State v. Fonte, 2003AP2097-CR.

• Decision Date: 15 June 2005
• Docket Number: No. 2003AP2097-CR.,2003AP2097-CR.
• Citation: 2005 WI 77,698 NW 2d 594
• Parties: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Peter A. Fonte, Defendant-Appellant.
• Court: Wisconsin Supreme Court

2005 WI 77

698 NW 2d 594

State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Peter A. Fonte, Defendant-Appellant.

No. 2003AP2097-CR.

Supreme Court of Wisconsin.

Oral Argument: March 10, 2005.

Opinion Filed: June 15, 2005.

For the plaintiff-respondent-petitioner the cause was argued by William L. Gansner, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

For the defendant-appellant there was a brief and oral argument by Martha K. Askins, assistant state public defender.

¶ 1 PATIENCE DRAKE ROGGENSACK, J

The State seeks review of a court of appeals decision reversing the conviction of Peter Fonte for homicide by intoxicated operation of a vehicle under Wis. Stat. § 940.09 (2001-02),¹ after a boating accident that resulted in the death of one of Fonte's friends. The five issues presented on appeal² are: (1) whether the jury instruction that was given for chemical tests of intoxication denied Fonte of a fair trial; (2) whether there was sufficient evidence in the record that Fonte was operating the boat at the time of the accident to support the conviction; (3) whether Fonte was denied effective assistance of counsel; (4) whether Fonte's motion for change of venue due to pretrial publicity should have been granted; and (5) whether § 940.09 is constitutional. Because we rule against Fonte on each issue, we reverse the court of appeals and remand the case to the circuit court with directions to reinstate Fonte's conviction.

I. BACKGROUND

¶2 This case arose from a boating accident on Geneva Lake on July 16, 2001. Several days before, Fonte and a group of friends had gathered for a concert at Alpine Valley. The group stayed in the area, and on the day of the accident, they rented a motorboat to spend a day on the lake. The group included Fonte, Traci Paladino, Chad Mattingly, Lee Bovarnick, Kelly Pleffner and Christopher Gibbs.

¶3 While they were out on the lake, at least four people jumped into the water to swim, including Paladino, Pleffner and Gibbs. Pleffner testified that the motor was idling and the boat was drifting while they swam. Pleffner saw the boat coming toward her when it was approximately five feet away. She attempted to dive below the surface of the water to avoid the boat, but felt the bottom of the boat scrape her side. When Pleffner resurfaced, she saw Gibbs and heard someone ask, "Where's Traci?" Pleffner then noticed there was blood in the water. Several members of the group jumped in the water to search for Paladino. Shortly thereafter the Water Safety Patrol arrived and a dive team took up the search.

¶4 Walworth County sheriff's deputies took the group to the City of Lake Geneva Police Department where officers separated them for individual questioning. Walworth County Deputy Sheriff Jeffery Patek interviewed Fonte. Fonte identified himself as Anthony Michaels. Patek smelled intoxicants coming from Fonte and noticed that his eyes were bloodshot and his speech was impaired. Patek asked Fonte if he had been drinking and Fonte stated that he had not. Patek performed the horizontal gaze nystagmus test on Fonte, and based on the results of this test, Patek concluded that Fonte was "under the influence of intoxicants." Fonte was given a breathalyzer test that registered an alcohol content of .06% at approximately 9:00 p.m.

¶5 Patek asked Fonte if there was anything Fonte needed to tell him. Fonte told Patek that when the swimmers jumped into the water he believed he had put the boat into neutral. Fonte then stated that he stood up from the controls and walked away. Patek placed Fonte under arrest and Fonte submitted to a blood draw at approximately 10:42 p.m. Analysis of his blood showed his blood alcohol content was then .052%.

¶6 Fonte was charged with homicide by the operation of a vehicle while under the influence of an intoxicant and with a prohibited alcohol concentration (PAC) contrary to Wis. Stat. § 940.09(1)(a) and (b).³ Paladino's body was recovered approximately five months after the accident and the parties stipulated that the boat propeller caused her death.

¶7 Fonte moved to change venue due to extensive pretrial publicity that he argued would prejudice the jury if selected in Walworth County. The court denied the motion for a change of venue, and stated that a fair trial could be achieved through careful screening of the jury.

