State v. Cox

• Decision Date: 14 February 2007
• Docket Number: No. 2006AP419-CR.,2006AP419-CR.
• Citation: 730 N.W.2d 452,2007 WI App 38
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Nathaniel L. COX, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL>
• Court: Wisconsin Court of Appeals

730 N.W.2d 452

2007 WI App 38

STATE of Wisconsin, Plaintiff-Respondent, v. Nathaniel L. COX, Defendant-Appellant.^†

No. 2006AP419-CR.

Court of Appeals of Wisconsin.

Opinion Filed February 14, 2007.

Submitted on Briefs November 30, 2007.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Joseph E. Redding of Glojek Limited of West Allis.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy

A. Lautenschlager, Attorney General, and Marguerite M. Moeller, Assistant Attorney General.

Before SNYDER, P.J., BROWN and NETTESHEIM, JJ.

¶ 1 BROWN, J

Nathaniel L. Cox appeals from his convictions for attempted first-degree intentional homicide and endangering safety by use of a dangerous weapon. Cox complains of two irregularities in his trial. First, the trial court instructed the jury to consider a third charge, first-degree reckless endangerment, without instructing the jury that the charge is a lesser included offense of attempted homicide. After the jury returned guilty verdicts on both the greater and lesser charges, the court corrected the error by vacating Cox's conviction on the lesser charge. Second, during its deliberations, the jury sent a note to the judge asking for a particular photograph. No such photograph was in evidence. There is no record of what action the judge took in response, though the judge stated later that he would not have answered the question in the defendant's absence. Though we agree with Cox that both of these actions constituted easily avoidable mistakes by the trial court, mistakes alone do not merit reversal. The circuit court properly remedied its first error, and its second was harmless beyond a reasonable doubt, so we affirm.

¶ 2 The following facts are taken from the complaint and trial testimony. Cox and his girlfriend arrived at the home of an acquaintance and parked the girl-friend's car in the driveway. While Cox and the girlfriend were getting out of the car, the girlfriend's ex-boyfriend arrived in his car (a red Pontiac), pulled into the driveway behind the girlfriend's car, and asked to speak to the girlfriend. The girlfriend declined and she and Cox entered the residence. Once inside, they heard a loud crash, and Cox went outside, where he discovered that the ex-boyfriend had rammed his car into the rear end of the girlfriend's. At some point, Cox drew a gun and fired several shots at the car, hitting the front tire, the driver's side door, the hood, and the front quarter panel. The ex-boyfriend, unhit, was able to drive the vehicle away.

¶ 3 At trial, Cox claimed self-defense, testifying that after the crash, he was examining the damage to the back of the girlfriend's car when he heard the ex-boyfriend's car shift gears and saw it jerk forward. Cox testified that he feared the ex-boyfriend would run him over, and so he attempted to stop the car by firing at the tires.

¶ 4 At the close of evidence, the court submitted three charges to the jury: attempted first-degree intentional homicide (WIS. STAT. §§ 940.01 and 939.32 (2003-04)¹ ); first-degree recklessly endangering safety (WIS. STAT. § 941.30(1)²); and endangering safety by use of a dangerous weapon (WIS. STAT. § 941.20(2)(a)). The court gave no instruction as to lesser included offenses, and Cox's counsel made no objection. At some point during deliberations, one of the jurors wrote a note reading, "Is there a picture of the red Pontiac's front damage?" There is no record of any response by the judge. The jury convicted Cox of all three offenses. The court later handed down identical concurrent sentences on the attempted murder and reckless endangerment counts and withheld sentence on the third count.

¶ 5 Cox moved for postconviction relief, claiming that the court erred in convicting him of both a greater and a lesser included offense. The circuit court agreed and vacated the reckless endangerment charge, though Cox argued that the greater charge should be vacated.

¶ 6 On appeal, Cox attacks his multiple convictions under two theories: he alleges that his prosecution for both the greater and lesser offense violated his Constitutional double jeopardy rights and also that his counsel was ineffective for failing to object to the multiple charges. We assume that the ineffective assistance theory is intended to preserve Cox's claim despite the fact that he failed to object to the jury instructions. In general, we will not address a claim of ineffective assistance of counsel where trial counsel has not testified at a postconviction hearing. See State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905 (Ct.App.1979) ("We hold that it is a prerequisite to a claim of ineffective representation on appeal to preserve the testimony of trial counsel."); State v. Curtis, 218 Wis.2d 550, 554-55, 582 N.W.2d 409 (Ct.App.1998) (Machner hearing is "essential in every case where a claim of ineffective assistance of counsel is raised"). We will instead address Cox's double jeopardy claim directly; we may do so because the rule of waiver is one of judicial administration and not of appellate jurisdiction. See State v. Hughes, 2001 WI App 239, ¶ 7, 248 Wis.2d 133, 635 N.W.2d 661.

