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Waiver of Issue: Unobjected-to jury instruction – Discretionary Authority to Review

State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller

Issue/Holding: ¶8 n. 2:

We observe that Draughon did not object to the jury instruction when provided the opportunity by the circuit court. Draughon nonetheless raises his objection here under color of his ineffective assistance of counsel claim as well as his claim that the real controversy was not fully tried. Our review of a waived objection to a jury instruction is limited. See Steinberg v. Jensen, 204 Wis. 2d 115, 122 n.4, 553 N.W.2d 820 (Ct. App. 1996).  It is within our statutory discretion to review an allegedly deficient jury instruction when we are exercising our power to reverse the judgment under Wis. Stat. § 752.35.  Steinberg, 204 Wis. 2d at 122 n.4. Section 752.35 states in relevant part:

In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment … regardless of whether the proper motion or objection appears in the record.

Also, a waived objection to a jury instruction can be “raised by way of an ineffective assistance of counsel claim.” See State v. Hayes, 2004 WI 80, ¶114, 273 Wis. 2d 1, 681 N.W.2d 203 (Sykes, J., concurring). We therefore reach the merits of Draughon’s arguments.

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