State v. Reginald Scott Williams, 2011AP1379-CR, District 1, 9/18/12
Williams drove at an excessive speed (30+ over the limit), and crashed into another car, resulting in death and serious injuries. He pleaded no contest to one count of homicide by negligent use, § 940.10 and one count of reckless driving / GBH, § 346.62(4). At the time of the pleas, Williams was aware that the other driver was under the influence (alcohol and marijuana), made an illegal turn into the crash, and failed to wear a seatbelt himself or ensure that his minor occupants were restrained. After retaining an expert opinion that the illegal turn was a separate, intervening cause to the accident, Williams move to withdraw his pleas on the grounds of ineffective assistance and newly discovered evidence. The court rejects the argument, stressing that Williams’ own negligence was a substantial factor in the event, and wasn’t negated by the other driver’s.
¶14 A defendant may be found guilty of homicide by negligent operation of a vehicle under Wis. Stat. § 940.10 if: “(1) the defendant operated a vehicle; (2) the defendant operated the vehicle in a criminally negligent manner; and (3) the defendant’s criminal negligence caused a person’s death.” State v. Schutte, 2006 WI App 135, ¶19, 295 Wis. 2d 256, 720 N.W.2d 469. Wisconsin JI—Criminal 1170 explains that “cause,” as it pertains to this case, “means that the defendant’s act was a substantial factor in producing the death.” “The existence of multiple causes of a particular outcome does not remove criminal liability if the criminal conduct was a ‘substantial factor’ contributing to the ultimate result.” State v. Payette, 2008 WI App 106, ¶17, 313 Wis. 2d 39, 756 N.W.2d 423 (citation omitted). Our supreme court has held that “[a] ‘substantial factor’ need not be the sole cause of death.” State v. Oimen, 184 Wis. 2d 423, 436, 516 N.W.2d 399 (1994).
¶15 It is undisputed that Williams was racing another vehicle at a rate at least thirty miles per hour over the speed limit. Williams himself admitted that he was unable to react or brake before the accident due to his speed. Any negligence McDowell may have displayed does not remove the fact that Williams’s driving was a substantial cause of the resulting death and injuries. The Skogen report confirms that Williams was driving at a rate at least twice above the legal speed limit. While the report may provide additional details about the collision, it does not negate Williams’s driving as a substantial cause. A substantial factor need not be the sole cause of the collision. Seeid. Because the information obtained from the Skogen report does not provide a defense for Williams’s actions, i.e., racing and speeding, Atinsky was not ineffective for failing to retain an expert. See State v. Toliver, 187 Wis. 2d 346, 359-60, 523 N.W.2d 113 (Ct. App. 1994) (An attorney is not ineffective for failing to make meritless arguments.).
This conclusion should predetermine the separately raised newly discovered evidence claim. (Reasonable probability of different result is one of the required showings, and even if “new,” the evidence didn’t negate the element of causation, then of necessity it fell short of the different-result showing.) The court rejects the argument on the basis that the “new” opinion was in fact merely “cumulative” to what was either known or “easily inferable,” ¶¶20-21.
Williams’ sentence to a seven-year term (3 years IC, 3 ES on the homicide; 1-year incarceration on the reckless driving, consecutive) was neither an errone0us exercise of discretion or harsh and excessive:
¶26 This is a case in which one person died and three children were seriously injured. Williams’s penal exposure under the original charges—one count of homicide by negligent operation of a vehicle and three counts of reckless driving causing great bodily harm—was twenty and one-half years. See Wis. Stat. §§ 940.10(1), 346.62(4)-(5), 939.50(2)(g), (i). The trial court reviewed the transcript of Williams’s sentencing hearing in detail, noting that the sentencing court addressed the objectives of Williams’s sentence, as well as the factors necessary for consideration under State v. Gallion, 2004 WI 42, ¶¶40-43, 270 Wis. 2d 535, 678 N.W.2d 197. Specifically, the trial court referenced the sentencing court’s acknowledgment of Williams’s “generally good character,” and his willingness to accept responsibility. The trial court also recognized the sentencing court’s emphasis on the nature and gravity of Williams’s offense, the need to protect the public, and “the terrible decision-making on the part of [Williams].” Williams’s seven-year sentence was well within the limits of the maximum possible sentence and, although a first offense by Williams, was not unduly harsh or unconscionable in view of the death and multiple serious injuries. We conclude that the trial court properly exercised its discretion in upholding the sentence imposed by the sentencing court.