State v. Michael Charles Daugherty

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.
March 28, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1168-CR Cir. Ct. No. 2019CF806

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL CHARLES DAUGHERTY,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Rock County:
KARL HANSON, Judge. Affirmed.

Before Blanchard, Graham, and Taylor, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Michael Daugherty appeals a judgment of
conviction for operating a motor vehicle while intoxicated (OWI), as a sixth
No. 2023AP1168-CR

offense, following a jury trial. Daugherty argues that the circuit court erroneously
exercised its discretion when it denied his motion for a mistrial on the second day
of a four-day trial. The asserted ground for a mistrial was that the jury had been
exposed to an audiovisual recording of police activity during which an
unidentified voice, apparently a dispatcher, was heard to say the phrase “five
priors” following Daugherty’s arrest and in an apparent reference to him.
Daugherty contends that, because this phrase could have been heard and
understood by jurors in a way that was prejudicial to him, “it cannot be said that
[the] jury was sufficiently impartial.” Therefore, he contends, the court was
obligated to declare a mistrial. We conclude that Daugherty has not clearly shown
that the court erroneously exercised its discretion in denying the motion and
accordingly affirm.

BACKGROUND

¶2 Daugherty crashed a car at an intersection in Beloit at approximately
7:00 p.m. one Sunday evening in August 2019. Responding police arrested
Daugherty. As pertinent to this appeal, the State charged him with a violation of
WIS. STAT. § 346.63(1)(a) (2021-22).1

¶3 At trial, Daugherty’s former wife and her current husband testified
that Daugherty, before his arrest that evening, arrived unexpectedly at their
residence. According to these witnesses, after brief interactions that included a
verbal altercation with the current husband, Daugherty got into his car and drove
away at a “high rate of speed.” He then proceeded to drive around the block

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP1168-CR

several times in a “[r]eckless” manner. He hit a curb and crashed the car. Police
arrived on the scene a few minutes later.

¶4 Daugherty gave trial testimony that is difficult to track at times, but
it included the following. After he had negative interactions with people at his
former wife’s house, and while he was “upset” and “angry,” he “took off” in his
car. Shortly thereafter he apparently returned to his former wife’s residence,
where someone hit him on the head while he had the driver’s side window
lowered. He then drove again, at which time “somebody” “grabb[ed] at my
steering wheel,” trying “to pull me out of the car.” Because of this, “I couldn’t
make the corner.” The car “hit the curb, and I thought I had a flat.”

¶5 Daugherty further testified that he did not consume any alcohol on
the day of the crash until after the crash. More specifically, he testified that he got
out of the car and ran to hide in a bush, where he drank a full pint bottle of
whiskey that had been in the pocket of his shorts. Police found him in the bush
after about 20 to 30 minutes. He hid in the bush because he was afraid that people
from his former wife’s residence might “jump[ him] again.”

¶6 One witness called by the prosecution was a person who resided near
the crash scene. This witness testified that he saw the crash occur, after which
Daugherty “jumped out of the driver’s side and took off running.” No one else
was in the car with Daugherty at the time of the crash. This witness immediately
tried to follow Daugherty, lost sight of him at first, but then saw him “in the
bushes.” The police arrived within five minutes of the crash.

¶7 Officer Zachary Stec, who was among officers who responded to the
report of the car crash, testified in part as follows. Stec discovered Daugherty
where witnesses had reported that police would find him: “lying in a bush” near

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No. 2023AP1168-CR

the crash scene. Stec handcuffed Daugherty. After this, Daugherty: did not
follow Stec’s instructions about how to stand up while handcuffed; “could not
maintain his balance upon standing”; emitted “a strong odor of intoxicants” on his
breath and from his person; and spoke in a “very slurred” manner. In addition,
Daugherty’s eyes were “extremely bloodshot and glassy.”

