STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. George C. LOHMEIER, Defendant-Appellant.
No. 94-2187-CR
Supreme Court
Oral argument September 10, 1996. Decided November 29, 1996.
556 N.W.2d 90
For the defendant-appellant there was a brief by Dennis P. Coffey and Coffey, Coffey & Geraghty, Milwaukee and oral argument by Dennis P. Coffey.
N. PATRICK CROOKS, J. The State of Wisconsin seeks review of a published decision of the court of appeals,1 which reversed a judgment of the circuit court for Walworth County, the Honorable James L. Carlson presiding, convicting George C. Lohmeier of two counts of homicide by operation of a vehicle while under the influence of an intoxicant contrary to
On June 10, 1993, George C. Lohmeier struck Renee Belair and Stacie Rogers with his car as they were walking on Willis Bay Road in Walworth County. Lohmeier left the scene of the collision, but later returned and admitted to police that the vehicle he was driving struck the young women. Police arrested Lohmeier at the scene after he failed a field sobriety test. Lohmeier was subsequently charged with six counts, including two counts of homicide by operation of a vehicle while under the influence of an intoxicant contrary to
A jury trial was held November 1 through November 4, 1993. Evidence at the trial indicated Lohmeier‘s blood alcohol content was 0.186% at the time of the accident. Michael Sugrue testified that as he passed the young women, they were walking toward him on the other side of the road, one on the edge of the road and the other toward the ditch. Three to five seconds after this, Sugrue passed Lohmeier, who was driving in the opposite direction. Sugrue testified that Lohmeier‘s car was “far over on the edge of the road” toward the ditch line. (R. 51 at 172.) Sugrue watched Lohmeier‘s car in his rear-view mirror, and said he was surprised Lohmeier was not “getting over” as he approached the young women. (R. 51 at 172-73.) After seeing a white object fly over Lohmeier‘s car, Sugrue turned around and drove to the site, where he found one of the young women lying in the road. Both young women died as a result of the collision.
At the conclusion of the trial, the court read Wis JI—Criminal 1185,4 which provided with respect to Lohmeier‘s
If you are satisfied beyond a reasonable doubt that the defendant caused the death of Stacie Rogers and Renee L. Belair by operating a vehicle while the defendant was under the influence of an intoxicant, you must determine whether the defendant has a
defense to this crime by considering the following: Would the death of Stacie Rogers and Renee L. Belair have occurred even if the defendant had been exercising due care and had not been under the influence? Wisconsin law provides that it is a defense to the crime charged in this case if you are satisfied to a reasonable certainty by a greater weight of the credible evidence that the death would have occurred even if the defendant would have been exercising due care and had not been under the influence. . . . If you are satisfied to a reasonable certainty by the greater weight of the credible evidence that the death of Stacie Rogers and Renee L. Bеlair would have occurred even if the defendant had been exercising due care and had not been under the influence, then you must find the defendant not guilty. . . .
(R. 51 at 634-35.) Similarly, the court read Wis JI—Criminal 1186, which relates to the homicide by prohibited alcohol concentration charge, and corresponds in substance with Wis JI—Criminal 1185 regarding Lohmeier‘s affirmative defense. Immediately following this, the court read the following special instruction5 over Lohmeier‘s objection: “You are further instructed as to these four counts that it is no defense to a prosecution for a crime that the victim may have been contributorily negligent.” (R. 51 at 639.) The State requested this instruction based on
II.
Initially, we consider the appliсable standard of review. Lohmeier‘s claim is essentially based on due process, because he contends that the circuit court denied him a meaningful opportunity for consideration by the jury of his defense. See State v. Heft, 185 Wis. 2d 288, 302-03, 517 N.W.2d 494 (1994). This is a question
The State requested the instruction for the purpose of informing the jury that Lohmeier was not immune from criminal liability simply because the young women were contributorily negligent by walking on the wrong side of the road.
