Opinion
No. 98-1630-CR.
Opinion Released: November 25, 1998. Opinion Filed: November 25, 1998. This opinion will not be published. See Rule 809.23(1)(b)4, Stats.
APPEAL from a judgment of the circuit court for Waukesha County: JOSEPH E. WIMMER, Judge. Affirmed.
James M. Duncan appeals from a conviction of operating a motor vehicle while under the influence of intoxicants contrary to § 346.63(1)(a), Stats. Duncan contends that there was insufficient evidence to support the jury's guilty verdict. Duncan further contends that the trial court misused its discretion by not conducting a voir dire of a juror who was inattentive during final jury instructions and requests a remand for a determination of prejudice. We disagree and affirm the judgment of conviction.
A jury also returned a verdict of guilty to operating with a prohibited blood alcohol concentration contrary to § 346.63(1), Stats., which was dismissed.
On December 16, 1994, at approximately 7:00 p.m., Thomas Verhaalen was driving west on Highway Q when a truck cut him off at an intersection, passed westbound traffic in an inclined no passing area and forced oncoming traffic onto the eastbound shoulder. Verhaalen testified that the truck turned south on Town Line Road and forced northbound traffic to stop because of its erratic operation and crossing of the center line. Verhaalen saw one person in the truck. It had started to snow and the driving conditions were slippery. Verhaalen then "saw headlights[,] tail lights, headlights" and observed the truck to be in the west ditch. After seeing that the truck's driver was uninjured, Verhaalen drove home and called the police.
At approximately 7:45 p.m., Village of Menomonee Falls Police Officer David Wodushek responded and found the truck in the ditch with its engine running and one occupant in the driver's seat. Tracks in the snow indicated that the vehicle had spun around before stopping in the ditch. Wodushek identified Duncan as the occupant of the truck. Wodushek testified that Duncan's "eyes were very red, bloodshot, glossy" and that he "detected the odor of alcoholic beverages being emitted from his breath as well as some slurred speech." Duncan had difficulty locating his driver's license.
Officer Michael Douglas arrived at the scene and also noticed a strong odor of alcohol on Duncan's breath and that his speech was slurred and his eyes were red and bloodshot. Douglas testified that Duncan told him that "he had been driving his vehicle southbound on Town Line Road and he had slid into the ditch." Duncan admitted to drinking two beers. He failed three field sobriety tests and was placed under arrest. He provided a blood sample and State Hygiene Laboratory Chemist William Johnson testified that the blood alcohol content of Duncan's sample was 0.176% by weight.
The tests administered were the finger-to-nose test, the one-leg-stand test and the walk-and-turn test.
Duncan first contends that the evidence was insufficient to support the jury's finding that he had operated a motor vehicle on a public highway. We review whether the evidence, viewed most favorably to the State and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. See State v. Ray , 166 Wis.2d 855, 861, 481 N.W.2d 288, 291 Ct. App. 1992). We will not substitute our evaluation of the evidence for that of the jury. See State v. Barksdale , 160 Wis.2d 284, 290, 466 N.W.2d 198, 201 Ct. App. 1991). The jury determines the credibility of witnesses and the weight of their testimony. See State v. Wachsmuth , 166 Wis.2d 1014, 1023, 480 N.W.2d 842, 846 Ct. App. 1992).
Duncan argues that the evidence of his operating a motor vehicle on a public road is insufficient because the police never saw him operate the vehicle on a public roadway, Verhaalen never specifically identified the vehicle that the officers found in the ditch to be the same one he had observed operating on Highway Q and Town Line Road, and Verhaalen never identified Duncan as the driver of that vehicle. Duncan describes Verhaalen's testimony as "vague and unconvincing." We are not persuaded.
