State v. Dyess
| Decision Date | 28 June 1985 |
| Docket Number | No. 83-891-CR,83-891-CR |
| Citation | 124 Wis.2d 525,370 N.W.2d 222 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Johrie DYESS, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
William J. Tyroler, argued, for defendant-appellant-petitioner; William Reddin, Asst. State Public Defenders, on briefs.
Daniel O'Brien, Asst. Atty. Gen., argued, for plaintiff-respondent; Jeffrey M. Gabrysiak, Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., on brief.
This is a review of a decision of the court of appeals which affirmed the conviction of Johrie Dyess for homicide by the negligent use of a motor vehicle. 1 We reverse the court of appeals, because the jury instructions violated sec. 903.03(3), Stats., 2 in that the jury was told that it was required to find the defendant had committed an element of the crime, i.e., that he was negligent, if there was evidence from which the jury could conclude that the defendant was exceeding the speed limit at the time the accident occurred.
We conclude that the error was prejudicial. We reverse and remand for a new trial.
The undisputed facts underlying the prosecution are these. On May 31, 1982, Dyess, the twenty-three-year-old defendant driver, collided with a vehicle driven by Jack Rizzo at an intersection in the city of Racine. At the time, Dyess was proceeding west, Rizzo north. Dyess had the directional right-of-way and, in addition, he was proceeding on what was at that point an arterial highway. Rizzo's entrance into the intersection was subject to a stop sign controlling traffic intending to cross 14th street, the arterial on which Dyess was proceeding. There were no traffic control signs on 14th street which required Dyess to stop. The posted and authorized speed limit for the westbound Dyess was 30 miles per hour. The speed limit for the northbound Rizzo was 25 miles per hour.
Disputed are the questions of whether Rizzo ever made the required stop before entering the intersection and whether Dyess was exceeding the 30-mile-per-hour speed limit.
The Dyess vehicle struck the right rear quarter of the Rizzo car, causing Eve King, a passenger in the Rizzo car, to be thrown out of the vehicle. Initial investigation at the scene did not indicate serious injuries. However, internal bleeding resulting from the accident subsequently caused the death of King.
Dyess was charged with homicide by negligent use of a vehicle. 3
Two Racine Police Department traffic officers testified that, based on the damage to the vehicles, the speed of the Dyess car was a contributing factor in the accident. One officer testified that, based on the damage to the vehicles and their positions on the roadway, the Dyess car was proceeding at a speed in excess of the posted limit of 30 miles per hour. Neither officer observed the speed of either vehicle or the conduct of the respective drivers prior to the collision.
Two additional witnesses for the state, Edwin and Judith Kossow, testified that, about two blocks from the site of the accident, while they were at a stop light, they were passed by a vehicle they stated was Dyess' at a speed originally testified to as 40 miles per hour. Edwin Kossow acknowledged that his estimate could be inaccurate by five miles per hour and stated it was possible, but not likely, that he might be in error by as much as 10 miles per hour. He acknowledged that he could not estimate the speed of the Dyess vehicle at the point of the collision two blocks away.
Judith Kossow gave similar testimony, stating that she believed the Dyess vehicle was going 40 miles per hour. While she acknowledged some fallibility in her estimate of speed, she did not think the Dyess car was going as slowly as 30 miles per hour.
Another state witness, who originally testified that Dyess was proceeding at a speed of 50 miles per hour or more, acknowledged on cross-examination that his estimate of speed was based on the post-collision damage and not upon the observation of the vehicles prior to the crash.
None of the state's witnesses professed to be expert in the field of accident reconstruction, and none of them had any training in the science of determining speed from post-crash-damage evidence.
Dyess presented three witnesses whose testimony, if believed, would have supported a finding that his speed was lawful.
A member of Northwestern University's Traffic Institute testified for Dyess as an expert that, based upon the damage, the speed at impact of the Dyess car was 21 or 22 miles per hour, subject to a possible error of less than two miles per hour.
The passenger in the Dyess car, Gerald Simpson, stated that the speed of his host's vehicle as it entered the intersection was 20-25 miles per hour. He made his estimate of speed on his experience as a driver of automobiles. He denied that Dyess had run a red light two blocks back and stated the light had flashed yellow just as they entered that intersection.
Dyess testified on his own behalf and stated that he had not been exceeding the 30-miles-per-hour limit at any time just prior to the accident. He stated that he knew this because he had checked his speedometer.
Moreover, there was evidence that Rizzo had failed to stop, as required, before entering the intersection. The original accident report of Officer Michael R. Miller stated that a factor in causing the collision was Rizzo's failure to yield the right-of-way. Additionally, Cecilia Totten, who was proceeding south on Park street, approached the intersection at approximately the time of the collision. She testified that she was "very sure" that Rizzo had not made the required stop before entering the intersection.
Rizzo was cited under a municipal ordinance for failure to yield the right-of-way. This municipal citation was dismissed after the criminal charge was brought against Dyess. The circuit judge, citing Barren v. State, 55 Wis.2d 460, 463, 198 N.W.2d 345 (1972), refused to allow the ordinance violation to be used for impeachment purposes. Accordingly, the jury was not informed that there ever was a municipal action brought against Rizzo. 4
At the time of the jury instruction conference, the trial judge was persuaded, over the objection of defense counsel, to include the substance of Civil Jury Instruction No. 1290 in the instructions to the jury. 5
This civil jury instruction found expression in the jury instruction in the following form:
The trial court went on to point out, however, that more than a finding of negligence was required to sustain a criminal conviction under sec. 940.08, Stats.:
The jury returned a verdict of guilty. Because of Dyess' prior good record, no incarceration was imposed. Rather, Dyess was directed to perform a substantial amount of community service work.
Motion for new trial was brought on several grounds, all of which were denied.
On appeal to the court of appeals, Dyess argued that the trial court had improperly permitted testimony of speed based on the opinion of non-experts' evaluation of post-collision damage, and also argued that the jury instructions were constitutionally and statutorily invalid, because they created a conclusive presumption of negligence. Additionally, it was argued that the instructions were invalid because they misdefined reasonable doubt.
The decision of the court of appeals affirmed the trial court. The opinion was largely devoted to the evidentiary questions, all of which were resolved against Dyess. 6
The argument that the jury instructions improperly and impermissibly directed the jury to find an elemental fact necessary to prove criminal conduct was disposed of in a few words:
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