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NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. |
STATE OF WISCONSIN : |
IN SUPREME COURT |
State of Wisconsin, Plaintiff-Respondent-Petitioner, v. George
C. Lohmeier, Defendant-Appellant. |
FILED NOV 29, 1996 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
REVIEW of a decision of the
Court of Appeals. Reversed.
N. PATRICK CROOKS, J.
The State of Wisconsin seeks review of a published decision of the court
of appeals,[1] which
reversed a judgment of the circuit court for Walworth County, the Honorable
James L. Carlson presiding, convicting George C. Lohmeier of two counts of
homicide by operation of a vehicle while under the influence of an intoxicant
contrary to Wis. Stat. § 940.09(1)(a) (1991-92).[2] The State argues that the circuit court
judge did not effectively deny Lohmeier a meaningful opportunity for
consideration by the jury of his statutory affirmative defense under Wis. Stat.
§ 940.09(2), by instructing the jury that “[i]t is no defense to a
prosecution for a crime that the victim may have been contributorily
negligent.” We conclude that in light
of the entire proceedings, there does not exist a reasonable likelihood that
the contributory negligence instruction, in combination with Wis JI¾Criminal 1185, 1186, and 1188,
misled the jury into believing it could not consider the conduct of the two
young women who were killed in relation to the affirmative defense. Accordingly, we reverse the decision of the
court of appeals.
I.
On
June 10, 1993, George C. Lohmeier struck Renee Belair and Stacie Rogers with
his car as they were walking on Willis Bay Road in Walworth County. Lohmeier left the scene of the collision,
but later returned and admitted to police that the vehicle he was driving
struck the young women. Police arrested
Lohmeier at the scene after he failed a field sobriety test. Lohmeier was subsequently charged with six
counts, including two counts of homicide by operation of a vehicle while under
the influence of an intoxicant contrary to Wis. Stat. § 940.09(1)(a), two counts of homicide by operation of a
vehicle with a prohibited alcohol concentration contrary to Wis. Stat.
§ 940.09(1)(b), and two counts of hit and run causing death contrary to
Wis. Stats. §§ 346.67, 346.74(5).
A
jury trial was held November 1 through November 4, 1993. Evidence at the trial indicated Lohmeier’s
blood alcohol content was 0.186% at the time of the accident. Michael Sugrue testified that as he passed
the young women, they were walking toward him on the other side of the road,
one on the edge of the road and the other toward the ditch. Three to five seconds after this, Sugrue
passed Lohmeier, who was driving in the opposite direction. Sugrue testified that Lohmeier’s car was
“far over on the edge of the road” toward the ditch line. (R. 51 at 172.)
Sugrue watched Lohmeier’s car in his rear-view mirror, and said he was
surprised Lohmeier was not “getting over” as he approached the young
women. (R. 51 at 172-73.) After seeing a white object fly over
Lohmeier’s car, Sugrue turned around and drove to the site, where he found one
of the young women lying in the road.
Both young women died as a result of the collision.
At
the trial, Lohmeier attempted to establish the statutory affirmative defense of
Wis. Stat. § 940.09(2)[3]
to the four vehicular homicide counts.
In particular, he presented evidence that the young women were walking
on the right side of the road as prohibited by statute. See Wis. Stat. § 346.28(1). Lohmeier further argued that the young women
had moved from the side of the road into the traffic lane, and supported this
with evidence that they were hit on the roadway. Lohmeier also presented evidence of similar behavior by the young
women on other occasions. In addition,
Lohmeier presented the opinion of an expert in accident reconstruction. The expert testified that most people would
not have been able to avoid the accident even if they were exercising due care
and were not under the influence of an intoxicant. On rebuttal, the State presented expert testimony that a sober
person exercising due care could have stopped and avoided striking the young
women.
At
the conclusion of the trial, the court read Wis JI¾Criminal 1185,[4]
which provided with respect to Lohmeier’s § 940.09(2) 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 . . .