¶8 The trial began March 11, 2002 and resulted in Fonte's conviction. The circuit court⁴ imposed a 25-year bifurcated sentence, consisting of seven years of confinement and 18 years of extended supervision. Fonte moved for post-conviction relief, alleging several errors at trial. The court denied the motion. On appeal, the court of appeals reversed Fonte's conviction based on its conclusion that the jury instruction regarding chemical tests for intoxication was misleading, and remanded to the circuit court for a new trial. The State appealed the reversal, and both sides briefed the remaining issues that the court of appeals did not decide.

II. DISCUSSION

A. Standard of Review

¶9 Fonte raises five issues, each of which has its own standard of review. Regarding the jury instruction issue, a circuit court has broad discretion in deciding whether to give a particular jury instruction. A court must exercise its discretion to "fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence." State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996) (citation omitted). However, we independently review whether a jury instruction is an accurate statement of the law applicable to the facts of a given case. State v. Groth, 2002 WI App 299, ¶8, 258 Wis. 2d 889, 655 N.W.2d 163.

¶10 In reviewing the sufficiency of the evidence to support a conviction, we do not overturn a jury's verdict "unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." See State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990).

¶11 The standard of review for ineffective assistance of counsel's components of deficient performance and prejudice present mixed questions of law and fact. State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990) (citing Strickland v. Washington, 466 U.S. 668, 698 (1984)). A circuit court's findings of historic fact, "the underlying findings of what happened," will not be overturned unless clearly erroneous. State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985). Questions of whether counsel's performance was deficient and prejudicial are questions of law we review de novo. Id.

¶12 "We review [a circuit] court's denial of [a] change of venue motion under the erroneous exercise of discretion standard." State v. Albrecht, 184 Wis. 2d 287, 306, 516 N.W.2d 776 (Ct. App. 1994). However, we independently evaluate the circumstances "'to determine whether there was a reasonable likelihood of community prejudice prior to, and at the time of, trial and whether the procedures for drawing the jury evidenced any prejudice on the part of the prospective or empaneled jurors.'" Id. (quoting State v. Messelt, 178 Wis. 2d 320, 327-28, 504 N.W.2d 362 (Ct. App. 1993)).

¶13 And finally, the constitutionality of Wis. Stat. § 940.09 is a question of law that we review de novo. See Maurin v. Hall 2004 WI 100, ¶93, 274 Wis. 2d 28, 682 N.W.2d 866.

B. Jury Instruction

¶14 The State argues that the jury instruction properly explained the law regarding chemical tests for intoxication under Wis. Stat. § 885.235.⁵ We agree and therefore conclude that the instruction did not deprive Fonte of his right to due process of law.

¶15 "The validity of [a] jury's verdict [is affected by] the correctness of the jury instructions." State v. Dodson, 219 Wis. 2d 65, 87, 580 N.W.2d 181 (1998). "A challenge to [a conviction based on] an allegedly erroneous jury instruction warrants reversal and a new trial only if the error [is] prejudicial." Fischer v. Ganju, 168 Wis. 2d 834, 849, 485 N.W.2d 10 (1992). "An error is prejudicial if it probably and not merely possibly misled the jury." Id. at 850. We will not reverse a conviction if the overall meaning communicated by the jury instructions was a correct statement of the law. See State v. Paulson, 106 Wis. 2d 96, 108, 315 N.W.2d 350 (1982).

¶16 At trial, the State submitted a proposed instruction that allowed the jury to find that Fonte had a PAC of 0.1 or higher at the time of his operation of the boat as prima facie evidence that he was under the influence of an intoxicant at that time. Fonte objected, arguing that the proposed instruction should not be given because his blood draw was taken more than three hours after the alleged operation. The court concluded that Wis. Stat. § 885.235(3) allows a jury to find that a PAC of 0.1 or higher is prima facie evidence of the defendant being under the influence when expert testimony establishes that the results of the delayed blood draw and the test have the effect of showing the defendant's blood alcohol level would have been 0.1 or higher at the time of the operation of the motor vehicle. Accordingly, because it found that the necessary nexus of expert opinion evidence was presented, it gave the following instruction:

Evidence has been received that a sample of the defendant's breath and blood were taken—was taken. An analysis of the samples has also been received. If you are satisfied beyond a reasonable doubt that there was.10% or more by weight of alcohol in the defendant's blood, or .10 grams or more of alcohol in 210 liters of the defendant's breath at the time of operation, you may find from that fact alone that the defendant was under the influence of an intoxicant at the time of the alleged operating, but you are not required to do so.

¶17 Fonte argues that the jury instruction...