PUBLISHED OPINION
Case No.: 94-2187-CR
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff‑Respondent,†
v.
GEORGE C. LOHMEIER,
Defendant‑Appellant.
Oral Argument: July 12, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: August 16, 1995
Opinion Filed: August
16, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Walworth
(If
"Special", JUDGE: JAMES L. CARLSON
so indicate)
JUDGES: Anderson, P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs and oral argument of Dennis P. Coffey of Coffey,
Coffey & Geraghty of Milwaukee.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, Attorney General, and William
C. Wolford, assistant attorney general.
Oral argument was by William C. Wolford.
COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 16, 1995 |
NOTICE |
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.
94‑2187‑CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE OF WISCONSIN,
Plaintiff‑Respondent,
v.
GEORGE C. LOHMEIER,
Defendant‑Appellant.
APPEAL
from a judgment of the circuit court for Walworth County: JAMES L. CARLSON,
Judge. Affirmed in part; reversed in
part and cause remanded with directions.
Before
Anderson, P.J., Brown and Snyder, JJ.
ANDERSON,
P.J. George C. Lohmeier appeals from a judgment of
conviction for two counts of homicide by intoxicated use of a vehicle contrary
to § 940.09(1)(a), Stats., two
counts of homicide by prohibited alcohol concentration contrary to §
940.09(1)(b) and two counts of hit and run causing death contrary to §§ 346.67
and 346.74(5), Stats. We conclude that § 940.09(2) does not
violate the Equal Protection Clause and therefore affirm the conviction in
part. However, because we conclude that
the jury instruction on contributory negligence deprived Lohmeier of his
affirmative defense of intervening cause, we reverse and remand for a new
trial.
In
June 1993, Lohmeier struck Renee Belair and Staci Rogers with his car as the
girls were walking along the road where Lohmeier was driving. Trial testimony revealed that Lohmeier's
blood alcohol content was 0.186%.
Michael Sugrue, an eyewitness, told the police that he observed through
his rear view mirror Lohmeier's vehicle strike the two girls. Sugrue testified that when he passed the
girls, “[t]hey were walking towards me on the other side of the road. One was in the road, probably a couple of
feet off of the road. One of them was
like on the edge of the road about half on, half off.” He further testified that Lohmeier's car was
“kind of far over on the edge of the road” toward the ditch line. One of the victims died at the scene and the
other victim died later at the hospital.
Lohmeier
was charged with, among other things, homicide by intoxicated use of a vehicle,
contrary to § 940.09(1)(a) and (b), Stats. At trial, Lohmeier presented the testimony
of an accident reconstructionist that the victims had been on the road, rather
than on the shoulder. This testimony
was intended to support his defense that the accident would have occurred even
if Lohmeier had been exercising due care in the operation of his vehicle.
At
the conclusion of trial, over Lohmeier's objection, the court allowed the
following jury instruction offered by the State: “You are further instructed as to these four counts that it is no
defense to a prosecution for a crime that the victim may have been
contributorily negligent.” The jury
subsequently found Lohmeier guilty of two counts of homicide by the intoxicated
use of a vehicle, two counts of homicide by a prohibited alcohol concentration
and two counts of hit and run causing death.
Lohmeier appeals.
Lohmeier
argues that § 940.09(2), Stats.,
violates the Equal Protection Clauses of the Wisconsin and United States
Constitutions. The constitutionality of
a statute is a question of law which we review de novo. See Bachowski v. Salamone, 139
Wis.2d 397, 404, 407 N.W.2d 533, 536 (1987).
Initially,
it is important to note the familiar proposition that “constitutional
challenges to a statute must overcome a strong presumption of
constitutionality.” State v.
Thiel, 188 Wis.2d 695, 706, 524 N.W.2d 641, 645 (1994). A party attacking a statute on
constitutional grounds has the burden of proving that the statute is
unconstitutional beyond a reasonable doubt.
Wisconsin Bingo Supply & Equip. Co. v. Wisconsin Bingo Control
Bd., 88 Wis.2d 293, 301, 276 N.W.2d 716, 719 (1979).
Lohmeier
asserts that § 940.09(2), Stats.,[1]
violates the Equal Protection Clauses of the state and federal constitutions
because it creates a distinct classification of citizens and treats the class
significantly different than others similarly situated. He argues that § 940.09(2) places the burden
of proof on the defendant to prove an affirmative defense, while a defendant
prosecuted for first-degree intentional homicide under 940.01, Stats.,[2]
does not have the burden of proof to prove the affirmative defenses under that
section.
In
Milwaukee Brewers v. DHSS, 130 Wis.2d 79, 90, 387 N.W.2d 254, 259
(1986), the supreme court stated that there are two threshold questions to
resolve before reaching the fundamental equal protection issue: (1) did this legislation create a distinct
classification of citizens; and, if so, (2) did this legislation treat the
class significantly differently from all others similarly situated. We apply these questions to the present
case.
