Opinion
No. 2013AP2597.
2014-08-5
CITY OF BLOOMER, Plaintiff–Respondent, v. James S. FRANK, Defendant–Appellant.
Id. The court stated the result of a hearing is not considered an element of prejudice. Id. at 747, 151 N.W.2d 721.
Appeal from a judgment of the circuit court for Chippewa County: Roderick A. Cameron, Judge. Affirmed.
¶ 1 CANE, THOMAS, Reserve Judge.
This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are to the 2011–12 version unless otherwise noted.
James Frank appeals a forfeiture judgment for operating while intoxicated, first offense. Frank argues that the circuit court erroneously exercised its discretion by reopening the case for additional evidence and that the officer unlawfully stopped his vehicle. This court rejects Frank's arguments and affirms.
(a) The evidence has come to the moving party's notice after trial; and
(b) The moving party's failure to discover the evidence earlier did not arise from lack of diligence in seeking to discover it; and
(c) The evidence is material and not cumulative; and
(d) The new evidence would probably change the result.
¶ 17 We generally do not consider arguments raised for the first time in a reply brief. See Bilda v. County of Milwaukee, 2006 WI App 57, ¶ 20 n. 7, 292 Wis.2d 212, 713 N.W.2d 661. In any event, we agree with the City that there is a distinction between a pretrial motion asking the court to consider additional evidence and a posttrial motion for a new trial based on newly discovered evidence.
¶ 18 In State v. Vodnik, 35 Wis.2d 741, 745, 151 N.W.2d 721 (1967), the State argued the circuit court erroneously exercised its discretion by reopening the case for additional testimony because the grounds for such a request did not comply with the requirements for granting a new trial. The Vodnik court, however, first concluded the rehearing was not a “new trial” because there was no resubmission of evidence and only additional proof was adduced. Id. The court then concluded a motion to reopen a case for additional testimony lies in the discretion of the circuit court and that “the limitations upon the exercise of this power are not the same as those limiting the power to grant a new trial.” Id. at 746, 151 N.W.2d 721. It noted that it had not formulated “certain or mechanical rules” for a circuit court's exercise of a motion to consider additional evidence. Id.
[A] litigant has no strict right to reopen a case for the purpose of introducing additional evidence, but the discretion of the trial court seems to rest upon general principles of equity and justice including whether the opposing party is prejudiced in the trial or proof of his contentions.
Id. The court stated the result of a hearing is not considered an element of prejudice. Id. at 747, 151 N.W.2d 721.
¶ 19 We will sustain a discretionary determination if the circuit court “examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.” Loy v. Bunderson, 107 Wis.2d 400, 414–15, 320 N.W.2d 175 (1982). In the present case, the circuit court explicitly found that the City was diligent in trying to obtain the dispatch recordings before the motion hearing and that the sheriff would not release the recordings to the City. These factual determinations are supported by the record and therefore not clearly erroneous. See Noll v. Dimiceli' s, Inc., 115 Wis.2d 641, 643, 340 N.W.2d 575 (Ct.App.1983). Based on the record, we conclude the circuit court did not erroneously exercise its discretion in granting the City's motion and deciding to consider the additional evidence.
¶ 20 Frank next argues Beyer unlawfully stopped his vehicle because he “acted solely on an unidentified and anonymous tip.” A police officer may conduct a traffic stop if the officer has reasonable suspicion, based on specific and articulable facts, that a crime or traffic violation has been or will be committed. State v. Popke, 2009 WI 37, ¶ 23, 317 Wis.2d 118, 765 N.W.2d 569. Whether reasonable suspicion exists is a question of constitutional fact. Id., ¶ 10. We uphold the circuit court's factual findings unless they are clearly erroneous; however, we independently apply those facts to constitutional principles. Id. The information provided by an informant's tip may provide a reasonable basis for a traffic stop, depending upon the reliability and content of the tip. Rutzinski, 241 Wis.2d 729, ¶ 17, 623 N.W.2d 516.
¶ 21 When assessing the reliability of an informant's tip, we consider the informant's veracity and basis of knowledge. Id., ¶ 18. In Rutzinski, our supreme court determined that an officer lawfully stopped a vehicle based solely on a caller's tip and without any independent observations of the reported driving because: (1) the tip exposed the caller to possible identification and therefore possible arrest if the tip proved to be false; (2) the tip reported contemporaneous observations of the driving and vehicle location; and (3) the tip suggested the driver was intoxicated. Id., ¶¶ 31–32, 38.
¶ 22 Here, in terms of veracity, the Hardee's night shift leader provided dispatch with identifying information and exposed herself to possible arrest if the tip proved to be false. See id., ¶ 32. Additionally, she gave dispatch a description of the vehicle, the vehicle's license plate number, and the vehicle's location at Hardee's. Her contemporaneous observations, which were corroborated by Beyer when he arrived at Hardee's, demonstrate sufficient indicia of the shift leader's basis of knowledge. See id., ¶¶ 22–23, 33.
¶ 23 Finally, regarding the content of the tip, the Hardee's shift leader reported that a driver at the drive-through smelled of alcohol, had slurred speech, and had an open intoxicant in the vehicle. The tip therefore alleged a potential imminent danger to public safety. See id., ¶¶ 34, 37 (Informant's allegation of erratic driving suggested an impaired driver, which posed an imminent threat to public safety.). Based on the reliability of and allegations contained in the shift leader's tip, we conclude Beyer was justified in conducting an investigative stop. See State v. Rissley, 2012 WI App 112, ¶ 19, 344 Wis.2d 422, 824 N.W.2d 853 (When deciding whether a stop was justified by reasonable suspicion, the court considers the information available to both the dispatcher and the officer making the stop; “[t]he fact that [the officer] made the stop based on information from dispatch and dispatch had information amounting to reasonable suspicion is enough.”).
The City devotes a portion of its brief to whether the circuit court properly denied Frank's request for a jury trial. The City notes that Frank raised this issue in his docketing statement and that the issue is not addressed in his brief. We deem the issue abandoned and do not consider it. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis.2d 475, 492, 588 N.W.2d 285 (Ct.App.1998) (“In order for a party to have an issue considered by this court, it must be raised and argued within its brief.”).?
Judgment affirmed.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)4.