State v. Frank P. Howard
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No. 95-0770 SUPREME COURT OF WISCONSIN Case No.: 95-0770 Complete Title of Case: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Frank P. Howard, Defendant-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 199 Wis. 2d 454, 544 N.W.2d 626 (Ct. App. 1996) PUBLISHED Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: June 26, 1997 January 8, 1997 Circuit Waukesha LEE S. DREYFUS, JR. JUSTICES: Concurred: Dissented: Not Participating: For the plaintiff-respondent-petitioner the cause was argued by Sharon Ruhly, assistant attorney general, with whom ATTORNEYS: on the briefs was James E. Doyle, attorney general. For the defendant-appellant there was a brief by Daniel R. Clausz and Williams Law Offices, Delavan and oral argument by Daniel R. Clausz. Amicus curiae brief was filed by Robert R. Henak and Shellow, Shellow & Glynn, S.C., Milwaukee for the Wisconsin 1 No. 95-0770 Association of Criminal Defense Lawyers. 2 No. 95-0770 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 95-0770 STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent-Petitioner, JUN 26, 1997 v. Marilyn L. Graves Clerk of Supreme Court Madison, WI Frank P. Howard, Defendant-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 JANINE P. GESKE, J. The State seeks Affirmed. review of a published decision of the court of appeals1 reversing an order of the Waukesha County Circuit Court, Lee S. Dreyfus, Jr., Judge. The circuit court refused to grant the defendant, Frank P. Howard, a new trial on the issue of whether he was guilty of delivery of a controlled substance while possessing a dangerous weapon. ¶2 Howard contends that because the jury was not required to find beyond a reasonable doubt that he possessed a dangerous weapon to facilitate the commission of the drug offense, due 1 State of Wisconsin v. Frank Howard, 199 Wis. 2d 454, 544 N.W.2d 626 (Ct. App. 1996). 1 No. 95-0770 process and our decision in State v. Peete receive a new trial on the issue of the 2 require that he dangerous weapon We conclude that the holding of Peete applies to enhancer. cases of actual as well as constructive possession, and must be applied retroactively to this case. We further hold that because Howard could not have foreseen the effect of the Peete decision at the time of his original appeal, his motion for a new trial is not barred by our decision in State v. EscalonaNaranjo, 185 Wis. 2d 168, 517 N.W. 2d 157 (1994). We therefore affirm the court of appeals. FACTS AND PROCEDURAL HISTORY ¶3 aiding In 1989, the State charged Howard with, inter alia, and substance abetting (cocaine) the while unlawful delivery possessing a of a dangerous controlled weapon, in violation of Wis. Stat. §§ 161.41(1)(c)2, 939.05, 939.63(1)(a)3 and 2 (1987-88). At trial, the police testified that when they searched Howard at the scene, they found a handgun in his coat pocket. At that point, Howard told them that he had another gun in his jacket. Howard, however, testified that he told the police he had two guns on his person before the police initiated their search of him. When Howard was arrested, he had approximately $2,200 in cash on his person, as well as the two handguns. According to his testimony, Howard had the money at his garage, because he saved it to buy, fix up and sell cars. 2 185 Wis. 2d 4, 517 N.W.2d 149 (1994). 2 No. 95-0770 He had the guns at the garage for protection. According to Howard, his garage was in a high crime area of Milwaukee. ¶4 In February of 1990, Howard was tried by jury. At the conclusion of the evidence, the circuit court instructed the jury on the elements of the first charged offense. The court also instructed the jury on the penalty enhancer of possessing a dangerous weapon.3 Wis JICriminal 990. defined in that jury instruction. "Possession" was not The court also instructed the jury on the charge of possession of a firearm by a felon, using Wis JICriminal 1343. That instruction defined "possession" as "the defendant knowingly had a firearm under his actual physical control." ¶5 Howard did not object to these jury instructions. In closing argument, the prosecutor described to the jury the elements necessary to prove the charges against Howard. With regard to the penalty enhancer, the prosecutor stated, "[A]nd further as to the January 20th incident, out at the Marriott, an additional factor you must consider in that count alone is did he commit that crime; that is, the delivery of cocaine over 10 and under 30 grams 3 The court gave the following instruction: If you find the Defendant guilty of party to the crime of delivery of cocaine, you must answer the following question: Did the Defendant commit the crime of party to the crime of delivery of cocaine while posssssing [sic] a dangerous weapon? A "dangerous weapon" is any firearm, whether loaded or not. If you are satisfied beyond a reasonable doubt from the evidence presented that the Defendant committed the crime of party to the crime of delivery of cocaine while possessing a dangerous weapon . . . then you should answer the question "yes". If you are not so satisfied, then you must answer the question "no". 