State v. Dyess

STEINMETZ, J.

(dissenting). Assuming the majority’s interpretation of sec. 903.03, Stats., is correct, which *549 I deny, and that using this challenged instruction was an error, I would then find it was harmless error.

The element of the charged crime is “a high degree of negligence,” not negligence as stated by the majority on page 527 of the opinion. The element is further defined in sec. 940.08(2), Stats., and the jury was so instructed. Section 940.08(2) states a high degree of negligence is conduct which demonstrates ordinary negligence to a high degree. Negligence alone is not an element, especially since such high degree of negligence must be an act which the person should realize creates a situation of unreasonable risk and high probability of death or great bodily harm to another. No reasonable jury with the instructions given here could confuse negligence with a high degree of negligence.

The jury instructions stating the statutory requirements told the jury there are three “elements” to this offense : 1 “The second element of homicide by negligent use of a vehicle requires that the defendant was operating the vehicle in a manner constituting a high degree of negligence at the time of the accident in which Eve King met her death.” Wis. J.I. — Criminal, No. 1170. This instruction does not speak of a high degree of negligence as being composed of separate “elements,” but merely “the danger of injury which characterizes ordinary negligence is magnified to a high degree.” Such magnification transforms ordinary negligence into an entirely separate and distinct entity — one that is aided in its comprehension by referring to ordinary negligence.

This characterization comports with the legislative history of the term and the history of criminal negligence itself. The legislature in creating the concept of a “high *550 degree of negligence” in criminal law sought a compromise between the objective concept of “ordinary negligence” and the entirely subjective mental state of “gross negligence.” The recurrent problem, and the problem here, is the “failure to distinguish between mental state itself and methods of proving that mental state.” Remington and Helstad, The Mental Elements in Crime —A Legislative Problem, 1952 Wis. L. Rev. 644 . Here the “mental state” is a “high degree of negligence.” That is the element in this crime. The method of proving this element, or mental state, includes breaking the concept down to its comprehensive parts — ordinary negligence magnified to a high degree.

“The legislature, apparently concerned about the difficulty in convincing juries of the presence of subjective realization, particularly in cases involving motorists, enacted, a statute entitled ‘Negligent Homicide’ which was designed to strike a compromise between ordinary negligence and the subjective requirement of gross negligence. The statute incorporates the phrase ‘high degree of negligence’ which, as interpreted, involves the objective standard of ordinary negligence but requires that a more serious risk be created. It is conduct that not only creates an unreasonable risk of bodily harm to another, but also involves a high degree of probability that substantial harm will result to such other person.” Id. at 660 .

The jury was told to consider all the evidence in making the threshold finding of whether the defendant was exceeding the speed limit. There was no presumption of fact created for it. The instruction that “any speed in excess of that limit would be negligent speed regardless of other conditions” has reference to other conditions causing that speed, but the jury considered all the evidence in determining the excess character of defendant’s rate of travel.

Applying sec. 805.18, Stats., to the instruction, I would find that if there was an error, it did not affect the *551 substantial rights of the defendant and therefore was statutorily harmless.

Neither Hart v. State nor State v. Cooper found negligence to be an element of sec. 940.08, Stats., but rather negligence to a high degree. Cooper states at 117 Wis. 2d at 38:

“This definition of a high degree of negligence has two elements: the standard definition of ordinary negligence, and the additional element of a high probability of death or great bodily harm. Hart v. State, 75 Wis. 2d 371, 383 , 249 N.W.2d 810, 814-15 (1977).” (Emphasis added.)

This statement does not read that negligence is an element of the crime but rather the definition of ordinary negligence is a part of the definition of a high degree of negligence, not a separate and distinct element. It is stated more clearly in Hart on which Cooper relied at 75 Wis. 2d at 383 , as follows:

“Thus it is apparent that the statutory definition of a high degree of negligence consists of the standard definition of ordinary negligence with the additional element of ‘a high probability of death or great bodily harm’ as a result of the culpable act.” (Emphasis added.)

It is clear in Hart that the definition of ordinary negligence is not an element of the offense.

In describing and attempting to clarify our harmless error rule, the majority states at varying parts of the decision:

(1) “Hence, when error is committed, a court should he sure that the error did not affect the result or had only a slight effect.” At page 540. (Emphasis added.)

(2) “When it is clear that error has been committed, we should he sure that the error did not work an injustice.” At pages 540, 541. (Emphasis added.)

(3) “The only reasonable test to assure this result is to hold that, where error is present, the reviewing court *552 must set aside the verdict unless it is sure that the error did not influence the jury or had such slight effect as to he de minimus.” Pages 541-542. (Emphasis added.)

