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State v. Mayer2/2/1999
APPEAL from a judgment of the circuit court for Milwaukee County: ROBERT C. CRAWFORD, Judge. Affirmed.
Mark A. Mayer appeals from a judgment of conviction, following a jury trial, for a third offense of operating a motor vehicle while intoxicated. He claims that the trial court erroneously exercised its discretion both in striking the arresting officers' opinion testimony concerning whether Mayer was intoxicated when he was driving, and in refusing to permit the appellant's father, a detective with thirty-three years' experience (Detective Mayer), to give his opinion as to whether the appellant was under the influence of an intoxicant. Because Mayer failed to object to the trial court's striking of the arresting officers' opinion testimony, he may not raise that issue on appeal and it is deemed waived. Additionally, while the trial court did erroneously exercise its discretion by refusing to permit the appellant's father to give either a lay or expert opinion concerning whether the appellant was under the influence of an intoxicant, the error was harmless. Consequently, the judgment is affirmed.
I. Background.
The trial testimony revealed that early in the evening of April 21, 1997, James Bohl witnessed a car driven by Mayer jump the curb in front of his (Bohl's) house and drive onto the adjacent lawn. Bohl testified that he then watched as Mayer parked his car and entered a house up the street. Bohl called the police, who responded to the call approximately twelve to eighteen minutes after Bohl witnessed the erratic driving.
Mayer testified in his own defense. He told the jury that after fighting with his wife, he drove to his father's house, who lives on the same block as Bohl. He admitted that he was driving too fast when he came around the corner and he stated that this was the reason he jumped the curb. He told the jury that after parking the car he went into his father's house, had two beers and then went outside to fix a flat tire on his car, which he was doing when the police arrived.
The arresting officers, Michael Fischer and Anthony Knox, agreed that when they arrived, Mayer was outside changing a tire on his car. Both officers testified that after approaching Mayer, they suspected that he was intoxicated because they smelled alcohol on his breath, which led to the administration of four field sobriety tests. The officers testified that Mayer was able to satisfactorily complete only two of the four tests. During the cross-examination of the two officers, Mayer's trial attorney asked both officers whether they ever saw the appellant driving. Both officers testified that they did not see Mayer driving. Appellant's trial attorney then inquired of both officers whether the officers had an opinion as to whether Mayer was under the influence of an intoxicant when he was driving. Officer Fischer answered that, "As in the time he was driving, no. I have to say it says it after we got to the scene." Officer Knox responded, "My opinion is that it was possible he was under the influence while he was driving." The prosecutor never objected to this line of questioning.
After the State completed its case, the trial court sua sponte advised the parties that the opinion testimony elicited from the officers was not appropriate and proceeded to instruct the jury that they were to disregard the officers' opinions concerning whether Mayer was operating a motor vehicle while under the influence of an intoxicant. At the same time, the trial court also informed Mayer's trial attorney that Detective Mayer would not be allowed to render an opinion as to whether Mayer was under the influence of an intoxicant when Mayer arrived at his home.
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