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Appellate Procedure: Harmless Error (Verdict Forms) – Waiver (Failure to Object to Testimony)

State v. Andre D. Hansbrough, 2011 WI App 79(recommended for publication); for Hansbrough: Amelia L. Bizzaro; case activity

Verdict Forms – Harmless Error

Failure to provide a not guilty verdict option with a lesser included offense instruction is, although error, not structural but is instead subject to analysis for harmlessness, ¶¶10-17.

¶9        At the outset, we reject Hansbrough’s contention that there must always be a not guilty verdict form for each guilty verdict form.  As illustrated by Wis JI—Criminal 482, three verdict forms may be submitted when a defendant is charged with a lesser-included offense.  When done properly, the jury is provided with three forms reading as follows:  (1) “We, the jury, find the defendant, (name of defendant), guilty of (offense charged), as charged in the information”;
(2) “We, the jury, find the defendant, (name of defendant), guilty of (included offense), in violation of § ___ of the Criminal Code of Wisconsin, at the time and place charged in the information”; and (3) “We, the jury, find the defendant, (name of defendant), not guilty.”  The jury is instructed:  “It is for you to determine which one of the forms of verdict submitted you will bring in as your verdict.”  Id. Here, it is evident from the record that this was the intended approach taken by the State and trial court in providing the verdict forms.  However, instead of encompassing both the charged offense and lesser-included offense, the not guilty form in this case provided only:  “We, the jury, find the Defendant, Andre Hansbrough, not guilty of Party to the Crime of First-Degree Intentional Homicide as charged in Count One of the information.”  No mention is made of the lesser-included offense of felony murder and, thus, the provision of three verdict forms in this case was error.  We turn to whether the error was structural error or trial error.

Stressing that structural (per se prejudicial) error applies to a “very limited class of cases,” the court draws guidance principally from Neder v. United States, 527 U.S. 1 (1999) (instructional omission of element subject to harmless error rule) and State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189 (same). [Minor typo in court’s rendition of page # of Harvey Wis. 2d cite, ¶16; it’s “442,” not “492.”]

¶17      In drawing from the above cases and applying Neder’s reasoning, we conclude that the failure to provide the jury with a not guilty form for one of the five charged offenses did not constitute structural error.  As will be discussed below, the timing of the error in this case—after the close of the trial and in conjunction with proper jury instructions—prevented the error from infecting the entire trial.  Moreover, the particular facts of this case, including the number of charged offenses and Hansbrough’s defense strategy, allow for the assessment of the error’s effect in the context of the entire trial.  See Fulminante, 499 U.S. at 307-08.  We therefore conclude that the error in this case is not structural, but rather trial error subject to a harmless error analysis.

The error is indeed harmless, ¶¶18-23: the jury was given not guilty verdict forms on other, closely related offenses, and return of guilty verdicts reflect the jury’s “rejection of Hansbrough’s sole defense”; the jury was properly instructed on all charges; te jury first had to find guilt on the underlying felony before returning the guilty verdict on the felony murder; and, post-verdict polling confirmed each juror’s finding of guilt.

¶23      We conclude, in the context of the entire trial proceedings, the trial court’s error in failing to provide the jury with a not guilty verdict form was harmless.  Given that the trial court properly instructed the jury and that the jury found Hansbrough guilty of the related counts, we are satisfied beyond a reasonable doubt that a rational jury would have found Hansbrough guilty of felony murder even if it had been provided the proper verdict forms.

Harmless error test recited, ¶18 (must be clear beyond reasonable doubt that rational jury would have found guilt absent the error, when viewed in context of entire trial).

Waiver – Failure to Object

Failure to object to certain testimony (contended on appeal to be inadmissible hearsay and lay opinion testimony) waived any objection, thus barring review on appeal, ¶¶24-28. Trial counsel testified at the postconviction hearing to strategic reasons for not objecting, besides which the result wasn’t impacted.

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