In addition, in cases involving challenged jury instructions, appellate courts generally apply harmless error analysis to determine whether reversal is required. See, e.g., State v. Zelenka, 130 Wis. 2d 34, 387 N.W.2d 55 (1986); State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985); State v. Paulson, 106 Wis. 2d 96, 315 N.W.2d 350 (1982). However, harmless error analysis is not aрplicable in this case, because Lohmeier is not contending that the contributory negligence instruction is an erroneous legal statement. Instead, Lohmeier is arguing that the instruction, when coupled with Wis JI—Criminal 1185, 1186, and 1188, was confusing and therefore subject to misinterpretation by the jury. Accordingly, the focus in this case is not whether there was error, and if so, whether it is harmless, because the instruction concededly is not erroneous.
We therefore must determine the proper inquiry for appellate courts to apply when considering whether the interplay of challenged jury instructions violated a defendant‘s constitutional rights by misleading the jury. Admittеdly, the applicable standard is not clear from our previous cases. For example, in State v. Schulz, 102 Wis. 2d 423, 307 N.W.2d 151 (1981), we stated, “When a jury charge is given in a manner such that a reasonable juror could have misinterpreted the instructions to the detriment of a defendant‘s due process rights, then the determination of the jury is tainted.” Id. at 427 (emphasis added). On the other hand, we have also determined that where a defendant argues a challenged jury instruction misled the jury into imposing a lesser burden than reasonable doubt upon the state in a criminal case, the proper standard is whether there is a ”reasonable likelihood” that the jury was misled. State v. Avila, 192 Wis. 2d 870, 889, 532 N.W.2d 423 (1995) (emphasis added).
This “reasonable likelihood” standard, we think, better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical “reasonable” juror could or might have interpreted the instruction. . . . Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in light of all that has taken place at the trial likely to prevail over technical hairsplitting.
Boyde, 494 U.S. at 380-81. Thus, Wisconsin courts should not reverse a conviction simply because the jury possibly could have been misled; rather, a new trial
III.
Before applying the reasonable likelihood standard to the case at hand, we consider the relationship between the
In State v. Caibaiosai, 122 Wis. 2d 587, 596, 363 N.W.2d 574 (1985), this court stated that
Moreover, the
However, this rule does not mean that evidence of a victim‘s negligence is irrelevant in a criminal proceeding. It was relevant here to the affirmative defense, and it is often relevant on the issue of causation. See, e.g., Tims, 534 N.W.2d at 681; State v. Crace, 289 N.W.2d 54, 59-60 (Minn. 1979); see also LaFave & Scott, supra, at 692-93. In fact, we implicitly recognized this in Hart v. State, 75 Wis. 2d 371, 249 N.W.2d 810 (1977), when we noted the general rule that contributory negligence is no defense, but went on to indicate that the victim‘s negligence was relevant to determining whether the defendant‘s intoxicated driving was a substantial factor in causing the victim‘s death. Id. at 398. Thus, the contributory negligence rule of
Nevertheless, we recognize that this legal distinction is complex. Accordingly, it would have been
We nonetheless find thаt it is not reasonably likely that the challenged instructions misled the jury into thinking it could not consider the young women‘s actions in relation to Lohmeier‘s affirmative defense, in light of the context of the entire proceedings. Specifically, the jurors sat through a four day trial. Nearly all of the evidence presented by Lohmeier related to his affirmative defense. Lohmeier‘s attorney emphasized in his opening statement and closing argument that the accident would have been unavoidable even if Lohmeier had not been intoxicated and had been driving with due care. Moreover, Lohmeier‘s attorney never referred to the young women‘s conduct as contributory negligence, or even negligence for that matter. Furthermore, even the State extensively addressed Lohmeier‘s affirmative defense in its closing and rebuttal arguments.12
After all of this, the court instructed the jury, “[I]t is no defense to a prosecution for a crime that the victim may have been contributorily negligent.” (R. 51 at 639.) We find it is not reasonably likely that the jurors would believe this single instruction transformed all of the prior proceedings into a “virtual charade.” See Boyde, 494 U.S. at 383 (quoting California v. Brown, 479 U.S. 538, 542 (1987)). Thus, we conclude that a reasonable likelihood does not exist that the contributory negligence instruction, in combination with Wis JI—Criminal 1185, 1186, and 1188, misled the jury into believing it could not consider the young women‘s conduct in regard to Lohmeier‘s statutory affirmative defense.
