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IAC claim based on failure to ask for theory of defense jury instruction rejected due to absence of proposed instruction

State v. Michael J. Foster, 2020AP2149-CR, District 4, 7/29/21 (not recommended for publication); case activity (including briefs)

A defendant claiming that trial counsel was ineffective for failing to ask for a theory of defense jury instruction must propose the language the instruction should have included and establish it is a correct statement of the law. Absent such a proposed instruction, the ineffective claim will fail.

Foster’s defense to resisting an officer causing substantial bodily harm contrary to § 946.41(2r) was that the officer was using excessive force and thus wasn’t acting with lawful authority. Trial counsel made a brief, conclusory argument to that effect in closing, but didn’t ask for an instruction on the defense. (¶¶3-4). Postconviction, Foster alleged trial counsel was ineffective for failing to ask for an instruction. (¶5). To prevail on this theory, Foster must provide a proposed complete and correct instruction:

¶16     …[T]o prove deficient performance a defendant must identify specific “acts or omissions” by trial counsel that fall outside the “range of professionally competent assistance.” Strickland [v. Washington], 466 U.S. [668,] 690 [(1988)]; [State ex rel.Flores [v. State], 183 Wis. 2d [587,] 620[, 516 N.W.2d 362 (1994)]. Further, a circuit court must ensure that jury instructions “fully and fairly inform the jury of the rules of law applicable to the case” and that the instructions “assist the jury in making a reasonable analysis of the evidence.” [State v.Coleman, 206 Wis. 2d [199,] 212[, 556 N.W.2d 701 (1996)]. From those precepts, it is manifest that, for Foster to establish deficient performance in these circumstances, he must present this court with material, specific language for a theory of defense jury instruction that would have fully and fairly informed the jury of the applicable rules of law and assisted the jury in reasonably analyzing the evidence. The proposition has been summarized in persuasive authority as follows:

When the claim of error is that counsel was ineffective for failing to request that a jury instruction be given (or failing to argue that the instructions given did not accurately or completely instruct the jury on the law), the appellant must, at the very least, explain what parts of the [challenged] instruction were inadequate or what the instruction should have said.

State v. Powell, 2020 UT App 63, ¶47, 463 P.3d 705, 717 (internal quotation marks omitted)….

¶17     …. For trial counsel to have properly asserted a theory of defense instruction, counsel would have been required to articulate for the circuit court a basis for a specifically worded instruction, along with applicable supporting authority. See [State v.] Gaudesi, 112 Wis. 2d [213,] 223[, 332 N.W.2d 302 (1983)] (stating that the theory of defense instruction must correctly state principles supporting a valid defense); Wis. Stat. §§ 972.10(5), 805.13… Accordingly, in order to show that trial counsel’s performance was deficient, Foster must present this court with an argument that supports the asserted complete theory of defense instruction in these circumstances.

Foster doesn’t offer a proposed instruction; nor does he cite case law or statutes to support the theory of defense instruction that trial counsel should have requested. Instead, he refers to very general language in a footnote 8 of the standard jury instruction, Wis. J.I.—Criminal 1765. (¶¶19-20). This is insufficient because the footnote provides little to no support for why he should get an instruction or guidance on what it should say.

In particular, the standard instruction’s footnote (and thus Foster’s argument) doesn’t address the following questions: when force is reasonable and when it becomes excessive; whether the instruction should provide the common law standard or the constitutional standard, which, as described by the court, are not necessarily the same; and the legal basis for Foster to have used force, given he’d already been arrested and was in detention, cf. State v. Hobson, 218 Wis. 2d 350, 368 n.17, 577 N.W.2d 825 (1998) (recognizing limited privilege of resisting an arrest in which an officer uses excessive force). Because Foster hasn’t provided a draft instruction with material, complete language showing what a correct theory of defense instruction would look like, or an argument explaining why his proposed instruction was correct and complete, he hasn’t shown deficient performance, and his ineffective claim fails. (¶¶21-35).

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