State v. English-Lancaster, 01-1455-CR.

• Decision Date: 20 February 2002
• Docket Number: No. 01-1455-CR.,01-1455-CR.
• Citation: 642 N.W.2d 627,252 Wis.2d 388,2002 WI App 74
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jonathan J. ENGLISH-LANCASTER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

252 Wis.2d 388

2002 WI App 74

642 N.W.2d 627

STATE of Wisconsin, Plaintiff-Respondent, v. Jonathan J. ENGLISH-LANCASTER, Defendant-Appellant.¹

No. 01-1455-CR.

Court of Appeals of Wisconsin.

Submitted on briefs January 25, 2002.

Decided February 20, 2002.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven D. Phillips, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sandra L. Nowack, assistant attorney general, and James E. Doyle, attorney general.

Before Nettesheim, P.J., Brown and Snyder, JJ.

¶ 1. SNYDER, J.

Jonathan J. English-Lancaster appeals from a judgment of conviction for second-degree sexual assault and an order denying his motion for postconviction relief. English-Lancaster argues that the trial court should have declared a mistrial when a witness testified as to other acts evidence in violation of a pretrial court order to the contrary based upon a stipulation entered into by both English-Lancaster and the State. English-Lancaster argues that the curative jury instruction provided by the court was insufficient to cure the error. The State contends that English-Lancaster has waived this issue because he did not enter a contemporaneous objection to the evidence in the trial court. Alternatively, the State argues that English-Lancaster is judicially estopped from raising this argument on appeal. We reject the State's contemporaneous objection argument but we agree with its judicial estoppel argument.

¶ 2. English-Lancaster further argues that his judgment of conviction should be reversed in the interest of justice because his trial counsel gave him erroneous information during plea negotiations regarding the maximum penalty available for the plea offer from the State. We conclude that this error was corrected and English-Lancaster was provided the correct information prior to trial. We therefore affirm the judgment and order.

FACTS

¶ 3. On January 31, 2000, English-Lancaster was charged with second-degree sexual assault, by use or threat of force, contrary to WIS. STAT. § 940.225(2)(a) (1997-98).² The complaint alleged that on October 23, 1999, English-Lancaster, an assistant manager at a convenience store, forced a fellow employee, S.G., to have sexual intercourse. An information filed on March 3, 2000, alleged and charged the same.

¶ 4. On April 12, 2000, English-Lancaster filed a motion in limine seeking to prohibit the State from "introducing any evidence concerning alleged acts of criminal or other misconduct by the defendant either prior to or following the date of the alleged offense charged in the complaint." At a motion hearing on May 31, 2000, trial defense counsel conceded that the State had not indicated that it would be introducing other acts evidence but he was concerned that the State's discovery materials alluded to allegations made by another individual which counsel believed could be prejudicial. Prosecutor Dennis Krueger confirmed that the police had interviewed another person in connection with the investigation but advised the trial court that the State did not intend to introduce that witness's testimony as part of its case-in-chief. The trial court then granted the defense's motion, stating, "Well, at least as to the state's case-in-chief, the court will grant the motion in limine, because it's been indicated there won't be other acts introduced."

¶ 5. On June 9, 2000, four days prior to trial, defense counsel indicated that English-Lancaster had a motion he wished to bring before the court himself. English-Lancaster asked for an adjournment in order to procure additional funds to hire a private investigator. The trial court denied this motion. At the conclusion of this hearing, defense counsel indicated that the outcome of the motion might have an effect on plea negotiations and that the matter could potentially be resolved without a trial. The trial court indicated that a change of plea could be accommodated on the day of trial; however, the court would consider imposing jury costs against English-Lancaster.

¶ 6. On June 12, 2000, the day before trial, prosecutor Krueger informed defense counsel that he would not be handling the trial. A jury trial began on June 13, 2000. Defense counsel approached the new prosecutor, Lloyd Carter, and asked whether the case could be resolved without a trial. Carter informed defense counsel that "there was an offer out there available for . . . third-degree sexual assault." According to Carter, defense counsel responded that English-Lancaster did not want to plea to a charge that would expose him to ten years' imprisonment. Defense counsel later learned that the maximum penalty for third-degree sexual assault was five years, not ten years.

