State v. Barman

• Decision Date: 15 March 1994
• Docket Number: No. 93-2102-CR,93-2102-CR
• Citation: 515 N.W.2d 493,183 Wis.2d 180
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. William P. BARMAN, Defendant-Respondent-Cross-Appellant. d
• Court: Wisconsin Court of Appeals

Page 493

515 N.W.2d 493

183 Wis.2d 180

STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. William P. BARMAN, Defendant-Respondent-Cross-Appellant.^d

No. 93-2102-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 7, 1994.

Opinion Released March 15, 1994.

Opinion Filed March 15, 1994.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

The State appeals an order dismissing charges of homicide by negligent operation of a vehicle filed against William Barman. The State contends that the court erred by ruling that Barman had established a prima facie case of discriminatory prosecution in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. The State also contends that even if a prima facie case were made, the claim was adequately rebutted by a showing of a valid exercise of prosecutorial discretion. We agree with the State and reverse the order of dismissal.

Barman cross-appeals the trial court's ruling that §§ 940.10 and 939.25, STATS., ¹ are not unconstitutionally vague in violation of his equal protection and due process rights. He also claims that the court erred by concluding that the complaint set forth sufficient facts to establish probable cause that he committed homicide by negligent operation of a vehicle. Finally, he asserts that the court also erred by concluding that sufficient evidence was presented at the preliminary hearing to permit bindover. We reject Barman's arguments and affirm those rulings.

The relevant facts for purposes of appeal are not in dispute. At dusk on February 6, 1993, Barman was driving his Chevy Blazer on Dane County Trunk KP. The weather was clear, the road was dry and Barman was traveling at the legal speed limit of fifty-five miles per hour. County Trunk KP intersects U.S. Highway 12. One-half mile before the intersection, there is a sign on KP signaling the upcoming junction. Shortly before the intersection, another sign warns motorists to stop at the intersection. There is a stop sign at the intersection. Barman did not see the stop sign and entered the intersection without stopping. His Blazer struck the side of a car traveling on Highway 12, killing three of the car's passengers.

Barman was charged with homicide by negligent operation of a vehicle. He moved to dismiss the complaint on the ground it did not set forth sufficient facts establishing probable cause. At the preliminary hearing, the court commissioner denied this motion, found probable cause existed to believe Barman committed a felony offense and bound him over for further proceedings. Barman subsequently filed motions with the trial court to dismiss the complaint as insufficient to establish probable cause and to quash the bindover. He also moved to dismiss on the ground that §§ 940.10 and 939.25, STATS., are unconstitutionally vague in violation of his due process rights, and that his prosecution was discriminatory in violation of his equal protection rights.

At a hearing on these motions, Barman presented documentary evidence showing that from January 1, 1987, to October 23, 1992, there were forty-nine comparable fatal traffic accidents in Dane County in which a non-intoxicated, at-fault driver survived. Only two of these similarly situated forty-nine drivers were charged with violating § 940.10, STATS., and of these two, one had his case dismissed while the charges against the other were reduced. At the end of the hearing, the court made findings that the complaint and preliminary hearing sufficiently established probable cause to believe Barman committed a felony.

Following an evidentiary hearing, the court also concluded that § 940.10, STATS., was not unconstitutionally vague. However, it also found that Barman had presented prima facie proof to support a claim of discriminatory prosecution. It shifted the burden to the State to establish that its selection of Barman was based upon an exercise of valid prosecutorial discretion. The court then concluded that the State failed to demonstrate that its decision to charge Barman was an exercise of valid prosecutorial discretion, and the court dismissed the charges. The State's appeal and Barman's cross-appeal followed. Additional facts will be discussed as necessary.

PRIMA FACIE EVIDENCE OF DISCRIMINATORY PROSECUTION

A district attorney has great discretion in deciding whether to prosecute. Sears v. State, 94 Wis.2d 128, 133, 287 N.W.2d 785, 787 (1980). The district attorney has no duty or obligation to prosecute all complaints. Id. (citing State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 378, 166 N.W.2d 255, 260 (1969) overruled on other grounds, State v. Kenyon, 85 Wis.2d 36, 45 n. 4, 270 N.W.2d 160, 164 n. 4 (1978)). In addition, the prosecuting attorney has great latitude in determining which of several related crimes to file against a defendant. Id. Exercise of this discretion necessarily involves a degree of selectivity. Id. 94 Wis.2d at 134, 287 N.W.2d at 788.

