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Issue Waiver: Jury Instruction – Failure to Object to Trial Court Response to Jury Question

State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09
For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate

Issue/Holding: By failing to object, defendant waived right to challenge judicial response to deliberating jury’s question, notwithstanding conceded unanimity problems in the response:

¶15   Nevertheless, we must agree with the State and hold that Becker waived his argument that the trial court erroneously exercised its discretion in answering the jury’s question in the manner it did. At the time the trial court announced its intention to provide the challenged answer to the jury’s question, Becker’s trial counsel did not object to it. Indeed, he appears to have expressly “okayed” it ……

¶17   Here, the answer the trial court gave to the jury’s question regarding its instruction became part of its instruction to the jury. Thus, as in Marcum, this appeal rests on claimed errors in the jury instructions. See Marcum, 166 Wis. 2d at 915. And, like Marcum, Becker has a timing issue with his objection. Because Becker’s objection came too late; we will not review the instruction to the jury “in the context of whether the trial court erred.” See id. at 916.

The objection is reviewable under an ineffective-assistance claim, ¶18. Obvious, perhaps, but worth noting nonetheless: an answer to a jury question becomes “part of” the jury instructions.

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