State v. Neumann

• Decision Date: 03 July 2013
• Docket Number: Nos. 2011AP1044–CR, 2011AP1105–CR.,s. 2011AP1044–CR, 2011AP1105–CR.
• Citation: 832 N.W.2d 560,2013 WI 58,348 Wis.2d 455
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Dale R. NEUMANN, Defendant–Appellant. State of Wisconsin, Plaintiff–Respondent, v. Leilani E. Neumann, Defendant–Appellant.
• Court: Wisconsin Supreme Court

348 Wis.2d 455
832 N.W.2d 560
2013 WI 58

STATE of Wisconsin, Plaintiff–Respondent,
v.
Dale R. NEUMANN, Defendant–Appellant.
State of Wisconsin, Plaintiff–Respondent,
v.
Leilani E. Neumann, Defendant–Appellant.

Nos. 2011AP1044–CR, 2011AP1105–CR.

Supreme Court of Wisconsin.

Argued: Dec. 4, 2012.
Decided: July 3, 2013.

[832 N.W.2d 567]

For the defendants-appellants, there were briefs in the court of appeals by Steven L. Miller and Miller & Miller, River Falls, and Byron C. Lichstein, Erin K. Deeley, with assistance from law student practitioner Willam R. Ackell, and Frank J. Remington Center, Madison. Oral arguments by Mr. Lichstein and Mr. Miller.

For the plaintiff-respondent, the cause was argued by Maura F.J. Whelan, assistant attorney general, with whom on the briefs in the court of appeals was J.B. Van Hollen, attorney general.

SHIRLEY S. ABRAHAMSON, C.J.

[348 Wis.2d 468]¶ 1 Eleven-year-old Madeline Kara Neumann died tragically on Easter Sunday, March 23, 2008, from diabetic ketoacidosis resulting from untreated juvenile onset diabetes mellitus.¹ Kara died when her father and mother, Dale R. Neumann and Leilani E. Neumann, chose to treat Kara's undiagnosed serious illness with prayer, rather than medicine. Each parent was charged with and convicted of the second-degree reckless homicide of Madeline Kara Neumann in violation of Wis. Stat. § 940.06(1) (2009–10), ² in separate trials with different juries.

¶ 2 Each parent appealed from the judgment of conviction of the Circuit Court for

[832 N.W.2d 568]

Marathon County, Vincent K. Howard, Judge.³

¶ 3 The court of appeals consolidated the cases for appellate decision only. ⁴ The appeals are before us on certification from the court of appeals pursuant to [348 Wis.2d 469]Wis. Stat. § 809.61 to “determine the scope of the prayer treatment exception and to inform trial courts regarding the appropriate jury instructions when that exception is raised in a reckless homicide case.” ⁵

¶ 4 The first issue, common to both parents, is whether their convictions should be reversed (and the charges dismissed) on the ground that the prosecutions for second-degree reckless homicide under Wis. Stat. § 940.06(1) were unconstitutional, when Wis. Stat. § 948.03(6) permitted them to treat Kara's illness with prayer and protected them from a criminal charge under § 948.03, the criminal child abuse statute.⁶

¶ 5 The parents contend that their treatment through prayer is expressly protected by one statute, Wis. Stat. § 948.03(6) (protection for treatment through prayer),⁷ but criminalized by another, § 940.06(1)[348 Wis.2d 470](second-degree reckless homicide), and that the statutes fail to provide them with fair notice, in violation of their due process rights, that they could be held criminally liable should their treatment through prayer fail and their child die.⁸

[832 N.W.2d 569]

¶ 6 Each parent also argues alternative grounds of prejudicial trial error. The arguments for reversal of the convictions and for a remand for new trials are as follows:

• Both parents argue that the real controversy was not fully tried because of erroneous jury instructions and because of counsels' defective performance.

• The father argues that the jury was objectively biased because it was informed that Kara's mother had previously been convicted of second-degree reckless homicide for Kara's death.

[348 Wis.2d 471]¶ 7 For the reasons set forth, we conclude that the second-degree reckless homicide statute and the criminal child abuse statute provide sufficient notice that the parents' conduct could have criminal consequences if their daughter died. We further conclude that the jury instructions were not erroneous; that trial counsels' performance was not ineffective assistance of counsel; that the controversy was fully tried; and that the jury in the father's case was not objectively biased.

¶ 8 Accordingly, we affirm the judgments of convictions and orders denying postconviction relief.

¶ 9 Here is a roadmap of this decision for ease of reference:

I. The facts. ¶¶ 10–30.

II. Due Process Fair Notice Challenge. ¶¶ 31–86.

A. Due process requires fair notice of the crime. ¶¶ 32–37.

B. The four statutes at issue are Wis. Stat. §§ 940.06(1), 948.03(3)(a), 948.03(3)(c), and 948.03(6). ¶¶ 38–46.

C. The parents' challenge to the constitutionality of the statutes is that the statutes do not provide a definite enough standard of conduct and that one criminalizes the same conduct the other protects. ¶¶ 47–61.

