State v. Kuntz

• Decision Date: 03 April 1991
• Docket Number: No. 88-1565-CR,88-1565-CR
• Citation: State v. Kuntz, 467 N.W.2d 531, 160 Wis.2d 722 (Wis. 1991)
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Harold W. KUNTZ, Defendant-Appellant-Cross Petitioner. d
• Court: Wisconsin Supreme Court

Page 531

467 N.W.2d 531

160 Wis.2d 722

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v.Harold W. KUNTZ, Defendant-Appellant-Cross Petitioner.^d

No. 88-1565-CR.

Supreme Court of Wisconsin.

Argued Oct. 5, 1990.

Decided April 3, 1991.

Christopher G. Wren, Asst. Atty. Gen., with whom on the briefs, was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent-petitioner.

Charles Bennett Vetzner, Asst. State Public Defender, for defendant-appellant-cross petitioner.

BABLITCH, Justice.

The State of Wisconsin(State) appeals a decision of the court of appeals which reversed Harold Kuntz's (Kuntz) conviction for arson to a building.The court of appeals concluded that because the jury instructions relieved the State of its burden of proving each element of arson beyond a reasonable doubt, the conviction must be reversed.153 Wis.2d 772, 452 N.W.2d 585.We conclude that although the circuit court's instruction created a mandatory conclusive presumption as to an element of the arson charge, the presumption did not play any role in the jury's verdict.Consequently, this case presents the rare situation in which a conclusive presumption regarding an element of the crime is harmless error.Therefore, we reverse the court of appeals on this issue.

Kuntz raises four additional issues challenging his convictions for first-degree murder and burglary/battery: 1) whether the prosecution could use illegally obtained custodial statements of the defendant to impeach the testimony of a prosecution witness; 2) whether evidence of uncharged misconduct by the defendant eleven and sixteen years earlier was admissible; 3) whether evidence of a prior misdemeanor conviction of a crime not involving dishonesty may be used to impeach the defendant's credibility; and 4) whether convictions and punishment for both first-degree murder and burglary/battery constitute multiple punishments for the same offense.We find no merit with respect to these issues, and, accordingly, we affirm the court of appeals' decision on these issues.

On September 18, 1987, Harold Kuntz was convicted of three felonies: committing battery in the course of a burglary, contrary to sec. 943.10(2)(d), Stats.;¹ arson contrary to sec. 943.02(1)(a);² and first-degree murder, contrary to sec. 940.01.³Kuntz's convictions stem from occurrences on the evening of March 1, 1987, at the Twin Oaks Trailer Court near Whitewater, Wisconsin where Kuntz's estranged wife, Karen Kuntz, lived with her daughters Sandy and Susan Bowers.

Karen Kuntz testified that at about 10 p.m. on the night in question, she returned to the trailer park with her friend Dan Deegan.As they entered the trailer park, Ms. Kuntz saw the defendant's red pickup truck approaching the intersection with its lights off.She recognized the defendant as the driver and observed the truck enter the main highway and travel "a ways" before turning on its lights.

When Ms. Kuntz arrived at her mobile home, she smelled smoke.Although both doors of the mobile home had been locked when she left the mobile home at 9 p.m. that evening, she discovered the front door unlocked and the back door wide open.She discovered her daughter Sandy Bowers lying behind the front door.Ms. Bowers was unconscious and had blackened eyes and head injuries.A pathologist at trial testified that Bowers' skull had been "shattered like an eggshell," probably by a blunt instrument with a thin wedge point, and that these injuries were the cause of her death 18 days later on March 19.

Ms. Kuntz's brother and Deegan put out the fire in the mobile home.The State at trial presented opinion testimony that the fire had been deliberately set by an open flame in two distinct areas within the bedroom of the mobile home.

Harold Kuntz was arrested on the morning of March 2, 1987 while sleeping at the home of Beverly Salmon.Salmon later testified that she had arrived home shortly after 10:00 p.m. on March 1 to find Kuntz waiting for her in his truck in the driveway.She also testified that at his suggestion she and Kuntz took a ride.They travelled on back roads to Beloit and Milwaukee before arriving back at her home at about 4:00 a.m. on March 2.Somewhere during this journey Kuntz apparently lost or disposed of his boots which were missing when they returned to Salmon's.