3 No. 95-0770 while possessing a firearm. In this case, it's clear the Defendant admitted that he had the two firearms with him on that date, so if you find the Defendant guilty of that offense and I ask you to do so, finding that he possessed those firearms is also a given fact." Wrapping up his argument, the prosecutor stated: "I ask you to reach a quick verdict as well as a guilty verdict finding that, . . . on January 20th, 1989, he knowingly and unlawfully helped, assisted, and, in fact, was a supplier for delivery of cocaine from Jay Clemins to Officer Adlam unwittingly and that he had a couple guns with him at the time, and also on that day, that he was a convicted felon and had those guns with him also." ¶6 The jury found Howard guilty of party to a crime of delivery of controlled substance (cocaine) while in the possession of a firearm, possession of a firearm by a felon, and delivery of controlled substance sentenced on all three counts. (cocaine). Howard was On March 23, 1990, the circuit court sentenced him to nine years in prison, the maximum for the crime of delivery of a controlled substance, party to a crime while possessing a dangerous weapon. penalty for the underlying crime At that time, the maximum was 5 years. The maximum penalty for the enhancer charge was 4 years. ¶7 Howard filed a number of post-conviction motions and a direct appeal. filed a pro After se4 exhausting motion on his October 4 direct 3, appeals, 1994, Howard requesting Howard originally filed this motion pro se. On December 13, 1994, a Notice of Amended Motion and Amended Motion for a New Trial or Sentence Modification pursuant to Wis. Stat. § 974.06 was filed by Howard's current attorney, Daniel R. Clausz. 4 No. 95-0770 postconviction relief and/or modification of sentence pursuant to Wis. Stat. § 974.06, Peete. 5 and based on this court's holding in In Peete, we held that when a defendant is charged with the penalty enhancer of committing a crime while in possession of a dangerous weapon, Wis. Stat. § 939.63 requires the State to 5 Wis. Stat. § 974.06 (1991-92) Postconviction procedure. (1) After the time for appeal or postconviction remedy provided in s. 974.02 has expired, a prisoner in custody under sentence of a court or a person convicted and placed with a volunteers in probation program under s. 973.11 claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. . . . (3) . . . (d) Determine the issues and make findings of fact and conclusions of law. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the person as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the person or resentence him or her or grant a new trial or correct the sentence as may appear appropriate. (4) All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion. 5 No. 95-0770 prove a nexus between the underlying crime and possession of the weapon. trial, Peete, 185 Wis. 2d at 18-19. because instruction in on the his first nexus Howard thus sought a new trial element. the The jury circuit received court The court of appeals reversed.6 Howard's motion. no denied The State sought review by this court. STANDARD OF REVIEW ¶8 88) Whether our construction of Wis. Stat. § 939.63 (1987- in Peete constructive, applies possession to and cases if of so, actual, whether as Peete well as must be applied retroactively to this case are questions of law that we review independently, benefiting from the analyses of the lower courts. See State v. Avila, 192 Wis. 2d 870, 885, 891, 532 N.W.2d 423 (1995). If Peete is applicable to this case, we then consider, as a question of law, whether Howard's claim is barred under Escalona-Naranjo. Whether the jury instructions given by the circuit court violated the defendant s right to due process is a question of law that we review independently of the lower 6 In reversing the circuit court, the court of appeals remanded for entry of the judgment of conviction solely on the delivery of cocaine charge and resentencing on that underlying conviction. The court of appeals also remanded for vacation of Howard's sentence for delivery of cocaine while armed, and ordered that Howard was entitled to a new trial on the issue of whether he committed the underlying drug offense while in possession of a weapon. In the event of a new trial, the court of appeals ordered the circuit court to vacate the sentence and resentence Howard after the new trial. State v. Howard, 199 Wis. 2d at 463-64. 6 No. 95-0770 courts. State v. Zelenka, 130 Wis. 2d 34, 43, 387 N.W.2d 55 (1986). THE PEETE DECISION ¶9 basis A for review of Howard's girlfriend's our decision in Peete Jerry Peete was claim. residence, following Peete, 185 Wis. 2d at 10. a search illustrates arrested of the at the his premises. That search revealed plastic bags containing cocaine stuffed in socks in a dresser drawer in the girlfriend's bedroom. Also in the bedroom were over $2,000 in cash and a number of personal items belonging to Peete. the mattresses was a loaded handgun. at Id. 11. Between In the kitchen, police found three loaded handguns in a cereal box. Id. Peete was arrested and convicted of possession of cocaine with intent to deliver while armed. ¶10 At Peete's trial, the court did not give a separate instruction weapon Id. at 9. on for enhancer. what constituted purposes of Wis. "possession" Stat. of § 939.63, Peete, 185 Wis. 2d at 12-13. a dangerous the penalty On appeal, and on review by this court, Peete raised the question of what the jury was required to find under the instruction as given. ¶11 On review, we engaged in statutory interpretation and construction. 