. 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 . . . .
(R. 51 at
634-35.) Similarly, the court read Wis
JI¾Criminal 1186, which relates to
the homicide by prohibited alcohol concentration charge, and corresponds in
substance with Wis JI¾Criminal
1185 regarding Lohmeier’s affirmative defense.
Immediately following this, the court read the following special
instruction[5] over
Lohmeier’s objection: “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.” (R. 51 at 639.)
The State requested this instruction based on Wis. Stat. § 939.14.[6]
The
jury subsequently found Lohmeier guilty on all counts. Consistent with Wis. Stat. §
940.09(1m),[7] the court
entered a judgment of conviction and sentence for two counts of homicide by
intoxicated use of a vehicle under § 940.09(1)(a), as well as two counts
of hit and run causing death under §§ 346.67, 346.74(5).[8]
The court of appeals reversed in part and remanded, holding that the
contributory negligence instruction deprived Lohmeier of a meaningful
opportunity for consideration by the jury of his affirmative defense under
§ 940.09(2), because there existed a “probability” that the jury was
misled and therefore did not consider the young women’s conduct in regard to
Lohmeier’s statutory affirmative defense.
Lohmeier, 196 Wis. 2d at 444.
II.
Initially,
we consider the applicable standard of review.
Lohmeier’s claim is essentially based on due process, because he
contends that the circuit court denied him a meaningful opportunity for
consideration by the jury of his defense.
See State v. Heft, 185 Wis. 2d 288, 302-03, 517 N.W.2d 494
(1994). This is a question of constitutional
fact, which we review de novo. See
id. at 296.
In
addition, in cases involving challenged jury instructions, appellate courts
generally apply harmless error analysis to determine whether reversal is
required. See, e.g., State v.
Zelenka, 130 Wis. 2d 34, 387 N.W.2d 55 (1986); State v. Dyess, 124
Wis. 2d 525, 370 N.W.2d 222 (1985); State v. Paulson, 106 Wis. 2d 96,
315 N.W.2d 350 (1982). However,
harmless error analysis is not applicable in this case, because Lohmeier is not
contending that the contributory negligence instruction is an erroneous legal
statement. Instead, Lohmeier is arguing
that the instruction, when coupled with Wis JI¾Criminal 1185, 1186, and 1188, was
confusing and therefore subject to misinterpretation by the jury. Accordingly, the focus in this case is not
whether there was error, and if so, whether it is harmless, because the
instruction concededly is not erroneous.
We
therefore must determine the proper inquiry for appellate courts to apply when
considering whether the interplay of challenged jury instructions violated a
defendant’s constitutional rights by misleading the jury. Admittedly, the applicable standard is not
clear from our previous cases. For
example, in State v. Schulz, 102 Wis. 2d 423, 307 N.W.2d 151 (1981), we
stated, “When a jury charge is given in a manner such that a reasonable juror could
have misinterpreted the instructions to the detriment of a defendant’s
due process rights, then the determination of the jury is tainted.” Id. at 427 (emphasis added). On the other hand, we have also determined
that where a defendant argues a challenged jury instruction misled the jury
into imposing a lesser burden than reasonable doubt upon the state in a
criminal case, the proper standard is whether there is a “reasonable
likelihood” that the jury was misled.
State v. Avila, 192 Wis. 2d 870, 889, 532 N.W.2d 423 (1995)
(emphasis added).
