State v. Johnson

*383ANN WALSH BRADLEY, J.

¶ 29. (dissenting). The case before us presents two constitutional challenges to Wis. Stat. § 948.025(2). The defendant's challenges are grounded in different constitutions and implicate different bodies of law. I believe a properly conceived and applied Fourteenth Amendment due process inquiry, guided by the principles enunciated in United States v. Richardson, 526 U.S. 813 (1999), requires that § 948.025(2) be declared unconstitutional. I also believe that by undermining established Wisconsin precedent, the majority obfuscates the guarantee of a unanimous jury verdict provided by Article I, Sections 5 and 7 of our state constitution. Accordingly, I respectfully dissent.

¶ 30. Under § 948.025(2), a jury need not agree on the individual offenses that comprise the crime of repeated acts of sexual assault of a child. Our court of appeals previously addressed this statute in State v. Molitor, 210 Wis. 2d 415, 565 N.W.2d 248 (Ct. App. 1997). In certifying this case for our review, however, the court of appeals acknowledged the deficiencies of its analysis in Molitor, in particular its failure to take into account the considerations of fairness required by due process under Richardson:

We did not conduct such a detailed analysis [as presented by Richardson] in Molitor... .[0]ur analysis of the language was cursory at best and was done without the benefit of the reasoning in Richardson. ... In addition, we did not consider the potential for unfairness, particularly whether treating the violations as a "series" would permit widespread disagreement among- the jurors to go unnoticed or permit jurors to simply conclude from the testimony that where there is smoke there is fire.

*384Despite these recognized deficiencies, the majority reaffirms the Molitor analysis. In the process, it rejects the controlling authority of Richardson and the considerations of fairness necessitated by due process. The majority, in addressing both constitutional challenges, endorses the Molitor analysis and thus succumbs to the same shortcomings.

¶ 31. I turn first to the Fourteenth Amendment due process challenge. The majority concludes that § 948.025(2) clears the hurdle of the due process limitation on the legislature's power to define crimes in a manner that allows the jury to disagree as to means in which the crime was committed. It hinges its conclusion on an analysis into history and the relative "moral and conceptual equivalence" of the predicate offenses that constitute a violation of § 948.025. However, even the most cursory review of the relevant United States Supreme Court precedent reveals that the due process analysis required by the Fourteenth Amendment cannot be collapsed into the two-part inquiry advanced by the majority.

¶ 32. In clinging to its formulaic two-part test, the majority has abandoned the Supreme Court's guidance in defining the limits of due process and ignores the critical inquiries required by Schad v. Arizona, 501 U.S. 624 (1991) and Richardson. In Schad, the Supreme Court first scrutinized a statutory definition of an offense that allows jury disagreement and concluded that such a statute is subject to the due process demands of fundamental fairness and rationality. 501 U.S. at 637. A plurality of the Court offered guideposts that emphasized the demands for fairness and rationality, advancing an inquiry into the "history and wide practice as guides to fundamental values" as well as the "moral and practical equivalence" of the alternative *385means of committing the crime. Id. at 637-38. Justice Scalia, who provided the fifth vote on the due process question in Schad, offered an analysis that focused on historical practice, criticizing the plurality's creation of a moral equivalence requirement. Id. at 651 (Scalia, J., concurring).

¶ 33. In construing the federal statute at issue in Richardson, the Supreme Court explained that it was guided by the constitutional limits on a state's "power to define crimes in ways that would permit juries to convict while disagreeing about means." 526 U.S. at 820. Harmonizing the plurality and concurring opinions of Schad for the first time, the Court explained that the state exceeds the limitations imposed by due process when its definition of a crime "risks serious unfairness and lacks support in history or tradition." Id.

¶ 34. A proper consideration of the risk of unfairness, history, and tradition must lead to the conclusion that § 948.025(2) exceeds the limits of due process. Because Richardson represents the analysis approved, by a majority of the United States Supreme Court in an analogous case, today's majority is remiss in not adhering to that analysis. Instead, it dismisses Richardson and concludes that "the risk of unfairness in dispensing with unanimity. . .is not present as it was in Richardson." Majority op. at ¶ 26.

