State Of Wis. v. Patterson, 2008AP1968-CR.

• Decision Date: 17 November 2010
• Docket Number: No. 2008AP1968-CR.,2008AP1968-CR.
• Citation: 790 N.W.2d 909,2010 WI 130
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Patrick R. PATTERSON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

790 N.W.2d 909
2010 WI 130

STATE of Wisconsin, Plaintiff-Respondent,
v.
Patrick R. PATTERSON, Defendant-Appellant-Petitioner.

No. 2008AP1968-CR.

Supreme Court of Wisconsin.

Argued Sept. 14, 2010.
Decided Nov. 17, 2010.

COPYRIGHT MATERIAL OMITTED.

790 N.W.2d 911

COPYRIGHT MATERIAL OMITTED.

790 N.W.2d 912

For the defendant-appellant-petitioner there were briefs and oral argument by David R. Karpe.

For the plaintiff-respondent there was a brief by Michael C. Sanders, Assistant Attorney General with whom on the brief was J.B. Van Hollen, Attorney General. The cause was argued by Michael C. Sanders.

N. PATRICK CROOKS, J.

¶ 1 This is a review of a published decision of the court of appeals ¹ in a case arising from the death of seventeen-year-old Tanya S. (Tanya) from a drug overdose. Patrick R. Patterson (Patterson) challenges his convictions in connection with her death for first-degree reckless homicide by delivery of a controlled substance contrary to Wis. Stat. § 940.02(2)(a) (2007-08) ² and contributing to the delinquency of a child with death as a consequence contrary to Wis. Stat. § 948.40(1), (4)(a). ³ After a jury convicted him of both offenses, Patterson moved the Juneau County Circuit Court, the Honorable Charles A. Pollex presiding, for postconviction relief, which the circuit court denied as to these offenses. The court of appeals affirmed the jury verdict and the circuit court's denial of postconviction relief.

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¶ 2 We address four issues in our review:

- First, whether the punishments for first-degree reckless homicide by delivery of a controlled substance and contributing to the delinquency of a child with death as a consequence are multiplicitous when both convictions arise from the same death.

- Second, whether a defendant may be convicted of contributing to the delinquency of a seventeen-year-old when the relevant statute's definition of “child” provides an exception for purposes of prosecuting a person who is over seventeen. ⁴

- Third, whether a jury instruction for first-degree reckless homicide by delivery of a controlled substance was erroneous because the way the instruction was worded allegedly allowed the jury to find guilt based on a mere allegation rather than proof beyond a reasonable doubt.

- Fourth, whether Patterson is entitled to a new trial because of claimed prosecutorial misconduct stemming from the prosecutor's use of other witnesses' statements and testimony in a manner prohibited by Haseltine. ⁵

¶ 3 We affirm the court of appeals for the reasons stated below. In response to Patterson's first claim, we hold that convictions for both first-degree reckless homicide by delivery of a controlled substance and contributing to the delinquency of a child with death as a consequence are not multiplicitous because, in light of the four-part analysis outlined in State v. Davison, 2003 WI 89, ¶ 50, 263 Wis.2d 145, 666 N.W.2d 1, we conclude that the legislature intended to permit multiple punishments for these offenses. On this issue, we affirm the court of appeals, but on different grounds. ⁶ We conclude that the convictions are not multiplicitous because contributing to the delinquency of a child with death as a consequence is not a “type of criminal homicide” for purposes of Wis. Stat. § 939.66(2), and further conclude that the legislature intended to permit cumulative punishments for that offense and first-degree reckless homicide by delivery of a controlled substance.

¶ 4 Regarding the second issue, we hold that Wis. Stat. § 948.40(1) proscribes contributing to the delinquency of any child under the age of eighteen, and thus Patterson's conviction was proper. Our interpretation of Wis. Stat. § 948.40(1) is informed by the plain language and legislative history of the definition of “child” in Wis. Stat. § 948.01(1), which excludes those over seventeen only for the “purposes of prosecuting” such person.

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¶ 5 Third, we conclude that the jury instruction for first-degree reckless homicide by delivery of a controlled substance was not erroneous because the jury was properly advised that the burden of proving all elements of the crime beyond a reasonable doubt rested on the State. Patterson's claim that the wording of the fourth element of that crime allowed the jury to convict him based on allegations alone is not reasonable, especially when one looks at the jury instructions as a whole.

¶ 6 Fourth, there was no prosecutorial misconduct warranting a new trial because the single Haseltine violation in the seven-day trial in this case did not “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.” State v. Neuser, 191 Wis.2d 131, 136, 528 N.W.2d 49 (Ct.App.1995). We therefore affirm the decision of the court of appeals.

