State v. Fonte

Citations: 2005 WI 77; 281 Wis. 2d 654; 698 N.W.2d 594; 2005 Wisc. LEXIS 315Docket: 2003AP2097-CR

Court: Wisconsin Supreme Court; June 15, 2005; Wisconsin; State Supreme Court

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The Supreme Court of Wisconsin reviewed the case of Peter A. Fonte, whose conviction for homicide by intoxicated operation of a vehicle was reversed by the court of appeals following a boating accident that led to the death of Traci Paladino. The state presented five issues for appeal: 1) the jury instruction on chemical tests of intoxication; 2) the sufficiency of evidence proving Fonte was operating the boat during the incident; 3) the effectiveness of Fonte's legal counsel; 4) the denial of a change of venue due to pretrial publicity; and 5) the constitutionality of Wis. Stat. 940.09.

The court ruled against Fonte on all issues, reversing the court of appeals' decision and directing the circuit court to reinstate his conviction. The incident occurred on July 16, 2001, during a trip to Geneva Lake where Fonte and friends rented a motorboat. Witnesses testified that while several friends swam, the boat was idling and drifting. Pleffner, a swimmer, was struck by the boat, and Paladino's body was later recovered, with the cause of death attributed to the boat's propeller.

Following the accident, Fonte was interviewed by law enforcement, where he initially identified himself by a false name and exhibited signs of intoxication. A breathalyzer test indicated a blood alcohol level of .06%, and a subsequent blood draw showed a level of .052% later that evening. Fonte was charged with homicide and prohibited alcohol concentration under relevant statutes, with the parties agreeing that the propeller was responsible for Paladino's death.

Fonte sought a change of venue due to alleged prejudicial pretrial publicity in Walworth County, but the court denied this motion, asserting that careful jury screening could ensure a fair trial. The trial commenced on March 11, 2002, culminating in Fonte's conviction and a 25-year bifurcated sentence (seven years confinement, followed by 18 years of extended supervision). Fonte's post-conviction relief motion, citing multiple trial errors, was also denied. On appeal, the court reversed his conviction, finding the jury instruction on chemical intoxication misleading, and remanded for a new trial. The State contested this reversal, and both parties addressed additional unresolved issues.

The standard of review for the jury instruction issue grants circuit courts broad discretion to ensure juries are fully informed of applicable law. However, independent review is conducted to ascertain the accuracy of jury instructions. A jury's verdict is upheld unless evidence is insufficient to support a reasonable finding of guilt. The review of ineffective assistance of counsel claims involves mixed law and fact questions, with a de novo review for legal conclusions. The denial of a venue change is assessed under the erroneous exercise of discretion standard, with an independent evaluation of community prejudice likelihood. The constitutionality of applicable statutes is also reviewed de novo.

Regarding the jury instruction on chemical tests, the State contended it was appropriately formulated under Wis. Stat. 885.235. The court concurred, affirming that the instruction did not violate Fonte's due process rights. A conviction based on erroneous jury instructions necessitates reversal and retrial only if the error is prejudicial, defined as likely misleading the jury rather than merely possibly doing so. The court determined that the jury instructions overall conveyed a correct legal interpretation.

At trial, the State proposed a jury instruction allowing the jury to consider a blood alcohol concentration (PAC) of 0.1 or higher as prima facie evidence of intoxication while operating a boat. Fonte objected, citing that his blood sample was taken over three hours after the alleged operation, arguing the instruction was inappropriate. However, the court determined that under Wis. Stat. 885.235(3), a jury could find a PAC of 0.1 or higher as prima facie evidence of intoxication if expert testimony established that the delayed blood draw results indicated a PAC of 0.1 or higher at the time of operation. The court provided an instruction stating that if jurors were convinced beyond a reasonable doubt of a 0.10% or higher alcohol level in Fonte's blood or breath at the time of operation, they could conclude he was under the influence, but were not obligated to do so.

Fonte argued that the jury instruction was not appropriate under Wis. Stat. 885.235(3) because it requires expert testimony to establish the probative value of the chemical test results, unlike subsection 885.235(1g), which allows for chemical test analysis without expert testimony. Subsection (1g) allows a PAC of 0.1 or higher to be considered prima facie evidence of intoxication, while subsection (3) requires an expert to validate the analysis. During the trial, the State's expert, Casey Collins, testified about the effects of the delayed blood draw, stating that the ethanol level in Fonte's blood was 0.052 grams per hundred milliliters and could estimate Fonte's blood alcohol level at the time of the incident, assuming no further alcohol consumption.

