Balistreri v. State, 76-100-CR

• Decision Date: 02 May 1978
• Docket Number: No. 76-100-CR,76-100-CR
• Citation: 83 Wis.2d 440,265 N.W.2d 290
• Parties: Anthony George BALISTRERI, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 290

265 N.W.2d 290

83 Wis.2d 440

Anthony George BALISTRERI, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 76-100-CR.

Supreme Court of Wisconsin.

Argued Feb. 8, 1978.

Decided May 2, 1978.

David E. Lasker, Madison, for plaintiff in error.

Pamela Magee-Heilprin, Asst. Atty. Gen., for defendant in error; Bronson C. La Follette, Atty. Gen., on brief.

CALLOW, Justice.

The defendant, Anthony G. Balistreri, brings this writ of error to review his conviction of endangering the safety of another, one Fred Timmermann, contrary to sec. 941.30, Stats. He was sentenced to two and one-half years' imprisonment. The prosecution arose out of an automobile pursuit of the defendant by the Milwaukee police. The pursuit occurred on October 23, 1974, in downtown Milwaukee in rush-hour, weekday traffic. It ended when the defendant's car collided head-on with a car being driven by citizen Fred Timmermann. The defendant seeks review of the conviction on the grounds that the endangering safety of another statute, sec. 941.30, Stats., is unconstitutionally vague and, alternatively, that the properly admissible evidence was insufficient to convict.

I. IS SEC. 941.30, STATS., UNCONSTITUTIONALLY VAGUE?

The defendant was convicted of violating sec. 941.30, Stats., which provides:

"941.30 Endangering safety by conduct regardless of life. Whoever endangers another's safety by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be fined not more than $1,000 or imprisoned not more than 5 years or both."

The defendant contends that this statute is void for vagueness because it failed to inform him of what conduct would "evince a depraved mind." ¹ Furthermore, the defendant argues that the construction given to this phrase by this court has not only failed to cure, but has actually exacerbated, the vagueness of the statutory language.

The concept of vagueness rests on the principle that procedural due process requires fair notice and proper standards for adjudication. State v. Courtney, 74 Wis.2d 705, 709, 247 N.W.2d 714 (1976), citing: Grayned v. City of Rockford, 408 U.S. 104, 108-9, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). " 'A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.' " Ryan v. State, 79 Wis.2d 83, 90, 255 N.W.2d 910, 914, (1977), quoting: Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926); State v. Vlahos, 50 Wis.2d 609, 615, 184 N.W.2d 817 (1971). However, a criminal statute need not delineate every mode of conduct within its terms. State v. Killory, 73 Wis.2d 400, 405, 243 N.W.2d 475 (1976). A penal statute need only give reasonable notice of the prohibited conduct to those who would avoid its penalties. Ryan v. State, supra, 79 Wis.2d at 90, 255 N.W.2d 910; State v. Courtney, supra, 74 Wis.2d at 709-11, 247 N.W.2d 714; State v. Driscoll, 53 Wis.2d 699, 701-2, 193 N.W.2d 851 (1972). See also: Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975) (Per Curiam); Wainwright v. Stone, 414 U.S. 21, 22, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973) (Per Curiam).

Thus this court has emphasized that:

"Before a statute or rule may be invalidated for vagueness, there must appear some ambiguity or uncertainty in the gross outlines of the duty imposed or conduct prohibited such that one bent on obedience may not discern when the region of proscribed conduct is neared, or such that the trier of fact in ascertaining guilt or innocence is relegated to creating and applying its own standards of culpability rather than applying standards prescribed in the statute or rule." State v. Courtney, supra, 74 Wis.2d at 711, 247 N.W.2d at 719.

The phrase conduct evincing a depraved mind regardless of human life is found not only in sec. 941.30, Stats., but also in sec. 940.02, Stats., the second degree murder statute, ² and sec. 940.23, Stats., prohibiting injury by conduct regardless of life. ³ These three crimes are identical in all elements except for the description of the resultant harm. Martin v. State, 57 Wis.2d 499, 504-5, 204 N.W.2d 499 (1973); State v. Weso, supra n. 1. As a result, the court has applied the construction of the phrases "conduct evincing a depraved mind, regardless of human life" and "conduct imminently dangerous to another" contained in cases brought under one of the statutes to cases brought under the other two. Compare: State v. Dolan, 44 Wis.2d 68, 170 N.W.2d 822 (1969), and State v. Weso, supra (applying cases construing the second degree murder statute to a prosecution under sec. 941.30, Stats.) with Wagner v. State, 76 Wis.2d 30, 250 N.W.2d 331 (1977) (applying cases construing sec. 941.30 to a second degree murder prosecution).

