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Appellate Procedure – Harmless Error – Jury Instructions – Omitted Element

State v. Timothy Scott Bailey Smith, Sr., 2004 WI App 116, reversed on other grounds, 2005 WI 104
For Smith: Patrick M. Donnelly, SPD, Madison Appellate

¶10 The State points out that omissions in jury instructions are subject to a harmless-error analysis. See State v. Harvey, 2002 WI 93, ¶6, 254 Wis. 2d 442, 647 N.W.2d 189. An error is only harmless, however, if it is clear beyond a reasonable doubt that a rational jury would still have convicted absent the error. See State v. Carlson, 2003 WI 40, ¶46, 261 Wis. 2d 97, 661 N.W.2d 51. We cannot draw such a conclusion where, as here, not only was the jury not instructed on an essential element of the charged crime, but the defense was also precluded from presenting evidence on that element.

Although Harvey does allow for harmless error analysis, this issue does seem to recur, that is, doesn’t seem definitively resolved. See, e.g., Powell v. Galaza, 328 F.3d 558 (9th Cir. 2003):

The instruction here, however, is effectively the same as a directed verdict for the state, because the judge instructed the jury that the only contested element of the offense had been satisfied. In contrast to Carella, Neder and Rose, there were no other disputed facts or elements for the jury to decide. The judge’s instruction left the jury with no choice but to return a guilty verdict, resulting in the sort of error whose absence in Carella was critical to the Court’s decision to review for harmlessness….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….)

Additional authority: State v. Gary L. Gordon, 2003 WI 69, ¶¶31-42 (failure to instruct jury on essential element of the crime subject to harmless error analysis, rather than automatic reversal).

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