State v. Picotte

2003 WI 42, 661 N.W.2d 381, 261 Wis. 2d 249, 2003 Wisc. LEXIS 408

• Court: Wisconsin Supreme Court
• Decided: May 16, 2003
• Docket: 01-3063-CR
• Status: Published

Opinions

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This case comes before the court on certification by the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (1999-2000).¹ The circuit court for Brown County, Peter J. Naze, Judge, entered a judgment of conviction for first-degree reckless homicide (Wis. Stat. § 940.02), party to a crime, against Waylon Picotte, the defendant. It also entered an order denying the defendant's postconviction motions.

¶ 2. The issue presented by this case is whether the defendant's conviction for first-degree reckless homicide is barred because the victim did not die within a year and a day of the infliction of the fatal injuries.

¶ 3. The defendant's postconviction motions asserted that his conviction of first-degree reckless homicide was barred because it violated the common-law year-and-a-day rule, which establishes an irrebuttable presumption that death occurring more than one year and one day after an accused's injury-inflicting act was not caused by the accused.

¶ 4. The circuit court denied the defendant's motions. The circuit court concluded that even if the year-and-a-day rule were part of the law of Wisconsin after adoption of the Wisconsin Constitution, the legislature eliminated the year-and-a-day rule by enacting Wis. Stat. § 939.74(2), authorizing a prosecution for violation of § 940.02 (proscribing first-degree reckless homicide) to be commenced at any time.²

¶ 5. We disagree with the circuit court and hold that the defendant's conviction in this case is barred by the common-law year-and-a-day rule. In order to reach this conclusion, we must address four successive questions of law that this court decides independent of the circuit court but benefiting from the circuit court's analysis. The four questions and this court's answers to them are as follows:

1. Is the common-law year-and-a-day rule the law in Wisconsin? We agree with both the State and the defendant that the year-and-a-day rule has been the law of Wisconsin since statehood, preserved through Article XIY Section 13 of the Wisconsin Constitution.

2. If the year-and-a-day rule is the law in Wisconsin, does this court have the authority to abrogate the rule? This court has the authority to develop the common law and therefore may abrogate the year-and-a-day rule.

3. If this court has the authority to abrogate the year-and-a-day rule, do sufficiently compelling reasons exist for this court to do so now? This court should abrogate a common-law rule when the rule becomes unsound. We conclude that the year-and-a-day rule is an archaic rule that no longer makes sense. Accordingly, the court abolishes the rule.

4. Should the abrogation of the year-and-a-day rule apply to the defendant in the present case? The court may change or abrogate a common-law rule either retroactively or prospectively. We conclude that purely prospective abrogation of the year-and-a-day rule best serves the interests of justice. Thus, prosecutions for murder in which the conduct inflicting the death occurs after the date of this decision are permissible regardless of whether the victim dies more than a year and a day after the infliction of the fatal injury. The prosecution for first-degree reckless homicide in the present case, however, remains subject to the year-and-a-day rule, and because the fatal injury in the present case was inflicted more than a year and a day before the death of the victim, the defendant's conviction for first-degree reckless homicide is reversed.

HH

¶ 6. The relevant undisputed facts of this case are as follows. Waylon J. Picotte, the defendant, was involved, along with another, in a fight outside of a Green Bay bar on September 26,1996. During the fight, John Jackson was struck in the face and hit his head on a brick wall. Jackson suffered brain damage that left him in a coma. The defendant was charged with aggravated battery and substantial battery on October 21, 1996.³ He pled guilty and was sentenced to 15 years in prison.⁴

¶ 7. More than two years later, on June 8, 1999, Jackson died from complications arising from the injuries sustained in the fight. The defendant was then charged with first-degree reckless homicide, party to a crime, in violation of Wis. Stat. §§ 940.02(1) and 939.05.⁵ After a jury trial, the defendant was convicted and sentenced to 30 years in prison.

91 8. The defendant filed postconviction motions asserting, among other issues, that his prosecution and conviction for first-degree reckless homicide violated the common-law year-and-a-day rule.⁶ The circuit court affirmed the conviction and the court of appeals certified the issues relating to the year-and-a-day rule for review by this court.

II

¶ 9. We address first whether the year-and-a-day rule has been the common-law rule in Wisconsin since statehood. We agree with both the State and the defendant that the year-and-a-day rule has been the law of Wisconsin since statehood, preserved through Article XI\~ Section 13 of the Wisconsin Constitution.

¶ 10. Article XI\~ Section 13 of the Wisconsin Constitution reads as follows:

Common law continued in force. Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature.

