State v. Hubbard

Decision Date15 July 2008
Docket NumberNo. 2006AP2753-CR.,2006AP2753-CR.
Citation2008 WI 92,752 N.W.2d 839
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jonathan J. HUBBARD, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner the cause was argued by David J. Becker, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant there was a brief filed by Steven W. Zaleski and The Zaleski Law Firm, Janesville, and oral argument by Steven W. Zaleski.

¶ 1 DAVID T. PROSSER, J

This is a review of a published decision of the court of appeals,1 which reversed and remanded the judgment and orders of the Ozaukee County Circuit Court, Thomas R. Wolfgram, Judge.

¶ 2 Defendant Jonathan J. Hubbard (Hubbard) was convicted in a jury trial of injury by intoxicated use of a vehicle, a violation of Wis. Stat. § 940.25(1)(a).2 During deliberations, the jury requested clarification of a word or term in the jury instructions. The jury had been instructed that to convict Hubbard it was required to find beyond a reasonable doubt that: (1) Hubbard operated a vehicle; (2) Hubbard's operation of the vehicle caused great bodily harm; and (3) Hubbard was under the influence of prescription medication at the time he operated the vehicle. The court added that "`under the influence' means that the defendant's ability to operate a vehicle was materially impaired because of consumption of a prescription medication." This part of the court's instruction was based upon Wis. Stat. § 939.22(42).

¶ 3 The court sent a copy of its instructions to the jury room with verdict forms. After deliberating, the jury sent Judge Wolfgram a question: "Could the judge define `materially' impaired? Does this mean that he was impaired enough to have an effect on outcome? If not, what?"

¶ 4 We are asked to address whether the circuit court erred when it responded to the jury's request for clarification by directing the jury to "give all words not otherwise defined in the jury instructions their ordinary meaning." The State asserts that the circuit court's response was correct because the term "materially impaired" has no peculiar meaning in the context of criminal law. Hubbard contends that the circuit court's response was erroneous because "materially impaired" has a peculiar meaning in the law that was established by this court's decision in State v. Waalen, 130 Wis.2d 18, 386 N.W.2d 47 (1986). Hubbard asserts that Judge Wolfgram should have instructed the jury as to the meaning of "materially impaired" by using certain phrases in the Waalen decision.

¶ 5 We conclude that the circuit court's response to the jury's request for clarification was not error. The term "materially impaired" does not have a technical or peculiar meaning in the law beyond the time-tested explanations in standard jury instructions; therefore, the circuit court's response to the jury was not error, comported with Wis. Stat. § 990.01, and did not constitute an erroneous exercise of discretion. Accordingly, we reverse the court of appeals.

I. BACKGROUND

¶ 6 On January 27, 2005, Hubbard was involved in a two car accident. Hubbard's Mitsubishi sports utility vehicle rear-ended a Volkswagen Jetta and pushed it off the highway into a tree. The crash caused serious injuries to a nine-year-old girl who was a passenger in the Volkswagen. She suffered injuries to her head, collarbone, arm, and face. An officer at the scene described Hubbard as "disoriented" after the accident. Hubbard told the officer he had taken 13 pills of a prescription anxiety medication called Xanax3 in the 24-hour period preceding the accident. Xanax is a controlled substance. See Wis. Stat. § 961.20(2)(a) (Alprazolam).

¶ 7 On January 31, 2005, the State charged Hubbard with one count of injury by intoxicated use of a motor vehicle, contrary to Wis. Stat. § 940.25(1)(a). Ultimately, a jury trial was scheduled for March 21, 2006.

¶ 8 The parties briefly addressed jury instructions at a pretrial hearing on January 17, 2006. The State indicated that "there isn't a specific instruction dealing with causing injury by operation of a vehicle under the influence of a controlled substance." It suggested merging Wis JI— Criminal 12624 with Wis JI—Criminal 26645 to tailor an instruction to the facts of the case. This suggestion corresponded with notes 1 and 7 of the comment to Wis JI—Criminal 1262 (2004).6

¶ 9 Hubbard's attorney pointed the court to Wis JI—Criminal 2600 Operating While Intoxicated: Introductory Comment (2004). He mentioned "materially impaired" and noted that there were "a lot of options I think for the court in this sense." The court did not rule on jury instructions at the January 17 hearing.

