COURT OF APPEALS DECISION DATED AND RELEASED January 16, 1996 |
NOTICE |
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Appeals. See § 808.10 and
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This opinion is subject to
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No. 94-3225-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES D. SCHERR,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JEFFREY A. KREMERS, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
WEDEMEYER, P.J. James D. Scherr appeals from a judgment
entered after a jury convicted him of causing death by operation of a vehicle
with a blood alcohol concentration of .08% or more, contrary to
§§ 940.09(1)(b), and 340.01(46m)(b), Stats.,
and one count of duty upon striking a person, contrary to § 346.67(1), Stats.
Scherr claims: (1) the trial court erred when it concluded that
prior convictions are an element of the crime with which Scherr was charged;
(2) the trial court erred by ruling that it could not accept a partial
jury waiver on one element of the crime; and (3) the trial court erred in admitting
the evidence of prior convictions without balancing its prejudicial effect
pursuant to § 904.03, Stats. Because prior convictions are an element of
the crime committed, because the trial court was never specifically asked to
rule on a motion for partial jury waiver and Scherr did not personally assert
his desire to waive a jury determination on this element, and because the
evidence of the prior convictions was not more prejudicial than probative, we
affirm.
I. BACKGROUND
On February 1, 1993, while
traveling on South Kinnickinnic Avenue in the City of Milwaukee, Scherr struck
a pedestrian with his automobile. He
did not stop. At the time of the
incident, Scherr's blood alcohol concentration was .251%. The pedestrian died as a result of the impact. Scherr had two or more OMVWI convictions
before the incident in this case.
Scherr was located,
arrested and charged. The case was
tried to a jury, which convicted Scherr.
He now appeals.
II. DISCUSSION
A. Prior
Convictions as an Element.
Scherr first contends
that the trial court erred in telling the jury that his two prior convictions
were an element of homicide by intoxicated use of a vehicle. This court recently addressed this issue in State
v. Ludeking, 195 Wis.2d 132, 536 N.W.2d 392 (Ct. App. 1995) and held
that prior convictions are an element of the crime with which Scherr was
charged. See id.
at 136, 536 N.W.2d at 394 (prior “operating a motor vehicle while intoxicated”
convictions are an element of the offense of driving with a prohibited alcohol
concentration under §§ 346.63(1)(b) and 340.01(46m)(b), Stats.). Accordingly, we summarily reject Scherr's argument on this issue.
B. Partial
Waiver of Jury Trial.
Scherr also claims that
the trial court erred in denying his request for partial jury waiver on the
element of “two or more prior convictions.”
We reject this claim because our review of the record demonstrates that
Scherr did not actually offer to waive his right to a jury trial on this
element, but rather argued that this was an issue of law for the court to
decide.
The record demonstrates
that Scherr's counsel's argument with respect to this issue was:
Your
Honor, it is the position of the defense that the .08 percent BAC must be
applied by the Court as a matter of law if the defendant has prior
convictions, but fall within the terms of the statute.
Obviously
then the Court must make findings in that respect. And it was my thought that in conjunction with [the prosecutor]
we would submit and stipulate to a certified copy of the defendant's driving
record in that respect which the court could base the finding. The actuality is that the net affect of that
on a jury should only be that they hear an instruction from the court to the
affect that the .08 percent is the appropriate level for them to find in order
to find the defendant guilty of that particular subsection of [the] statute.
I
do not believe discussion of prior convictions, the defendant should be made
nor need be made as an article of proof for a jury to consider.
....
I
am concerned though, in that there are a number of analogous statutes dealing
with operating while intoxicated and operating under revocation and suspension
and other analogous offenses where in the fact and prior suspensions or
convictions is not presented to a jury.
But
rather, it's a law that the court may consider, must consider those items on
sentencing as a matter of findings, matters of law. I would think that a conviction is
quintessentially or not quintessentially an issue of law. ... I don't
know that something that is so intrinsically an issue of law really should be
an issue for a jury to look at.
It simply doesn't strike me as an appropriate
matter of fact for juries to make decisions on.
(Emphasis
added.) These excerpts reflect the
entirety of Scherr's argument on this issue.
As is clear from the excerpts, at no time was there a request to waive a
jury trial on this element. Rather, the
argument asserted that this element was a question of law for the court and not
a question of fact for the jury. Further,
the record does not contain a personal waiver from Scherr.
Although a defendant may
waive the right to a jury trial on an element of the crime charged, in order to
do so, the defendant must make an express personal jury waiver. State v. Villarreal, 153
Wis.2d 323, 324, 450 N.W.2d 519, 520 (Ct. App. 1989). The record in this case demonstrates that Scherr did not
personally waive his right to a jury determination on this issue and,
therefore, it would have been error for the trial court to take this element
away from the jury. See id.
at 332, 450 N.W.2d at 523.
C. § 904.03,
Stats.