Decisions of this court make clear that Article Xiy Section 13 specifically incorporates the common law of England as it existed in 1776 into the law of this state.⁷

¶ 11. The year-and-a-day rule is a common-law criminal rule of causation that dates back to thirteenth-century England.⁸ According to the rule, no homicide is committed unless the victim dies within a year and a day after the injury is inflicted, for if the victim dies more than one year and a day from the injury it is "conclusively presumed that the injury did not cause the death."⁹ The year-and-a-day rule was plainly part of English common law at the time of the American Revolution,¹⁰ and was therefore the law in Wisconsin at statehood.¹¹

¶ 12. The circuit court ruled that while the year- and-a-day rule may have been the law in Wisconsin, the legislature abrogated the common-law rule when it enacted Wis. Stat. § 939.74(2). We agree with both the State and the defendant that the circuit court's ruling is erroneous. Section 939.74(2) eliminates any statute of limitations for a prosecution for first-degree reckless homicide. It provides that a prosecution under § 940.02 "may be commenced at any time." A statute of limitations sets the time within which a prosecution must be commenced after the crime is completed. In contrast, the year-and-a-day rule is a substantive principle of criminal law defining when a murder has been committed. "There is no question that the year-and-a-day rule has long been recognized in the common law as substantive legal principle."¹² In adopting § 939.74(2), the legislature did not act to alter or suspend the year-and-a-day rule.

¶ 13. In fact, legislative history relating to the Wisconsin Criminal Code indicates that the year-and-a-day rule has been and remains to this day a part of the common law of this state. The 1953 revision of the Wisconsin Criminal Code, which never went into effect, included the following provision, abolishing the year- and-a-day rule.¹³

339.15 YEAR AND A DAY RULE ABOLISHED. In a prosecution for homicide the state must prove beyond a reasonable doubt the causal relation between the homicidal act and death, but shall not be required to prove that death occurred within a year and a day of such act.¹⁴

¶ 14. The very fact that the drafters included this provision is strong evidence that the legislature understood the year-and-a-day rule to be part of the common law of Wisconsin. Assistant Attorney General William Platz, one of the architects of both the 1953 and the 1955 versions of the criminal code, explained the removal of that provision from the code as a policy decision to leave the year-and-a-day rule in effect for Wisconsin.

Another section [of the 1953 version of the criminal code] deleted by the committee would have abolished the rule in homicide cases that death must occur within a year and a day from the felonious act of causing death. This was a policy decision by the committee and leaves the law as it has been.¹⁵

¶ 15. Thus, we conclude that the year-and-a-day rule was incorporated into the laws of Wisconsin by Article XIX Section 13 of the Wisconsin Constitution and has not been altered or suspended by the legislature.

I — I I — 1

¶ 16. We next consider whether this court has the authority to abrogate the year-and-a-day rule. The defendant asserts that Article Xiy Section 13 of the Wisconsin Constitution permits only the legislature to abrogate the common law and that this court does not have the authority to abrogate the common-law year- and-a-day rule. We disagree with the defendant. It is now well established that Article XIX Section 13 did not usurp the traditional authority of the judiciary to develop the common law in Wisconsin.

¶ 17. This court addressed the effect of Article XIX Section 13 on the judiciary's power to develop the common law in State v. Esser, 16 Wis. 2d 567, 115 N.W.2d 505 (1962). Esser was an appeal by the State, in which the State argued that the trial court had misin-structed the jury when it defined the defense of insanity in terms more broad than the common-law right-wrong test. The State argued that the "right — wrong definition was part of the common law in force in the territory of Wisconsin at the time our constitution was adopted, and the constitution [Article Xiy Section 13] prohibits the courts from changing it."¹⁶

¶ 18. The Esser decision rejected the State's construction of Article Xiy Section 13. The Esser court concluded that the Wisconsin Constitution vests this court, and other courts of this state, with "judicial powers,"¹⁷ and that those judicial powers include the power to adapt and develop the common law through the judicial process.¹⁸ In light of this power, the Esser decision concluded as follows that Article Xiy Section 13 cannot be read to bar this court from changing the common law:

We conclude that the function of sec. 13, art. Xiy Wis. Const., was to provide for the continuity of the common law into the legal system of the state; expressly made subject to legislative change (in as drastic degree within the proper scope of legislative power as the legislature might see fit) but impliedly subject, because of the historical course of the development of the common law, to the process of continuing evolution under the judicial power.¹⁹

¶ 19. This conclusion does not contravene the plain words of the constitutional provision because by definition, common law is law subject to continuing judicial development, including abrogation. "[I]nherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of the common law to new situations as the need arose."²⁰ Thus, properly construed, Article Xiy Section 13 of the Wisconsin Constitution does not codify English common law circa 1776, but rather preserves law that by historical understanding is subject to continuing evolution under the judicial power.²¹

¶ 20. Decisions of this court since Esser have reaffirmed this interpretation of Article XTVJ Section 13.²² Perhaps most relevant to the case at hand is State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), in which this court affirmed its authority not only to alter but also to abrogate the common law when appropriate.

¶ 21. The Hobson decision addressed the viability of the common-law right to forcibly resist an unlawful arrest. After determining that the common-law right had been a part of the law of Wisconsin by virtue of Article Xiy Section 13 of the Wisconsin Constitution, the court went on to explain that this fact did not prevent the court from abrogating this right.²³ Indeed, based upon a thorough assessment of the issue, the court in Hobson did in fact abrogate the long-standing common-law rule, holding, "Wisconsin has recognized a privilege to forcibly resist an unlawful arrest, but based on public policy concerns, we hereby abrogate that privilege."²⁴ Hobson thus clearly demonstrates that the power to abrogate a common-law rule preserved by Article XTVJ Section 13 is not limited to the legislature, but extends to the judiciary as well.

