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04/26/83 STATE WISCONSIN v. JOSEPH GAUDESI

April 26, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT-PETITIONER
v.
JOSEPH GAUDESI, DEFENDANT-APPELLANT



Review of a decision of the Court of Appeals. Reversing William G. Callow, J.

The opinion of the court was delivered by: Callow

This review arises out of an unpublished decision of the court of appeals which reversed a judgment of conviction against Joseph Gaudesi for operating a motor vehicle while under the influence of an intoxicant in violation of sec. 346.63(1), Stats., 1979-80. *fn1 The judgment was entered by the Milwaukee county circuit court, Judge Joseph P. Callan, following a jury trial.

Gaudesi was arrested on November 11, 1980, and charged with violating sec. 346.63(1), Stats., 1979-80. [All references in this opinion are to the 1979-80 statutes unless otherwise indicated.] The criminal complaint stated *fn2 that on November 11, 1980, Milwaukee County Deputy Sheriff Robert Hillman saw Gaudesi driving a vehicle on the highway and subsequently stopped him. According to the complaint, Deputy Sheriff Hillman concluded Gaudesi was intoxicated after observing that his breath had a strong odor of alcohol, his eyes were red and glassy, and his balance was poor.

Prior to trial, Gaudesi brought a motion to dismiss on the ground that the complaint was insufficient to establish probable cause. He argued that the complaint was defective in that it failed to set forth the essential facts constituting the offense charged as required by sec. 968.01, Stats. The trial court denied the motion, ruling that the complaint was sufficient.

The case proceeded to trial on July 29, 1981. The state's only witness was Deputy Sheriff Hillman. He testified that at approximately 7 p.m. on November 11, 1980, he observed Gaudesi driving erratically on the highway -- i.e., he was weaving between lanes. Deputy Sheriff Hillman stopped Gaudesi and asked to see his driver's license. When Gaudesi stated that he did not have his license with him, Hillman asked for his name and date of birth. At this point Hillman noticed that Gaudesi's breath had a strong odor of alcohol, his speech was slurred, and his eyes were red and glassy. Hillman asked Gaudesi to step out of his car and to perform three sobriety tests. Gaudesi was asked to recite the alphabet, close his eyes and touch his finger to his nose, and walk a line heel-to-toe. While attempting to perform the tests, he showed poor balance. After Gaudesi failed all three tests, Hillman concluded that he was intoxicated and placed him under arrest for operating a vehicle while under the influence of an intoxicant.

Gaudesi's version of the incident is significantly different. He testified that at about 5:20 p.m. on November 11, 1980, he went to a bar. During the one and one-half hours he was there, he had two or three mixed drinks. He also called a friend, Paul Miller, to arrange for a ride home as he had to drop off his car at a service station later that evening. Gaudesi stated that he left the bar at approximately 6:45 p.m. On his way to the service station, he noticed something was wrong with his automobile. The rear end of the car began to wobble. In an effort to diagnose the problem, he changed lanes a number of times and varied his speed. It was at this time that Deputy Sheriff Hillman pulled him over, made him take the sobriety tests, and placed him under arrest. Gaudesi testified he informed Hillman that a mechanical problem caused the erratic movements of his car but that Hillman made no effort to investigate. Gaudesi stated that, when he picked up his car the next day, it had a flat tire. Gaudesi also testified that the consumption of alcoholic beverages did not influence his driving on November 11, 1980.

Gaudesi introduced the testimony of two other witnesses. The bartender who served Gaudesi on November 11, 1980, testified that he did not appear to be intoxicated or under the influence of an intoxicant on that date. In addition, Paul Miller testified that, when he spoke to Gaudesi over the telephone at about 6:30 p.m. on November 11, 1980, Gaudesi was lucid and spoke normally.

At the close of the evidence defense counsel requested an instruction on a theory of defense. *fn3 The defense was that any erratic driving by Gaudesi during the incident was caused by the defective condition of his automobile, not the consumption of alcohol. The trial court denied the instruction, ruling that it was not supported by credible evidence and would be cumulative.

The jury found Gaudesi guilty of driving while under the influence of an intoxicant. Gaudesi brought a post-conviction motion for a new trial on the ground that the theory of defense instruction was improperly denied. The trial court denied the motion and entered judgment on the verdict.

Gaudesi appealed, raising the following issues: (1) The complaint was insufficient, (2) the evidence presented at trial was insufficient for the jury to find Gaudesi guilty beyond a reasonable doubt, and (3) the trial court erroneously denied the theory of defense instruction. The court of appeals reversed the judgment of conviction, holding that the complaint was insufficient. In reaching this Conclusion, the appellate court found that the complaint failed to recite the elements of the offense charged and, therefore, did not establish probable cause. The court of appeals did not reach the remaining issues. We granted the state's petition for review. The issues presented on this review are the same as those raised before the court of appeals.

I. SUFFICIENCY OF THE COMPLAINT

This court has often stated that a complaint is a self-contained charge. It must set forth facts which would lead a reasonable person to conclude that a crime had probably been committed and that the defendant named in the complaint was probably the culpable party. *fn4 State v. Haugen, 52 Wis. 2d 791, 793, 191 N.W.2d 12 (1971). "The test under Wisconsin law of the sufficiency of the complaint is one of 'minimal adequacy, not in a hypertechnical but in a common sense evaluation, in setting forth the essential facts establishing probable cause.'" State v. Olson, 75 Wis. 2d 575, 581, 250 N.W.2d 12 (1977) [quoting State ex rel. Evanow v. Seraphim, 40 Wis. 2d 223, 226, 161 N.W.2d 369 (1968)]. We have held that a complaint adequately establishes probable cause if it answers the following five questions:

"(1) Who is charged?; (2) What is the person charged with?; (3) When and where did the alleged offense take place?; (4) Why is this particular person being charged?; and (5) Who says so? or How reliable is the informant?" State v. White, 97 Wis. 2d 193, 203, 295 N.W.2d 346 (1980); State ex rel. Evanow v. Seraphim, 40 Wis. 2d 223, 229-30, 161 N.W.2d 369 (1968).

In the instant case there is no dispute that the complaint satisfactorily answers the first, second, third, and fifth questions. *fn5 The parties disagree, however, as to whether the ...


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