State v. Schumacher

• Decision Date: 09 June 1988
• Docket Number: No. 86-0499-CR,86-0499-CR
• Citation: 144 Wis.2d 388,424 N.W.2d 672
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Richard R. SCHUMACHER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 672

424 N.W.2d 672

144 Wis.2d 388

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Richard R. SCHUMACHER, Defendant-Appellant.

No. 86-0499-CR.

Supreme Court of Wisconsin.

Argued March 30, 1988.

Decided June 9, 1988.

Marguerite M. Moeller, Asst. Atty. Gen., Donald J. Hanaway, Atty. Gen., for plaintiff-respondent-petitioner.

Robert Crawford, argued, Crawford Law Firm, on brief, Milwaukee, for defendant-appellant.

HEFFERNAN, Chief Justice.

This case comes to us on a petition by the state to review an unpublished court of appeals decision ¹ which reversed a judgment of the circuit court for Grant county, John R. Wagner, circuit judge, and remanded for a new trial. Because we conclude that the court of appeals erred on matters of both procedure and of substance, we reverse the court of appeals decision.

The issues in this case are these: First, to what extent the court of appeals may discretionarily review instructional errors allegedly made at trial, but not objected to there; and, second, whether the state's decision to offer proof of Schumacher's guilt on welfare fraud contrary to sec. 49.12, Stats., under a continuing crime theory amounted to proof, the duplicitous nature of which denied Schumacher his right to both a unanimous jury and the right to be found guilty beyond a reasonable doubt on every element of the crime charged.

We conclude that the court of appeals erred when it exercised its discretion to review trial court instructions to which no objection was made at trial. We also conclude that the trial court correctly allowed the charge of welfare fraud to go to the jury as a continuing crime, and therefore defendant was not deprived of a unanimous verdict.

The case arose thus: Richard Schumacher (Schumacher) was charged with two counts of welfare fraud under sec. 49.12(6), Stats. ² The first count alleged that Schumacher had failed to report income received, and that over a five-month period, he had received a fraudulent overgrant of welfare payments in the amount of $245. And, on a second charge, that over a second, four-month period, his failure to report income had resulted in a fraudulent overgrant of $869. An overgrant is an overpayment of welfare funds to one originally eligible for a certain level of payment, but who is no longer eligible for this level of payment because of unreported outside (non-welfare) payments.

At trial, the state introduced evidence that the first count resulted from Schumacher's failure to report income on three different occasions: $90 on September 13, 1983; $180 on January 19, 1984; and $30 on February 10, 1984. The state's case was that this $300 in unreported payments resulted in an overgrant of $245. Regarding count two, the state introduced evidence that Schumacher had failed to report income on eight occasions: $120 on August 1, 1984; $100 on August 17, 1984; $100 on August 20, 1984; $50 on August 23, 1984; $25 on August 18, 1984; $651 on September 6, 1984; $60 on September 12, 1984; and $37 on September 20, 1984. The state's case was that this total in unreported payments resulted in an overgrant of $869. The state did not charge all the occasions of overgrant as one continuing offense, because in the interim between the two periods charged, Schumacher went off public assistance payments.

The unreported monies which led to the overgrants all derived from defendant's employment with two employers. He received unreported compensation from the Grant County Sheriff's department for occasional work as a deputy sheriff, and from Rowley Transportation Company, for occasional work performed as a trucker.

The state also offered proof of Schumacher's conversations with the local official in charge of detecting cases of welfare fraud. According to proof adduced, Schumacher had on several occasions asked detailed questions on how one could "play the system" and get away with welfare fraud.

At the end of the trial, and before the jury was instructed, the court read the proposed instructions and verdict forms into the record. There were no objections to them by either the prosecution or the defense. ³ These instructions and proposed verdicts followed the theory of the prosecution that Schumacher was guilty of two separate continuing offenses of welfare fraud. Thus, the verdicts did not break the offenses down occasion by occasion, or month by month, but followed the original two charges in the case, such that the eleven separate occasions of failure to report income were combined into two separate offenses. The defense never objected to these proposed verdicts.

The trial court instructed the jury in conformity to the instructions accepted by the parties. ⁴ Subsequently, the defendant was found guilty of both counts of welfare fraud. On the first count, the jury found that he had received a fraudulent overgrant of $245, and, on the second count, that he had received a fraudulent overgrant of $869.