We
conclude that the proper standard for Wisconsin courts to apply when a
defendant contends that the interplay of legally correct instructions
impermissibly misled the jury is whether there is a reasonable likelihood that
the jury applied the challenged instructions in a manner that violates the
constitution. In so doing, we are
following the standard set forth by the United States Supreme Court in Boyde
v. California, 494 U.S. 370, 378-81 (1990), and in Estelle v. McGuire,
502 U.S. 62, 72-73 (1991). See also
Victor v. Nebraska, 511 U.S. 1 (1994); Williams v. Chrans, 945
F.2d 926, 938 (7th Cir. 1991), cert. denied, 505 U.S. 1208 (1992); Avila, 192 Wis. 2d at 889. We find the Boyde Court’s rationale
persuasive, in particular:
This
“reasonable likelihood” standard, we think, better accommodates the concerns of
finality and accuracy than does a standard which makes the inquiry dependent on
how a single hypothetical “reasonable” juror could or might have interpreted
the instruction . . . . Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way that lawyers
might. Differences among them in
interpretation of instructions may be thrashed out in the deliberative process,
with commonsense understanding of the instructions in light of all that has
taken place at the trial likely to prevail over technical hairsplitting.
Boyde, 494 U.S. at 380-81. Thus, Wisconsin courts should not reverse a
conviction simply because the jury possibly could have been misled; rather, a
new trial should be ordered only if there is a reasonable likelihood that the
jury was misled and therefore applied potentially confusing instructions in an
unconstitutional manner. Furthermore,
in making this determination, appellate courts should view the jury instructions
in light of the proceedings as a whole, instead of viewing a single instruction
in artificial isolation. See id.
at 378, 383.
III.
Before
applying the reasonable likelihood standard to the case at hand, we consider
the relationship between the § 940.09 affirmative defense and the contributory
negligence rule of § 939.14, because this issue understandably caused
confusion during the trial. Throughout
the proceedings, the parties disputed whether the young women’s conduct could
constitute the basis for Lohmeier’s § 940.09(2) affirmative defense, in
light of § 939.14. Likewise, the
circuit court indicated it was troubled by this issue, although it ultimately
allowed Lohmeier to try to establish the defense based on the young women’s
actions, and instructed the jury on it.
In
State v. Caibaiosai, 122 Wis. 2d 587, 596, 363 N.W.2d 574 (1985), this
court stated that § 940.09(2) “provide[s] a defense for the situation
where there is an intervening cause between the intoxicated operation of the
automobile and the death of an individual.”
Although it is correct that § 940.09(2) provides an affirmative
defense where there is an intervening cause, this defense can also be
understood by focusing on the language of the statute itself, which makes no
reference to an intervening cause.
Under § 940.09(2), “A 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 . . . .”
With this in mind, we conclude that a victim’s conduct can be the basis
of the § 940.09(2) affirmative defense.
Clearly, situations can arise where, because of the victim’s conduct, an
accident would have been unavoidable even if the defendant had been driving
with due care and had not been under the influence.[9]
Moreover,
the § 940.09 affirmative defense is not inconsistent with the contributory
negligence rule of § 939.14. It is widely recognized that contributory
negligence is not a defense in a criminal prosecution. See People v. Tims, 534 N.W.2d
675, 681 (Mich. 1995) (citing several cases following this “universal
rule”). Yet, it is important to
recognize that this rule has a specific legal meaning. Section 939.14 “makes it clear that the rule
sometimes prevailing in civil actions to the effect that a person injured by
wrongful conduct has no standing in court if he was in pari delicto or
contributorily negligent does not apply to criminal actions.” V Wisconsin Legislative Council Judiciary
Committee Report on the Criminal Code, at 9 (quoted in Wis JI—Criminal
926 cmt.);[10] see also
Wayne R. LaFave & Austin W. Scott,
Jr., Substantive Criminal Law, § 5.11(c), at 692-93 (1986). In other words, § 939.14 provides that
a defendant is not immune from criminal liability simply because the victim may
have been negligent as well.
