State v. Fleming
| Decision Date | 30 December 1993 |
| Docket Number | No. 92-2147-CR,92-2147-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Michael J. FLEMING, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
(1) Did the prosecutor stipulate that the state would not request that the court instruct the jury on the lesser-included offense of intentionally causing bodily harm to a child, contrary to sec. 948.03(2)(b), Stats.? We conclude that the prosecutor did not so stipulate.
(2) Was the state judicially estopped from requesting that the court instruct the jury on the lesser-included offense? We conclude that it was not.
(3) Were there reasonable grounds in the evidence to acquit Fleming of the charged offense and convict him of the lesser-included offense? We conclude that there were.
(4) Did the trial court erroneously exercise its discretion when it admitted into evidence and allowed to be exhibited to the jury photographs of the child's injuries as they appeared on the day after the alleged physical abuse? We conclude that it did not.
Fleming contends that the prosecutor stipulated that the state would not request that the trial court instruct the jury that it could find him guilty of the lesser-included offense of physical abuse of a child. The trial court instructed the jury as follows:
If you are satisfied beyond a reasonable doubt from the evidence in this case that the Defendant intentionally caused bodily harm to Desarae [W.] and that Desarae [W.] had not attained the age of 18 years at the time of the alleged offense, you should find the Defendant guilty of the lesser included offense of physical abuse of a child.
Fleming's theory of defense was that he did not physically abuse Desarae and that someone else may have. He objected to submission of the lesser-included offense because of his fear that the jury would render a "compromise" verdict. In the instruction and verdict conference, Fleming's counsel stated:
But what we don't want to risk is ... the Jury saying: well, we've got two and now we'll sort of divvy up the pony where all he gets out of it is a Class D felony instead of a Class C felony....
He argues that his fears proved "prophetic" when, forty-three minutes after it recessed for deliberations, the jury returned a verdict finding Fleming not guilty of the charged offense, and guilty of the lesser-included offense.
To support his argument that the prosecutor stipulated that she would not seek the lesser-included offense instruction, Fleming points to the following exchange, which occurred at the outset of the trial:
The court then asked the prosecutor: "Is there a lesser-included offense here ...?" To which the prosecutor replied: "I don't intend to submit a lesser-included, at this time anyway." (Emphasis added
This is hardly the stuff from which stipulations are fashioned. The prosecutor no more Fleming also claims that a stipulation was made when the trial court ruled on his motion to dismiss at the close of the evidence. The trial court asked the prosecutor whether it was her position that there was evidence to support that Fleming knew that his conduct created a high probability of "substantial risk of death ... serious permanent disfigurement, permanent or protracted loss or impairment of the function of a bodily member or organ." 4 The prosecutor stated that that was her position. The court then asked the prosecutor whether she wanted a lesser-included offense instruction. The record shows that she paused before responding: "No." The prosecutor then asked: "[C]ould I just think about that for a moment?" The prosecutor then advised the court: "I'm willing to put all the marbles in one bottle, I guess, and not ask for the lesser-included." The trial court responded: "So be it."
bound the state to refrain from seeking a lesser-included instruction than Fleming's attorney bound the defense to refrain from calling witnesses when, at the outset of voir dire, Fleming's attorney advised the court that he did not anticipate calling witnesses "at this time." These "commitments" merely guide the course of trial and are a courtesy to the court and other litigants
However, the prosecutor's confidence in the state's ability to prove the charged offense under sec. 948.03(2)(c), Stats., wavered and in the instruction and verdict conference she requested that the court instruct the jury on the lesser-included offense. Fleming objected, claiming that when the prosecutor informed the court that she would "put all the marbles in one bottle," she stipulated that she would not seek the lesser-included offense instruction. He renews his objection here. We conclude that the prosecutor's representation to the court, made outside the instruction and verdict conference, lacked the essential elements of a stipulation.
BLACK'S LAW DICTIONARY 1415 (6th ed. 1990) defines a "stipulation" as:
The name given to any agreement made by the attorneys engaged on opposite sides of a cause (especially if in writing), regulating any matter incidental to the proceedings or trial, which falls within their jurisdiction.... An agreement, admission or confession made in a judicial proceeding by the parties thereto or their attorneys....
