Caibaiosai v. Barrington

• Citation: 643 F. Supp. 1007
• Decision Date: 15 September 1986
• Docket Number: No. 85-C-726-C.,85-C-726-C.
• Parties: Gary CAIBAIOSAI, Petitioner, v. Duane BARRINGTON, Superintendent, and the Attorney General of Wisconsin, Respondents.
• Court: U.S. District Court — Western District of Wisconsin

643 F. Supp. 1007

Gary CAIBAIOSAI, Petitioner, v. Duane BARRINGTON, Superintendent, and the Attorney General of Wisconsin, Respondents.

No. 85-C-726-C.

United States District Court, W.D. Wisconsin.

September 15, 1986.

Steven P. Weiss, Asst. State Public Defender, Madison, Wis., for petitioner.

Thomas J. Balistreri, Asst. Atty. Gen., Madison, Wis., for respondents.

ORDER

CRABB, Chief Judge.

This is a petition for a writ of habeas corpus in which petitioner contends that he is in custody in violation of the Constitution of the United States. 28 U.S.C. § 2254. Jurisdiction is present; petitioner was confined in this district at the time he made his application for the writ. 28 U.S.C. § 2241(d).

Petitioner challenges his conviction in the Circuit Court for Kenosha County, Wisconsin, of homicide by intoxicated operation of a motor vehicle, a violation of Wis.Stat. § 940.01(1)(a). He was charged with causing the death of Janet Tunkieicz, a passenger on his motorcycle on the evening of June 6, 1982. The facts of this case are described in full in the state supreme court's opinion affirming petitioner's conviction, State v. Caibaiosai, 122 Wis.2d 587, 590-591, 363 N.W.2d 574 (1985). In brief, the accident occurred when petitioner lost control of his motorcycle, which then went off the highway, hit a utility pole and flipped over. Tunkieicz was thrown off and killed instantly, but petitioner was not seriously injured. Petitioner's blood alcohol level was 0.13 percent, when tested two hours after the accident.

Wis.Stat. § 940.09(1) punishes as a class D felony any person who

(a) Causes the death of another by the operation or handling of a vehicle, firearm or airgun and while under the influence of an intoxicant;

The statute provides an affirmative defense "if it appears by a preponderance of the evidence that the death would have occurred even if the actor had not been under the influence of an intoxicant." Wis. Stat. § 940.09(2).

In his appeal to the Wisconsin supreme court, petitioner argued that § 940.09 is unconstitutional, either because 1) the statute shifts to the defendant the burden of negating an implicit element of the crime: the causal connection between the defendant's intoxicated operation and the death of a person; or 2) if the causal connection between intoxication and the death is not an element of the crime, the statute violates fundamental principles of fairness and due process by punishing without regard to whether the proscribed conduct caused the harm triggering the punishment. Also, petitioner argued that the trial court denied him a fair trial when it refused to instruct the jury on the affirmative defense set out in § 940.09(2). Petitioner had raised a third ground for relief, that the affirmative defense provision of § 940.09(2) violated his right against self-incrimination. This ground for relief was dismissed in an order entered in this case on August 26, 1985.¹

Having exhausted his state court remedies, petitioner now seeks collateral relief in this court.

Allocation of the burden of proof

Petitioner argues that one of the elements of homicide by intoxicated operation of a vehicle is the causal connection between a defendant's intoxicated operation of a vehicle and the death of a person, and that the due process clause, as interpreted in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) requires the state to prove this element beyond a reasonable doubt.

In In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970), the Supreme Court held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Several years later, in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Court applied the teachings of Winship to a Maine statute that provided that all intentional or criminally reckless killings were felonious homicides punishable by life imprisonment, unless the defendant proved by a preponderance of the evidence that the killing was in the heat of passion. 421 U.S. at 691-692, 95 S.Ct. at 1885-1886. The Court held the Maine statute unconstitutional on the ground that requiring the defendant to prove heat of passion impermissibly removed from the state the burden of proving all elements of the crime beyond a reasonable doubt.

In the wake of Mullaney, some courts and commentators expressed doubts about the constitutionality of some or all affirmative defenses. See Jeffries and Stephan, Defenses, Presumptions and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325, 1340 & n. 40, 41 (1979). However, in Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977), the Court rejected the argument that "a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses relating to the culpability of the accused."