7 Id. at 14. We held that § 939.637 created a possessory Wis. Stat. § 939.63 (1987-88) provides in pertinent part: 7 No. 95-0770 offense linked to a predicate offense. 14. Peete, 185 Wis. 2d at Section 939.63 provides that if a defendant commits a crime while in possession of a dangerous weapon, his or her sentence may be increased by varying amounts of time, depending on the maximum sentence for the underlying offense. Id. Both Peete and the State agreed that the legislature intended the enhancer to apply only when there is underlying crime and the weapon. a relationship Id. at 16-17. between the We unanimously held that Wis. Stat. § 939.63 requires the State to prove a nexus between the crime and the weapon the defendant possessed, because that nexus is an element of the penalty enhancer. at 18-19. Id. We later clarified that the weapons penalty enhancer is an element of the enhanced offense, but is not an element of the underlying offense. Avila, 192 Wis. 2d at 893b. The jury must find the nexus element beyond a reasonable doubt. Peete, 185 Wis. 2d at 21. ¶12 In Peete, we also interpreted the penalty enhancer provision to apply to actual, as well as constructive possession of a weapon. Peete, 185 Wis. 2d at 16; see also, Avila, 192 Wis. 2d at 891. Our interpretation was consistent with the interpretation of other criminal statutes governing possessory offenses. Peete, 185 Wis. 2d at 14 (citations omitted). (1)(a) If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased 8 No. 95-0770 ¶13 We then adequate nexus. considered the proper definition of an We ultimately adopted the definition proposed by the State and agreed to by Peete: "[W]hen a defendant is charged with committing a crime while possessing a dangerous weapon, under sec. 939.63, the state should be required to prove that the defendant possessed the weapon to facilitate commission of the predicate offense." added). Peete, 185 Wis. 2d at 18 (emphasis We recognized that the use of, or a threat to use, a weapon facilitated commission of the predicate offense because such use or threat instills fear in the victim, protects the defendant, and/or protects the contraband. Id. Under our construction of the statute, imposing the nexus requirement made the phrase "while possessing" parallel to the other statutory phrases, "while . . . using" and "while use." . . . threatening to Id. ¶14 We then established the proper instructions to be given the jury when a defendant is charged with the weapons penalty enhancer: "A circuit court must instruct the jury on the definition of possession; on the nexus requirement, that the defendant possessed the weapon to facilitate the crime; and on the definition of dangerous weapon." predicate Peete, 185 Wis. 2d at 21. as follows: [statute then sets increased penalties that vary according to the penalty for the predicate offense]. 9 No. 95-0770 ¶15 At the time Peete was arrested, he did not use, or threaten to use, a dangerous weapon. The lower court concluded that (at Peete weapon. constructively possessed least one) dangerous We reversed Peete's conviction because, in light of that possession, the circuit court failed to instruct the jury on the nexus requirement. Without a nexus instruction, the jury was not asked to decide whether the State had proven beyond a reasonable doubt each element of § 939.63. Peete, 185 Wis. 2d at 19. ¶16 In Peete, as in Howard's case, the State argued that the evidence supported a conclusion that the nexus requirement was satisfied. Peete, 185 Wis. 2d at 19. What we said in Peete applies equally here: "a court may not direct a verdict of guilt against a defendant in a criminal case. Where the finder of fact is a jury, proof of all essential elements must be tendered to the jury." (Citations omitted.) The jury must make the factual finding of whether Howard possessed a handgun to facilitate the commission of the predicate crime. Id. ACTUAL VERSUS CONSTRUCTIVE POSSESSION ¶17 The State first argues that Howard is not entitled to relief because the case against him proceeded under the theory of actual possession, and the State proved actual possession. The State thus contends that the Peete instruction would not have enhanced the fact finding in Howard's case. 10 No. 95-0770 ¶18 The State has borrowed from Jerry Peete's brief to assert that physical control of a weapon at the time of the offense would connection permit between the a reasonable weapon and inference the of substantive a direct offense. Peete's brief contended that the inference applied at the time of the offense, even applying to offenses committed in private, like tax fraud. be The State's position in Peete was that it would absurd to apply the penalty enhancer to situations where there is no relationship between the offense and the possession, such as when a person fills out and files a fraudulent tax