¶8 Stec further testified that Daugherty was placed in the back seat of a
squad car, at which time he became “loud and boisterous and began blowing on
my rear camera, putting his mouth up to the camera and blowing extremely fast,
which [Stec] felt was odd behavior.” Daugherty denied to police that he had
driven the crashed car, but police found a key to the car in his pocket. Stec did not
“see anything discarded” when Daugherty emerged from the bush, and Stec did
not find any alcohol containers.

¶9 A police-worn body camera recording viewed by the jury reflects
that, after the arrest, Officer Stec asked Daugherty if he had “anything to drink
today,” and that Daugherty responded, “Oh, yeah, a little bit.”

¶10 Pursuant to a warrant for a blood draw, Daugherty was found to have
a blood alcohol concentration of .178.

¶11 Defense witnesses included a person who testified that, as of the
time of trial, she had been in a romantic relationship with Daugherty since 2018,
and that the two resided together on the day of his arrest. This witness testified
that Daugherty left the residence a little after 6:00 p.m. that day, at which time he
“[s]eemed fine and normal” and did not appear to be impaired. She also testified
that she had not observed him drink alcohol that day. She testified that it was a
30- to 35-minute drive from their residence to Daugherty’s former wife’s
residence.

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No. 2023AP1168-CR

¶12 The defense also called a hospital pharmacist and consultant who
holds a doctorate in clinical pharmacology. This witness testified that the
following was “very plausible”: assuming that Daugherty had a blood alcohol
level of zero at the time of the crash at approximately 7:00 p.m., and further
assuming that he swiftly consumed one pint of whiskey (40 percent alcohol by
volume) over the course of approximately 10 to 12 minutes beginning
immediately following the crash, his blood alcohol concentration could have
reached .178 by the time his blood sample was drawn at approximately 10:00 p.m.
that night.

¶13 At the end of a four-day trial, the jury returned a guilty verdict for a
violation of WIS. STAT. § 346.63(1)(a), the charge on which Daugherty was
convicted and sentenced.

¶14 We now turn to the aspect of the trial at the heart of this appeal. On
the second day of trial, the prosecution offered as evidence, and proposed to
publish to the jury, recordings containing video and sound captured by (1) the
body camera that Stec was wearing that evening, and (2) a forward-facing camera
mounted on the dashboard of Stec’s squad car. With no objections by the defense,
the circuit court admitted this exhibit containing the two recordings and allowed
them to be played for the jury.2

2
The admitted and published-to-the-jury Exhibit 14, which contains the body camera
and dashboard camera recordings, is not in the appellate record. As discussed below, this means
that we assume that all pertinent aspects of the recordings support the challenged circuit court
ruling. See Duhame v. Duhame, 154 Wis. 2d 258, 269, 453 N.W.2d 149 (Ct. App. 1989)
(appellate courts assume that “every fact essential to sustain the trial judge’s exercise of
discretion is supported by” pertinent material that has been omitted from the record).

5
No. 2023AP1168-CR

¶15 The prosecutor played portions of the audiovisual body camera
recording first, pausing at intervals to pose questions to Stec. Then, with Officer
Stec still on the witness stand, the prosecutor played a portion of the dash camera
audiovisual recording. Shortly after this recording began playing, defense counsel
asked for a sidebar and, outside the presence of the jury, requested a mistrial based
on one phrase spoken by a dispatcher during the course of police “radio chatter”
audible on the recording that the jury had just heard. After the parties and the
court, still outside the presence of the jury, listened to the recording a second time,
the circuit court made the following factual findings about the content of the
recording and what the court perceived to be its likely effects on the jury.

