State v. Heft

• Decision Date: 23 June 1994
• Docket Number: No. 92-2938-CR,92-2938-CR
• Citation: 185 Wis.2d 288,517 N.W.2d 494
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Samantha HEFT, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 494

517 N.W.2d 494

185 Wis.2d 288

STATE of Wisconsin, Plaintiff-Respondent, v. Samantha HEFT, Defendant-Appellant-Petitioner.

No. 92-2938-CR.

Supreme Court of Wisconsin.

Argued May 25, 1994.

Decided June 23, 1994.

For plaintiff-respondent the cause was argued by Marguerite M. Moeller, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

GESKE, Justice.

This is a review of a published decision of the court of appeals, State v. Heft, 178 Wis.2d 823, 505 N.W.2d 437 (Ct.App.1993), which affirmed an order of the circuit court for Racine County, Barbara A. Kluka, Circuit Judge. The circuit court denied a motion for postconviction relief filed by defendant, Samantha Heft (Heft). Heft, who was convicted of homicide by intoxicated use of a vehicle, under sec. 940.09(1), Stats., ¹ claimed she was denied her right to due process when the circuit court refused to require a witness, Daniel Cisler (Cisler), to invoke his Fifth Amendment privilege in the presence of the jury, thereby depriving her of the opportunity to present a complete defense. Though Heft admitted to driving while intoxicated, she claimed it was Cisler who, by rear-ending her car, caused the accident which resulted in the death of Heft's passenger, Todd Johnson (Johnson).

Heft also argued that sec. 905.13, Stats., ² created an unconstitutional distinction between criminal and civil proceedings by prohibiting comment upon or inference from a claim of privilege in her trial for homicide by intoxicated use of a vehicle. This distinction, according to Heft, resulted in a denial of her right to equal protection of the law when the court refused both to compel Cisler to invoke his Fifth Amendment privilege in the presence of the jury and to instruct the jury that an adverse inference could be drawn when Cisler made that invocation.

The issue before us is whether the circuit court's denial of Heft's request to require a third-party witness to invoke his Fifth Amendment privilege in the presence of the jury, pursuant to sec. 905.13, Stats., and its refusal to instruct the jury on the adverse inference it could draw from such an invocation, denied Heft her constitutional rights of equal protection under the law and due process.

We affirm the decision of the court of appeals and hold the following. First, Heft was afforded a meaningful opportunity to present a complete defense. During her trial, Heft introduced substantial evidence in the form of testimony and exhibits which supported her defense that even if she had not been under the influence of an intoxicant, Johnson would have died anyway because of witness Cisler's conduct. The circuit court admitted into evidence inconsistent out-of-court statements made by Cisler, photographs of Cisler's car, and the opinions of two accident reconstruction experts.

Second, sec. 905.13 does not violate the equal protection clause of either the Wisconsin or United States Constitution. ³ The ability of Heft to compel a third-party witness to invoke his Fifth Amendment privilege in the presence of the jury cannot be construed as a fundamental right. We find that there exists a rational basis for the distinction between civil and criminal treatment of a witness's invocation of the Fifth Amendment privilege and the inferences that can be drawn therefrom. The consequences flowing from a criminal conviction, such as the loss of one's liberty and reputation, the need for mutuality, and the potential for collusion, all provide a rational foundation for the distinction found in sec. 905.13.

Although the trial transcript is not before us, we summarize the facts using information from the criminal complaint and other records in the file. At approximately 2:30 a.m. on August 1, 1990, two police officers in the Town of Caledonia, Racine County, responded to a report of a car accident. When they arrived at the scene, they saw a Chevy Geo in a ditch alongside Highway 31. Heft was inside the car, and, according to the officers, she had an odor of intoxicants on her breath. Beer cans were also found near the car. While scanning the area of the accident, the police located Johnson lying on the ground, several yards from the car. He died as a result of the accident. It was later determined that Heft's car had crossed the center line of the highway, gone off the shoulder of the road, down a steep embankment, rolled, and crashed into several trees.

While at the hospital, police questioned Heft as to whether she had been drinking. When she answered "yes," Heft was placed under arrest for homicide by intoxicated use of a vehicle, in violation of sec. 940.09(1), Stats. A blood sample was taken, and on August 6, 1990, the lab analysis confirmed that Heft had a blood alcohol level of 0.186 per cent.

