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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
June 24, 1999
A party may file with the Supreme Court a
                                                                                    Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                    Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                    of Wisconsin              STATS.
No.                                                                                 99-0352-CR
STATE OF WISCONSIN                                                                  IN COURT OF APPEALS
                                                                                    DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
EDDIE L. QUINN,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Dane County:
DANIEL R. MOESER, Judge.  Affirmed.
VERGERONT, J.1     Edward Quinn appeals a judgment of conviction
on two counts of battery contrary to § 940.19(1), STATS., one count of disorderly
conduct contrary to § 947.01, STATS., and one count of dissuading a victim from
1    This appeal is decided by one judge pursuant to § 752.31(2)(f), STATS.




No. 99-0352-CR
reporting a crime contrary to § 940.44(1), STATS.2   He contends we should reverse
the convictions and order a new trial because he was prevented from presenting a
defense of impairment due to intoxication, and the real controversy was therefore
not tried.   We conclude the trial court rulings challenged by Quinn were not error
and did not prevent him from presenting a defense.   We are also not satisfied that
the  real  controversy  was  not  tried,  and  therefore  decline  to  exercise  our
discretionary power of reversal.   We affirm.
The incident giving rise to the charges occurred at Debra Scott’s
apartment, where Quinn, Scott, and a third person, Marvin Pierce, were drinking
vodka and ingesting cocaine.   Scott testified at trial that Quinn became angry and
hit her on the side of the face, at which point Pierce left.   Quinn then threw objects
around the apartment, repeatedly kicked and hit Scott, and dragged her around by
her hair.   When she picked up the phone to call the police, Scott testified, Quinn
grabbed the phone from her and broke it.   Scott’s neighbor, Robert Stettenbenz,
heard Scott’s calls for help and came to her apartment.   Stettenbenz testified that
he told Quinn to leave or he would call the police.   Since Quinn refused to leave,
Stettenbenz went back to his own apartment and called 911.   When he returned to
Scott’s apartment, Quinn was putting his coat on.   Stettenbenz testified that he
motioned for Quinn to stop and told him to stay until the police came.   As Quinn
walked away, Stettenbenz said, “Yeah, run away, you cowardly woman beater.”
Quinn punched Stettenbenz in the face and knocked him to the floor.
Quinn  was  initially  represented  by  counsel,  but  subsequently
discharged his attorney, waived his right to counsel and proceeded pro se, with
2                                                                                         Each  count  was  enhanced  under  the  habitual  criminality  statute,   § 939.62(1)(a),
STATS.
2




No. 99-0352-CR
standby counsel to assist him.   In his opening argument to the jury, Quinn told the
jury that for his defense he was relying on § 939.42(2), STATS., which provides
that the intoxicated condition of the actor is a defense if it negates the existence of
a state of mind essential to the crime.3   Quinn did not present any expert testimony
with respect to impairment due to intoxication and did not testify himself.
In  addition  to  Scott’s  and  Stettenbenz’s  testimony  on  Quinn’s
behavior, Officer Brad Armstrong, who arrived at the apartment as Quinn was
leaving, testified.    He  saw  Quinn  “rapidly”  walking away and took  him into
custody.   He testified that Quinn smelled of alcohol, but “in no way appeared to be
incapacitated” by alcohol or drugs.   Officer Armstrong testified that he had had
contact with about fifty persons incapacitated by alcohol and had observed some
of the symptoms of incapacitation due to alcohol to be:   the person cannot walk
without assistance, the person is vomiting, and the person is unable to take care of
himself  or  herself.    Quinn,  the  officer  testified,  did  not  show  any  of  these
symptoms; and the jail, which by policy does not accept anyone who appears
incapacitated or has a blood alcohol level above .3, accepted custody of Quinn.4
On cross-examination Officer Armstrong acknowledged that he did not know how
much alcohol or cocaine Quinn had consumed the day of the incident.
3    Section 939.42, STATS., provides:
Intoxication.   An intoxicated or a drugged condition of the
actor is a defense only if such condition:
(1) Is involuntarily produced and renders the actor incapable
of  distinguishing  between  right  and  wrong  in  regard  to  the
alleged criminal act at the time the act is committed; or
(2) Negatives the existence of a state of mind essential to the
crime, except as provided in s. 939.24 (3).
4    Persons not accepted for these reasons are taken to the detoxification center.
3