¶ 22. The defendant also argues that even if Esser is good law, this court may not abrogate the year-and-a-day rule in this case because the legislature has specifically refused to adopt such a change and thereby expressed a policy decision to maintain the rule as good law in Wisconsin. In light of this legislative history, the defendant asserts that abrogation of the common-law rule would be an improper exercise of judicial power by developing the law in contravention of the legislative policy.

¶ 23. We disagree with the defendant's assessment of the impact legislative history has on this court's authority to alter or abrogate the year-and-a-day rule. We have long rejected the doctrine that "legislative consideration coupled with inaction [is] indicative of preemption."²⁵

¶ 24. In Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962), this court abandoned the previously held view that the legislature's refusal to enact an introduced bill amounted to "an expression by the legislature that no change should be made."²⁶ The Holytz decision announced that when the rule in question is a common-law rule, the court's responsibility for altering or abolishing that rule does not end due to legislative indifference or failure to enact a statute to the contrary. This important turning point has since been recognized in a number of decisions.²⁷

¶ 25. This court's post -Holytz decision, Sorensen v. Jarvis, 119 Wis. 2d 627, 350 N.W.2d 108 (1984), is particularly on point. In Sorensen, this court abrogated the common-law rule barring a third party injured by an intoxicated minor from recovering damages from the retail seller who sold the intoxicating beverage to the minor. The defendant in Sorensen asserted that the court was prohibited from changing the common-law rule because a recent legislative attempt to do so "was allowed to die in committee" and by this inaction a declaration of the legislative will not to change the common law was announced.²⁸ The Sorensen decision rejected this argument, concluding, "While in the past we have indicated that nonaction by the legislature could be so interpreted we have since stated that, even where there has been some evidence, arguably, of the legislature's will by its failure to act, we are not foreclosed from acting."²⁹

¶ 26. Aside from this court's pronouncement in Holytz that common law unaltered by legislation remains within the province of the judiciary to develop, the decision not to treat a legislature's failure to enact a bill overriding the common law as indicative of legislative intent is further supported by considerations of the legislative process itself. As the Sorensen decision explains, "[NJonpassage of a bill is not reliable evidence of legislative intent, for it may have failed" for a variety of nonpolicy reasons, such as insufficient time, the agenda-setting maneuverings of legislative leadership, the efforts of special interests, or lobbying efforts at a committee or floor level.³⁰

¶ 27. It would be absurd to conclude that every time a bill to change the common law was introduced but not passed by the legislature, the relevant common law effectively freezes at that moment until further action by the legislature. Indeed, such a rule would result in an unwarranted encroachment on the judicial powers of the courts by individual legislators empowered with their own personal veto over development of the common law of Wisconsin.

¶ 28. We conclude, therefore, that the fact that the legislature declined to abrogate the year-and-a-day rule when it revised the criminal code in 1955 does not bar this court from doing so.³¹

IV

¶ 29. Having decided that this court has the authority to abrogate the year-and-a-day rule, we must now determine whether the time has come to do so. Common-law rules are meant to develop and adapt to new conditions and the progress of society.³² In Esser, the court concluded that "whenever an old rule is found unsuited to present conditions or unsound, it should be set aside."³³ In Antoniewicz v. Reszcynski, 70 Wis. 2d 836, 854, 236 N.W.2d 1 (1975), the court stated that "[i]t is the tradition of common-law courts to reflect the spirit of their times and discard legal rules when they serve to impede society rather than to advance it."³⁴

¶ 30. We agree with the State that new conditions and the progress of society have rendered the year-and-a-day rule "unsuited to present conditions" and an impediment to society, and that the time has come to set it aside.

¶ 31. As the State points out, there are three traditional justifications for the year-and-a-day rule. The primary and most frequently cited justification is that because of the primitive state of medical knowledge in the thirteenth century it was not possible to establish causation beyond a reasonable doubt when a great deal of time had elapsed between the injury to the victim and the victim's death. Therefore, it was presumed that a death that occurred more than one year and one day after the assault or injury was due to causes other than the, criminal conduct.³⁵

¶ 32. Second, it has often been said that the rule arose from the early function of the jury. In early English courts, jurors decided cases by relying upon their own knowledge of the matter at issue, and could not rely upon the testimony of fact witnesses or expert witnesses. Thus, even if expert medical testimony had been adequate to establish causation at common law, it would not have been admissible.³⁶

¶ 33. Third, the rule has occasionally been characterized as an attempt to avoid the harsh result of the common law of homicides: Those convicted of homicide in any form, from first-degree to manslaughter, were subject to the death penalty.³⁷

¶ 34. None of these justifications remain persuasive for maintaining the year-and-a-day rule in Wisconsin. Advances in medical science that permit causes of death to be identified with great certainty have undermined the first justification for the year-and-a-day rule.³⁸ Modern rules of evidence giving jurors access to expert opinion testimony regarding the cause of death undermine the second justification for the rule.³⁹ Finally, since Wisconsin does not have the death penalty, the third justification for the rule can have no sway in this state.

