State v. James T. Kettner, 2023AP160, 161, 162, 11/28/23, District 4 (one-judge case, ineligible for publication); case activity
Kettner, pro se, appealed from three traffic forfeiture judgments and claimed that an open records violation prevented him from presenting video evidence that would have proved [his] innocence. The court of appeals rejects his claim and affirms the judgments.
First, the basic facts: officers were dispatched to assist a disabled vehcile. Upon arriving on scene, officers observed two vehicles: the disabled vehicle and a Silverado, later identified as belonging to Kettner. Officers observed Kettner standing outside of the open driver’s door of the Silverado and the owner of the disabled vehicle, Kettner’s girlfriend, sitting inside the Silverado. Kettner told officers that he came to the scene to help lock up his girlfriend’s vehicle, but he denied driving to the scene. After officers observed Kettner’s unsteadiness on his feet, slurred speech, and odor of intoxicants, and after he refused to perform FSTs, Kettner was arrested and refused to submit to a breath or blood test. After obtaining a warrant, Kettner’s blood test revealed a BAC of .109. Op., ¶¶2-4.
Pretrial, Kettener complained about missing evidence, but because the cases were civil traffic proceedings, the circuit court informed him that he had no right to standard pre-trial discovery and that he had to obtain the evidence he sought “in whatever fashion you can.” At the court trial, Kettner testified that “Tim” had driven the Silverado to the scene where he was later arrested, but that Tim, who he just met that night, fled the scene when officers arrived. Officers testified that they observed no third party at the scene. Kettner further testified that he requested body cam footage, but the state informed the court that the video footage had been “lost” due to an issue with the body cam. Op., ¶8.
The court found Kettner’s alternate driver (“Tim”) defense to not be credible and found Kettner guilty and entered judgments for operating with a PAC, operating after revocation, and unlawfully refusing to submit to chemical testing.
On appeal, Kettner argued that the state’s failure to turn over the body cam evidence amounted to an open records violation and that the court of appeals should vacate his convictions and declare a mistrial. After noting that Kettner forfeited the argument by not adequately raising it below, the court further explains that Kettner failed to show why the purported violation entitled him to a new trial. Based on Kettner’s “half-page brief,” the court relies on Wisconsin’s open records law, Wis. Stat. §§ 19.35(4)(a) and 19.37(1), to fault Kettner for failing to utilize the statutory remedies available to him and for failing to show how he was prejudiced by any failure of the state to comply with open records law.
Maybe what Kettner was trying to argue was that the state violated his right to due process by failing to preserve exculpatory evidence under State v. Luedtke, 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592. That claim, however, would have likely failed because, even assuming the rule applies to forfeiture proceedings, Kettner would have had to prove that the missing video footage was either “apparently exculpatory” or that law enforcement acted in “bad faith” by failing to preserve “potentially exculpatory” evidence. Kettner would have had great difficulty meeting either test based on the evidence that came out at his trial.
