APPEAL from a judgment and order of the Circuit Court
for Brown County, William C. Griesbach and Peter J. Naze, Judges. Reversed and remanded.
¶1 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE. This case
comes before the court on certification by the court of appeals pursuant to
Wis. Stat. (Rule) § 809.61 (1999-2000). The circuit court for Brown County, Peter J.
Naze, Judge, entered a judgment of conviction for first-degree reckless
homicide (Wis. Stat. § 940.02), party to a crime, against Waylon
Picotte, the defendant. It also entered
an order denying the defendant's postconviction motions.
¶2 The issue presented by this case is whether the defendant's
conviction for first-degree reckless homicide is barred because the victim did
not die within a year and a day of the infliction of the fatal injuries.
¶3 The defendant's postconviction motions asserted that his
conviction of first-degree reckless homicide was barred because it violated the
common-law year-and-a-day rule, which establishes an irrebuttable presumption
that death occurring more than one year and one day after an accused's
injury-inflicting act was not caused by the accused.
¶4 The circuit court denied the defendant's motions. The circuit court concluded that even if the
year-and-a-day rule were part of the law of Wisconsin after adoption of the
Wisconsin Constitution, the legislature eliminated the year-and-a-day rule by
enacting Wis. Stat. § 939.74(2), authorizing a prosecution for
violation of § 940.02 (proscribing first-degree reckless homicide) to be
commenced at any time.
¶5 We disagree with the circuit court and hold that the defendant's
conviction in this case is barred by the common-law year-and-a-day rule. In order to reach this conclusion, we must
address four successive questions of law that this court decides independent of
the circuit court but benefiting from the circuit court's analysis. The four questions and this court's answers
to them are as follows:
1. Is
the common-law year-and-a-day rule the law in Wisconsin? We agree with both the State and the
defendant that the year-and-a-day rule has been the law of Wisconsin since
statehood, preserved through Article XIV, Section 13 of the Wisconsin
Constitution.
2. If
the year-and-a-day rule is the law in Wisconsin, does this court have the
authority to abrogate the rule? This
court has the authority to develop the common law and therefore may abrogate
the year-and-a-day rule.
3. If
this court has the authority to abrogate the year-and-a-day rule, do
sufficiently compelling reasons exist for this court to do so now? This court should abrogate a common-law rule
when the rule becomes unsound. We
conclude that the year-and-a-day rule is an archaic rule that no longer makes
sense. Accordingly, the court abolishes
the rule.
4. Should
the abrogation of the year-and-a-day rule apply to the defendant in the present
case? The court may change or abrogate
a common-law rule either retroactively or prospectively. We conclude that purely prospective
abrogation of the year-and-a-day rule best serves the interests of
justice. Thus, prosecutions for murder
in which the conduct inflicting the death occurs after the date of this
decision are permissible regardless of whether the victim dies more than a year
and a day after the infliction of the fatal injury. The prosecution for first-degree reckless homicide in the present
case, however, remains subject to the year-and-a-day rule, and because the
fatal injury in the present case was inflicted more than a year and a day
before the death of the victim, the defendant's conviction for first-degree
reckless homicide is reversed.
I
¶6 The relevant undisputed facts of this case are as follows. Waylon J. Picotte, the defendant, was
involved, along with another, in a fight outside of a Green Bay bar on
September 26, 1996. During the fight,
John Jackson was struck in the face and hit his head on a brick wall. Jackson suffered brain damage that left him
in a coma. The defendant was charged
with aggravated battery and substantial battery on October 21, 1996. He pled guilty and was sentenced to 15 years
in prison.
¶7 More than two years later, on June 8, 1999, Jackson died from
complications arising from the injuries sustained in the fight. The defendant was then charged with
first-degree reckless homicide, party to a crime, in violation of
Wis. Stat. §§ 940.02(1) and 939.05. After a jury trial, the defendant was
convicted and sentenced to 30 years in prison.
¶8 The defendant filed postconviction motions asserting, among other
issues, that his prosecution and conviction for first-degree reckless homicide
violated the common-law year-and-a-day rule. The circuit court affirmed the conviction
and the court of appeals certified the issues relating to the year-and-a-day
rule for review by this court.
II
¶9 We address first whether the year-and-a-day rule has been the
common-law rule in Wisconsin since statehood.
We agree with both the State and the defendant that the year-and-a-day
rule has been the law of Wisconsin since statehood, preserved through Article
XIV, Section 13 of the Wisconsin Constitution.
¶10 Article XIV, Section 13 of the Wisconsin Constitution reads as
follows:
Common law continued in force. Such parts of the common law as are now in
force in the territory of Wisconsin, not inconsistent with this constitution,
shall be and continue part of the law of this state until altered or suspended
by the legislature.
Decisions of this court make
clear that Article XIV, Section 13 specifically incorporates the common
law of England as it existed in 1776 into the law of this state.
¶11 The year-and-a-day rule is a common-law criminal rule of causation
that dates back to thirteenth-century England. According to the rule, no homicide is
committed unless the victim dies within a year and a day after the injury is
inflicted, for if the victim dies more than one year and a day from the injury
it is "conclusively presumed that the injury did not cause the
death." The year-and-a-day rule was plainly part of
English common law at the time of the American Revolution,
and was therefore the law in Wisconsin at statehood.