(4) “[Wjhether the trial error was harmless is unaffected by the particular formulation of the harmless error test used.” Page 543.

(5) Finally, “whether there is a reasonable possibility that the error contributed to the conviction.” Page 543.

Curiously, in the same paragraph at page 543 of the opinion, the court states: “The burden of proving no prejudice is on the beneficiary of the error, here the state” and cites Billings, 110 Wis. 2d at 667. Does that mean if there is any prejudice, then it cannot be harmless error? Are there not varying degrees of prejudice with some having a slight effect or no reasonable probability that the error which was prejudicial contributed to the conviction? If the error caused no prejudice, then why worry whether it was harmless?

The court honors Strickland v. Washington, 104 S. Ct. 2052 (1984), but for some insufficiently explained reason alters the Strickland test from “a reasonable probability” to “no reasonable possibility.” Page 543. I would find Strickland persuasive not merely “instructive.” Page 545. It apppears the majority will follow Strickland but is attempting to maintain state’s rights by using “reasonable possibility” instead of “reasonable probability.” Webster’s Third New International Dictionary Unabridged cites possible as a synonym for probable and further states: “Probable applies to that which is supported by evidence that is adequate although not conclusive or by reason that it is worthy of belief or acceptance . . . .” “Possible refers to that which is within the limit of what may happen or of what a person or thing may do, although it may not seeem probable. . . .”

*553 In a concurring opinion State v. Poh, 116 Wis. 2d 510, 533 , 343 N.W.2d 108 (1984), I also discussed what I believe to be a needless distinction being made by the “reasonable possibility” and “probability” test. Whether they are interchangeable or not, I would prefer to use reasonable probability as relied on by the United States Supreme Court in Strickland .

Reasonable probability is a much better test than reasonable possibility. As is so often said by trial judges in making rulings “anything is possible” but “not everything is probable.” Perhaps if a possibility is reasonable, it has risen to a higher level of acceptability. It would appear “reasonable possibility” of a different outcome, but for the error, is too vague and tenuous. It would be better as the Supreme Court did to state it in terms of “a reasonable probability” of a different outcome. Possibility gives too much latitude to a reviewing court. Perhaps the majority again is muddying the waters as it did in Cartagena, 99 Wis. 2d 657, 671 ; Pohl, 96 Wis. 2d 290, 311-12 ; Novitzke, 92 Wis. 2d 302, 308 ; Kelly, 75 Wis. 2d 313 , 317 n. 3, by stating as it concedes at p. 543 of the opinion: “Often, we have concluded that the determination of whether the trial error was harmless is unaffected by the particular formulation of the harmless error test used.” (Emphasis added.) Let us say it right this time and be consistent from now on by using the “reasonable probability test.”

For the remainder of the decision, the majority uses “probability” as the test. Page 546.

For the final confusion, the court at p. 547 states a repeat of the test picked from previous cases for some unexplained reason as follows: “the judgment should be reversed unless we can be sure that the error did not contribute to the guilty verdict.” (Emphasis added.) Thus the test is again stated differently than “reasonable possibility” or “probability.”

*554 The majority appears to be abandoning the test in Wold v. State, 57 Wis. 2d 344, 356 , 204 N.W.2d 482 (1973):

“The test of harmless error is not whether some harm has resulted, but, rather, whether the appellate court in its independent determination can conclude there is sufficient evidence, other than and uninfluenced by the inadmissible evidence, which would convict the defendant beyond a reasonable doubt.”

This test applied to error of non-constitutional dimensions. Now, the court is focusing as the same author did in Kelly v. State, 75 Wis. 2d 303, 321 , 249 N.W.2d 800 (1977) (concurring opinion) as follows: “The Wold rule gives no recourse against errors which may well have a substantial impact upon the jury’s finding of guilt.” Supposedly now the focus is on the error, not on the other evidence of guilt. However, by keeping in the language of Novitzke v. State, 92 Wis. 2d 302, 308 , which relied on Kelly which stated the test was whether the error had only slight effect on the jury. The focus is not exclusively on the error. Slight effect of the error looks to the error but also as in Wold it looks to the effect it had on the jury when considering all of the other evidence received to convince the jury of guilt. Thus, though it appears Wold is no longer the test in non-constitutional error cases, one cannot be too sure since the test of slight effect is now present in both non-constitutional and constitutional error cases. Under the new test of reasonable possibilities (probabilities), all of the evidence must be looked at as in Wold to see what effect the error had on the total case. The ultimate test of Strickland and therefore in this case is whether there is confidence in the outcome. This requires examining the entire record and not exclusively the error.