D. The statutes fulfill the due process fair notice constitutional requirement. ¶¶ 62–86.

III. The Real Controversy Was Fully Tried. ¶¶ 87–147.

A. The challenge to jury instructions on parent's duty to provide medical care. ¶¶ 93–121.

[348 Wis.2d 472]1. A parent has a legal duty to provide medical care to his or her child. ¶¶ 103–111.

2. The instructions on a parent's legal duty do not violate a parent's constitutional right to direct the care of his or her child. ¶¶ 112–117.

3. The statutory provision protecting treatment through prayer, Wis. Stat. § 948.03(6), does not negate the legal duty to provide medical care in a second degree reckless homicide prosecution. ¶¶ 118–121.

B. The challenge to jury instructions on religious belief. ¶¶ 122–127.

C. The challenge to the circuit court's refusal to instruct on sincere religious belief. ¶¶ 128–140.

D. The Challenge that counsels' performances were ineffective assistance of counsel and resulted in the real controversy not being fully tried. ¶¶ 141–147.

IV. The Father's Claim That the Jurors Were Objectively Biased. ¶¶ 148–160.

I

¶ 10 According to the undisputed testimony, the facts relating to the child's health and the parents' conduct were essentially the same in each jury trial and are set forth here.

[832 N.W.2d 570]

¶ 11 Madeline Kara Neumann died at 3:30 p.m. on Sunday, March 23, 2008, from diabetic ketoacidosis resulting from untreated juvenile onset diabetes mellitus.⁹ Kara had suffered gradually worsening symptoms for a few weeks before her death, leading to frequent [348 Wis.2d 473]thirst and urination, dehydration, weakness, and exhaustion, yet to the casual observer, as the State and parents stipulated, Kara would have appeared healthy as late as the Thursday before she died.

¶ 12 On the Friday night before she died, Kara was too tired to finish her homework and ate her dinner in her bedroom. On Saturday, the day before her death, Kara slept all day after asking to stay home from work at the family's coffee shop. When her mother returned home from work Saturday afternoon, Kara was pale and her legs were skinny and blue. Her mother knew that something was wrong and called her husband into the room. The parents began rubbing Kara's legs and praying for her.

¶ 13 The Neumanns do not belong to any identifiable church or religious organization, but identify as Pentecostals. They believe that there are spiritual root causes to sickness and that their prayer and strong religious beliefs will cure any health problems they encounter.

¶ 14 Kara's parents had not always relied only on spiritual healing in the past. All of their children were born in a hospital and vaccinated. The father went to a chiropractor for some ten years for back pain but [348 Wis.2d 474]believed that he was relieved of his pain through prayer. The parents decided not to go to doctors for treatment anymore, out of a belief that they would be “putting the doctor before God,” amounting to idolatry and sin.

¶ 15 The father testified that he believed that his family's overall health had improved since the family had stopped going to doctors, and thus, when the parents realized that Kara was ill on Saturday afternoon, they began to pray.

¶ 16 Soon after the parents began to pray, they enlisted the help of others, calling family and friends asking them to pray for Kara as well. The father sent a mass e-mail at 4:58 p.m. on Saturday to a listserv of like-minded people, which read:

Subject: Help our daughter needs emergency prayer!!!

We need agreement in prayer over our youngest daughter, who is very weak and pale at the moment with hardly any strength.

¶ 17 The parents testified that they did not know specifically what was wrong with Kara, thinking it could be a fever or the flu, but they knew it was serious and needed attention, so they prayed. When informed of Kara's condition, Kara's maternal grandmother suggested they take her to a doctor. The mother replied, “No, she'll be fine, God will heal her.”

¶ 18 When the family took a break from prayer to eat dinner Saturday evening, Kara remained in bed. While the family

[832 N.W.2d 571]

ate, Kara went to use the bathroom. She fell off the toilet. Her father picked her up and carried her to the couch in the living room where they could watch her. The family stayed up late praying over Kara, until finally, the parents went to sleep because they “were exhausted ... [from the] non-stop praying and just continually trusting in the Lord.”

[348 Wis.2d 475]¶ 19 According to trial testimony, by the time the family went to sleep Saturday night, Kara was unable to walk or talk. Kara's brother Luke testified that he believed Kara was in a coma. Kara's siblings stayed with her throughout the night while she lay limp and unresponsive on the couch.

¶ 20 When her father awoke early Sunday morning, around 5:00 a.m., Kara was still pale, limp, unconscious, and unresponsive, although she sometimes moaned in response to friends and family members calling her name. Her breathing was less labored than it had been the previous night.

¶ 21 Kara's mother continued to call friends and relatives to tell them about Kara's condition and ask for prayers. Various people came by the home on Sunday to pray and later, in trial testimony, witnesses characterized Kara's condition as a coma. Still, family and friends testified that everyone was at complete peace and did not sense any danger in Kara's condition.

¶ 22 Kara's father testified that death was never on their minds. He...