State v. Schulz

307 N.W.2d 151, 102 Wis. 2d 423, 1981 Wisc. LEXIS 2772

• Court: Wisconsin Supreme Court
• Decided: June 30, 1981
• Docket: 79-942-CR
• Status: Published

Opinions

BEILFUSS, C. J.

This is a review of a decision of the court of appeals which affirmed the judgment of conviction of the circuit court for Dane county: MICHAEL B. TORPHY, JR., Circuit Judge.

Gerald A. Schulz (defendant) was convicted of the crime of first-degree murder in violation of sec. 940.01, Stats. The issue in this review is the constitutional validity of the jury instructions given by the trial judge on the defense of voluntary intoxication.

On June 19, 1978, the defendant was charged with the June 3rd murder of Randall S. Quandt. A trial to a jury was conducted in December of that year.

At the trial the evidence demonstrated that the defendant was romantically involved with Susanne M. Liddle in early 1978. In May of 1978 she broke off the relationship, telling the defendant that she wanted to see other men. The defendant was very upset. The victim, Randall Quandt, was a person whom Sue Liddle associated with after ending her relationship with the defendant.

The record reflects that during the day of June 2, 1978 (particularly the night of June 2nd) and the early morning hours of June 3, 1978, the defendant visited several bars and drank intoxicants extensively. After the local taverns had closed on the morning of June 3rd, the defendant set out to locate Sue Liddle. He claims that he remembers nothing after this point in time. There was also considerable evidence by state witnesses that he did not seem to be intoxicated.

The testimony of witnesses at trial established that at about 3 a.m., the defendant found Ms. Liddle. She was in the- company of Randall Quandt. After a brief conversation in the parking lot of an apartment complex where Quandt and Liddle were attending a party, the defendant produced a gun and shot and killed the victim.

The major issue at the trial of this case was whether the defendant intended to kill Randall Quandt. The defense relied on Schulz’s excessively intoxicated state as evidence of the nonexistence of a specific intent to kill.

At the close of the trial the judge instructed the jury on both first- and second-degree murder. The jury was also instructed on the matter of intoxication and the role it should play in its deliberative process. This instruction was given as follows:

“The defense of intoxication is an issue in this case. The Criminal Code of Wisconsin provides that an intoxicated condition is a defense if such condition negatives the existence of a state of mind essential to the crime.

“Ordinarily intoxication will not relieve a person from responsibility for his criminal act. However, where a certain state of mind or intent is an essential element of the crime, an accused is not guilty if at the time of the commission of the criminal act he was so intoxicated that he was unable to form the essential intent or have the essential mental state.

“In this case the defendant is charged with the crime of first degree murder which one of the essential elements is intent to kill the Defendant and claims that, at the time of the outlined offense, his condition from the use of intoxicating beverages was such that he did not form such intent.

“To be relieved of responsibility for his actions it’s not enough for the Defendant to establish that he was under the influence of intoxicating beverages. He must establish that the degree of intoxication — he must establish that — I’ll start that over, again. He must establish that degree of intoxication that means he was utterly incapable of forming the intent requisite on the commission of the crime charged.

“If you have any reasonable doubt as to whether or not he was so intoxicated, you must give the Defendant the benefit of that doubt and not find him guilty of first degree murder.

“Evidence has been received that a sample of the Defendant’s blood was taken and evidence of analysis of such blood sample has been received. The law provides that the presence of one tenth of one percent or more by weight of alcohol in a person’s blood, when coupled with corroborating physical evidence, is a sufficient evidence for finding that a person was under the influence of an intoxicant.

“You may consider this evidence along with all other evidence in this case in making your determination as to whether or not the defense of intoxication, as that defense has been instructed to you, has been met.”

The jury found the defendant guilty of first-degree murder. Motions for a new trial were denied, and a judgment of conviction was entered.

The defendant appealed, claiming, inter alia, that the above-quoted jury instruction impermissibly shifted the burden of persuasion to him. In an unpublished opinion the court of appeals affirmed the conviction. The defendant’s petition for review was subsequently granted.

The sole question presented by this review is whether the jury instructions given at the trial denied the defendant of his right to the due process of law.

It is argued before this court that the jury charge could have been interpreted by a reasonable juror as placing on the defendant the burden of persuading the jury that he lacked the specific intent to kill due to intoxication. Citing a line of cases beginning with In re Winship, 397 U.S. 358 (1970), and ending with the recent decision in Sandstrom v. Montana, 442 U.S. 510 (1979), the defendant claims that this instruction violated his right to due process. We agree.

