Barrera v. State
Decision Date | 02 November 1982 |
Docket Number | No. 79-1574-CR,79-1574-CR |
Citation | 109 Wis.2d 324,325 N.W.2d 722 |
Parties | Edward BARRERA, a/k/a Eduardo Barrera, Plaintiff in error, v. STATE of Wisconsin, Defendant in error-Petitioner. |
Court | Wisconsin Supreme Court |
Michael Klos, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error-petitioner.
Michael Yovovich, First Asst. State Public Defender, for plaintiff in error.
A jury convicted the defendant of first-degree murder and armed robbery, as a party to a crime, in violation of Sections 940.01, 943.32 and 939.05, Stats. 1975. The court of appeals reversed his judgments of conviction, and the state has appealed.
The issue presented is whether the jury instructions given by the trial judge on the defense of voluntary intoxication are valid in light of State v. Schulz, 102 Wis.2d 423, 307 N.W.2d 151 (1981). Because we conclude that the instructions, viewed in their entirety, do not impermissibly shift the burden of persuasion to the defendant, we reverse the decision, 104 Wis.2d 737, 313 N.W.2d 278, of the court of appeals.
Evidence was introduced that on October 14, 1976, the evening before the alleged crimes occurred, the defendant, his brother, Reyes Barrera, and Frederico Garcia had been drinking beer and smoking marijuana, and the defendant had consumed some five-milligram Valium tablets. The defendant testified that the next day, October 15, 1976, he awoke at about 8:30 a.m. He testified, "I had aten some Valium and I imagine I drank some beer to down these Valiums down." He testified that he may have consumed a half bottle of wine later that morning. Frederico Garcia disputes that they had anything to drink that morning.
Later that morning the three men drove to a liquor store in Beaver Dam, where Frederico Garcia stole a bottle of wine. Either Reyes or Frederico then stole some shotgun shells at another store. They then test-fired a shotgun in the countryside near Beaver Dam. The three men returned to the liquor store shortly before noon. Reyes Barrera entered the store with the shotgun while Frederico Garcia and the defendant remained in the car. Reyes robbed the proprietor and shot and killed her. The men then drove to Texas.
The defendant testified that he was in the back seat of the automobile when the robbery occurred and that he had no recollection of anyone going in or coming out of the liquor store. The testimony of Frederico Garcia unequivocally states that the defendant was seated next to him in the front seat while Reyes went in to commit the robbery and murder. The defendant stated that the Valium and wine had made him intoxicated and sleepy. He testified that he first learned of the robbery when the three men arrived in Texas.
At the conclusion of the case, the trial court instructed the jury on armed robbery, party to a crime, first-degree murder, party to a crime and the lesser-included defense of third-degree murder. The court also gave the following intoxication instruction:
The jury was also given general instructions on the state's burden of proof:
The defendant was convicted of first-degree murder and armed robbery, as a party to a crime. Post-trial motions were filed and denied, and a judgment of conviction was entered.
The defendant appealed. He argued, inter alia, that the italicized portions of the above-quoted instruction shifted the burden of persuasion on the issues of intent and knowledge to him, thereby depriving him of his right to due process of law. The court of appeals, relying on State v. Schulz, 102 Wis.2d 423, 307 N.W.2d 151 (1981), concluded that the jury could have been misled as to who had the burden of persuasion on the element of intent.
The determinative question in the case before us is whether the trial court's instruction to the jury on intoxication, together with all other instructions, viewed in their entirety, made it clear that the burden of persuasion on the issue of intent remained on the state. The state bears the burden of proving all elements of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Muller v. State, 94 Wis.2d 450, 289 N.W.2d 570 (1980). Language in a jury instruction that relieves the state of its duty to prove the element of intent beyond a reasonable doubt denies the defendant due process. 94 Wis.2d at 473-74, 289 N.W.2d 570. The standard is whether a reasonable juror could have interpreted the instruction as shifting the burden of persuasion on an element of the offense to the defendant. Id. at 477-78, 289 N.W.2d 570; Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
Under Wisconsin law, voluntary intoxication is a defense if the condition "[n]egatives the existence of a state of mind essential to the crime." 2 Since intent or knowledge is an element of the crimes of which the defendant was convicted, his intoxicated condition is a negative, rather than an affirmative, defense. Therefore, the state may only require the defendant to come forward with "some" evidence in rebuttal of the state's case. State v. Schulz, 102 Wis.2d at 430, 307 N.W.2d 151.
It was inappropriate to read the "Guiden language" as part of the charge to the jury. 3 The defendant contends that the inclusion of this language, which was part of the basis for reversal in Schulz, sufficiently taints the jury instruction in the instant case, so as to require a new trial on due process grounds. We disagree, finding the following rule from Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973), to be...
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