¶ 35. In addition to the lack of any justification for continuing the year-and-a-day rule in modern society, two affirmative reasons exist for abolishing the year- and-a-day common-law rule. First, the common-law rule raises the specter of a family's being forced to choose between terminating the use of a life-support system and allowing an accused to escape a murder charge.⁴⁰ Second, it is unjust to permit an assailant to escape punishment because of a convergence of modern medical advances and an archaic rule from the thirteenth century.⁴¹

¶ 36. Moreover, we agree with the State that the abrogation of the year-and-a-day rule would not deprive an accused of any fundamental right.⁴² The burden would remain "upon the prosecution to prove proximate causation — that death flowed from the wrongful act of the defendant."⁴³ As one court has observed:

Of course, abolition of the rule would not relieve the prosecution of its duty to prove all of the elements of the crime, including proximate causation, beyond a reasonable doubt. A murder conviction which rests upon uncertain medical speculation as to the cause of death is not a case which has been proved beyond a reasonable doubt. Fears about murder convictions for death 5, 10, or even 20 years after the injury are therefore unfounded where proximate cause is proven beyond a reasonable doubt. If such proof is available, the conviction is justified.⁴⁴

¶ 37. In short, we are persuaded that the year- and-a-day rule has outlived its various justifications and therefore now join the many states that have abrogated the rule.⁴⁵

V

¶ 38. Having abrogated the year-and-a-day rule, the remaining issue we address is the applicability of this abrogation of the common-law rule to the defendant in the case at hand.

¶ 39. The United States Supreme Court has made it clear that this court has the authority to abrogate the year-and-a-day common-law rule prospectively or retroactively. In Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364 (1932), Justice Cardozo, writing for a unanimous court, affirmed a decision of the Montana Supreme Court to overrule precedent purely prospectively — that is, to apply the new rule only to future conduct — explaining: "We think the Federal Constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward."⁴⁶

¶ 40. More recently, Justice Sandra Day O'Connor, writing for a five-justice majority in Rogers v. Tennessee, 532 U.S. 451 (2001), declared that the Tennessee Supreme Court had the authority to abrogate the year-and-a-day rule retroactively without violating the federal constitution.

¶ 41. These decisions make clear that state courts must decide for themselves whether to abrogate the common-law year-and-a-day rule prospectively or retroactively, and so we turn to Wisconsin case law for guidance.

¶ 42. This court has faced the question of prospective versus retroactive overruling of a common-law rule in several cases. The court has stated a number of times that it, like all courts, generally adheres to the "Black-stonian doctrine," which provides that "a decision to overrule or repudiate an earlier decision is retrospective in operation."⁴⁷ The Blackstonian doctrine is based on the jurisprudential theory that "courts declare but do not make law. In consequence, when a decision is overruled, it does not merely become bad law, — it never was the law, and the later pronouncement is regarded as the law from the beginning."⁴⁸

¶ 43. The court, however, has also criticized the Blackstonian doctrine because it "leads to a strict and unyielding adherence to. the rule of stare decisis and interferes with the progress of the law."⁴⁹ Furthermore, inequities can arise when a court departs from precedent and announces a new rule.⁵⁰ Accordingly, the court has recognized exceptions to the Blackstonian doctrine and has employed the technique known as prospective overruling, or "sunbursting," to soften or limit the impact of a newly announced rule.⁵¹

¶ 44. In Harmann v. Hadley, 128 Wis. 2d 371, 377, 382 N.W.2d 673 (1986), we explained that there are no easy-to-follow rules or consistent guidelines directing courts on whether or how to sunburst a decision. Courts must make the decision based upon the "equities peculiar to a given rule or case."⁵²

¶ 45. The decision to overrule a rule of law purely prospectively is therefore a "question of policy."⁵³ The most common reason for prospective overruling is to protect the reliance interests of individuals and institutions that have ordered their affairs under the prior legal regime. Other interests, however, are also implicated when a court overrules past precedent.⁵⁴ A free and democratic society requires stability in the law, and retroactive changes in the law jeopardize the courts' own institutional reliance on announced law. Our society also values the efficient administration of justice, and applying a new rule retroactively often imposes an added burden on the judicial institution. Moreover, retroactive application of criminal responsibility may be viewed as tarnishing the rule of law and institutional adherence to the law, thus tarnishing the "image of justice."⁵⁵

¶ 46. Purely prospective overruling frequently reduces the impairment of these interests and mitigates any hardships that result from a decision to change the law. Judge Thomas E. Fairchild, then judge of the Court of Appeals for the Seventh Circuit and former Wisconsin Supreme Court justice, explains that the use of the sunbursting technique relieves some pressure against departure from precedent and serves the same social interest in stability that is the root of stare decisis.⁵⁶

¶ 47. With respect to criminal cases, Wisconsin courts have expressed reservations about retroactive overruling of judge-made substantive criminal laws, making acts criminal that were not considered criminal when they occurred. In Laabs v. Tax Commission, 218 Wis. 414, 417, 261 N.W. 404 (1935), this court explained that the Blackstonian presumption of retroactivity should be abandoned where a criminal statute "which has received a limited construction by earlier decisions, has been so expanded in meaning by the later overruling decision as to make acts criminal which were not such under earlier decisions, and the later decision is sought to be applied to one whose acts were committed before the statute was given the enlarged construction."⁵⁷

