Holland v. State, No. 77-485-CR

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: CALLOW
• Citation: 91 Wis.2d 134,280 N.W.2d 288
• Parties: Roy Walter HOLLAND, Plaintiff In Error-Respondent, v. STATE of Wisconsin, Defendant In Error-Petitioner.
• Decision Date: 27 August 1979
• Docket Number: No. 77-485-CR

Page 288

280 N.W.2d 288 91 Wis.2d 134 Roy Walter HOLLAND, Plaintiff In Error-Respondent,
v.
STATE of Wisconsin, Defendant In Error-Petitioner. No. 77-485-CR. Supreme Court of Wisconsin. Argued May 2, 1979.
Decided June 29, 1979.
Reconsideration Denied Aug. 27, 1979.

Page 289

[91 Wis.2d 135] David J. Becker, Asst. Atty. Gen. (argued), and Bronson C. La Follette, Atty. Gen., on brief, for defendant in error-petitioner.

[91 Wis.2d 136] Ruth S. Downs, Asst. State Public Defender (argued), and Richard L. Cates, State Public Defender, on brief, for plaintiff in error-respondent.

CALLOW, Justice.

The state seeks review of this decision of the court of appeals vacating the judgment of conviction and remanding the case for a new trial. ¹ The court of appeals held that the trial court committed prejudicial error in failing to instruct the jury that, before it could find the defendant Holland guilty of the crime charged, it had to agree unanimously on which category of the party to a crime statute ² direct commission, aiding

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and abetting, or conspiracy was violated. The court of appeals concluded the activity giving rise to criminal liability is different for each of the categories described in the instruction. We reverse.

Holland and Hoppe entered an apartment shared by Mary Jans and Lynn Westbrook, locked the doors, and [91 Wis.2d 137] forced their attentions on the women. Holland forced Jans to perform sex acts and was convicted of sexual perversion. He did not appeal that conviction. Holland was also charged with first-degree murder, party to a crime. This charge resulted from the death of Westbrook as a consequence of injuries suffered during this incident.

At the murder trial Jans testified that, while she was in the living room with Holland, she heard Westbrook scream twice from the bedroom where Westbrook was with Hoppe. Hoppe left the bedroom, and Holland left the living room and entered the bedroom. Holland testified he found Westbrook having breathing difficulties and tried to clear her throat. Hoppe told Jans she had seen too much and began choking her. Hoppe's choking was interrupted by a knock on the door. Holland told Jans that Westbrook was dead and that they would have to take her with them. She escaped out the back door as the men were planning to leave. Hoppe testified Westbrook was alive when he left the bedroom and Holland entered. He testified he saw Holland kicking and jumping on something. Westbrook died a week later of irreversible brain damage due to lack of oxygen.

Hoppe's trial resulted in his conviction for second-degree murder. See : Hoppe v. State, 74 Wis.2d 107, 246 N.W.2d 122 (1976). Holland was charged with first-degree murder, party to a crime, ³ and was convicted of second-degree murder, party to a crime. ⁴

The court instructed the jury, in accordance with Wis. J I Criminal, Part I, 400, a party is concerned in the commission of a crime if he either directly commits the crime, aids and abets its commission, or conspires with another to commit the crime or another crime, the natural and probable consequence of which is the charged offense. The court gave the standard unanimity instruction but did not instruct the jury that it must be unanimous as [91 Wis.2d 138] to the manner in which the defendant was a party to the crime.

The issue on review is whether the standard party to a crime instruction, phrased disjunctively, violates the defendant's right to a unanimous verdict guaranteed by the Wisconsin Constitution.

Sections 5 and 7 of Article I, of the Wisconsin Constitution, guarantee the right to trial by jury. The decisions of this court have long assumed that this includes the right to a unanimous verdict. See, e. g., Vogel v. State, 138 Wis. 315, 332-33, 119 N.W. 190 (1909); Boldt v. State, 72 Wis. 7, 14-16, 38 N.W. 177 (1888).

Linked to the unanimity requirement is the due process requirement that the prosecution prove each essential element of the offense beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Turner v. State, 76 Wis.2d 1, 10, 250 N.W.2d 706 (1977). This requirement finds its justification principally as a means of reducing the risk of a guilty verdict resting on factual error. Winship, supra, 397 U.S. at 363, 90 S.Ct. 1068. Recognizing the unanimity requirement and the reasonable-doubt standard, it is clear that the jury must agree unanimously that the prosecution has proved each essential element of the offense beyond a reasonable doubt before a valid verdict of guilty can be returned.

The question presented is whether this unanimity principle is violated where the trial court instructs the jury, in the disjunctive, as to the various ways a person might be guilty as a party to a crime without

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requiring the jurors to agree on the applicable theory or theories.

The leading federal case on the requirement of unanimity is United States v. Gipson, 553 F.2d 453 (5th Cir. 1977). In Gipson the defendant was convicted of violating 18 U.S.C. sec. 2313, imposing criminal liability on one who "receives, conceals, stores, barters, sells or disposes[91 Wis.2d 139] of" a stolen vehicle in interstate commerce. In response to a question from the jury, the trial court expressly instructed:

"If each of you is satisfied beyond any reasonable doubt that he did any one of those acts charged, and did it with the requisite state of mind, then there would be a unanimous verdict, and there could be a return of guilty under Count Two of the indictment, Even though there may have been disagreement within the jury as to whether it was receiving or storing or what." (Emphasis added.) Id. at 456.

The court divided the six acts prohibited by the statute into two "conceptual groups": The first receiving, concealing, and storing; the second bartering, selling, and disposing:

"Within each grouping, the acts are sufficiently analogous to permit a jury finding of the actus reus element of the offense to be deemed 'unanimous' despite differences among the jurors as to which of the intragroup acts the defendant committed." Id. at 458.

The court concluded that acts within each group were not "conceptually distinct" and that it would create semantic problems of characterization and definition to require the jury to choose among the labels in each grouping. The Gipson logic requires the jury to agree on the factual theory or "concept" underlying criminal liability but does not require it to split hairs over nomenclature.

State v. Carothers, 84 Wash.2d 256, 525 P.2d...