County of Milwaukee v. Roosevelt Cooper, Jr.

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.
May 17, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2021AP1224 Cir. Ct. No. 2021TR7710

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

COUNTY OF MILWAUKEE,

PLAINTIFF-RESPONDENT,

V.

ROOSEVELT COOPER, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: JONATHAN RICHARDS, Judge. Reversed and cause remanded for
further proceedings.
No. 2021AP1224

¶1 DUGAN, J.1 Roosevelt Cooper, Jr., pro se, appeals from a
judgment of the trial court entered following a court trial for a traffic citation. On
appeal, consistent with the arguments Cooper raised below, Cooper argues that he
was denied discovery and his case must be dismissed as a result of the failure to
comply with discovery. The County of Milwaukee identified several additional
issues raised in Cooper’s brief apart from the discovery issue, and this court
ordered additional briefing. After review of the additional briefing, this court
concludes that Cooper is entitled to a new trial because he was denied the ability
to cross-examine the officer who issued his citation and the trial court amended his
citation to a new charge for which Cooper was never allowed to present a defense.
Consequently, this court reverses the judgment of the trial court and remands this
case for a new trial.

BACKGROUND

¶2 Cooper received a traffic citation on December 2, 2020, for Reckless
Driving-Endangering Safety, contrary to WIS. STAT. § 346.62(2). The case
proceeded to a court trial that was held on May 27, 2021. At the trial, the officer
who issued Cooper’s citation testified that he stopped Cooper after he observed
“there was excessive speeding and multiple lane changes in close proximity with
other vehicles.” He said he knew Cooper was speeding because he was “going
faster then all the other vehicles on the road.” After the officer caught up with
Cooper’s vehicle, the officer determined that Cooper was going approximately

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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No. 2021AP1224

eighty miles per hour using a method called pacing, and the officer stated that the
posted speed limit was fifty-five miles per hour.

¶3 The dash cam video from the officer’s car was also viewed during
the proceedings. Due to a technical difficulty, the footage was played on
counsel’s computer screen with the participants of the proceedings gathered
around counsel’s computer. Nevertheless, the officer described that Cooper’s
vehicle can be seen in the video crossing the gore area, changing lanes without
using a signal, and going faster than the vehicles around it. Following the officer’s
testimony describing the video footage, Cooper was allowed his own opportunity
to describe what he was allegedly doing in the video, and Cooper explained that he
only crossed into the “gore area” to avoid an accident when the car in front of him
suddenly slammed on its breaks.2 The video footage, however, was never moved
into evidence.

¶4 At the close of the trial, the trial court found Cooper guilty of
Unreasonable and Imprudent Speed, contrary to WIS. STAT. § 346.57(2). In
reaching this result, the trial court found that it was clear that Cooper crossed the
gore area, passed six cars, and was speeding. However, the trial court found that it
could not see anywhere where Cooper endangered safety. Thus, the trial court
found that the charge of Reckless Driving-Endangering Safety was not supported
by the evidence, but the “charge of speeding” was. The trial court then found
Cooper guilty of speeding. The County expressed confusion over the finding, and
the clerk interrupted saying that Cooper was not charged with speeding. The

2
Cooper was not under oath when he initially began describing what he was doing in the
dash cam video. It was not until the County started questioning Cooper following Cooper’s
explanation of the video that Cooper was put under oath.

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No. 2021AP1224

County stated that 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 Unreasonable and Imprudent Speed. The court
addressed the defendant in the following exchange:

THE COURT: Well, they’re amending the charge.

THE DEFENDANT: Yes, and—

THE COURT: I think from what I saw on the video, that
the facts support that charge.

….

THE COURT: Travelling at unreasonable and imprudent
speed, because you were going 80 miles an hour on the
freeway, and in a very, very congested part of the freeway.
Where there—wasn’t during rush hour, but there was
definitely traffic there on the freeway and that was
unreasonable and imprudent.