Shortly after Kuntz's arrest, he was taken to an interview room at the jail and given Miranda warnings.SeeMiranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).Kuntz contends that he told police he did not want to talk, that he had a lawyer, and that he wanted to go back to his cell.Less than four hours later the same officer again brought the defendant to the same interview room and, defendant asserts, began interrogating him without issuing new Miranda warnings.At this point, Kuntz made statements to the police indicating that he had not been at the Twin Oaks Trailer Park the previous evening.

At trial, Karen Kuntz testified that she had seen the defendant's truck drive past her mobile home with its lights off four or five times on February 23, 1987.She testified that she talked to the defendant on February 25, 1987, after he had followed Deegan's car.The defendant had told her he needed her and that if he couldn't have her nobody else could and that she would be sorry if she went through a divorce.Ms. Kuntz further testified that the defendant had threatened her on previous occasions as well, stating that she would never own anything, that he would destroy anything she owned, and on two occasions that he would kill her children.Several other witnesses testified that they had heard Kuntz threaten to hurt Karen Kuntz and her children and destroy her property.

The defendant testified on his own behalf at trial.He admitted that he went to the trailer court on March 1 around 10 p.m.He drove past Karen Kuntz's mobile home and then came back out to the intersection without stopping because Karen's car was not there.At the intersection he stopped his truck, shut off the lights, and made some notes about a plumbing job he had just completed.After he completed that task and began moving forward in the truck, he saw another car coming towards him, but he could not identify anyone in that vehicle.

The jury found Kuntz guilty of all three charges after a five-day trial.The circuit court sentenced Kuntz to life in prison for the first-degree murder conviction and twenty years each for the arson and burglary/battery convictions to be served consecutively.The court of appeals affirmed Kuntz's convictions for murder and burglary/battery, but reversed the arson conviction and ordered a new trial.

Additional facts are set forth below.

Jury Instructions

The first issue is whether the circuit court relieved the State of its burden of proving every element of the arson charge beyond a reasonable doubt in violation of Kuntz's due process rights.The court of appeals held that the jury instruction, "[a] mobile home is a building," relieved the State of its burden of proving a necessary element of the offense--that a "building" was damaged by fire.We hold that although the instruction was erroneous because it created a mandatory conclusive presumption regarding an element of the arson offense, the error was harmless.

After both parties rested, the circuit court and counsel conferred regarding the jury instructions.The court proposed to use the pattern arson instruction, Wis JI--Criminal 1404.The pattern instruction contains no reference to a trailer or mobile home.Neither party raised a question whether a trailer or a mobile home is a building, for purposes of sec. 943.02(1)(a), Stats., and neither party objected to the proposed use of the standard arson instruction.

When the conference ended at 10:33 a.m., the circuit court recessed for ten to fifteen minutes.When the court reconvened, it noted that counsel"now have instructions copies and copies of the verdict."The copies of the arson instructions contained the additional sentence, "[a] mobile home is a building."The circuit court did not inform either party that this sentence had been added to the standard instruction.The court immediately called in the jury, and the parties made their final arguments.No part of the arguments touched on the issue of whether a trailer or a mobile home is a building.

At 1:05 p.m., the court recessed for lunch and then reconvened at 2:17 p.m.The jury returned to the courtroom and was orally instructed, including the arson instruction with the additional words.Neither party objected during or after the instructions.

As a preliminary matter, we note that the judge should have alerted both parties that it had added language to the standard jury instructions after the instructions conference.To prevent this specific issue from arising in the future, we exercise our superintending authority under article VII, sec. 3(1) of the Wisconsin Constitution to declare that the circuit courts of this state must inform counsel of changes they make to jury instructions following the instructions conference.We believe that this rule is necessary to ensure that both parties are aware of the actual content of the jury instructions.

Whether the jury instructions given by the circuit court violated Kuntz's right to due process is a question of law.State v. Zelenka, 130 Wis.2d 34, 43, 387 N.W.2d 55(1986).This court must decide questions of law independently without deference to the decision of the lower courts.Id.

We hold that although the jury instructions created a mandatory conclusive presumption regarding an element of the arson offense, this case presents one of the exceedingly rare situations in which a conclusive presumption is harmless error because we are confident the error did not play any role in the jury's verdict.

Section 943.02(1)(a), Stats., requires the State to prove that a building has been damaged by fire.A separate statute, sec. 943.03...