The instruction of the jury is a crucial component of the fact-finding process. The jury as trier of fact is given the responsibility of making a determination of guilt or guiltlessness in light of the jury charge, and the validity of that determination is dependent upon the correctness of the instructions which are given. 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. This principle was set forth in Sandstrom v. Montana, supra, 442 U.S. at 514, and was recognized by this court in our decision in Muller v. State, 94 Wis.2d 450, 477-78, 289 N.W.2d 570 (1980). It is this rule which guides our discussion in this case.

As we have previously noted, it is axiomatic in the law that the state bears the burden of proving all elements of a crime beyond a reasonable doubt. Id. at 473; In re Winship, 397 U.S. 358 (1970). This burden of persuasion remains with the state throughout the trial, and as to any element the burden cannot be shifted to the defendant.

The leading United States Supreme Court cases which address the matter of shifting the burden of persuasion are Mullaney v. Wilbur, 421 U.S. 684 (1975) and Patterson v. New York, 432 U.S. 197 (1977).

In Mullaney, the defendant was charged with the murder of Claude Hebert. In a statement given to police, the defendant Wilbur said that his fatal attack on Hebert was the result of a state of frenzy provoked by the victim’s homosexual advance. At trial the defendant offered no evidence, but counsel argued that, inter alia, Wilbur’s act of homicide was manslaughter and not murder because Wilbur acted in the heat of passion. In light of the applicable state criminal law, Wilbur’s jury was instructed that murder and manslaughter were two recognized kinds of felony homicide. Both murder and manslaughter required as elements of proof that the killing be intentional and without justification or excuse. As compared with manslaughter, murder also required proof of “malice aforethought.” The jury was instructed, however, that malice aforethought was to be conclusively implied if the prosecutor established the basic elements of felony homicide, i.e., that the killing was intentional and without justification or excuse, unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion on sudden provocation. The court found this placement of the burden of persuasion to be violative of the principles enunciated in the Winship decision. As explained in a later case, Patterson v. New York, supra, 432 U.S. at 215-16, the absence of provocation was identical with “malice aforethought” and was tantamount to an element of the crime of murder. Therefore the state could not place the burden of proof on the defendant as regards that “element.”

The court was confronted with a similar situation in its decision in Patterson v. New York, 432 U.S. 197 (1977). In that case the defendant was also charged with murder. Under New York statutory law, the crime of murder involved proof of (1) an intent to cause the death of another, and (2) actual causation of the death. Manslaughter was defined under state law as the intentional killing of a person “ ‘under circumstances which do not constitute murder because [the defendant] acts under the influence of extreme emotional disturbance.’ ” The jury was instructed that the defendant had the burden of proving by a preponderance of the evidence that he acted under extreme emotional disturbance when he killed his victim. The United States Supreme Court held that the defendant was not denied his due process rights by virtue of having to assume the burden of persuasion as to the element of emotional' disturbance. The court looked to the statutorily defined elements of murder and concluded that the evidence of extreme emotional disturbance was not an element of the crime. The court wrote:

“This affirmative defense [of extreme emotional disturbance] . . . does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion; and unless we are to overturn Leland and Rivera, New York has not violated the Due Process Clause, and Patterson’s conviction must be sustained.” 432 U.S. at 206-07.

After the Patterson decision, a state may place a burden of proof on a defendant with respect to a question of fact provided that this affirmative defense “does not serve to negative any facts of the crime which the State is to prove in order to convict. . . .” Id. In the context of this case the question is whether the issue of intoxication is an affirmative defense or whether it is an attack on an element of the crime of murder. If it is the latter, then the state bears the burden of proving this element beyond a reasonable doubt.¹

Sec. 939.42(2), Stats., provides that an intoxicated condition is a defense if such a condition “[n]egatives the existence of a state of mind essential to the crime.” The “intent to kill” is an element of the crime of first-degree murder. When the defendant introduces evidence to demonstrate that, because of his intoxicated state, he did not intend to kill his victim, the accused seeks to negate a fact which the state must prove in order to convict the defendant of murder. This is the type of negative defense which was contemplated by the decisions in Mullaney and Patterson. When such a defense is asserted, the burden of persuasion cannot be placed upon the defendant without violating his right to due process of law.