What is the error of instruction in this case as applied to the total instructions to the jury? I will locate it for *555 the reader in its proper position in a total of 17 pages of instructions. I will recite only the relevant instructions as follows:

“You’re the judge of the facts in this case. . . .

“Now, you will recall at the beginning of the trial I read an instruction that I felt was important to explain the burden of proof that you’re going to have to consider. It might be getting monotonous for everybody to be mentioning to you beyond a reasonable doubt, but it might be the only time any of the jurors ever have to think about anything in their lives in those terms, and it’s hard to put a quantitative value on a mental state and a mental state is your figuring out what beyond a reasonable doubt might be.

“So this is the best I can do as far as instructing you on what beyond a reasonable doubt means and what the burden of proof is and the presumption of innocence. In determining the guilt or innocence of the defendant, scrutinize the evidence with the utmost care and caution, use all the judgment, reason, prudence and discrimination that the 12 of you collectively possess. If after this careful scrutiny of all the evidence you have a reasonable doubt as to the defendant’s guilt, you must find him not guilty. The law presumes that every person charged with the commission of an offense is innocent. And this presumption attends the defendant throughout the trial and continues or prevails at the close of the trial unless overcome by evidence that satisfies you, the 12 of you, of his guilt beyond a reasonable doubt.

“Now, the defendant is not required to prove he’s innocent. The burden or obligation, duty of proving the defendant guilty of every element of the crime charged is upon the State, and before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that the defendant is guilty.

“If you can reconcile the evidence upon any reasonable theory or hypothesis consistent with the defendant’s innocence, you should do so and find him not guilty.

“The term reasonable doubt means a doubt based upon reason and common sense. I told you at the beginning of the trial that it’s a reason — it’s a doubt for which you can give a reason. If one of the other jurors — you say, well, I have a reasonable doubt, one of the other jurors wants *556 to know what that is, I don’t know. It’s got to be a doubt for which you can give a reason. You have to be able to explain it, and it's not a hunch. It’s not speculation. It arises from a very — or from a fair and a rational consideration of the evidence in the case or the lack of evidence in the case. It means a doubt that would cause a person of ordinary prudence to pause or hesitate when called upon to perform one of the most important acts in their own lives.

“Now, a reasonable doubt isn’t one that ignores a reasonable interpretation of the evidence. It isn’t one that arises from fear to return a verdict of guilty, and it’s not a doubt that might arise in somebody’s mind because they just don’t want to make a decision in this case.

“Now, you are to give the defendant the benefit of every reasonable doubt if one does arise in your mind after careful consideration of all the evidence. But don’t search for doubt. Your job is to search for the truth.

“Now, you’re instructed in weighing the evidence you may take into account matters of common knowledge and your own observations and your own experiences in the affairs of life.

“The weight of the evidence is not determined by which side has more witnesses. You may find the testimony of one witness is more credible than that of another or several other witnesses in determining the weight and credit you are to give to the testimony of any witness. In determining the weight and the credit, value, truthfulness or believeability (sic) that you are going to give to any witness that testifies, consider interest or lack of interest in the result of the trial, conduct, appearance and demeanor on the witness stand, bias or prejudice, if any was shown, the clearness or lack of clearness of the recollections of the witnesses, the opportunity they had to know or observe the facts to which they testified and the reasonableness of any particular witness’s testimony taken in light of all the other credible evidence in the case, then give it the weight and credit you feel it is entitled to.

“Homicide by negligent use of a vehicle as defined by the Criminal Code of the State of Wisconsin is committed *557 by one who causes the death of another human being by a high degree of negligence in the operation of a vehicle. And before the defendant may be found guilty of homicide by negligent use of a vehicle, the State must prove by evidence that satisfies you beyond a reasonable doubt that there were present the following three elements of the offense: First, that Eve King met her death because of injuries sustained in a collision involving a vehicle driven by the defendant; second, that at the time of the collision the defendant was operating said vehicle in a manner constituting a high degree of negligence; third, that there was a causal connection between the death of Eve King and the operation of the vehicle driven by the defendant in a manner constituting a high degree of negligence.

“The second element of homicide by negligent use of a vehicle requires that the defendant was operating the vehicle in a manner constituting a high degree of negligence at the time of the accident in which Eve King met her death.

“The criminal code provides a high degree of negligence is conduct which demonstrates ordinary negligence to a high degree consisting of an act which the person should realize creates a situation of unreasonable risk and high probability of death or great bodily harm to another person.

