State v. Mitchell, 90-2474-CR

• Decision Date: 05 June 1991
• Docket Number: No. 90-2474-CR,90-2474-CR
• Citation: 473 N.W.2d 1,163 Wis.2d 652
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Todd MITCHELL, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 1

473 N.W.2d 1

163 Wis.2d 652

STATE of Wisconsin, Plaintiff-Respondent, v. Todd MITCHELL, Defendant-Appellant. ^d

No. 90-2474-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 29, 1991.

Opinion Released June 5, 1991.

Opinion Filed June 5, 1991.

Bernard Goldstein of Goldstein & Kagen, Milwaukee, for defendant-appellant.

James E. Doyle, Atty. Gen., and Paul Lundsten, Asst. Atty. Gen., for plaintiff-respondent.

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

BROWN, Judge.

Todd Mitchell challenges the constitutionality of the "hate crimes" penalty enhancer law in Wisconsin, sec. 939.645, Stats., claiming that it is vague and overbroad and violates equal protection principles. We hold that the statute clearly gives persons of ordinary intelligence fair notice of the conduct prohibited, provides standards for those who enforce the laws, and does not "chill" citizens from exercising protected constitutional freedoms. Thus, the statute is neither vague nor overbroad. We will not reach the equal protection issues because of waiver. We also discuss other nonconstitutional issues and affirm.

Gregory Reddick, a fourteen-year-old white male, was walking down a street near the Renault apartment building in Kenosha. He was wearing "British Knights" brand athletic shoes. Several black males rushed across the street at Reddick, knocked him to the ground, surrounded him, and beat him until he was unconscious. Police found him a short time later, still unconscious, and with his shoes missing. Reddick was severely injured; he was comatose for about four days; and his injuries might have been fatal had he not received medical treatment.

Testimony revealed the following facts about the beating and theft. A group of young black men and boys were gathered at the Renault apartment building on the evening of the incident. Mitchell, who was nineteen at the time, was one of the older members of the group. Some of the group were inside the apartment complex discussing the movie "Mississippi Burning;" in particular, they were talking about that part of the movie where a white man beat a young black boy who was praying. There was no evidence that Mitchell was involved in this discussion.

About ten members of the group that was inside moved outdoors. There, people were talking about the movie. Before the victim appeared, Mitchell said to the gathering, "Do you all feel hyped up to move on some white people?"

A short time later, Reddick approached on the other side of the street. Reddick said nothing provocative. Mitchell said, "You all want to fuck somebody up?" Then he said, "There goes a white boy; go get him." He counted to three and pointed this way and that way, indicating that the group should surround Reddick.

Several persons in the group immediately took off running toward the white youth. Most ran directly at him. One person in the group kicked Reddick, knocking him to the ground. Several attackers then surrounded Reddick and repeatedly stomped, kicked and punched him. This lasted about five minutes. One of the attackers said he thought Reddick was dead.

One of the attackers returned from the beating possessing Reddick's "British Knights" shoes. He showed them to different people. Mitchell was in the area when the shoes were being shown.

Mitchell was convicted of aggravated battery, party to a crime, and the jury separately found that Mitchell intentionally selected the battery victim because of the victim's race, pursuant to sec. 939.645, Stats. Mitchell was also convicted of theft, party to a crime.

Mitchell's major challenge is to the constitutionality of sec. 939.645, Stats., dubbed the "hate crimes" statute. The constitutionality of a statute is a question of law which this court may review without deference to the trial court. State ex rel. Jones v. Gerhardstein, 141 Wis.2d 710, 733, 416 N.W.2d 883, 892 (1987). Here, there is not even a trial court opinion to review, as the constitutionality issues are raised for the first time on appeal. Nonetheless, challenges to the facial constitutionality of statutes are a matter of subject matter jurisdiction and, therefore, cannot be waived. State ex rel. Skinkis v. Treffert, 90 Wis.2d 528, 536-39, 280 N.W.2d 316, 320-21 (Ct.App.1979). The equal protection argument, however, is not a challenge to the facial constitutionality of the statute. We deem this specific argument waived and we will not address it.

