State v. Zelenka

• Decision Date: 08 May 1986
• Docket Number: No. 84-224,84-224
• Citation: 387 N.W.2d 55,130 Wis. 2d 34
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Robert Steven ZELENKA, Defendant-Appellant-Petitioner, Ronald Scott Schilling and Thomas Daniel Stanton, Defendants.
• Court: Wisconsin Supreme Court

Page 55

387 N.W.2d 55

130 Wis.2d 34

STATE of Wisconsin, Plaintiff-Respondent, v.Robert Steven ZELENKA, Defendant-Appellant-PetitionerRonald Scott Schilling and Thomas Daniel Stanton, Defendants.

No. 84-224.

Supreme Court of Wisconsin.

Argued Feb. 11, 1986.

Opinion Filed May 8, 1986.

Jack E. Schairer, Asst. Public Defender, for defendant-appellant-petitioner.

Michael R. Klos, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

William A. BABLITCH, Justice.

Robert Steven Zelenka(Zelenka) appeals.Zelenka was convicted of party to the crime of first-degree murder, pursuant to sec. 939.05, Stats.He contends that two of the jury instructions at his trial violated his right to due process.We conclude that neither instruction confused the jury or affected the verdict.Accordingly, we affirm.

In December, 1975, a jury for the circuit court of Dane county convicted Zelenka as party to the crimes of first-degree murder and armed robbery, in violation of secs. 940.01(1),943.32(1)(a) and (2)and939.05, Stats., for his role in the killing and robbery of Michael Posthuma in June, 1975.Zelenka appealed his conviction to this court, which affirmed it.Zelenka v. State, 83 Wis.2d 601, 266 N.W.2d 279(1978).

Zelenka then sought habeas corpus relief in federal court.In December, 1981, the federal court dismissed his claim, ruling that he had failed to exhaust available state court remedies.On Zelenka's appeal, the federal court of appeals also held that he had failed to exhaust available state remedies.Zelenka v. Israel, 699 F.2d 421, 424(7th Cir.1983).

Subsequently, Zelenka moved the circuit court for postconviction relief, pursuant to sec. 974.06, Stats., and the court denied the motion.On appeal of the denial, the court of appeals, 371 N.W.2d 428, affirmed.Zelenka then petitioned this court for review, which we granted.

According to Zelenka's testimony at trial, Zelenka and two other men, Thomas Stanton and Ronald Schilling, met with Posthuma on June 9, 1975, in Madison in order to arrange to sell him a quarter-ton of marijuana.At that meeting Stanton and Schilling told Zelenka, in Posthuma's absence, that they planned to "rip-off" Posthuma--that is, to take $2100 in cash which Posthuma had brought to buy the marijuana.They told Zelenka that he should "hit" Posthuma.According to Zelenka, he understood "hit" to mean "strike" and he refused to do so.He did agree to help "set up" the robbery.To "set-up" the robbery, Zelenka discussed aspects of the drug deal with Posthuma, such as whether a van which Posthuma had borrowed was large enough to hold such an amount of marijuana.

Later that day the four men left Madison in the van, with Zelenka driving.Posthuma sat on the rear floor of the van with Stanton nearby on a lawn chair.Schilling sat in the front passenger's seat.At some point during the drive someone persuaded Posthuma to wear a blindfold to prevent his learning exactly where the sale would occur.According to Zelenka, Stanton told him to stop the van along a remote rural road, which he did.Zelenka heard a "thud" behind him at about the same time.Then Zelenka saw Stanton hit Posthuma in the head with a hammer several times and Schilling hit him with a pipe and repeatedly stab him with a long knife.

At trial Zelenka claimed that he did not attack Posthuma and that he tried twice to stop Schilling's knife attack by shoving Schilling away from Posthuma.He also testified that Stanton and Schilling dragged Posthuma into a nearby woods to a spot where Posthuma eventually bled to death, but that he did not help them.

After leaving Posthuma in the woods, Zelenka, Stanton and Schilling tried to clean Posthuma's blood from parts of the van.When they returned to Madison, they abandoned the van in a shopping center parking lot, after trying to wipe it clean of fingerprints.In the parking lot Schilling gave Zelenka $1000, telling him that the money was to keep him "shut up."