However,
this rule does not mean that evidence of a victim’s negligence is irrelevant in
a criminal proceeding. It was relevant
here to the affirmative defense, and it is often relevant on the issue of
causation. See, e.g., Tims,
534 N.W.2d at 681; State v. Crace, 289 N.W.2d 54, 59-60 (Minn. 1979); see
also LaFave & Scott, supra, at 692-93. In fact, we implicitly recognized this in Hart v. State,
75 Wis. 2d 371, 249 N.W.2d 810 (1977), when we noted the general rule that
contributory negligence is no defense, but went on to indicate that the
victim’s negligence was relevant to determining whether the defendant’s intoxicated
driving was a substantial factor in causing the victim’s death. Id. at 398. Thus, the contributory negligence rule of § 939.14 and the
§ 940.09 affirmative defense are not inconsistent concepts.
Nevertheless,
we recognize that this legal distinction is complex. Accordingly, it would have been better practice for the circuit
court judge to have given a bridging instruction, explaining the relationship
between contributory negligence and the § 940.09(2) affirmative
defense. In fact, without a bridging
instruction, the contributory negligence instruction was potentially confusing
when coupled with Wis JI¾Criminal
1185, 1186, and 1188.[11]
We
nonetheless find that it is not reasonably likely that the challenged
instructions misled the jury into thinking it could not consider the young
women’s actions in relation to Lohmeier’s affirmative defense, in light of the
context of the entire proceedings.
Specifically, the jurors sat through a four day trial. Nearly all of the evidence presented by
Lohmeier related to his affirmative defense.
Lohmeier’s attorney emphasized in his opening statement and closing
argument that the accident would have been unavoidable even if Lohmeier had not
been intoxicated and had been driving with due care. Moreover, Lohmeier’s attorney never referred to the young women’s
conduct as contributory negligence, or even negligence for that matter. Furthermore, even the State extensively
addressed Lohmeier’s affirmative defense in its closing and rebuttal arguments.[12]
The
court then instructed the jury.
Initially, the court told the jury, “In applying these instructions,
keep in mind the following: First, you
should consider all instructions.
Second, you should consider the instructions as a whole and apply them
to the evidence.” (R. 51 at 630; see
Wis JI¾Criminal 100.) The court went on to instruct the jury twice
on Lohmeier’s affirmative defense. The
court specifically told the jury two times, “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.”[13] (R. 51 at 634-35, 638-39.)
After
all of this, the court instructed the jury, “[I]t is no defense to a prosecution
for a crime that the victim may have been contributorily negligent.” (R. 51 at
639.) We find it is not reasonably
likely that the jurors would believe this single instruction transformed all of
the prior proceedings into a “virtual charade.” See Boyde, 494 U.S. at 383 (quoting California
v. Brown, 479 U.S. 538, 542 (1987)).
Thus, we conclude that a reasonable likelihood does not exist that the
contributory negligence instruction, in combination with Wis JI¾Criminal 1185, 1186, and 1188,
misled the jury into believing it could not consider the young women’s conduct
in regard to Lohmeier’s statutory affirmative defense.
IV.
Finally,
although we also conclude that a new trial is not warranted because it is not
reasonably likely that the jury was misled, we nonetheless acknowledge that the
contributory negligence instruction is potentially confusing when coupled with
Wis JI—Criminal 1185, 1186, and 1188.
Therefore, we recommend that the Criminal Jury Instruction Committee
adopt a jury instruction that sets forth the law as contained in § 939.14,
to the effect that it is no defense to a prosecution for a crime that the
victim was contributorily negligent.
The instruction also should contain an explanation of this rule, in
particular that it means the defendant is not immune from criminal liability
merely because the victim may have been negligent as well. See Hart, 75 Wis. 2d at 398.
In
addition, we recommend that the Committee adopt a bridging instruction to be given
when a court gives a contributory negligence instruction along with Wis JI¾Criminal 1188, 1185, and/or
1186. The instruction should explain to
the jury that although the victim’s contributory negligence is not a defense, the
jury may consider the acts of the victim in relation to the defendant’s
§ 940.09(2) defense.
It
is further recommended that the Committee in its comments caution circuit court
judges so that they will not, without clear justification, give a contributory
negligence instruction in a criminal case.