I. BACKGROUND

¶ 7 For the purposes of this appeal, the facts of this case are undisputed. At the heart of this case is the death of Tanya, at the age of seventeen, from an overdose of Oxycodone, a prescription pain medication. Tanya spent the night of May 2, 2003, with her boyfriend, Patterson. Over the course of that evening, Patterson and Tanya both used Oxycodone. Several people who visited Patterson at his home that night testified that Patterson gave Tanya Oxycodone pills, which she ingested. The next morning, Patterson and his mother, with whom Patterson lived, awoke to find Tanya unconscious. Emergency medical personnel were unable to revive Tanya, and she was taken to the hospital, where she was pronounced dead. After an autopsy and a toxicological analysis, the coroner determined that the cause of death was drug ingestion, specifically, Oxycodone.

¶ 8 On February 13, 2004, Patterson was charged with two counts of delivery of a schedule II controlled substance, namely Oxycodone, in violation of Wis. Stat. § 961.41(1)(a), first-degree reckless homicide by delivery of a controlled substance in violation of Wis. Stat. § 940.02(2)(a), and encouraging or contributing to the delinquency of a child resulting in death in violation of Wis. Stat. § 948.40(1), (4)(a). In an amended criminal complaint, Patterson was also charged with two additional counts of delivery of a controlled substance in violation of Wis. Stat. § 961.41(1)(a), for delivering Oxycodone to two others on the night of May 2, 2003.

¶ 9 After a seven-day jury trial in Juneau County Circuit Court, the Honorable Charles A. Pollex presiding, the jury acquitted Patterson of one count of delivery of a controlled substance and found Patterson guilty of all other charges. Patterson moved the circuit court for postconviction relief. First, Patterson argued that count four, contributing to the delinquency of a minor resulting in death, should be dismissed due to insufficient evidence. Specifically, Patterson alleged that the State failed to prove the first element of Wis. Stat. § 948.40 because Tanya was seventeen at the time and thus not a “child” as that term is used in the statute. ⁷ Second, Patterson sought dismissal of the contributing to the delinquency of a minor and delivery of a controlled substance counts as multiplicitous, arguing that both are lesser included offenses of first-degree reckless homicide by delivery of a controlled

790 N.W.2d 915

substance. Third, Patterson argued that count three, first-degree reckless homicide by delivery of a controlled substance, must be dismissed because a jury instruction was erroneous. The circuit court granted Patterson's motion to dismiss count two for delivery of Oxycodone to Tanya because it is a lesser included offense of count three, reckless homicide by delivery of Oxycodone, and denied all of Patterson's other claims for relief.

¶ 10 Patterson appealed, and the court of appeals affirmed the circuit court's judgment of conviction and order denying Patterson's motions for postconviction relief. Patterson, 321 Wis.2d 752, ¶ 1, 776 N.W.2d 602. Regarding Patterson's multiplicity claim, the court of appeals held that the punishments for both first-degree reckless homicide by delivery of a controlled substance and contributing to the delinquency of a child with death as a consequence are not multiplicitous because an analysis of the relevant factors reveals a legislative intent to permit convictions for both offenses. Id. In part the court of appeals relied on Davison, 263 Wis.2d 145, 666 N.W.2d 1, and interpreted that case to provide that Wis. Stat. § 939.66 does not show a clear legislative intent to bar multiple convictions for lesser included offenses when both offenses are charged. Patterson, 321 Wis.2d 752, ¶¶ 10-12, 776 N.W.2d 602. In addressing Patterson's claim that Wis. Stat. § 948.40(1) does not apply to children over seventeen, the court of appeals examined the relevant statutory definitions and concluded that seventeen-year-olds are excepted from the definition of “juvenile” only for the “purpose[ ] of investigating or prosecuting” such person. Patterson, 321 Wis.2d 752, ¶ 29, 776 N.W.2d 602. In response to Patterson's jury instruction claim, the court of appeals held that, viewing the instructions as a whole, the use of the word “alleged” in the fourth element of the charge of first-degree reckless homicide by delivery of a controlled substance only refers back to the first element and thus does not improperly relieve the State of its burden of proof. Id., ¶ 32. On Patterson's prosecutorial misconduct claim, the court of appeals held that the circuit court did not erroneously exercise its discretion in denying Patterson's motion for a mistrial because the prosecutor's single improper question did not result in an unfair trial. ⁸ Id., ¶ 37.

II. ANALYSIS

¶ 11 Patterson challenges several aspects of his trial and conviction. We agree with the court of appeals' decision to affirm the circuit court's judgment of conviction and denial of postconviction relief, though in part on different grounds. We will address each of Patterson's claims in the order decided by the court of appeals...