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§ 940.10(1), Homicide by Negligent Operation of Vehicle — Jury Instructions — Elements

State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate

Issue: Whether the trial court invaded the jury’s province when it instructed that the court of appeals had held in State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999) that a criminally negligent act had occurred when a car drove across the centerline and that unanimous agreement was unnecessary as to why that act occurred.


¶38      We first note that the Johannes excerpt the trial court read to jurors was not from the portion of our opinion where we discussed the sufficiency of the evidence, but from our discussion of whether jurors need to be unanimous regarding the specific act or acts of the defendant that constituted criminal negligence. See Johannes, 229 Wis. 2d at 227-29. As the excerpt read to jurors in this case notes, we concluded jurors need not be unanimous regarding why a defendant committed a criminally negligent act, only that he or she did so. See id. at 229. Schutte does not argue that Johannes is wrong on this point or that it was inappropriate for the trial court in this case to correct any misimpression regarding the State’s burden of proof jurors might have gained from defense counsel’s argument. We conclude the court did not misstate the law regarding the State’s burden of proof or the proper application of the unanimity requirement to the evidence adduced at trial.¶39      As for Schutte’s claim that the particular passage from Johannes that the trial court read to jurors was tantamount to a judicial endorsement of a guilty verdict, we would find greater merit in the claim had the trial court not concluded its curative instruction with the paragraph that it did. The final paragraph of the instruction emphasized to jurors that Schutte’s operation of her vehicle on the left half of the roadway did not necessarily constitute criminal negligence, and it informed jurors for a second time that they should consider the traffic violation, if they found one, “along with all the other evidence, in determining whether the defendant’s conduct constituted criminal negligence.” The court had also so instructed jurors as a part of its instructions on the elements of homicide by negligent operation of a vehicle, which the court read to jurors prior to the closing arguments of counsel.


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