State v. Ellington, 2004AP2325-CR.

Citation2005 WI App 243,707 N.W.2d 907
Decision Date25 October 2005
Docket NumberNo. 2004AP2325-CR.,2004AP2325-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Mahlick D. ELLINGTON, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL>
CourtUnited States State Supreme Court of Wisconsin

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and James M. Freimuth, assistant attorney general.

Before WEDEMEYER, P.J., FINE and CURLEY, JJ.

¶ 1 FINE, J

Mahlik D. Ellington appeals from an original and an amended judgment entered on a jury verdict convicting him of causing great bodily harm to Marilyn B. with intent to cause great bodily harm to her, see WIS. STAT. § 940.19(5) (1999-2000), and from an order denying his motion for postconviction relief.1 He contends that: (1) the trial court erred in instructing the jury on "great bodily harm"; (2) he was denied his right to confrontation; and (3) his trial lawyer gave him constitutionally deficient representation. We affirm, but remand to the trial court with directions to issue a second amended judgment of conviction that spells correctly Ellington's first name: "Mahlik," not "Mahlick," as it is spelled in both the original and the amended judgment.

I.

¶ 2 Ellington admits to beating Marilyn B. His defense was that her injuries did not constitute "great bodily harm." "`Great bodily' harm means bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury." WIS. STAT. § 939.22(14).

¶ 3 Marilyn B. testified that she had dated Ellington for one month, and that when she told him that she wanted to end their relationship, he choked her, hit her, and kicked her. The following are excerpts from her direct testimony describing what she claimed Ellington did to her:

· "He grabbed me around my neck and he choked me. He cut my wind off."

· He pushed her out the front door, and "still had [her] around [her] neck."

· Outside of the front door was a porch with a railing. "I flipped over that porch, or he pushed me over that porch, or something, and I end up on the ground, and he started beating me in my face and stomping on my face with his foot and my stomach and back and stuff. He was kicking me on my side."

"I faded in and out."

• When asked how many times Ellington "stomped" on her face, Marilyn B. replied: "It was just once on my face. The rest was on my body."

• Ellington was "wearing tennis shoes" when he kicked her.

Later, on cross-examination, Marilyn B. further explained:

"He had me by my windpipe. He knocked my air off of me and pushed me out the door."

"He grabbed me around my neck. I thought he was grabbing me to say goodbye, see you later, with his arm; but instead, he put his hand around my neck, the prints was [sic] there, he grabbed me by my throat, put his thumb in my throat, and knocked my wind pipe off. As I was telling him let me go, saying let me go. He let me go out the front door, with my back going out. And from there, I was over the rail of my fence, of my porch, fence, and I was saying, would you please let me go. He wouldn't let go.... I flipped over the porch, he went over the porch with me, and he just started hitting me in my face. And from there he started kicking me, and then he started stepping in my face."

• When Ellington's lawyer asked if Marilyn B. had "any broken bones," Marilyn B. replied: "My gums are still messed up."

Medical records received into evidence without objection, see WIS. STAT. RULE 908.03(6m) (health-care-provider-records exception to the rule against hearsay), and excerpts from those records were read to the jury by Erik Villarreal, a Milwaukee police detective. They indicated that Marilyn B. had "a blowout fracture," a "depressed frontal skull fracture," and a "right mandible fracture."2

¶ 4 Villarreal was the only person other than Marilyn B. to testify at the trial. He told the jury that he went to the hospital to talk to Marilyn B. shortly after she arrived there. He described what he saw:

[H]er eyes were all swollen shut, she was—seemed pretty brutally beaten. Her front lip was splitted [sic] wide open, and there was [sic] distinct tread patterns on her face from footprints, that we found pretty unique, so we called in our photographer later to get pictures of that before—if they were going to go away and the swelling reduced so they disappeared, so we got pictures right away. I believe there was bleeding in the ear as well, visible bleeding from the ear, nose, mouth, eyes. She was really beaten pretty bad.

Villarreal also told the jury that when they arrested Ellington, he was wearing shoes whose treads were "consistent" with the tread marks on Marilyn B.'s face. The jury saw photographs that confirmed the severity of Marilyn B.'s injuries.

II.

