State v. Myers
| Citation | 158 Wis.2d 356,461 N.W.2d 777 |
| Decision Date | 09 November 1990 |
| Docket Number | No. 89-0281-CR,89-0281-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Eugene J.R. MYERS, Defendant-Appellant. |
| Court | United States State Supreme Court of Wisconsin |
Marguerite M. Moeller, Asst. Atty. Gen., with whom on the briefs, was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent-petitioner.
Robert P. VanDeHey (argued) and Hoskins, Brown, Kalnins, McNamara & VanDeHey, Lancaster, for defendant-appellant.
This is a review of an unpublished decision of the court of appeals filed October 26, 1989, 153 Wis.2d 397, 451 N.W.2d 804, reversing a judgment of conviction of aggravated battery, that is, battery causing great bodily harm, sec. 940.19(2), Stats.1985-86, 1 entered by the Circuit Court for Crawford County, John R. Wagner, Circuit Judge.
In reversing the conviction the court of appeals held that the evidence was insufficient for the jury to find "great bodily harm" within the meaning of sec. 939.22(14), Stats.1985-86. That issue is not before us on review and we do not consider it. Section (Rule) 809.62, Stats.1985-86. 2
The state seeks review of the court of appeals' refusal to remand the case and direct the circuit court to enter a judgment of conviction of the lesser included offense of attempted aggravated battery.
The issue on review is whether an appellate court may, after reversing a conviction because of insufficient evidence, order the circuit court to enter a judgment of conviction of a lesser included offense when the jury was not instructed on the lesser included offense. The question is one of first impression in this state.
We hold that the court of appeals may not direct the circuit court to enter a judgment of conviction of a lesser included offense when a jury verdict of guilty of the greater offense is reversed for insufficient evidence and the jury was not instructed on the lesser included offense. Accordingly we affirm the decision of the court of appeals.
The facts of the case for purposes of this review are as follows. On April 1, 1985, Lennie Davidson and Michael Cockroft were in a trailer home when two masked intruders entered, one carrying a knife and the other an aluminum bat. The defendant had allegedly hired the two men to injure Lennie Davidson, but one of the intruders, confused about which man was Davidson, beat Cockroft on the head with the bat two or three times. Cockroft's injuries required nine stitches and left a two-inch scar. Tests taken at two hospitals shortly after the beating show that Cockroft suffered no other physical or neurological damage.
Cockroft experienced headaches shortly after the attack. His medical records state that in May 1985 the physician found "no neurological deficit or impairment" and surmised that the cause of the headaches was "post-traumatic syndrome." Cockroft received no medical treatment for his headaches between September 1985 and March 1988. Tests taken in March 1988 disclosed no sign of physical abnormality, and the diagnosis was again "post-traumatic syndrome." The March 1988 medical records described Cockroft's headaches as an "element of mood disorder."
On March 18, 1988, the defendant was charged with aggravated battery, party to a crime, contrary to secs. 940.19(2) and 939.05, Stats.1985-86, for hiring the men who attacked Cockroft. The defendant moved to dismiss at the close of the state's case, arguing insufficient evidence of great bodily harm. The circuit court denied the motion.
The jury was instructed on the crime of aggravated battery only. 3 Neither the state nor the defendant challenged the instructions at trial or on appeal. Neither the state nor the defendant requested a jury instruction on a lesser included offense. The jury convicted the defendant of aggravated battery, party to a crime.
The defendant appealed and the court of appeals reversed the defendant's conviction because of insufficient evidence on the issue of great bodily harm. 4
The court of appeals also refused the state's request to direct the circuit court to enter a judgment of conviction of attempted aggravated battery. The court of appeals viewed the state's request for entry of a judgment of attempted aggravated battery as the state's attempt to remedy its failure to request an instruction for that offense at trial. The court of appeals concluded that when the state failed to request a lesser included offense instruction at trial it waived any rights it may claim based on the instructions. Section 805.13(3), Stats.1985-86. 5 The court of appeals further concluded that because the state had waived its right to have the court of appeals consider the lesser included offense, the court of appeals' modification of the judgment to reflect the lesser included offense would violate State v. Schumacher, 144 Wis.2d 388, 424 N.W.2d 672 (1988), which interprets sec. 752.35, Stats.1985-86, governing the court of appeals' discretionary reversal power.
Because the issue in this case is modification of a judgment, not reversal, and this case does not involve sec. 752.35, the statute involved in Schumacher, the relevancy of Schumacher is questionable. In any event, we recently discussed the Schumacher case in Vollmer v. Luety, 156 Wis.2d 1, 456 N.W.2d 797 (1990), and concluded that a party's waiver of objections to jury instructions does not necessarily divest the court of appeals of the power to review and reverse under sec. 752.35.