We conclude that these instructions will clarify the relationship
between contributory negligence and the § 940.09(2) defense, preventing
possible confusion on this issue in future cases.
In summary, we find that in light of the
entire proceedings, there does not exist a reasonable likelihood that the
contributory negligence instruction, in combination with Wis JI—Criminal 1185,
1186, and 1188, misled the jury into thinking it could not consider the young women’s
conduct in relation to Lohmeier’s statutory affirmative defense. Accordingly, we conclude that the circuit
court did not, by its instructions to the jury, violate Lohmeier’s due process
rights by denying him a meaningful opportunity for consideration by the jury of
his § 940.09(2) affirmative defense.
Nonetheless, we recognize that the contributory negligence instruction
is potentially confusing when coupled with Wis JI¾Criminal 1185, 1186, and
1188. Thus, we recommend that the
Criminal Jury Instruction Committee adopt a contributory negligence instruction
that explains the general rule, as well as a bridging instruction detailing the
relationship between contributory negligence and the § 940.09(2)
affirmative defense.
By the Court.¾The decision of the court of appeals is reversed.
JANINE P. GESKE, J.
(dissenting).
I dissent because I believe that there
is a reasonable likelihood that the contributory negligence instruction, in
combination with Wis. JI¾Criminal
1185 and 1186, misled the jury into believing it could not consider the young
women's conduct in regard to Lohmeier's statutory affirmative defense. I would affirm the court of appeals and hold
that there is a reasonable likelihood that the contributory negligence
instruction misled the jury, for several reasons.
First, the defense essentially
conceded these elements of the charges under Wis. Stat. § 940.09(1)(a) and
Wis. Stat. § 940.09(1)(b): intoxication, driving, and death.[14] Therefore, the only real jury question was
one of causation. The question posed by
the affirmative defense instruction was whether the victims' deaths would have
occurred even if the defendant had been exercising due care and was not under
the influence of intoxicants.
Lohmeier's affirmative defense went directly to causation.
Second, the circuit court never
defined the concepts "negligence" and "contributory
negligence" for the jury. The jury
was told "In weighing the evidence, you may take into account matters of
your common knowledge and your observations and experiences in the affairs of
life." Wis JI¾Criminal 195 Juror's
Knowledge. A layperson's view of
negligence could be characterized as the careless action of a person, including
that of a victim.
Third, the circuit court gave no
explanatory instruction to the jury to clarify the relationship between the
affirmative defense instruction and the instruction that contributory negligence
is not a defense. Without such an
explanation, the probability is great that the jurors were misled into
disregarding Lohmeier's affirmative defense.
Proper
jury instruction is a crucial component of the fact-finding process. State v. Schulz, 102 Wis. 2d 423,
426, 307 N.W.2d 151 (1981). The jury
must determine guilt or guiltlessness in light of the jury charge, and the
validity of that determination is dependent upon the correctness of the
instructions given. Schulz, 102
Wis. 2d at 426-27. In the Schulz
case, the taint of the faulty jury instruction was critical because there,
intoxication was the major, if not the only, defense the defendant had to the
charge of first-degree murder. Id.
at 431. The charge given was not a
standard instruction but emphasized, incorrectly, that the defendant had the
burden of proof on the defense of intoxication. Id. at 432-33. We
found in Schulz that the jury instructions could have reasonably been
misunderstood by the jury to place the burden of proof of intoxication on the
wrong party. Id. at 435. Such an error violated the defendant's right
to a presumption of innocence and to have the state prove beyond a reasonable
doubt every essential element of the crime charged against him. Id. at 435-36.
I agree with the court of appeals
that as long as the given jury instruction fully and fairly informs the jury of
the applicable law, the circuit court has discretion in choosing which
instruction to give. State v.
