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COURT OF APPEALS DECISION DATED AND RELEASED December 12, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
96-1099-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Appellant
v.
HAROLD R. ALTENBURG,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Wood County:
EDWARD F. ZAPPEN, JR., Judge. Affirmed.
ROGGENSACK,
J. The State appeals a postconviction order granting Harold R.
Altenburg a new trial. The trial court
set aside Altenburg's conviction for hunting deer out of season, because it
believed an erroneous pre-trial ruling and jury instruction had kept the real
controversy from being tried. Because
this court[1]
concludes the State was required to prove beyond a reasonable doubt that
Altenburg was not acting in a privileged defense of property when he shot the
deer, and that the trial court properly exercised its discretion when it
ordered a new trial, the order is affirmed.
BACKGROUND
On September 27, 1994,
Altenburg was charged with hunting during the closed season, contrary to NR
10.01(3)(e) of the Wisconsin Administrative Code,[2]
for shooting deer in the woods surrounding his vegetable farm in Grand
Rapids. Altenburg pleaded not guilty,
on the theory that the shootings were privileged in defense of his crops, which
had been repeatedly damaged by deer. At
an instruction conference on April 24, 1995, the trial court decided to
preclude Altenburg from introducing evidence that his shootings of deer were
privileged. Altenburg's counsel relied
on this pre-trial ruling when preparing his defense; and therefore, he did not
call witnesses other than the defendant at trial.
However, Altenburg did
file his previously requested jury instruction on defense of property with the
court on the morning of trial. At a
second instruction conference held during the noon recess, the judge said he
had changed his mind, and intended to allow some instruction on the
defense. Altenburg then testified that
he had shot two deer during August of 1994 and explained the history of
difficulties he had had trying to prevent deer from damaging his crops. Based on this testimony, the trial judge
determined that Altenburg had made a prima facie case for his defense
that the shootings were privileged, and it fashioned a compromise jury
instruction which read:
A
landowner has a qualified privilege to shoot wild game when the shooting is a
reasonable necessity under the then existing circumstances. In order for the defendant to resort to
force in protecting his property, the defendant must have exhausted all other
reasonable remedies available by law to protect his property. Further, he must only use such force and
means that are reasonable and necessary under the circumstances. In determining whether the defendant's
actions were reasonable, the standard is what a person of ordinary intelligence
and prudence would have done in the defendant's position under the
circumstances that existed at the time of the alleged offense. The reasonableness of the defendant's
actions must be determined from the standpoint of the defendant at the time of
his acts and not from the viewpoint of the jury now.
If you find the defendant's actions at the time
of the acts to be reasonable, then you should find the defendant not guilty.
Altenburg
objected to the court's modification of his proposed jury instruction because
the instruction given failed to explain that the State had the burden of
proving beyond a reasonable doubt that the defendant's actions were not
privileged. The State objected to
giving any jury instruction on privilege, contending that, as a lessee,
Altenburg was not entitled to raise the defense.
Altenburg was convicted
of two counts of hunting out of season.
On postconviction motions, the trial court concluded that the real
controversy had not been fully tried because (1) it had not properly instructed
the jury on the burden of proof for the privilege defense, (2) it had not given
the defendant the opportunity to present his case on the reasonableness of his
actions, and (3) it had improperly excluded testimony on exhaustion of
remedies. Accordingly, the court set
aside Altenburg's conviction and granted his motion for a new trial. The State appeals.
DISCUSSION
Scope of Review.
A
trial court's decision to set aside a conviction in the interest of justice is
a discretionary determination. Section
805.15(1), Stats.[3];
State v. Harp, 161 Wis.2d 773, 775, 469 N.W.2d 210, 211 (Ct. App.
1991) (Harp II). The
trial court properly exercises its discretion when it makes a reasonable
decision in accordance with accepted legal standards and the facts of
record. State v. Hereford,
195 Wis.2d 1054, 1065, 537 N.W.2d 62, 66 (Ct. App. 1995). However, the trial court erroneously
exercises its discretion if its decision is based on a mistake of law. Hoeft v. Friedel, 70 Wis.2d
1022, 1037, 235 N.W.2d 918, 925 (1975).
Instructional
Error.
Because Altenburg claims
his actions were privileged, he has the initial burden of production for the
defense. State v. Staples,
99 Wis.2d 364, 376-77, n.4, 299 N.W.2d 270, 276, n.4 (Ct. App. 1980). The State then carries the burden of
persuasion in negating the defense beyond a reasonable doubt. Moes v. State, 91 Wis.2d 756,
764-65, 284 N.W.2d 66, 70 (1979).[4]
Shooting a protected
animal in Wisconsin may be privileged on the ground that the defendant was
protecting his property. State v.