“Now, to give you a clearer idea of that constitutes a high degree of negligence, I will define for you, first, what is meant by ordinary negligence. This instruction says a high degree of negligence is ordinary negligence to a high degree, so you have to know what ordinary negligence it.

“Negligence has the same meaning as the phrase failure to exercise ordinary care. A person is negligent when he or she fails to exercise ordinary care. Ordinary care is the degree of care which the great mass of mankind ordinarily exercises under the same or similar circumstances. A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such an act or omission will subject the person or property of another to an unreasonable risk of injury or damage.

*558 “In addition to this general definition of negligence, there are more specific rules of law which are applicable in this case.

“A driver must exercise ordinary care to keep his vehicle under proper management and control so that when danger appears, he may stop his vehicle, reduce his speed, change his course or take other proper means to avoid injury or damage. If a driver does not see or become aware of danger in time for him to take proper means to avoid the accident, he is not negligent as to management and control. It is the duty of every operator of a motor vehicle to exercise ordinary care to keep a careful lookout ahead and about him.

“The exercise of ordinary care requires him to make observations at a point or points where his observations will be efficient for protection from injury to person or property and requires the seasonable (sic) and efficient —seasonable (sic) and effective use of a driver’s sense of sight to observe timely not only the presence, location and movement of other users of the highway, pedestrians as well as vehicles, such traffic signs and signals, highway markers, obstructions to vision and everything else that might warn him of possible danger. Under Wisconsin law, regulating speed of motor vehicles, it is provided that no person shall drive a vehicle at a speed greater-than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing, and that the driver shall exercise ordinary care to so regulate his rate of speed as may be necessary to avoid colliding with any object, person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and using due care.

“The safety statute in the motor vehicle code provides that, no person shall drive a vehicle at a speed in excess, and on 14th Street in particular, of 30 miles per hour. Any speed in excess of that limit would be negligent speed regardless of other conditions. It is for you to determine whether Johrie Dyess’3 speed was over said limit, and if under, what it was, nevertheless, a negligent speed under the conditions and circumstances then present and under the rules of law given to you in these instructions.

“And there’s a lot more to this, and I say, you will have a chance to read this. But the negligence which consti *559 tutes a high degree of negligence and which is requisite for conviction of homicide by negligent use of a vehicle is conduct that not only creates an unreasonable risk of bodily harm to another but also involves a high degree of probability that substantial bodily harm will result to such other person.

“In other words, the danger of injury which characterizes ordinary negligence is magnified to a high degree.

“On the other hand, proof of a high degree of negligence does not require proof of reckless conduct which, under the criminal code, requires conscious disregard for the safety of another and a willingness to take known chances of perpetrating an injury.

“The third element of this offense requires that the relation of cause and effect exists between the death of Eve King and the driving by the defendant of the vehicle in a manner amounting to a high degree of negligence. You are instructed that a relation of cause and effect exists between such degree of negligence and the death of Eve King when such high degree of negligence was the cause of death. There may be more than one cause of death. The negligence of one person alone might produce it or the acts or omissions of two or more persons might jointly produce it.

“Before such relation of cause and effect can be found to exist, however, it must appear that the high degree of negligence under consideration was a substantial factor in producing death. That is to say that it was a factor actually operating and which had a substantial effect in producing the death as a natural result.

“If you are satisfied beyond a reasonable doubt from the evidence in this case that the defendant caused the death of Eve King by a high degree of negligence in the operation of a motor vehicle, then you should find the defendant guilty of homicide by negligent use of a motor vehicle as charged in the information.

“If, however, you are not so satisfied, then you must find the defendant not guilty.” (Emphasis added.)

I would hold the instruction advising the jury if it finds from all the evidence that the defendant exceeded the speed limit, then the defendant was negligent is a correct statement of the law and did not create a pre *560 sumption of ultimate elemental fact, and in the alternative, I would hold when taken in the context of all the instructions, it “had no effect on the result or had only a slight effect” or “did not work an injustice” or “the error did not influence the jury” or there is no reasonable possibility (probability) that the error contributed to the conviction or I’m “sure that the error did not contribute to the guilty verdict.” Finally, I would find the error did not undermine confidence in the outcome of the case. Therefore, for any of the rationales stated, I would find the error found by the majority to have been harmless.

I dissent and would affirm the court of appeals.

I am authorized to state that Mr. JUSTICE LOUIS J. CECI joins this dissenting opinion.

The first and third elements of this offense are:

“First, that the defendant operated a vehicle.

“Third, that such high degree of negligence on the part of the defendant caused the death of-