Under
the circumstances of this case, we do not reach the equal protection
issue. We answer the first question
articulated in Milwaukee Brewers affirmatively. Section 940.09, Stats., creates a distinct class of citizens—those people who
cause a death by operation of a motor vehicle while intoxicated. Lohmeier, however, has not satisfied the
second threshold question that the legislation treats the class significantly
differently from all others similarly situated. We conclude that people charged with first-degree intentional
homicide are in a different situation than those charged with homicide by
intoxicated use of a vehicle.
As
articulated by the State, the only similarities between the two statutes are
that they involve death and incorporate a statutory affirmative defense. Unlike homicide by intoxicated use of a
vehicle where no mental element need be shown,[3]
first-degree intentional homicide requires a showing of intent to kill. Section 940.09, Stats., requires a showing of the defendant's use of a
vehicle or firearm while under the influence of an intoxicant—§ 940.01, Stats., does not. Additionally, if a defendant establishes an
affirmative defense under § 940.01, the offense is mitigated to a lesser
charge. In contrast, if a defendant
establishes an affirmative defense under § 940.09, he or she is acquitted.
Another
reason why the defendants in an intentional homicide case are not similarly
situated with intoxicated drivers is that intentional homicide defendants have
affirmative defenses which can disprove an element while intoxicated drivers
have an affirmative defense which can establish a finding of fact. In State v. Loomer, 153 Wis.2d
645, 651, 451 N.W.2d 470, 472 (Ct. App. 1989), this court stated:
A State may constitutionally place a burden of proof
upon a defendant with respect to a question of fact so long as the defense is
affirmative and does not attack an element of the crime. Therefore, there was no constitutional error
in assigning the burden to Loomer with respect to his affirmative defense of
intervening cause and no constitutional error in so instructing the jury.
All of the affirmative defenses to an intentional
homicide go to an element of the crime, namely, intent. Also, since the State has to prove intent
anyway, it is in the best position to disprove the affirmative defenses going
to negate the intent element. See State
v. Buelow, 122 Wis.2d 465, 471, 363 N.W.2d 255, 259 (Ct. App. 1984)
(listing the five considerations for placing the burden of proof on a party; it
is “fair” to place the burden on a party who has the ultimate burden to prove
an element anyway). In contrast, in the
present case, the question to be resolved is one of fact, i.e., was there
negligence on the part of the victims and was that negligence the intervening
factor in the accident.
We
therefore conclude that because defendants who commit crimes under § 940.01, Stats., and § 940.09, Stats., are not similarly situated, we
need not reach the Equal Protection Clause issue.
Next, Lohmeier argues that “the trial court
erred by instructing the jury that contributory negligence on the part of the
victims could not be relied on to support the affirmative defense.” As long as jury instructions fully and
fairly inform the jury of the law applicable to the particular case, the trial
court has discretion in deciding which instructions will be given. Farrell v. John Deere Co., 151
Wis.2d 45, 60, 443 N.W.2d 50, 54 (Ct. App. 1989). Whether there are sufficient facts to allow the giving of an
instruction is a question of law which we review de novo. Id.
In
reviewing jury instructions, we are required to consider the instructions as a
whole and in their entirety. Betchkal
v. Willis, 127 Wis.2d 177, 187-88, 378 N.W.2d 684, 689 (1985). Furthermore, where a trial court has
erroneously given an instruction, a new trial is not warranted unless the error
is determined to be prejudicial. Id.
at 188, 378 N.W.2d at 689. “The test to
be applied in determining whether such an error is prejudicial is the
probability and not mere possibility that the jury was misled thereby.” Id. (quoted source omitted).
It
is negligence per se to operate a motor vehicle while intoxicated. State v. Caibaiosai, 122
Wis.2d 587, 595, 363 N.W.2d 574, 578 (1985).
Section 940.09(2), Stats.,
however, provides an affirmative defense for homicide by intoxicated use of a
vehicle. According to Caibaiosai,
122 Wis.2d at 596, 363 N.W.2d at 578,, sub. (2) provides a defense for the
situation where there is an intervening cause between the intoxicated operation
of the vehicle and the death of an individual.
An “intervening cause” has been defined as “a new and independent force
which breaks the causal connection between the original act or omission and the
injury, and itself becomes the direct and immediate cause of the injury.” State v. Turk, 154 Wis.2d 294,
296, 453 N.W.2d 163, 164-65 (Ct. App. 1990) (quoted source omitted).
At trial, the court twice gave the jury an
instruction on Lohmeier's affirmative defense:
If you are
satisfied beyond a reasonable doubt that the defendant caused the death of
Stacie Rogers and Renee L. Belair by operating a vehicle while the defendant
was under the influence of an intoxicant, you must determine whether the
defendant has a defense to this crime by considering the following: Would the death of Stacie Rogers and Renee
L. Belair have occurred even if the defendant had been exercising due care and
had not been under the influence?
