State v. Bertrand

Decision Date03 April 1991
Docket NumberNo. 90-1327-CR,90-1327-CR
Citation469 N.W.2d 873,162 Wis.2d 411
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. David R. BERTRAND, Defendant-Appellant. d
CourtWisconsin Court of Appeals

Elizabeth E. Stephens, Asst. State Public Defender, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Marguerite M. Moeller, Asst. Atty. Gen., for plaintiff-respondent.


BROWN, Judge.

This is an appeal from a denial of a postconviction motion brought by David R. Bertrand under sec. 974.06, Stats. Bertrand interprets the hostage-taking statute, sec. 940.305, Stats., as requiring that the hostage be injured before a person can be convicted of a Class A felony and that the state must prove specific intent to inflict harm. He argues that the statute is unconstitutional because it is silent about intent, vague about the timing of injury, and violates equal protection by providing an identical penalty for defendants who injure their hostage and those who do not. We affirm. The statute unambiguously punishes more severely those who do not release their hostages unharmed before the hostage-taker's arrest.

In April 1982, Waukesha county sheriff's deputies Bach and Celmer followed David Bertrand's car because it fit the radio description of a vehicle driven by a drunk driver. The officers stopped Bertrand on suspicion of drunk driving after they observed him cross the center line several times. Bach went to the driver's door of the car while Celmer went to the passenger side. Bertrand gave Bach a false driver's license and was argumentative.

Bach ordered Bertrand to step out of the vehicle. Bertrand grabbed Bach and held a gun to his side. Bertrand also yelled to Celmer to drop his gun or he would "blow [Bach] away." However, Celmer crouched down, pulled out his revolver, moved toward his squad car and called for backup help.

Bertrand continued to tell Celmer to drop his gun and move away from his squad car. He received no reply from Celmer. Bertrand then said to Bach: "I couldn't do it to you anyhow, man." Seconds later there was a shot and Bertrand fell. Celmer's shot hit Bertrand in the chest. Bach suffered no physical injuries. Bach heard no clicking sounds from Bertrand's weapon, and the revolver was uncocked when recovered.

Bertrand was convicted of violating the hostage-taking statute, sec. 940.305, Stats. Bertrand appealed that conviction in 1985. The court of appeals affirmed the conviction and our supreme court denied Bertrand's petition for review. In 1989, Bertrand initiated this appeal in the circuit court under sec. 974.06, Stats., which permits a constitutional challenge to a conviction after the time for direct appeal has expired. Bertrand challenges the constitutionality of the hostage-taking statute, sec. 940.305. The circuit court found the statute constitutional. This appeal concerns that decision.

The state argues that Bertrand waived his right to appeal by failing to raise his constitutional challenge at trial or on direct appeal. Consideration of a constitutional issue raised for the first time on appeal is a matter of the court's discretion and may be done if it is in the best interests of justice to do so, if both parties have had the opportunity to brief the issue and if there are no factual issues that need resolution. In re Baby Girl K, 113 Wis.2d 429, 448, 335 N.W.2d 846, 856 (1983). In our view, all of these qualifications are present; we therefore address the issue despite waiver.

The constitutionality of a statute is a question of law which is reviewed de novo. Hasselblad v. City of Green Bay, 145 Wis.2d 439, 442, 427 N.W.2d 140, 141 (Ct.App.1988). There is a strong presumption that statutes are constitutional, and the court of appeals will construe a statute to preserve its constitutionality if it is at all possible to do so. State v. Peck, 143 Wis.2d 624, 636, 422 N.W.2d 160, 165 (Ct.App.1988).

The hostage-taking statute, sec. 940.305, Stats., provides:

Whoever by force or threat of imminent force seizes, confines or restrains a person without the person's consent and with the intent to use the person as a hostage in order to influence a person to perform or not to perform some action demanded by the actor is guilty of a Class A felony; but if each person who is held as a hostage is released without bodily harm prior to the time of the defendant's arrest, the defendant is guilty of a Class B felony.

All of Bertrand's arguments hinge on his contention that the aggravating element in the statute distinguishing a Class A felony from a Class B felony is bodily injury to a hostage. Bertrand purports to arrive at his interpretation by analyzing the legislative history of the statute and comparing it with hostage-taking statutes in other states. In line with his interpretation of the statute, Bertrand argues that he received the penalty for the harsher Class A felony without proof of his intent to harm and even without actual harm to his hostage. He contends that this violated his due process rights. He urges this court to read into the statute a specific intent to injure and then find that the jury in his case was not instructed on the intent element of the crime of hostage-taking. He also argues there was insufficient evidence to convict him of a Class A felony because Officer Bach was not injured.

Additionally, Bertrand argues that the statute is void for vagueness because it allows a charge of Class A hostage-taking based upon the timing of the victim's release and the definition of "arrest," rather than upon the occurrence of injury to the victim. Bertrand contends that this permits arbitrary and subjective prosecutions, thus violating due process. Additionally, Bertrand argues that the statute violates equal protection of the law because it irrationally places in the same classification defendants who injured their hostage and defendants...

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    ...unconstitutional. We review the constitutionality of statutes de novo, without deference to the trial court. State v. Bertrand, 162 Wis.2d 411, 415, 469 N.W.2d 873 (Ct.App.1991). Statutes enjoy a presumption of constitutionality and we review them so as to preserve their constitutionality. ......
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