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State v. Greene3/15/2000
g of reasonable suspicion in this case. And as with Seibel, we do not see the factors which the supreme court cited in Swanson as the benchmark for every case. Again, each case stands or falls on its own facts.
. We conclude that the facts observed by White represented more than a mere hunch that Greene might be intoxicated. Rather, the facts presented reasonable suspicion of that condition and therefore reasonable suspicion that Greene's blood would reveal evidence of the crime of OWI. We uphold the trial court's rejection of Greene's motion to suppress.
2. Expert Testimony and Greene's Discovery Demand
. During the trial, Patrick Harding, the crime lab chemist who analyzed Greene's blood sample, also testified how "seasoned drinkers" might exhibit signs of intoxication. Greene contends that this testimony was inadmissible because this line of testimony was not revealed by the State in response to Greene's pretrial demand for discovery.
. As relevant to this issue, Greene's discovery demand, paraphrasing the words of Wis. Stat. § 971.23(1)(e), required the State to furnish the defense with copies of "any and all reports or statements of experts made in connection with this case including results of physical, medical, or mental examinations and of scientific tests, experiments or comparisons." The only report or statement provided by Harding to the State at the time of Greene's discovery demand was the blood analysis report. This report was furnished to Greene in accord with the demand. Harding had not provided the State with any report or statement that addressed how "seasoned drinkers" might exhibit signs of intoxication. Therefore, Greene was not provided with any report about Harding's opinion regarding "seasoned drinkers."
. However, the discovery statute addresses this situation. It provides that "if the expert does not prepare a report or statement," then the State must provide "a written summary of the expert's findings or the subject matter of his or her testimony." Id. But this obligation is conditioned on the statute's threshold requirement that the defendant make demand for such material. ("Upon demand, the district attorney shall ... disclose to the defendant ... all of the following materials and information ...." Wis. Stat. § 971.23(1).) Here, Greene's demand covered all reports and statements of experts, but it did not extend to a situation where "the expert does not prepare a report or statement." Section 971.23(1)(e).
. The State's obligation to comply with the discovery statute is triggered by the defendant's demand for discovery. But the scope of that obligation is obviously governed by the scope of the demand. Here, Greene's discovery demand did not extend to a summary of any expert's anticipated testimony in the event the expert had not presented the State with a report.
3. The State's Final Argument to the Jury
. Greene contends that the State made an improper final argument to the jury by: (1) arguing that Greene was a "seasoned drinker," (2) commenting on the lack of evidence from the defense to refute the blood test result, and (3) referring to the driver in the "Princess Diana" accident. He contends that any one of these arguments warranted a mistrial.
. The State's "seasoned drinker" argument stems from Harding's testimony. Greene contends that this argument was not supported by any evidence of his drinking habits. As a result, Greene argues that the jury was encouraged to disregard the instructions concerning the burden of proof and presumption of innocence and to penalize him for not testifying.
. It is true that there was no direct evidence of G
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