¶ 35. There is no doubt that removal of the requirement of jury unanimity as to the predicate offenses that comprise the crime of repeated sexual assaults of the same child risks serious unfairness. The risk of unfairness, as identified by the Richardson Court, is twofold. First, there is the risk that absence of a requirement that the jury agree on the particular acts committed "will cover up wide disagreement *386among the jurors about just what the defendant did, or did not, do." Richardson, 526 U.S. at 819.

¶ 36. Section 948.025(2) epitomizes this risk. In a case where a sufficiently high number of sexual assaults are alleged, a jury could conceivably convict a defendant without any two jurors agreeing as to the predicate violations of § 948.02(1) or (2) that they believe the defendant committed. Even in the ordinary case, § 948.025(2) will mask juror disagreement as to which offenses the defendant actually committed.

¶ 37. As a practical matter, allowing such juror disagreement amounts to little more than an abrogation of the State's burden of proof for each individual predicate offense through the creation of a "continuous course of conduct crime." The State is no longer required to convince all twelve jurors beyond a reasonable doubt that the defendant committed a specific act of sexual assault. Rather, the State need only convince some jurors that the defendant committed acts A, B, and C; other jurors may find that the defendant committed acts D, E, and F. Where no valid conviction for a single individual act could otherwise stand because of the lack of jury agreement, the defendant may nonetheless be convicted under § 948.025.

¶ 38. Ironically, the State itself provides the strongest argument illustrating the unfairness posed by § 948.025(2). The state candidly advances in its brief that the prosecution in this case pursued a conviction under § 948.025 because of the difficulties of proving the individual instances of assault:

[T]he prosecutor must have believed there would be problems proving up the individual sexual assaults or else there would have been no reason to charge *387Johnson with a single violation of § 948.025 rather than with multiple violations of § 948.02(2).

The state's position leads me to ask, much like the Richardson Court asked when presented with a similar argument premised on the alleged difficulty in establishing the predicate offenses: Does the difficulty in proving the individual specific offenses not tend to cast doubt upon the very existence of the requisite "course of conduct"? See Richardson, 526 U.S. at 823.

¶ 39. The second risk of unfairness posed by the abrogation of the requirement of unanimity is that by not requiring the jurors to focus upon specific factual details the jury may conclude that "where there is smoke there is fire." Richardson, 526 U.S. at 819. In other words, when presented with numerous allegations of sexual assault, but relieved of the obligation of finding that three particular assaults occurred beyond a reasonable doubt, the jury will convict out of a belief that there must have been at least three sexual assaults.

¶ 40. While both of these risks of unfairness, which were set forth by the Supreme Court in Richardson, are present under § 948.025(2), the majority brushes them aside. The majority instead rests on its inquiry into "moral and conceptual equivalence" of the predicate offenses about which the jurors are permitted to disagree. Unfortunately, the majority's analysis, which concludes that similar crimes may be grouped together as a "continuous course of conduct" crime under which the requirement of jury unanimity may be eliminated, misses the mark. The inquiry does little to reflect on the overall unfairness of allowing a jury to disagree entirely on which criminal acts serve as the basis for conviction. The similarity of the underlying offenses is no substitute for the requisite proof and *388agreement that the offenses were actually committed by the defendant.

¶ 41. While I would conclude that the risk of serious unfairness alone defeats the constitutionality of § 948.025(2), I note that the statute lacks support in both tradition and history. There is no tradition in the law supporting the constitutionality of a statute that defines an offense in a manner which allows jurors to wholly disagree as to the acts comprising the offense. Indeed, the Richardson Court noted that the law reflects a competing tradition: the "tradition of requiring juror unanimity where the issue is whether a defendant has engaged in conduct that violates the law." 526 U.S. at 819.

¶ 42. Additionally, there is no historical support for an offense that allows juror disagreement in the manner of § 948.025(2). The majority gives this inquiry short shrift, concluding that because the statute is a recent creation, history is not a relevant inquiry into its constitutionality. The Schad plurality noted the "obvious proposition" that modern statutory offenses lacking support in the common law may not necessarily be tested by the "yardstick" of history. 501 U.S. at 640 n.7. However, this should not end the inquiry. The majority could, but does not, acknowledge that there is no analog in American legal history to the statutory abrogation of the requirement of jury unanimity presented in this case.