Although the accused may not be required to assume a burden of persuasion relative to his “defense” of intoxication, this is not to say that in every case the state must prove the absence of intoxication beyond a reasonable doubt. The principles of due process are not violated if a burden of production — as opposed to a burden of persuasion — is placed upon the accused to come forward with “some” evidence in rebuttal of the state’s case. See Muller v. State, supra, 94 Wis.2d at 476-77. See also Mullaney v. Wilbur, supra, 421 U.S. at 701, n. 28. In order to place intoxication in issue in a given case, it will be necessary for the defendant to come forward with some evidence of his impaired condition. This evidence must be more than a mere statement that the defendant was intoxicated. The evidence must be credible and sufficient to warrant the jury’s consideration of the issue as to whether the defendant was intoxicated to the extent it materially affected his or her ability to form the requisite intent. The test which the trial court must apply is whether, construing all the evidence produced most favorably to the defendant, a reasonable juror could conclude that the defendant’s state of intoxication — in the words of the statute — “negative [d] the existence of a state of mind essential to the crime.” Upon the production of such evidence the burden will be upon the state to prove beyond a reasonable doubt that the defendant’s consumption of alcohol or drugs did not negate the existence of a state of mind necessary to fix criminal liability. In his discretion, the prosecutor may elect to provide additional evidence in rebuttal of the defense or the prosecutor may choose to stand on the basis of the proof he submitted in the case-in-chief.

Having concluded that the defense of intoxication is a “negative defense” which attacks an element of crime charged in a murder prosecution, we must consider whether the jury instructions given in this case adequately set forth the burden of persuasion on the issue of intoxication. We hold that a reasonable juror could have misunderstood the allocation of the burden of proof. Therefore we conclude that the jury instructions were tainted and this taint impaired the integrity of the jury determination.

The taint of the instruction is important in this case because intoxication was the major, if not the only, defense the defendant had to the charge of first-degree murder. He does not contest the fact that he shot and killed the deceased. He does not dispute that he is guilty of some degree of criminal homicide. His claim is that he was intoxicated to the degree that he was unable to form the requisite intent to warrant a conviction of first-degree murder.

The jury charge relating to intoxication was not the standard instruction.² At the request of the prosecutor, a paragraph was added. That paragraph provided:

“To be relieved of responsibility for his action, it is not enough for a defendant to establish that he was under the influence of intoxicating beverages. He must establish that degree of intoxication that means he was utterly incapable of forming the intent requisite to the commission of the crime charged.” (Emphasis supplied.)

During the course of the instructions, the record reflects that the judge had difficulty reading this instruction. As a result, the trial judge repeated the phrase “he must establish” three times while reading the single paragraph quoted above.

Shortly after reading this language to the jury the judge concluded his instruction on intoxication with the following direction: .

“You may consider this evidence along with all other evidence in this case in making your determination as to whether or not the defense of intoxication . . . has been met."

The state argues that these instructions did not constitute constitutional error because they merely instructed the jury that the defendant had a burden of production and not persuasion. It is also argued that the jury charge is an accurate statement of the law which has been previously approved in State v. Johnnies, 76 Wis.2d 578, 251 N.W.2d 807 (1977).

We do not read the above-quoted passages as merely informing the jury of the defendant’s burden of production. The language easily could have led a reasonable juror to conclude that before a verdict of not guilty of first-degree murder could be returned, the defendant had to convince him or her that a reasonable doubt existed regarding the defendant’s intent to kill. This is clearly not the law. If, upon a consideration of all the evidence, a finder of fact is waivering between a finding of guilty or not guilty, the risk of non-persuasion must be borne by the state, and any indecision must be resolved in favor of the defendant.

We consider to be improper the suggestion to the jury that the defendant had to “establish” that he was “utterly incapable” of forming the intent to kill and that the jury’s job was to decide whether this defense had been met. On balance, this language overshadowed the proper instruction to the effect that the defendant must be given the benefit of any reasonable doubt.

It cannot be denied that much of the language used by the trial judge in the revised instruction has been a part of the law of the criminal defense of intoxication. It may be traced to the court’s opinion in State v. Guiden, 46 Wis.2d 328, 331, 174 N.W.2d 488 (1970), wherein Justice ROBERT W. HANSEN wrote:

“The ‘intoxicated or drugged condition’ to which the statute refers is not the condition of alcohol-induced incandescence or being well-lit that lowers the threshold of inhibitions or stirs the impulse to criminal adventures. It is that degree of complete drunkenness which makes a person incapable of forming intent to perform an act or commit a crime. To be relieved from responsibility for criminal acts it is not enough for a defendant to establish that he was under the influence of intoxicating beverages. He must establish that degree of intoxication that means he was utterly incapable of forming the intent requisite to the commission of the crime charged.”

