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COURT OF APPEALS DECISION DATED AND RELEASED July 31, 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. 95-1688-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JONATHON L. MC INTOSH,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Kenosha County:
MICHAEL FISHER, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Jonathon L. McIntosh appeals from a judgment
convicting him of first-degree reckless homicide contrary to § 940.02(2), Stats., in the death of Jason
Ostman. On appeal, McIntosh challenges
the jury instructions, the sufficiency of the evidence to convict him and the
failure of the trial court to properly redact a codefendant's statement
implicating him. We reject these claims
and affirm.
McIntosh was charged in
the death of Ostman, who used a controlled substance provided by McIntosh. The substance was lysergic acid diethylamide
(LSD). Ostman ingested the LSD on New
Year's Eve in 1993, had seizures, suffered brain injury and died four days later.
The elements of
§ 940.02(2)(a), Stats.,
are: (1) the defendant delivered a
substance; (2) the substance was a controlled substance; (3) the
defendant knew or believed that the substance was a particular controlled
substance; and (4) the victim used the substance alleged to have been
delivered by the defendant and died as a result of that use. With regard to the causation requirement in
the fourth element, McIntosh's jury was instructed that "before the
relation of cause and effect can be found to exist, it must appear that use of
the controlled substance was a substantial factor in producing the
death." See Wis J I—Criminal 1021 at 2.
McIntosh did not object
to the use of the substantial factor test in the jury instructions. Nevertheless, he claims on appeal that
because the jurors were not instructed that Ostman's death was a natural and
probable consequence of McIntosh's delivery of LSD to codefendant Jeremy Gomaz,
the real controversy was not tried.
Therefore, notwithstanding the waiver of the objection to the jury
instruction, this court should review the defective jury instruction.
We conclude that the
real controversy was tried because the appropriate instruction was given to the
jury. In support of his argument that
the jury should have been instructed that Ostman's death had to have been a
natural and probable consequence of his conduct, McIntosh refers to footnote
eleven of Wis J I—Criminal
1021 for the proposition that the natural and probable consequence of the
accused's conduct is the appropriate expression of the substantial factor
test. We disagree that the court was
required to instruct the jury regarding "natural and probable
consequences" rather than "substantial factor."
We are satisfied that
the jury was properly instructed that McIntosh's conduct had to have been a
substantial factor in Ostman's death—not that Ostman's death was a natural and
probable consequence of McIntosh's conduct.
Instructing the jury that the conduct had to be a substantial factor in
Ostman's death is not contrary to Wisconsin law. See State v. Bartlett, 149 Wis.2d 557,
565-66, 439 N.W.2d 595, 599 (Ct. App. 1989).
McIntosh next argues
that the evidence was insufficient to convict him under a natural and probable
consequences standard. However, we have
already held that the applicable standard was that McIntosh's conduct had to
have been a substantial factor in Ostman's death. Nevertheless, we will briefly address the sufficiency of the
evidence to convict McIntosh.
Upon a challenge to the
sufficiency of the evidence to support a jury's guilty verdict, we may not
substitute our judgment for that of the jury "unless the evidence, viewed
most favorably to the state and the conviction, is so lacking in probative value
and force" that no reasonable jury "could have found guilt beyond a
reasonable doubt." State v.
Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990). We will uphold the verdict if any
possibility exists that the jury could have drawn the inference of guilt from
the evidence. See id.
at 507, 451 N.W.2d at 758. It is within
the jury's province to fairly resolve conflicts in the testimony, weigh the
evidence and draw reasonable inferences from the facts. See id. at 506, 451
N.W.2d at 757. If more than one
inference can be drawn from the evidence, the inference which supports the
jury's finding must be followed. State
v. Witkowski, 143 Wis.2d 216, 223, 420 N.W.2d 420, 423 (Ct. App.
1988).
Here, there was evidence
at trial that McIntosh sold the LSD to Gomaz using funds supplied by
Ostman. Gomaz gave the LSD to
Ostman. Ostman ingested it and had
seizures resulting in significant brain damage. Ostman died after he was removed from life support systems. The State's experts testified that to a
reasonable degree of medical certainty, the LSD was a substantial factor in
Ostman's death. McIntosh's experts
testified that LSD did not play a role in Ostman's death. The conflict in the expert testimony upon
which McIntosh bases his claim that the evidence was insufficient to convict
him was a conflict for the jury to resolve.
Poellinger, 153 Wis.2d at 506, 451 N.W.2d at 757.
Finally, McIntosh argues
that the trial court did not properly redact a statement given to the police by
codefendant Gomaz which implicated him in the delivery of LSD to Ostman. McIntosh and Gomaz were tried together and
neither intended to testify.
Accordingly, the parties and the court redacted the statements given by
each defendant to delete incriminating references to the other defendant. However, after being redacted, Gomaz's
statement still mentioned the address of McIntosh's trailer where Gomaz and
Ostman purchased the LSD.[1] McIntosh contends that the inadequately
redacted statement deprived him of the ability to cross-examine Gomaz regarding
his statement that the LSD was purchased at McIntosh's trailer. He also argues that the error was not
harmless.
The Confrontation Clause
of the Sixth Amendment is violated when a nontestifying codefendant's
confession incriminating another codefendant in the crime is introduced at
their joint trial. State v.
Mayhall, 195 Wis.2d 53, 58, 535 N.W.2d 473, 475-76 (Ct. App. 1995)
(citing Bruton v. United States, 391 U.S. 123, 135-36
(1968)). However, it is not a violation
of the Confrontation Clause to admit a nontestifying codefendant's confession
with a proper limiting instruction when the confession is redacted to eliminate
any reference to the other defendant. Mayhall,
195 Wis.2d at 59, 535 N.W.2d at 476 (citing Richardson v. Marsh,
481 U.S. 200, 211 (1987)).[2]
Assuming arguendo that
the redacted statement's reference to McIntosh's residence was incriminating,
we conclude that the error was harmless beyond a reasonable doubt. Constitutional violations are subject to a
harmless error analysis. Mayhall,
195 Wis.2d at 62, 535 N.W.2d at 477.
"A conviction will be upheld if it can be shown beyond a reasonable
doubt that the error did not contribute to the guilty verdict. We must determine what effect the error had
upon the guilty verdict in the present case." Id. at 62-63, 535 N.W.2d at 477 (citations
omitted).
We conclude that the
reference in Gomaz's statement to McIntosh's address and the prosecutor's
reliance upon it in closing argument was harmless beyond a reasonable doubt
because other evidence was properly admitted indicating McIntosh's involvement
in the crime. Detective Strash
testified regarding McIntosh's statement.
In that statement, McIntosh gave his address and admitted selling LSD on
December 31, 1993, under circumstances similar to those described by
Jamie Holewinski, who also participated in the drug purchase. Strash testified that Holewinski directed
him to the location where he purchased the LSD and that this was McIntosh's
trailer. Holewinski testified that he
and Ostman went to the trailer court to locate some LSD and he identified the
trailer occupied by McIntosh.
The fact that Gomaz's
statement referred to McIntosh's address does not permit us to conclude that
the information had an effect upon the guilty verdict in the present case. There was sufficient other evidence from
other sources that the LSD Ostman ingested was purchased from McIntosh. There is no reasonable doubt that the error
contributed to the guilty verdict.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.