¶ 7. Sometime that morning prior to trial, defense counsel informed English-Lancaster of his mistaken understanding of the maximum penalty for third-degree sexual assault, that the maximum penalty was actually five years, not the ten years he had originally declared. At the postconviction hearing, English-Lancaster testified that defense counsel told him that the actual penalty was five years and then started preparing for trial without discussing whether the plea offer was still available. Defense counsel testified that he specifically asked English-Lancaster whether he wished to accept the State's plea offer in light of the correct penalty information regarding third-degree sexual assault. Defense counsel testified that English-Lancaster insisted that he was innocent, that he was rejecting all plea offers and that he wanted a trial. ¶ 8. Trial began the afternoon of June 13, 2000. Before jury selection began, defense counsel informed the court of the error he had made in advising his client:

[DEFENSE COUNSEL]: Very briefly, Judge, I do apologize for not doing this earlier, I did have a discussion with Attorney Carter this morning. I had mistakenly informed my client of the potential penalties on the state's offer. We did rectify that situation this morning. I don't know that there was any reliance on my original statement of the maximum penalties; nevertheless, Mr. English-Lancaster did reject the state's offer regardless of the penalties.

THE COURT: Sir, you don't need to make any comment, but if you want to — did you want to make any comment on those remarks of your attorney?

[ENGLISH-LANCASTER]: No, sir.

¶ 9. The trial then continued. During the State's case-in-chief, prosecutor Carter called City of New Berlin Police Detective Ryan Park to the stand. Park testified that during his interview of English-Lancaster:

I had asked, based upon my interview with [S.G.] and another employee where I was gathering a history of kind of the relationship between these employees, I had asked Mr. English-Lancaster if he had ever made comments of a sexual nature to [S.G.] and another employee, and he stated that he had not and that he always maintained a professional — he always remained professional at the work place.

Prosecutor Carter then asked Park whether he asked English-Lancaster any other questions about contact between him and S.G. Park testified:

Yes, I did. I had asked him if he had ever touched the buttocks of either [S.G.] or this other employee, and he responded "no." Which I then followed up with another question, which was would there be any reason why, when I'm reviewing the videotape surveillance, would there be any reason why I would see you touching the buttocks of either [S.G.] or this other employee. And he said he didn't know, and I asked him if that was a possibility, something that I may see on the video, and he said, "Yes, it's a possibility."

Defense counsel did not enter a contemporaneous objection to this testimony.

¶ 10. However, shortly thereafter during a court-initiated recess, defense counsel complained that Park's testimony unwittingly violated the court's ruling on the motion in limine because it referred to English-Lancaster's alleged conduct toward another employee; defense counsel asked the court to instruct the jury to disregard that testimony. Prosecutor Carter indicated that he was unaware of the court's previous ruling and the trial court agreed that "there was going to be no mention of any other incidents." The parties then discussed an appropriate curative instruction. Defense counsel did not request a mistrial, only the curative instruction.

¶ 11. The trial court eventually instructed the jury as follows: "Detective Park made mention of another employee. You are to disregard that entirely as it has no bearing on this case." Defense counsel accepted the curative instruction offered by the court.

¶ 12. On June 15, 2000, the jury found English-Lancaster guilty of second-degree sexual assault and on August 17, 2000, the trial court sentenced him to twelve years in prison. On March 22, 2001, English-Lancaster filed postconviction motions asking the court to vacate his conviction and allow him to accept the plea agreement offered by the State prior to trial or, in the alternative, vacate the conviction and order a new trial. English-Lancaster argued that in rejecting the State's plea offer, he had relied on the erroneous information provided by his defense counsel that the maximum penalty was ten years when the correct maximum penalty was five years. He also argued that a cautionary instruction was insufficient to cure the error of the introduction of other acts evidence and a mistrial was necessary.

¶ 13. The trial court denied these motions after a hearing. English-Lancaster appeals from his judgment of conviction and the order denying the postconviction motions.

DISCUSSION

¶ 14. English-Lancaster argues that the trial court's curative instruction could not erase the prejudice resulting from the police officer's testimony concerning other acts evidence of sexual misconduct towards another employee. The State responds that English-Lancaster...