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Jury Instructions; Ineffective Assistance; Record on Appeal; Self-Defense

State v. Morris L. Harris, 2009AP2833-CR,  District 1, 10/13/10

court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply

Lesser-Included Instruction – Battery

Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense, ¶¶9-12.

Self-Dense Instruction

Charged with two different forms of battery to the victim, Harris complains that the self-defense instruction, which the court read to the jury but once, was improperly limited to one of the charges. The court rejects the claim:

… The sequence here was that the trial court instructed the jury on battery to an injunction petitioner, then instructed the jury on substantial battery, and then gave the self-defense instruction.  The self-defense instruction was not limited to one crime or the other.  Rather, the instruction broadly stated:  “Self-defense is an issue in this case,” and then went on to instruct the jury on self-defense.  Thus, the overall meaning of the instructions were correct; the self-defense instruction applied to both charges.  Contrary to Harris’s contention, there was no chance that the jury was confused by the placement of the self-defense instruction, which, as noted, told the jury that self-defense was “an issue” in the case. …

“Nexus” Instruction, “While Armed”

¶18      Here, Harris was charged with using the ironing board as the dangerous weapon in committing the charged crimes.  Thus, the nexus between the weapon and the crime was automatically present.  See id. Moreover, the model instruction given here asked the jury to determine whether Harris committed “this crime while using a dangerous weapon.”  Any contention that there was error with respect to the ironing board and its nexus to the battery is wholly without merit.

Ineffective Assistance

Various instances of claimed deficient performance (not worth detailing) deemed non-prejudicial, ¶¶19-33, 42. Court’s discussion contains general statement of applicable test.

Record on Appeal

¶25, n. 1:

Harris also argues that his lawyer should have objected when the State introduced before and after photos of Harris to show that he did not have any injuries to disprove his claim that Lewis was the aggressor and Harris was simply defending himself.  Harris, however, did not raise this issue in his postconviction motion and so has forfeited his right to have us consider it.  See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501, 505 (1997). Further, the pictures are not in the Record, and therefore, we must assume they support the conviction.  See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992).  Although Harris does attach the pictures to his appellate brief, that does not put them in the Record.  See Jenkins v. Sabourin, 104 Wis. 2d 309, 313–314, 311 N.W.2d 600, 603 (1981).

Domestic Abuse Injunction

Mere scrivener’s error in underlying injunction petition doesn’t invalidate resultant injunction, ¶¶29-30. Laluzerne v. Stange, 200 Wis. 2d 179, 546 N.W.2d 182 (Ct. App. 1996), explained (injunction not valid where no petition filed).

Recusal

Trial judge’s post-trial, sua sponte recusal in separate case involving different victim didn’t require similar action in this case:

¶35      First, Harris did not request recusal, and thus, has forfeited this claim.  See City of Edgerton v.General Cas. Co. of Wis., 190 Wis. 2d 510, 519, 527 N.W.2d 305, 308 (1995) (party forfeits recusal claim if not timely raised).  Second, there is no merit to Harris’s claim that the trial court should have also sua sponte recused itself from this case, especially when the case had already been fully tried and all that remained was sentencing.

¶36      A court must recuse itself when it “determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.”  WIS. STAT. § 757.19(2)(g).  This is a subjective determination.  See State v. American TV & Appliance of Madison, Inc., 151 Wis. 2d 175, 183, 433 N.W.2d 662, 665, (1989) (“[T]he determination of the existence of a judge’s actual or apparent inability to act impartially in a case is for the judge to make.”).  Here, the trial court found that it could be fair in this case.  Harris has pointed to nothing that even hints that this subjective determination was fraudulent.

Sentencing – Factors

¶49      We disagree with Harris’s contention that the trial court’s reference to him fathering other children was improper because it is clear from the context that these comments were part of background facts and the nature of his character to hurt women with whom he had children.  There is nothing in the trial court’s remarks that indicate that Harris was being punished for fathering children, but, rather, he was being punished because he battered the mothers of his children, and had done so in the past.  The trial court did not erroneously exercise its sentencing discretion.

Sentencing – Discretion – Consecutive Terms

The sentencing court’s reference to seriousness of the offenses, and the distinct interests involved in each crime, adequately explained why consecutive terms were appropriate, ¶51.

Sentencing – Factors – Criminal History

Sentencing reliance on unproved and uncharged crimes was proper, ¶54.

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