The expert explained the process for calculating a person's blood alcohol concentration (BAC) by using the average elimination rate for males, multiplying it by the time elapsed since the blood draw, and adding this to the measured BAC. The elimination rates provided a range, with a low end of 0.122 and a high end of 0.227, averaging 0.157. The expert was able to estimate the BAC at the time of the incident, concluding it would be approximately 0.152, which meets the legal threshold under Wis. Stat. 885.235(3).

Regarding the sufficiency of evidence, Fonte contested whether there was enough proof he operated the boat during the accident. Testimony revealed that three out of four witnesses did not see the operator, while the fourth witness, Chad Mattingly, initially stated he could not identify the driver but later implied it was Fonte, albeit under unclear circumstances. Mattingly expressed uncertainty about his recollection and suggested that the police may have influenced his response. This inconsistency in witness accounts raises questions about the evidence supporting Fonte's alleged operation of the boat at the time of the accident.

Officer Patek testified about his interview with Fonte following a boating accident, noting that Fonte became emotionally upset and stated he thought the boat was out of gear. Fonte described circumstances leading up to the accident, including that swimmers had jumped off the boat and that he believed he had put the boat in neutral before leaving the controls. Patek's testimony indicated that the boat continued moving and made a sharp turn, which led to the incident with the swimmers. Fonte contended that the evidence was insufficient to prove beyond a reasonable doubt that he was operating the boat at the time of the accident, suggesting that someone else may have interacted with the controls. However, the jury could reasonably interpret Fonte's statements as an admission of responsibility for the accident, particularly his emotional response and acknowledgment of his belief regarding the boat's gear. Mattingly's admission that Fonte was operating the boat further supported this conclusion, leading to the determination that the jury had enough evidence to find Fonte guilty beyond a reasonable doubt.

Fonte also claimed ineffective assistance of counsel, arguing that his attorney failed to object to evidence regarding his alias and lifestyle. The Strickland test evaluates claims of ineffective counsel, requiring the defendant to demonstrate both that counsel's performance was deficient and that this deficiency prejudiced the defense. The test emphasizes that courts should give deference to the attorney's performance and avoid hindsight bias in evaluations of effectiveness. The application of this test is critical in assessing whether the conviction can be deemed reliable.

The case is evaluated from the perspective of the defense counsel at the time of trial, placing the onus on the defendant to rebut the presumption that counsel acted within professional standards. To establish ineffective assistance, the defendant must demonstrate both deficient performance and resultant prejudice affecting the fairness of the trial, as per Strickland v. Washington.

Fonte argues his counsel was deficient for failing to object to multiple mentions of his alias, "Anthony Michaels," which he used during arrest and initial court appearances. This alias was associated with an obstruction charge, to which Fonte pled guilty. He cites numerous instances in the trial where witnesses referred to him as Michaels, claiming this was prejudicial since aliases imply criminality. The State contends that it was natural for witnesses to use the name they knew him by, and Fonte's trial counsel explained that avoiding the alias could confuse the jury, a decision made in consultation with Fonte. The circuit court found that trying to exclude the alias would complicate the trial further and potentially provide grounds for post-conviction relief.

Additionally, Fonte claims that evidence presented by the State regarding his lifestyle contributed to a negative portrayal of him. This evidence included his attendance at concerts, the nature of his friendships, and the fact that he and his friends shared a hotel room prior to the incident. The combination of these factors forms the basis for his argument of ineffective assistance of counsel.

Fonte contends that evidence presented portrays him as unemployed or lacking responsibility, suggesting a higher likelihood of substance abuse. However, the court finds his arguments unconvincing, agreeing with both the circuit court and his trial counsel that testimony regarding his friends attending concerts is not prejudicial. The court notes there is insufficient reason to assume Fonte was unemployed based on his concert attendance. Additionally, while acknowledging drug and alcohol abuse at rock concerts, Fonte fails to demonstrate that this undermines confidence in his fair trial or reliable verdict, leading to the rejection of his claim for ineffective assistance of counsel.