¶ 48. Commentaries uniformly recognize the hardships created by retroactive application of judicial decisions expanding substantive criminal laws.⁵⁸ Chief Justice Roger J. Traynor of the California Supreme Court (ret.) explained that the problem of "retroactive versus prospective application calls for the most sensitive balancing of competing claims to justice in the area of criminal law."⁵⁹

¶ 49. An argument can be made for retroactive application of the new rule to this case. The defendant here committed a criminal act, a battery against another person, ultimately resulting in death. Battery is recognized as criminal conduct regardless of the year- and-a-day rule, and the defendant cannot claim his conduct was lawful when he inflicted the injury. Furthermore, the criminal law accords high value to the preservation of individual life, and this defendant violently took a life.

¶ 50. We conclude, however, that a stronger argument can be made for purely prospective application of the new rule in this case. Our legal system accords high value to the rule of law and institutional adherence to the law. Although overruling the year-and-a-day rule does not mark the defendant's conduct in the case at hand as criminal for the first time, abrogating the year-and-a-day rule nevertheless creates criminal liability for a different crime, the crime of first-degree reckless homicide, where no such liability previously existed. By abrogating the year-and-a-day rule, we have altered the law after the defendant committed the crime. When the defendant battered the victim in this case, he was guilty of the crimes of aggravated battery and substantial battery, but not of violating Wis. Stat. § 940.02(1), which punished a person for recklessly causing the death of another human being within one year and one day of the conduct that showed utter disregard for human life.

¶ 51. In 1996, the defendant in the present case pled guilty to substantial battery and aggravated battery for his altercation with the victim and was sentenced to 15 years in prison. Then, more than two years later, the defendant was charged and convicted of first-degree reckless homicide for his part in that same altercation. Under the year-and-a-day rule in existence at that time, the State's prosecution was barred. The defendant in the present case was thus assured by the law that he was safe from the State's pursuit on a murder charge.

¶ 52. The bar on the State's ability to prosecute the defendant for murder is removed for the first time today, by this court's decision to abrogate the year-and-a-day rule. Thus, the decision today, if applied to the defendant, revives the State's ability to bring this second prosecution for murder. Judge Learned Hand artfully stated, when describing the problem with extending a criminal statute of limitation after it has already expired, that "for the state to assure a man that he had become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest."⁶⁰

¶ 53. As Chief Justice Roger J. Traynor ominously warned, permitting retroactive application of expanded criminal laws as a general proposition threatens the liberty interests of everyone within a free and open society:

The first among them to be criminally prosecuted may be those whose offenses are so close to specified crimes as to seem properly punishable. But each such punishment broadens the area of prosecution and the number of those who may be caught in it. No one can forget that in our own time, in purportedly civilized countries, millions have thus been caught who have committed no greater offense than to be themselves.⁶¹

¶ 54. Abrogating the year-and-a-day rule retroactively and thereby expanding the construction of § 940.02(1) — as well as all other homicide statutes in Wisconsin — undermines stability in the law and tarnishes the image of justice.

¶ 55. First, retroactive abrogation of the year- and-a-day rule would affect more than just the defendant in this case. There is no statute of limitations on a homicide prosecution in Wisconsin.⁶² Consequently, retroactive abrogation of the common-law rule will put many other individuals who committed similar crimes —some decades ago and some who have already served time for their crimes and been released — in jeopardy of new prosecutions.⁶³

¶ 56. Moreover, permitting the prosecution of these individuals for the same conduct for which they have already served time paints our criminal justice system with a brush of arbitrariness. Which of these individuals may actually be prosecuted could depend on a variety of arbitrary factors, including whether or not evidence has been preserved, the availability of resources in a given county to charge the accused again, and the age and health of the perpetrator. Liberty should not hinge on such chance events.⁶⁴

¶ 57. Consequently, we conclude that the year- and-a-day rule should be overruled purely prospectively. Prosecutions for murder in which the conduct inflicting the death occurs after the date of this decision are permissible regardless of whether the victim dies more than a year and a day after the infliction of the fatal injury. Although the defendant in the present case is not punished for the death of the victim and relatives and friends of the victim are not vindicated by our decision today, the defendant does not go unpunished. The defendant's conviction for aggravated battery and substantial battery stands. His sentence of 15 years imprisonment stands. Thus, important values in our society have been preserved.

¶ 58. In addition, we have expanded the construction of a statute through abrogation of the common-law year-and-a-day rule so that hereafter persons can be convicted of murder even though the death of the victim occurs more than a year and a day after the act inflicting the injury.

¶ 59. We recognize that there are different methods of prospective overruling and that one of the most common is to apply a change in the law prospectively in all cases except the one before the court that has served as the impetus for change. The reasons justifying this approach, however, are not present in the case at hand.