¶ 10 Prior to the opening of Hubbard's jury trial, Judge Wolfgram stated on the record that a jury instructions conference had been held in chambers regarding a dispute over the instruction defining "under the influence." Judge Wolfgram concluded that he was going to include the word "materially" in the jury instructions in defining "under the influence" because Hubbard was charged under the Criminal Code. Neither the State nor Hubbard objected to this decision.

¶ 11 At trial the jury was instructed in part as follows:

Section 940.25(1)(a) of the Criminal Code of Wisconsin is violated by one who causes great bodily harm to another by the operation of a vehicle while under the influence of a prescription medication.

Before you may find the defendant guilty of this offense, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present.

1. The defendant operated a vehicle....

2. The defendant's operation of a vehicle caused great bodily harm to [the victim]....

3. The defendant was under the influence of a prescription medication at the time the defendant operated a vehicle.

"Under the influence" means that the defendant's ability to operate a vehicle was materially impaired because of consumption of a prescription medication.

Not every person who has consumed Xanax or alprazolam is "under the influence" as that term is used here. What must be established is that the person has consumed a sufficient quantity of Xanax or alprazolam to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle.

It is not required that impaired ability to operate be demonstrated by particular acts of unsafe driving. What is required is that the person's ability to safely control the vehicle is materially impaired.

¶ 12 Neither party objected to the instructions, which were tendered to the jury with verdict forms for "guilty" and "not guilty."

¶ 13 According to the criminal court record, jury deliberations began at 11:05 a.m. on March 23, 2006. Shortly after 1 p.m., the jury sent a written question to Judge Wolfgram, which stated: "Could the judge define `materially' impaired? Does this mean that he was impaired enough to have an effect on outcome? If not, what?"

¶ 14 Following the jury's question, Judge Wolfgram heard argument from Hubbard's attorney and the State regarding how to respond. Initially Judge Wolfgram proposed using language from Waalen to define the term "materially impaired" for the jury. The proposed language hereinafter referred to as "the Waalen language," was:

"material impairment" under sec. 939.22(42), Stats., exists when a person is incapable of driving safely, or is without proper control of all those faculties ... necessary to avoid danger to others.

Waalen, 130 Wis.2d at 27, 386 N.W.2d 47 (citation and internal quotation marks omitted). The State objected to the court using this language to respond to the jury's request for clarification.

¶ 15 Judge Wolfgram noted that the jury's question included quotation marks around the word "materially," not the term "materially impaired." The circuit court considered sending the jury definitions of the word "material," or variations of the word "material," from Black's Law Dictionary, Webster's Dictionary, and Encarta Online Dictionary.

¶ 16 After hearing arguments from Hubbard's attorney and the State, Judge Wolfgram concluded that "the Waalen language" should not be submitted to the jury. He concluded that "the Waalen language" did not define "materially impaired"; instead, it cited two examples of circumstances that constitute material impairment. Over the objection of Hubbard's attorney, Judge Wolfgram submitted a printed note to the jury that read: "Please give all words not otherwise defined in the jury instructions their ordinary meaning."

¶ 17 The jury returned a guilty verdict at 2:13 p.m., less than one hour after receiving the court's response.

¶ 18 On April 11, 2006, Hubbard was sentenced. Prior to sentencing, Hubbard filed a motion for a new trial, arguing that Judge Wolfgram's response to the jury's request for clarification was error. The parties presented argument regarding the motion immediately after sentencing. Hubbard maintained that "the Waalen language" defined "material impairment" and asserted that the introductory comment to Wis JI—CRIMINAL 2600 also indicates that "the Waalen language" should be used to define "material impairment." Judge Wolfgram orally denied Hubbard's motion.

¶ 19 On October 11, 2006, Hubbard filed a second motion for a new trial. He filed a second motion because his first was filed and determined prior to the entry of the judgment of conviction. Judge Wolfgram entered an order denying Hubbard's post-conviction motion for a new trial on October 19, 2006.

¶ 20 Hubbard appealed the circuit court's judgment of conviction and its orders denying his motions for a new trial. The court of appeals determined that "materially impaired" has a "peculiar meaning in the context of criminal charges" and that Waalen clarified the meaning of the term. Hubbard, 306 Wis.2d 356, ¶ 12, 742 N.W.2d 893....

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