The court withheld sentence and instead imposed a two-year term of probation on count one, a concurrent four-year term on count two, with three months in the county jail on count one, and six months, concurrent, on count two as a condition of the respective probations.

The defendant filed a motion for post-conviction relief, which was deemed denied after sixty days had run and the trial court had not responded. ⁵ Thereafter, the defendant filed an appeal from the judgment of conviction.

On appeal, the defendant argued that the charges against him at the trial court had been duplicitous, and that such duplicity deprived him of his constitutional right to a unanimous jury, and that he had been denied his constitutional right to have the state prove at trial each essential element of the offenses to the "beyond a reasonable doubt" standard. The state countered that defendant's failure to challenge either the information, or the proof, at trial should bar him from raising the duplicity issue for the first time on appeal. The state further argued that the proof was not duplicitous.

The court of appeals reversed. The court concluded that the proof of welfare fraud at the trial had been fatally duplicitous. The court reasoned that, because the trial court had not instructed the jury that the state had the burden to prove each element of the offense beyond a reasonable doubt, and because the jury was not told that it had to be unanimous in its finding of guilt as to each offense (i.e., each unreported non-welfare payment), the jury could have found the defendant guilty on both counts by merely finding that, sometime during the time periods, Schumacher had failed to report some income. Further reasoning that this amounted to a failure to hold the state to its responsibility to prove each element of the offense, or each offense, the court of appeals concluded that defendant must have a new trial and reversed the trial court judgment.

Regarding the state's argument that the defendant's failure to raise the issue at trial should prevent him from raising the argument for the first time on appeal: The court of appeals stated that the failure to instruct went to the "integrity of the factfinding process," a standard which the court of appeals understood this court to have laid out in State v. Shah, 134 Wis. 2d 246, 254, 397 N.W.2d 492 (1986). The appeals court reasoned that, because of the failure to object at trial, the review of the error was discretionary with the court, rather than reviewable as a matter of right. However, the appeals court reasoned that this court had indicated that such discretion to review ought to be exercised broadly by all appellate courts of this state when the integrity of the factfinding process was implicated.

In dissent, Judge Dykman cited two lines of authority for his position that the court should not have reached the duplicity issue, because the defendant had failed to raise it at trial. First, Judge Dykman cited sec. 805.13(3), Stats., ⁶ and State v. Olsen, 99 Wis.2d 572, 582, 299 N.W.2d 632 (Ct.App.1980), for the proposition that a failure to object operates as a waiver, even where a federal constitutional right is at stake. Judge Dykman further cited cases in which this court has interpreted the limitation contained in sec. 805.13(3), such as Air Wisconsin, Inc. v. North Central Airlines, Inc., 98 Wis.2d 301, 296 N.W.2d 749 (1980), and In Interest of C.E.W., 124 Wis.2d 47, 368 N.W.2d 47 (1985), to the effect that the purpose of the requirement for an objection was to give the trial court an opportunity to correct the error, and the appellate court an opportunity to review the grounds for the objection.

A second line of authority examined by Judge Dykman was the State v. Shah, 134 Wis.2d 246, 397 N.W.2d 492 (1986), and State v. Baldwin, 101 Wis.2d 441, 304 N.W.2d 742 (1981), line of cases. Judge Dykman did not understand these cases to be granting the appeals court a discretionary right of review whenever there was an error which, in the court of appeals' judgment went to the "integrity of the factfinding process." Instead, he believed that, while the supreme court had such power of review, the court of appeals did not, and ought not to, have it. The reason offered was that, while the supreme court is a law-making court, the court of appeals is a high-volume, error-correcting court, which does not need a discretion so broad that it can reach even error which has been waived by operation of sec. 805.13(3), Stats.

To determine the question of how broad a discretion the court of appeals ought to have to address appeals from unobjected-to instructional error, ⁷ a review of the recent statutes and of the cases decided by this court is appropriate.

Prior to January 1, 1976, the effective date of sec. 805.13(3), Stats., the common law of this state was that a failure to object to instructions amounted to a waiver of any right to raise the issue of erroneous instruction on appeal. See, e.g., Schmidtke v. Great...