¶16 Officer Stec and another officer are shown interacting with
Daugherty. The jury had already observed, in viewing the body camera recording,
aspects of this same sequence of events. But this time the vantage point is the
dash camera and police dispatch audio could be heard. Daugherty is handcuffed,
the officers are seeking information about him from dispatch, and they are about to
move him into the squad car. More specifically, one officer gets on the police
radio and calls in to dispatch with Daugherty’s name. There is a pause. A
dispatcher responds with words that include “valid,” followed by something
unintelligible, and then the dispatcher can be heard to say, “five priors.” The
video continued to play for about 35 more seconds, showing other interactions
involving police, before defense counsel requested a sidebar and the jury was
dismissed.

¶17 The circuit court found that the phrase “five priors” was “very
audible” to the court, and the prosecutor acknowledged that he could hear that
phrase after replaying the recording. But at the same time, the court suggested that
jurors might have missed it under all of the circumstances. The court credited

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No. 2023AP1168-CR

statements by the prosecutor that he had played the dash camera recording before
trial and had not heard “five priors” and that the prosecutor had also not heard that
phrase when it was played for the jury.

¶18 The circuit court noted that the court had been watching the jury as
the dash camera recording was played. “The jury was attentively watching the
video and [jurors] were watching this interaction” between the two officers and
Daugherty. The phrase “five priors” was not stated as “a direct answer from an
officer testifying about something,” nor did it come out of the mouth of one of the
officers whom the jury was attentively watching in the recording. Instead, it came
from “a disembodied voice.” Further, the court described the phrase “five priors”
as being “baseless.” We interpret this to represent a finding that the phrase lacked
meaningful context—that it was not explained or elaborated on through any
additional information to which the jury was exposed.

¶19 The circuit court found that, in the context of the case as tried to that
point, there “is some ambiguity as to what” the phrase “five priors” would have
meant to any juror who did hear it and thought about it. The court said that judges
and attorneys, knowing that Daugherty was being tried on a charge of OWI, as a
sixth offense, “immediately jump to the idea that five priors” means “five OWI
priors.” But “that is a logical leap based upon” the general awareness of judges
and attorneys and knowledge about this case that the jury here was not privy to.
For the jury here, “that is not necessarily the most logical leap to make.” It could
have meant to them “five prior police contacts,” or else “five prior criminal
convictions” not involving OWI. Further, the court noted that it had already

7
No. 2023AP1168-CR

determined that if Daugherty were to testify—as in fact came to pass—the jury
would learn that Daugherty had three prior convictions, not five.3

¶20 Concluding that there was “minimal prejudice” to Daugherty from
the “five priors” reference, the circuit court denied the motion for a mistrial.
Daugherty appeals, challenging only the denial of his motion for mistrial.

DISCUSSION

¶21 The circuit court observed, and the State now agrees, that there was
the potential for prejudice to Daugherty. That is, the fact that the jury was
exposed to the dispatcher saying, “five priors,” in an apparent reference to
Daugherty raised at least some risk that jurors might conclude that this meant that
Daugherty had been convicted of five offenses, which might have included one or
more OWI offenses. This in turn created a risk that the jury would improperly rely
on the potential existence of prior OWI offenses in reaching its guilty verdict on
the OWI count at issue in this appeal. But under the legal standards that we now
summarize, the issue is not whether there was a potential risk of prejudice.
Instead, the issue is whether Daugherty has clearly shown, based on all of the facts
and circumstances, that declaring a mistrial was a manifest necessity. We
conclude that Daugherty has not made that clear showing.

¶22 Our supreme court recently summarized applicable standards:

When faced with a motion for mistrial, “the circuit
court must decide, in light of the entire facts and

3
The circuit court ruled, outside the presence of the jury that, under WIS. STAT.
§ 906.09, Daugherty could be impeached with the fact that he had three prior convictions.
Consistent with this ruling, when Daugherty took the witness stand at trial he testified that he had
been convicted of a crime three times.