During their investigation of the accident, police interviewed Cisler, who provided the following version of events up to the time of the accident. Heft, Johnson, and Cisler were together at a bar until 1:30 a.m. on August 1, 1990. When the three were ready to leave, Heft appeared to be intoxicated, having consumed a number of rum and Cokes. Heft drove Cisler to his home and then left, with Johnson in the passenger seat. Shortly thereafter, Cisler heard the squealing of tires. He ran down the road and found Heft's car in a ditch. When Cisler asked where Johnson was, Heft said no one was with her.

It must be noted that at the preliminary hearing, one of the officers who was at the accident scene testified that two cars were present, one belonging to Cisler. Additionally, Cisler gave three to four different statements both to the police and to a friend regarding his behavior leading up to and immediately after the accident.

During her trial, Heft did not contest the elements of the crime under sec. 940.09(1). In fact, she proffered a stipulation which stated that: (1) at the time of the accident, Heft was the driver of the car; (2) Johnson was a passenger in Heft's car, and his death was caused as a result of the accident which occurred while Heft was driving; and (3) Heft was driving under the influence of an intoxicant and had a blood alcohol concentration of 0.10 per cent or more at the time of the accident. However, Heft did attempt to prove the affirmative defense under sec. 940.09(2), Stats., ⁴ that since the accident was caused as a result of her car being rear-ended by another vehicle, the resulting death of Johnson would have occurred even if she had not been operating under the influence with a blood alcohol concentration in excess of 0.10 per cent or had been exercising due care.

It was Heft's contention that her car was rear-ended by another, driven by Cisler. When Cisler was called as a witness, it was done outside the presence of the jury because he invoked his Fifth Amendment right to protection from self-incrimination. Heft requested that Cisler's Fifth Amendment privilege occur in front of the jury and that the jury be instructed it could draw an adverse inference from the invocation. The circuit court denied the request, pursuant to sec. 905.13.

The defense attorney requested two special jury instructions concerning Cisler. One informed the jury that Cisler was unavailable as a witness in the trial and, therefore, no adverse inference should be drawn against either party for not calling him to the stand. The other instruction explained Heft's theory on her affirmative defense. The circuit court gave both requested instructions. Subsequently, the jury found Heft guilty. The circuit court denied Heft's motion for a new trial.

The court of appeals affirmed the circuit court order which denied Heft's postconviction motion and held that Heft was not deprived of a fair opportunity to present a defense because she was able to introduce at trial considerable evidence supporting her theory of intervening cause. Heft, 178 Wis.2d at 825, 505 N.W.2d 437. Consequently, she was not denied due process. Additionally, the court concluded that sec. 905.13 did not violate the equal protection clauses of the Wisconsin and United States Constitutions because the legislature had a rational basis for creating a distinction between criminal and civil proceedings regarding comment upon or inference from a claim of privilege. Id. The rational basis includes the fact that the "consequences of a criminal conviction are much more severe than in a civil action where typically only money damages are at stake." Id. at 833, 505 N.W.2d 437.

Whether the circuit court denied Heft the right to present a defense is a question of constitutional fact which we review de novo. In Interest of Michael R.B., 175 Wis.2d 713, 720, 499 N.W.2d 641 (1993). Heft has also challenged the constitutionality of sec. 905.13. This court's analysis of the constitutionality of a statute is a question of law which we consider without deference to the decisions of the courts below. Guertin v. Harbour Assur. Co., 141 Wis.2d 622, 633, 415 N.W.2d 831 (1987).

When the state charges a person with homicide by intoxicated use of a vehicle, it must prove beyond a reasonable doubt the following elements of the crime: (a) the defendant caused the death of another (b) while the defendant was operating a vehicle (c) while under the influence of an intoxicant. Section 940.09(1)(a), Stats. Specifically, the state must establish a causal connection between the death of the victim and the defendant's operation of a motor vehicle while intoxicated. Because the legislature has determined that driving while intoxicated is an inherently dangerous activity, the state need not prove a direct causal connection between the defendant's intoxication and the death of the victim. State v. Caibaiosai, 122 Wis.2d 587, 594, 363 N.W.2d 574 (1985).

Section 940.09(2) provides a defendant with an affirmative defense, a separate issue from the elements the state must prove and one which requires proof by preponderance of the evidence. See State v. Saternus, 127 Wis.2d 460, 480, ...