return while carrying a pistol. ¶19 See 185 Wis. 2d at 17. We agree with the State's position in Peete. There can be situations when a defendant is in actual possession of a dangerous weapon during commission of a crime, but where the actual possession has no relationship to the predicate crime. Where the possession has no relationship to the predicate crime, it does not facilitate the commission of the predicate crime. Peete directs the jury to determine whether such a relationship exists. ¶20 Thus we do not accept the State's contention that "by proving actual possession, the State has proved the nexus and despite the absence of an instruction, has satisfied the rule of Peete." Peete is not limited to constructive possession of a dangerous weapon while committing a crime. 11 No. 95-0770 ¶21 The State may have based its actual versus constructive possession distinction on our statement in Peete that the addition of the nexus requirement makes "possessing" parallel to the "use of" or "threatened use of" language from Wis. Stat. § 939.63. Jerry possession in that case. Peete had only constructive Our statement there, however, does not eliminate the nexus requirement in cases of actual possession. ¶22 Based on the jury instructions given in Howard's case, we cannot know whether the State proved existence of a nexus beyond a reasonable doubt, merely by proving actual possession. The only count, possession possession of instruction a firearm contains no nexus element. given by a concerned felon. the That third offense Thus, the jury was never instructed, nor specifically asked to find beyond a reasonable doubt, that Howard possessed facilitating a dangerous commission of weapon the for drug the purpose of offense. Such an instruction, and such a finding beyond a reasonable doubt, are required for provision. the State to meet its burden on the enhancer As such, if the rule announced in Peete applies to Howard, the circuit court erred by failing to instruct on the nexus element. In Re Winship, 397 U.S. 358, 364 (1970). RETROACTIVE APPLICATION ¶23 Next we determine whether the rule we announced in Peete applies retroactively to cases on collateral review. 12 The No. 95-0770 judgment in Howard's case was final 8 before we decided Peete in June, 1994. ¶24 The United States Supreme Court set the parameters for the federal doctrine of non-retroactivity in Teague v. Lane, 489 U.S. 288 (1989).9 First, the court said that retroactivity only applies to certain new rules. "[A] case announces a new rule when it breaks new ground or imposes a new obligation on the Id. at 301. States or Federal Government." retroactive instances. application on collateral New rules merit review only in two In the first instance, a "new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." State v. Denny, 163 Wis. 2d 352, 357, 471 N.W.2d 606 (Ct. App. 1991) (citing Teague, 489 U.S. at 307). "Second, a new rule should be applied retroactively if it requires observance of those procedures that are implicit in the concept of ordered liberty." Teague, 489 U.S. at 307). Denny, 163 Wis. 2d at 357 (citing The court of appeals concluded that the first exception applied to Howard. Howard, 199 Wis. 2d at 8 A case is final if the prosecution is no longer pending, a judgment of conviction has been entered, the right to a state court appeal from the final judgment has been exhausted, and the time for certiorari review in the United States Supreme Court has expired. See Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1987). 9 Only a plurality of the Court adopted the doctrine of retroactivity set out in Teague v. Lane, 489 U.S. 288 (1989). Later, a majority of the Court endorsed the doctrine. Graham v. Collins, 506 U.S. 461, 471 (1993). 13 No. 95-0770 460. The court of appeals held that the nexus requirement of Peete places the conduct beyond the power of the criminal lawmaking authority to proscribe. ¶25 Id. It is not absolutely clear from the Supreme Court's discussion in Teague if the Court meant to apply the non- retroactivity doctrine to questions of substantive law, as well as to questions of procedure. See Teague, 489 U.S. at 299, 304. In that case, the petitioner sought retroactive application of 10 a new rule announced in Batson v. Kentucky, 476 U.S. 79 (1986). The confusion arises from Teague's exceptions to non-retroactivity. delineation of the The first exception, that "a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," 489 U.S. at 311 (internal quotations omitted), would seem to cover conduct that is classically substantive. The second Teague exception, that "a new rule should be applied retroactively if it requires the observance of those procedures that are implicit in the concept of ordered liberty," id. (internal quotations omitted), clearly applies to rules of procedure. 