Although the police officers did not actually see Duncan drive his vehicle, there was sufficient direct and circumstantial evidence before the jury of Duncan's operation of a vehicle on public roads in a manner that resulted in the vehicle going into the Town Line Road ditch. Verhaalen testified that a truck with one occupant passed his vehicle, crossed the center line, operated erratically, spun out of control and went into the ditch at a specific location. Verhaalen called the police. Wodushek proceeded to the location where Verhaalen had reported the vehicle was in the ditch and observed Duncan alone in the vehicle with the engine running. Duncan admitted to Douglas that he had been driving the vehicle southbound on Town Line Road and had slid into the ditch. We are satisfied that sufficient evidence supports the jury's determination that Duncan operated his vehicle on a public roadway.
Duncan next contends that a juror's sleepiness during the reading of final jury instructions required the trial court to determine if prejudice resulted. The record begins with the trial court interrupting the final instructions reading by stating, "We will just take a short break and make certain everyone is wide awake here," and there was a brief pause. Neither the State nor Duncan commented on the interruption until after the jury returned the guilty verdicts. Defense counsel then made the following record:
I just wanted to note for the record that the court had to stop jury instructions to wake up one of the jurors, who according to the polling, was Mr. Joseph Peters. I'm not sure, I know the court observed it. I'm not sure how long Mr. Peters was failing to listen to the court's instructions. I just want to make sure that the record reflects that the reason that you asked the jury to pay attention was because of that particular situation.
The trial court responded:
Thank you. The court paid very close attention to all of the jurors and I did note at one point Mr. Peters started to nod his head and close his eyes. That was less than — that was a number of seconds that it took place within, and at that point . . . I took a break and I said I want to make certain that the members of the jury are alert and wide awake, so therefore, from that point on, he again kept his eyes wide open. I was paying close attention to him.
How to proceed when faced with an assertion of jury inattentiveness is determined by the trial court's informed discretion. See State v. Hampton , 201 Wis.2d 662, 670, 549 N.W.2d 756, 759 Ct. App. 1996). We look to the trial court's on-the-record explanation of the reasons underlying its decision in determining a proper exercise of discretion. See id. If the trial court examined the facts of the case and reasoned its way to a conclusion that a reasonable judge could reach and is consistent with applicable law, we affirm even if we might not agree. See Burkes v. Hales , 165 Wis.2d 585, 590, 478 N.W.2d 37, 39 Ct. App. 1991). Duncan, relying on Hampton , argues that he was entitled to a trial court inquiry as to juror Peters' inattentiveness and that the trial court erroneously exercised its discretion in failing to voir dire Peters. We disagree.
In Hampton , the defense moved for a mistrial and asked the trial court to voir dire a juror who was sleeping during the testimony of a witness. See Hampton , 201 Wis.2d at 666, 549 N.W.2d at 757-58. The trial court denied the mistrial motion and failed to honor the request to question the suspect juror. See id. at 667, 549 N.W.2d at 758. We determined that Hampton's objections were timely and made with specificity. See id. at 670-71, 549 N.W.2d at 759. We concluded that because the trial court was afforded the opportunity to directly address the threat to impartiality and prejudice to Hampton and failed to do so, there was an erroneous exercise of discretion. See id. at 673, 549 N.W.2d at 760.
In Hampton , however, we noted that a complaining party would waive any objection to a sleeping juror if the objection was untimely. See id. at 669, 549 N.W.2d at 758-59. Objections are required at trial to allow the trial judge an opportunity to correct or avoid errors. This fosters efficient judicial administration and can eliminate the need for an appeal. See Vollmer v. Luety , 156 Wis.2d 1, 11, 456 N.W.2d 797, 802 (1990). Here, Duncan never objected to juror Peters' inattentiveness. Duncan only sought clarification of the trial court's interruption during the final instructions and waited to do so until after the jury had returned its verdicts. Duncan never contested the trial court's response to his clarification inquiry. It is axiomatic that a trial court must have the opportunity to exercise its jurisdiction before it can do so erroneously. Because Duncan did not timely raise the inattentive juror issue in the trial court, did not preserve the issue for appellate review and did not request the trial court to exercise its discretion as to juror inattentiveness as occurred in Hampton , we hold that the issue is waived.
By the Court. — Judgment affirmed.