By Gretchen Schuldt
A man who did not have a chance to cross examine the officer who issued him a citation or to present evidence on a new charge determined by a judge is entitled to a new trial, a state appeals court ruled Tuesday.
District 1 Court of Appeals Judge Timothy G. Dugan did not even decide the case on the issue raised by defendant Roosevelt Cooper, Jr. – that he was denied discovery – but instead relied on Milwaukee County's recognition of errors in Cooper's trial.
"As the County acknowledged in its supplemental brief, '[a]t no point throughout the trial was Cooper afforded the opportunity to question or cross-examine' the officer and 'Cooper was denied his right to trial,' ” Dugan wrote. "A review of the record confirms the County’s characterization of the proceedings."
Cooper was cited in December 2020 for reckless driving / endangering safety. The officer who issued the citation testified at trial before Milwaukee County Circuit Judge Jonathan Richards that the officer observed Cooper speeding and making multiple lane changes while close to other vehicles. The officer said Cooper was driving about 80 mph in a 55-mph zone.
The officer's dash cam video showed that Cooper drove on a non-traffic area of the roadway, changed lanes without signaling, and drove faster than the cars around his, Dugan wrote. Cooper said he swerved into the non-traffic area to avoid an accident with a car in front of him when its driver slammed on the brakes.
The video, however, was never moved into evidence and Dugan said in a footnote that Cooper was not under oath when he began explaining his actions. "It was not until the county started questioning Cooper following Cooper's explanation of the video that Cooper was put under oath," he wrote.
At the end of the bench trial, Richards said he could not see where Cooper endangered safety, but that Cooper was speeding, passed six cars, and drove in the non-traffic area, Dugan wrote. The judge found Cooper guilty of unreasonable and impudent speed.
"The county expressed confusion over the finding, and the clerk interrupted saying that Cooper was not charged with speeding," Dugan wrote. The county said it could amend the charge to unreasonable and imprudent speed "and over Cooper’s objection, the trial court accepted the amended charge and found Cooper guilty" of the charge.
Richards ordered Cooper to pay a $100 forfeiture, according to online court records.
The county, in its appeals briefing, said a judge has the power to amend a charge to conform to the evidence, but that the court also must find that the parties consent to the change, Dugan wrote. That is also state Supreme Court precedent, Dugan said.
"The county...concedes that the trial court failed to make any finding that Cooper consented to the amended charge, and in fact, the county maintains that Cooper was clear that he did not consent to the amended charge," Dugan said. "The county also concedes that the trial court failed to give the parties an opportunity to present additional evidence to support the amended charge."
In addition, "Despite receiving an assurance that he would have an opportunity to question the officer, Cooper received no such opportunity," Dugan wrote.
While he is not required to accept the county's concessions, it is appropriate in this case, Dugan said.
"As a result, this court concludes that Cooper is entitled to a new trial on the amended charge of unreasonable and imprudent speed," he said.
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