City can’t get new trial after directed verdict

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“A defendant does not have to choose between seeking a dismissal and the opportunity to present a defense if a motion to dismiss is denied. That would give a distinctly unfair advantage to the prosecution.” Hon. Daniel P. Anderson Wisconsin Court of Appeals

If a municipal trial ends with a motion to dismiss at the end of the city’s case-in-chief, the city cannot obtain a trial de novo in circuit court, the Wisconsin Court of Appeals held on Nov. 19.

After an automobile accident, Thomas L. Carter was charged with operating while intoxicating (OWI) and operating with a prohibited blood alcohol concentration (BAC) in the City of Pewaukee.

Three witnesses testified for the city at trial: an analyst from the state lab regarding the results of the blood test; a citizen witness also involved in the accident, and a police officer who investigated the accident scene and took a statement from Carter.

However, the arresting officer was unavailable, and thus, the city could not establish the foundation for admission of the blood draw. Nevertheless, the city did not request an adjournment, but decided to proceed with the evidence presented, and rested its case.

Carter moved for dismissal on the grounds that the city failed to meet its burden of proof. The municipal court granted the motion, concluding that, without the arresting officer, the city could not tie Carter to the blood test.

The city appealed the decision, requesting a new trial in circuit court pursuant to sec. 800.14(4). Citing Village of Meno-monee Falls v. Meyer, 229 Wis.2d 811, 601 N.W.2d 666 (Ct.App.1999), and finding that the case was not fully litigated, Waukesha County Circuit Court Judge Mark Gempler dismissed the appeal.

The city appealed, but the court of appeals affirmed in a decision written by Judge Daniel P. Anderson and joined by Judge Harry G. Snyder. Judge Richard S. Brown dissented.

The Statute

Section 800.14(4) provides: “Upon the request of either party within 20 days after notice of appeal under sub. (1), or on its own motion, the circuit court shall order that a new trial be held in circuit court. The new trial shall be conducted by the court without a jury unless the appellant requests a jury trial in the notice of appeal…”

Meyer

The court agreed with the lower courts that Meyer controls the result. In Meyer, a municipal court defendant requested a police report, but the village failed to produce it.

Immediately before trial, the village discovered the missing report, but the defendant moved to prohibit its use at trial. The municipal court granted the motion, and the village stated it was unable to proceed. Meyer moved to dismiss, and the court granted the motion.

The city then requested and received a trial in circuit court, at which the defendant was convicted. He appealed, and the court of appeals reversed, holding that, without an initial trial on the merits in municipal court, a party could not request a new trial in circuit court.

Effect of Dismissal

Attempting to distinguish Meyer, the city argued that the case at bar did contain a trial o
n the substantive issues, while in Meyer, there was no trial at all. The city contended that the circuit court’s interpretation effectively requires the defendant to present a defense rather than move for dismissal.

Rejecting the argument, the court found, “The grant of Carter’s dismissal motion effectively truncated his opportunity to present a defense — an opportunity required for the merits of a case to be considered fully litigated.”

The court added, “A defendant does not have to choose between seeking a dismissal and the opportunity to present a defense if a motion to dismiss is denied. That would give a distinctly unfair advantage to the prosecution. We made clear in Meyer that a defendant who succeeded before the municipal court in getting the charges against him or her dismissed should not be faced with possibility that the prosecution will be given a second chance to carry its burden of proof.”

Accordingly, the court held that there was no fully litigated trial on the merits, and affirmed the denial of a new trial in circuit court.

The Dissent

Judge Brown dissented, concluding that Meyer is distinguishable because no trial took place at all in that case, but there was a prior trial in the case at bar.

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Brown observed, “Here, witnesses were sworn under oath and testimony was taken. … At the end of the City’s case, the municipal court granted a motion to dismiss … While I realize that this case was therefore ‘judicially resolved,’ that does not mean there was no trial. I would bet that there is not a litigator in this state who, following a directed verdict after evidence was taken and one party rested, would walk out of the courtroom believing that he or she was not in a trial.”

Brown also criticized the majority holding for relying solely on Meyer, and disregarding the language of the statute. Although Meyer made reference to the prior trial being “fully litigated,” Brown dismissed the sentence as dicta, since, in Meyer, there was no trial at all.

Brown further noted that the trial would have full force and effect for collateral estoppel and res judicata purposes.Finally, Brown noted, “If there is no trial until the case is fully litigated, this means that a motion made at the close of the plaintiff’s case does not allow for a trial de novo in the circuit court but a motion made at the close of all evidence, based on the same legal grounds and thus decided as a matter of law rather than fact, does allow for a trial de novo. I do not think the legislature intended to grant access to the circuit court for new trial purposes depending on when the motion was made (emphasis in original).”

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David Ziemer can be reached by email.