Finally, Scherr argues
that the trial court should have engaged in a § 904.03, Stats., balancing test and should have
concluded that introducing his two prior convictions was unfairly
prejudicial. We do not agree. The fact that Scherr had prior convictions was an element of the
charged offense. The fact that prior
convictions existed was the only evidence of this element of the offense. In these circumstances, this type of
evidence should not be excluded pursuant to § 904.03, Stats., as a matter of law. See State v. Grande,
169 Wis.2d 422, 428, 485 N.W.2d 282, 283 (Ct. App. 1992) (holding as a matter
of law that the only evidence of an element of an offense cannot be unfairly
prejudicial or misleading to a jury).
Further, the evidence of the prior convictions, suspensions or
revocations that was actually presented to the jury was very general in nature
and was followed by a cautionary instruction.
As the trial court amply
reasoned:
One of the things the jury has to find as the
third element of the offense is that at the time the defendant operated the
vehicle he had two or more convictions, suspension[s] or revocations as counted
under an appropriate statute and then there is additional cautionary language
that should be given at the request of the defendant which is that evidence has
been received that defendant had prior convictions[,] suspensions or, this was
received as relevant to the status of the defendant's driving record which is
an issue in this case. It must not be
used for any other purpose.
As
noted, the information given to the jury regarding the priors was simply that
Scherr had two or more prior convictions, suspensions or revocations. The jury was not informed of any of the
circumstances surrounding those convictions, they were not even told that the
convictions were for drunk driving, and they were not even told whether the
priors were convictions, suspensions or revocations. In addition, the trial court issued a cautionary instruction to
the jury that the evidence of Scherr's prior violations was “received as
relevant to the status of his driving record, which is an issue in this case
and it must not be used for any other purpose.” Based on the foregoing, we conclude that the probative value of
Scherr's prior convictions was not outweighed by any unfair prejudice.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
No.
94-3225-CR (C)
SCHUDSON, J. (concurring). With
the recent decision in State v. Ludeking, 195 N.W.2d 132, 536
N.W.2d 392 (Ct. App. 1995), it is now settled that prior convictions constitute
an element of homicide by intoxicated driving.
It is also well-settled that a defendant has “the right to a jury
determination” of each element of a criminal charge. State v. Villarreal, 153 N.W.2d 323, 450 N.W.2d
519, 522 (Ct. App. 1989). Neither Ludeking
nor Villarreal, however, addresses whether a defendant has the
right to waive a jury trial on one of the elements of a criminal charge, in the
absence of consent by the State.[1]
In Singer v.
United States, 380 U.S. 24 (1965), the Supreme Court pondered but did
not determine “whether there might be some circumstances where a defendant's
reasons for wanting to be tried by a judge alone are so compelling that the
Government's insistence on trial by jury would result in the denial to a
defendant of an impartial trial.” Id.
at 37. In State v. Cook,
141 Wis.2d 42, 413 N.W.2d 647 (Ct. App. 1987), we quoted that passage from Singer
but also did not determine whether such circumstances might exist. Cook, 141 Wis.2d at 46, 413
N.W.2d at 649. Here, I believe, we
encounter such circumstances.
Charged with homicide by
intoxicated driving, Scherr could reasonably believe that a jury, informed of
the undisputed fact that he has two prior convictions for intoxicated driving,
would be unable to fairly evaluate the disputed facts and issues in the
case. Thus, to preserve his right to
trial by a fair and impartial jury, Scherr should have been allowed to waive
his right to a jury trial on that element.
The majority concludes
that Scherr “did not actually offer to waive his right to a jury trial on this
element, but rather argued that this was an issue of law for the court to
decide.” Majority slip op. at 3. I disagree.
Although defense counsel argued that the issue was one for the court, he
also argued that “the court must make findings in that respect,” and
“could base the findings” on the parties' stipulation. The trial court rejected his arguments, thus
precluding what otherwise would have become Scherr's formal, personal jury
waiver on one element. Under these
circumstances, I conclude that Scherr did offer to waive his right to a jury
trial on the element of his prior convictions.
In this case, however, I
conclude that the trial court's error was harmless because the jury did not
learn of Scherr's two prior convictions for intoxicated driving. Contrary to the implication of Scherr's
arguments on appeal, the jury was not informed of the nature of his prior
convictions. Accordingly, I concur.
[1]
In State v. Villarreal, 153 Wis.2d 323, 450 N.W.2d 519
(Ct. App. 1989), however, we did state:
The
state notes that the Criminal Jury Instructions Committee suggests that
submission of the dangerous weapon element to the trial court rather than the
jury can be proper. We have no
disagreement with this suggestion. Just
as the parties to a criminal action may waive a jury trial, we see no reason
why they should not be permitted to waive a jury trial as to a portion of the
action.
Id. at 330, 450 N.W.2d at 523; see also § 972.02(1), Stats. (defendant's waiver of jury trial requires court approval “and the consent of the state” (emphasis added)).