10 After discussing the costs of The Court held in Batson v. Kentucky, 476 U.S. 79, 96 (1986), that a defendant can establish a prima facie case of racial discrimination by showing that he or she is a member of a cognizable racial group, that the State exercised peremptory challenges to remove from the jury members of the defendant's race, and that those facts and any other relevant circumstances create an inference that the State used that practice to exclude jurors because of race. 14 No. 95-0770 broad retroactivity, the Teague plurality adopted the exceptions as originally proposed by Justice Harlan. unless cases exceptions, on collateral "new review constitutional The Court stated that fall rules within of one criminal of the procedure" would not apply to cases which became final before the new rules were announced. ¶26 489 U.S. at 310. Based on the Teague Court's own summary, we agree with the State that the Teague retroactivity analysis is limited to procedural rules. 499 N.W.2d criteria See also State v. Koch, 175 Wis. 2d 684, 694, 152, cert. from denied, earlier 510 U.S. cases, 880 and (1993)(comparing substituting the Griffith/Teague rule as the law in Wisconsin for determining whether to apply a new rule of criminal procedure retroactively); Denny, 163 Wis. 2d at 356-57 (holding that new rule requiring confession supported Teague to a trial assess court whether by sufficient exception as a to a indicia procedure consider codefendant's of defendant's own statements are reliability, implicit in fits second the concept of have effected a ordered liberty). ¶27 The State concedes that Peete may substantive change in the law and that the doctrine of nonretroactivity found interpretations. in Teague does not apply to substantive Neither would the doctrine as endorsed by this court in Schmelzer v. Murphy, 201 Wis. 2d 246, 257, 548 N.W.2d 45 (1996), bar us from applying the rule of Peete to Howard. 15 No. 95-0770 ¶28 We held Schmelzer claimed ineffective assistance of counsel. that there is a statutory right to counsel in the preparation of a petition for review to this court, and that Schmelzer's appellate counsel had performed deficiently failing to timely file a petition for review. Wis. 2d at 249. for Schmelzer, 201 We also concluded, however, that Schmelzer was not prejudiced by his appellate counsel's deficient performance. Our holding, that one in Schmelzer's situation may petition for a writ of habeas corpus and should the writ be granted, the court can allow the late filing of such a petition for review, Id. at 256. announced a new procedural rule. ¶29 We then considered the Schmelzer, 201 Wis. 2d at 256-57. question of retroactivity. We endorsed the rule of Teague, recognizing its two exceptions to non-retroactivity. We concluded, however, that a strict application of Teague would prevent retroactive application of any new rule of law relating to habeas corpus claims based on a statutory right. 201 Wis. 2d at 257-58. Because ineffective Schmelzer, assistance of counsel claims can only be brought through a writ of habeas corpus, we articulated a third exception, to include claims that can only be raised on collateral review. ¶30 Id. at 258. Schmelzer then went on to specifically state that the new rule it adopted would apply to the defendant in that case, but would not apply retroactively to cases finalized before that opinion. Id. We announced no such limitation in Peete. 16 No. 95-0770 ¶31 decision However, into the two State parts: attempts first, a to cleave substantive the Peete change in statutory interpretation; and second, a procedural change in the required jury instructions. The State contends that the Peete requirement for a jury instruction on nexus is only a procedural change and therefore does not require a retroactive application. We disagree. ¶32 Our interpretation of Wis. substantive change in the law. Stat. § 939.63 worked a Prior to our interpretation, neither the courts nor the Wisconsin Criminal Jury Instructions Committee responsible for drafting jury instructions, had interpreted the statute to require the nexus element, "that the defendant possessed the weapon to facilitate the commission of the predicate offense." Before our interpretation of Wis. Stat. § 939.63 in Peete, there was no nexus element and no specific charge to the jury to prove that element. The State would have us ignore the intimate and essential relationship between the substantive element identified by Peete, and effectuation, the instruction required by Peete. its practical We hold that in this case, where a substantive right is recently identified on collateral review, and that right can only be effectuated by instructing the jury to make a specific finding, instruction is a necessary part of the substantive right. jury The defendant's substantive right to have the nexus element proven 17 No. 95-0770 can only be met after the jury has received the necessary instruction on that element. BAR OR WAIVER ¶33 The State's next contention is that Howard's motion is barred by Escalona-Naranjo, 185 Wis. 2d 168. In that case, we interpreted Wis. Stat. § 974.06(4) to require that if a ground for relief was not raised in an original, supplemental or amended motion, the defendant had to show a sufficient reason why he or she had not asserted that ground for relief earlier; otherwise, the defendant's claim was barred. 