This portion of the Gulden opinion has been cited in a series of leading cases on the defense of intoxication in the past.³

The language of the Gulden opinion may well be an accurate reflection of the state of the law as it relates to an appellate determination of sufficiency of the evidence⁴ or to a trial court’s decision to instruct a jury on intoxication in the first instance.⁵ We hold, however, that such language has no place in the instruction of a jury on the issue of intoxication because of its tendency to lead a reasonable juror to misinterpret the proper allocation of the burden of persuasion in a criminal case.

The decision in the case of State v. Johnnies, 76 Wis.2d 578, 251 N.W.2d 807 (1977), is not precedent which controls the issue presented by this case. In Johnnies, the claim was made that the use of the Gulden language (specifically the term “complete drunkenness”) in the context of a jury instruction misstated the law of intoxication as set forth in sec. 939.42(2), Stats. 76 Wis.2d at 585. It was held that the instruction was not an incorrect statement of the law. The Johnnies Case is not authority for the proposition that the Gtdden language passes the scrutiny required under the Mullaney-Patterson rule dealing with the burden of persuasion.

It has been suggested that any error in the giving of the instructions was harmless.⁶ We have reviewed the jury instructions and we note that this is not a case where a single sentence or phrase lent itself to an impermissible interpretation which was counterbalanced by a set of jury instructions which, when read as a whole, accurately stated the law. Substantial portions of the jury instruction on intoxication were susceptible to misinterpretation. Moreover, the primary issue at trial was the intent of the defendant. In light of these considerations, it must be concluded that the error was not harmless.

As a final argument, the state claims that the defendant failed to properly object to the jury instructions and therefore this court should not provide relief for Schulz in the absence of a showing that the error affected his substantial rights.⁷ The instruction as given in this case misallocated the burden of persuasion and jeopardized the integrity of the jury determination. The defendant’s substantial rights were affected. The waiver rule should not be applied to prevent our consideration of the issue.

The verdict of the jury has its foundation in the instructions which are given at the close of the trial. Although there may be many cases where a simple misstatement of the law will — for one reason or another — be insufficient to disturb a judgment of conviction on appeal, such a situation is not presented by the instant case. The jury instructions used in the defendant’s trial could reasonably have been understood by the jury as placing upon the defendant the burden of proving that he did not intend to kill his victim. This was a violation of the defendant’s fundamental right to a presumption of innocence and to have the state prove beyond a reasonable doubt every essential element of the crime of murder. For these reasons the defendant’s judgment of conviction cannot stand, and a new trial must be ordered.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court for a néw trial.

1 Although this case presents a rather clear application of the Mullaney-Patterson rule, the difficulty of determining which facts constitute elements of a crime which must be proven in order to convict has been noted. See Jeffries and Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325 (1979).

2 Wis JI — Criminal, Part I, 765, as it applies to this case, would have read as follows:

The defense of intoxication is an issue in this case.

The Criminal Code of Wisconsin provides that an intoxicated condition is a defense if such condition negatives the existence of a state of mind essential to the crime.

Ordinarily, intoxication will not relieve a person from responsibility for his criminal acts. However, where a certain state of mind or intent is an essential element of the crime, an accused is not guilty if, at the time of the commission of the alleged criminal act, he was so intoxicated that he was unable to form the essential intent or have the essential mental state.

In this case, defendant is charged with the crime of first-degree murder of which one of- the essential elements is the intent to kill. The defendant claims that, at the time of the alleged offense, his condition from the use of intoxicating liquor was such that he did not form such intent.

If the defendant, because of his condition, was incapable of forming and, therefore, did not form the intent to kill, then you must not find him guilty of first-degree murder as charged in the information.

If you have any reasonable doubt as to whether or not he was so intoxicated, you must give the defendant the benefit of that doubt and find him not guilty of first-degree murder.

The issues presented by this review would not have arisen if this standard instruction had been used without modification.

3 See, e.g., Larson v. State, 86 Wis.2d 187, 195, 271 N.W.2d 647 (1978); Staples v. State, 74 Wis.2d 13, 21, 245 N.W.2d 679 (1976); Jones v. State, 69 Wis.2d 337, 346, 230 N.W.2d 677 (1976); State v. Nemoir, 62 Wis.2d 206, 211, 214 N.W.2d 297 (1974).

4 See, e.g,, State v. Nemoir, n. 3 at 210.

5 See, e.g., Larson v. State, n. 3 at 196-97; Jones v. State, n. 3 at 345-46.

6 We note that there remains a substantial question as to whether an instruction which runs afoul of constitutional limitations can ever be harmless. Sandstrom v. Montana, supra, 422 U.S. at 526-27.

7 The state does not argue that the defendant has waived his right to challenge the impropriety of the jury instruction. At oral argument the state indicated that its position was that the defendant should not be granted relief unless his substantial rights were affected.