Elements, Fleeing, § 346.04(3) – Instructions – Sufficiency of Proof – Harmless Error
Issues (from Beamon’s Petition for Review):
Is a jury instruction which describes the factual theory alleged to satisfy an element legally erroneous?
In a criminal case, are the instructions given the jury the law of the case against which the sufficiency of the evidence must be measured or, as the court of appeals held, is the evidence to be measured against “the actual elements of the offense”?
Does the harmless error rule of State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, apply when reviewing the sufficiency of the evidence for a conviction?
Was State v. Wulff, 207 Wis. 2d 143, 153, 557 N.W.2d 813 (1997), which held a conviction may be upheld “only if there was sufficient evidence to support guilt on the charge submitted to the jury in the instructions” overruled by State v. Harvey, supra?
Did the court of appeals erroneously determine the evidence was sufficient to prove Mr. Beamon “operated a vehicle on a highway after receiving both visual and audible signals from a marked police vehicle and willfully disregarded that signal so as to interfere with or endanger the pursuing officer”?
Beamon was tried for fleeing, which the court of appeals held requires proof of, among other things, “that the person knowingly fled or attempted to elude an officer—in one of three ways: by willful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicles or pedestrians, or by increasing speed or by extinguishing the vehicle’s lights in an attempt to elude or flee.” That’s a mouthful, but the key point is that the proof is in the disjunctive (“or” one of the three alternatives). The trial court, however, instructed in the conjunctive – the court of appeal summarized the resultant dilemma this way: “The State charged and prosecuted Beamon based on the theory of willful or wanton disregard of an officer’s signal so as to interfere with or endanger other persons or vehicles. However, the instruction provided to the jury in this case misstated the law by requiring the jury to find both that Beamon acted with willful and wanton disregard and that he did so by increasing the speed of his vehicle.” The State has conceded that the evidence didn’t fully satisfy the instruction (because there was no evidence increased his speed). But the lower court bought the argument that only mere instructional error was at play, and the error was harmless. The nub of the matter, then, is whether sufficiency of the evidence is delimited by the elements as defined in the jury instructions or as defined in caselaw.
As the court of appeals put it, the issue is “whether a conviction may be upheld if the evidence is insufficient to support a factual finding charged to the jury when the jury instruction erroneously deviated from the elements as defined by statute, charged in the information, and prosecuted by the State. We conclude that it can.” But the dilemma may a bit more profound than that, at least in the concrete circumstance. That is, Beamon’s jury was told to determine whether he had acted willfully and wantonly by the specific modality of increasing his speed. But he indisputably did not increase speed, so how is a reviewing court empowered to find something else, as an original matter – keeping in mind that the court of appeal lacks authority to make its own findings, Wurtz v. Fleischman, 97 Wis. 2d 100, 293 N.W.2d 155 (1980)? Note, too, that willful and wanton disregard requires proof the person endangered the pursuing officer or other vehicles or pedestrians; here, though, the instruction appears to have limited the jury to only one of these alternatives, that the pursuing officer was endangered. Beamon has argued a lack of proof on that aspect, and the court of appeals more or less punted on that question. (The court did conclude that this officer was clearly endangered, but didn’t exactly say why.)
A venerable doctrine, “law of the case,” “hold(s) the government to the burden of proving each element of a crime as set out in a jury instruction to which it failed to object, even if the unchallenged jury instruction goes beyond the criminal statute’s requirements,” United States v. Williams, 376 F.3d 1048, 1051 (10th Cir. 2004). This review will test the viability of that doctrine. Just how far can a reviewing court go in ignoring the jury instructions? We shall see.