Herwig[5], 17
Wis.2d 442, 445, 117 N.W.2d 335, 337 (1962), citing State v.
Rathbone, 100 P.2d 86 (Mont. 1940); State v. Burk, 195 P.
16 (Wash. 1921). Privilege is bottomed
in the common law right to own and protect property, which right has been
codified. See §§ 939.45(2)
and (6), Stats.; 93 A.L.R.2d at
1368 (discussing the origins of the privilege, which at common law extended to
tenants cultivating the land). The
privilege exists when the shooting is reasonably necessary under the then
existing circumstances to protect the shooter's property. Herwig, 91 Wis.2d at 445, 117
N.W.2d at 337; see also 35 Am.
Jur. 2d Fish and Game § 37.
"A defendant is
entitled to an instruction on his theory of defense if it is supported by the
evidence and a timely request is made."
State v. Herriges, 155 Wis.2d 297, 300, 455 N.W.2d 635,
637 (Ct. App. 1990) (citation omitted).
In order to protect the defendant's due process interests, the jury
should be instructed that before it can find the defendant guilty, it must find
beyond a reasonable doubt that the defendant was not privileged to shoot the
deer. Staples, 99 Wis.2d
at 377, 299 N.W.2d at 276.
The trial court
correctly recognized that a conditional privilege exists to kill game otherwise
protected by statute, when the killing is reasonably necessary for the
protection of property.[6] The trial court also correctly determined
that Altenburg, as a crop owner, was eligible to assert the privilege even if
he only leased the farmland for crop production. We conclude the court properly determined that it should have
instructed the jury that the State had the burden of proving beyond a
reasonable doubt that Altenburg was not acting in lawful defense of his crops
when he shot the deer.
Authority
to Grant a New Trial.
A trial court has
discretionary authority to order a new trial in the interest of justice. Section 805.15(1), Stats. The court's
discretion includes "the authority to reverse where trial errors have
prevented the real controversy from being fully tried." Harp II, 161 Wis.2d at 779,
469 N.W.2d at 212. The court's
authority does not depend on the type of error involved, or on whether a proper
objection was recorded and preserved.
Additionally, the order for a new trial does not require a showing that
a different result would be probable at a second trial. Id. at passim.
The State argues that
the trial court lacked authority to order a new trial on the basis of any flaw
in the jury instructions because Altenburg consented to the court's
instructions at trial. We need not
resolve the question of whether Altenburg waived any instructional error,
however, because under the Harp II analysis, it is irrelevant. If an instructional error occurred, the
court could conclude that the real controversy had not been fully tried, even
if Altenburg never objected to the instruction.
The State's contention
that Altenburg's reliance on a pre-trial ruling was inadequate to preserve the
error for review under State v. Sohn[7]
fails for the same reasons. The issue
in a discretionary reversal case is simply whether an error has occurred which
has kept the real controversy from being fully tried.
In light of the court's
error in the jury instruction and its determination that its pre-trial ruling
kept the defendant from fully developing the issues of reasonableness and
exhaustion of remedies, ordering a new trial was a proper exercise of
discretion.
CONCLUSION
Because the trial court
properly determined that an instructional error had occurred, the court acted
in accordance with the law and the facts of record when it set aside
Altenburg's conviction for hunting out of season.
By the Court.—Order
affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4., Stats.
[2] A violation of the natural resources administrative code is a criminal misdemeanor under §§ 939.12 and 939.60, Stats.
[3] A trial court may order a new trial in a criminal case in the interest of justice under § 805.15(1), Stats. State v. Harp, 150 Wis.2d 861, 879, 443 N.W.2d 38, 45 (Ct. App. 1989) (Harp I) (overruled on other grounds).
[4] Cf. State v. Saternus, 127 Wis.2d 460, 381 N.W.2d 290 (1986), which refused to extend Moes to the non-statutory defense of entrapment, holding that it was appropriate to require the defendant to carry the burden of persuasion.
[5] While the cited passages from Herwig are dicta, they are useful because the decisions from other jurisdictions cited by Herwig are on point for the case at hand.
[6]
The State urges this court to limit the use of the privilege to those who have
obtained deer permits, as an Oregon court has done. However, an Oregon statute specifically provides:
[N]o person
shall take, pursuant to this subsection, at a time or under circumstances when
such taking is prohibited by the commission, any game mammal ¼ unless the person first obtains a permit for such taking
from the commission.
ORS 948.012(1). In the absence of a similar Wisconsin statute, the permit issue is but one aspect of the larger question of whether the shooting was "reasonably necessary."