In Patterson, defendant was charged under a New York statute that had two elements: (1) "intent to cause the death of another person"; and (2) "causing the death of such person or a third person." N.Y. Penal Law § 125.25 (McKinney 1975). The statute did not make malice aforethought an element of the crime, but it permitted a defendant to defend against the charge by showing by a preponderance of the evidence that he "acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse." Id. Although the New York statute seemed indistinguishable from the one struck down in Mullaney, the Supreme Court found it constitutional, holding that the statute covered every element essential to the crime: death, intent, and causation. Requiring the defendant to carry the burden of proving extreme emotional disturbance was not unconstitutional because the affirmative defense of extreme emotional disturbance bore no direct relationship to any element of the statutory crime. Id. 432 U.S. at 201, 97 S.Ct. at 2322. New York's defense of "extreme emotional disturbance" is essentially an expanded version of the older heat of passion concept that historically has been an affirmative defense under the common law. Id. at 207, 97 S.Ct. at 2325. The Court emphasized that the "applicability of the reasonable doubt standard ... has always been dependent on how a State defines the offense that is charged in any given case...." 432 U.S. at 211 n. 12, 97 S.Ct. at 2327 n. 2.

The lesson to be drawn from Patterson is that when determining which facts must be proved beyond a reasonable doubt and which facts a defendant may be required to prove, the legislature's definition of the elements of the offense is usually dispositive. See McMillan v. Pennsylvania, ___ U.S. ___, 106 S.Ct. 2411, 2416, 91 L.Ed.2d 67 (1986). Although the Court has suggested that the reasonable doubt requirement might apply to facts not formally identified as an element of the crime, and that there are "obviously constitutional limits beyond which the States may not go" in redefining crimes to shift the burden of proof, the Court has not attempted to define these constitutional limits other than to observe that a legislature may not declare an individual presumptively guilty. See Patterson, 432 U.S. at 210, 97 S.Ct. at 2327; see also McMillan, 106 S.Ct. 2417.²

Commentators have criticized the Court's holding in Patterson that due process requires only that the state prove those elements defined by the text of the statute. See, e.g., Note, The Constitutionality of Affirmative Defenses after Patterson v. New York, 78 Col.L.Rev. 655, 666 (1978). Nevertheless, it appears that an analysis based upon the express language of the statute is required by Patterson.

The Wisconsin supreme court interprets § 940.09 as not requiring a specific causal connection between the defendant's intoxicated driving and the victim's death an element of the crime of homicide by intoxicated operation of a motor vehicle. Both the majority and the dissent read the causation element of § 940.09 as requiring only that the state prove that the victim's death was caused by the operation of a vehicle while the operator is intoxicated. The majority describes the elements as follows:

Section 940.09(1)(a), Stats., in its present form clearly states that a person commits a Class D felony who:

(1) causes the death of another,

(2) by the operation of a vehicle,

(3) while under the influence of an intoxicant.

122 Wis.2d at 593, 363 N.W.2d 574. The dissent notes that:

The state need prove only the three statutory elements of the crime beyond a reasonable doubt—(1) the driver was operating a vehicle; (2) the driver was operating the vehicle while under the influence of an intoxicant; and (3) the operation of the vehicle, but not necessarily the driver's faulty operation of the vehicle or the driver's intoxicated condition, "caused" the death....

122 Wis.2d at 603, 363 N.W.2d 574 (Abrahamson, J., dissenting). Nevertheless, relying on several phrases in the majority opinion, petitioner argues that a causal connection between defendant's wrongful act (intoxicated driving) and the victim's death is a presumed element of the offense.

Although the majority opinion contains some ambiguous and confusing statements on the issue, a fair reading of it leaves no doubt that the majority concluded that a specific causal connection between the victim's death and the defendant's intoxication is not an element of homicide by intoxicated operation of a motor vehicle. See State v. Caibaiosai, 122 Wis.2d at 594, 595, 363 N.W.2d 574 ("The statute does not include as an element of the crime a direct causal connection between the fact of defendant's intoxication, conceptualized as an isolated act, and the victim's death ... The substantial factor in the cause of the death is the cause in fact of the operation of the vehicle while intoxicated"). The dissent read the statute in the same way....