No. 99-0352-CR
At the close of evidence, Quinn requested that the instruction based
on § 939.42(2), STATS., be given to the jury.   The trial court denied the request,
concluding that there was no evidence that would allow a jury to determine that
Quinn was sufficiently impaired due to the consumption of alcohol to negate the
existence of intent.5
DISCUSSION
On appeal, Quinn contends that the trial court erroneously prevented
him from presenting his defense of voluntary intoxication.   As Quinn recognizes,
voluntary intoxication is not a legal excuse for a crime, but, when intent is an
element of a crime, evidence that the defendant was intoxicated may constitute
evidence that the requisite intent was lacking.   State v. Strege, 116 Wis.2d 477,
486,  343  N.W.2d  100,  105  (1984).    An  instruction  on  voluntary intoxication
requires that “[t]here … be some evidence that the defendant’s mental faculties
were so overcome by intoxicants that he was incapable of forming the intent
requisite to the commission of the crime.”   Id.   According to Quinn, the court
prevented him from presenting this defense by making three erroneous rulings.
First, the court ruled that certain questions Quinn was attempting to ask Scott were
not relevant:
QUESTION:   I was going to ask in regards to the supposed
alleged arguments or whatever before, do you recall that on
occasion you would have to tell me why we were -- why
you were angry with me or why you were giving me the
cold shoulder, so  to speak, because of  something  I had
allegedly  done  or  said  the  night  before,  but  didn’t
remember having done?
ANSWER:   I don’t understand.
5     The trial court also denied Quinn’s request for a jury instruction on self-defense
regarding the charge of battery to Stettenbenz, but that ruling is not an issue on this appeal.
4




No. 99-0352-CR
QUESTION:   Did you ever have to tell me something that I
supposedly had said or done the night before, and I didn’t
remember?
THE COURT:   I’m going to rule that that’s not relevant,
Mr. Quinn, what the arguments on other occasions were
about.6
(Footnote added.)
Second, the court sustained the State’s objections to two of Quinn’s
questions to Officer Armstrong:
QUESTION:   Yes.   Officer Armstrong, you -- are you an
expert on alcoholics and alcoholism, in any way an expert
in that field?
[PROSECUTOR]:   Objection; relevance.   And it’s beyond
the  scope  of  the  question.     I  didn’t  ask  him  about
alcoholism or alcoholics.   I just asked about --
THE COURT:   I’ll overrule the objection.   Go ahead.
ANSWER:     I  have  had  college  education  specifically
dealing with alcohol  and other drugs.    And as  a police
officer,  I  work  with  people  who  are  intoxicated  or
incapacitated pretty much every night.
QUESTION:      Officer,  in  your  experience,  in  your
education, does that apply to everybody?
THE COURT:   Does what apply to everybody?
THE DEFENDANT:   The things that he just indicated.   I
mean, in your experience, can you tell this jury that the
same thing -- everybody reacts the same way, or how much
quantity one person has to have to become incapacitated to
the point the definition that you gave, or descriptions that
you gave?
[PROSECUTOR]:   Your Honor, I object to the form of that
question.
THE COURT:   Sustained.
….
6    Quinn asserts this ruling was on the court’s own initiative.   However, as we explain
later, this quoted portion was immediately preceded by an objection that the court did not rule on;
instead, it gave Quinn the chance to complete the question.
5




No. 99-0352-CR
QUESTION:   I have to ask this again.   I don’t think I am.
You said what education you had or experience that you
had.   You didn’t -- you don’t claim to be an expert, do you?
[PROSECUTOR]:    Objection.    He’s asked this question
before, and the witness answered what his experience was
and his educational background.
THE  DEFENDANT:    I  asked  him  before  if  he  was  an
expert.   That’s what I asked him.
THE COURT:   The issue isn’t whether this witness thinks
he’s an expert.   He’s told us his training and experience.
The jury will decide what weight to give to his testimony.
Third, the court denied the requested jury instruction for the intoxication defense.
These errors, Quinn contends, deprived him of his right to present a
defense, which is grounded in the confrontation and compulsory process clauses of
the Sixth Amendment to the United States Constitution and Article 1, Section 7 of
the Wisconsin Constitution.   See State v. Pulizzano, 155 Wis.2d 633, 645, 456
N.W.2d  325,  330  (1990).    Quinn  also  contends  that  we  should  exercise  our
discretionary powers of reversal under § 752.35, STATS., and remand for a new
trial because, by virtue of these trial court errors, the real controversy was not
tried.   Although Quinn treats the argument on his constitutional right to present a
defense as part of his argument for a discretionary reversal, we view them as
distinct and alternative arguments.   We address the constitutional claim first.
Whether the trial court’s rulings excluding evidence deprived Quinn
of his constitutional right to present a defense is a question of law, which we
review de novo.   See State v. Dodson, 219 Wis.2d 65, 69-70, 580 N.W.2d 181,
185 (1998).   The constitutional right to present evidence is not absolute, but grants
a defendant the right to present only relevant evidence that is not substantially
outweighed by its prejudicial value.   Pulizzano, 155 Wis.2d at 646, 456 N.W.2d at
330.   Similarly, a defendant is entitled to a requested instruction on his or her
6