¶ 43. The lack of a historical antecedent invites an inquiry into the widespread contemporary acceptance of a particular practice.1 Indeed, the plurality opinion in Schad, to which the majority clings, featured *389an inquiry into the widespread use as an indicator of fundamental fairness and rationality. 501 U.S. at 640-643. Had the majority conducted an inquiry into the practices of other states, it would have been forced to acknowledge that only five other states have such statutory provisions.2 Moreover, it would have noted that Wis. Stat. § 948.025 is perhaps the most expansive of the few state statutes that relieve the requirement of jury unanimity in this context. Unlike Wisconsin, the few other states that do provide for such a statute limit the statute's breadth, through limitations on the circumstances of the assaults and on the timeframe during which the offenses must occur. Thus comparing § 948.025(2) to the practice of other states, it cannot be said that the removal of jury unanimity as to the predicate offenses under § 948.025(2) is supported by widespread practice.3

*390¶ 44. All told, I believe that § 948.025(2) cannot pass constitutional muster in light of Richardson. Section 948.025(2) poses substantial risks of unfairness to the criminal defendant and also lacks support in history and tradition. Accordingly, it exceeds the state's ability to define crimes in a manner that allows jury disagreement as to the modes of commission and violates due process.

¶ 45. Although I would rest the fate of § 948.025(2) on the due process afforded by the Fourteenth Amendment, I also address the majority's treatment of the state constitutional guarantee of a unanimous jury verdict under Article I, Sections 5 and 7.1 am concerned about the untold consequences of the majority's acceptance of State v. Molitor .4

¶ 46. By accepting the court of appeals' analysis in Molitor, the majority seems to have expanded the *391principles of State v. Giwosky, 109 Wis. 2d 446, 326 N.W.2d 232 (1982), and State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983), to an irrational degree. The potential result is that Giwosky and Lomagro and the accepted delineation of the jury unanimity requirement expressed in those cases have been wholly undermined.

¶ 47. Giwosky and Lomagro provide that a continuous criminal episode, although consisting of numerous criminal acts, may be treated as a single offense and that a jury need not be unanimous as to which specific act serves as the basis for conviction. In Giwosky, the requirement of jury unanimity was not violated when jurors were able to conclude that either of two assaultive acts committed within minutes in the same fight supported the defendant's battery conviction. We reasoned that "[t]he evidence introduced at trial established that the encounter was a short continuous incident that cannot be factually separated." 109 Wis. 2d at 456. In Lomagro, the guarantee of jury unanimity was not violated where numerous acts of sexual violence occurring over a two-hour period were presented to the jury as one count of sexual assault. We explained that, as in Giwosky, the encounter was "one continuing criminal episode and properly chargeable as one offense." 113 Wis. 2d at 598.

¶ 48. By adopting the Molitor rationale, the majority takes the Giwosky ¡Lomagro concept of a continuous criminal episode, limited in time and circumstance, and extrapolates it to include a series of non-continuous, separate and distinct criminal episodes. In doing so the majority seemingly defeats the concept of continuity that was the backbone of the Giwosky and Lomagro analysis.

*392¶ 49. Although the majority dons § 948.025 with the title of a "continuous course of conduct" crime, there is nothing continuous about the predicate offenses that comprise the violation of § 948.025 in this case. These crimes may involve the same victim and offender and they may be related offenses. They may also be part of a recurring pattern of conduct on the part of the defendant. However, unlike Giwosky, which involved offenses separated by a few minutes or Lomagro where the time span was around two hours, the offenses here are interrupted significantly by time and space. They occurred on different days, in different months, and in different places. They do not represent a single episode, but multiple episodes. As such, they must be viewed as multiple offenses, not a single "continuous" offense.

