State v. Harvey
| Decision Date | 06 October 2022 |
| Docket Number | 2021AP1689-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Dreama F. Harvey, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Not recommended for publication in the official reports.
APPEAL from a judgment of the circuit court for Jackson County No 2015CF95: MARK L. GOODMAN, Judge.
Before Fitzpatrick, Graham, and Nashold, JJ.
¶1 Dreama Harvey appeals a judgment of the Jackson County Circuit Court convicting her of one count of first degree reckless homicide by delivery of heroin ("count 1") and a separate charge of delivery of heroin ("count 2"). Regarding count 1, the State presented evidence at trial that Harvey delivered heroin to D.B., and D.B. died later that same night as a result of ingesting that heroin.[1] As for count 2, the State presented evidence that Harvey delivered a second packet of heroin to D.B. before his death, but D.B. did not ingest that heroin.[2]
¶2 The parties agree that the State did not present evidence that a person in addition to Harvey was implicated in the delivery of heroin to D.B. that was the basis for count 1. The jury instruction read to the jury by the circuit court and the written instruction given to the jury for its deliberations, for count 1 instructed the jury on the State's chosen method of proof that Harvey delivered the heroin directly to D.B. that resulted in D.B.'s death. However, the written and read instructions also included two other methods of proof which did not require that Harvey directly delivered heroin to D.B.: Harvey aided and abetted another in the delivery of heroin to D.B. as a party to a crime ("PTAC"); and Harvey was one participant in the chain of delivery of heroin to D.B., contrary to Wis.Stat. § 940.02(2)(a)3. (we refer to this method of proof as "chain of delivery").[3] In general verdicts, the jury convicted Harvey of both counts.
¶3 On appeal, Harvey argues that the judgment of conviction for count 1 must be reversed and a new trial granted. According to Harvey, the circuit court violated her right to due process by: giving the jury a legally inaccurate instruction regarding first degree reckless homicide; and instructing the jury on two methods of proof that were not supported by evidence sufficient to convict her. Harvey further contends that reversal of her conviction is required because, in violation of a directive of our supreme court, the circuit court altered the written jury instructions given to the jury for its deliberations after the jury instruction conference and without informing counsel of the changes. In the alternative, Harvey argues that she must be resentenced because the circuit court erroneously exercised its discretion in imposing an unduly harsh sentence on count 1.
¶4 We conclude that the jury instruction for count 1 did not violate Harvey's right to due process. First, the instruction was legally accurate. Second, although the circuit court erroneously instructed the jury on two methods of proof that were not supported by sufficient evidence, that error did not violate Harvey's right to due process because the jury was also instructed on the method of proof of direct delivery of heroin by Harvey to D.B., and that method was supported by sufficient evidence. As for Harvey's argument that the circuit court's alleged alteration of the written jury instructions after the jury instruction conference requires reversal, we conclude that this argument fails from a factual standpoint and from a lack of authority. Finally, the circuit court did not erroneously exercise its discretion in imposing Harvey's sentence on count 1. Accordingly, we affirm Harvey's judgment of conviction and sentence.
¶5 The following material facts are gleaned largely from pretrial pleadings of the parties and the trial transcript.
¶6 Officers with the Black River Falls Police Department were dispatched to the apartment of Joyce McLevain based on a report of an unresponsive person. Upon arrival, the officers found that the person, later identified as D.B., was deceased. An officer searched D.B.'s clothing and found a foil packet in his pocket that was later confirmed to contain heroin.[4] A medical examiner concluded that heroin ingested by D.B. was a substantial factor in D.B.'s death.[5]
¶7 Police officers interviewed Michael Bearfield, McLevain's son, who was present at McLevain's apartment on the night of D.B.'s death. In the interview, Bearfield stated that he was at Murphy's Pub the night of D.B.'s death and witnessed Harvey sell a packet of heroin to D.B. Bearfield stated that he later saw D.B. snort the heroin in the bathroom of Murphy's Pub. According to Bearfield, D.B. purchased another packet of heroin from Harvey later that night at the McLevain apartment.
