Cole v. Young

• Citation: 817 F.2d 412
• Decision Date: 08 June 1987
• Docket Number: No. 86-1308,86-1308
• Parties: Stevie COLE, Petitioner-Appellant, v. Warren YOUNG, Superintendent and the Attorney General of the State of Wisconsin, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 412

817 F.2d 412

Stevie COLE, Petitioner-Appellant, v. Warren YOUNG, Superintendent and the Attorney General of the State of Wisconsin, Respondents-Appellees.

No. 86-1308.

United States Court of Appeals Seventh Circuit.

Argued Oct. 28, 1986.

Decided April 28, 1987.

As Amended June 8, 1987.

Margaret A. Maroney, Wisconsin State Public Defender, Madison, Wis., for petitioner-appellant.

William L. Gansner, Wisconsin Dept. of Justice, Madison, Wis., for respondents-appellees.

Before FLAUM and EASTERBROOK, Circuit Judges, and WILL, Senior District Judge. ^*

WILL, Senior District Judge.

This appeal from the district court's denial of appellant Stevie Cole's petition for a writ of habeas corpus involves two relatively straight-forward questions: (1) whether at the time of Cole's offense Wisconsin law required proof of "great bodily harm" to support a mayhem conviction and, if it did, (2) whether federal law protects a criminal defendant from conviction by a jury that has received no instruction on an essential element of the crime charged. Based on the decisions of the Wisconsin appellate courts, we find that at the time Cole committed the acts in question great bodily harm was an essential element of Wisconsin's mayhem offense. We therefore address the constitutional question and conclude that the trial court's complete failure to instruct the jury on an essential element of mayhem was a violation of Cole's right to due process. Because the fourteenth amendment protects an accused from conviction except upon "proof beyond a reasonable doubt of every fact necessary to constitute the crime charged," In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), we reverse the district court and grant Cole's petition.

I. Background

Following a jury trial in the Milwaukee County Circuit Court, Cole was found guilty of armed robbery, operating a vehicle without the owner's consent, and mayhem. He was sentenced to twelve years for armed robbery, twelve years consecutive for mayhem, plus two years concurrent for operating a vehicle without the owner's consent. Only the mayhem conviction is at issue in this appeal.

The charges against Cole grew out of an incident occurring in the early morning hours on December 20, 1980. Inez Johnson, a cab driver, was called to a Milwaukee address. When she arrived, four men entered her cab, three in the back seat and one, Stevie Cole, in the front. As Johnson began to drive away, Cole placed a knife to her neck, ordered her to pull over, and demanded money. Johnson handed over a purse containing approximately sixty dollars. Moments later, she reached up to turn on the overhead light. As she did so, Cole cut her three times on the left hand and arm with the knife. Johnson was then forced out of the cab and the four men drove away.

Three days later, Cole was arrested and charged as an habitual criminal with the three crimes mentioned above--armed robbery, operating a vehicle without the owner's consent, and mayhem. The charges were tried to a jury in late February, 1981. At trial, Johnson testified that she was taken to a hospital emergency room shortly after the incident. There she was given a shot to prevent infection and stitches to close her wounds. She received three stitches in one cut and five in another; the third cut, the doctor told her, would heal by itself without stitches. As a result of the cutting, Johnson has two scars, one in a semicircle one to one and one-half inches long on her left wrist, and another about two and one-half inches long on the palm of her left hand. Since the incident, she occasionally feels pain in her hand when she is driving.

At the close of the evidence, the trial court and counsel held a jury instructions conference. The trial court proposed to give the then-current Wisconsin pattern instruction on the elements of the crime of mayhem. Though the instruction, No. 1230 of the Wisconsin pattern criminal jury instructions, has since been revised to include great bodily harm as an element of mayhem, at the time of trial it contained only two elements: (1) a cutting or mutilation (2) performed with an intent to disfigure. Neither side objected to the giving of the pattern instruction and the trial court used it almost verbatim. The jury found Cole guilty of each of the three crimes charged.