Lohmeier, 196 Wis. 2d 432, 441, 538 N.W.2d 821 (Ct. App. 1995). I also
agree with the majority that we consider jury instructions in light of the
proceedings as a whole. But the circuit
court does not have discretion to give an instruction which clouds or even
nullifies the applicable law. And it is
precisely by looking at the instructions in context that the harm to the
defendant is demonstrated. The
pertinent instructions were given in the following order:
-1185 Homicide by Operation of
Vehicle While Under the Influence – Sec. 940.09(1)(a).
-1186 Homicide by Operation of
Vehicle While Blood Alcohol Content is 0.10% or More – Sec. 940.09(1)(b). (Both jury instructions 1185 and 1186
described the defendant's affirmative defense as set out in Wis JI¾1188 Homicide by Intoxicated User
of Vehicle, Firearm, or Airgun: Affirmative Defense Under § 940.09(2).)
-A contributory negligence
instruction based on Wis. Stat. § 939.14.[15]
The circuit court instructed the jury on the affirmative defense and immediately thereafter instructed the jury that contributory negligence of the victims was not a defense. Unfortunately, the judge did not give any explanation of the relationship between the contributory negligence instruction and Lohmeier's affirmative defense. Based partly on sequence, and primarily on the actual instruction language, it is reasonably likely that the cumulative effect of those instructions was to mislead the jurors. The jurors were misled into believing that the law forbade them to consider the acts of the victims, which may or may not have legally constituted contributory negligence, when they assessed causation.
In Hart v. State, 75 Wis. 2d 371, 249 N.W.2d 810 (1977), where the negligence of the victim was undisputed, we stated that the question for the jury was whether, considering the negligence of the victim along with the other circumstances of the case, the negligence of the defendant was nevertheless an operative factor having a substantial effect in producing the victim's death. Hart, 75 Wis. 2d at 399. The circuit court below could have said as much in its instructions, but did not.
The very essence of Lohmeier's
defense was that it was not his intoxication, but the victims' carelessness in
walking in or stepping out into the roadway that was the cause of the
accident. As Lohmeier's counsel told
the circuit court at the instructions conference,
"[T]his is not a matter where
we are attempting to establish contributory negligence as a defense. What we are saying is that the intervening
fact is this movement of the girls. My
problem with the instruction is that the legislature gives us the defense (in
Wis. Stat. § 940.09(2)) and then if you give that (contributory negligence)
instruction you are in essence telling the jury, don't listen to what the
Defense has presented."
Mr. Lohmeier’s defense did not
hinge on whether the girls' actions legally constituted contributory
negligence, but rather asserted that their movement onto the roadway was an
intervening event.
The record demonstrates that the
circuit court itself had doubts as to the clarity of the instructions proposed.[16] Lohmeier argued at the instructions
conference that the two statutes, and the instructions based on them, were not
consistent. The circuit court
eventually agreed to give the contributory negligence instruction after the
affirmative defense instructions, because the affirmative defense concerned
causation:
"I don't really see any error
in giving this instruction we are talking about because we are not talking
about negligence or contributory negligence, we are talking about cause,
nothing to do with negligence. So what
has to be established is this independent.
You can argue your cause and even if the Court gives this instruction
because it releases what I fear to be a problem in assessing the jury,
assessing relative wrong here which is not their duty or function, not at
all. They must be satisfied that there
was some type of cause that excuses responsibility for drinking and causing
death. Those are given facts when you give
an affirmative defense and may not take simple contributory negligence of a victim. What they have to have is an intervening
cause and I think you can argue to that very simply your theories about
movement without talking about contributory negligence or being in any way
deterred by that. So I think I will
give this instruction.
Despite the circuit court's
recognition of inconsistency, it failed to instruct the jury that the
independent causation defense was not a question of contributory
negligence. Although Lohmeier's counsel
objected to the contributory negligence instruction, neither counsel offered an
explanatory, or bridging, instruction to resolve the inconsistency. The jury was left on its own to sort out
these undefined legal terms.