arguments focused, extensively, on Lohmeier‘s affirmative defense, not on the instruction.
Finally, although we also conclude that a new trial is not warranted because it is not reasonably likely that the jury was misled, we nonetheless acknowledge that the contributory negligence instruction is potentially confusing when coupled with Wis JI—Criminal 1185, 1186, and 1188. Therefore, we recommend that the Criminal Jury Instruction Committee adopt a jury instruction that sets forth the law as contained in
In addition, we recommend that the Committee adopt a bridging instruction to be given when a court gives a contributory negligence instruction along with Wis JI—Criminal 1188, 1185, and/or 1186. The instruction should explain to the jury that although the victim‘s contributory negligence is not a defense, the jury may consider the acts of the victim in relation to the defendant‘s
It is further recommended that the Committee in its comments caution circuit court judges so that they will not, without clear justification, give a contributory negligence instruction in a criminal case. We conclude that these instructions will clarify the relationship between contributory negligence and the
In summary, we find that in light of the entire proceedings, there does not exist a reasonable likelihood that the contributory negligence instruction,
By the Court.—The decision of the court of appeals is reversed.
JANINE P. GESKE, J. (dissenting). I dissent because I believe that there is a reasonable likelihood that the contributory negligence instruction, in combination with Wis JI—Criminal 1185 and 1186, misled the jury into believing it could not consider the young women‘s conduct in regard to Lohmeier‘s statutory affirmative defense. I would affirm the court of appeals and hold that there is a reasonable likelihood that the contributory negligence instruction misled the jury, for several reasons.
First, the defense essentially conceded these elements of the charges under
Second, the circuit court never defined the concepts “negligence” and “contributory negligence” for the jury. The jury was told “In weighing the evidence, you may take into account matters of your common knowledge and your observations and experiences in the affairs of life.” Wis JI—Criminal 195 Juror‘s Knowledge. A layperson‘s view of negligence could be characterized as the careless action of a person, including that of a victim.
Third, the circuit court gave no explanatory instruction to the jury to clarify the relationship between the affirmative defense instruction and the instruction that contributory negligence is not a defense. Without such an explanation, the probability is great that the jurors were misled into disregarding Lohmeier‘s affirmative defense.
Proper jury instruction is a crucial component of the fact-finding process. State v. Schulz, 102 Wis. 2d
I agree with the court of appeals that as long as the given jury instruction fully and fairly informs the jury of the applicable law, the circuit сourt has discretion in choosing which instruction to give. State v. Lohmeier, 196 Wis. 2d 432, 441, 538 N.W.2d 821 (Ct. App. 1995). I also agree with the majority that we consider jury instructions in light of the proceedings as a whole. But the circuit court does not have discretion to give an instruction which clouds or even nullifies the applicable law. And it is precisely by looking at the instructions in context that the harm to the defendant is demonstrated. The pertinent instructions were given in the following order:
-1185 Homicide by Operation of Vehicle While Under the Influence - Sec. 940.09(1)(a).
