April 10, 2023 at 11:40 a.m.
Appeal filed in drunk driving homicide case
Christopher A. Gore, 38, is serving a 10-year sentence, five years confinement to be followed by five years extended supervision, in connection with the death of Cory L. Johnson, Sr., 47, of Stevens Point.
Johnson was thrown from a vehicle Gore was operating - at an estimated speed of 103 to 110 miles per hour - on the evening of July 12, 2020. According to court records, the vehicle went airborne before striking an unoccupied vehicle in the parking lot of a Minocqua restaurant.
The appeal, filed April 3, revives the defense argument that the results of a blood draw conducted by a Minocqua officer
after the crash, which showed Gore had a blood alcohol level of .239, should have been deemed inadmissible.
In April 2021, Gore's attorney, Dennis Melowski, filed a motion arguing that the test results should be tossed due to a flaw in the "informing the accused" form Lt. Jason Benbenek of the Minocqua Police Department read to Gore before the sample was taken.
The Wisconsin Supreme Court, in a 2017 case called State v. Blackman (argued by Melowski), found the version of the "informing the accused" form read to the defendant in that case to be unconstitutionally coercive as it misstated the consequences for refusing to submit to an implied consent test.
Because the same flawed form was read to Gore, Melowski argued Gore's blood test results should be suppressed.
The Oneida County district attorney's office opposed the motion, arguing that the officers had sufficient probable cause to believe Gore was under the influence of intoxicants - a stark difference from the Blackman case where the defendant showed no signs of intoxication - and that the "inevitable discovery doctrine" permitted it to submit evidence of Gore's blood alcohol concentration despite the suppression otherwise required under Blackman.
An evidentiary hearing was held in June 2021 and in September of that year O'Melia issued an order denying the motion.
"The lower court (O'Melia) found that the Blackman holding did not apply in the instant matter because the evidence sought by the State would have been inevitably discovered," Melowski explained in the appeal filed this month. "The lower court premised its belief that the blood test result was subject to inevitable discovery on the supposition that "[b]ecause probable cause existed to arrest the defendant for the OWI offense, the warrant would have been granted and the blood draw would have inevitably occurred."
Two weeks after O'Melia's ruling was entered, Melowski attempted to appeal it to the Third District Court of Appeals in Wausau but his petition was denied.
Ultimately, in late November 2022, Gore entered a plea of no contest to one count of homicide by use of a motor vehicle with a prohibited blood alcohol concentration. He was sentenced in late January 2023 after members of the Johnson family gave victim impact statements detailing their loss. It was also the first time the rate of speed was disclosed.
The 10-year sentence was handed down by Vilas County Circuit Judge Martha Milanowski who took over the case following O'Melia's retirement.
In the appeal, Melowski argues O'Melia misapplied the inevitable discovery doctrine.
"It is remarkable that the lower court would, as part of its reasoning, make the conclusory statement that a 'warrant would have been granted' in this case," he wrote. "This assertion is problematic for several reasons. First, it makes an implied assumption that the magistrate who would have been asked to issue the warrant would have been presented with the same facts upon which it based its conclusion. The lower court in this case had the benefit of hindsight in the sense that it was faced with an extremely well-developed record in which multiple evidentiary hearings had been held (during which there had been far more extensive examination of the witnesses than any affidavit made in support of a warrant could ever hope to include), and after which multiple briefs had been filed. It is only with this hindsight that the lower court concluded that the warrant would be an inevitability. Second, the lower court is substituting its judgment premised upon the facts of which it was aware for the judgment of another court for which no one can predict the facts of which it would be made aware."
"There are simply far too many variables which are unknown in this case for any court to draw an absolute conclusion that a warrant would certainly have been issued to obtain a blood sample in this matter," he added. The state has until early May to respond to the appeal.
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