Appeals court upholds Milwaukee OWI conviction

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The Court of Appeals District I upheld a man’s conviction of operating under the influence second offense, dismissing claims the Milwaukee Circuit Court improperly admitted evidence that was testimonial hearsay.

The state charged Nelson Holmes with operating under the influence, as a second offense, and operating a vehicle with a prohibited alcohol concentration, as a second offense, alleging he caused a two-car accident on N. 35^th Street in Milwaukee while intoxicated on Jan. 15, 2021.

Holmes pled not guilty to both charges but was convicted in Milwaukee County Circuit Court.

According to the complaint, Holmes’ vehicle struck another vehicle containing driver, A.L, and a passenger, G.J. After officers Jordan Kunya and Luis Madrigal arrived on the scene, A.L. and G.J. said they believed Holmes was intoxicated and took his keys so he would not flee the scene.

Kunya contacted Holmes and noticed his eyes were glassy, his speech was slurred, he had difficulty standing and he smelled like alcohol. Holmes initially agreed to perform standard field sobriety test but was unable to complete the tests. Kunya arrested Holmes and had him taken to a hospital where his blood was tested and revealed to contain 0.312 g/100mL of ethanol.

At trial, the state moved to admit two recordings of the 911 calls that G.J. made to 911 after the accident. Holmes argued the admission of the 911 calls violated his rights to confront witnesses since G.J. did not testify in court, only A.L. The court decided to only admit limited portions of the calls — about 40 seconds of the first call where G.J. reported the accident and 20 seconds of the second call when the 911 operator establishes G.J.’s location, name and phone number.

The circuit court ruled — and the appeals court upheld — that the portions of the 911 calls admitted were not testimonial because their primary purpose was to enable law enforcement to respond to the accident that had occurred immediately prior to the 911 calls.

“The primary purpose of G.J.’s statements were not to create an out-of-court substitute for trial testimony relevant to later prosecution, but instead to seek police assistance in response to the car accident,” the court wrote. The call “was meant rather to obtain basic information about the current circumstances to assist police in responding to the car accident.”

Holmes also objected to show portions of footage from Kunya’s body camera at the scene of the accident. He said the officers’ first approach and questioning was a custodial interrogation and he was not read his Miranda rights. He argued that since the G.J. and A.L. had given the officers his car keys, he was in custody before they asked their first question. The court ruled that handing over Holmes’ keys did not transform the officers’ initial approach into a custodial interrogation.

The Appeals Court wrote Holmes’ statements at the scene occurred prior to his arrest and Holmes did not put forth an argument that he was subject to a custodial interrogation when he made those statements. In response, the state argued the circuit court properly admitted Holmes’ statements on the basis they were made voluntarily without prompting by the officers so he was not subject to interrogations requiring Miranda warnings.

“Holmes’ brief-in-chief does not address whether he was subject to interrogation and he declined to file a reply brief disputing the state’s argument. Therefore, we consider it conceded,” the Appeals Court wrote.