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Court of Appeals splits over mishmash approach to instructing jury, affirms homicide conviction

State v. Joseph T. Langlois, 2017 WI App 44, petition for review granted 12/13/17, affirmed, 2018 WI 73; case activity (including briefs)

We all know that an appellate court determines the accuracy of a trial court’s jury instructions by reviewing them as a whole, not in isolation. State v. Pettit, 171 Wis. 2d 627, 637-638, 492 N.W.2d 633 (Ct. App. 1992).  But surely this doesn’t mean that a “whole” that includes incomplete, inaccurate instructions for some charges is fine so long as it includes the correct instructions for other charges. Surely we don’t expect 12 people unfamiliar with the complex law of “self defense” and “accident” to determine which versions of these instructions are correct and whether the same version applies to three distinct charges. This split opinion says “sure we do.” Judge Reilly objects to the majority’s “as long as the correct words are in there somewhere” approach to instructing a jury. Hopefully, SCOW will too.

Langlois’ brother was heading off for national guard duty and started packing some of Langlois’ possessions to take with him. Langlois angrily objected. His brother initiated physical contact, tackling him, putting him in headlocks until he begged for release, and, as the majority concedes, got the better of Langlois. At a break in the action, Langlois grabbed a fillet knife, stabbed his brother once, killing him.

The State charged Langlois with 1st degree reckless homicide, but at the close of evidence its case looked weak, so it requested instructions on two lesser-included offenses: 2nd degree reckless homicide and homicide by negligent use of a dangerous weapon. Then Langlois’ lawyer requested instructions on “self defense” and “accident” for all three charges.

So what were the instructions on the charges and the defenses? Let’s just say that the majority’s attempt to explain them left the author of this post very confused (which makes you wonder about the poor jury). Op. ¶¶2-13.  If you really want to understand what went wrong, skip to Reilly’s clear, concise dissent. It seems the trial court gave the correct “self defense” and “accident” instructions for the 1st and 2nd degree reckless homicide charges. But for the negligent homicide charge, it left out the bit about it being “the State’s burden to prove that the defendant didn’t act in self defense beyond a reasonable doubt” and incorrectly defined the term “criminal negligence” in the “accident” instruction.  Trial counsel didn’t object, so the issue is whether Langlois received ineffective assistance of counsel. The majority says “no” because:

¶36 In short, the record conclusively demonstrates that the court’s instructions to the jury, when viewed in their entirety and not in isolation, were not erroneous.  Since the court’s instructions were not erroneous, trial counsel’s failure to object was not deficient performance.  And, since Langlois’s claim of ineffective assistance of counsel fails on the deficient performance prong, we need not examine the prejudice prong.

Reilly disagrees:

¶61 Trial counsel was clearly deficient, and Langlois was clearly prejudiced as the erroneous instructions removed the State’s burden to prove beyond a reasonable doubt that Langlois did not act lawfully in self-defense and eliminated the State’s burden to prove that Langlois should have been aware of the unreasonable and substantial risk of death or great bodily harm by his actions.  I respectfully dissent.

Pay attention to footnote 2 of the dissent, which pretty much invites a petition for review. Under Wisconsin law, the court of appeals cannot review jury instructions for plain error when the trial lawyer fails to object to them, but the supreme court, which has broader discretionary reversal power, can. See State v. Schumacher, 144 Wis. 2d 388, 424 N.W.2d 672 (1988); Vollmer v. Luety, 156 Wis. 2d 1, 13, 456 N.W.2d 797 (1990).

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