The state urges that the court of appeals has the power to modify the judgment in this case under sec. 808.09, Stats.1985-86, which authorizes an appellate court to modify a judgment as to any or all parties. Section 808.09 provides as follows:
808.09 Reversal, affirmance or modification of judgment. Upon an appeal from a judgment or order an appellate court may reverse, affirm or modify the judgment or order as to any or all of the parties; may order a new trial; and, if the appeal is from a part of a judgment or order, may reverse, affirm or modify as to the part appealed from. In all cases an appellate court shall remit its judgment or decision to the court below and thereupon the court below shall proceed in accordance with the judgment or decision.
The state urges us to interpret sec. 808.09 as authorizing the court of appeals to modify the conviction to reflect a lesser included offense under the circumstances of this case. We reject the state's position. We are not persuaded that an appellate court can repair a guilty verdict reversed for insufficient evidence by simply modifying the conviction to reflect a lesser included offense when instructions on the lesser included offense were not submitted to the jury. First, we conclude that a jury's verdict reversed for insufficient evidence is too suspect a determination of guilt for an appellate court to use as the basis for ordering conviction of a lesser included offense for which no instruction had been submitted to the jury. Second, we conclude that directing the entry of a judgment of conviction on a lesser included offense (for which no instructions were given) after reversal of the conviction for insufficient evidence does not comport with the underlying principles governing instructions to juries on lesser included offenses and the role of the circuit court vis-a-vis the parties and counsel in instructing juries. We conclude, as did the court of appeals, that although the state is requesting modification of the judgment, in effect the state is changing its trial strategy and is objecting on appeal to jury instructions to which it entered no objection at trial.
When a conviction is reversed because of insufficient evidence and no instruction on lesser included offenses had been given, a court should not use the guilty verdict as the basis for a conviction on a lesser included offense because of the possible effects on the jury of the jury not receiving instructions on lesser included offenses.
Instructing the jury on lesser included offenses developed at common law "as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged." Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 2387, 65 L.Ed.2d 392 (1980). The common law thus enabled the state to exercise its discretion to charge the greater offense but to seek conviction of the lesser included offense when at trial its proof of the greater offense turned out to be nonexistent or weak. The common law rule is codified in Wisconsin in sec. 939.66, Stats.1985-86, which provides that "upon prosecution for a crime, an actor may be convicted of either the crime charged or an included crime, but not both."
Lesser included offense instructions, though originally a tool of the prosecutor, may also serve an important function in protecting the rights of the accused and the integrity of the justice system. Beck v. Alabama, 447 U.S. 625, 633-34, 100 S.Ct. 2382, 2387-88, 65 L.Ed.2d 392 (1980). They may allow the jury to conform the verdict more accurately to the evidence than when the jury is presented with a single option for conviction and thus may help ensure the defendant of the full protection of the reasonable doubt standard.
In Wisconsin the decision to request jury instructions on lesser included offenses is left largely to the parties, because the decision involves trial strategy, including the presentation and evaluation of evidence. The parties are therefore best equipped to decide when a request for lesser included offense instructions is appropriate. The state and the accused must assess at trial the risks and benefits of requesting jury instructions on lesser included offenses. Neuenfeldt v. State, 29 Wis.2d 20, 32, 138 N.W.2d 252 (1965), cert. den. 384 U.S. 1025, 86 S.Ct. 1973, 16 L.Ed.2d 1029 (1966); State v. Ambuehl, 145 Wis.2d 343, 425 N.W.2d 649 (Ct.App.1988).
A circuit court need not instruct on a lesser included offense unless one of the...
To continue reading
Request your trial
-
Prater v. State
...Ex Parte Roberts, 662 S2d 229, 232 (Ala. 1995); State v. Holley, 604 A.2d 772, 775-776 (R.I.1992); State v. Myers, 158 Wis.2d 356, 461 N.W.2d 777 (1990). In Division 4, the majority erroneously indicates that any retrial would run afoul of the state and federal constitutional double jeopard......
-
State v. Dunn
...Thus, he has indicated a willingness to consider manslaughter as an alternative to second degree murder. Cf. State v. Myers, 158 Wis.2d 356, 461 N.W.2d 777, 783 (1990). And we see no merit to the issues raised on Dunn's behalf by the Furthermore, the State essentially has decided to forego ......
-
State v. Sanseverino
...its trial position and essentially concede the lesser included offense should have been submitted to the jury"); State v. Myers, 158 Wis.2d 356, 368, 461 N.W.2d 777 (1990) (allowing appellate court to modify judgment in absence of jury instruction on lesser included offense would allow stat......
-
State v. Villa
...not follow cases like Allison and Shields, but rather we should follow cases such as Collier, 999 S.W.2d at 782 and State v. Myers, 158 Wis.2d 356, 461 N.W.2d 777, 782 (1990) (stating that when a defendant is convicted of an uncharged crime on appeal "the state is in effect asking the appel......