185 Wis. 2d at 181-82. Escalona-Naranjo, The court of appeals concluded that the requirements of Escalona were met in Howard's case. Wis. 2d at 461-62. "The fact that Howard Howard, 199 could not have foreseen the affect [sic] of the Peete decision at the time of his appeal constitutes a sufficient reason for not raising the issue at an earlier date." ¶34 In ineffective Id. Escalona-Naranjo, assistance of postconviction motions. the counsel defendant claims in two asserted § 974.02 At the time of those earlier motions, he was also aware of the basis for a claim he later raised in a Wis. Stat. § 974.06(4) motion. precluded from raising a We ruled that the defendant was third allegation of ineffective assistance in a later § 974.06(4) motion, when he had known the basis for that allegation at the time of his earlier motions. Escalona-Naranjo, 185 Wis. 2d at 18 184. We read Wis. Stat. No. 95-0770 § 974.06 to limit even constitutional bases for a postconviction motion unless the court determines that a "sufficient reason" exists for the failure to allege, or to adequately raise, the issue in the original, supplemental or amended motion. 185 Wis. 2d at 181-82. ¶35 The preserved State his argues objection to here the that lack of Howard a should nexus have instruction despite the fact that Howard's case predated the Peete decision. Specifically, the State argues that Howard had available to him all of the statutes, legislative history, and statutory construction as Peete himself had. the rules of The State also asserts that even without Peete, Howard could have challenged the sufficiency of the evidence for the penalty enhancer. ¶36 The court of appeals, however, considered it impractical to expect a defendant to argue an unknown statutory interpretation. Despite the prescription that a statute cannot mean one thing prior to an interpretation, and mean something else afterward, the court of appeals concluded that a legal argument like Howard's cannot be made until a higher authority determines the correct application. ¶37 of Wis. Howard, 199 Wis. 2d at 462. We agree with the court of appeals. Stat. substantive law. § 939.63 in Peete constituted Our construction a new rule of Peete's success in arguing that the enhancer provision requires proof of the nexus beyond a reasonable doubt does not automatically preclude others, sentenced before Peete, 19 No. 95-0770 from raising that same argument in a postconviction motion. Unlike the defendant in Escalona-Naranjo, Howard was not aware of the legal basis for his present motion at the time of his trial and sentencing. Nor was Howard aware of the nexus requirement at the time of his earlier postconviction motions and appeal. ¶38 To hold otherwise would require criminal defendants and their counsel to raise every conceivable issue on appeal in order to preserve objections to rulings that may be affected by some subsequent holding in an unrelated case. We do not believe that Wis. Stat. § 974.06 requires so much. Howard's case is just such an example of the "sufficient cause" exception to the finality of appellate issues under Wis. Stat. § 974.06. ¶39 The State also contends that Howard waived his claim of error because he did not object to the penalty enhancer jury instruction as given. The court of appeals concluded that Howard did not object to the instructions as given because he did not foresee the new rule of Peete. Howard, 199 Wis. 2d at 463. ¶40 The State's waiver analysis is also based on the premise that because the State proved actual possession, any defect in the jury instructions did not create a substantial probability that a different result would be likely on retrial. State v. Wyss, 124 Wis. 2d 681, 741, 370 N.W.2d 745 (1985), overruled on other grounds, State v. Poellinger, 153 Wis. 2d 20 No. 95-0770 493, 451 N.W.2d 752 (1990). We have already concluded, however, that the possession proved in this case was established without any proof beyond a reasonable doubt of the necessary nexus element. ¶41 The State relies on State v. Schumacher, 144 Wis. 2d 388, 424 N.W.2d 672 (1988) to establish waiver. part relied on Wis. Stat. § 805.13, the court of instructions appeals' to which 11 discretion no objection Schumacher in to determine the breadth of to review had been error made based at on trial. Schumacher did not involve a "new rule" basis for the claimed instructional error. ¶42 The Schumacher court concluded that the court of appeals does not have a broad discretionary power of review to reach waived jury instructions. As a caveat, however, the court stated that the intermediate court may still reach issues which are unwaivable. 11 144 Wis. 2d at 408 n.14. Unwaivable issues, Wis. Stat. § 805.13(3)(1985-86) At the close of the evidence and before arguments to the jury, the court shall conduct a conference with counsel outside the presence of the jury. At the conference, or at such earlier time as the court reasonably directs, counsel may file written motions that the court instruct the jury on the law, and submit verdict questions, as set forth in the motions. The court shall inform counsel on the record of its proposed action on the motions and of the instructions and verdict it proposes to submit. Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict. 21 No. 95-0770 such as ineffective assistance of counsel claims, would not be brought up by the defendant at trial. ordinarily Therefore, the court of appeals' discretionary power to review must extend to such unwaivable matters. ¶43 Here, Howard and his counsel in 1990 had no way to know how this court would construe Wis. Stat. § 939.63 by the time it decided Peete in 1994. We agree that Howard's counsel had an obligation to object at the instructions conference based on incompleteness or other error about which he knew or should have known. We cannot agree that Howard's counsel could have stated grounds for an objection "with particularity," based on the absence of a nexus element and corresponding instruction. See Wis. Stat. § 805.13(3). ¶44 Had Howard made Howard has not waived this issue. this objection at the time of the instructions conference in 1990, it is unlikely that the circuit court would have "easily remedied the deficiency." at 409. 144 Wis. 2d Howard did not waive the issue of the nexus element, and the court of appeals did not exceed its authority by its discretionary review of this question. INAPPLICABILITY OF HARMLESSS ERROR ANALYSIS ¶45 The Due Process Clause protects a defendant against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged. Winship, 397 U.S. at 364. The burden of proving all elements of a crime beyond a reasonable doubt rests upon the 22 No. 95-0770 State. Muller v. State, 94 Wis. 2d 450, 473, 289 N.W.2d 570 (1980). ¶46 Proper jury instruction is a crucial component of the fact-finding process. 307 N.W.2d 151 State v. Schulz, 102 Wis. 2d 423, 426, (1981). The jury must determine guilt or guiltlessness in light of the jury charge, and the validity of that determination is dependent upon the correctness, and See id., at 426-27. completeness, of the instructions given. Elements of a crime are its requisite conduct, either an act or omission, and mental fault. Elements may include particular attendant circumstances, and sometimes, a specified result of the conduct. W. LaFave and A. Scott, Jr., Handbook on Criminal Law at 45 n.3 (1972). ¶47 whether We review jury instructions as a whole to determine there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard. Avila, 192 Wis. 2d at 889, (quotations omitted) citing Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994). An inadequate jury instruction can provide a ground for reversal because it deprives the accused of a jury determination that he or she engaged in constitutionally prohibitable conduct made unlawful by statute. See, e.g., Osborne v. Ohio, 495 U.S. 103, 123-26 (1990). The court cannot direct overwhelming a evidence. verdict of guilty, no matter how Duncan v. Louisiana, 391 U.S. 145, 149-50 (1968). 23 the No. 95-0770 ¶48 error In this case, the State contends that the harmless analysis Illinois v. applies. Pope, 481 The U.S. State 497 specifically (1987), to relies contend instructional error in Howard's case is harmless. on that any In Pope, the Supreme Court recognized that the harmless error analysis is appropriate in the absence fundamentally unfair. of error that 481 U.S. at 502. renders the trial The Pope Court cited Rose v. Clark, 478 U.S. 570 (1986), as an example where the harmless error instruction analysis did not was appropriate "entirely because preclude" jury jury the the from considering the element of malice, even though it shifted the burden of proof in violation of Sandstrom v. Montana, 442 U.S. 510 (1979). Pope, 481 U.S. at 502-03. Similarly, in Pope, the jurors were "not precluded" from considering the question of value to determine whether a reasonable person would find value in the allegedly obscene work, even when the court erroneously instructed "value". by giving a Id. at 503. constitutionally infirm standard for Even if Pope focused on the effect, rather than on the character, of the error, see United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988), we perceive a difference. ¶49 In Howard's case, the jury was "entirely precluded" from considering whether Howard possessed a dangerous weapon "to facilitate commission of the predicate crime." The absence of the nexus instruction thus renders Howard's conviction on the 24 No. 95-0770 penalty enhance "fundamentally unfair." Pope and Rose, here there was no Unlike the facts in instruction on the nexus The Howard jurors were never asked to find whether element. Howard possessed a dangerous weapon to facilitate the predicate crime, nor were they instructed to presume that, if they found possession, they could find that Howard possessed the weapon to facilitate the underlying crime. ¶50 In other cases, reviewing courts have found the error harmless, somehow because flawed. the In instruction none of given those on cases, the element however, was was the Carella v. California, 491 required instruction totally absent. U.S. 263 (1989)(instructions containing conclusive presumption); State v. Kuntz, 160 Wis. 2d 722, 735, 467 N.W.2d 531 (1991) (jury instruction creating mandatory conclusive presumption regarding an element of the offense, presented an exceedingly rare case in which a conclusive presumption is harmless error). But see State v. Alfonsi, 33 Wis. 2d 469, 478, 147 N.W.2d 550 (1967)(trial court refused to give instruction on mens rea element, error prejudicial and new trial required); State