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IAC – Jury Unanimity (Multiple Counts, Sexual Assault)

State v. Carl Mills, 2010AP1746-CR, District 1, 9/7/11

court of appeals decision (not recommended for publication); for Mills: Randall E. Paulson, SPD, Milwaukee Appellate; case activity

Trail counsel was not ineffective for failing to object to jury instructions and verdict forms with respect to unanimity on multiple counts of sexual assault of a single victim, even though the verdict forms did not specify the types of sexual intercourse involved; State v. Marcum, 166 Wis. 2d 908, 480 N.W.2d 545 (Ct. App. 1992), distinguished.

¶19      In contrast to the situation in Marcum, Mills fails to show that he was prejudiced by his trial counsel’s failure to object to the lack of verdict specificity.  First, the jury did not lack the ability to match each alleged act to each sexual assault charge.  Both Alana M.’s testimony and the State’s closing arguments were clear as to the order and circumstances surrounding the four distinct sexual assaults.  …  Unlike Marcum, the record in this case shows there was always a clear distinction between the acts underlying each count.

¶20      Second, the trial court also specified which act correlated with which count when it instructed the jury on the charges before closing arguments. …

¶21      In Marcum, we acknowledged “that any unanimity problem could [be] avoided by an instruction telling the jurors that they must be unanimous about the specific act that formed the basis for each count.”  Id. at 918.  “And, if the conduct involves separate transactions and separate crimes, the court must then instruct the jury that unanimity is required as to each.”  Id The trial court took the proper steps to avoid a unanimity problem.  The instructions are clear that the jury was to consider each count separately and was to reach a unanimous verdict as to each count.  We presume that the jury followed these instructions.  See State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989) (jury is presumed to follow instructions).  Even if Mills’s trial counsel should have objected to the wording in the Information, instructions and verdict forms, Mills was not prejudiced by this failure.

The State’s closing argument summarized the four assaults in the order, and under the circumstances, described by the victim, ¶9. The jury acquitted on two of the four counts – “the two counts in which the jury was presented with physical evidence,” ¶19.

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