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“Utter Disregard” Element (Reckless Homicide, § 940.02(1)): Sufficient Proof (High-Speed Auto Collision); Discovery: Rebuttal Computer Simulation; Evidentiary Foundation / Probative Value: Computer Simulation

State v. Anrietta M. Geske, 2012 WI App 15 (recommended for publication); for Geske: Jefren E. Olsen, SPD, Madison Appellate; case activity

Sufficiency of Proof – “Utter Disregard” Element (Reckless Homicide, § 940.02(1)) 

Evidence held sufficient to support reckless homicide element of utter disregard of human life, where deaths resulted from high-speed automobile collision after running red light, notwithstanding undisputed evidence that Geske swerved her car in an attempt to avoid the collision. Balistreri v. State, 83 Wis. 2d 440, 458, 265 N.W.2d 290 (1978) and Wagner v. State, 76 Wis. 2d 30, 47, 250 N.W.2d 331 (1977) – in both instances, the driver’s swerving his vehicle precluded finding of utter disregard -, distinguished.

¶18      We agree with Geske that her case is similar in many respects to Wagner, in particular, as well as Balistreri.  It is not, however, the same.  Geske was driving over eighty miles per hour on a major, well-traveled city street after consuming alcohol and prescription pills. She never braked or slowed down before running the red light, even though her view to the right—where the victims’ car came from—was obscured by a large sign.  These factors demonstrate an utter disregard for human life, regardless of whether Geske attempted a last-moment swerve.[2]  A legally intoxicated person[3] driving over eighty miles per hour through the city could not reasonably expect to avoid any collision by swerving at the last moment.[4]  Given the totality of the situation here, Geske’s ineffectual swerve failed to demonstrate a regard for human life.

¶19      This case is distinguishable from Wagner because Geske had ample notice that her victims might cross her path:  a red light at an intersection. …

Wagner could have reasonably expected that others would be aware of the drag-racing cars’ approach that July night, thereby reducing the potential that somebody would enter the racing vehicles’ path.  Geske, on the other hand, should have reasonably expected her victims to cross her path—they had a green light and their view in Geske’s direction was obscured.[5]

¶20      Wagner is further distinguishable because of the extreme speed involved in this case.  There was no evidence in Wagner that the defendant was driving nearly as fast as Geske was.  As speeds increase, the probability of avoiding a collision by swerving, of course, decreases.

Balistreri distinguished in that there, the driver “took numerous actions to avoid collisions,” wasn’t going as fast as Geske, and wasn’t intoxicated, ¶21. If there is an applicable rule, it is that there are no per se rules in this area” but, instead, “a totality of the circumstances approach,” ¶17, quoting State v. Burris, 2011 WI 32, ¶38 n. 9, 333 Wis. 2d 87, 797 N.W.2d 430, which in turn quotes State v. Miller, 2009 WI App 111, ¶37, 320 Wis. 2d 724, 772 N.W.2d 188. (The first rule is that there are no rules.) Factors informing this approach discussed briefly, ¶11, citing State v. Jensen, 2000 WI 84, ¶24, 236 Wis. 2d 521, 613 N.W.2d 170; Wis JI—Criminal 1020 (Apr. 2002); et al. The court is not, of course, saying that swerving is irrelevant to the determination of utter disregard, only that it isn’t necessarily decisive. Consider, in this regard, that the jury received lesser offense options of second-degree reckless and negligent homicide, something the court notes without comment, ¶9; notes, that is, without suggesting that either option should not have been submitted to the jury.

Minor oddity: the court manages to discuss the offense without once giving its statutory cite or quoting its formal elements. Maybe we’re supposed to know without being told, or maybe it just isn’t important. But in case you’re interested, first-degree reckless homicide is a violation of § 940.02(1).

