State v. Groth

• Decision Date: 12 November 2002
• Docket Number: No. 01-3000-CR.,01-3000-CR.
• Citation: 655 N.W.2d 163,258 Wis.2d 889,2002 WI App 299
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. Jeffrey R. GROTH, Defendant-Respondent-Cross-Appellant.
• Court: Wisconsin Court of Appeals

258 Wis.2d 889

2002 WI App 299

655 N.W.2d 163

STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. Jeffrey R. GROTH, Defendant-Respondent-Cross-Appellant.¹

No. 01-3000-CR.

Court of Appeals of Wisconsin.

Submitted on briefs August 26, 2002.

Decided November 12, 2002.

On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of James E. Doyle, attorney general, and Sally L. Wellman, assistant attorney general.

On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the combined brief of Peter M. Koneazny, assistant state public defender.

Before Wedemeyer, P.J., Fine and Schudson, JJ.

¶ 1. SCHUDSON, J.

The State of Wisconsin appeals from a judgment and an order, after a jury found Groth guilty of second-degree reckless homicide, party to a crime, while armed with a dangerous weapon; aiding a felon; and carrying a concealed weapon. The State argues that the trial court erred in granting Groth's postconviction motion for a new trial on the homicide charge. The State contends that the court erred in concluding that it had erred at trial in giving WIS JI—CRIMINAL 406. The State is correct and, therefore, we reverse the postconviction order for a new trial and reinstate the judgment of conviction on the homicide charge.

¶ 2. Groth cross-appeals from the judgment of conviction and the postconviction order granting his request for a new trial but denying his request for resentencing. Groth does not challenge his convictions for aiding a felon or carrying a concealed weapon. He argues, however, that: 1) he is entitled to resentencing because, he says, he was sentenced based on inaccurate information; and 2) the court erroneously exercised sentencing discretion and denied him equal protection when it imposed significantly different sentences on him and a co-defendant. He also argues that, with respect to the homicide conviction, he is entitled to a new trial in the interests of justice as a result of what he deems confusing jury instructions, an erroneous jury instruction, and the State's misleading closing argument.

¶ 3. We reject Groth's challenges to the jury instructions and the State's closing argument. We do agree, however, that Groth is entitled to resentencing because he was sentenced based, in part, on what the State concedes was information without factual basis in the record as it comes to us. Therefore, without any need to address his additional sentencing challenge, see Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issue need be addressed), we remand for resentencing.

I. STATE'S APPEAL

A. Background

¶ 4. In its postconviction decision, the trial court summarized the facts that, as relevant to the issues in this appeal, are essentially undisputed:

Groth's convictions (along with [those of] three other co-defendants who pled guilty) stem from the early A.M. February 25, 2000 shooting death of Joseph George outside the Roadhouse Tavern in the City of Oak Creek, Milwaukee County. Groth arrive[d] at the bar on the evening of February 24th with Kevin Dane, Rodolph Lanaghan (the actual shooter) and two other co-defendants, Bradley Debraska and Kevin Ziolkowski.

Groth planned to confront men whom he believed had attacked him outside the bar the previous week, and the group brought weapons to the scene, including a bat, a broken pool cue, brass knuckles and an inoperable .22 caliber handgun. [Groth] also requested that a friend of his, Fausto "Huffy" Delgado, bring his .38 caliber handgun to the bar. Groth secured that gun and later handed it to Lanaghan. It was that .38 which killed Joseph George.

In the interim various meetings were held in the men's bathroom between the antagonists on each side, and many thought those meetings had resolved the differences. However, Debraska testified that Groth still wanted revenge for the beating he had sustained the prior week. Testimony revealed that Lanaghan related to Groth that the latter did not ["]have the balls to use it (the gun)["] and requested the gun from Groth. After giving the gun to Lanaghan, Groth left the bar and pulled his car nearer the entrance "in case something happened." He kept the engine running.

Debraska then provided Lanaghan with a jacket with a hood to assist the shooter in concealing his identity. Lanaghan then started firing at the bar's entrance at people exiting. Danny Oswald, one of the principal antagonists of Groth, was right next to Joseph George, and this victim, an innocent bystander, unfortunately received the fatal shot presumably intended for Oswald.