¶ 7 The double jeopardy clauses in the state and federal Constitutions contain three protections: (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense. State v. Henning, 2004 WI 89, ¶ 16, 273 Wis.2d 352, 681 N.W.2d 871. This case falls within the third category, as Cox was initially convicted and punished for the same act under two different statutes. This is a violation of the double jeopardy clauses unless the legislature intended such multiple punishments. State v. Davison, 2003 WI 89, ¶¶ 27-28, 263 Wis.2d 145, 666 N.W.2d 1. Where one offense is a lesser included offense of the other under WIS. STAT. § 939.66, the legislature has declared that one may be convicted of one or the other, but not both. See id.

¶ 8 Though our courts have never addressed the issue in a double jeopardy context, it is settled law that first-degree reckless endangerment under WIS. STAT. § 941.30(1) is a lesser included offense of attempted first-degree intentional homicide under WIS. STAT. § 940.01(1). State v. Weeks, 165 Wis.2d 200, 205-06, 477 N.W.2d 642 (Ct.App.1991); see also Hawthorne v. State, 99 Wis.2d 673, 682, 299 N.W.2d 866 (1981) (holding the former analogous crime of endangering safety by conduct regardless of life a lesser included offense of the former analogous crime of attempted first-degree murder). That is, first-degree reckless endangerment does not require proof of any fact in addition to those required for attempted first-degree intentional homicide, see WIS. STAT. § 939.66(1), and a defendant cannot be punished under both statutes for the same act. § 939.66; Hawthorne, 99 Wis.2d at 680-82, 299 N.W.2d 866.³ We thus agree with Cox and the circuit court that it was error to convict and sentence Cox under both statutes.

¶ 9 However, as we have said, error does not dictate reversal. Reversal is only appropriate if Cox was harmed by the errors. Harm was obviously present when Cox stood convicted of one more offense than the law allows, but the circuit court has since vacated the reckless endangerment conviction. The question is thus whether the circuit court's remedy eliminated any harm that the initial error caused Cox. We have addressed this question in Hughes, 248 Wis.2d 133, 635 N.W.2d 661, a case with facts quite like this one.

¶ 10 In Hughes, the jury found the defendant guilty both of possession of cocaine with intent to deliver and simple possession, a lesser included offense, arising from the same act. Id., ¶ 2, 635 N.W.2d 661. Unlike the jury in this case, the jury in Hughes was properly instructed, but nevertheless signed both guilty verdict forms. Id., ¶¶ 2-3, 635 N.W.2d 661. On recognizing the jury's error, the circuit court entered judgment only on the possession-with-intent verdict, disregarding the jury's finding of guilt on the simple possession charge. Id., ¶ 1, 635 N.W.2d 661. Hughes claimed on appeal that this was in error and that he was entitled to a new trial because the jury's verdict was "hopelessly ambiguous" and the trial court had deprived him of his right to a unanimous jury. Id., ¶ 6, 635 N.W.2d 661.

¶ 11 We rejected Hughes' claim that the verdict was ambiguous. Id., ¶ 9, 635 N.W.2d 661. We noted that it is impossible to possess cocaine with the intent to deliver without also simply possessing cocaine; indeed, that is the crux of a lesser included offense under WIS. STAT. § 939.66(1). Hughes, 248 Wis.2d 133, ¶ 9, 635 N.W.2d 661. Thus, to a jury unschooled in the doctrine of the lesser included offense, it was completely consistent to return guilty verdicts on both charges. See id., ¶ 12. Finding no infirmity in the jury's verdict on the possession-with-intent charge, we refused to grant Hughes a new trial. Id., ¶ 1, 635 N.W.2d 661.

¶ 12 Hughes is thus obviously a close analogue for this case. Cox seeks to distinguish Hughes by claiming that in this case the two verdicts are inconsistent, requiring that he acted with two different states of mind. Attempted homicide requires intent to kill, see WIS. JI—CRIMINAL 1070, while reckless endangerment requires recklessness, see WIS JI—CRIMINAL 1345. Cox concedes that the definition of "intent" does not necessarily require that the defendant has a "purpose" to kill; "intent" can also mean that the defendant is aware that his or her conduct is practically certain to cause the death of the victim. WIS. STAT. § 939.23(3); Weeks, 165 Wis.2d at 207-08, 477 N.W.2d 642. Still, Cox argues, "recklessness" requires that an actor create and be aware of an unreasonable and substantial risk of death or great bodily harm to another, WIS. STAT. § 939.24(1), and "unreasonable and substantial...