-A contributory negligence instruction based on
The circuit court instructed the jury on the affirmative defense and immediately thereafter instructed the jury that contributory negligence of the victims was not a defense. Unfortunately, the judge did not give any explanation of the relationship between the contributory negligence instruction and Lohmeier‘s affirmative defense. Based partly on sequence, and primarily on the actual instruction language, it is reasonably likely that the cumulative effect of those instructions was to mislead the jurors. The jurors were misled into believing that the law forbade them to consider the acts of the victims, which may or may not
In Hart v. State, 75 Wis. 2d 371, 249 N.W.2d 810 (1977), where the negligence of the victim was undisputed, we stated that the question for the jury was whether, considering the negligence of the victim along with the other circumstances of the case, the negligence of the defendant was nevertheless an operative factor having a substantial effect in producing the victim‘s death. Hart, 75 Wis. 2d at 399. The circuit court below could have said as much in its instructions, but did not.
The very essence of Lohmeier‘s defense was that it was not his intoxication, but the victims’ carеlessness in walking in or stepping out into the roadway that was the cause of the accident. As Lohmeier‘s counsel told the circuit court at the instructions conference,
“[T]his is not a matter where we are attempting to establish contributory negligence as a defense. What we are saying is that the intervening fact is this movement of the girls. My problem with the instruction is that the legislature gives us the defense (in
Wis. Stat. § 940.09(2) ) and then if you give that (contributory negligence) instruction you are in essence telling the jury, don‘t listen to what the Defense has presented.”
Mr. Lohmeier‘s defense did not hinge on whether the girls’ actions legally constituted contributory negligence, but rather asserted that their movement onto the roadway was an intervening event.
The record demonstrates that the circuit court itself had doubts as to the clarity of the instructions
“I don‘t really see any error in giving this instruction we are talking about because we are not talking about negligence or contributory negligence, we are talking about cause, nothing to do with negligence. So what has to be established is this independent. You can argue your cause and even if the Court gives this instruction because it releases what I fear to be a problem in assessing the jury, assessing relative wrong here which is not
their duty or function, not at all. They must be satisfied that there was some type of cause that excuses responsibility for drinking and causing death. Those are given facts when you give an affirmative defense and may not take simple contributory negligence of a victim. What they have to have is an intervening cause and I think you can argue to that very simply yоur theories about movement without talking about contributory negligence or being in any way deterred by that. So I think I will give this instruction.”
Despite the circuit court‘s recognition of inconsistency, it failed to instruct the jury that the independent causation defense was not a question of contributory negligence. Although Lohmeier‘s counsel objected to the contributory negligence instruction, neither counsel offered an explanatory, or bridging, instruction to resolve the inconsistency. The jury was left on its own to sort out these undefined legal terms.
Argument of counsel further clouded the relationship between the affirmative defense and the contributоry negligence instruction. The majority notes that Lohmeier‘s attorney never referred to the young women‘s conduct as contributory negligence. Majority op. at 196. However, the district attorney‘s closing argument included these statements:
Well I guess something that might come to mind is, well, hold it, this is a real world Mr. Koss and we have got girls walking the wrong way on the highway. I imagine everybody knows you don‘t do that. I agree, but first there‘s an instruction that says you are not to consider contributory negligence of a victim. It‘s not a defense. That‘s by law in Wisconsin. Moreover, and this is crucial, walking facing traffic or not facing traffic, that law is not for
the benefit of the driver. That law is not fоr the benefit of the driver.”
In sum, the circuit court gave the contributory negligence instruction without a proper explanation of the relationship between that instruction and the instruction regarding the affirmative defense. Because I conclude that such an omission was erroneous, and created a reasonable likelihood that the jury was misled into disregarding Lohmeier‘s affirmative defense, I respectfully dissent. Lohmeier should be granted a new trial. “It may well be that the defendant is guilty of the offense charged against him, but he is entitled to a fair trial according to the established rules of procedure and principles of law.” Boldt v. State, 72 Wis. 7, 17, 38 N.W. 177 (1888), cited in Hart v. State, 75 Wis. 2d 371, 395, 249 N.W.2d 810 (1977) (footnote omitted).
I аm authorized to state that Chief Justice Shirley S. Abrahamson and Justice William A. Bablitch join this dissenting opinion.