¶12 The circuit court ruled that while the year-and-a-day rule may have
been the law in Wisconsin, the legislature abrogated the common-law rule when
it enacted Wis. Stat. § 939.74(2). We agree with both the State and the defendant that the circuit
court's ruling is erroneous. Section
939.74(2) eliminates any statute of limitations for a prosecution for
first-degree reckless homicide. It
provides that a prosecution under § 940.02 "may be commenced at any
time." A statute of limitations
sets the time within which a prosecution must be commenced after the crime is
completed. In contrast, the
year-and-a-day rule is a substantive principle of criminal law defining when a
murder has been committed. "There
is no question that the year-and-a-day rule has long been recognized in the
common law as substantive legal principle." In adopting § 939.74(2), the
legislature did not act to alter or suspend the year-and-a-day rule.
¶13 In fact, legislative history relating to the Wisconsin Criminal
Code indicates that the year-and-a-day rule has been and remains to this day a
part of the common law of this state.
The 1953 revision of the Wisconsin Criminal Code, which never went into
effect, included the following provision, abolishing the year-and-a-day rule.
339.15 YEAR AND A DAY RULE ABOLISHED. In a prosecution for homicide the state must
prove beyond a reasonable doubt the causal relation between the homicidal act
and death, but shall not be required to prove that death occurred within a year
and a day of such act.
¶14 The very fact that the drafters included this provision is strong
evidence that the legislature understood the year-and-a-day rule to be part of
the common law of Wisconsin. Assistant
Attorney General William Platz, one of the architects of both the 1953 and the 1955
versions of the criminal code, explained the removal of that provision from the
code as a policy decision to leave the year-and-a-day rule in effect for
Wisconsin.
Another section [of the 1953 version of the criminal
code] deleted by the committee would have abolished the rule in homicide cases
that death must occur within a year and a day from the felonious act of causing
death. This was a policy decision by
the committee and leaves the law as it has been.
¶15 Thus, we conclude that the year-and-a-day rule was incorporated
into the laws of Wisconsin by Article XIV, Section 13 of the Wisconsin
Constitution and has not been altered or suspended by the legislature.
III
¶16 We next consider whether this court has the authority to abrogate
the year-and-a-day rule. The defendant
asserts that Article XIV, Section 13 of the Wisconsin Constitution permits
only the legislature to abrogate the common law and that this court does not
have the authority to abrogate the common-law year-and-a-day rule. We disagree with the defendant. It is now well established that Article XIV,
Section 13 did not usurp the traditional authority of the judiciary to
develop the common law in Wisconsin.
¶17 This court addressed the effect of Article XIV, Section 13 on
the judiciary's power to develop the common law in State v. Esser, 16
Wis. 2d 567, 115 N.W.2d 505 (1962). Esser
was an appeal by the State, in which the State argued that the trial court had
misinstructed the jury when it defined the defense of insanity in terms more
broad than the common-law right-wrong test.
The State argued that the "right—wrong definition was part of the
common law in force in the territory of Wisconsin at the time our constitution
was adopted, and the constitution [Article XIV, Section 13] prohibits the
courts from changing it."
¶18 The Esser decision rejected the State's construction of
Article XIV, Section 13. The Esser
court concluded that the Wisconsin Constitution vests this court, and other
courts of this state, with "judicial powers,"
and that those judicial powers include the power to adapt and develop the
common law through the judicial process. In light of this power, the Esser
decision concluded as follows that Article XIV, Section 13 cannot be read
to bar this court from changing the common law:
We conclude that the function of sec. 13, art. XIV,
Wis. Const., was to provide for the continuity of the common law into the legal
system of the state; expressly made subject to legislative change (in as
drastic degree within the proper scope of legislative power as the legislature
might see fit) but impliedly subject, because of the historical course of the
development of the common law, to the process of continuing evolution under the
judicial power.
¶19 This conclusion does not contravene the plain words of the
constitutional provision because by definition, common law is law subject to
continuing judicial development, including abrogation. "[I]nherent in the common law is a dynamic
principle which allows it to grow and to tailor itself to meet changing needs
within the doctrine of stare decisis, which, if correctly understood, was not
static and did not forever prevent the courts from reversing themselves or from
applying principles of the common law to new situations as the need
arose." Thus, properly construed, Article XIV,
Section 13 of the Wisconsin Constitution does not codify English common law
circa 1776, but rather preserves law that by historical understanding is
subject to continuing evolution under the judicial power.
¶20 Decisions of this court since Esser have reaffirmed this
interpretation of Article XIV, Section 13. Perhaps most relevant to the case at hand is
State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998),
in which this court affirmed its authority not only to alter but also to
abrogate the common law when appropriate.
¶21 The Hobson decision addressed the viability of the
common-law right to forcibly resist an unlawful arrest. After determining that the common-law right
had been a part of the law of Wisconsin by virtue of Article XIV,
Section 13 of the Wisconsin Constitution, the court went on to explain
that this fact did not prevent the court from abrogating this right. Indeed, based upon a thorough assessment of
the issue, the court in Hobson did in fact abrogate the long-standing
common-law rule, holding, "Wisconsin has recognized a privilege to
forcibly resist an unlawful arrest, but based on public policy concerns, we
hereby abrogate that privilege." Hobson thus clearly
demonstrates that the power to abrogate a common-law rule preserved by Article
XIV, Section 13 is not limited to the legislature, but extends to the
judiciary as well.
¶22 The defendant also argues that even if Esser is good law,
this court may not abrogate the year-and-a-day rule in this case because the
legislature has specifically refused to adopt such a change and thereby
expressed a policy decision to maintain the rule as good law in Wisconsin. In light of this legislative history, the
defendant asserts that abrogation of the common-law rule would be an improper
exercise of judicial power by developing the law in contravention of the
legislative policy.