The conscious exercise of some selective enforcement is not a constitutional violation. Rather, it is the selective, persistent and intentionally discriminatory prosecution in the absence of a valid exercise of prosecutorial discretion that violates a defendant's equal protection rights and constitutes a defense to the charge. Locklear v. State, 86 Wis.2d 603, 610, 273 N.W.2d 334, 337 (1979); State v. Johnson, 74 Wis.2d 169, 175, 246 N.W.2d 503, 507 (1976). If a defendant establishes a prima facie case of discriminatory prosecution, the burden shifts to the State to show an exercise of valid prosecutorial discretion. Johnson, 74 Wis.2d at 175, 246 N.W.2d at 507.

The State challenges the court's finding that Barman established a prima facie case of discriminatory prosecution. ² It concedes that Barman's prosecution was selective and persistent, but it argues that the court erroneously applied the law by finding the prosecution intentionally discriminatory. Whether the court applied the proper legal standard in making a finding of purposeful discrimination is a question of law that we review de novo. ³ State v. McCollum, 159 Wis.2d 184, 194, 464 N.W.2d 44, 48 (Ct.App.1990). We conclude that the court identified, but misapplied, the proper legal standard.

The trial court recognized Barman was alleging that he was the only one ever charged with this crime, and that the test for whether a solitary prosecution is discriminatory is as explained in Sears. In Sears, the defendant was the first person in eight years in Milwaukee County to be convicted of solicitation to commit sexual perversion. The conviction followed Sears' offer to perform oral sex on a police officer for $20. Id. 94 Wis.2d at 131, 287 N.W.2d at 786. On appeal, Sears argued that other defendants arrested for homosexual activity were usually charged with disorderly conduct. He believed this established that his prosecution was discriminatory. Id. at 134, 287 N.W.2d at 788.

The court noted that a claim of unconstitutional discriminatory prosecution is made when a defendant alleges and proves "that the defendant is a member of a class being prosecuted solely because of race, religion, color or other arbitrary classifications, or that he alone is the only person who has been prosecuted under this statute." Id. (quoting State v. Boutch, 60 Wis.2d 397, 402, 210 N.W.2d 751, 754 (1973) (emphasis in original)). In meeting this burden, however, the court noted that:

Solitary prosecutions may present a prima facie defense of selective or discriminatory prosecution when coupled with a substantial showing by the defendant that the government's discriminatory selection for prosecution is based on a desire to prevent the exercise of constitutional rights or motivated by personal vindictiveness on the part of a prosecutor or the responsible member of the administrative agency recommending prosecution.

Id. 94 Wis.2d at 135, 287 N.W.2d at 788 (citation omitted) (emphasis added). The court denied Sears' selective prosecution claim in part because he failed to show either of these circumstances. Id.

Here, the trial court applied the Sears rationale in a circuitous fashion to the facts at hand. The court stated: "This showing (that [Barman] is the only one prosecuted), however, must be coupled with prima facie proof that his selection is an attempt to prevent the exercise of a constitutional right, to-wit: equal protection under the law. Sears Id." Under Sears, a violation of equal protection is the conclusion reached after demonstrating that the State's prosecution was motivated by a desire to deny a defendant's constitutional right other than the right to equal protection. For example, the cases cited in Sears involve free speech and free association rights. Id. at 135, 287 N.W.2d at 788 (citing United States v. Steele, 461 F.2d 1148 (9th Cir.1972) (claim defendant prosecuted for vocal opposition to census); United States v. Falk, 479 F.2d 616 (7th Cir.1973) (en banc) (claim defendant prosecuted for anti-war activities); United States v. Berrios, 501 F.2d 1207 (2d Cir.1974) (claim defendant prosecuted for political and union activities)).

Nevertheless, a defendant attempting to establish a discriminatory purpose is not limited to producing evidence that the prosecution was motivated by an attempt to squelch a constitutional right. As Sears indicates, a defendant may also show personal vindictiveness on the part of the prosecutor. As the Supreme Court noted in Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), a case involving an allegation of discriminatory prosecution, " 'Discriminatory purpose' ... implies more than ... intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Id. at 610, 105 S.Ct. at 1532 (quoting Personnel Administrator v....