Court Error – Testimony

Listen to this article

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Chris Feller

Case No.: 2019AP318

Officials: BLANCHARD, J.

Focus: Court Error – Testimony

Chris Feller appeals a judgment of conviction for driving on a freeway in excess of the 70-miles-per-hour speed limit, in violation of WIS. STAT. § 346.57(4)(gm)2. Feller does not argue that the circuit court clearly erred in crediting the testimony of a radar-equipped state trooper that Feller drove 81 m.p.h. in a 70 m.p.h. zone. Indeed, Feller admitted at the court trial that he drove 81 m.p.h. Instead, Feller argues that the court should have credited his testimony that his speeding was justified because it was necessary to avoid a collision with a dangerous tailgater, and that this justification is a defense. Feller testified that he rapidly accelerated to 81 m.p.h. as he passed another vehicle because he was being dangerously tailgated. But the court credited the trooper’s testimony that Feller was not being tailgated at the time. I assume without deciding that necessity, or “legal justification,” based on the conduct of a nonpolice actor could be a viable defense to a strict liability speeding citation, and affirm because Feller fails to show that the court clearly erred in discrediting Feller’s testimony and crediting the trooper’s testimony on the topic of dangerous tailgating.

Appellate courts do not set aside circuit court findings of fact on appeal unless the findings are clearly erroneous. WIS. STAT. § 805.17(2). It is for the circuit courts to resolve conflicts in testimony and to determine the credibility of witnesses. Global Steel Prods. Corp. v. Ecklund, 2002 WI App 91, ¶10, 253 Wis. 2d 588, 644 N.W.2d 269. Appellate courts search the record for evidence to support factual findings of a circuit court, and do not search for findings that the circuit court could have made but did not. Id. The State was required to prove its speeding case against Feller through “evidence that is clear, satisfactory and convincing.” See WIS. STAT. § 345.45.

On appeal, Feller presents a misleading statement of the case, omitting key testimony by the trooper, and a corresponding argument with an inaccurate premise. It is not true, as Feller asserts, that Feller’s account of a dangerous tailgater “was uncontradicted” by other evidence. As summarized above, in testimony credited by the circuit court, the trooper provided his observation that vehicle 3 was not even tailgating Feller’s vehicle 2 during the pertinent time—much less that there was any indication that vehicle 3 was manically harassing Feller, as Feller testified. In sum, Feller argues on appeal that Feller’s testimony about a dangerous tailgater stood unrebutted and therefore his speeding was justified, but the premise of this argument is inaccurate. The trooper provided “evidence that is clear, satisfactory and convincing” to support the court’s finding of speeding, and the court had more than enough evidence to support a finding that Feller did not speed out of necessity.

Given those conclusions, I need not and do not address the dispute between the parties over whether State v. Brown, 107 Wis. 2d 44, 318 N.W.2d 370 (1982), should be extended to allow for a defense of necessity, or “legal justification,” in a speeding case in which the alleged necessity arose from conduct of a person who is not in law enforcement.

Full Text

Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.