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Appellate Procedure: Waiver (Lesser Offense Instruction) – Binding Authority (Overruled Court of Appeals Decision); Counsel: Deficient Performance – Unsettled Law; Voluntary Statements; Adult Jurisdiction over Juvenile: Post-Trial Reverse Waiver Procedure Constitutional

State v. Darron D. Jackson, 2011 WI App 63 (recommended for publication); for Jackson: Rebecca Lawnicki; case activity

Waiver – Lesser Offense Instruction

The jury convicted Jackson of recklessly endangering safety while armed, which was submitted as a lesser offense of the charged offense, attempted first-degree intentional homicide. Although Jackson did object to the endangering instruction on the ground that it wasn’t supported by the facts, he didn’t object on the ground that it wasn’t a lesser included of the charged offense under the “elements-only” test. The latter failure amounts to waiver of his right to raise challenge the instruction on that ground.

¶8        We hold that there was waiver here.  The objection made, that the evidence was insufficient to support the lesser included instruction, is an altogether different one than a claim that the elements of the proposed “lesser” charge are different than the main charge and, therefore, cannot be called a “lesser included” crime.  Had the proper objection been made, the prosecutor may have disregarded the “while armed” portion of the request for the lesser included in order to be safe.  Or, the trial court may not have allowed the lesser included.  We do not, of course, know for sure what would have happened. But we rarely reverse a trial court for something that it was never allowed to decide and we will not do so here.  See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980), superseded by statute on other grounds.

The analysis is a bit glib, including indifferent use of the very term “waiver.” See State v. Ndina, 2009 WI 21, ¶ 29, 315 Wis. 2d 653, 761 N.W.2d 612 (“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.”) More, though, is at stake than a mere quibble over nomenclature. Wisconsin’s longstanding adherence to the elements-only test for lesser included offenses is justified in no small part by considerations of notice. Randolph v. State, 83 Wis. 2d 630, 266 N.W.2d 334 (1978) (“Procedural due process requires that a defendant have notice of a specific charge and an opportunity to be heard in trial of the issues raised by that charge. It is for this reason that a trial court may not instruct a jury with regard to an offense which is not included in the charged offense.” Does that make the decision to go with a lesser offense personal to the defendant? Possibly not, though the question is a fraught one. E.g., State v. Miller, 2009 WI App 111, ¶¶85, et seq, 320 Wis. 2d 724, 772 N.W.2d 188 (dissent). But the context here is different, involving jury consideration of an offense for which the defendant did not have notice as a matter of law. The suggestion is simply that a bit more than a tossed-off paragraph announcing “waiver” might have been warranted, a suggestion bolstered by Randolph itself, 83 Wis. 2d at 638 (rejecting State’s waiver argument, because submission of a non-lesser offense “both misstated the law and affected the substantial rights of the defendant”). See also Clark v. State,62 Wis. 2d 194, 205, 214 N.W.2d 450 (1974) (“a trial court is not permitted to instruct or submit a verdict on a lesser not included offense”). Maybe things have changed and failure to object now empowers the court to do something once thought beyond the pale. A convincing case might well be made. But you won’t find it in this decision.

Counsel – Deficient Performance – Unsettled Law

Because caselaw has not definitively settled whether reckless endangering while armed is a lesser included offense of a charged crime of attempted first-degree intentional homicide, counsel isn’t obligated to object to the submission of the former as a lesser offense option:

¶10      When the law is unsettled, the failure to raise an issue is objectively reasonable and therefore not deficient performance.  See State v. Maloney, 2005 WI 74, ¶23, 281 Wis. 2d 595, 698 N.W.2d 583.  When case law can be reasonably analyzed in two different ways, then the law is not settled. State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994). …

¶19      We acknowledge that a reasonable attorney could have objected to the lesser included instruction given here, based on Carrington I. But, since the case can be reasonably limited to its specific fact situation, the trial attorney’s failure to object was not deficient performance.  See McMahon, 186 Wis. 2d at 84.  Because of that, Jackson’s ineffective assistance of counsel claim on this issue fails….