¶23 We disagree with the defendant's assessment of the impact
legislative history has on this court's authority to alter or abrogate the
year-and-a-day rule. We have long
rejected the doctrine that "legislative consideration coupled with
inaction [is] indicative of preemption."
¶24 In Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115
N.W.2d 618 (1962), this court abandoned the previously held view that that
legislature's refusal to enact an introduced bill amounted to "an
expression by the legislature that no change should be made." The Holytz decision announced that
when the rule in question is a common-law rule, the court's responsibility for
altering or abolishing that rule does not end due to legislative indifference
or failure to enact a statute to the contrary.
This important turning point has since been recognized in a number of
decisions.
¶25 This court's post-Holytz decision, Sorensen v. Jarvis,
119 Wis. 2d 627, 350 N.W.2d 108 (1984), is particularly
on point. In Sorensen, this
court abrogated the common-law rule barring a third party injured by an
intoxicated minor from recovering damages from the retail seller who sold the
intoxicating beverage to the minor. The
defendant in Sorensen asserted that the court was prohibited from
changing the common-law rule because a recent legislative attempt to do so
"was allowed to die in committee" and by this inaction a declaration
of the legislative will not to change the common law was announced. The Sorensen decision rejected this
argument, concluding, "While in the past we have indicated that nonaction
by the legislature could be so interpreted we have since stated that, even
where there has been some evidence, arguably, of the legislature's will by its
failure to act, we are not foreclosed from acting."
¶26 Aside from this court's pronouncement in Holytz that common
law unaltered by legislation remains within the province of the judiciary to
develop, the decision not to treat a legislature's failure to enact a bill
overriding the common law as indicative of legislative intent is further
supported by considerations of the legislative process itself. As the Sorensen decision explains,
"[N]onpassage of a bill is not reliable evidence of legislative intent,
for it may have failed" for a variety of nonpolicy reasons, such as
insufficient time, the agenda-setting maneuverings of legislative leadership,
the efforts of special interests, or lobbying efforts at a committee or floor
level.
¶27 It would be absurd to conclude that every time a bill to change the
common law was introduced but not passed by the legislature, the relevant
common law effectively freezes at that moment until further action by the
legislature. Indeed, such a rule would
result in an unwarranted encroachment on the judicial powers of the courts by
individual legislators empowered with their own personal veto over development
of the common law of Wisconsin.
¶28 We conclude, therefore, that the fact that the legislature declined
to abrogate the year-and-a-day rule when it revised the criminal code in 1955
does not bar this court from doing so.
IV
¶29 Having decided that this court has the authority to abrogate the
year-and-a-day rule, we must now determine whether the time has come to do
so. Common-law rules are meant to
develop and adapt to new conditions and the progress of society. In Esser, the court concluded that
"whenever an old rule is found unsuited to present conditions or unsound,
it should be set aside." In Antoniewicz v. Reszcynski, 70
Wis. 2d 836, 854, 236 N.W.2d 1 (1975), the court stated that
"[i]t is the tradition of common-law courts to reflect the spirit of their
times and discard legal rules when they serve to impede society rather than to
advance it."
¶30 We agree with the State that new conditions and the progress of
society have rendered the year-and-a-day rule "unsuited to present
conditions" and an impediment to society, and that the time has come to
set it aside.
¶31 As the State points out, there are three traditional justifications
for the year-and-a-day rule. The
primary and most frequently cited justification is that because of the
primitive state of medical knowledge in the thirteenth century it was not
possible to establish causation beyond a reasonable doubt when a great deal of
time had elapsed between the injury to the victim and the victim's death. Therefore, it was presumed that a death that
occurred more than one year and one day after the assault or injury was due to
causes other than the criminal conduct.
¶32 Second, it has often been said that the rule arose from the early
function of the jury. In early English
courts, jurors decided cases by relying upon their own knowledge of the matter
at issue, and could not rely upon the testimony of fact witnesses or expert
witnesses. Thus, even if expert medical
testimony had been adequate to establish causation at common law, it would not
have been admissible.
¶33 Third, the rule has occasionally been characterized as an attempt
to avoid the harsh result of the common law of homicides: Those convicted of homicide in any form,
from first-degree to manslaughter, were subject to the death penalty.
¶34 None of these justifications remain persuasive for maintaining the
year-and-a-day rule in Wisconsin.
Advances in medical science that permit causes of death to be identified
with great certainty have undermined the first justification for the
year-and-a-day rule. Modern rules of evidence giving jurors
access to expert opinion testimony regarding the cause of death undermine the
second justification for the rule. Finally, since Wisconsin does not have the
death penalty, the third justification for the rule can have no sway in this
state.
¶35 In addition to the lack of any justification for continuing the
year-and-a-day rule in modern society, two affirmative reasons exist for
abolishing the year-and-a-day common-law rule.
First, the common-law rule raises the specter of a family's being forced
to choose between terminating the use of a life-support system and allowing an
accused to escape a murder charge. Second, it is unjust to permit an assailant
to escape punishment because of a convergence of modern medical advances and an
archaic rule from the thirteenth century.
