Criminal Procedure
Jury Instructions – Judge’s Response to Question from Jury – Right to Unanimous Verdict
State v. Badzinski, 2014 WI 6 (filed 29 Jan. 2014)
HOLDING: The trial judge’s response to a question from the jury did not deprive the defendant of his right to a unanimous verdict nor did it mislead the jury into thinking that the victim’s credibility was irrelevant and that it could speculate beyond the evidence.
SUMMARY: The defendant, Badzinski, was charged in 2009 with sexually assaulting his niece at a holiday gathering at her grandparents’ home sometime between 1995 and 1998. At the time, the victim would have been between 4 years old and 7 years old. At trial, the victim testified that the assault occurred in the home’s laundry room. During deliberations, the jury asked the circuit court if it needed to agree on the location of the assault. The court responded “no.” The jury returned a guilty verdict.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
On appeal, the court of appeals determined that the judge’s response to the jury’s question permitted the jury to speculate beyond the evidence and, in an unpublished opinion, the court of appeals remanded the case for a new trial.
Before the supreme court, the state argued that the court of appeals erred in reversing the circuit court. The state argued that the jury did not have to unanimously agree on the location of the assault because location is not an essential element of the crime charged. The state further asserted that the court’s response of “no” did not mislead the jury into speculating beyond the evidence.
The defendant argued that the circuit court’s response of “no” deprived him of a unanimous verdict. He further contended that the circuit court’s response violated his due process rights in that it impermissibly misled the jury into believing that the victim’s credibility was irrelevant and that it could speculate beyond the evidence.
In a unanimous decision authored by Justice Bradley, the supreme court reversed the court of appeals. It concluded that the circuit court’s response did not deprive Badzinski of a unanimous verdict. Jury unanimity is required only on the essential elements of the crime. Here, the location of the crime was not one of those elements. Thus, it was not something that the jurors needed to agree on unanimously (see ¶ 51).
The supreme court further held that Badzinski failed to show that the court’s response of “no” was ambiguous or reasonably likely to cause the jury to apply the jury instructions in a manner that violates due process. Given the evidence presented (which included evidence from which the jury could have concluded that the assault occurred elsewhere in the home), the parties’ closing arguments, and the court’s other instructions, the response was unlikely to mislead the jury into believing that the victim’s credibility was irrelevant and that it could speculate beyond the evidence (see ¶ 52).
Evidence
Self-Defense – McMorris Evidence – Victim’s Character
State v. Jackson, 2014 WI 4 (filed 22 Jan. 2014)
HOLDING: The trial judge properly excluded evidence of the victim’s violent past in a homicide case in which the defendant asserted self-defense.
SUMMARY: Jackson shot and killed McCaleb during a heated argument. McCaleb was unarmed but Jackson said he thought the victim was arming himself when he shot him. Jackson was charged with first-degree intentional homicide, but a jury convicted him of second-degree reckless homicide while armed.
Jackson sought a new trial, arguing that he should have been permitted to introduce evidence of McCaleb’s record, including a violent burglary, a municipal battery case for pushing a woman, and another citation for punching a person at a party. Jackson conceded that he knew about none of these instances when he shot McCaleb. At trial, Jackson also was unable to lay a proper foundation for McCaleb’s alleged reputation for violence. The court of appeals affirmed Jackson’s conviction in an unpublished decision.
In a majority opinion authored by Justice Ziegler, the supreme court affirmed, holding that the trial judge did not abuse his discretion by excluding the evidence. Because Jackson was unaware of the victim’s past acts at the time of the shooting, they were inadmissible as McMorris evidence under Wis. Stat. section 904.04(2), that is, to prove Jackson reasonably feared for his safety. See McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973).
The specific acts were also inadmissible to prove McCaleb’s character trait for violence; such proof is limited to reputation and opinion testimony. At trial, Jackson failed to lay the necessary foundation for reputation proof (see ¶ 51). Nor was character an “essential element” of the homicide charge or Jackson’s self-defense claim such that it would have allowed use of McCaleb’s past acts. Problems with the record were exacerbated when Jackson “conflated character evidence, by reputation and specific acts, and other acts evidence in his motions before the circuit court” (¶¶ 53, 78). Finally, any error was harmless.
Justice Bradley concurred, agreeing with the majority that any error was harmless but joining the part of the dissent that contends that Jackson was denied the opportunity to present a “better foundation for reputation evidence” (¶ 94).
Chief Justice Abrahamson dissented. She agreed with the majority that a victim’s reputation for having a violent disposition may be used to prove the victim was the first aggressor. “I disagree, however, with the majority opinion’s analysis that the defendant failed to lay a proper foundation for the introduction of evidence of the victim’s reputation and failed to follow through with a self-defense claim that the victim was the first aggressor. I also disagree with the majority opinion’s harmless error analysis” (¶ 9).