Before addressing Mitchell's vagueness and overbreadth challenges to sec. 939.645, Stats., we briefly touch upon the burden he must carry. Generally, when a defendant challenges the constitutionality of a statute, he or she bears the heavy burden of establishing beyond a reasonable doubt that the statute is unconstitutional. State v. Dums, 149 Wis.2d 314, 319-20, 440 N.W.2d 814, 815-16 (Ct.App.1989). The defendant must do this in light of the strong presumption favoring the constitutionality of the statute. State v. Hurd, 135 Wis.2d 266, 271, 400 N.W.2d 42, 44 (Ct.App.1986).

There is an exception to that rule. When a statute infringes on the exercise of first amendment rights, the burden of establishing its constitutionality is on its proponent. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577-78, 29 L.Ed.2d 1 (1971). Mitchell claims that the statute punishes activities protected by the first amendment. He therefore argues that the state has the burden in this case. For the reasons that follow, we disagree and impose the burden on Mitchell himself.

We first discuss the vagueness argument. Section 939.645, Stats., provides an increase in penalties for any person committing a crime under chs. 939 to 948, Stats., who, in addition:

Intentionally selects the person against whom the crime ... is committed or selects the property which is damaged or otherwise affected by the crime ... because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property.

Section 939.645(1)(b), Stats. (emphasis added).

Mitchell points to two terms in the statute, "intentionally selects" and "race" as being undefined and ambiguous. He claims two consequences result. First, that the statute fails to give proper notice of prohibited conduct. Second, that the statute encourages arbitrary or erratic convictions because there are no guidelines for prosecutors or police.

Mitchell's claims track the two-step process in determining vagueness claims. The steps are: (1) the statute must be sufficiently definite to give persons of ordinary intelligence who seek to avoid its penalties fair notice of the conduct required or prohibited; and (2) the statute must provide standards for those who enforce the laws and adjudicate guilt. State v. McManus, 152 Wis.2d 113, 135, 447 N.W.2d 654, 662 (1989).

A legal principle to be kept in mind when analyzing a statute for vagueness is that the statute need not define with absolute clarity and precision what is and what is not unlawful conduct. Hurd, 135 Wis.2d at 272, 400 N.W.2d at 45. For the statute to be unconstitutional, the ambiguity must be such that "one bent on obedience may not discern when the region of proscribed conduct is neared, or such that the trier of fact in ascertaining guilt or innocence is relegated to creating and applying its own standards of culpability rather than applying standards prescribed in the statute or rule." State v. Courtney, 74 Wis.2d 705, 711, 247 N.W.2d 714, 719 (1976).

It should be further noted that a defendant who plainly falls within the prohibited zone of a statute cannot mount a vagueness challenge by building a case for some hypothetical person who might lie outside the zone. See id. at 713, 247 N.W.2d at 719.

The first claim is that the terms "intentionally selects" and "race" are not defined in the statute and are incapable of clear understanding by an ordinary person. We do not agree. The word "intentionally" is defined in the criminal code. Section 939.23(3), Stats., states in pertinent part:

"Intentionally" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result. In addition ... the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word "intentionally".

Thus, the word "intentionally" means a purpose to do the things specified. It is easily defined.

The word "selects" is also easily defined. We find it difficult to believe that persons of ordinary intelligence would not understand what this word means. Even so, when undefined, nontechnical words are used in a statute, they are given their ordinary and accepted meaning which may be ascertained from a recognized dictionary. State v. Wittrock, 119 Wis.2d 664, 670, 350 N.W.2d 647, 651 (1984). Webster defines "select" as "to take by preference from a number or group: pick out." Webster's New Collegiate Dictionary 1047 (1977). Therefore, the term "intentionally selects" means to purposely pick out.

Mitchell also argues that the word "race" is ambiguous. We construe his argument here to be that persons of ordinary intelligence do not know the difference between the term "race" and "color," another term used in the statute. We do not need to resort to a recognized dictionary to resolve this claim. Reddick was white and is of a different race and color than the attackers. The statute prohibits purposely picking out a person of race or color. Under either term, the law was violated. We do not understand, and Mitchell does not enlighten us, how he has standing to raise this particular argument since his conduct plainly falls within the prohibited zone of the statute regardless of the literary difference between the terms "race" and "color." This issue is meritless and we discuss it no further.

Having determined that the term ...