¶36 Moreover, we agree with the State that the abrogation of the
year-and-a-day rule would not deprive an accused of any fundamental right. The burden would remain "upon the
prosecution to prove proximate causation——that death flowed from the wrongful
act of the defendant." As one court has observed:
Of course, abolition of the rule would not relieve the
prosecution of its duty to prove all of the elements of the crime, including
proximate causation, beyond a reasonable doubt. A murder conviction which rests upon uncertain medical
speculation as to the cause of death is not a case which has been proved beyond
a reasonable doubt. Fears about murder convictions for death 5, 10, or even 20
years after the injury are therefore unfounded where proximate cause is proven
beyond a reasonable doubt. If such proof
is available, the conviction is justified.
¶37 In short, we are persuaded that the year-and-a-day rule has
outlived its various justifications and therefore now join the many states that
have abrogated the rule.
V
¶38 Having abrogated the year-and-a-day rule, the remaining issue we
address is the applicability of this abrogation of the common-law rule to the
defendant in the case at hand.
¶39 The United States Supreme Court has made it clear that this court
has the authority to abrogate the year-and-a-day common-law rule prospectively
or retroactively. In Northern
Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364 (1932),
Justice Cardozo, writing for a unanimous court, affirmed a decision of the
Montana Supreme Court to overrule precedent purely prospectively——that is, to
apply the new rule only to future conduct——explaining: "We think the Federal Constitution has
no voice upon the subject. A state in
defining the limits of adherence to precedent may make a choice for itself
between the principle of forward operation and that of relation backward."
¶40 More recently, Justice Sandra Day O'Connor, writing for a
five-justice majority in Rogers v. Tennessee, 532 U.S. 451 (2001),
declared that the Tennessee Supreme Court had the authority to abrogate the
year-and-a-day rule retroactively without violating the federal constitution.
¶41 These decisions make clear that state courts must decide for
themselves whether to abrogate the common-law year-and-a-day rule prospectively
or retroactively, and so we turn to Wisconsin case law for guidance.
¶42 This court has faced the question of prospective versus retroactive
overruling of a common-law rule in several cases. The court has stated a number of times that it, like all courts,
generally adheres to the "Blackstonian doctrine," which provides that
"a decision to overrule or repudiate an earlier decision is retrospective
in operation." The Blackstonian doctrine is based on the
jurisprudential theory that "courts declare but do not make law. In consequence, when a decision is
overruled, it does not merely become bad law,——it never was the law, and the
later pronouncement is regarded as the law from the beginning."
¶43 The court, however, has also criticized the Blackstonian doctrine
because it "leads to a strict and unyielding adherence to the rule of stare
decisis and interferes with the progress of the law." Furthermore, inequities can arise when a
court departs from precedent and announces a new rule. Accordingly, the court has recognized
exceptions to the Blackstonian doctrine and has employed the technique known as
prospective overruling, or "sunbursting," to soften or limit the
impact of a newly announced rule.
¶44 In Harmann v. Hadley, 128 Wis. 2d 371, 377, 382
N.W.2d 673 (1986), we explained that there are no easy-to-follow rules or
consistent guidelines directing courts on whether or how to sunburst a
decision. Courts must make the decision
based upon the "equities peculiar to a given rule or case."
¶45 The decision to overrule a rule of law purely prospectively is
therefore a "question of policy."
The most common reason for prospective overruling is to protect the
reliance interests of individuals and institutions that have ordered their
affairs under the prior legal regime.
Other interests, however, are also implicated when a court overrules
past precedent.
A free and democratic society requires stability in the law, and
retroactive changes in the law jeopardize the courts' own institutional
reliance on announced law. Our society
also values the efficient administration of justice, and applying a new rule
retroactively often imposes an added burden on the judicial institution. Moreover, retroactive application of
criminal responsibility may be viewed as tarnishing the rule of law and
institutional adherence to the law, thus tarnishing the "image of
justice."
¶46 Purely prospective overruling frequently reduces the impairment of
these interests and mitigates any hardships that result from a decision to
change the law. Judge Thomas E.
Fairchild, then judge of the Court of Appeals for the Seventh Circuit and
former Wisconsin Supreme Court justice, explains that the use of the
sunbursting technique relieves some pressure against departure from precedent
and serves the same social interest in stability that is the root of stare
decisis.
¶47 With respect to criminal cases, Wisconsin courts have expressed
reservations about retroactive overruling of judge-made substantive criminal
laws, making acts criminal that were not considered criminal when they
occurred. In Laabs v. Tax Commission,
218 Wis. 414, 417, 261 N.W. 404 (1935), this court explained that the
Blackstonian presumption of retroactivity should be abandoned where a criminal
statute "which has received a limited construction by earlier decisions,
has been so expanded in meaning by the later overruling decision as to make
acts criminal which were not such under earlier decisions, and the later
decision is sought to be applied to one whose acts were committed before the
statute was given the enlarged construction."
¶48 Commentaries uniformly recognize the hardships created by
retroactive application of judicial decisions expanding substantive criminal
laws. Chief Justice Roger J. Traynor of the
California Supreme Court (ret.) explained that the problem of "retroactive
versus prospective application calls for the most sensitive balancing of
competing claims to justice in the area of criminal law."
¶49 An argument can be made for retroactive application of the new rule
to this case. The defendant here
committed a criminal act, a battery against another person, ultimately
resulting in death. Battery is
recognized as criminal conduct regardless of the year-and-a-day rule, and the
defendant cannot claim his conduct was lawful when he inflicted the
injury. Furthermore, the criminal law
accords high value to the preservation of individual life, and this defendant
violently took a life.