Wisconsin law provides that it is a defense to the crime charged in this
case if you are satisfied to a reasonable certainty by a greater weight of the
credible evidence that the death would have occurred even if the defendant
would have been exercising due care and had not been under the influence. The defendant bears the burden of proof that
the death would have resulted even had he not been intoxicated and had been
exercising due care. ¼ If you are satisfied to a reasonable certainty by the
greater weight of the credible evidence that the death of Stacie Rogers and
Renee L. Belair would have occurred even if the defendant had been exercising
due care and had not been under the influence, then you must find the defendant
not guilty.
The trial court also gave the seemingly inconsistent
instruction: “You are further
instructed as to these four counts that it is no defense to a prosecution for a
crime that the victim may have been contributorily negligent.”
We
agree with Lohmeier that under the circumstances of this case, the court's jury
instruction on contributory negligence effectively denied Lohmeier his
defense. Here, the victims'
contributory negligence in walking in the roadway, or stepping out into the
roadway as Lohmeier's car approached, as alleged by the defense, could have
risen to the level of intervening cause, making it impossible for Lohmeier to
avoid the accident.[4] This was a question for the jury to
decide. See Caibaiosai,
122 Wis.2d at 600, 363 N.W.2d at 580 (stating that when any exonerating
evidence is received tending to show that the death would have occurred even if
the defendant had not been intoxicated, trial judges have a duty to so instruct
the jury).
By
giving the instruction that contributory negligence can never be a defense, the
jury was essentially told that the girls' actions could not be considered. We conclude that as a result of this error,
there exists a probability that the jury was misled. Therefore, the prejudice to Lohmeier requires a new trial.
By the
Court.—Judgment affirmed in
part; reversed in part and cause remanded with directions.
[1] Section 940.09, Stats., provides, in part:
Homicide by
intoxicated use of vehicle or firearm.
(1) Any person who does any of
the following is guilty of a Class C felony:
(a) Causes the death of another by the operation
or handling of a vehicle while under the influence of an intoxicant.
(b) Causes the death of another by the operation
or handling of a vehicle while the person has a prohibited alcohol
concentration, as defined in s. 340.01(46m).
....
(2) The defendant has a defense if he or she
proves by a preponderance of the evidence that the death would have occurred
even if he or she had been exercising due care and he or she had not been under
the influence of an intoxicant or did not have a blood alcohol concentration
described under sub.(1)(b) or (bm) or (1g)(b).
[2] Section 940.01, Stats., provides:
First-degree
intentional homicide. (1) Offense. Except as provided in sub. (2), whoever
causes the death of another human being with intent to kill that person or
another is guilty of a Class A felony.
(2) Mitigating
circumstances. The following are
affirmative defenses to prosecution under this section which mitigate the
offense to 2nd-degree intentional homicide under s. 940.05:
(a) Adequate
provocation. Death was caused under
the influence of adequate provocation as defined in s. 939.44.
(b) Unnecessary
defensive force. Death was caused
because the actor believed he or she or another was in imminent danger of death
or great bodily harm and that the force used was necessary to defend the
endangered person, if either belief was unreasonable.
(c) Prevention of felony. Death was caused because the actor believed
that the force used was necessary in the exercise of the privilege to prevent
or terminate the commission of a felony, if that belief was unreasonable.
(d) Coercion;
necessity. Death was caused in the
exercise of a privilege under s. 939.45(1).
(3) Burden
of proof. When the existence of
an affirmative defense under sub. (2) has been placed in issue by the trial
evidence, the state must prove beyond a reasonable doubt that the facts
constituting the defense did not exist in order to sustain a finding of guilt
under sub. (1).
[3] “The legislature
has determined that combining the operation of a motor vehicle with being in an
intoxicated state is conduct which is malum prohibitum and is
pervasively antisocial.” State v.
Caibaiosai, 122 Wis.2d 587, 593, 363 N.W.2d 574, 577 (1985).
[4] Wayne R. LaFave and Austin W. Scott, Jr.,
Substantive Criminal Law § 5.11(c) (1986), provides:
[I]t has been frequently held ¼ that it is no defense to a charge of manslaughter or
reckless homicide arising out of defendant's operation of an automobile that
the deceased driver or pedestrian was also negligent.
This is not to
say, however, that negligence by the victim is inadmissible in a criminal
prosecution. As discussed earlier, such
negligence may have a bearing upon the issue of whether the defendant's conduct
was the proximate cause of the injury, and it is also significant in
determining whether the defendant was criminally negligent. For these reasons, it would be incorrect
for the trial judge to instruct that the victim's negligence is totally
immaterial on all aspects of the case.
[Emphasis added.]