¶ 5 As noted, Ellington contends that the trial court erred in instructing the jury on "great bodily harm." He also argues that the trial court deprived him of his constitutional right to confrontation by permitting the police detective to read from the medical reports, and, also, to tell the jury that in the past the detective found certified medical records to be reliable. Recognizing that his trial lawyer did not object to receipt of the medical records into evidence, Ellington also argues that his lawyer gave him constitutionally deficient representation. We analyze these contentions in turn.

A. Great Bodily Harm.

¶ 6 As we have seen in footnote one, the statute applicable to the charge that Ellington inflicted "great bodily harm" on Marilyn B. read: "Whoever causes great bodily harm to another by an act done with intent to cause either substantial bodily harm or great bodily harm to that person or another is guilty of a Class C felony." WIS. STAT. § 940.19(5) (1999-2000). As we have also seen, "`[g]reat bodily harm'" meant (and means today) "bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury." WIS. STAT. § 939.22(14). The trial court instructed the jury that it could find Ellington guilty of "great bodily harm" if it found that the State had proven beyond a reasonable doubt that he inflicted "serious bodily injury" on her: "Great bodily harm means serious bodily injury. You, the jury, are to alone to determine whether the bodily injury in your judgment is serious." Ellington argues that this was error because without telling the jury the context of the phrase "other serious bodily injury," the jury was free, he contends, to find him guilty for acts that did not meet the great-bodily-harm threshold; in essence, he seeks to have the phrase "other serious bodily injury" limited by the preceding list, using a tool of statutory construction known as ejusdem generis. See State v. Peters, 2003 WI 88, ¶ 10, 263 Wis.2d 475, 480-481, 665 N.W.2d 171, 174. He thus claims that the instruction deprived him of due process. We disagree.

¶ 7 A trial court has broad discretion in instructing a jury but must exercise that discretion in order to fully and fairly inform the jury of the applicable rules of law. Whether a jury instruction is appropriate, under the given facts of a case, is a legal issue subject to independent review. On review, the challenged words of jury instructions are not evaluated in isolation. Rather, jury instructions "must be viewed in the context of the overall charge." Relief is not warranted unless the court is "persuaded that the instructions, when viewed as a whole, misstated the law or misdirected the jury." Whether a jury instruction violated a defendant's right to due process is a legal issue subject to de novo review.

State v. Ziebart, 2003 WI App 258, ¶ 16, 268 Wis.2d 468, 480-481, 673 N.W.2d 369, 375 (citations and quoted source omitted). The flaw in Ellington's argument is his contention that the legislature intended the phrase "other serious bodily injury" to assume the coloration of the list of specific injuries that precede it. But that was not the legislature's intent. La Barge v. State, 74 Wis.2d 327, 333, 246 N.W.2d 794, 797 (1976). Thus, the doctrine of ejusdem generis is not applicable and does not narrow the otherwise broad scope of "other serious bodily injury." Id., 74 Wis.2d at 332-333, 246 N.W.2d at 796-797. Indeed, La Barge concluded unambiguously: "Our study of the legislative history of the particular statute leads, however, to the conclusion that the phrase, `or other serious bodily injury,' was designed as an intentional broadening of the scope of the statute to include bodily injuries which were serious, although not of the same type or category as those recited in the statute." Id., 74 Wis.2d at 332, 246 N.W.2d at 796 (emphasis added).

¶ 8 La Barge's holding that ejusdem generis does not apply to what is "great bodily harm" under WIS. STAT. § 940.19(5) was reaffirmed by Cheatham v. State, 85 Wis.2d 112, 119-124, 270 N.W.2d 194, 198-200 (1978), upon which Ellington relies for the opposite proposition. Although Cheatham held that it would not be improper to read to a jury the full statutory definition of "great bodily harm" in situations where the trial court determined in the exercise of its discretion that it might be helpful to the jury, it reaffirmed that giving meaning to the phrase "serious bodily injury" was well within a jury's ability. Id., 85 Wis.2d at 123-124, 270 N.W.2d at 200. Indeed, Cheatham answered the following question in the affirmative: "[W]hether the phrase `or other serious bodily injury,' without being restricted by the rule of ejusdem generis to the...

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