¶ 50. If the concept of continuity expressed in Giwosky and Lomagro can be read to satisfy the unanimity requirement in the case at hand, I, for one, no longer have any sense of the limits of the state constitution's unanimity protection. Could the state have pursued all of the sexual assaults in this case as one count of sexual assault under § 948.02, leaving the jury free to disagree as to whether an assault that occurred in July or one in committed in August is the basis for conviction? Because the individual assaults may be viewed together as a "continuous course of conduct crime" under the reasoning of the majority and Molitor, the State apparently could have pursued such a charge. Did the majority intend such a result? I do not think so. Can the majority reason its way out of those potential consequences? Not without rejecting the rationale of Molitor.

¶ 51. Finally, I note that in lieu of Giwosky and Lomagro to further guide us in defining the limits of *393the unanimity protection, the majority seems to have also left us with the most curious of constitutional standards. It has seemingly transformed the constitutional inquiry under Article I, Sections 5 and 7 into little more than a circuitous inquiry into legislative intent. Majority op. at ¶¶ 11-12 & ¶ 14. Under the majority's analysis legislative intent is apparently now the be all and end all of the Wisconsin constitution's guarantee of a unanimous jury verdict. Simply put, the majority's analysis directs that if the legislature intended to abrogate jury unanimity, then the state constitution presents no bar to the statutory definition.

¶ 52. In sum, the court of appeals asked us to render a decision in this case to reconcile its prior decision under the state constitution in Molitor with the due process formulation of the Supreme Court in Richardson. My response to the court of appeals is that there can be no reconciliation. The demands of due process, and in particular the risks of unfairness enunciated by the Richardson Court, defeat the constitutionality of § 948.025(2). By engaging in its own due process formulation, however, the majority fails to acknowledge that Richardson is controlling authority and that it requires this result. Not only does the majority depart from the United States Supreme Court to reach an incorrect result, but because it endorses the reasoning of Molitor, the majority leaves our state constitutional unanimity protection in a confused and troublesome condition.

¶ 53. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice WILLIAM A. BABLITCH join this dissenting opinion.

"[F]or those portions of the process that were added in more recent times, and therefore lack strong historical traditions, widespread acceptance of a particular practice speaks *389strongly in favor of its constitutionality." 1 Wayne R. LaFave et al., Criminal Procedure § 2.7(b) (2d ed. 1999).

See Ariz. Rev. Stat. Ann. § 13-1417 (West 2000); Cal. Penal Code § 288.5 (West 2000); Del. Code Ann. tit. 11, § 778 (2000); Haw. Rev. Stat. Ann. § 707-733.5 (Michie 1999); N.D. Cent. Code § 12.1-20-03.1 (1999).

As the majority notes, the Richardson Court cited state case law and statutes regarding sexual assault of a child represented as the only area where jury unanimity is avoided by treating individual offenses as a course of conduct crime. However, contrary to the majority's conclusions, that discussion should not be read to support the constitutionality of § 948.025(2). 526 U.S. 813, 821 (1999). The Court noted several mitigating factors that are not applicable to § 948.025(2). First, the Court noted that the federal Constitution does not impose a unanimous jury requirement upon the states. Id. When subject to scrutiny by this court, however, this distinguishing factor is inapplicable. Our state constitution does establish the right to a unanimous jury verdict.

*390Second, among the state laws reviewed by the Richardson Court, California's counterpart to § 948.025 was noted as truly exceptional on the ground that it defines the statutory offense in terms of other predicate offenses. Id. (discussing Cal. Penal Code Ann. § 288.5 (West Supp. 1998)). Because § 948.025 also defines the statutory offense with reference to other predicate offenses, it must be viewed in the same light as the California statute: a unique statute singled out by the Supreme Court and on which the Court has not placed its imprimatur.

Not only do I disagree with the analysis of the Molitor court, but I note that the discussion of the constitutionality of § 948.025(2) was unnecessary to the court of appeals decision in that case. In State v. Molitor, 210 Wis. 2d 415, 565 N.W.2d 248 (Ct. App. 1997), the defendant pled no contest to § 948.025(1). Section 948.025(2), which applies only to cases tried to a jury, was not implicated. Nevertheless, the court of appeals reached out and ruled on the constitutionality of § 948.025(2). Today the majority opinion adopts the analysis of the court of appeals' advisory opinion in Molitor.