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No error where judge reached verdict in bench trial while jury out on remaining count

State v. Robert Mario Wheeler, 2016AP55-CR, 2/21/2017, District 1 (not recommended for publication); case activity (including briefs)

Robert Wheeler was tried for reckless injury and being a felon in possession of a gun arising out of a single shooting incident. To keep the jury from hearing about his status as a felon, the parties stipulated that he was and agreed that the gun possession charge would be decided by the court. Wheeler’s counsel specifically noted the possibility that the two counts could be decided differently, given the different factfinders. (¶5).

The jury was out for parts of three days; in the interim the court decided to render its verdict on the possession count, and found White guilty. White contends that his due process rights were violated because he did not get the chance to make a separate closing argument on that count. The court of appeals notes that he did make an argument to the jury, heard by the judge, denying that he was the shooter; in the alternative the court finds separate argument forfeited because he did not seek to make one. (¶¶22-23). It also rejects the claim that the court’s changing its mind about the order in which the verdicts would be rendered deprived him of notice and the opportunity to be heard. (¶¶24-28).

Wheeler also argues that his due process rights were violated by the inconsistent verdicts (the jury ultimately hung on the reckless injury count and it was eventually dismissed). The court of appeals again disagrees, noting his counsel’s agreement to the procedure. (¶32).

It also rejects his claim that he should get a new trial on the felon in possession charge under the doctrine of “retroactive misjoinder.” This rule permits a new trial where, e.g., a defendant is tried on multiple counts and one or more of those counts is later determined to have been improper. The point of the rule, in the court’s view, is that the jury ought not to have heard about the vacated count or counts, or the evidence supporting them, and doing so may have been prejudicial as to the remaining, valid counts. (¶¶33-37). Here, given the separate factfinders, the court of appeals finds no possibility that the evidence on reckless endangerment influenced the court-trial verdict on felon in possession.

The court finally rejects a challenge to the sufficiency of the evidence, saying that Wheeler’s arguments amount to attacks on the credibility of the state’s witnesses. (¶¶38-39).

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