¶50 We conclude, however, that a stronger argument can be made for
purely prospective application of the new rule in this case. Our legal system accords high value to the
rule of law and institutional adherence to the law. Although overruling the year-and-a-day rule does not mark the
defendant's conduct in the case at hand as criminal for the first time,
abrogating the year-and-a-day rule nevertheless creates criminal liability for
a different crime, the crime of first-degree reckless homicide, where no such
liability previously existed. By
abrogating the year-and-a-day rule, we have altered the law after the defendant
committed the crime. When the defendant
battered the victim in this case, he was guilty of the crimes of aggravated
battery and substantial battery, but not of violating Wis. Stat. § 940.02(1),
which punished a person for recklessly causing the death of another human being
within one year and one day of the conduct that showed utter disregard for
human life.
¶51 In 1996, the defendant in the present case pled guilty to
substantial battery and aggravated battery for his altercation with the victim
and was sentenced to 15 years in prison.
Then, more than two years later, the defendant was charged and convicted
of first-degree reckless homicide for his part in that same altercation. Under the year-and-a-day rule in existence
at that time, the State's prosecution was barred. The defendant in the present case was thus assured by the law
that he was safe from the State's pursuit on a murder charge.
¶52 The bar on the State's ability to prosecute the defendant for
murder is removed for the first time today, by this court's decision to
abrogate the year-and-a-day rule. Thus,
the decision today, if applied to the defendant, revives the State's ability to
bring this second prosecution for murder. Judge Learned Hand artfully stated, when describing the problem
with extending a criminal statute of limitation after it has already expired,
that "for the state to assure a man that he had become safe from its
pursuit, and thereafter to withdraw its assurance, seems to most of us unfair
and dishonest."
¶53 As Chief Justice Roger J. Traynor ominously warned, permitting
retroactive application of expanded criminal laws as a general proposition
threatens the liberty interests of everyone within a free and open
society:
The first among them to be criminally prosecuted may be
those whose offenses are so close to specified crimes as to seem properly
punishable. But each such punishment
broadens the area of prosecution and the number of those who may be caught in
it. No one can forget that in our own
time, in purportedly civilized countries, millions have thus been caught who
have committed no greater offense than to be themselves.
¶54 Abrogating the year-and-a-day rule retroactively and thereby
expanding the construction of § 940.02(1)——as well as all other homicide
statutes in Wisconsin——undermines stability in the law and tarnishes the
image of justice.
¶55 First, retroactive abrogation of the year-and-a-day rule would
affect more than just the defendant in this case. There is no statute of limitations on a homicide prosecution in
Wisconsin. Consequently, retroactive abrogation of the
common-law rule will put many other individuals who committed similar
crimes——some decades ago and some who have already served time for their crimes
and been released——in jeopardy of new prosecutions.
¶56 Moreover, permitting the prosecution of these individuals for the
same conduct for which they have already served time paints our criminal
justice system with a brush of arbitrariness.
Which of these individuals may actually be prosecuted could depend on a
variety of arbitrary factors, including whether or not evidence has been
preserved, the availability of resources in a given county to charge the
accused again, and the age and health of the perpetrator. Liberty should not hinge on such chance events.
¶57 Consequently, we conclude that the year-and-a-day rule should be
overruled purely prospectively.
Prosecutions for murder in which the conduct inflicting the death occurs
after the date of this decision are permissible regardless of whether the
victim dies more than a year and a day after the infliction of the fatal
injury. Although the defendant
in the present case is not punished for the death of the victim and relatives
and friends of the victim are not vindicated by our decision today, the
defendant does not go unpunished. The
defendant's conviction for aggravated battery and substantial battery stands. His sentence of 15 years imprisonment
stands. Thus, important values in our
society have been preserved.
¶58 In addition, we have expanded the construction of a statute
through abrogation of the common-law year-and-a-day rule so that hereafter
persons can be convicted of murder even though the death of the victim occurs
more than a year and a day after the act inflicting the injury.
¶59 We recognize that there are different methods of prospective
overruling and that one of the most common is to apply a change in the law
prospectively in all cases except the one before the court that has served as
the impetus for change. The reasons
justifying this approach, however, are not present in the case at hand.
¶60 Courts and commentaries alike cite two reasons for applying a new
rule of law to the parties in the case where the rule is announced and
prospectively. The first is that to do
otherwise would relegate the announced change in law to the status of mere dicta.
¶61 Wisconsin, of course, does not always recognize intentionally
answered questions of law in judicial decisions as nonbinding dicta. "It is deemed the doctrine of the cases
is that when a court of last resort intentionally takes up, discusses, and
decides a question germane to, though not necessarily decisive of, the
controversy, such decision is not a dictum but is a judicial act of the court
which it will thereafter recognize as a binding decision."
Following this doctrine, prior
decisions of this court have announced rules to be applied purely
prospectively.
¶62 The second reason is that it is necessary to apply the new rule to
the party that challenges the old law as a reward to encourage others to
continue to bring claims to the courts. In the case at hand, it is the defendant who
has raised the claim of the application of the common-law rule. It is hardly a reward to the defendant to
abrogate the year-and-a-day rule in his case. Such a decision would uphold his conviction for first-degree
reckless homicide.
¶63 Even if it is more accurate to recognize the State as bringing the
claim in this case by prosecuting the defendant for conduct that caused death
more than one year and one day later, the State does not need the encouragement
to press claims that other litigants might.
Ordinarily a private party who raises an issue is in court for that case
only and gains nothing if the new rule does not apply to it. In contrast, the State litigates frequently
and is a repeat player in criminal cases.
The State gains even if the new rule applies only prospectively. While barred from prosecuting the defendant
in this case, the State gets the benefit of the rule in the future from the
ability to bring homicide prosecutions unencumbered by this archaic common-law
rule.
