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Court of appeals reverses conviction for hit and run involving death due to trial counsel’s ineffective assistance

State v. Marker Alan Sperber, 2013AP358-CR, District 3, 10/15/13 (not recommended for publication); case activity

This appeal turns on Wis JI-Criminal 2670, which explains the 5 elements of the crime the Sperber was charged with–a hit and run causing death to the victim.  The 2nd element requires that the defendant know that his vehicle was involved in an accident involving a person.  The problem here was that Sperber was driving in the dark on wet roads flanked by blackened snowbanks.  He knew he hit something but thought it was a large garbage can.  He was wrong.  It was a man in a wheelchair, and the man had died from the accident.

The case went to trial.  During deliberations, the jury asked the judge these questions about the 2nd element of the offense:

[D]oes the defendant have to be aware that he hit a person at the time of the accident or in the days following the incident in order to fulfill the requirements for the second item?  Slip Op. ¶22.

Are we trying to determine [Sperber’s] guilt of knowing he hit a person or a trash can immediately after the accident happened or whether or not he knew before or on the day he was taken into custody?  Slip op. ¶23.

Both times the judge declined to answer the question and instead told the jury just to read Instruction 2670.  Defense counsel (and the State) agreed with the response.  The jury convicted Sperber.

Ineffective assistance of counsel.  On appeal Sperber claimed that his trial lawyer was ineffective for failing to ask the judge to tell the jury that it had to determine whether Sperber knew he struck a person at the time he left the accident scene.  The State conceded deficient performance but argued there was no prejudice because the instruction’s meaning is “obvious.”

Wrong, said the court of appeals.  Because the jury repeatedly asked for clarification “the instruction’s meaning was neither obvious nor self-explanatory to Sperber’s jury.”  Slip op.  ¶27.  Furthermore, the written, pattern instruction may have misled the jury because:

The knowledge section instructs the jury, “Knowledge must be found, if found at all, from the defendant’s acts, words, and statements, if any, and from all the facts and circumstances in this case bearing upon knowledge.” (Emphasis added.) Thus, rather than limiting itself to only those facts bearing on Sperber’s knowledge when he left the accident, the jury very well may have believed they should consider all facts and circumstances up through the time police arrested him at his home.  Slip op. ¶28.

 New trial in the interest of justice.  The court of appeals ruled for Sperber on this point too.

The only contested issue at trial was whether Sperber knew the accident involved a person. The jury twice asked for clarification on this issue, demonstrating it was confused as to when knowledge was required for conviction under the statute. This was a pure question of law that the court should have clarified. Although a circuit court enjoys broad discretion when instructing the jury, “[w]hen a jury makes explicit its difficulties[,] a trial judge should clear them away with concrete accuracy.” See Bollenbach v. United States, 326 U.S. 607, 612-13 (1946); see also State v. Booth, 147 Wis. 2d 208, 212-13, 432 N.W.2d 681 (Ct. App. 1988) . . . Slip op.  ¶34.

Points of interest:  The written jury instruction that the trial judge told the jury to review isn’t in the appellate record.  Slip op. fn. 2.  Oops.  Are we sure the jury actually had the instruction to review? And query whether the pattern jury instruction needs to be amended in order to avoid this sort of confusion in the future?




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