Friday, August 05, 2011

OWI Appeal - Improper Remarks by Prosecutor Re Testing is Declared

In State of Wisconsin v. Numrich Slip Copy, 2011 WL 3300202 (Wis.App.) the defendant was convicted of OWI. On appeal, the court held that several of the prosecutor's comments or questions were improper. First, the prosecutor raised an objection, and blurted out in front of the jury:

[Prosecutor]: Your Honor, I'm going to object to this line of questioning at this point. Um, all this stuff about air in the bottle, the mixture, counsel had the sample available, he knows he had it tested, and the implication in front of the jury at this point is that there's potentially a problem here. Counsel knows there was no problem and is—

[Defense Counsel]: Judge, I object—

[Prosecutor]:—again, and therefore this line of questioning is both irrelevant and improper because Counsel knows there's no factual basis for the implication of those questions.

On appeal, the prosecutor admitted that this remark was wrong, but sought to excuse it as having been made in the heat of the litigation.
Second, the prosecutor called the State Chemist. During redirect, the prosecutor asked if the blood sample had been picked up for independent testing, and the chemist answered that it had been forwarded to another lab for testing. Numrich's objection was sustained and the trial court instructed the jury to “disregard that line of questioning.”

Third, the defense called an expert to criticize the State's blood test. On cross-examination the prosecutor asked the defense expert if he was involved with the independent testing of the blood sample. The trial court allowed the question over Numrich's objection. The expert answered that he was not involved in the testing, but he had had access to the results.

Fourth, Numrich took the stand. He testified in direct examination that he had consumed the equivalent of twenty-six twelve-ounce beers on Saturday, April 4, 2009, and that he consumed the equivalent of four twelve-ounce beers on the morning of Sunday, April 5, 2009, prior to driving. He further testified that he did not feel impaired by the alcohol, and that he had been drinking his entire adult life and he knew when he had had too much to drink. The State argued that this opened the door for evidence of Numrich's past OWI convictions to impeach his testimony that he knew when he had had too much to drink. The trial court agreed, and the State was allowed to ask Numrich on cross-examination whether he had, on previous occasions, been caught drunk driving, to which Numrich answered that he had.

Fifth, during closing arguments, the defense attorney reviewed the evidence and stated that, in his mind, the evidence created a doubt as to Numrich's guilt. During the State's closing argument the prosecutor said that “[j]ust because [the defense attorney] says something doesn't mean it's true, it means he wants you to think that because it's his job to create doubt.” Numrich made no objection to this comment at the time, but now claims that the prosecutor was improperly disparaging the defense attorney.
All of these issues were then reviewed on appeal. The appeals court found that the prosecutor's repeated references to the independent lab testing was improper, as they were comments 'on matters outside the record.' As to the introduction of defendant's priors, the court found that the defendant's testimony opened the door to the priors.

As far as the comment during closing that the defense attorney's job was "top create doubt" the court found the remark improper.

The trial court found that the prosecutor's statements, when viewed in their proper perspective, were not “overly damaging to the point where the defendant's day in court is being unfairly compromised.” Rather than grant a mistrial, the trial court issued jury instructions informing the jury that any remarks by the attorneys that suggest facts not in the evidence should be disregarded and that no adverse inferences should be drawn from attorneys' objections. And on appeal, the appellate court found the errors to not be sufficient to cause a new trial:

"In the present case, although the prosecutor's trial conduct was somewhat imprudent at times, there is simply no substantial probability that a new trial would have a different result. See id., ¶ 65. Numrich showed all of the signs of intoxication in the one road-side test that he was able to complete. His blood test revealed a blood alcohol content of 0.25, well over the legal limit, and while Numrich raised the specter of sample contamination during cross-examination of the State's witness, when he completed his defense, he had not shown any evidence of actual contamination of his sample. Thus, during closing arguments, the prosecutor was finally on solid ground in commenting that there was no evidence of contamination of the sample. As well, the defense expert admitted that based on the number of drinks Numrich testified to consuming, Numrich's blood alcohol content should have been around 0.12, also well over the legal limit. Because the improper statements of the prosecutor are inconsequential when viewed against the weight of the evidence against Numrich, we decline to order a new trial."

Editors Note: it is troubling that these legal opinions normally fail to identify by name the prosecutor who commits the improper remarks, in my opinion. The opinion does state that the same person who wrote the State's brief was also the trial prosecutor. The author's name is Daniel Kaminsky.

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