¶64 For the reasons set forth, we conclude that the year-and-a-day rule
should be overruled purely prospectively.
Accordingly we reverse the judgment and order of the circuit court and
remand the cause to the circuit court to dismiss the criminal complaint.
By the Court.—The judgment and order of the
circuit court are reversed and the cause remanded.
¶65 JON P. WILCOX, J. (concurring
in part, dissenting in part). I
agree with the court's determination that the year-and-a-day rule was, until
today, part of Wisconsin law. I also
agree that this court has the authority to abrogate such a common law rule, and
that the year-and-a-day rule is outdated and should be abrogated. However, I must disagree with the court's
conclusion in Part V of the majority opinion that the abrogation of the rule
should not be applied to this defendant.
While I do not dispute the majority's assertion that this court may
decide whether or not the "new rule" should be applied prospectively
or retroactively, I take issue with the court's apparent disregard for a recent
decision by the United States Supreme Court on this exact issue. In Rogers v. Tennessee, 532 U.S. 451
(2001), the Court held that retroactive application of abrogation of the
year-and-a-day rule was permissible.
This court has typically followed the interpretations of the Supreme
Court on issues of due process. Because
I see no reason why the court should not adopt the Rogers analysis and
because I find it fair to apply the abrogation of the year-and-a-day rule to
this defendant, I respectfully dissent.
¶66 Picotte argues that the Wisconsin Constitution may afford
defendants greater protection than the United States Constitution. That is certainly true. However, this court has repeatedly held that
the due process provisions of the United States Constitution and the Wisconsin
Constitution are substantively the same and should be interpreted as such. State v. Hezzie R., 219
Wis. 2d 848, 891, 580 N.W.2d 660 (1998) ("This court has
repeatedly stated that the due process clauses of the state and federal
constitutions are essentially equivalent and are subject to identical
interpretation."); State v. Konrath, 218 Wis. 2d 290, 297
n.9, 577 N.W.2d 601 (1998); Reginald D. v. State, 193
Wis. 2d 299, 306-07, 533 N.W.2d 181 (1995). Moreover, in previous cases interpreting the
interaction of ex post facto principles and due process analysis, this court
has relied upon the guidance of the United States Supreme Court. See State v. Kurzawa, 180
Wis. 2d 502, 510-13, 509 N.W.2d 712 (1994). In Kurzawa, this court, quoting Marks
v. United States, 430 U.S. 188, 191-92 (1977), held that the ex post facto
and due process clauses share a common fundamental principle, that being
"the notion that persons have a right to have fair warning of that conduct
which will give rise to criminal penalties." Kurzawa, 180 Wis. 2d at 510-11.
¶67 In 2001, the United States Supreme Court in Rogers upheld a
Tennessee Supreme Court decision, finding that retroactive application of the
abrogation of Tennessee's year-and-a-day rule did not violate due process. Rogers, 532 U.S. 451. Once again dealing with the interplay of ex
post facto and due process, the Court stated:
[W]e conclude that a judicial alteration of a common
law doctrine of criminal law violates the principle of fair warning, and hence
must not be given retroactive effect, only where it is "unexpected
and indefensible by reference to the law which had been expressed prior to the
conduct in issue."
Id. at 462 (emphasis
added). The Court went on to find that
abrogation of the year-and-a-day rule was neither unexpected nor indefensible
and thus, retroactive application did not violate due process. Id. at 462, 466-67.
¶68 In holding that abrogation of the rule could be applied
retroactively, the Supreme Court noted that the year-and-a-day rule "is
widely viewed as an outdated relic of the common law." Id. at 462. The Court added that "practically every court" that
recently examined the rule found that the rule had been rendered obsolete and
that the original reasons for its existence no longer existed. See id. at 463. Although the Court acknowledged that due
process does not require a defendant to be aware of the common law in all 50
states, it noted that in this case, such information was valuable to the
analysis.
[T]he fact that a vast number of jurisdictions have
abolished a rule that has so clearly outlived its purpose is surely relevant to
whether the abolition of the rule in a particular case can be said to be
unexpected and indefensible by reference to the law as it then existed.
Id. at 464.
¶69 Additionally, the Supreme Court found it important that the
year-and-a-day rule "had only the most tenuous foothold" in
Tennessee's criminal law. Id. The rule was not part of the Tennessee
statutory criminal code. Id. It had never served as the ground for any
prosecution for murder in the state and had only been mentioned in Tennessee
cases three times, in dicta. Id.
¶70 The Rogers decision provides the exact analysis we have been
called upon to do in this case. The
cases are strikingly similar both factually and legally. In Rogers, the defendant was charged
with second-degree murder when the man he had stabbed 15 months earlier died
from complications caused by those wounds.
Id. at 454. Like the
defendant here, Rogers claimed his murder prosecution violated due
process. The Supreme Court rejected
these arguments.
¶71 The majority here asserts several reasons for applying the
abrogation prospectively, including reliance interests, systemic stability,
efficient administration, and maintaining an untarnished "image of
justice." Majority op., ¶45. The majority suggests that the rule should
not be applied retroactively because the defendant would not have been subject
to liability for murder under the law as it existed at the time the defendant
beat his victim and that such application of a new rule threatens important
liberty interests. Majority op.,
¶50. However, even the majority
acknowledged, as it must, that regardless of the year-and-a-day rule, the
defendant here cannot claim his conduct was lawful when committed. Majority op., ¶49.