Argument of counsel further
clouded the relationship between the affirmative defense and the contributory
negligence instruction. The majority
notes that Lohmeier's attorney never referred to the young women's conduct as
contributory negligence. Majority op. at 12.
However, the district attorney's
closing argument included these statements:
Well I guess something that might
come to mind is, well, hold it, this is a real world Mr. Koss and we have got
girls walking the wrong way on the highway.
I imagine everybody knows you don't do that. I agree, but first there's an instruction that says you are not
to consider contributory negligence of a victim. It's not a defense.
That's by law in Wisconsin.
Moreover, and this is crucial, walking facing traffic or not facing
traffic, that law is not for the benefit of the driver. That law is not for the benefit of the
driver."
In sum, the circuit court gave the
contributory negligence instruction without a proper explanation of the
relationship between that instruction and the instruction regarding the
affirmative defense. Because I conclude
that such an omission was erroneous, and created a reasonable likelihood that
the jury was misled into disregarding Lohmeier's affirmative defense, I
respectfully dissent. Lohmeier should
be granted a new trial. "It may
well be that the defendant is guilty of the offense charged against him, but he
is entitled to a fair trial according to the established rules of procedure and
principles of law." Boldt v.
State, 72 Wis. 7, 17, 38 N.W. 177 (1888), cited in Hart v. State, 75
Wis. 2d 371, 395, 249 N.W.2d 810 (1977)(footnote omitted).
I
am authorized to state that Chief Justice Shirley S. Abrahamson and Justice
William A. Bablitch join this dissenting opinion.
SUPREME
COURT OF WISCONSIN
Case No.: 94-2187-CR
Complete
Title
of Case: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
George C. Lohmeier,
Defendant-Appellant.
______________________________________
REVIEW
OF A DECISION OF THE COURT OF APPEALS
Reported
at: 196 Wis. 2d 432, 538 N.W.2d
821
(Ct.
App. 1995)
PUBLISHED
Opinion
Filed: November 29, 1996
Submitted on
Briefs:
Oral
Argument: September
10, 1996
Source of
APPEAL
COURT: Circuit
COUNTY: Walworth
JUDGE: James
L. Carlson
JUSTICES:
Concurred:
Dissented: GESKE, J. dissents,
opinion filed
ABRAHAMSON, C.J. and BABLITCH, J., join
Not Participating:
ATTORNEYS: For the plaintiff-respondent-petitioner the
cause was argued by William C. Wolford, assistant attorney general, with
whom on the briefs was James E. Doyle, attorney general.
For the
defendant-appellant there was a brief by Dennis P. Coffey and Coffey,
Coffey & Geraghty, Milwaukee and oral argument by Dennis P. Coffey.
Amicus curiae
was filed by Edward F. Thompson, James P. Martin and Clair Law
Offices, S.C., Delavan for Rosanne Belair, The Victim's Mother.
[1] State v. Lohmeier, 196 Wis. 2d 432, 538 N.W.2d 821 (Ct. App. 1995).
[2] All further references are to the 1991-92 Statutes unless otherwise noted.
[3] Section 940.09(2) provides, “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).”
[4] The court substituted Wis JI¾Criminal 1188 for the last two paragraphs of Wis JI¾Criminal 1185 and 1886.
[5] The Criminal Jury Instruction Committee has not adopted a pattern jury instruction for contributory negligence, and recommends that no instruction be given. See Wis JI—Criminal 926 and comments.
[6] Section 939.14 provides: “It is no defense to a prosecution for a crime that the victim also was guilty of a crime or was contributorily negligent.”
The State requested the instruction for the purpose of informing the jury that Lohmeier was not immune from criminal liability simply because the young women were contributorily negligent by walking on the wrong side of the road.
[7] Section 940.09(1m) provides: “If [a] person is found guilty of both sub. (1)(a) and (b) . . . for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing . . . .”
[8] The convictions for the two counts of hit and run causing death contrary to §§ 346.67, 346.74(5) are not before this court.
