court of appeals decision (1-judge, not for publication); for Ellifritz: Gary Grass; BiC; Resp.; Reply
Obstructing – Unanimity – Course of Conduct
Because Ellifritz’s actions occurred during a single course of action, over a short (40-second) period of time, instructional failure to require agreement as to which separate act constituted obstructing didn’t violate her right to unanimous verdict; State v. Giwosky, 109 Wis. 2d 446, 326 N.W.2d 232 (1982) followed, and State v. Crowley, 143 Wis. 2d 324, 422 N.W.2d 847 (1988) distinguished.
Modest disagreement will be registered here with the court’s analysis, though not the result. Giwosky indeed appears to be controlling. Giwosky, during a single altercation, both punched and threw a log at the victim and juror unanimity wasn’t required as to which act established the charge of battery. The court correctly says that Crowley can’t be applied here, but for somewhat a different reason than posited by the court. Crowley, according to the court, holds that due process is violated where it’s unclear which of two different “modes of proof” the verdict rests on, ¶15. That’s part of the story. More specifically, Crowley holds that “where the jury may have arrived at its verdict by one of two independent grounds,” the evidence must be sufficient on both, else the verdict must be set aside, 143 Wis. 2d at 334-35. In Crowley’s own instance, the evidence supported both modes, so the verdict was upheld. Crowley, then, has only a glancing relevance to Ellifritz, at best. If one of her acts relied on by the State (through, for example, closing argument) to prove obstructing were deemed legally insufficient, then Crowley would enter the picture. But that doesn’t seem to be among her arguments.
Speaking, though, of Crowley: the problem discussed there — a general verdict is supportable on one ground but not another and it’s impossible to tell which the jury relied on in assigning guilt — was known as a “Yates” issue. At the time, the error was considered ”structural,” but that is no longer true: an invalid theory embedded in a general verdict now is subject to subject to harmless error analysis, Hedgpeth v. Pulido, 129 S.Ct. 530 (2008). Just thought you’d like to know.
Obstructing - Sufficiency of Proof
Evidence to support obstructing held sufficient, without regard for whether investigation actually hindered:
¶19 Ellifritz contends that Hamilton created a rule that a defendant’s conduct must hinder an officer’s investigation in some way before the conduct amounts to obstruction. We reject that contention. Hamilton merely stands for the proposition that refusing to provide one’s name to an officer is not obstruction per se. Hamilton did not judicially create an element not found in the statute—that the officer must have been “hindered” in his or her investigation. In fact, this court has held that an obstruction conviction will be upheld if the jury finds that the defendant made the officer’s job “more difficult.” Grobstick, 200 Wis. 2d at 249-50. In this case, we have testimony from three officers that their investigation was made moredifficult than it should have been because of Ellifritz’s actions. Thus, to adopt Ellifritz’s argument would be to extend Hamilton beyond the holding of that decision.
The court separately indicates that Ellifritz’s false statement to the police — that marks on a 2-year-old’s face were caused by bug bites rather than having been struck — “alone would seem to amount to obstruction,” ¶5 n. 3, citing State v. Caldwell, 154 Wis. 2d 683, 686, 454 N.W.2d 13 (Ct. App. 1990) (“knowingly giving false information with intent to mislead constitutes an obstruction as a matter of law.”). However, the State doesn’t raise this argument so the court doesn’t actually reach it.
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