Zelenka also testified that, when he learned that someone had discovered Posthuma's body, he made a statement to police partly in order to learn whether Schilling was in custody.He stated that, having seen Schilling stab Posthuma, he feared that Schilling might deal similarly with him.

The State of Wisconsin(State) charged Zelenka as party to the crimes of first-degree murder and armed robbery.Section 939.05, Stats., reads as follows:

"939.05 Parties to crime.(1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although he did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.

"(2) A person is concerned in the commission of the crime if he:

"(a) Directly commits the crime; or

"(b) Intentionally aids and abets the commission of it; or

"(c) Is a party to a conspiracy with another to commit it....Such a party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime.This paragraph does not apply to a person who voluntarily changes his mind and no longer desires that the crime be committed and notifies the other parties concerned of his withdrawal within a reasonable time before the commission of the crime so as to allow the others to withdraw."

At Zelenka's trial police officers who had questioned Schilling testified to the effect that Schilling's version of events leading to Posthuma's death did not contradict Zelenka's testimony regarding his own actions, except that Schilling claimed that Zelenka had helped drag Posthuma into the woods.The officers also testified that Schilling claimed that he had stabbed Posthuma in order to make the crime look like "something else" after Stanton had hit Posthuma with a hammer.

At the jury instructions conference prior to final arguments Zelenka stated on the record that he had no objection to any proposed instruction.Following closing arguments, the court instructed the jury at considerable length.

After instructing the jury on the elements of the underlying crime of armed robbery, the court instructed the jury on the elements of the underlying crime of first-degree murder.

"First degree nurder (sic), as defined in section 940.01 of the Criminal Code of Wisconsin, is committed by one who causes the death of another human being with intent to kill that person or another.

"Before the defendant may be found guilty of murder in the first degree, the State must prove by evidence which satisfies you beyond a reasonable doubt that there were present the following two elements of this offense:

"First, that the defendant intended to kill Michael Posthuma.

"Second, that the defendant caused the death of Michael Posthuma."(Emphasis added.)¹

Zelenka challenges this instruction, on the theory that because there was no basis to submit the case on a theory of direct committer's liability, this instruction violated due process.

The court also instructed the jury as follows, reading a portion of the then-standard instruction on first-degree murder where the cause of death is not in issue, Wisconsin Jury Instruction--Criminal 1100:

"When there are no circumstances to prevent or rebut the presumption, the law presumes that a reasonable person intends all of the natural, probable, and usual consequences of his deliberate acts.²If one person assaults another violently with a dangerous weapon likely to kill, and the person thus assaulted dies therefrom, then, when there are no circumstances to prevent or rebut the presumption, the legal and natural presumption is that death was intended."

Zelenka challenges this instruction on the theory that the presumption which it contains violates due process.

The court then instructed the jury on the elements of party to a crime, as delineated in sec. 939.05, Stats.It told the jury that sec. 939.05"... provides that whoever is concerned in the commission of a crime may be charged with and convicted of the commission of the crime although he did not directly commit it."The court instructed the jury on the elements of the crime "as applicable in this case."It set forth the elements of aiding and abetting in the commission of a crime, in violation of sec. 939.05(2)(b) and of "conspiring to commit" a crime, in violation of sec. 939.05(2)(c).Most importantly, it did not instruct the jury on the elements of directly committing the crime, in violation of sec. 939.05(2)(a).

With respect to the murder charge, the only verdict which the court submitted to the jury was one which allowed the jury to find Zelenka guilty or not guilty of party to the crime of first-degree murder.

Whether either of the challenged instructions violated Zelenka's right to due process is a question of law.This court must decide questions of law independently without deference to the decision of the trial court.Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389(1984).

Before considering the due process issues, we first address the question of whether Zelenka waived his right to challenge these instructions.The State argues that Zelenka waived his right to challenge the instructions to the jury when he stated at trial that he had no objection to any proposed instruction.The State concedes that this court has discretion to review the instructions, notwithstanding Zelenka's failure to object.

Zelenka concedes that he waived his right to review of the challenged instructions by failing to object, but he asserts that this court should review the alleged errors in the instructions because the errors deprived him of due process.

Section 805.13(3), Stats., requires the circuit court to conduct a conference on proposed...