State v. Williams
| Decision Date | 19 October 2016 |
| Docket Number | No. 2015AP2044–CR.,2015AP2044–CR. |
| Citation | 888 N.W.2d 1,372 Wis.2d 365 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Marie WILLIAMS, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Andrea Taylor Cornwall and Carly M. Cusack, assistant state public defender of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas J. Balistreri, assistant attorney general, and Brad D. Schimel, attorney general.
Before REILLY, P.J., GUNDRUM and HAGEDORN, JJ.
¶ 1 We granted Marie Williams' petition for leave to appeal,1 which was supported by the State, to determine whether entitlement to "immun[ity] from prosecution" under WIS. STAT. § 961.443 as an "aider" of a person believed to be suffering from a drug overdose is to be decided by the circuit court pretrial or by the fact finder at trial. The circuit court ruled the question should be determined at trial; Williams and the State assert it should be determined pretrial. We also address which party carries the burden of proof on the immunity question and by what standard. Williams and the State agree the burden should be on the defendant to prove by a preponderance of the evidence that he/she is entitled to this statutory immunity. Lastly, Williams argues she is entitled to immunity not only on the charges that correspond to the crimes specifically listed in the statute but also on related bail jumping charges.2 The State contends that if Williams is entitled to immunity, it is only on the charges that correspond to the specific crimes listed in the statute.
¶ 2 We agree with Williams and the State that the question of immunity is to be decided by the circuit court pretrial and that the defendant carries the burden of proving by a preponderance of the evidence his/her entitlement to the immunity. On the final issue, we agree with the State that if Williams is entitled to immunity, the immunity only applies to the charges related to the specific crimes listed in the statute. We reverse and remand for further proceedings.
¶ 3 The State charged Williams as a repeater on the following seven counts: one count of possession of a controlled substance, under WIS. STAT. § 961.41(3g)(b) ; one count of possession of narcotic drugs, as a party to the crime, under § 961.41(3g)(am) ; one count of possession of drug paraphernalia, as a party to the crime, under WIS. STAT. § 961.573(1) ; and four counts of bail jumping under WIS. STAT. § 946.49(1)(b). According to the criminal complaint, on February 7, 2015, a deputy with the Kenosha County Sheriff's Department responded to a single-vehicle accident. The deputy observed that the passenger of the vehicle "appeared to be unconscious, but breathing." The driver of the vehicle, Williams, claimed she was taking the passenger to the hospital because he had overdosed on drugs. Based on field sobriety testing and observations of Williams, the deputy believed Williams "appeared to be under the influence of a Narcotic Analgesic or heroin." She was ultimately cited for OWI.
¶ 4 Upon searching the vehicle, the deputy located a Morphine
Sulfate pill, drug paraphernalia, and a GPS electronic ankle monitor, which Williams claimed had fallen off. Another deputy at the scene located an unlabeled medication bottle filled with pills, which Williams stated were alprazolam. Williams admitted to earlier ingesting two alprazolam pills in addition to "a Percocet." She claimed to have a prescription for the alprazolam and the Percocet pills.
¶ 5 Each of Williams' four bail jumping charges stem from the fact that, at the time of this incident, Williams was charged with and released on bond in relation to a felony in an earlier Racine County case. Three of the bail jumping charges relate to her allegedly "intentionally fail[ing] to comply with the terms of her bond" by committing the three drug-related crimes with which she is charged in this case. The fourth bail jumping charge relates to her allegedly intentionally failing to comply with an electronic monitoring term of her bond.
¶ 6 Williams moved the circuit court to dismiss all charges except the bail jumping charge related to electronic monitoring. She argued she was entitled to immunity as an "aider" under WIS. STAT. § 961.443(1)(a) in that she (1) had been attempting to take the passenger to the hospital because she believed he was suffering from a drug overdose and (2) had remained on the scene after the accident to advise the deputies the passenger had overdosed. The State opposed Williams' motion, arguing that Williams was not entitled to immunity based upon the specific facts of the case.
¶ 7 At the hearing on Williams' motion, the circuit court declined to rule on the immunity question, concluding it was an issue to be decided by a fact finder at trial, not by the court pursuant to a pretrial motion. The court subsequently issued an order denying the motion. Williams filed her petition for leave to appeal based upon this nonfinal order, and we granted the petition.
When and by whom immunity is determined
¶ 8 We agree with Williams and the State that a circuit court should determine pretrial whether a defendant, such as Williams, is entitled to immunity pursuant to WIS. STAT. § 961.443.3 If the defendant meets the requirements of the statute, the charges for which immunity is provided thereunder must be dismissed; if not, they may proceed.
¶ 9 This appeal requires us to interpret WIS. STAT. § 961.443. Interpretation of a statute is a matter of law we review de novo.
State v. Simmelink, 2014 WI App 102, ¶ 5, 357 Wis.2d 430, 855 N.W.2d 437. Section 961.443 provides:
¶ 10 The legislature did not expressly provide in WIS. STAT. § 961.443 for who should make the immunity decision and when that decision should be made. During the hearing on Williams' motion to dismiss, the circuit court indicated its belief that the protection of this statute should be treated as an affirmative defense and the issue resolved by the fact finder at trial. Williams and the State assert the decision should be made by the court pursuant to a pretrial motion.4 We conclude Williams and the State are correct. While the circuit court's approach may (or may not) ultimately result in a defendant's acquittal, it would subject the defendant to the burden of prosecution, which the statute specifically protects against.
¶ 11 The plain language of the statute makes an individual who is entitled to its protection "immune from prosecution" for the specified crimes. See WIS. STAT. § 961.443(2). "Immunity" is an "exemption from a duty, liability, or service of process." Immunity, BLACK'S LAW DICTIONARY (10th ed.2014); see also Bryan A. Garner, GARNER'S DICTIONARY OF LEGAL USAGE 427 (3rd ed. 2011) ("[I]mmune can take to or from, depending on nuance. In the most refined usage, what you're immune from
can't touch you; what you're immune to can touch you, but without effect."); Immunity, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993) (defining "immunity" as "freedom or exemption from a charge, duty, obligation, office, tax, imposition, penalty, or service esp. as granted by law to a person or class of persons"). This understanding of "immunity" comports with that of our supreme court in State v. Worgull, 128 Wis.2d 1, 14, 381 N.W.2d 547 (1986), where the court, considering a question of transactional immunity, stated that a grant of such immunity "preclud[ed] the criminal prosecution" against Worgull.
¶ 12 In the criminal context, to "prosecute" means to initiate and pursue a criminal action against a person. See Prosecute, BLACK'S LAW DICTIONARY (10th ed.2014) ("[p]rosecute" means "[t]o commence and carry out [a legal action]"; "[t]o institute and pursue a criminal action against [a person]"); Bryan A. Garner, GARNER'S DICTIONARY OF LEGAL USAGE 723 (3rd ed.2011) ("[p]rosecute" means "to begin a case at law for punishment of a crime or of a legal violation"; "to institute legal proceedings against [a person] for some offense"); Prosecute, WEBSTER'S THIRD NEW INTERNATIONAL LAW DICTIONARY (1993) ("[p]rosecute" means "to institute legal proceedings against; esp: to accuse of some crime or breach of law or to pursue for redress or punishment of a crime or violation of law in due legal form before a legal tribunal"; "to institute legal proceedings with reference to" a claim, an application, an action,...
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