v. Moriarty, 107 Wis. 1982)(instructing 2d that 622, 631, defendant 321 was N.W.2d 324 armed, (Ct. instead App. of instructing that defendant used or threatened to use a weapon during robbery, relieved the State of its burden to prove every fact essential to the crime, and thus was not harmless); State v. Hurd, 135 Wis. 2d at 275-76, (where trial court failed to 25 No. 95-0770 instruct on element of "wilfully," failure not harmless, new trial ordered). ¶51 In Avila, we distinguished the effect of flawed jury instructions from instruction. We the held complete that if absence the of circuit an essential court fails instruct a jury about an essential element of the crime to and the jury must find that element beyond a reasonable doubt, there is an automatic reversal of the verdict. If, however, there is some instruction on that element, albeit erroneous, and the jury is told that the element must be proven beyond a reasonable Avila, 192 doubt, then the analysis is one of harmless error. Wis. 2d at 893a. ¶52 The State disagrees that Sullivan v. Louisiana, 508 U.S. 275 (1993), cited by the Avila court, actually supports the Avila holding. constitutional analysis. The errors Sullivan are Court amenable 508 U.S. at 279. recognized to the that harmless (citations defendant omitted). guilty of In first error Harmless error analysis looks to the basis on which the jury actually rested its verdict. 279 most Sullivan, degree murder, the jury after Id. at found receiving unconstitutional instruction defining "reasonable doubt." at 277. the the an Id. The Court distinguished this infirmity from one where instructions create a presumption for an element of the crime, but where the jury finds the predicate facts beyond a reasonable doubt. Under the latter 26 scenario, the court can No. 95-0770 conclude that the presumption "played no significant role in the finding of guilt beyond a reasonable doubt." ¶53 Id. at 281. But Howard's case is not one of an erroneous or a deficient instruction. This is a case where the required instruction on an element of the State's case was not given at all. It is a case where the failure to prove nexus "affect[ed] the composition of the record." See Sullivan, 508 U.S. at 283 (Rehnquist, C.J., concurring). ¶54 In its brief, that State contends that our rejection of the harmless error analysis in Avila, because the instructional error related to an element of the offense, conflicts with our summary affirmance of the decision in State v. Nye, 100 Wis. 2d 398, 302 N.W.2d 83 (Ct. App. 1981). According to the State, the Nye court "found harmless an erroneous jury instruction on one element of the crime of second degree sexual assault." State's Brief at 40. ¶55 The State both overstates our ruling in Avila, and reads too broadly the conclusion in Nye. only concerned the total absence of Our holding in Avila an instruction on an element, and did not foreclose the harmless analysis for any error "related charged with stepdaughter. to an having element." sexual In Nye, intercourse the with defendant his 14-year was old One of the instructions to the jury lowered the burden of proof below the beyond a reasonable doubt standard. The instruction read "if that 27 intentional touching can be No. 95-0770 reasonably construed as being for the purpose of sexual arousal or gratification . . ." ¶56 Nye, 100 Wis. 2d at 400. The court of appeals held that the jury instruction lowered the burden of proof, and thus was unconstitutional. court then proceeded to consider whether the The instruction as Nye, 100 Wis. 2d at 403. given constituted harmless error. According to the evidence, the defendant and his stepdaughter had intercourse orgasm. for approximately ten minutes, resulting in The court concluded that it was effectively impossible for the jury to conclude that the act was not committed for the purpose of sexual arousal or gratification. court of analysis appeals then applies when unconstitutionally surmised a court shifts that gives the if a burden Id. at 404. the jury of The harmless error instruction that proof, it clearly applies where the jury instruction merely lowers the burden of proof. ¶57 question Id. at 405. Significantly, the of failure whether a Nye court to did instruct not on answer an the element (nonconsent) unconstitutionally resulted in a directed verdict for the State on that element, and thus could not be harmless. The Nye court did not reach that question because a plain reading of the statute and instruction indicated that nonconsent of the victim was not an element of that crime when committed against a person less than 15 years of age. Id. at 407-08. do not read Nye to conflict with our holding in Avila. 28 We No. 95-0770 ¶58 Howard may well be guilty of the offense charged against him, but he is entitled to a fair trial according to the established rules of procedures and principles of law, with a jury finding on each and every element of the crime charged. See Hart v. State, 75 Wis. 2d 371, 395, 249 N.W.2d 810 (1977) (citing Boldt v. State, 72 Wis. 7, 17, 38 N.W. 177 (1888)). By the Court. The decision affirmed. 29 of the court of appeals is No. 95-0770 1
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