State v. Lamson, 88-2208-CR
| Decision Date | 27 June 1989 |
| Docket Number | No. 88-2208-CR,88-2208-CR |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey C. LAMSON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Polk County.
REVERSED AND CAUSE REMANDED.
APPEAL from a judgment of the circuit court for Polk county: JAMES R. ERICKSON, Judge.
Jeffrey Lamson appeals a judgment of conviction for eluding an officer in violation of sec. 346.04, Stats. Lamson contends that there is insufficient evidence to support the judgment because the trial court erroneously instructed the jury that they must find that Lamson eluded a traffic officer in a marked squad car. Because the court's instruction as to the elements of the offense bound the jury to find sufficient evidence on each element even though the elements were erroneously stated and there is no evidence that the traffic officer was in a marked squad car, this court concludes that there is insufficient evidence to support Lamson's conviction.
Lamson passed a half-ton red Ford pickup driven by Brian Fellrath in a no passing zone. Fellrath is a DNR conservation warden and a Polk County part-time deputy sheriff. Fellrath pursued Lamson's vehicle, placing a flashing light called a fireball upon the vehicle's dashboard, and activating a siren and two flashing red lights mounted on each side of the grill. The parties agree that Lamson sought to elude Fellrath, who called for assistance prior to initiating a high-speed pursuit of Lamson's vehicle. Lamson also concedes for purposes of this appeal that Fellrath is a traffic officer within the meaning of the applicable statute.
Section 346.04(3) provides that no operator having received a visual or audible signal from a traffic officer or a marked police vehicle shall knowingly flee or attempt to elude any traffic officer. 1 The statute is cast in the alternative, so that attempting to elude an officer after receiving a visual or audible signal from either a traffic officer or a marked police vehicle violates the statute.
At trial, the court instructed the jury that before Lamson could be found guilty, the jury must find that Lamson operated a motor vehicle on a highway after receiving a visual or audible signal from a traffic officer in a marked police vehicle. The court further instructed the jury that Lamson must knowingly attempt to elude the officer by wilfully disregarding the visual and audible signal so as to interfere with or endanger the operation of a marked police vehicle and the traffic officer. Neither party objected to the instruction.
In its instruction, the court required the jury to find both that Fellrath was a traffic officer and that he was in a marked police vehicle, rather than merely one or the other. Thus, the court's instruction was clearly in error.
The issue presented in this case is troubling and the analysis difficult because it is clear that the jury found that there was sufficient evidence to prove beyond a reasonable doubt each of the elements required by the statute. Because the evidence is clearly sufficient to convict Lamson of the offense, it is tempting to conclude that the erroneous instruction did not prejudice Lamson and as such was harmless error, and then proceed to measure the sufficiency of the evidence against the elements required by the statute rather than those given to the jury by the court.
However, such an analysis permits the jury to ignore the court's instructions so long as the court's instructions are at some later date determined to be erroneous. This is not the law in Wisconsin. A court's instructions establish the law of the case, which must be accepted by the jury. "Generally, we assume that a jury follows the instructions given by the trial court." Ford Motor Co. v. Lyons, 137 Wis.2d 397, 457 n. 20, 405 N.W.2d 354, 378 n. 20 (Ct.App.1987) (citing Danow v. United States Fidelity & Guar. Co., 37 Wis.2d 214, 224, 154 N.W.2d 881, 886 (1967)). Other jurisdictions are in accord. See, e.g., Tarrell v. Erdmann, 221 N.W.2d 504, 507 (Iowa 1974); Wall v. Van Meter, 223 S.W.2d 734, 736 (1949). This principle provides the basis for the rule that an unobjected-to error in an instruction need not be addressed on appellate review. Sec. 805.13(3), Stats., see also Ford Motor, 137 Wis.2d at 459 n. 22, 405 N.W.2d at 379 n. 22. The unobjected-to error has established the law of that proceeding and is binding on all parties thereto.
Lamson does not appeal on the ground of error in the jury instruction. He appeals on the ground of insufficiency of the evidence, given the erroneous instruction. Therefore, this court must review this allegation of error as it relates to the instruction actually given. The doctrine that the court's instructions establish the law against which the sufficiency of the evidence must be tested is reflected by the following statement:
An instruction not objected or excepted to is not before the appellate court for review, but must for the purposes of the case be taken as the law. Right or wrong, the instruction becomes the law of the case and is binding upon the jury, except where they are judges of the law, as well as on the court and counsel. The rule applies where the sufficiency of the evidence is sought to be challenged on motion for a new trial.
75 Am.Jur.2d Trials sec. 927 (1974).
In State v. Courtney, 74 Wis.2d 705, 247 N.W.2d 714 (1976), the defendant objected to the trial court's addition of an element to the offense charged. The jury was instructed to find not...
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