State v. Heft

• Decision Date: 18 August 1993
• Docket Number: No. 92-2938-CR,92-2938-CR
• Citation: 178 Wis.2d 823,505 N.W.2d 437
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Samantha HEFT, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 437

505 N.W.2d 437

178 Wis.2d 823

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

No. 92-2938-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 18, 1993.

Opinion Released Aug. 18, 1993.

Opinion Filed Aug. 18, 1993.

Before ANDERSON, P.J., and NETTESHEIM and SNYDER, JJ.

ANDERSON, Presiding Judge.

Samantha Heft appeals from an order denying her motion for postconviction relief under sec. 974.02, Stats. Her motion requested an order setting aside a judgment of conviction for homicide by intoxicated use of a vehicle in violation of sec. 940.09(1), Stats., and a new trial on the matter.

On appeal, Heft argues that her motion should have been granted because her fourteenth amendment rights to due process and equal protection were denied by the application of sec. 905.13, Stats., which prohibits comment upon or inference from a claim of privilege in criminal but not civil proceedings. We hold that Heft was not deprived of a fair opportunity to present a defense because she was able to present considerable evidence in support of her intervening cause theory. In addition, sec. 905.13 does not violate the equal protection clause of the fourteenth amendment because the legislature had a reasonable basis for distinguishing between criminal and civil actions regarding comment upon or inference from a claim of privilege. Accordingly, we affirm.

Heft has not provided this court with a complete record. Consequently, we will, when necessary, assume that "every fact essential to sustain the trial court's decision is supported by the record." Suburban State Bank v. Squires, 145 Wis.2d 445, 451, 427 N.W.2d 393, 395 (Ct.App.1988).

Heft was charged with homicide by intoxicated use of a vehicle in violation of sec. 940.09(1), Stats., and was tried and convicted by a jury. Heft did not contest the elements of the crime, but rather sought to prove the affirmative defense contained in sec. 940.09(2) that the death would have occurred even if she had been exercising due care and had not been under the influence of an intoxicant or did not have a blood alcohol concentration in excess of 0.1%. It was Heft's theory that the accident and death of her passenger, Todd Johnson, was caused by her car being rear-ended by Daniel Cisler and propelled off the roadway where it subsequently rolled over.

Cisler was called as a witness outside of the presence of the jury and he invoked the fifth amendment's protection from self-incrimination. Heft requested that the court require Cisler to invoke his fifth amendment privilege in the presence of the jury and that the court instruct the jury that it could draw an inference from Cisler's invocation. The trial court, in compliance with sec. 905.13, Stats., denied Heft's requests. Section 905.13 reads as follows:

905.13. Comment upon or inference from claim of privilege; instruction.

(1) COMMENT OR INFERENCE NOT PERMITTED. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.

(2) CLAIMING PRIVILEGE WITHOUT KNOWLEDGE OF JURY. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

(3) JURY INSTRUCTION. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.

(4) APPLICATION; SELF-INCRIMINATION. Subsections (1) to (3) do not apply in a civil case with respect to the privilege against self-incrimination.

Despite the trial court's denials, Heft was able to offer significant evidence in support of her intervening cause defense. Heft presented testimony by two accident reconstruction experts to support her claim that the accident which killed her passenger occurred when a vehicle driven by Cisler hit the car she was driving. The trial court permitted Heft to introduce out-of-court statements made by Cisler to law enforcement officers and to a civilian in which Cisler gave conflicting accounts of the accident. The court ruled that these statements were not hearsay because they were introduced not for the truth of the matter asserted, but to show Cisler's guilty state of mind. The defense also presented photographs of the Cisler vehicle. The jury subsequently found Heft guilty. The court denied her motion for postconviction relief and Heft appeals.

Heft contends that she was denied her constitutional right to due process when the trial court refused her requests that Cisler invoke the fifth amendment in the presence of the jury and that the jury be instructed that it could draw an inference from Cisler's invocation. Whether Heft was deprived of a constitutional right presents an issue of constitutional fact which is subject to independent appellate review. State v. Chambers, 173 Wis.2d 237, 251, 496 N.W.2d 191, 196 (Ct.App.1992).