Discovery – Expert Witness Computer Simulation – Rebuttal 

The State’s rebuttal use of a computer simulation (“EDSMAC”) wasn’t covered by pretrial disclosure requirements of § 971.23(1)(d), (1)(e), notwithstanding that the rebuttal witness testified in the case-in-chief and was listed as a witness under para. (1)(d). Discovery requirements apply only to test or experiment results the State intends to use. “Thus, it is irrelevant whether the person who conducted the experiment is named as a witness,” ¶24. Geske’s argument, that an objective rather than subjective test applies to disclosure, is controlled by State v. Moriarty, 107 Wis. 2d 622, 321 N.W.2d 324 (Ct. App. 1982), decided under a prior but “substantially equivalent” discovery statute:

¶27      Here, the prosecutor represented during trial and postconviction proceedings that the State did not intend to offer the simulation in evidence at trial until [defense expert] DeRosia referred to EDSMAC during cross-examination.  The circuit court apparently accepted the State’s representation.  Therefore, in accordance with Moriarty, the State was not required to disclose the EDSMAC simulation prior to DeRosia’s testimony.

¶28      Moreover, even if we were to apply an objective standard, that is, whether a reasonable prosecutor would have intended to use the simulation at trial, Geske’s argument still fails.  The simulation could not be used to confirm the State’s experts’ testimony, because their conclusions required numerical inputs that the simulation program could not accept.  Thus, the EDSMAC program was irrelevant to the State’s case.  It only became relevant when DeRosia testified that an EDSMAC simulation should have been run, and testified regarding what data inputs should have been used.  The State then rebutted DeRosia’s testimony by introducing such a simulation.  That simulation, however, could not validate the State’s experts’ conclusions.  No reasonable prosecutor would have intended to offer irrelevant evidence.

A party has a duty to “promptly notify the other party of the existence of … additional material” that is belatedly uncovered, § 971.23(7): that duty was met here, the court concluding that disclosure of intent to introduce the EDSMAC simulation 2.5 hours after cross-examination of DeRosia was reasonable, ¶¶29-30.

Evidence – Foundation / Probative Value – Computer Simulation

The EDSMAC computer simulation, used to estimate vehicle speed on impact, was admissible, against challenges to foundation and probative value.

¶32      We reject Geske’s argument that the EDSMAC simulation lacked foundation and probative value.  The simulation did not need to precisely reflect all the conditions of the crash to be admissible.  Rather, Meyers only needed to enter data that was “sufficiently similar to [the actual conditions] to give the jury a view of what occur[red].”  See Maskrey v. Volkswagenwerk Aktiengesellschaft, 125 Wis. 2d 145, 166, 370 N.W.2d 815 (Ct. App. 1985).  Any faults in the variables entered into Meyers’ simulation were adequately presented to the jury on cross-examination.  See id. at 165.  Further, the simulation was not introduced to precisely re-create the accident.  Rather, it was introduced to demonstrate that DeRosia’s recommended validation tool failed to validate his conclusions.  The fact that the simulation could not demonstrate whether the Porsche was going eighty-five miles per hour has no bearing on its ability to demonstrate that the Porsche was not going fifty-five miles per hour.

Sentencing Review – Exercise of Discretion 

The court upholds Geske’s sentence to the maximum, rejecting her argument that the trial court placed excessive weight on her demeanor and slighted her clean prior record:

¶36      The court here properly considered the three primary sentencing factors.  We have reviewed the court’s sentencing comments and observe no error in discretion.  The court acknowledged it was aware of Geske’s bipolar disorder and that it may have had an effect on the court’s perception of Geske’s demeanor.  The court was therefore entitled to place the weight on Geske’s demeanor it saw fit.  As to Geske’s truthfulness, the court could properly consider that factor as it related to Geske’s remorse.  The court considered Geske’s “perjured,” “ridiculous,” “selfish,” “laughable,” not “remotely believable,” “manufacture[d]” testimony to be “direct proof of lack of remorse and repentance.”  It was not unreasonable to conclude Geske falsely testified that she inadvertently accelerated through the red light because she was reaching for her little dog.

Nature of sentencing review recited, ¶35.

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