Groth then drove the group to Ziolkowski's home, where they attempted to clean and hide the gun. However, they were all picked up shortly thereafter by the police.

¶ 5. At the jury-instructions conference, the prosecutor requested WIS JI—CRIMINAL 406, modified to reflect the appropriate crimes. So modified, and as ultimately presented to the jury, the instruction states, in part:

Section 939.05 of the Criminal Code of Wisconsin provides that whoever is concerned in the commission of a crime may be charged with and convicted of the commission of the crime although he did not directly commit it.

The defendant is charged with being concerned in the commission of second degree reckless homicide while armed with a dangerous weapon by aiding and abetting the person who directly committed it.

A person who intentionally aids and abets the commission of one crime is also guilty of any other crime which is committed as a natural and probable consequence of the intended crime.

Before you may find the defendant guilty, you must be satisfied beyond a reasonable doubt that the defendant intentionally aided and abetted the commission of the crime of second degree recklessly endangering safety while armed with a dangerous weapon, that second degree homicide while armed with a dangerous weapon was committed and that under the circumstances second degree reckless homicide while armed with a dangerous weapon was a natural and probable consequence of second degree recklessly endangering safety with a dangerous weapon.

....

Finally, consider whether under the circumstances second degree reckless homicide while armed was a natural and probable consequence of second degree recklessly endangering safety while armed.

A crime is a natural and probable consequence of another crime if in light of ordinary experiences it was a result to be expected, not an extraordinary or surprising result.

The probability that one crime would result from another should be judged by the facts and circumstances known to the defendant at the time the events occurred.

If the defendant knew or if a reasonable person in the defendant's position would have known that the crime of second degree reckless homicide while armed was likely to result from the commission of second degree recklessly endangering safety while armed, then you may find that second degree reckless homicide while armed was a natural and probable consequence of second degree recklessly endangering safety while armed.

¶ 6. Groth objected to the instruction. He did so, however, arguing only that the standard instructions on second-degree reckless homicide while armed, party to the crime, without any additional instruction involving second-degree recklessly endangering safety, would be easier for the jury to understand and apply. He did not argue that the evidence was insufficient to support the State's proposed instruction. He did not argue that second-degree reckless homicide was not a natural and probable consequence of second-degree reckless endangering safety under the circumstances of this case. And he did not argue that any specific language in the State's proposed instruction was inaccurate or confusing. The court granted the State's request.

¶ 7. In his postconviction motion, however, Groth contended that the instructions he had proposed more clearly distinguished his intentional aiding and abetting from Lanaghan's recklessness. Granting Groth's motion, the trial court concluded:

[Second-degree reckless homicide while armed, party to the crime] is not the natural and probable consequence of second-degree recklessly endangering safety, since there is no evidence as to what [Groth] actually intended. [Groth's] theory was that the weapons brought to the tavern were for self-defense in the event a confrontation occurred. He was not sure what would happen after he provided Lanaghan with the .38 caliber gun.

B. Discussion

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¶ 8. 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. State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996). Whether a crime charged was a natural and probable consequence of the crime with which a defendant allegedly assisted is a factual issue for the jury. State v. Ivy, 119 Wis. 2d 591, 601, 350 N.W.2d 622 (1984). Whether a jury instruction is appropriate, under the given facts of a case, is a legal issue subject to independent review. See State v. Pettit, 171 Wis.2d 627, 638, 492 N.W.2d 633 (Ct. App. 1992)

.

[4-6]

¶ 9. Whether a jury instruction violated a defendant's right to due process is a question of law subject to our de novo review. Id. at 639. In reviewing a claimed jury instruction error, we do not view the challenged words or phrases in isolation. Id. at 637. Rather, jury instructions "must be viewed in the context of the overall charge." Id. Relief is not warranted, however, unless the court is "persuaded that the instructions, when viewed as a whole, misstated the law or misdirected the jury" in the manner asserted by the challenger to the instruction. Id. at 638.

¶ 10. WISCONSIN JI—CRIMINAL 406 defines aiding-and-abetting liability in circumstances under which a person who intentionally aides and abets the commission of one crime is also guilty of any other crime (committed in the...