8
No. 2023AP1168-CR

circumstances, whether ... the claimed error is sufficiently
prejudicial to warrant a mistrial.” State v. Ford, 2007 WI
138, ¶29, 306 Wis. 2d 1, 742 N.W.2d 61. We review a
circuit court’s decision to grant or deny a motion for
mistrial for an erroneous exercise of discretion. Id. “An
erroneous exercise of discretion may arise from an error in
law or from the failure of the circuit court to base its
decisions on the facts in the record.” Id., ¶28 (quoting
State v. Raye, 2005 WI 68, ¶16, 281 Wis. 2d 339, 697
N.W.2d 407). “Discretion is not synonymous with
decision-making. Rather, the term contemplates a process
of reasoning.” State v. Gallion, 2004 WI 42, ¶3, 270
Wis. 2d 535, 678 N.W.2d 197 (quoting McCleary v. State,
49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971)).

State v. Debrow, 2023 WI 54, ¶15, 408 Wis. 2d 178, 992 N.W.2d 114. “‘The
denial of a motion for mistrial will be reversed only on a clear showing of an
erroneous use of discretion’ by the circuit court.” State v. Doss, 2008 WI 93, ¶69,
312 Wis. 2d 570, 754 N.W.2d 150.

¶23 Elaborating on the statement in Ford, quoted in Debrow, that the
circuit court is to consider “‘the entire facts and circumstances,’” this includes
consideration of the relative strength of the prosecution’s case. Oseman v. State,
32 Wis. 2d 523, 528-29, 145 N.W.2d 766 (1966) (strength or weakness of case
relevant to determine if “error” forming basis for mistrial motion “is prejudicial”).4

¶24 We begin the analysis by noting that Daugherty does not argue that
the circuit court committed clear error in making any finding of fact regarding the

4
The State includes a section in its brief with the heading, “Any error in denying
Daugherty’s mistrial motion was harmless,” and it cites as authority an opinion involving
harmless error analysis in the context of a constitutional challenge to a jury instruction in a
criminal case. We question whether the harmless error doctrine could apply in the context here.
However, we construe the substantive points made by the State in this section of its brief as being
equivalent to an argument that the circuit court did not erroneously exercise its discretion in
denying the mistrial motion in part because the entire facts and circumstances here included a
strongly supported prosecution case and a weakly supported theory of defense.

9
No. 2023AP1168-CR

playing of the dash camera recording or the nature of its contents. Further, by
failing to include the recording in the record, Daugherty has left us to assume that,
if we were to observe and listen to the recording, our viewing would support the
circuit court’s suggestion that, while the phrase “five priors” was “very audible” to
the court, jurors who were focusing on the conduct of the officers visible in the
recording might not have heard or focused on the one-time reference by a
“disembodied voice” to “five priors.” See Duhame v. Duhame, 154 Wis. 2d 258,
269, 453 N.W.2d 149 (Ct. App. 1989).

¶25 The circuit court pointed out that 35 seconds passed from the time
the phrase “five priors” could be heard, for the first and only time by jurors, until
the dash camera recording was stopped and the jury was excused. This contrasts
with the way the prosecution presented the body camera video, before the dash
camera video was played—namely, stops and starts of the body camera recording,
interspersed with questions posed to Officer Stec that focused on aspects of the
recording. This supports the court’s conclusion that the jury was not likely to
hear, consider, and misuse in its deliberations the phrase “five priors.”

¶26 It is true, as noted above, that the circuit court and the State now on
appeal assume a risk of prejudice. These assumptions are consistent with the
caution from our supreme court about the dangers of propensity inferences that
jurors may make in connection with prior convictions in OWI cases. See State v.
Warbelton, 2009 WI 6, ¶¶46-47, 315 Wis. 2d 253, 759 N.W.2d 557. The court
has noted that, “upon learning that the defendant has prior convictions,
suspensions, or revocations, jurors are likely to infer that these prior offenses were
also for drunk driving,” and that “upon learning that the defendant had multiple
prior offenses, jurors are likely to infer that the current charge is part of a pattern
of behavior.” Id., ¶47. From these assumptions “jurors might conclude that even

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No. 2023AP1168-CR

if the defendant is not guilty on the particular occasion charged, the defendant
likely committed the same offense on many other occasions without being
caught.” Id.

