State v. Giwosky
| Decision Date | 11 January 1983 |
| Docket Number | No. 81-1307-CR,81-1307-CR |
| Citation | 109 Wis.2d 446,326 N.W.2d 232 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Daniel GIWOSKY, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Terry Magowan, Asst. Dist. Atty. for Milwaukee County (argued), for plaintiff-petitioner; E. Michael McCann, Dist. Atty., and Marquerite M. Moeller, Asst. Atty. Gen., on brief.
Waring R. Fincke, Milwaukee (argued), for defendant-respondent; Stephen M. Glynn and Shellow, Shellow & Glynn, S.C., Milwaukee, on brief.
This is a review of an unpublished decision of the court of appeals, 107 Wis.2d 741, 321 N.W.2d 366, which affirmed the trial court's order, Judge Ralph Adam Fine, presiding. The order granted the defendant's motion for a new trial on the grounds that he was denied his right to a unanimous verdict because the criminal complaint was duplicitous.
On June 16, 1980, the defendant, Daniel Giwosky, was charged with one count of battery in violation of sec. 940.19(1), Stats.1979-80. 1 The facts surrounding this charge, which are in substantial dispute, are as follows:
On June 6, 1980, the victim, John Noldin, and his friend, Dan Minesal, were carp fishing with bows and arrows in the Milwaukee River in River Hills, Wisconsin. The defendant drove by and saw the two men on his land. He stopped his car and told Noldin and Minesal that they were trespassing on his land and should leave immediately. Minesal left and started walking down the road. Noldin, who had been standing on the river bank, entered the river and began to walk upstream. The defendant then left his car and walked over to the river bank near Noldin and again told him to leave. An argument ensued between the two men. Noldin refused to leave and continued to walk upstream with his back to the defendant.
The facts are in dispute as to what happened after this point. Noldin testified that as he was walking away he saw something from the corner of his eye. He turned toward the defendant and was struck in the mouth by a "log" thrown by the defendant. The defendant testified that he threw a "piece of wood" in an underhand fashion near Noldin in order to discourage him from fishing. He testified that the wood did not strike Noldin nor did he throw it with the intent to strike Noldin.
Noldin then climbed out of the river. He ran up to the defendant and said, "Are you crazy, throwing a log," or words to that effect. The parties' testimony was again substantially different as to what ensued next. Noldin testified that the defendant then punched him in the nose and mouth area, causing him to fall to the ground. He got up from the ground, ran toward the defendant and struck him in the shoulder and chest. The defendant then struck Noldin again in the face, causing Noldin to fall halfway to the ground. A further struggle ensued and again Noldin was knocked to the ground by the defendant. As Noldin attempted to get up, the defendant struck him in the face with his knee and kicked him at least twice in the back while he was on the ground.
Dan Minesal's testimony corroborated Noldin's description of the later stages of the assault. He testified that as he was walking away he heard arguing. He ran back to where the defendant's car was parked. He saw the defendant striking Noldin in the face with his fist. He saw Noldin fall to his knees and the defendant striking Noldin in the face with his knee. He also saw the defendant kicking Noldin in the back at least twice.
The defendant presented a substantially different version of the events on the river bank. He testified that when Noldin scrambled out of the river they began arguing and Noldin struck the first blow. They struggled and the defendant saw Minesal approaching. He testified that he became frightened that Minesal was going to get involved and so he punched Noldin in order to incapacitate him. Noldin fell to the ground and the defendant admits to striking Noldin in the face with his knee, but claims he did this because Noldin grabbed his legs. He denied kicking Noldin in the back. 2
Noldin testified that as a result of the incident he suffered a broken upper tooth plus multiple bruises to the nose and mouth area and to his back. He originally testified that the log broke the tooth, but on cross-examination testified that he wasn't sure when his tooth broke. He did testify that his mouth was bloody as he scrambled out of the water. The defendant testified that the tooth broke when he struck Noldin on the river bank.
A three-day trial, which included a jury view of the scene, was conducted by Judge Ralph Adam Fine. The court instructed the jury on the State's burden of proof as to the four elements of battery as follows:
The court then went on to describe in greater detail each element of battery. The court concluded the instruction on the elements of the battery, stating:
The court instructed the jury on self-defense. It also gave the following unanimity instruction:
The jury returned a verdict finding the defendant guilty. The defendant was sentenced to seven months Huber and a $5,000 fine. The defendant filed a motion for a new trial claiming, among other things, that the defendant's right to a unanimous verdict was violated. The trial court granted the defendant's motion, finding that the complaint was "clearly duplicitous" in that it joined in a single count two separate offenses. The court reasoned that the log throwing incident was "clearly separate" from the incident at the river bank. The court of appeals affirmed, also finding the complaint to be duplicitous and stating that "the log striking incident and the physical fight between the two men were two factually distinct incidents." It held that two separate counts of battery were necessary to protect the defendant's right to a unanimous verdict.
The issue on review is whether the defendant's right to a unanimous verdict was violated because the trial court did not instruct the jury that it had to be unanimous as to whether the defendant committed battery when he threw the piece of wood or whether he committed battery during the altercation on the river bank. Because we believe that the defendant's behavior constituted one continuous course of conduct and that no issue of self-defense was sufficiently raised by the evidence, we hold that his right to a unanimous verdict was not violated by the instructions given. We conclude that under the facts of this case unanimity requires that the entire jury agree that the defendant intentionally committed an act which caused bodily harm. No agreement is required as to which act constituted battery because it was a continuous act. 3
The defendant contends that the standard of review in this case is that the trial court's decision to grant a new trial will not be disturbed in the absence of a clear showing of an abuse of discretion. While this is clearly the general rule, Larry v. Commercial Union Ins. Co., 88 Wis.2d 728, 733, 277 N.W.2d 821 (1979), it is inapplicable to this case. The trial court ordered a new trial on the grounds that the criminal complaint was duplicitous. The court of appeals, relying on the abuse of discretion standard of review, affirmed on the same basis. However, both parties agree that the complaint which charged the defendant with a single count of battery was correct. If this is so, a complaint charging the defendant with two counts, as envisioned by both lower courts, would be multiplicious. 4 Therefore because the decisions of the lower courts were based on an error of law, this court is not bound to deference to those decisions. This court's review is de novo and the court must make an independent review of the entire record. Just v. Misericordia Hospital, 61 Wis.2d 574, 581, 213 N.W.2d 369 (1974); Felkl v. Classified Risk Ins. Corp., 24 Wis.2d 595, 597, 129 N.W.2d 222 (1964).
The right to a jury trial is guaranteed by secs. 5 and 7 of the Wisconsin Constitution. This constitutional right to a jury trial has long been construed by this court to include the right to a unanimous verdict. Boldt v. State, 72 Wis. 7, 14-16, 38 N.W. 177 (1888); Vogel v. State, 138 Wis. 315, 332-33, 119 N.W. 190 (1909); Holland v. State, 91 Wis.2d 134, 138, 280 N.W.2d 288 (1979). Linked to this unanimity requirement is the requirement that the prosecution must prove each essential element of the offense beyond a reasonable doubt. Holland, 91 Wis.2d at 138, 280 N.W.2d 288. "Recognizing the unanimity requirement and the reasonable-doubt standard, it is clear that the jury must agree unanimously that the prosecution has proved each essential element of the offense beyond a reasonable doubt before a valid verdict of guilty can be...
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