State v. Killory
| Decision Date | 30 June 1976 |
| Docket Number | No. 75--47--CR,75--47--CR |
| Citation | 73 Wis.2d 400,243 N.W.2d 475 |
| Parties | , 99 A.L.R.3d 840 STATE of Wisconsin, Respondent, v. John KILLORY, Appellant. |
| Court | Wisconsin Supreme Court |
Robert H. Friebert, Milwaukee, for appellant; Thomas W. St. John and Samson, Friebert, Finerty & Burns, Milwaukee, on brief.
David J. Becker, Asst. Atty. Gen., for respondent; Bronson C. La Follette, Atty. Gen., and Frank T. Crivello, Asst. Dist. Atty. of Milwaukee County, on brief.
The defendant has obtained a doctorate degree in counseling psychology. At the time of the events giving rise to this charge, he was employed as a professor of psychology at a college. In the early fall of 1973, he and his family, consisting of his wife and one daughter, took into their home the defendant's niece, Judy, born December 21, 1957, pursuant to an agreement with defendant's sister, who is Judy's mother, and the sister's estranged husband, who is Judy's father. Judy was considered a behavior problem by her parents. Her behavior was discussed with the defendant, who diagnosed her as a 'psychopath' and indicated that he could help her with her problems through a treatment method involving reward and punishment. There is a dispute as to whether the child's parents were informed of the exact nature of the punishment which would be imposed. Judy's mother and father brought her to the defendant's home to live on September 11, 1973. Several days prior to this, the defendant had visited the school which Judy would attend while living with him and had informed the guidance counselor that his niece was a psychopath and that he would be treating her by means of corporal punishment.
Judy remained in defendant's home from September 11, 1973, until September 28, 1973. When she arrived, she was given a set of rules to follow and punishment for breaking the rules was explained. During the subsequent period of approximately two and one half weeks, she received punishment on six separate occasions.
The punishment consisted of whippings and enemas. The whippings were administered with several different types of instruments. These consisted of three paddles of various sizes and weights, a whip-like instrument constructed from a broom handle with leather strands studded with hardened balls of a glue-type substance, a second whip-like instrument with leather strands, and a leather belt with a brass buckle on it.
On September 11th, defendant struck the victim with each instrument in order to demonstrate to her what punishment she would receive when she violated a prescribed rule. She was struck with the whip-like instruments and the belt on the rear and thighs while holding onto a bench in front of her in a standing position, legs apart, head down completely naked. She was struck with the paddles while lying naked across the defendant's lap. The victim was struck on that day a total of 47 times. She remembered the exact number of times because she was required to count out each stroke.
On the following day, the victim left a note informing defendant that she was going to the lake but went instead to the store. For this, she was punished under the same conditions described above by being struck on the rear and thighs a total of 37 times with the whip-like instrument studded with the balls of glue-type substance.
On September 16th, two enemas, consisting of four quarts of salted water, which the victim was required to mix, were administered for the purpose of demonstration. She was struck with a wire with a solder ball on the end of it when she was unable to hold the second enema.
On three subsequent occasions, the victim received punishments similar in condition and severity to those described above. As a result of these punishments, the victim had bruises evident on her legs which alarmed members of the high school staff. Her father was contacted by the school principal, custody was transferred by telephone to the principal, and Judy was removed from defendant's home.
The following issues were presented to the circuit court on appeal and raised again on this appeal:
1. Is sec. 940.201, Stats., unconstitutionally vague or overbroad?
2. Did the circuit court err in determining that the trial court did not abuse its discretion in sentencing defendant?
The following issues were not presented to the circuit court on appeal, but are presented for the first time on this appeal. In this particular case, and for reasons hereinafter stated, we address them:
4. Did the trial court err in overruling defendant's motion to dismiss?
5. Was there error in jury instruction?
6. Was there sufficient evidence to support the jury verdict?
7. Were certain of the state's exhibits the result of an unlawful search and seizure?
VAGUENESS AND OVERBREADTH.