¶8 Harvey was arrested and charged with one count of first degree reckless homicide by delivery of a controlled substance contrary to Wis.Stat. § 940.02(2)(a) (count 1).[6] In an interview with police officers, Harvey denied delivering heroin to D.B. at Murphy's Pub, but she acknowledged being involved in a sale of heroin to D.B. later than evening at McLevain's apartment. Harvey provided a written statement describing the following version of events concerning the night of D.B.'s death. Harvey visited Murphy's Pub that evening with a person named Michael Gates. At Murphy's Pub, D.B. approached Harvey and asked if she could provide to him "any type of drugs." Harvey left Murphy's Pub, drove with Gates to Gates' residence to obtain heroin, then drove with Gates to McLevain's apartment. According to Harvey, Gates, and not her, sold heroin to D.B. at the McLevain apartment. The interviewing officer asked Harvey if she was the "middle man" in that transaction (which was the factual basis for count 2) and she stated, "pretty much."
¶9 Harvey pleaded not guilty to the charge and filed a pre-trial motion requesting permission to introduce evidence at trial that Gates delivered heroin to D.B. on the night of D.B.'s death. The circuit court granted Harvey's motion.
¶10 Later, the State moved to amend the information to add a second charge, delivery of heroin contrary to Wis.Stat. § 961.41(1)(d)1. (count 2).[7] The State's motion alleged that Harvey delivered heroin to D.B. twice on the night of his death: the first delivery occurred at Murphy's Pub and involved the heroin that caused D.B.'s death; the second delivery occurred at McLevain's apartment and concerned the heroin found in D.B.'s pocket by police. The circuit court granted the motion.
¶11 At trial, Bearfield testified that he had been at Murphy's Pub with D.B. the night of D.B.'s death. The State then played the recording of Bearfield's police interview. However, Bearfield, who is Harvey's cousin, told the jury that he did not remember participating in that interview. Bearfield stated that he was "under the influence" of drugs during the interview and that his statements in that interview could not be trusted. Nonetheless, Bearfield admitted before the jury that he had not "made up" anything he said in the interview with police.
¶12 Kari Gomes, who was Bearfield's girlfriend at the time of D.B.'s death, testified that Bearfield called her shortly after D.B.'s death. In that call, Bearfield told her that D.B. had overdosed, and that Harvey sold D.B. the heroin on which D.B. overdosed.
¶13 Timothy Coupe testified at trial to the following. Coupe was at Murphy's Pub the night of D.B.'s death. He saw Harvey arrive at Murphy's Pub that night and leave after about five to eight minutes. Coupe did not recall seeing any interaction between D.B. and Harvey at Murphy's Pub. Later that evening, Coupe left Murphy's Pub and drove D.B., Bearfield, and McLevain to McLevain's apartment. D.B. appeared intoxicated during the drive because D.B.'s eyes were "rolling around" and his head was "leaning forward." Once they reached the apartment, D.B. was "nodding … in and out of conversation" and "slouching over standing up." Harvey arrived at the apartment about one hour later, gave D.B. a small plastic bag in exchange for money, then left after a few minutes. Coupe left soon after this exchange, leaving D.B. at McLevain's apartment with Bearfield and McLevain.
¶14 The State introduced at trial the written statement provided by Harvey during her post-arrest interview with police. As already noted, in the statement and the interview Harvey denied delivering heroin to D.B. at Murphy's Pub; stated that she was with Gates when Gates delivered heroin to D.B. at McLevain's apartment; and stated that she was "pretty much" the "middleman" for that heroin sale between Gates and D.B. ¶15 Following the close of evidence, the circuit court conducted a jury instruction conference with the parties and discussed the parties' proposed instructions. The parties did not dispute the portions of the proposed instructions for counts 1 and 2 regarding the method of proof that Harvey directly delivered heroin to D.B. Harvey objected to the instructions proposed by the State after the close of evidence regarding two alternate methods of proof: (1) PTAC based on Harvey aiding and abetting Gates in delivering heroin to D.B.; and (2) chain of delivery. The circuit court denied Harvey's objections, explaining that those methods of proof were properly before the jury as those were supported by sufficient evidence. That portion of the trial transcript leaves ambiguous the following: whether the State proposed those jury instructions about alternative methods for count 1, count 2, or both; whether Harvey was referencing count 1, count 2, or both when she objected to the proposed instructions about the two alternate methods of proof; and whether the circuit court, in ruling on those proposed...
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