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COURT OF APPEALS
DECISION
DATED AND RELEASED
                                                                                      NOTICE
April 24, 1997
A  party  may  file  with  the  Supreme  Court  a                                     This opinion is subject to further editing. If
petition  to  review  an  adverse  decision  by  the                                  published, the official version will appear in
Court of Appeals.   See § 808.10 and RULE 809.62,                                     the bound volume of the Official Reports.
STATS.
No.   96-2865
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
TERRENCE M. JORDAN,
DEFENDANT-APPELLANT.
APPEAL  from  an  order  of  the  circuit  court  for  Dodge  County:
JOHN R. STORCK, Judge.  Affirmed.
VERGERONT, J.1    Terrence Jordan appeals from a conviction for
speeding in violation of  § 346.57(4)(h), STATS.    He argues that the trial court
erroneously denied his motion to strike the testimony of the officer who issued the
citation because the officer had no independent recollection of the stop, and this
violated his right under the Sixth Amendment to the United States Constitution to
1  This appeal is decided by one judge pursuant to § 752.31(2)(c), STATS.




NO. 96-2865
confront  the  witness  against  him.    We  reject  his  arguments  and  affirm  the
conviction.
James Ausloos, a trooper with the Wisconsin State Patrol, issued
Jordan a citation which stated that he was traveling seventy-seven miles per hour
with a fifty-five mile per hour speed limit.2   Both Ausloos and Jordan testified at
trial.    Jordan  represented  himself.    According  to  Jordan’s  testimony,  he  was
engaged in the practice of law in Illinois and had been since approximately 1976.
In his direct testimony, Ausloos described stopping Jordan’s vehicle,
some conversation with Jordan, the location of the stop, the citations that he wrote
out and gave to Jordan after he stopped him, how he obtained the reading that
Jordan’s vehicle was traveling at seventy-seven miles per hour using the stationary
speed computer, his training and experience in using that equipment, and his
opinion that the speed he observed Jordan’s vehicle to be traveling was consistent
with the 77.9 reading of the computer.   Jordan did not make any objections based
on Ausloos’s ability to recall the events to which he testified.3
On  cross-examination,  Jordan  asked  Ausloos  at  several  different
points  whether  testimony  Ausloos  had  just  given  was  something  he  could
specifically recall or  was based on the  “incident report,” that is, the citation.
Ausloos responded in different ways, saying that particular testimony was “based
on his incident report,” that he did not have  “an independent recollection” of
certain testimony, that “he did recall the stop,” that “he recalled certain testimony
2  At the same time, Ausloos issued a citation for failure to fasten his seat belt in violation
of § 347.48(2m), STATS., but the court found Jordan not guilty on that charge.
3  At various points Jordan made other objections that are unrelated to the issue on
appeal.
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NO. 96-2865
‘according  to’  his  incident  report,”  and  that                                       “he  could  not  remember  all  the
details.”   Jordan made no motion to strike Ausloos’s testimony during or at the
end of his cross-examination.    There was no redirect examination of Ausloos.
Jordan made no motion before Ausloos was excused.
After Jordan began the presentation of his defense, the court had to
interrupt the trial to hear another matter.   There was discussion about when the
trial would be reconvened later that day.   In that context, the court asked whether
Ausloos was needed to testify later that day.   It appears from the transcript that the
court was addressing the question to Jordan, but this answer is attributed to “Mr.
Thompson,” the prosecutor:   “I doubt it Your Honor.   At this point, no, but I don’t
know what else is coming.”    From the context of the question and answer, it
appears that Jordan rather than the prosecutor answered, but we cannot be sure.   In
any event, Jordan was present and a part of this discussion when the exchange
took place.
Jordan resumed presenting his defense later that afternoon.    The
State did not present rebuttal.   Neither Jordan nor the State introduced the citation
into evidence.   After both parties said they had no further evidence to present,
Jordan  moved  to  strike  Ausloos’s  testimony  on  the  ground  that  Ausloos  had
testified that he had no present recollection of the occurrence, the citation had not
been introduced into evidence, and there was therefore no competent testimony of
the incident.   The State opposed the motion and the court denied it.   The court did
not state its reason for denying the motion.   It appears the court was about to
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NO. 96-2865
explain its reason when Jordan interrupted saying he had another matter to raise,
and the court then took up the other matter.4
Jordan  brought  a  posttrial  motion  renewing  his  motion  to  strike
Ausloos’s testimony and raising other matters.   The court issued a written decision
on this motion.   The court concluded that if it erred in denying the motion to
strike, the error was harmless:   Jordan had the citation, had the opportunity to
cross-examine Ausloos on it, the citation, and it would have made no difference to
the outcome whether the court heard Ausloos’s testimony or looked at the citation.
Jordan is correct that, if a witness, after viewing a writing he or she
made, has no independent recollection of the facts reflected in the writing, the
writing itself, provided certain foundation is laid, may come into evidence but not
the testimony.   See Harper, Drake & Assoc., Inc. v. Jewett & Sherman Co., 49
Wis.2d  330,  343,  182 N.W.2d  551,  558  (1971).    However, it is also true that
objections to the admission of evidence, or motions to strike evidence, must be
timely before error may be predicated on the admission of the evidence.    See
§ 901.03(1)(a),  STATS.    Objections  must  be  made  as  soon  as  the  opponent
reasonably becomes aware of the nature of the testimony.   Coleman v. State, 64
Wis.2d 124, 129, 218 N.W.2d 744, 747 (1974).
4                                                                                      THE COURT:  Okay.      The  Court  has  heard  substantial
testimony  in  this  case,  and  there  are  two
citations.   One is a speeding, one is a seat belt
citation.  The testimony of the officer will not be
stricken.   That motion is denied.   The testimony
of the officer --
MR. JORDAN:  Judge, I do have another matter to raise before
we go on to something else.
THE COURT:  Yes.  What it is?
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NO. 96-2865
We conclude that Jordan’s motion to strike was untimely.   Jordan
made no objection during Ausloos’s direct testimony on this point, even though
Ausloos referred to the citation in his testimony.   Jordan did not bring the motion
to strike during his cross-examination, even though it was then that he received the
answers that he claims are the basis for the motion.   He did not bring the motion
until after the discussion of whether Ausloos needed to attend in the afternoon and
after the close of evidence in the afternoon.   Had he made the motion or objection
in  a  timely  manner,  no  doubt  there  would  have  been  further  questioning  of
Ausloos, likely resulting in a ruling that either his testimony or the citation was
admissible and thereby removing any predicate for claiming error on appeal.   This
is precisely one purpose for the rule in  § 901.03(1)(a), STATS.   Since Jordan’s
motion to strike was untimely, he has waived the right to challenge the court’s
ruling on appeal, and we will not address it.
Jordan’s  Sixth  Amendment  argument  is  presented  in  a  cursory
fashion and we are unable to understand it.   The State responds that the right to
confront  accusers  does  not  apply  in  this  proceeding  because  this  is  a  civil
forfeiture.   Jordan does not reply to this argument in his reply brief, and makes no
reference to the Sixth Amendment in his reply brief.   We consider the failure to
reply to be a concession, and we do not address the constitutional argument.   See
Schlieper v. DNR, 188 Wis.2d 318, 322, 525 N.W.2d 99, 101 (Ct. App. 1994) (a
proposition asserted by a respondent on appeal and not disputed by the appellant’s
reply is taken as admitted).
By the Court.—Order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
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