No. 99-0352-CR
theory of defense only if it is supported by some evidence.   Turner v. State, 64
Wis.2d                                                                                  45,                                                                       51,   218  N.W.2d  502,  505  (1974).    We  conclude  that  Quinn’s
constitutional right to present a defense was not violated, because the court’s
rulings did not exclude relevant evidence and there was no evidence to support the
voluntary intoxication instruction.
With respect to Scott’s testimony, the court ruled that  “what the
arguments on other occasions were about” was not relevant.   The court did not
rule, as Quinn suggests, that questions of prior instances of his blackouts were
irrelevant.   As we read the transcript, which we have gone over carefully, the trial
court  apparently  thought  that  Quinn  was  trying  to  question  Scott  on  prior
arguments to make other points about their relationship and her credibility; the
court did not perceive that Quinn wanted to get from there to a question about his
not being able to recall what happened in those prior arguments.   We read the
transcript in this way because, just preceding the questions to Scott that we have
quoted above, Quinn asked two questions concerning prior arguments with her,
which the State objected to—the first on the ground that it was repetitious, which
the court sustained, and the second on the ground that the question misstated
Scott’s testimony, which the court did not rule on, instead allowing Quinn to finish
the question.   In neither of the prior questions, nor those quoted above, does Quinn
refer to                                                                                “blackouts.”    He does, in the quoted questions, eventually get to the
question of whether he had done or said something on those prior occasions that
he did not remember.    However, we are persuaded that the court’s ruling on
relevancy was directed to the substance of the prior arguments, not prior instances
of blackouts.   As such, it was correct.
If  Quinn  felt  that  he  needed  to  establish  the  substance  of  prior
arguments to make his point about prior blackouts, he should have explained that
7




No. 99-0352-CR
to the court.   In any event, the court’s ruling did not prevent Quinn from asking
about prior blackouts, as along as he did not go into “what the arguments on other
occasions were about.”7
Similarly, the court’s rulings with respect to Officer Armstrong’s
testimony  did  not  exclude  relevant  evidence.    The  first  objection  the  court
sustained was “to the form of that question.”   That was a proper ruling because the
question was a compound one.   Quinn did not attempt to rephrase the question, but
the  court’s  ruling  did  not  prevent  him  from  doing  so.    The  second  ruling
challenged—to the question whether Officer Armstrong claimed to be an expert—
was also correct.   The trial court rules on whether a witness is qualified either by
training or experience to testify as an expert.   See Wester v. Bruggink, 190 Wis.2d
308, 317, 527 N.W.2d 373, 377 (Ct. App. 1994).   If the trial court determines that
a witness is qualified, the jury decides how much weight to accord that testimony.
See State v. Peters, 192 Wis.2d 674, 688, 534 N.W.2d 867, 872 (Ct. App. 1995).
The witness’s own opinion on whether he or she is an expert is not relevant
because it does not tend to make a fact of consequence more or less probable.   See
§ 904.01, STATS.   The court allowed Quinn to ask Armstrong about his training
and experience and to examine the basis for his observation that Quinn was not
incapacitated the night he was arrested.   Quinn argues that treatises recommend
that, in laying a foundation for expert testimony, the attorney ask the witness
whether he or she has previously testified as an expert in the particular area.
However, that is not the question Quinn asked.
7    The State also contends that testimony on prior blackouts was irrelevant because it was
not probative of whether he blacked out on this particular evening.   We need not address that
contention.
8




No. 99-0352-CR
We  also  conclude  the  trial  court  correctly  denied  the  requested
instruction  on  voluntary  intoxication.    We  do  not  agree  with  Quinn  that  the
following  statements,  considered  together,  warrant  the  instruction:    counsel’s
statement at the pretrial hearing on the intended defense and need for an expert,8
the “suggestion” in Quinn’s cross-examination of Scott that he did not remember
what happened that night, his closing argument that he “still [didn’t] know what
happened,” and Scott’s testimony that Quinn “went crazy.”   The first three are not
evidence and the last falls far short of the evidence needed for the instruction.
The trial court considered the standard for giving the instruction as
explained  in  Strege,                                                                           116  Wis.2d  at  485-86,  343  N.W.2d  at  105.    The  court
correctly concluded that there was even less evidence to support the instruction in
this case than in Strege, where the court held the evidence was insufficient to
warrant the instruction.   In Strege, there was testimony that the defendant had
consumed ten to fifteen beers and an unspecified amount of valium before the
incident and was “well up there” or “pretty high.”   However, the court pointed out
there was no testimony over what period of time the beer was consumed, and no
expert testimony on the likely effect of the beer or drug on a person of Strege’s
size and with his history of use.   The Strege court then concluded that the evidence
fell short of “the evidence of impairment necessary to warrant an instruction on
voluntary intoxication.”    Id. at  487,  343 N.W.2d at  105.    In this case Officer
Armstrong  testified  that  Quinn  was  not  impaired.    Scott’s  and  Stettenbenz’s
testimony established that Quinn was angry and violent but did not establish that
he was mentally impaired.   Quinn could have asked whether they observed him to
8    The minutes of the pretrial hearing include the statement, “Need expert—defense is
intoxication.”   Although it is not clear from the record who raised this issue, we assume for
purposes of this opinion that Quinn’s counsel made the statement as Quinn asserts.
9