The phrase "evincing a depraved mind, regardless of human life" has been part of the statutory law of Wisconsin since 1849, when the second degree murder statute was originally enacted. Ch. 133, sec. 2, Revised Statutes of 1849. (Sec. 941.30, Stats., was enacted in 1955. Ch. 696, sec. 1, Laws of 1955.) The phrase is also contained in the criminal statutes of other states. See, e. g., Fla.Stat., sec. 782.04(2) (1977); See also : 40 Am.Jur.2d, Homicide, sec. 53 (1968); 1 Wharton's Criminal Law and Procedure, sec. 265 (1957). It has been construed by the courts of other jurisdictions as well as by this court. See, e. g., Ramsey v. State, 114 Fla. 766, 154 So. 855 (1934); Stalder v. Stone, 412 Ill. 488, 107 N.E.2d 696 (1952); State v. Dolan, supra; State v. Weso, supra; Wagner v. State, supra.

Despite the established role of the concept of depravity in the criminal law, the defendant nonetheless contends that its meaning in Wisconsin is unclear because this court's discussion of the phrase in State v. Dolan, supra, is ambiguous. In that case the court held that conduct evincing a depraved mind may be performed by a person with "the general intention to do harm." Id. 44 Wis.2d at 72, 170 N.W.2d at 824. At the same time in Dolan the court also approved of a model jury instruction stating that "It is not necessary that there be an intent to endanger the safety of another, but it is sufficient if the safety of another is endangered by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life." Id. at 74, 170 N.W.2d at 825. The defendant contends that these two requirements, a "general intent to do harm" yet no "intent to endanger the safety of another," are inconsistent and render the meaning of depraved conduct vague. However, in State v. Weso, supra, the court clarified the nature of the intent necessary for a violation of sec. 941.30, Stats. There the court held that "A depraved mind has a general intent to do the acts and the consciousness of the nature of the acts and possible result but lacks the specific intent to do the harm." 60 Wis. at 412, 210 N.W.2d at 446. The language of Dolan thus clarified is not ambiguous. Dolan and Weso both hold that, if a general intent exists to do acts which are likely to result in death, a specific intent to endanger the safety of the victim is unnecessary. In Wagner v. State, supra, we rejected the same contention made by the defendant here. The defendant in Wagner argued that Dolan seems to require "an intent to harm." We stated that:

"The statute does not require the existence of any particular state of mind in the actor at the time of the crime but only requires that there be conduct imminently dangerous to human life, which conduct evinces a depraved mind. Jones (v. State), supra, 70 Wis.2d 41, 49, 233 N.W.2d 430; Ameen v. State, 51 Wis.2d 175, 185, 186 N.W.2d 206 (1971)." 76 Wis.2d at 48, 250 N.W.2d at 341.

Thus there is no merit to the defendant's contention that this court's construction of the phrase "conduct evincing a depraved mind" is ambiguous or confusing.

The defendant also contends that the court may not usurp the legislature's power by continuing to supply standards for the phrase "conduct evincing a depraved mind" where the legislature has failed to do so. For the court to legislate standards, the defendant argues, would violate the constitutional principle of the separation of powers. The United States Supreme Court has consistently considered vagueness to be a due process problem rather than a separation of powers problem. At least one commentator has suggested the separation of powers concept as an alternative rationale. Collings, Unconstitutional Uncertainty An Appraisal, 40 Corn.L.Rev. 195, 204 (1955). However, the author there concedes that even under this rationale "the presence of difficult borderline or peripheral cases will not invalidate a statute at least where there is a hard core of circumstances to which the statute unquestionably applies." 40 Corn.L.Rev. at 206; see also: State v. Courtney, supra, 74 Wis.2d at 711, 247 N.W.2d 714.

The legislature has supplied the standard for a violation of sec. 941.30, Stats., by requiring conduct evincing a depraved mind, regardless of human life. This phrase has a solid foundation in the English common law ⁴ as well as in American statutory and case law. It has been given an extensive construction by this court in State v. Weso, supra, and has been applied on a case-by-case basis many times. See, e. g., Wagner v. State, supra; Seidler v. State, 64 Wis.2d 456, 219 N.W.2d 320 (1974); Turner v. State, 76 Wis.2d 1, 250 N.W.2d 706 (1977); State v. Olson, 75 Wis.2d 575, 250 N.W.2d 12 (1977); Bednarski v. State, 53 Wis.2d 791, 193 N.W.2d 668 (1972); State v. Dolan, supra. In view of the many Wisconsin cases discussing the phrase conduct evincing a depraved mind, the defendant's contention that this court should not "supply standards" for the phrase comes too late.

For purposes of determining vagueness, a judicial construction of a statute by...