¶72 The majority's analysis, though, defies the standards laid out by
the Supreme Court in Rogers and ignores the balance already done by that
Court. As noted, this court has long
followed the precedents of the Supreme Court in this realm of the law, and the
majority does not distinguish Rogers nor does it provide a valid reason
for straying from Supreme Court precedent in this case. Under Rogers, the test for the
appropriateness of retroactive application is whether the change in law was
"unexpected or indefensible."
Rogers, 532 U.S. at 462.
The reasons for the Court's decision in Rogers apply with equal
or more force in this case.
¶73 The majority in this case, like the Rogers Court, found that
the year-and-a-day rule was clearly outdated.
Majority op., ¶¶30-37. Even the
defendant here cannot provide a good reason for the rule's continued existence. Next, the Court in Rogers noted that
the vast majority of jurisdictions had already found the year-and-a-day rule
obsolete and abrogated it. Rogers,
532 U.S. at 462-64. The Supreme Court
found that the overwhelming precedents abrogating the rule served fair notice
to the defendant that the abolition of the rule should be anticipated. Id. at 464, 466-67. Adding the Rogers decision to those
many precedents noted by the Court, I submit that the defendant in this case is
in an even poorer position than Rogers to argue that the abolition of the rule
was unanticipated.
¶74 Further, the Supreme Court found important that the year-and-a-day
rule had but a "tenuous foothold" in the criminal law of
Tennessee. In this case, Picotte argues
that the rule had a stronger hold in Wisconsin law because its protections
arose through the state constitution.
Whatever the source of the rule in Wisconsin, it nonetheless appears
that the rule has no stronger "foothold" than the Tennessee rule did. As in Tennessee, the rule is not part of the
state statutory criminal code. See
Rogers, 532 U.S. at 464.
Additionally, the rule had only been mentioned in Tennessee cases three
times, all in dicta. Id. Wisconsin has even fewer cases mentioning
the rule. As noted by the majority, "the rule apparently has never been
discussed in Wisconsin case law except in a territorial case." Majority op., ¶11 n.11.
¶75 In Kurzawa, 180 Wis. 2d at 511, this court
acknowledged that the fundamental principle common to both ex post facto and
due process analyses was "fair warning" of conduct that would give
rise to criminal penalties. Under Rogers,
such fair warning is fulfilled in this case.
I disagree with the majority's stated concerns about unforeseen
liability and appropriately rewarding those who challenge old laws. See majority op., ¶¶50-57,
62-63. The year-and-a-day rule has been
overruled in the vast majority of jurisdictions that dealt with the issue. See Rogers, 532 U.S. at
463-64. The Supreme Court upheld
abrogation of the rule and the retroactive application of the abrogation. Id. at 466-67. The rule hung on by a mere thread in this
state. Given these factors, this
defendant should not be able to successfully argue the change in the common law
rule is unexpected or indefensible.
Finally, the defendant's conduct here was not innocent when
committed. Picotte had warning that the
injuries he inflicted could give rise to criminal penalties. He should not be rewarded simply because
modern science allowed his victim to live more than a year and a day after he
was beaten into a coma. As the Supreme Court in Rogers concluded:
There is, in short, nothing to
indicate that the [state] court's abolition of the rule in petitioner's case
represented an exercise of the sort of unfair and arbitrary judicial action
against which the Due Process Clause aims to protect. Far from a marked and unpredictable departure from prior
precedent, the court's decision was a routine exercise of common law
decisionmaking in which the court brought the law into conformity with reason
and common sense. It did so by laying
to rest an archaic and outdated rule that had never been relied upon as a
ground of decision in any reported [state] case.
Rogers, 532 U.S. at
466-67.
¶76 For the foregoing reasons, I would adopt Rogers and conclude
the abrogation of the year-and-a-day rule should be retroactively applied to
this defendant.
¶77 I am authorized to state that Justices N. PATRICK CROOKS and DIANE
S. SYKES join this dissent.
¶78 DIANE S. SYKES, J. (dissenting). I join Justice Wilcox's dissent. I write separately to emphasize certain
additional concerns about the majority's refusal to apply the decision in this
case to this defendant.
¶79 The majority concludes that "the year-and-a-day rule has
outlived its various justifications" and that Wisconsin will "now
join the many states that have abrogated the rule." Majority op., ¶37. I agree with this conclusion.
¶80 The majority also concludes, however, that "now" does not
actually mean "now" in the usual sense, as in, "in this
case." Instead, "now" actually means
"later," because the majority has decided to "sunburst" its
decision——to abrogate the year-and-a-day rule prospectively only. Majority op., ¶¶38-64. I do not agree with this aspect of the
majority opinion.
¶81 The majority identifies and discards as obsolete each of the
justifications for the common law year-and-a-day rule, concluding unequivocally
that "[n]one of the[] justifications remain persuasive for maintaining the
year-and-a-day rule in Wisconsin."
Majority op., ¶34. In addition,
as an "affirmative reason" for abrogating the year-and-a-day rule,
the majority holds that "it is unjust to permit an assailant to escape
punishment because of a convergence of modern medical advances and an archaic
rule from the thirteenth century."
Majority op., ¶35.
¶82 If the year-and-a-day rule is unjustifiable then what justifies the
majority's application of it in this case?
The majority has declared that it is "unjust to permit an assailant
to escape punishment" because of the year-and-a-day rule, majority op.,
¶35, yet the majority endorses——indeed, orders——just such an injustice in this
case. Majority op., ¶64. Picotte's conviction is overturned and he
escapes responsibility for the reckless homicide he committed.
