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State v. Gocker8/11/2004
Given that the trial court has considerable latitude in shaping the scope of recross-examination, we affirm its decision that Paul A. Gocker could not question a sheriff's deputy concerning whether a drunk driving suspect can be forced to submit to a chemical test for the presence of alcohol.
. During redirect examination of a sheriff's deputy, the following exchange took place:
PROSECUTOR: Deputy, as far as the field sobriety tests, is there a reason that you ask a person whether or not they are willing to perform the tests, as opposed to wording it some other way?
WITNESS: Well, it is their option to do the tests.
PROSECUTOR: There is no way that you can force them to take the tests; is that correct?
WITNESS: Correct.
. The trial court permitted defense counsel to conduct recross of the deputy.
DEFENSE COUNSEL: Deputy Tenor, you testified that there is no way to force a suspect to take a test?
WITNESS: A field sobriety test.
DEFENSE COUNSEL: Okay. Is it true that Mr. Gocker did not want to take a chemical test of his breath?
WITNESS: Correct.
DEFENSE COUNSEL: Isn't it a fact that-
PROSECUTOR: Your honor, I will object. Could we approach, and find out what the question is going to be? I have a feeling that I know what it is.
THE COURT: I think I know what you are going to ask, [defense counsel]. It is not permissible. It is a matter of law, and you could have had that matter decided in a pre-trial hearing with a judge. But this is a matter that concerns the jury, I believe. So, we are not going to argue points of law here today, are we?
. After the trial court dismissed the jury for its lunch break, the parties and the court took the opportunity to flesh out the cryptic comments following the State's above-quoted objection.
PROSECUTOR: Just to fill out the record a little bit, your Honor, maybe [defense counsel] can inform the Court as to what the question would have been, that I have objected to. I expect that he would have asked if any law enforcement officer had the ability to force a blood draw from the defendant for a blood test.
DEFENSE COUNSEL: That's correct.
. Appealing from his conviction for operating while intoxicated, third offense, Wis. Stat. §§ 346.63(1)(a) and 346.65(2)(c), the only argument Gocker makes is that the trial court erred in sustaining the State's objection to asking the deputy if he could have forced the defendant to submit to a chemical test of his breath. Gocker argues:
What the defendant is entitled to is a fair trial. It is not fair if the state is permitted to elicit inaccurate information, and draw inferences therefrom. By sustaining the state's objection, the state was able to inaccurately argue that the officer lacked evidence because the defendant hid it from him. Meanwhile, the defendant was deprived of the counter-argument that he did not hide any evidence; rather, the officer rested his hand, afraid to draw another card. The officer had the ultimate control over sobriety testing, and any contrary implication required clarification.
. "The decision whether to admit or exclude evidence lies within the sound discretion of the [trial] court." State v. Head, 2002 WI 99, , 255 Wis. 2d 194, 648 N.W.2d 413. Upon review of evidentiary issues, "[t]he question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record." State v. Wollman, 86 Wis. 2d 459, 464, 273 N.
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