In September, 1981 Cole--through his new counsel, an assistant state public defender--filed a post-conviction motion raising for the first time his objection to the jury instructions on mayhem. Cole argued that under Kirby v. State, 86 Wis.2d 292, 272 N.W.2d 113 (Ct.App.1978), a conviction for mayhem requires proof that the victim suffered great bodily harm. Since the instructions did not inform the jury of this requirement, Cole concluded, his rights to due process and to a jury trial were violated. The trial court, finding that Kirby was not controlling and that the pattern instruction properly informed the jury of the elements of mayhem, denied Cole's motion for a new trial.

Cole appealed to the Wisconsin Court of Appeals. On appeal, Cole again maintained that the jury instructions were erroneous under Kirby, resulting in a violation of his constitutional rights. The state, in its briefs, argued that Kirby was wrongly decided; that the language in Kirby stating that great bodily harm was an element of mayhem was dicta and should not be followed; and that the fact that the Wisconsin Criminal Jury Instructions Committee had not amended its instruction No. 1230 in the three years since Kirby was decided was persuasive evidence that the instruction correctly stated the law.

In an unpublished opinion, the Wisconsin Court of Appeals affirmed Cole's conviction. Curiously, the opinion--which was authored by the same judge who wrote the Kirby opinion--contained no discussion of Kirby or the issue it presented, despite the thorough treatment given these questions in the parties' briefs. The opinion merely hinted at the problem in the sentences that follow:

The defendant argues that the jury was not properly instructed on the essential elements of mayhem. The trial court gave the pattern jury instruction, ⁷ which includes the essential elements of the crime. The defendant did not object to the instruction as given. ⁸

State v. Cole, No. 81-1938-CR, slip op. at 3-4 (Wis.Ct.App. July 20, 1982) [108 Wis.2d 779, 324 N.W.2d 829 (table) ] (unpublished opinion). Following the court of appeals decision, Cole filed a petition for discretionary review in the Wisconsin Supreme Court. On September 20, 1982, the Wisconsin Supreme Court denied review.

One month later, in October of 1982, the Wisconsin Criminal Jury Instructions Committee revised its mayhem instruction in accordance with the Kirby decision. ¹ In January 1983, Cole filed his petition for writ of habeas corpus in the district court. Not surprisingly, in their briefs to the district court the parties reversed their earlier positions on the persuasiveness of the Instructions Committee's determinations, Cole arguing that the revision of No. 1230 reflected the change in the law effected by Kirby and the state discounting the revision's significance. The parties also briefed the constitutional questions involving the mayhem instruction. Significantly, the state did not argue that habeas review of Cole's claims was barred by his failure to object at trial.

The district court, however, found that Cole's failure to make a contemporaneous objection was dispositive. Noting that the Wisconsin Court of Appeals had mentioned Cole's failure to object while citing cases and statutes on the state's contemporaneous objection rule, the district court determined that the court of appeals had "implicitly" found waiver. Applying the "cause and prejudice" standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the court found that Cole could not establish cause since Kirby had been on the books for two years prior to Cole's trial. Accordingly, the district court concluded that Cole was barred from asserting his constitutional claim in federal habeas corpus proceedings.

II. Waiver of the State's Contemporaneous Objection Rule

Before reaching the merits, we must first consider whether habeas review is barred by Cole's failure to raise a timely objection to the mayhem jury instruction. Ordinarily, this determination would depend on whether the Wisconsin Court of Appeals had relied on the state's contemporaneous objection rule as an independent though not necessarily a sole ground of decision, see Goins v. Lane, 787 F.2d 248, 251 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 165, 93 L.Ed.2d 103 (1986), and whether Cole had established "cause and prejudice" for his procedural default. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Indeed, the district court analyzed the problem in just this way.

This is not the ordinary case, however. Here, as in Barrera v. Young, 794 F.2d 1264 (7th Cir.1986), the Attorney General has waived any reliance on Wisconsin's contemporaneous objection rule. During proceedings in the district court, the Attorney General simply ignored the issue; in this court, the Attorney General has gone further, explaining in his brief that "the state believes it appropriate for this court to consider the merits of Cole's challenge to the instruction." As we explained in Barrera, there is no reason why a state should not be able to waive its own forfeiture rule as readily through its executive branch as through its courts. The state is free to allocate responsibilities between the branches of its government in the best way it sees fit. Any other rule would subvert the principle of federalism Wainwright is designed to protect. Barrera, 794 F.2d at 1269. Of course, this approach also implies that the state may retract the Attorney General's authority to waive reliance on the state...