A jury convicted Harvey of reckless homicide by the delivery of heroin. On appeal, she notes that the jury instructions would have permitted conviction on the theory that she either aided and abetted another supplier or was part of the chain of distribution–that is, that she supplied the person who actually sold the heroin to the decedent. But there was no evidence she’d done any of those things: if she’d committed the crime, all the evidence showed that it was by selling the heroin directly to the buyer, who ingested it and died. The verdict forms were general: the jury was asked only to determine guilt or innocence, not whether Harvey was the principal, an aider, or a higher-up in the chain. So, Harvey says, we can’t know whether the jury convicted her based on one of the other two theories for which there was no evidence, and her conviction must be reversed.
The reason these unsupported aider/abetter and chain-of-delivery theories ended up getting read to the jury on the homicide count is because they were supported as to a second count: a separate heroin delivery. The delivery charged as a homicide occurred at a bar: the state said Harvey herself had sold a man heroin; he snorted it at the bar and eventually died from it. But before he died, the state said the buyer purchased a second quantity of heroin at an apartment; this was found, unused, in his pocket. This second count was charged as a delivery. The state alleged that Harvey had not directly made this second delivery, but had either supplied the supplier (Gates) or had aided him in making the transaction. So the judge read the aider/abetter and chain-of-delivery instructions on this count, and they seemingly got tossed in on the other one without the judge or the attorneys noticing.
Harvey says instructions that would have permitted the jury to convict her on a factually unsupported theory violates due process because, again, we can’t know if the jury in fact convicted her of a homicide despite the insufficient evidence that she’d aided and abetted or supplied the supplier. And she’s not without legal support: State v. Crowley, 143 Wis. 2d 324, 329, 422 N.W.2d 847 (1988), says just this:
when alternative methods of proof resting upon different evidentiary facts are presented to the jury, it is necessary, in order to sustain a conviction, for an appellate court to conclude that the evidence was sufficient to convict beyond a reasonable doubt upon both of the alternative modes of proof.
But, says the court of appeals, Crowley is no longer good law. It was a case about federal due process, and three years later, the federal Supreme Court came to the opposite conclusion, in Griffin v. United States, 502 U.S. 46 (1991): it said that jury instructions that outlined a “legally inadequate theory” would require reversal, but those that laid out a “factually inadequate theory” wouldn’t, so long as there was another, factually adequate theory supporting guilt. The reason for this distinction was, the Court said, that juries couldn’t be expected to see the legal flaws in a legally flawed instruction, but could be expected to see the factual gaps in a factually-flawed one. So instructing a jury on a theory without factual support doesn’t violate due process if the jury is also instructed on a theory that does have a factual basis. Though it was error for the circuit court to give the jury instructions that didn’t match the facts–the court says it would be “preferable” not to do so–Harvey’s rights weren’t violated and she gets no relief.
Harvey also argues she should get a new trial because the circuit court changed the instructions it gave the jury after the instruction conference and without notice to the parties. The court said it had “not really [made] any changes but [made] it flow more smoothly.” The court of appeals notes that Harvey doesn’t show what changes the circuit court made. Harvey relies on State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991), in which our supreme court used its supervisory authority to direct trial courts to inform counsel of any changes. The court of appeals rejects her argument that any change necessitates reversal. (¶¶54-57).