State v. Gordon

• Decision Date: 27 June 2003
• Docket Number: No. 01-1679-CR.,01-1679-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Gary L. GORDON, Defendant-Appellant.
• Court: Wisconsin Supreme Court

262 Wis.2d 380

2003 WI 69

663 N.W.2d 765

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Gary L. GORDON, Defendant-Appellant.

No. 01-1679-CR.

Supreme Court of Wisconsin.

Oral argument October 15, 2002.

Decided June 27, 2003.

(Reversing 2002 WI App 53, 250 Wis. 2d 702, 641 N.W.2d 183.) For the plaintiff-respondent-petitioner the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief and oral argument by Steven P. Weiss, assistant state public defender.

¶ 1. DIANE S. SYKES, J.

Gary Gordon was charged with three criminal counts arising out of a domestic dispute: violating a domestic abuse injunction, disorderly conduct while armed, and second-degree recklessly endangering safety. He testified in his own defense and admitted to facts constituting the enhanced disorderly conduct count, to wit, that when the police arrived in response to the domestic violence dispatch, he grabbed two knives to hold the officers at bay while he attempted to evade arrest, and remained armed with those knives while the police pursued him on foot through the neighborhood.

¶ 2. During closing argument, Gordon's trial counsel argued for acquittal on the two more serious charges. As to the disorderly conduct count, however, Gordon's attorney conceded that "obviously running around the neighborhood with two knives is disorderly conduct and it is disorderly conduct while armed." The jury returned verdicts of guilty all three counts.

¶ 3. On appeal, Gordon argued that his trial counsel's closing argument concession of guilt on the disorderly conduct while armed count constituted ineffective assistance of counsel of a type that is conclusively presumed to be prejudicial, automatically requiring a new trial. He also claimed instructional error: the jury instruction for the "while armed" penalty enhancer on the disorderly conduct charge did not include the Peete "nexus" instruction, which is required when the defendant is charged with committing the underlying crime "while possessing a dangerous weapon." See State v. Peete, 185 Wis. 2d 4, 9, 517 N.W.2d 149 (1994)

; Wis. Stat. § 939.63 (2001-2002).¹ Because the penalty enhancer is an element of the offense, Gordon contended that his trial counsel's failure to object to this error was per se prejudicial and therefore automatically reversible.

¶ 4. The court of appeals agreed, concluding that the attorney's concession was the functional equivalent of a guilty plea, which is a constitutional prerogative of the accused, not his lawyer. State v. Gordon, 2002 WI App 53, ¶ 25, 250 Wis. 2d 702, 641 N.W.2d 183. The court of appeals also concluded that the failure to object to the erroneous jury instruction was per se prejudicial. Id., ¶¶ 32-38.

¶ 5. We reverse. The concession by counsel was not the functional equivalent of a guilty plea under the circumstances of this case, where it came in closing argument, on one count in a multiple-count case, after full adversarial testing of the State's case and after the defendant had admitted on the witness stand the facts constituting the offense. In addition, the omission of the Peete instruction is subject to harmless error analysis under Neder v. United States, 527 U.S. 1 (1999), and State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189. Therefore, the failure to object to the omission was not per se prejudicial for purposes of ineffective assistance of counsel analysis. We reverse State v. Howard, 211 Wis. 2d 269, 290-95, 564 N.W.2d 753 (1997),State v. Avila, 192 Wis. 2d 870, 891-93A, 532 N.W.2d 423 (1995), and State v. Krueger, 240 Wis. 2d 644, 649-51, 632 N.W.2d 211 (Ct. App. 2000), to the extent that those cases established a rule of automatic reversal where a jury instruction omits an element of the offense.

I. FACTS AND PROCEDURAL HISTORY

¶ 6. Margaret Wilder obtained a domestic abuse injunction against Gary Gordon on October 29, 1998. Gordon was Wilder's sometime boyfriend of 12 years who occasionally lived with her, though his drug and alcohol use strained the relationship. Despite the injunction, Wilder allowed Gordon to live with her and her six-year-old grandson in their Milwaukee apartment beginning sometime during the late spring of 1999, and continuing into the fall of that year. Wilder was wheelchair-bound and testified at trial that she had allowed Gordon to live with her to help care for her; Gordon testified that he was unaware when he resumed living with Wilder that the injunction was still in effect.

¶ 7. On the evening of October 1, 1999, Gordon was at Wilder's apartment and had nearly finished off a 32-ounce bottle of beer when he and Wilder got into an argument. Wilder testified that Gordon was "agitated" and "verbally abusive." She also feared that Gordon had been "doing drugs," based upon certain behaviors and characteristics that she had observed in him when he had previously done so.