¶ 60. Courts and commentaries alike cite two reasons for applying a new rule of law to the parties in the case where the rule is announced and prospectively. The first is that to do otherwise would relegate the announced change in law to the status of mere dicta.⁶⁵

¶ 61. Wisconsin, of course, does not always recognize intentionally answered questions of law in judicial decisions as nonbinding dicta. "It is deemed the doctrine of the cases is that when a court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision."⁶⁶ Following this doctrine, prior decisions of this court have announced rules to be applied purely prospectively.⁶⁷

¶ 62. The second reason is that it is necessary to apply the new rule to the party that challenges the old law as a reward to encourage others to continue to bring claims to the courts.⁶⁸ In the case at hand, it is the defendant who has raised the claim of the application of the common-law rule. It is hardly a reward to the defendant to abrogate the year-and-a-day rule in his case. Such a decision would uphold his conviction for first-degree reckless homicide.

¶ 63. Even if it is more accurate to recognize the State as bringing the claim in this case by prosecuting the defendant for conduct that caused death more than one year and one day later, the State does not need the encouragement to press claims that other litigants might. Ordinarily a private party who raises an issue is in court for that case only and gains nothing if the new rule does not apply to it. In contrast, the State litigates frequently and is a repeat player in criminal cases. The State gains even if the new rule applies only prospectively. While barred from prosecuting the defendant in this case, the State gets the benefit of the rule in the future from the ability to bring homicide prosecutions unencumbered by this archaic common-law rule.

¶ 64. For the reasons set forth, we conclude that the year-and-a-day rule should be overruled purely prospectively. Accordingly we reverse the judgment and order of the circuit court and remand the cause to the circuit court to dismiss the criminal complaint.

By the Court — The judgment and order of the circuit court are reversed and the cause remanded.

1 All subsequent references to the Wisconsin Statutes are to the 1999-2000 version of the statutes unless otherwise indicated.

2 Wisconsin Stat. § 939.74 reads, in relevant part, as follows: "Time limitations on prosecutions ... (2) Notwithstanding that the time limitation under sub. (1) has expired: (a) A prosecution under ss. 940.01, 940.02, or 940.04 may be commenced at any time."

Wisconsin has had a criminal statute of limitations since 1849. Wis. Stat. ch. 146, § 2 (1849). A statute of limitations has thus always coexisted with the year-and-a-day rule in Wisconsin.

3 The substantial battery charge was based upon injuries sustained by another person involved in the fight. Neither of the battery charges is at issue in the present case.

4 The combined sentence for both battery charges was 15 years.

5 Wisconsin Stat. § 940.02(1) reads: "Whoever recklessly causes the death of another human being under circumstances which show utter disregard for human life is guilty of a class B felony."

Wisconsin Stat. § 939.05 reads:

Parties to crime. (1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.

6 In addition to raising the year-and-a-day common-law rule, the defendant argued that the circuit court erred by not instructing the jury on the lesser-included offense of aggravated battery He also argued, in the alternative, that he deserved a sentence modification. Because of our holding, we need not reach these additional issues.

7 See, e.g., State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998) (Article XTV( Section 13 preserves the English common law in the condition in which it existed at the time of the American Revolution until modified or abrogated); Davison v. St. Paul Fire & Marine Ins. Co., 75 Wis. 2d 190, 248 N.W.2d 433 (1977) (the common law to which Article Xiy Section 13 applies has consistently been defined as the law arising from English court decisions rendered prior to the Revolutionary War).

8 United States v. Jackson, 528 A.2d 1211, 1214 (D.C. 1987); State v. Ruesga, 619 N.W.2d 377, 380 (Iowa 2000); People v. Stevenson, 331 N.W.2d 143, 145 (Mich. 1982); State v. Vance, 403 S.E.2d 495, 498 (N.C. 1991).

9 Charles E. Torcia, 2 Wharton's Criminal Law § 118, at 151-52 (15th ed. 1994).

For an historical analysis of the evolution of the year-and-a-day rule, see Donald E. Walther, Taming a Phoenix: The Year-and-a-Day Rule in Federal Prosecutions for Murder, 59 U. Chi. L. Rev. 1337 (1992).

10 See, e.g., Jackson, 528 A.2d at 1214.

11 The rule apparently has never been discussed in Wisconsin case law except in a territorial case. See Mau-zau-mau-ne-kah v. United States, 1 Pin. 124 (Wis. Terr. 1841).

12 United States v. Chase, 18 F.3d 1166, 1172 (4th Cir. 1994).

13 It was agreed that the 1953 version of the criminal code, including the provision abolishing the year-and-a-day rule, would go into effect in 1955 provided that the 1955 legislature voted to enact it. In the interim, a criminal code advisory committee was created to study the code and propose amendments. See § 282, ch. 623, Laws of 1953. One of the changes made by the committee was to remove the provision abolishing the year-and-a-day rule. The committee eventually created a "wholly new bill" that was enacted by the 1995 legislature. The 1955 act repealed the 1953 version of the criminal code. Thus, when the 1955 legislature enacted a criminal code, it did not include the provision abolishing the year-and-a-day rule. See William A. Platz, The Criminal Code, 1956 Wis. L. Rev. 350, 351-52.

14 § 393.15, ch. 623, Laws of 1953.