As an initial observation, we question whether the invocation of the fifth amendment privilege or a jury instruction on drawing an inference from such invocation is evidence which affects Heft's opportunity to present a complete defense. Evidence is defined as the sworn testimony of witnesses, exhibits received by the trial court and any facts agreed or stipulated to by the parties or which the court has directed the jury to find. Wisconsin JI--Criminal 103. The United States Supreme Court has stated that "while the assertion of the Fifth Amendment privilege against compulsory self-incrimination may be a valid ground upon which a witness ... declines to answer questions, it has never been thought to be in itself a substitute for evidence that would assist in meeting a burden of production." United States v. Rylander, 460 U.S. 752, 758, 103 S.Ct. 1548, 1553, 75 L.Ed.2d 521 (1983). We therefore question whether there is a constitutional right to have a witness invoke the fifth amendment in front of the jury or to have the jury instructed that it may draw an inference therefrom. However, it is not necessary for us to definitively decide this issue because we hold that Heft's due process and equal protection rights were not violated.

Under the due process clause of the fourteenth amendment, criminal defendants must be afforded a meaningful opportunity to present a complete defense. California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). See also State v. Hahn, 132 Wis.2d 351, 355, 392 N.W.2d 464, 465-66 (Ct.App.1986).

The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process.

....

[However,] the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. But its denial or significant diminution calls into question the ultimate "integrity of the fact-finding process" and requires that the competing interest be closely examined.

Chambers v. Mississippi, 410 U.S. 284, 294, 295, 93 S.Ct. 1038, 1045, 1046, 35 L.Ed.2d 297 (1973) (quoting Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969)) (citation omitted).

Addressing the merits of the due process issue, Heft argues that the failure of the jurors to hear Cisler invoke the fifth amendment and to be instructed that the jurors are allowed to draw a negative inference from the invocation denied her a meaningful opportunity to present a complete defense. Two cases support our conclusion that Heft was not denied this opportunity.

In Chambers v. Mississippi, the trial court prevented Chambers from adversely examining a witness based upon Mississippi's voucher rule that states that a party may not impeach his own witness. Id. 410 U.S. at 291, 294-95, 93 S.Ct. at 1043, 1045-46. In addition, the trial court held that the hearsay rule prevented Chambers from introducing out-of-court statements the witness had made to the effect that he, not Chambers, was the actual perpetrator. Id. at 292-93, 93 S.Ct. at 1044-45. The United States Supreme Court held "that the exclusion of this critical evidence [the out-of-court statements], coupled with the state's refusal to permit [the defendant] to cross-examine [the witness], denied him a trial in accord with traditional and fundamental standards of due process." Id. at 302, 93 S.Ct. at 1049.

In the case at bar, Heft was prevented from cross-examining Cisler. In contrast with Chambers, however, Heft was allowed to introduce out-of-court statements made by Cisler. Law enforcement officers and a civilian testified regarding statements Cisler made to them. The introduction of Cisler's contradictory statements likely was more effective in establishing his guilty state of mind than would be Cisler's invocation of the fifth amendment in the presence of the jury and a jury instruction that an inference could be drawn from Cisler's invocation. The exclusion of Cisler's invocation did not cause a significant diminution in Heft's efforts to develop her defense. Cf. id. at 296-97, 93 S.Ct. at 1046. Consequently, Heft was not denied a trial in accord with traditional and fundamental standards of due process.

In State v. Whittemore, 166 Wis.2d 127, 479 N.W.2d 566 (Ct.App.1991), this court was presented with a similar issue. In Whittemore, the victim, who was hospitalized and unable to speak, was shown a picture of a suspect who was not the defendant. Id. at 135-36, 479 N.W.2d at 570-71. The trial court excluded this evidence because the response of the victim, who had since died, was ambiguous. Id. at 136-37, 479 N.W.2d at 571. We affirmed, holding that the defendant's due process rights were not violated....