No. 99-0352-CR
be impaired, but he did not.   And, although there was testimony that the three
ingested cocaine and consumed a liter of vodka (or, according to Pierce, not all of
a liter of vodka), there was no testimony on how much of either Quinn ingested.
Quinn could have asked Scott or Pierce how much he himself had of the alcohol
and drugs, but he did not.
We now turn to Quinn’s contention that we should exercise our
discretionary power under § 752.35, STATS., to reverse and remand for a new trial
because the real controversy has not been tried.9   Reversal for this reason does not
require a finding of the probability of a different result on retrial.    Vollmer v.
Luety, 156 Wis.2d 1, 19, 456 N.W.2d 797, 805 (1990).   Cases ordering a new trial
because the real controversy has not been tried include but are not limited to these
situations:                                                                               (1) the  jury  was  erroneously  not  given  the  opportunity  to  hear
important testimony; (2) the jury had before it evidence that should not have been
admitted; (3) there was an error in the jury instructions or verdict questions on a
significant issue (even if the error was waived); and (4) due to error of counsel or
the trial court, a significant legal issue was not properly tried.   See id. 19-20, 456
N.W.2d at 805-06.   Quinn makes his argument under the first and third line of
cases.   However, we have already determined that the court did not erroneously
9    Section 752.35, STATS., provides:
Discretionary reversal.   In an appeal to the court of appeals,
if it appears from the record that the real controversy has not
been fully tried, or that it is probable that justice has for any
reason miscarried, the court may reverse the judgment or order
appealed  from,  regardless  of  whether  the  proper  motion  or
objection appears in the record and may direct the entry of the
proper judgment or remit the case to the trial court for entry of
the proper judgment or for a new trial, and direct the making of
such amendments in the pleadings and the adoption of such
procedure in that court, not inconsistent with statutes or rules, as
are necessary to accomplish the ends of justice.
10




No. 99-0352-CR
exclude  any  evidence  and  did  not  erroneously  decline  to  give  the  voluntary
intoxication instruction.   The lack of evidence to support the requested instruction
was not due to trial court error in excluding evidence:    Quinn simply did not
present such evidence.
Although  the  failure  to  present  evidence  might,  in  the  right
circumstances, be an appropriate basis for the exercise of our discretionary power
of reversal, we conclude that is not the case here.   Because Quinn did not bring a
postconviction motion, we have no record of what evidence of impairment Quinn
would present that he did not present.   Therefore, we have no basis on which to
conclude that there is important evidence that the jury did not hear.   This fact
distinguishes this case from Garcia v. State,  73 Wis.2d  651,  245 N.W.2d  654
(1976),  in  which  the  supreme  court  used  its  statutory discretionary  power  of
reversal10 to reverse a conviction and remand for a new trial when a defendant
chose not to have a friend testify that he (the friend) had participated in the crime
and the defendant was not there and had not participated in any way.   In Garcia,
the court was able to evaluate the evidence that had not been presented, and
determine that it was important to the central issue in the case.11   In contrast, here
10                                                                                                       Our discretionary power of reversal under  § 752.35, STATS., is identical to the
discretionary power of reversal of the supreme court under § 751.06, STATS.   Vollmer v. Luety,
156 Wis.2d 1, 19, 456 N.W.2d 797, 805 (1990).
11    Although it is perhaps not entirely clear that the reversal in Garcia v. State, 73 Wis.2d
651, 245 N.W.2d 654 (1976), was based on the ground that the real controversy was not tried,
that is the supreme court’s recent characterization of Garcia in State v. Hicks, 202 Wis.2d 150,
162-63,  549 N.W.2d  435,  440-41  (1996).    Our purpose in considering whether Quinn has
evidence he would present at a new trial is not to determine if a different result is probable:   that
consideration is not necessary for reversal on the ground that the real controversy has not been
tried.  Rather, our purpose, consistent with the court’s analysis in Garcia, is to determine whether
important evidence was not presented to the jury.
11




No. 99-0352-CR
we  have  no  basis  for  concluding  that  evidence  not  presented  to  the  jury  is
important to the issue of intent.
By the Court.—Judgment affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
12

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