15 Platz, supra note 13, at 363 (citations omitted).

16 State v. Esser, 16 Wis. 2d 567, 571, 115 N.W.2d 505 (1962). This argument is substantially similar to the argument raised by the defendant in the present case.

17 Wis. Const, art. VII, §2.

18 The court stated in Esser:

Just as common law principles and rules have been recognized or developed in part through the judicial process, so the further adaptation and development of them must be part of the judicial power. The court may modify the common law, adopting such of its principles as are applicable and rejecting such others as are inapplicable.

Esser, 16 Wis. 2d at 581.

19 Esser, 16 Wis. 2d at 584 (citations omitted).

20 Bielski v. Schulze, 16 Wis. 2d 1, 11 n.35, 114 N.W.2d 105 (1962).

21 The defendant asserts that the discussion in Esser affirming the power of the judiciary to develop the common law is dicta, unnecessary to the holding of the case, and contrary to the language of Article XTV( Section 13. We agree with the State, however, that the conclusion reached by the Esser decision was essential to the issue in the case.

22 See, e.g., Sorensen v. Jarvis, 119 Wis. 2d 627, 633, 350 N.W.2d 108 (1984) ("[A]s a part of our common law heritage, this court is free to amend the common law ...."); Davison, 75 Wis. 2d at 201 ("There is now no question that this court can. . . change existing common law principles."); Garcia v. Hargrove, 46 Wis. 2d 724, 731, 176 N.W.2d 566 (1970) ("The fact a common law rule was in effect when the Wisconsin Constitution was adopted does not mean this court is 'bound by the common law' and unable to change the law when it no longer meets the economic and social needs of society.").

23 Hobson, 218 Wis. 2d at 370 ("We agree with the State that this court may adopt or refuse to adopt such a privilege.").

24 Id. at 379-80.

25 Garcia, 46 Wis. 2d at 732. For a discussion of court rules of statutory interpretation relating to legislative conduct as a legal fiction, see Jane S. Schacter, The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History Debate and Beyond, 51 Stan. L. Rev. 1 (1998).

26 Holytz v. City of Milwaukee, 17 Wis. 2d 26, 37, 115 N.W.2d 618 (1962) (citing Schwenkoff v. Farmers Mut. Auto. Ins. Co., 6 Wis. 2d 44, 47 (1959)).

27 See, e.g., Goller v. White, 20 Wis. 2d 402, 412, 122 N.W.2d 193 (1963) (explaining that the court retains power to change a court-made rule even though the legislature refused to make the change).

28 Sorensen, 119 Wis. 2d at 634.

29 Id. at 634 (citation omitted).

30 Id. at 634-35.

31 Nor is Wis. Stat. § 939.10 a prohibition on judicial development of common-law criminal rules. Section 939.10 provides that "common law rules of criminal law not in conflict with the criminal code are preserved." As the court in Esser concluded, preserving common-law rules is distinctly different from requiring that common-law rules must be "applied without change." Esser, 16 Wis. 2d at 585.

32 Esser, 16 Wis. 2d at 582.

33 Id. (quoting 11 Am. Jur. Common Law § 2 (1937)).

34 The majority in Antoniewicz v. Reszcynski, 70 Wis. 2d 836, 854, 236 N.W.2d 1 (1975), went on to quote from Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209 (1911), as follows: "[T]he conditions and problems surrounding the people, as well as their ideals, are constantly changing. The political or philosophical aphorism of one generation is doubted by the next, and entirely discarded by the third. The race moves forward constantly ...." Id. at 349. Although Borgnis dealt with an issue of constitutional interpretation, the Antoniewicz court found this rationale applicable to changes in the common law.

35 See Rogers v. Tennessee, 532 U.S. 451, 463 (2001).

36 See Jackson, 528 A.2d at 1216; Ruesga, 619 N.W.2d at 380; Commonwealth v. Lewis, 409 N.E.2d 771, 773 (Mass. 1980); Stevenson, 331 N.W.2d at 146; State v. Rogers, 992 S.W.2d 393, 397 (Tenn. 1999).

37 See Jackson, 528 A.2d at 1216; Ruesga, 619 N.W.2d at 380; Lewis, 409 N.E.2d at 773; Commonwealth v. Ladd, 166 A.2d 501, 506 (Pa. 1960); State v. Rogers, 992 S.W.2d at 397.

38 See Rogers v. Tennessee, 532 U.S. at 463; Jackson, 528 A.2d at 1216, 1220; Lewis, 409 N.E.2d at 773; Stevenson, 331 N.W.2d at 146; State v. Sandridge, 365 N.E.2d 898, 899 (Ohio Ct. Com. Pleas 1977); State v. Rogers, 992 S.W.2d at 401; 2 Wayne R. LaFave & Austin W Scott, Substantive Criminal Law § 7.1, at 190 (1986).

39 See Sandridge, 365 N.E.2d at 899; State v. Rogers, 992 S.W.2d at 401.

40 Jackson, 528 A.2d at 1217 n.14; Stevenson, 331 N.W.2d at 146.

41 Ruesga, 619 N.W.2d at 382; State v. Gabehart, 836 P.2d 102, 105 (N.M. Ct. App. 1998).

42 Sandridge, 365 N.E.2d at 899.

43 Id.

44 Stevenson, 331 N.W.2d at 146.

45 See Ruesga, 619 S.W.2d at 380 ("The great majority of states ... have abrogated the rule, judicially or legislatively.").

