State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding: Failure to object to the wording of a limiting instruction (limiting jury’s use of certain evidence to impeachment rather than substantive evidence of guilt) waived the right to challenge its efficacy, ¶¶34-36.
The court possesses discretionary authority to review and reverse in the interest of justice but “Cockrell does not contend that the real controversy was not tried because of the challenged jury instruction,” ¶36 n. 12. That’s right, under the facts, but you wouldn’t want to overly generalize the result. A limiting instruction is available as a matter of right, § 901.07, which in this context would be something like: “You’ve heard evidence that in the face of a direct accusation of guilt the defendant lawyered up. You may not consider this assertion of right to counsel as evidence of guilt but instead you may consider it only as relevant to whether he’s a lying sack.” Indeed, the prosecutor, alert to the possibilities, requested that the jury’s use be “limited” to the following: “You may, as with any witness … consider evidence of his prior statements in assessing his credibility.” The trial judge refused that request and gave the defense something of a windfall: “… You must not consider that decision by Mr. Cockrell to seek the assistance of counsel [when questioned by the detective] to in any sense be evidence of guilt as to any charge.” (¶¶34-35) The argument on appeal that this instruction “erroneously failed to inform the jury that the State’s questioning regarding that silence could be considered solely with respect to impeaching his credibility” might be a bit too literal-minded.
The reality-based community of practitioners is likely to see in this context a “limiting” instruction as dicey at best, only drawing juror attention to an area best avoided. And granted moreover that this particular instruction was adequate to the assigned task: What about when there’s been no limiting instruction, due to oversight rather than strategy? Well, then you might be able to play on the sensibilities of appellate judges, who after all tend to view this sort of thing from the perspective of Mount Olympus. Just how is a jury supposed to know about the limited, non-substantive use of such very damning evidence? Consider, first of all, the fundamental principle that as a matter of fundamental due process a case may not be tried on one theory only to be affirmed on appeal by a distinct theory, e.g., Cole v. Arkansas, 333 U.S. 196 (1948). If the jury had no reason to suspect that the evidence came in for a limited, non-substantive purpose but indeed used it as direct evidence of guilt, then affirming on the theory that the evidence was used “only” on credibility might well violate due process. “A trial becomes unfair if testimony thus accepted may be used in an appellate court as though admitted for a different purpose, unavowed and unsuspected. People v. Zackowitz, 254 N.Y. 192, 200, 172 N.E. 466. Such at all events is the result when the purpose in reserve is so obscure and artificial that it would be unlikely to occur to the minds of uninstructed jurors, and even if it did, would be swallowed up and lost in the one that was disclosed.” Shepard v. United States, 290 U.S. 96, 103 (1933). Take into account that Shepard dealt with distinct and relatively extreme facts, but its underlying idea might well have some broader traction, at least in the right case.
There might also, again under the right set of facts, be a related but still somewhat obscure “law of the case” argument—which says that (within limits) you have to gauge the evidence by the unobjected-to instructions, see, e.g., United States v. Zanghi, 189 F.3d 71, 79 (1st Cir. 1999) (“‘When a cause is submitted to the jury under an instruction, not patently incorrect or internally inconsistent, to which no timely objection has been lodged, the instruction becomes the law of the case.’ United States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992)”). In other words, “law of the case” might preclude an appellate court from saying that, despite absence of a limiting instruction, the evidence indeed was given limited effect.