¶ 8. Wilder called the police to come to her apartment and enforce the injunction against Gordon. Officers Matthew Bongard and John Amberg were dispatched, and when they arrived outside the apartment, Gordon realized they were there for him and decided to attempt to "escape" by arming himself with two knives. He testified that he picked up the first knife because he "didn't want to go to jail," and then grabbed a second knife.

¶ 9. Wilder's grandson let Officer Bongard into the apartment. From her wheelchair in the living room, Wilder shouted, "He's right there and he has some knives," referring to Gordon, who was standing in an interior hallway.

¶ 10. Officer Bongard drew and pointed his gun at Gordon, ordering him to drop the knives. Officer Amberg then ran inside to help. Gordon continually refused the officer's commands to drop the knives, saying that he "wasn't going to drop no fucking knives," and telling the officers, "I ain't going to no jail." The officers radioed for backup. Officer Amberg described the knives as a "butcher style knife" and a "steak knife."

¶ 11. Still armed with the knives, Gordon fled to a back bedroom and closed the door. Because this room had a door to the backyard, Officer Amberg went outside intending to secure the area. A neighbor had seen Gordon run outside and hide in some bushes, and alerted Officer Amberg.

¶ 12. Officer Bongard joined the search outside and spotted Gordon in the hedges, a few houses away from Wilder's apartment. Gordon was still clutching the knives. Officer Bongard drew his gun, yelled for Gordon to drop the knives, and ordered him to "freeze." Gordon did not comply, and the officer, at least one more time, ordered him to drop the knives. Gordon then stepped towards Officer Bongard and started to raise the knives. Gordon testified that he was attempting to surrender the knives. Interpreting Gordon's movement as an imminent attack rather than a surrender, Officer Bongard fired two shots at Gordon in quick succession. Gordon was hit in the arm and the stomach. The officers immediately summoned medical help.

¶ 13. Gordon was charged in Milwaukee County Circuit Court with three crimes: violation of a domestic abuse injunction, contrary to Wis. Stat. § 813.12(8)(a); disorderly conduct while armed, contrary to Wis. Stat. §§ 947.01 and 939.63; and second degree recklessly endangering safety, contrary to Wis. Stat. § 941.30(2). At trial, he testified that when he first saw that police officers had arrived at the apartment, he armed himself with two knives in order to set in motion his escape: "Well, when I seen them coming I got up and I walked up and he came in. And then that's when, you know, I picked up the knife because I didn't want to go to jail. I ain't going to jail. You know what I'm saying?" He repeatedly testified that the reason he armed himself with the knives was to avoid going to jail:

Q: And you testified, sir, while you were being asked by your attorney these questions right in front of the jury here that you grabbed the knives when you realized that the officers were coming in because, quote, I am not going to jail. Is this correct? Is this what you told us?

A: Yeah. I said, "I'm not fitting to go to jail." They [the officers] told me that I was going to jail. I said, "I'm not going to go to no jail."

Q: That's why you grabbed the knife?

A: Yes.

Q: Did you grab both knives at the same time?

A: I grabbed one, then I grabbed the other one off the counter . . . .

Q: So, the presence of these two knives you armed yourself with in the kitchen of this apartment was for the purposes of deterring these officers from grabbing you so you wouldn't go to jail, is that right?

A: Well, you could say so, yes.

¶ 14. Regarding the confrontation with the police outside the apartment, Gordon testified:

A: Yeah, he [the officer] seen me. We both like met up on each other as he came through the yard. We caught each other's eye and he turned to me and told me to freeze.

Q: Did he ... tell you repeatedly to drop the knives?

A: Twice he said, "Drop the knives, drop the fucking knives." Pardon my language. That is the exact words he said.

¶ 15. In closing argument, Gordon's trial counsel focused on disputing Gordon's guilt on the felony charge of second-degree recklessly endangering safety and the misdemeanor charge of violating the domestic abuse injunction. He said little, however, about the misdemeanor charge of disorderly conduct while armed, save for the following:

But I want to be very clear there is no doubt, there is no question that at the moment when Officer Bongard shot Mr. Gordon, Mr. Gordon was subject to arrest for disorderly conduct while armed. Obviously running around the neighborhood with two knives is disorderly conduct and it is disorderly conduct while armed. But in and of itself that conduct does not create an unreasonable and substantial risk of death or great bodily harm.... Walking around the neighborhood with two knives doesn't

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