46 In Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932), the Montana Supreme Court had overruled its own 1921 decision, applied the old rule to the case at hand arising out of events that occurred while the old rule was in existence, and declared that the new rule only governed conduct arising thereafter. The United States Supreme Court declared that the state court's wholly prospective overruling of a rule of law was constitutional.

47 Harmann v. Hadley, 128 Wis. 2d 371, 377, 382 N.W.2d 673 (1986) (quoting Fitzgerald v. Meissner & Hicks, Inc., 38 Wis. 2d 571, 575, 157 N.W.2d 595 (1968)); Laabs v. Tax Comm'n, 218 Wis. 414, 416-17, 261 N.W 404 (1935).

48 Laabs, 218 Wis. at 416-17.

49 Id. at 417 (emphasis in original).

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51 See Harmann, 128 Wis. 2d at 377-78.

Courts have employed the prospective overruling technique for over a century. Walter V Schaefer, The Control of "Sunbursts": Techniques of Prospective Overruling, 42 N.Y.U. L. Rev. 631, 631-33 (1967).

The word "sunbursting" derives from the name of one of the parties in Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932), in which the Court limited its decision to future conduct.

52 Harmann, 128 Wis. 2d at 379.

53 Harmann, 128 Wis. 2d at 378. See also Thomas E. Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only: "Prospective Overruling" or "Sunbursting", 51 Marq. L. Rev. 254, 254 (1967-68) ("We employ the technique of prospective overruling as an exceptional expedient when the traditional retroactivity would wreak more havoc in society than society's interest in stability will tolerate."); Roger J. Traynor, Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility, 28 Hastings L.J. 533, 541-42 (1977) ("A court usually will not overrule a precedent even if it is convinced that the precedent is unsound, when the hardship caused by a retroactive change would not be offset by its benefits. The technique of prospective overruling enables courts to solve this dilemma by changing bad law without unsettling the reasonable expectations of those who relied on it.").

54 See Laabs, 218 Wis. at 417; Thomas S. Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va. L. Rev. 201, 235-38, 254-55 (1965). In Dupuis v. General Casualty Co., 36 Wis. 2d 42, 45-46, 152 N.W.2d 884 (1967), the court said that the elements of order, system, predictability, and reliance are to be considered in determining whether a compelling judicial reason exists for making a court decision purely prospective.

55 Currier, supra note 54, at 254-55.

56 Fairchild, supra note 53, at 254.

57 This portion of Laabs has been quoted with approval in Fitzgerald v. Meissner & Hicks, Inc., 38 Wis. 2d at 576.

58 See, e.g., Currier, supra note 54, at 240-41, 252-72; Fairchild, supra note 53, at 256.

59 Traynor, supra note 53, at 548.

60 Falter v. United States, 23 F.2d 420, 425-26 (2d Cir. 1928) (quoted with approval in State v. Haines, 2003 WI 39, ¶ 11, 261 Wis. 2d 139, 661 N.W.2d 72).

61 Traynor, supra note 53, at 550-51.

62 See Wis. Stat. § 939.74(2)(a).

63 Nothing in the record indicates how many individuals this decision might affect. A brief case search, however, reveals that the issue may be present in another case making its way through the Wisconsin court system. See State v. McKee, 2002 WI App 148, ¶ 21 n.8, 256 Wis. 2d 547, 648 N.W.2d 34.

64 "It is a fundamental ethical requirement that like cases should receive like treatment, that there should be no discrimination between one litigant and another except by reference to some relevant differentiating factor. The value of equality is at the root of our system of justice." Currier, supra note 54, at 237.

65 Fairchild, supra note 53, at 256.

66 State v. Kruse, 101 Wis. 2d 387, 392, 305 N.W.2d 85 (1981) (quoting Chase v. Am. Cartage, 176 Wis. 235, 238, 186 N.W. 598 (1922)). Other cases, however, assert the generally accepted doctrine that "a statement not addressed to the question before the court or necessary for its decision" is dictum, Am. Family Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560, 565, 356 N.W.2d 175 (1984), and not binding on the court, Reiter v. Dyken, 95 Wis. 2d 461, 474, 290 N.W.2d 510 (1980).

67 See, e.g., Hobson, 218 Wis. 2d 350, 381 (common-law defense of resisting an unlawful arrest in the absence of unreasonable force abrogated prospectively only; court refused to apply abrogation retroactively to Hobson); Sparkman v. State, 27 Wis. 2d 92, 98, 133 N.W.2d 776 (1965) (on grounds of public policy this court adopted rule for prospective application only that an indigent is entitled to appointed counsel at or prior to a preliminary hearing unless counsel is intelligently waived); State ex rel. Sonneborn v. Sylvester, 25 Wis. 2d 177, 179, 130 N.W.2d 569 (1964) (order taking original jurisdiction stated that any declaration of invalidity of the statute has prospective effect only).

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