DISCUSSION

¶5 Throughout the proceedings, Cooper requested discovery and argued
that discovery was not provided. He argued that as a result of lack of discovery,
his case must be dismissed. On appeal, Cooper raised the same argument
regarding the lack of discovery. After a review of Cooper’s brief and a note in the
County’s brief about additional issues raised but not fully developed in Cooper’s
brief, this court ordered additional briefing. It is on the basis of these additional
issues that this court resolves this case. Consequently, we do not address the
alleged discovery dispute that was the focus of Cooper’s argument below and in
his opening brief. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514
(Ct. App. 1989). Rather, this court concludes that Cooper is entitled to a new trial
for two reasons addressed in the supplemental briefing. First, the trial court
improperly amended the charge to Unreasonable and Imprudent Speed over

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No. 2021AP1224

Cooper’s objection and denied Cooper the opportunity to present a defense to that
amended charge. Additionally, Cooper was denied the opportunity to cross-
examine the officer who issued his charge.

¶6 In State v. Peterson, 104 Wis. 2d 616, 312 N.W.2d 784 (1981), the
defendant was charged with Inattentive Driving, contrary to WIS. STAT.
§ 346.89(1), and after a trial to the court, the court sua sponte amended the citation
to Deviating From Lane of Traffic, contrary to WIS. STAT. § 346.13(1), to conform
to the evidence presented and found the defendant guilty of the amended citation.
Peterson, 104 Wis. 2d at 617-19. Our supreme court concluded that “the circuit
court was correct in holding that it had the power to amend the complaint on its
own motion after the presentation of the evidence”; however, “the circuit court
erred in not granting the parties an opportunity to present additional evidence on
the complaint as amended.” Id. at 618. The court stated that it was now making
explicit what it had already impliedly required, namely the circuit court “must
offer both sides an opportunity to submit additional evidence” after sua sponte
amendment of a charge. Id. at 639. As the court explained, if both sides are
afforded such an opportunity, “there would be no question that the amendment
was proper.” Id. at 638.

¶7 The court also explained that the circuit court “must make findings
on the issue of consent, because once consent is found, the circuit court has no
choice but to amend the pleadings.” Id. at 631 (citing WIS. STAT. § 802.09). “If
the issue was tried by express or implied consent the issue must be treated as if
raised in the pleadings.” Id. As to determining implied consent, the court stated,
“If the evidence has been introduced without objection and the circuit court finds
that there has been no actual notice, it should find that there has been no implied
consent to trial of the unpleaded issue.” Id. at 634. Without implied consent or

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No. 2021AP1224

actual notice, the circuit court may sua sponte amend the pleadings to conform to
the evidence only if justice so requires. Id.

¶8 Citing Peterson, the County argues that the trial court has the power
to sua sponte amend a charge to conform to the evidence presented, but the
County also recognizes that the trial court must make a specific finding that a
party has consented to the amendment. The County then 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. The County also concedes that the trial court failed to give
the parties an opportunity to present additional evidence to support the amended
charge.

¶9 The County further concedes that Cooper was denied the ability to
cross-examine the officer as it related to both the original citation and the amended
citation, in violation of Cooper’s right to a full and fair hearing. 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.” A review of the record confirms the
County’s characterization of the proceedings. Despite receiving an assurance that
he would have an opportunity to question the officer, Cooper received no such
opportunity.

¶10 While this court is not bound to accept a party’s concession, see
State v. Carter, 2010 WI 77, ¶50, 327 Wis. 2d 1, 785 N.W.2d 516, this court does
so here. The County’s concessions are appropriate in light of our supreme court’s
decision in Peterson. As a result, this court concludes that Cooper is entitled to a
new trial on the amended charge of Unreasonable and Imprudent Speed. “[T]o

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No. 2021AP1224

ensure that the party opposing the amendment is not unfairly deprived of the
opportunity to meet the issue created by the amendment,” Cooper was entitled to
cross-examine the officer who conducted the traffic stop and entitled to the
opportunity to present a defense to the amended charge. See Peterson, 104
Wis. 2d at 634. Accordingly, this court reverses the judgment of the trial court
and remands this matter for a new trial.

By the Court.—Judgment reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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