Regarding the request for a change of venue due to pretrial publicity, Fonte asserts that he provided adequate evidence to show that such publicity would hinder a fair trial in Walworth County. The court evaluates this claim using multiple factors, including the nature, timing, and content of the publicity, jury selection difficulties, juror familiarity with the publicity, and the severity of the charges. Fonte submitted 44 newspaper articles from mid-2001 to early 2002, focusing on the inflammatory nature of the reporting. The court emphasizes that factual and non-editorial news reporting is not inherently prejudicial. Judge Kennedy concluded that the publicity was not unduly prejudicial or inflammatory, largely consisting of factual accounts related to the case rather than biased commentary. The court concurs, noting that many articles focused on the search for a victim's body rather than on Fonte himself.

Coverage of Fonte included potentially inflammatory statements regarding his criminal history and conduct related to a boating accident. However, this was mitigated by factors such as the timing and specificity of the articles, with the majority published shortly after the accident and others focusing on subsequent legal proceedings. Articles containing contentious claims were published over seven months prior to the trial, allowing public sentiment to diminish. Fonte argued that the outreach of the coverage, with a circulation of about 20,000 against 79,000 potential jurors, indicated significant influence. However, the court did not rely on specific percentages, noting the extensive use of voir dire to ensure juror impartiality.

During voir dire, jurors were questioned individually about their exposure to the case's publicity, resulting in the dismissal of eleven potential jurors who had formed opinions influenced by pretrial media. The court took precautionary measures by excusing jurors who might be biased, including those aware of prejudicial evidence. Consequently, the court concluded that voir dire was effectively conducted, producing an impartial jury.

Additionally, Fonte challenged the constitutionality of Wis. Stat. 940.09, which addresses homicide by intoxicated use of a vehicle or firearm. He argued that the statute improperly shifts the burden of proof regarding the causal link between intoxication and death. He requested that the court overturn its previous ruling in State v. Caibaiosai, which dismissed a similar argument. The court declined to do so, affirming the validity of its earlier reasoning and the principle of stare decisis.

The legislature classifies operating a motor vehicle while intoxicated as malum prohibitum, inherently antisocial, and indivisible in its wrongfulness. According to Section 346.63, a violation occurs when an individual operates a vehicle while under the influence, without the necessity for erratic or negligent driving. The intertwined nature of intoxication and driving renders it illegal and potentially lethal. Section 940.09 mandates that the prosecution must demonstrate a causal relationship between the defendant's intoxicated driving and the victim's death, but it does not require a direct link between the intoxication itself and the death. The activity is viewed as inherently dangerous, making it foreseeable that intoxicated driving could lead to death, justifying the lack of a direct causal element.

The court concluded that the jury instruction regarding chemical tests was fair, sufficient evidence supported Fonte’s conviction for operating the boat during the accident, he received effective legal counsel, the denial of his change of venue motion due to pretrial publicity was justified, and that Wis. Stat. 940.09 is constitutional. Consequently, the court reversed the court of appeals' decision and remanded the case to the circuit court to reinstate Fonte's conviction. Justice N. Patrick Crooks did not participate in the decision.

References to the Wisconsin Statutes pertain to the 2001-02 version unless specified otherwise. The court of appeals addressed only the jury instruction issue, opting not to consider additional matters. Instead of remanding, the court has decided to address these other issues directly, citing State v. Johnson. Fonte pleaded guilty to obstruction and charges related to operating a motorboat under the influence, specifically under Wis. Stat. 30.681 and 30.80. The trial took place in Walworth County Circuit Court, presided over by Judge Robert J. Kennedy.

Wisconsin Stat. 885.235 outlines that chemical tests for intoxication are only admissible if conducted within three hours of the incident unless expert testimony can establish their probative value. Casey Collins, a forensic toxicologist, testified regarding the testing of alcohol samples. It was noted that Fonte was also known as "Rabbit." A comment made by the prosecution regarding Fonte's criminal record related to his lifestyle of following bands was deemed irrelevant as it was not presented before the jury.

The jury received unrefuted evidence indicating Fonte had a blood alcohol level of at least 0.122 at the time of the incident. Prior to the trial, articles surfaced about syringes found in a hotel room associated with Fonte; however, the trial court deemed this evidence irrelevant and prejudicial, ruling it inadmissible. The court ensured impartiality by dismissing jurors who had read about the case recently.

The court of appeals noted that Fonte had abandoned a specific issue in his reply brief but agreed that he properly raised it in the current appeal. Fonte concurred with the assertion that the court is bound by State v. Caibaiosai regarding the constitutionality of Wis. Stat. 940.09, which defines homicide by intoxicated use of a vehicle or firearm, classifying it as a Class B felony if it results in death while under the influence or with a prohibited alcohol concentration.