¶83 The majority notes that "[the] most common reason for
prospective overruling is to protect the reliance interests of individuals and
institutions that have ordered their affairs" in accordance with the prior
legal rule. Majority op., ¶45. It cannot seriously be suggested that
persons who commit violent, ultimately fatal assaults "order their
affairs" around the year-and-a-day rule.
The rule does not implicate any institutional reliance interests. Apparently conceding this, the majority
bases its decision to sunburst the abrogation of the year-and-a-day rule in
large part upon the "image of justice."
Majority op., ¶¶45, 54.
¶84 This is an "image of justice":
There are many other
"images of justice." See http://members.tripod.com/mdean/justice.html
(collecting various internet links to images of the goddess of justice). Magnificent "images of justice"
adorn our State Capitol, courthouses, and other public buildings across the
state and nation.
¶85 The "image of justice," however, is not a legal
principle upon which to base an appellate judicial decision. As far as I can tell, "the image of
justice" as a rationale for the majority's decision to prospectively
abrogate has something to do with 1) the "equities" in the case, 2)
"policy," and 3) the requirement of "stability in the law." Majority op., ¶¶44-45.
¶86 Stability in the law is an argument for adhering to an existing
rule rather than refusing to apply a newly-declared one. Indeed, the technique of sunbursting enables
courts to more readily avoid stare decisis and the legal stability that
adherence to precedent seeks to promote.
Announcing a new legal rule is easier when the decision to do so is
untethered from any obligation to apply it in the case before the court. Sunbursting promotes stability in the law
only when reliance interests are very strong, which is not the case here.
¶87 The generalized invocation of "policy" and
"equity" gives the majority the flexibility to make the decision it
wants to make, but does not articulate a principled, consistent rule of law, as
the majority apparently concedes.
Majority op., ¶44 ("[T]here are no easy-to-follow rules or
consistent guidelines directing courts on whether or how to sunburst a
decision."). The majority does
not identify any equitable or policy factors that govern its use of sunbursting
in this case. Such standardless
appellate decisionmaking undermines rather than promotes the rule of law. See majority op., ¶50 ("Our
legal system accords high value to the rule of law and institutional adherence
to the law.").
¶88 The majority "agree[s] with the State that the abrogation of
the year-and-a-day rule would not deprive an accused of any fundamental
right," because the burden remains on the prosecution to prove causation
beyond a reasonable doubt. Majority
op., ¶36. Nevertheless, the majority
concludes that retroactive abrogation of the year-and-a-day rule creates a
"hardship" that must be "mitigated" or "softened"
by prospective overruling. Majority
op., ¶¶43, 46.
¶89 Picotte inflicted serious, ultimately fatal head injuries on the
victim, who was in a coma for over two-and-a-half years before he died. Picotte was convicted after a jury
trial. The State proved causation (as
well as the other elements of the crime) beyond a reasonable doubt. There are no claims of any constitutional or
statutory violations. Under these circumstances, I do not see any
"hardship" in holding Picotte criminally responsible for reckless
homicide. This case hardly falls within
Justice Traynor's "ominous warning" against convicting people for
committing "no greater offense than to be themselves." Majority op., ¶53.
¶90 The majority claims that retroactive abrogation of the
year-and-a-day rule will put "many other individuals who committed similar
crimes" in jeopardy. Majority op.,
¶55. Actually, retroactive abrogation
would probably affect very few people——by its terms, the rule applied only in
the highly unusual circumstance of a death occurring more than a year after the
criminal infliction of injury. The
majority itself notes that the year-and-a-day rule is mentioned only once in
Wisconsin case law, in a territorial case dating from 1841. Majority op., ¶11 n.11.
¶91 The majority also asserts that "the prosecution of these
individuals for the same conduct for which they have already served time paints
our criminal justice system with a brush of arbitrariness." Majority op., ¶56. Again, the majority is referring to hypothetical "prosecutions"
of hypothetical "many other individuals." More importantly, it is not at all uncommon for the criminal
justice system to prosecute, convict, and sentence a defendant for several
different crimes arising out of a single incident. Unless there is a double jeopardy bar, the law does not regard
this practice as unfair or "paint[ed] with a brush of arbitrariness."
¶92 Ultimately, the majority's refusal to apply the general rule of
retroactivity is itself quite arbitrary, resting only on the majority's sense
that it would be somehow unfair to Picotte and the hypothetical "many
other individuals" who might be subject to homicide prosecutions if their
victims hereafter die of injuries criminally inflicted before the date of this
decision. But as Justice Wilcox
discusses at greater length in his dissent, the United States Supreme Court has
held that retroactive abrogation of the year-and-a-day rule fully comports with
due process. Rogers v. Tennessee,
532 U.S. 451 (2001).
¶93 I agree with Justice Wilcox that the majority's retroactivity
analysis is inconsistent with Rogers. If retroactive abrogation of the
year-and-a-day rule does not offend due process, then it is not unfair to
retroactively abrogate the rule in this case and apply that law to Picotte. The majority does not rest its decision on
any independent state constitutional ground.
¶94 Thus, in the end, the majority essentially holds that the
"image of justice" prohibits what the federal and state constitutions
and the applicable law permit. This,
then, is really just an act of judicial will.
Applying the general rule of retroactivity, I would affirm the
defendant's conviction for reckless homicide.
¶95 I am authorized to state that Justices JON P. WILCOX and N. PATRICK
CROOKS join this dissent.