Sec. 940.201, Stats., provides:
Defendant challenges the constitutionality of the statute on the ground that the term 'cruel maltreatment' is too vague to give reasonable notice of proscribed conduct. The circuit court determined that the statute is not unconstitutionally vague. This conclusion was not in error.
A most recent discussion by this court of the issue of statutory vagueness was undertaken in Butala v. State (1976), 71 Wis.2d 569, 239 N.W.2d 32, wherein it was stated at pp. 573, 574, 239 N.W.2d at p. 34, that:
'An allegation that a statute is vague is based upon the procedural due process requirement of fair notice. The primary issue raised by such a challenge is whether the statute taken as a whole is sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise the judge and jury of standards for the determination of guilt. State v. Zwicker (1969), 41 Wis.2d 497, 507, 164 N.W.2d 512, 517, states:
"'. . . If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional."'
However, a statute need not be so specific as to delineate each and every mode of conduct embraced by its terms:
State v. Alfonsi (1967), 33 Wis.2d 469, 480, 147 N.W.2d 550, 557, citing from Boyce Motor Lines v. United States (1952), 342 U.S. 337, 340, 72 S.Ct. 329, 96 L.Ed. 367.
See also: State v. Zwicker (1969), 41 Wis.2d 497, 506, 164 N.W.2d 512.
In State v. Samter (1971), 4 Or.App. 349, 479 P.2d 237, 238, the court upheld the constitutionality of the following statute:
'Any person, not being a parent of the child, who knowingly and wilfully cruelly mistreats and maltreats a child under the age of 1 years, shall be punished . . .' (emphasis ours.)'
In the course of its opinion, the court addressed the meaning of the term 'cruel mistreatment and maltreatment,' pp. 239, 240:
'The words 'mistreat' and 'maltreat' are synonymous. They mean to treat badly or to abuse another. In the statute under consideration, these words are modified by the word 'cruelly,' which means to cause pain or hurt. These are all words of general or common usage and about which there is no great dispute as to meaning. It may be that in every instance not all persons would agree whether certain specified conduct was sufficiently beyond the normal to constitute cruel mistreatment. However, there would be no misunderstanding of the nature of the yardstick being applied.
We find the reasoning therein persuasive with respect to the vagueness challenge to sec. 940.201, Stats. The terms utilized in the statute are sufficiently definite in meaning, in accordance with their common usage and understanding, to meet constitutional standards. Butala v. State, supra; State v. Driscoll (1972), 53 Wis.2d 699, 703, 193 N.W.2d 851.
Defendant also contends that the statute is unconstitutionally overbroad in that it infringes upon the parental rights to choose methods of child discipline.
In State v. Driscoll, supra, pp. 701, 703, 704, 193 N.W.2d pp. 854, 855, the test for overbreadth was stated in the following terms:
'. . . The test of overbreadth is whether the language of the section is so broad as to discourage conduct expressly protected by the constitution, i.e., conduct the state has no right to prohibit . . .
'. . ..
Under this test, sec. 940.201, Stats., is not overly broad. The state has the right to...
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Bowers v. State
...condition"); State v. Samter, supra, 479 P.2d 237 ("who knowingly and wilfully cruelly mistreats and maltreats"); State v. Killory, 73 Wis.2d 400, 243 N.W.2d 475 (1976) ("cruel maltreatment"); And see People v. Hoehl, Colo., 568 P.2d 484 (1977). What these cases demonstrate is that a standa......
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...“[A] statute need not be so specific as to delineate each and every mode of conduct embraced by its terms [.]” State v. Killory, 73 Wis.2d 400, 405–06, 243 N.W.2d 475 (1976). “ ‘A fair degree of definiteness is all that is required.’ ” Colton M. , 366 Wis.2d 119, ¶ 7, 875 N.W.2d 642 (citati......
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...Wis.2d 562, 564, 273 N.W.2d 314 (1979); and because of his failure to present the issue to the court of appeals, State v. Killory, 73 Wis.2d 400, 409-10, 243 N.W.2d 475 (1976). Finally, the defendant argues he should be given a new trial in the interests of justice. We believe the evidence ......
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