Here, an element essential to a stipulation is lacking: the state did not enter an agreement with Fleming that it would not seek a jury instruction on the lesser-included offense. Fleming's consent or agreement to permit the trial court to instruct the jury on the lesser-included offense was unnecessary. The state and the defendant each had the right to request that the trial court submit an instruction on the lesser-included offense. Zenou v. State, 4 Wis.2d 655, 668, 91 N.W.2d 208, 215 (1958). At the state's request, the trial court was required to instruct on the lesser-included offense once it concluded that the evidence allowed the jury to acquit Fleming of intentionally causing bodily harm to a child by conduct which created a high probability of great bodily harm, and convict him of the lesser-included offense of intentionally causing bodily harm to a child. State v. Sarabia, 118 Wis.2d 655, 661-62, 348 N.W.2d 527, 531-32 (1984). The appropriate time for the prosecutor to commit the state to a position was at the instruction and verdict conference. The prosecutor's "all-the-marbles" decision was made when the parties argued Fleming's motion to dismiss. Until the jury was actually instructed, the prosecutor was free to change her mind.
In contractual terms, Fleming gave no consideration for the prosecutor's "agreement" not to request the lesser-included offense. Thus, we conclude that the prosecutor did not stipulate that the state would not request that the trial court instruct the jury that it could convict Fleming on the lesser-included offense of intentionally causing bodily harm to a child.
Fleming also argues that the prosecutor was judicially estopped from requesting that "Judicial estoppel" has been said to be "more obscure" than "equitable estoppel." Konstantinidis v. Chen, 626 F.2d 933, 936 (D.C.Cir.1980). See generally Beck, Estoppel Against Inconsistent Positions in Judicial Proceedings, 9 BROOKLYN L.REV. 245 (1940). The object of equitable estoppel as applied to judicial proceedings "is to prevent the unconscientious and inequitable assertion or enforcement of claims or rights which might have existed or been enforceable by other rules of law, unless prevented by the estoppel." Konstantinidis, 626 F.2d at 937 (quoting 3 POMEROY'S EQUITY JURISPRUDENCE § 802 (5th ed. 1941)).
the trial court instruct the jury on the lesser-included offense. He states: "After two years before trial, two days of trial itself, and a two hour break to finish his closing argument, the defendant had two minutes to deal with an entirely different situation." He asserts that the state's [181 Wis.2d 557] action is contrary to basic principles of justice. 5 We conclude that Fleming confuses judicial estoppel with equitable estoppel and that neither doctrine made it unjust for the court to grant the state's request and give the lesser-included offense instruction
"Judicial estoppel," on the other hand, although otherwise similar to the equitable estoppel rule against inconsistency, does not require proof of privity, reliance, or prejudice. This distinction reflects a difference in policy objectives: in contrast to equitable estoppel's concentration on the integrity of the parties' relationship to each other, judicial estoppel focuses on the integrity of the judicial process.
Id. (citation omitted). It has been said that "the doctrine [of judicial estoppel] is intended to protect against a litigant playing 'fast and loose with the courts' by asserting inconsistent positions." Yanez v. United States, 989 F.2d 323, 326 (9th...
To continue reading
Request your trial
-
Com. v. Woodward
...State, 943 S.W.2d 887, 890 (Tex.Crim.App.1997); State v. Wallace, 175 W.Va. 663, 667, 337 S.E.2d 321 (1985); State v. Fleming, 181 Wis.2d 546, 554-555, 510 N.W.2d 837 (Ct.App.1993); State v. Keffer, 860 P.2d 1118, 1134 (Wyo.1993).9 Woodward argued that providing a jury with multiple options......
-
State v. Petty
...599 (6th Cir.1982), it is the prerogative of the trial court to invoke judicial estoppel at its discretion." State v. Fleming, 181 Wis.2d 546, 558, 510 N.W.2d 837 (Ct.App.1993). In this case however, the doctrine was not applied by the circuit court, but rather, by the court of appeals. The......
-
State v. Steinhardt
...equitable doctrine invoked at the court's discretion to preclude a party from abusing the court system. See State v. Fleming , 181 Wis.2d 546, 558, 510 N.W.2d 837 (Ct. App. 1993) (judicial estoppel is applied to preclude "cold manipulation and not unthinking or confused blunder" (quoting Ko......
-
Grady v. Cooper
...state case law outlining the general principles of lesser included offenses in Wisconsin. Id. at 9-10 (citing State v. Fleming, 181 Wis. 2d 546, 510 N.W.2d 837 (Wis. Ct. App. 1993) ; State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998) ; Randolph v. State, 83 Wis. 2d 630, 266 N.W.2d 334......