In a case the court of appeals aptly describes as “unusual,” the court exercises its discretionary power of reversal under § 752.35 to throw out Barashki’s OWI 1st conviction and refusal finding on the grounds that the evidence doesn’t show the officer had reasonable suspicion to stop Barashki.
Barashki was ostensibly stopped by an officer named Henson for having nonworking registration lamps. Henson testified at the municipal court trial and, on the basis of Henson’s testimony, the municipal judge rejected Barashki’s challenge to the stop and found him guilty. Barashki sought a de novo trial in circuit court, but at that new trial the Town said Henson was “unavailable”; the circuit court then allowed the Town to submit the municipal court transcript to serve as Henson’s testimony. (¶¶2-3). Relying on the transcript over Barashki’s testimony, the circuit court also rejected Barashki’s challenge to the stop and found him guilty. (¶3).
Why was Henson “unavailable”? Because he was refusing to testify after being charged with misconduct in office for stealing money. Coincidentally, during the municipal court trial Barashki sought to question Henson about cash that was in his car, although the municipal judge sustained the Town’s relevancy objection. (¶¶2, 4, 17 n.8).
The court of appeals holds that the municipal court transcript—replete with instances of “inaudible” responses, many of which leave significant gaps in the facts (¶6)—is woefully inadequate to support the stop of Barashki’s car for having nonworking registration lamps:
¶6 …. The transcript does not include any testimony regarding Henson’s observations of Barashki’s registration lamps before the stop. Nor, we note, does the transcript contain any testimony regarding Henson’s training and experience against which his observations can be evaluated.… The transcript also reflects that Henson was never sworn in as a witness at Barashki’s trial (the municipal court felt it sufficient that he had been sworn in on other cases) and that Henson’s “expertise” as an officer and in field sobriety tests was accepted without any testimony as the municipal court had heard Henson testify in other cases on those issues.…
While the transcript does reflect that Henson stopped Barashki after observing him flash his high-beam lights, it doesn’t provide sufficient evidence that Barashki violated § 347.12, the statute governing when to dim high-beams. (¶¶6, 7 n.5). Nor does the transcript support the finding on the refusal, as “all of Henson’s answers to the question of whether he read the Informing the Accused form were deemed to be inaudible.” (¶9).
¶13 Town counsel indicated that Henson had moved and that counsel did not know his new address. Counsel did not present evidence that he had undertaken any other means, outside of email correspondence with Henson and his attorney, to track down Henson or secure his presence. Given that Henson had recently been convicted in Walworth county circuit court, a recent address for Henson was likely on file or could be quickly obtained. Counsel did nothing more than establish that Henson had ceased cooperating, falling short of the required due diligence necessary before hearsay evidence may be introduced.
And given the “gaping holes” in the transcript, “[m]any of Henson’s responses on both direct and cross-examination are missing, rendering [Barashki’s] prior opportunity essentially meaningless. ‘A judge does not have the discretion to allow the admission of testimony when the right of cross-examination is limited by the circumstances.’ Town of Geneva v. Tills, 129 Wis. 2d 167, 179, 384 N.W.2d 701 (1986).” (¶15).
Appellate practice note: Barashki didn’t arrange for preparation of a transcript of the circuit court trial, so the Town argues the court should assume that facts supporting the circuit court judgment were presented at that trial, T.W.S., Inc. v. Nelson, 150 Wis. 2d 251, 254-55, 440 N.W.2d 833 (Ct. App. 1989). The court acknowledges this rule, especially with regard to the refusal issue (¶¶4, 9 n.6), but forges ahead using its discretionary power to reverse “if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried,” § 752.35, because it is obviously bothered by the fact Henson was convicted of just the sort of behavior Barashki was alleging happened to him. (¶¶1, 4, 18).