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Defense evidence properly excluded for lack of foundation

State v. Scott F. Ufferman, 2016AP1774-CR, District 3, 11/14/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Ufferman complains the trial court’s evidentiary rulings improperly stymied his defense against the charge of operating with a detectable amount of THC. The court of appeals holds the trial court’s rulings were correct.

Ufferman was arrested and charged after crashing his car into a tree. He wanted to present evidence to “innocently account[]” (¶3) for the detectable amount of THC by explaining it wasn’t the result of recent cannabis use. The evidence he wanted to use to support his claim falls into two categories.

First, Ufferman wanted to show the THC was present due to the physical trauma from the crash, which caused the release into his bloodstream of delta-9 THC stored in his body fat from  his prior cannabis use. But he didn’t retain an expert to explain this theory; instead, he sought to admit into evidence an abstract of an article written by an Australian researcher named McGregor about how exercise releases stored THC into the blood, along with McGregor’s CV and two news articles about his research. Ufferman also asked the trial court to take judicial notice that McGregor was an expert on this topic. (¶¶3, 5).

The trial court rightly refused to find McGregor was an expert or allow the admission of the material documents Ufferman offered:

¶18     …. As the [trial] court recognized, judicial notice is only possible if a fact is not subject to reasonable dispute in that it is generally known within the court’s jurisdiction, or it is capable of accurate and ready determination by resort to sources whose accuracy may not be questioned…. See Wis. Stat. § 902.01(2)(a)(b). Ufferman presented neither any evidence nor any witnesses recognizing McGregor as an authority in his field that put his expertise beyond reasonable dispute. The court was well within its discretion in concluding the proffered information alone was insufficient to allow it to qualify McGregor as an expert as a matter of judicial notice.


¶20     …[I]n reviewing and excluding the McGregor materials, the circuit court rightly observed that the materials themselves established no foundation or offered any greater explanation in support of McGregor’s study…. Indeed, Ufferman himself readily admits in his appellate briefing that “McGregor is the first scientist to use” the test he performed. And, of course, McGregor never attempted to apply his principles to Ufferman or to the particular accident in question, which likely contributed to the court’s conclusion the McGregor materials’ probative value was “very small.” Moreover, as the court explained, the fact that Ufferman’s method of presenting this theory rested on media articles “made for popular consumption” created a considerable risk of misleading the jury. In light of the lack of foundation for applying McGregor’s theory to the circumstances of this case and substantial risk of undue prejudice, the court’s decision to exclude the materials was not erroneous.

Second, Ufferman wanted to show that, according to the report of one of the first responders to the crash, Ufferman’s pupils were normal size, and not dilated, as they would have been if he’d recently imbibed. To prove this point he sought to introduce the report of the first responder and excerpts about pupil dilation from a drug recognition manual prepared by the National Highway Transportation and Safety Administration. (¶4). The trial court held both documents were admissible under a hearsay exception, but blocked Ufferman’s attempt to get the information in the documents admitted via cross-examination of Novak, the investigating officer, and Johnson, the hygiene lab expert called by the state. (¶¶5-8). The trial court didn’t err in doing so:

¶13     …. [A]s the court correctly explained, the fact that the ambulance report satisfied a hearsay exception does not obviate all relevancy and foundation requirements for introducing it into evidence. Although Novak testified about the general appearance of Ufferman’s eyes, he did not recall observing Ufferman’s pupil size. Johnson never observed Ufferman at all. Ufferman otherwise failed to establish what the ambulance report was, or why he was seeking to use it, prior to attempting to present it to either Novak or Johnson. These failures happened despite the court’s frequent admonitions regarding the need for some foundation for this exhibit relative to these witnesses and their respective testimony. Given the deficiencies in Ufferman’s presentation of the ambulance report, the circuit court’s rulings were not an erroneous exercise of discretion.

¶14      Ufferman next asserts he should have been allowed to “impeach” Johnson by referencing the NHTSA manual and questioning him regarding Ufferman’s own pupil size. ….

¶15     …. It is axiomatic that an expert witness may only provide opinions in areas where he or she is qualified, subject to the circuit court’s proper exercise of discretion. See Wis. Stat. § 907.02; see also State v. Giese, 2014 WI App 92, ¶¶16-19, 356 Wis. 2d 796, 854 N.W.2d 687. Although the circuit court ruled Johnson was qualified as an expert on biophysical responses to drugs, Ufferman overlooks that Johnson never provided an expert opinion that Ufferman was impaired on the basis of any biophysical responses he exhibited after the crash. In fact, Johnson specifically testified he lacked any memory of the ranges of pupil sizes, and he could not solely rely on the NHTSA manual in forming an opinion on whether Ufferman’s pupils were dilated based upon THC use at the time of the accident.

Note that whether Ufferman ingested THC long before driving isn’t an “innocent” explanation in the sense of being a defense. All that matters under § 346.63(1)(am) is whether there’s a detectable amount, not when the drug detected was ingested; heck, it doesn’t even matter whether the defendant knowingly ingested the drug, State v. Luedtke, 2015 WI 42, ¶¶64-78, 362 Wis. 2d 1, 863 592. That said, the expert from the state hygiene lab made an estimate as to when Ufferman may have ingested the THC (¶7), so evidence that Ufferman’s use was further back in time might make the state’s expert look less credible. At the same time, as the court explains, evidence supporting the conclusion Ufferman used days or weeks before doesn’t undermine the expert’s opinion that there was, in fact, a detectable amount of delta-9 THC in Ufferman’s blood. (¶16). The court also notes Ufferman made no attempt to admit the ambulance report through other available avenues—namely, the first responder who measured Ufferman’s pupils (Ufferman released that witness from subpoena before trial) or during his own direct testimony. (¶¶4, 12).

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