[9] The “dart-out” fact pattern is an illustrative example of when the defense could be established through the victim’s conduct. However, it is worth noting that the affirmative defense would not be applicable simply because a victim did not take a precautionary measure, like wearing a seat belt. In such a case, it cannot be said that the accident would have been unavoidable, even if the defendant was sober and driving with due care. See State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163 (Ct. App. 1990).
[10] During the criminal code revision process of the 1950’s, the Wisconsin Legislative Council drafted 1953 Assembly Bill No. 100. The preceding quotation is taken from the comment to proposed § 393.13 of that bill, which provided, “It is no defense to a prosecution for a crime that the victim also was guilty of a crime or was contributorily negligent.” This proposed section was adopted verbatim by the legislature in 1955 Wis. Laws 696, and renumbered § 939.14. Accordingly, the comment to proposed § 393.13 is persuasive authority regarding the legislature’s intent in enacting § 939.14.
[11]
As we stated in State v. Dix, 86 Wis. 2d 474, 486, 273 N.W.2d
250, cert. denied, 444 U.S. 898 (1979), “A jury should not be required
to guess at the meaning of technical words . . . .” 86 Wis. 2d at 487.
Accordingly, in part V, we recommend that the Criminal Jury Instruction
Committee adopt a bridging instruction explaining the relationship between
contributory negligence and the § 940.09(2) affirmative defense.
[12] The
dissent points to a passing reference in the lengthy arguments of the district
attorney, wherein he mentions the contributory negligence instruction. His closing and rebuttal arguments focused,
extensively, on Lohmeier’s affirmative defense, not on the instruction.
[13] The second time, the court substituted the phrase “had not had a prohibited alcohol concentration” for “had not been under the influence of an intoxicant.” (R. 51 at 638.)
[14] The jury instruction for Wis JI¾Criminal 1185, Homicide by Operation of Vehicle While Under the Influence – Sec. 940.09(1)(a) reads in part: "The second element requires that the defendant's operation of a vehicle caused the death of Stacie Rogers and Renee L. Belair. 'Cause' means that the defendant's operation of a vehicle was a substantial factor in producing the death. It is not required that the death was caused by any drinking of alcohol or by any negligent or improper operation of the vehicle. What is required is that the death was caused by the defendant's operation of the vehicle."
[15] The majority acknowledges that the Criminal Jury Instruction Committee recommends that no contributory negligence instruction be given. Majority op. at 5, n.5. The Committee recognized the very problem present in this case: "The rule as stated is an accurate statement of the law, but can create problems if literally applied. That is, evidence that may indicate negligence on the part of a victim may be relevant to an element of the crime - especially the cause element - or to a defense. In such a situation, the evidence is admissible despite § 939.14." Wis JI¾Criminal 926 Comment. Here, of course, the harm to Lohmeier arose not from an evidentiary ruling, but from the confusing juxtaposition of the affirmative defense instructions with the instruction precluding contributory negligence as a defense.
[16]
At the instruction conference the court commented on the proposed
contributory negligence instruction, "I don't see how you can say that it
couldn't be something that the victim did.
I don't know. I mean that
argument could be made, but I'm not sure I want to inject that in there."
Later, "Because I just don't
think – I don't think that this defense was suppose[d] to come up, at least I
don’t think so anyway. It's not clear
to just general contributory negligence of a victim. If that would apply, then that would apply if a drunk driver went
off the road and the other driver was going over the speed limit. I don't think that would apply."
After further discussion with
counsel the court said, "I really have no doubt that this would be
appropriate other than the little specter of a doubt that I have that it's a
possibility it could be inconsistent with a defense and the use of the wording
in Caibaiosai that says the intervening fact may be independent or it
may be dependent." Additionally,
"I think the cautious thing would be quitely (sic) frankly to not give the
instruction and let the attorneys argue it.
I think you can argue it."
The circuit court ultimately gave the contributory negligence instruction.