¶27 At the same time, however, the jury here was not exposed to
unambiguous testimony that Daugherty had five prior OWI convictions or even
five prior convictions, but instead only a voice saying “five priors.” Indeed, the
jury was informed through Daugherty’s own unchallenged testimony that he had
been convicted of a crime three times.5 For this reason, any juror who heard and
focused on the “five priors” reference, and from this speculated that this meant
five prior convictions for a crime, would have had contrary evidence to consider.
Put somewhat differently, the “five priors” reference added no new basis for any
juror who would unfairly and unreasonably assume that Daugherty was guilty of
the charged OWI because he has prior convictions, which could include one or
more OWI offenses—such a juror already had a basis for such an unfair and
unreasonable conclusion through Daugherty’s testimony.

¶28 Further, the circuit court was exceptionally careful in making a
detailed record and also in giving Daugherty a full opportunity to present
arguments and offer any curative instructions that he might suggest. The court
agreed with Daugherty’s position that any instruction would only serve to draw the
jury’s attention to the reference, to Daugherty’s potential disadvantage. Daugherty
does not criticize any aspect of the court’s handling of this incident except to
challenge its ultimate decision to not grant a mistrial.

5
Daugherty does not challenge the circuit court’s decision that he could be impeached
with the fact that he had been convicted of three criminal offenses.

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No. 2023AP1168-CR

¶29 Another factor weighing against reversal of the circuit court’s
discretionary decision was the strength of the prosecution’s evidence and the
weakness of the defense theory. See Oseman, 32 Wis. 2d at 528-29. As
summarized above, there was strong, consistent evidence that, at the time of the
crash, Daugherty had “consumed a sufficient amount of [alcohol] to cause [him] to
be less able to exercise the clear judgment and steady hand necessary to handle
and control a motor vehicle.” See WIS JI—CRIMINAL 2664. In contrast, the
record suggests that his defense that he swiftly downed a pint of whiskey in the
bushes was not strong. For example, the testimony of his romantic partner was not
especially exculpatory on its face, in that it left time for him to have consumed a
large quantity of alcohol between the moment when she testified he left their
residence while appearing sober and the moment of the crash. Further, a major
premise of the defense expert’s testimony was to assume the truth of Daugherty’s
account of drinking voluminously in the bush immediately after the crash.

¶30 Daugherty attempts unsuccessfully to analogize this case to
Mulkovich v. State, 73 Wis. 2d 464, 243 N.W.2d 198 (1976). In that case, our
supreme court concluded that the circuit court committed prejudicial error by
reading to a newly empaneled jury the portion of the information alleging that the
defendant was a repeat offender who had previously been convicted of a felony.

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No. 2023AP1168-CR

Id. at 467. The facts in Mulkovich are so different that it does not support the
proposition that a mistrial was required on the facts here.6

CONCLUSION

¶31 For all of these reasons, we affirm the judgment.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS.
STAT. RULE 809.23(1)(b)5.

6
We call to the attention of Daugherty’s counsel that both of his appellate briefs fail to
comply with WIS. STAT. RULE 809.19(8)(bm), which addresses the pagination of appellate briefs.
See RULE 809.19(8)(bm) (when paginating briefs, parties must use “Arabic numerals with
sequential numbering starting at ‘1’ on the cover”). This rule has been amended, see S. CT.
ORDER 20-07 (eff. July 1, 2021), in light of the general requirement of electronic filing of briefs
in PDF format and the fact that briefs are electronically stamped with page numbers when they
are accepted for e-filing. As our supreme court has explained, the new pagination requirements
ensure that the numbers on each page of a brief “will match ... the page header applied by the
eFiling system, avoiding the confusion of having two different page numbers” on each page.

13