Lee v. State

• Decision Date: 26 November 1974
• Docket Number: No. S,S
• Citation: 65 Wis.2d 648,223 N.W.2d 455
• Parties: John Lewis LEE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 144.
• Court: Wisconsin Supreme Court

Page 455

223 N.W.2d 455

65 Wis.2d 648

John Lewis LEE, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 144.

Supreme Court of Wisconsin.

Nov. 26, 1974.

Laurence E. Norton, II, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., David J. Becker, Asst. Atty. Gen., Madison, for defendant in error.

ROBERT W. HANSEN, Justice.

Trial counsel for the defendant did not request any jury instruction on intoxication as a defense. Trial counsel for the defendant did not object to the jury instructions as given by the trial court, with no reference to intoxication as a defense. Postconviction counsel for the defendant urges that we find error in the trial court's not instructing the jury as to intoxication as a defense.

Four cases in this state deal with this juxtaposition of (1) failure to request, (2) failure to object, and (3) failure to give an instruction as to intoxication as a defense. The first such, the Flowers Case, held that a defendant who does not request as instruction as to intoxication 'has no standing' to object to such instruction not being given. ¹ The second case, the Mitchell Case, involving self-defense, held that neither the defendant nor his counsel may listen to jury instructions without objecting and subsequently claim error in such instructions as a matter of right. ² The third, the Pamanet Case, held that, where no instruction as to intoxication was requested, no error resulted from failure to include such instruction. ³ The fourth case, the Schenk Case, cited the earlier three holdings as authority for the rule that: '. . . The failure to request an instruction on intoxication as a defense, i.e., negativing a state of mind essential to the crime, precludes a defendant from raising the issue here as a matter of right.' ⁴

The alternatives facing trial counsel for the defendant in this case make crystal clear the reason for the rule requiring request or objection as a prerequisite to challenging the omission of an instruction as a matter of right. The rule with its requirement is not a penalty on oversight or inadvertence. The rule and requirement prohibit one game plan being used at the time of trial, and a different game plan being substituted on appeal. As a matter of trial tactic or strategy, defendant's trial counsel had good reason not to seek inclusion of an instruction as to intoxication in the court's instructions to the jury. The defense attorney's contention was that a variety of factors, all stimulated by intoxication, created a heat of passion that made manslaughter, ⁵ not first-degree murder, the appropriate jury verdict. The factors relied upon included defendant's marital difficulties, his involvement with the girlfriend, his forging of the check with and for her, her telling him that what she did that night was her business, and her walking away from him and out of the tavern. The defense contention was that these factors, stimulated by his intoxication, resulted in a killing in the heat of passion rather than a murder with intent.

A turn-of-the-century case in this court is authority for the defense to the charge of first-degree murder thus asserted and specific authority for reliance upon a 'passion stimulated by intoxication.' ⁶ To have sought and secured an instruction on intoxication as a defense would have placed defendant's trial counsel in the position of simultaneously arguing to the jury that: (1) The defendant acted in the heat of passion, stimulated by intoxication; and (2) the defendant acted without intent (or passion) because he was so stupefied by intoxication that he was unable to form an intent. The practical drawback to arguing both positions to the same jury at the same time is evident. Trial counsel would have had to argue that his client was (1) stimulated by intoxication, and (2) stupefied by intoxication. Given such alternative contentions, the jury might be inclined to find merit in neither.

Trial counsel for the defendant elected, as a matter of trial tactic or strategy, to go to the jury on the theory of a heat of passion, stimulated by intoxication, because postconviction counsel, predictably with the claim of the high degree of defense should have been asserted. of a state of mind required by the offense. He was not required to do so. . . .' ⁷ The challenge on appeal is not to the right of trial counsel to make such tactical decision. It could not be. ⁸ Rather, postconviction counsel would have us locate a duty on the part of the trial court to add an instruction on intoxication as a defense, even though defense trial counsel elected not to do so. The trial court, in the absence of request or objection, would be thus directed to add the claim of a degree of intoxication making intent impossible to the selected defense theory of intoxication stimulating a heat of passion. The result, this court has said, could 'perhaps lead them (the jurors) to conclude that any other defense has no more substance than the one added against the best judgment of trial counsel.' ⁹ Regardless of result, the decision not to request an instruction as to intoxication clearly '. . . falls within the area of trial tactics, and it is the considered judgment of trial counsel that makes the selection among available defenses. . . .' ¹⁰ There were two baskets available and defendant through trial counsel elected to put all of his eggs in, as they saw it then, the stronger-bottomed basket of the defense of a heat of passion, stimulated by intoxication. We do not find the trial court obliged to add the other basket of intoxication as a defense, into which the jury might move the eggs. To do so here would be to take from defendant and his trial counsel the right to elect and select between available theories of defense. To do so here would '. . . strip from defendant and his trial counsel alike the right to elect and select a particular defense as the most maintainable. . . .' ¹¹ Such right and responsibility to select the particular defense or defenses most maintainable is the reason for the Pamanet-Schenk rule requiring request or objection as the basis for claiming error in the omission of a particular instruction to a jury. It is also reason for adhering to such rule and applying it here to deny defendant's right to now challenge the omission of an instruction on intoxication as a defense where he did not request such instruction at time of trial.

Postconviction counsel would have this court, in the exercise of its judicial discretion, waive the requirement of a request made at time of trial as the basis for challenge as to an omitted instruction. By thus waiving the waiver, we would proceed to review the record here as if an instruction as to intoxication as a defense had been requested by the defendant and had been denied by the trial court. This was done in Schenk, ¹² with this court there concluding that '. . . the trial court would have been justified in refusing a request for the instruction (as to intoxication), if such had been made, let alone giving the instruction sua sponte.' ¹³ There this court went beyond the testimony as to quantities of intoxicants consumed, ¹⁴ to a review of what transpired both before and after the fatal stabbing. ¹⁵ As to the circumstances surrounding the fatal shooting here, the conversation of defendant and the victim immediately prior to the killing, the five shots fired, and the defendant's thereafter partially disassembling the revolver used, raised doubts as to the degree of intoxication being sufficient to render him "utterly incapable of forming the intent requisite to the commission of the crime charged." ¹⁶ However, we make no finding on the claim that this record raises or would support a finding of lack of intent due to intoxication. Applying the rule of a required objection at the time of trial makes unnecessary and inappropriate any review of this record where the requirements of the rule were not met.

In the case before us, we apply the rule of no standing to challenge on appeal the omission of an instruction that was not requested at the time of trial. We do so to make clear that it is the right of a defendant and trial counsel to select the particular defense, from among the alternatives available upon which they elect to rely. ¹⁷ To permit postconviction counsel to argue for a different game plan, after the contest is over, would be Monday-morning quarter-backing, ¹⁸ whether directed at the trial counsel as quarterback, or, as here, at the trial court as referee. Where trial counsel elected to go to the jury on the defense of a heat of passion stimulated by intoxication, the trial court was not required to add the defense of...