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Appellate Procedure – Harmless Error – Jury Instructions – Omitted Element

State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller

Issue/Holding: Although failure to instruct the jury on an element is subject to harmless error analysis per State v. Harvey, 2002 WI 93, ¶¶44, 49, 254 Wis. 2d 442, 647 N.W.2d 189, in this instance the error was not harmless because the omission related to “a key dispute between the parties,” and “contestability of an element goes to whether the instructional error was harmless,” ¶17.

¶18      Draughon conceded two key factors in the State’s case: (1) that the sexual contact occurred, and (2) that he was a member of the clergy. His defense essentially rested on whether he practiced psychotherapy and therefore met the statutory definition of a therapist and, if so, whether the sexual contact occurred during a therapist/patient relationship. The improper instruction, therefore, particularly affected Draughon’s ability to present his defense. A judgment should be reversed unless we can be sure that the error did not contribute to the conviction. See State v. Dyess, 124 Wis. 2d 525, 547, 370 N.W.2d 222 (1985). Our review of the record affords us no such assurance. Consequently, we cannot conclude the error was harmless.

Not bad, and for a similar result see, e.g., Powell v. Galaza, 328 F.3d 558 (9th Cir. 2003) (“An instruction that the only contested element has been satisfied cannot be reviewed for harmless error because the wrong entity — the judge rather than the jury — is responsible for rendering the verdict”). In other words, Draughon doesn’t quite put the matter in the same terms as Powell, but they seem to come to the same idea: where the omitted element relates to a contested issue the omission can’t be harmless. Even so, this is too narrow a view of harmless error analysis and omitted elements …. It remains to be seen whether Harvey (or the principal case it relies on, Neder v. United States, 527 U.S. 1, 18 (1999)), can survive Blakely et al. If a court simply lacks the power to sentence on the basis of some factual matter never submitted to the jury, how can it have the power to enter judgment where the jury is never called upon to find an essential fact? See, on this point, the discussion in State v. Freeze, Ind App No. 20A03-0412-CR-562, 5/18/05

We believe the validity of Neder might be short-lived, in light of the seismic shift in the Supreme Court’s Sixth Amendment jurisprudence since 1999. Specifically, Justice Scalia wrote a vigorous dissent in Neder, joined in part by Justice Stevens and fully by Justices Ginsburg and Souter – in other words, four of the five members of the Blakely majority. Justice Thomas, the fifth Blakely justice, was in the Neder majority. After Neder, and beginning at least with Apprendi, he has repudiated a narrow interpretation of the Sixth Amendment jury trial right and has joined Justice Scalia’s broad view of it. …

Also see, State v. Franklin, 184 N.J. 516 (2005) (omission of element from jury instructions structural error requiring reversal despite overwhelming evidence of omitted matter); State v. Allen, 615 S.E.2d 256 (N.C. 2005) Blakely error is structural, therefore reversible per se); State v. Hughes, 110 P.3d 192 (Wash. 2005) (same).

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