. The hospital treated him for three broken ribs and measured his blood alcohol concentration at .152%.
. Because Bogdanske's blood was not drawn for testing within three hours of the accident, the State presented expert testimony at trial estimating Bogdanske's blood alcohol concentration to be over .08% at the time of the accident. The trial court instructed the jury that when considering expert testimony based upon a hypothetical question:
Such an opinion should be considered only to the extent that the assumed facts upon which it is based are true and correct. Such an opinion does not establish the facts of the truth upon which it is based.
If you find that the facts stated in the hypothetical question have not been proved, then the opinion based thereon is not to be given any weight.
. At the post-conviction hearing, Bogdanske argued that the instruction impermissibly shifted the burden of proof to him. Although he conceded that his trial counsel did not object to this instruction, he argued then, as he does now, that his counsel was ineffective for failing to object to it.
. Also, Bogdanske's two nephews testified for the first time at the post-conviction hearing. Russell Brunette testified that Bogdanske was driving the truck when it stalled on the highway. Because Bogdanske appeared to be badly hurt and in need of medical attention after the collision, Russell got out of the truck and shoved his uncle to the middle seat. Russell then drove the truck from the accident scene in order to get his uncle to the hospital without givin
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