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Multiplicity: § 948.40(1) (4)(a) as Lesser of § 940.02(2)(a); Contributing to Delinquency with Death as Result; Instructions – First-Degree Reckless Homicide; Prosecutorial Misconduct – “Haseltine”

State v. Patrick R. Patterson, 2010 WI 130, affirming 2009 WI App 181; for Patterson: David R. Karpe; Patterson BiC; State Resp.; Reply

Multiplicity – § 948.40(1) (4)(a) as Lesser Offense of § 940.02(2)(a)

Contributing to the delinquency of a minor with death as a result, § 948.40(1), (4)(a) is not a lesser offense of first-degree reckless homicide, § 940.02(2)(a), therefore conviction on both for the same act isn’t multiplicitous. The offenses are not identical in law and fact, therefore aren’t the “same” under the “Blockburger elements-only test,” thus triggering a presumption of legislative intent to authorize cumulative punishment. The presumption may be rebutted, but only by clear evidence of contrary legislative intent; Patterson can’t make such a showing.

¶18  The plain language of the three relevant statutes does not rebut the presumption that the legislature intended to permit punishment under Wis. Stat. §§ 940.02(2)(a), and 948.40(1), (4)(a).  In addition to the two statutes under which Patterson was convicted, Wis. Stat. § 939.66(2) is relevant to this analysis because it prohibits conviction of both a homicide offense and a lesser included type of criminal homicide. Patterson’s multiplicity claim is based in part on his argument that Wis. Stat. § 948.40(1), (4)(a) is a type of criminal homicide.  Under this factor we conclude that Wis. Stat. § 948.40(1), (4)(a) is not a type of criminal homicide because  it lacks the characteristics of a traditional homicide statute.

The court of appeals held, based on its reading of State v. Jimmie Davison, 2003 WI 89, that when a lesser form of homicide is charged along with the greater form, § 939.66(2) permits punishment on both. The court now explicitly rejects that analysis, ¶¶19-20. (“We reject this reading of Davison and deline to affirm the court of appeals on this basis. … As we did in Davison, we decline to hold that Wis. Stat. § 939.66 permits conviction for an offense and an included offense where both are charged, and instead affirm the court of appeals on the basis that Wis. Stat. § 948.40(1), (4)(a) is not a type of criminal homicide.”) The clear effect is to affirm as modified the court of appeals opinion, though that isn’t the formal mandate.

The court appears to suggest, albeit without saying explicitly, that “homicide” must be located in chapter 940, ¶24. In any event, homicide statutes target those who “cause” the death of another; statutes merely providing greater penalty where death is a “consequence” of certain activity aren’t “homicide” statutes. Id. The court’s analysis of legislative history fortifies its view that § 939.66 “is limited to the traditional homicide statutes now located in chapter 940,” ¶27.

Contributing to Delinquency with Death as Result, § 948.40(1) (4)(a) – 17-year-old as Victim

A 17-year-old is a “child” within § 948.40(1), (4)(a), notwithstanding that a 17-year-old may herself be prosecuted as an adult for committing a crime. That is, the definition of “child” excludes children over 17 only for purposes of prosecuting that person, ¶47. Contributing to delinquency requires neither adjudication of delinquency nor even prosecution for delinquency, ¶48.

Instructions – First-Degree Reckless Homicide, § 940.02(2)(a)

Reckless homicide instruction that recited, as fourth element, that victim “used the substance alleged to have been delivered by the defendant and died as a result,” adequately imposed correct burden of proof, notwithstanding use of term “alleged.”

¶55  We agree that, considering the jury instruction as a whole, it is not reasonably likely that the jury misunderstood the burden of proof. Under this instruction, even to reach the challenged element, the jury must find that the State proved beyond a reasonable doubt that the defendant delivered Oxycodone to Tanya.  Once the members of a jury reach the fourth element, we are satisfied that they will understand that the language refers them back to their previous finding, not that the burden has been lowered.[19] Therefore, the jury instruction does not erroneously relieve the State of its burden of proving all of the elements of Wis. Stat. § 940.02(2)(a) beyond a reasonable doubt.

Moreover, the cure would have worse than the disease: had the 4th element elided “alleged” and simply referred to a substance delivered, it would have suggested proof of the delivery element without requiring that the jury first find its existence, id., n. 19.

Prosecutorial Misconduct – “Haseltine” Error

Under State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984), one witness may not comment on the the truthfulness of another witness’s testimony. Patterson’s claim of 4 instances of Haseltine error is rejected, because no error occurred in 3 instances and the 4th was not prejudicial.

¶63  We conclude that the first three questions are not improper because the other witnesses’ statements or testimony were used for impeachment purposes or to refresh the witness’s recollection.  We also agree with the court of appeals that these questions were not Haseltine violations because the prosecutor was not seeking to elicit the witness’s opinion on whether those other witnesses’ statements were true.

¶64  Regarding the fourth question, we agree with the court of appeals that while it may violate Haseltine because the prosecutor asked whether the witness believed another witness’s statements were true, it did not result in an unfair trial.  See Patterson, 321 Wis. 2d 752, ¶36. In her cross-examination of Investigator Strompolis, the prosecutor was responding to Patterson’s counsel’s suggestion that the police did not conduct an adequate investigation.  Given this context, it becomes clear that the question was used to explain why Investigator Strompolis did not continue with his interrogation of Misty Hale, rather than to establish the truth or falsity of Hale’s statements.  We note that, under these circumstances, any error by the prosecutor in asking this question was harmless.  See Wis. Stat. § 805.18(2); State v. Lindell, 2001 WI 108, ¶69, 245 Wis. 2d 689, 629 N.W.2d 223 (applying the harmless error statute to criminal proceedings).  This particular question in this context did not”create[] too great a possibility that the jury abdicated its fact-finding role” to the witness or failed independently to find the defendant’s guilt.  Haseltine, 120 Wis. 2d at 96.  Nor did this question or any of the other allegedly improper questions raised by Patterson “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” Neuser, 191 Wis. 2d at 136.  The circuit court did not erroneously exercise its discretion in denying Patterson’s motion for a mistrial.

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