In other words, it’s not enough that caselaw very strongly suggests that “while armed” has an elemental form when attached to reckless endangering (at a minimum; read Carrington and decide for yourself). if no precedent “definitively” so holds, then counsel simply isn’t expected to draw the necessary connection. Decide for yourself, too, whether this result will likely encourage rising or falling performance standards.

Binding Authority – Overruled Court of Appeals Decision

Only when the supreme court “overrules” a court of appeals decision does the latter lose all its precedential value. The court of appeals, by way of distinction, has “long held that a reversal of a court of appeals opinion, on other grounds, does not affect the validity of the remaining holding or holdings of that lower court opinion unless the supreme court expressly says so,” ¶15 n. 3.

Statements – Voluntariness

Notwithstanding some similarities to State v. Jerrell C.J., 2005 WI 105, ¶20, 283 Wis. 2d 145, 699 N.W.2d 110, Jackson’s statement wasn’t coerced:

¶25      The test, however, requires balancing the personal characteristics of the defendant against any coercive or improper conduct.  See id., ¶20. And while there are some similarities between Jerrell and Jackson’s personal characteristics, the police conduct was very different.  As the State points out, Jerrell was left alone for two hours, handcuffed to a wall.  Id., ¶33. Then, he was interrogated for five and a half hours.  Id. Numerous requests to call his parents were denied.  Id., ¶10.  Jackson, on the other hand, was brought in by his father.  Although he was alone with an officer in the interrogation room, he was not handcuffed and the interrogation lasted only one and a half hours.  He never did confess to a crime.  We agree with the State and the trial court that the totality of the circumstances in this case do not support that Jackson’s statement was involuntary.

The court also rejects a claim of “backhanded racial threats” in the officer’s videotaped remark to Jackson, “I’m not here to hang you from a noose and say hey your life’s over.” The officer’s “demeanor” wasn’t “intimidating or coercive,” ¶23.

State’s Closing Argument

Accusing a witness of lying, based on the evidence, is permissible comment on the evidence. Nor did the prosecutor’s closing shift the burden of proof by stating “that the defendant had no obligation to put on a defense, but once he chose to do so, the jury could hold him to a certain standard.” ¶¶26-29. Jackson’s third and final challenge to the closing – reference to a witness’s testimony about a certain street name – is also rejected: the prosecutor suggested only that the name was unique, not that Jackson was a gang member, hence wasn’t improper, ¶32.

Post-Trial Reverse Waiver

Jackson was a juvenile charged as an adult with attempted first-degree intentional homicide. Although the offense of conviction, reckless endangering while armed, is one for which the juvenile court has original jurisdiction, his rights to due process and equal protection by “postconviction reverse waiver” hearing:

¶35      We disagree.  The distinction is that, in cases that originate in juvenile court, at the time of the State’s petition for waiver, the prosecutor’s charging discretion is checked only by the requirement that there be a finding of prosecutive merit, which is equivalent to a finding of probable cause at a preliminary hearing.  See WIS. STAT. § 938.18(4)-(5); and T.R.B. v. State, 109 Wis. 2d 179, 190, 325 N.W.2d 329 (1982). For cases like this one—where a juvenile is tried in adult court based on an original adult jurisdiction charge and then convicted of a lesser included offense that would have originated in juvenile court—the trial court has significantly more information at a postconviction reverse waiver hearing.  Specifically, it has all of the trial testimony regarding the crime of conviction and the crime charged; the prosecutor has shown the basis for its initial charging decision.  So, it makes sense that the burden is on the defendant to show that, despite live testimony, despite a conviction, the juvenile should be remanded to the juvenile court for a remedy.

¶36      In other words, Jackson stands in different shoes than the juvenile who, at the beginning stages of the process, has only probable cause showing against him or her.  Jackson has now been convicted.  In the jury’s eyes, he did the crime, beyond a reasonable doubt.  There is no valid due process or equal protection argument to be made.

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