State v. Hansbrough

• Citation: 799 N.W.2d 887,334 Wis.2d 237,2011 WI App 79
• Decision Date: 11 May 2011
• Docket Number: No. 2010AP369–CR.,2010AP369–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent,v.Andre D. HANSBROUGH, Defendant–Appellant.†
• Court: Court of Appeals of Wisconsin

334 Wis.2d 237

799 N.W.2d 887

2011 WI App 79

STATE of Wisconsin, Plaintiff–Respondent,

v.Andre D. HANSBROUGH, Defendant–Appellant.†

No. 2010AP369–CR.

Court of Appeals of Wisconsin.

Oral Argument March 10, 2011.Opinion Filed May 11, 2011.

On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Amelia L. Bizzaro of Henak Law Office, S.C., Milwaukee.On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael C. Sanders, assistant attorney general, and J.B. Van Hollen, attorney general. There was oral argument by Michael C. Sanders.Before BROWN, C.J., NEUBAUER, P.J., and REILLY, J.NEUBAUER, P.J.

Andre D. Hansbrough was found not guilty of first-degree intentional homicide, but guilty of felony murder, armed robbery, armed burglary and false imprisonment, all as a party to the crime. Hansbrough contends he is entitled to a new trial because the trial court failed to provide the jury with a not guilty verdict form for the lesser-included offense of felony murder. Hansbrough argues that this constituted structural error because it forced the jury to choose between first-degree intentional homicide or felony murder. Hansbrough additionally contends that he is entitled to a new trial based on the admission of improper testimony at trial. We conclude that the omission of the not guilty verdict form was not structural error, but rather trial error subject to a harmless error analysis. In the context of the entire trial and under the particular facts presented, we conclude that the error was harmless. We further reject Hansbrough's request for a new trial based on the admission of certain testimony. We affirm.

BACKGROUND

¶ 2 Hansbrough was charged with party to the crimes of first-degree intentional homicide, armed robbery with use of force, armed burglary, and false imprisonment. The charges related to the events of August 21, 2007, which resulted in the murder of Antonio Strong and the false imprisonment of Strong's girlfriend, Yolanda King. Yolanda reported that at approximately 3:00 a.m. three black males with their faces covered entered the residence she shared with Strong. One of the males took her into the bathroom, pulled the shower curtain closed and pointed a gun at her while the other two individuals pointed what she believed to be a handgun and shotgun at Strong. While in the bathroom, Yolanda heard people talking and then shots being fired. The three individuals left the home, and Yolanda found Strong lying on the floor, shot more than once and bleeding badly. Strong was declared dead of shotgun wounds at the hospital later that morning.

¶ 3 Yolanda later identified one of the assailants, Ryan King, in a photo lineup. According to the criminal complaint, police interviews with Ryan King eventually led to the identification of five co-actors: Jonathan Bogan, Chevele Lyons, Jarrod Alston (“Slim”), Xavier Johnson and Hansbrough (“Beetle”). An interview with Bogan also pointed to Hansbrough's involvement.

¶ 4 Hansbrough pled not guilty to the charges and the matter proceeded to a five-day jury trial at which Yolanda, Bogan, and Alston testified. Yolanda maintained that she was aware of only three individuals in the apartment. Both Bogan and Alston testified that there were six individuals involved, five entered the apartment and Hansbrough was one of them. Hansbrough did not testify at trial; however, his defense theory was that he was not present at the apartment on August 21, 2007, and was not otherwise involved.

¶ 5 The jury found Hansbrough not guilty of first-degree intentional homicide, but guilty of being a party to the crimes of felony murder, armed robbery with use of force, armed burglary and false imprisonment. The parties stipulated to the dismissal of the armed robbery count prior to sentencing as it provided the underlying felony for the lesser-included offense of felony murder.¹ Hansbrough was sentenced to a total of thirty years' initial confinement and sixteen years of extended supervision.

¶ 6 Hansbrough filed a motion for postconviction relief on October 23, 2009. Hansbrough's challenges centered on (1) the trial court's failure to submit a not guilty verdict form to the jury on the lesser-included offense of felony murder and (2) evidentiary rulings made by the court regarding testimony from one of the investigating officers. With respect to the missing verdict form, Hansbrough's attorney recalled objecting to the missing verdict form during an off-the-record discussion but did not object on the record. Hansbrough requested that in the event of waiver, the court find ineffective assistance of counsel.

¶ 7 The court held a postconviction motion hearing on December 21, 2009. Hansbrough's attorney, Mark Richards, confirmed that he had objected to the missing verdict form and that his failure to object on the record was an “oversight”; the trial court accepted Richards' testimony that he objected. The trial court declined to find Richards ineffective, and instead found that any errors at trial were harmless. Hansbrough appeals.

DISCUSSION

I. The Failure to Provide a Not Guilty Verdict Form

¶ 8 The record reflects that the jury was provided with nine verdict forms for five possible counts. The jury received separate guilty and not guilty forms for each count with the exception of the lesser-included party to the crime of felony murder for which it received only a guilty verdict form. The parties do not dispute that the trial court erred in failing to give the jury a not guilty form for party to the crime of felony murder. It is also undisputed that the trial court provided the jury with proper jury instructions. These instructions, given on the record and provided in packet form to the jury, advised the jury that in order to find Hansbrough guilty of party to the crime of felony murder, the State had to prove beyond a reasonable doubt all of the elements of the crime.

¶ 9 At the outset, we reject Hansbrough's contention that there must always be a not guilty verdict form for each guilty verdict form. As illustrated by Wis JI—Criminal 482, three verdict forms may be submitted when a defendant is charged with a lesser-included offense. When done properly, the jury is provided with three forms reading as follows: (1) “We, the jury, find the defendant, (name of defendant), guilty of (offense charged), as charged in the information”; (2) “We, the jury, find the defendant, (name of defendant), guilty of (included offense), in violation of § –––– of the Criminal Code of Wisconsin, at the time and place charged in the information”; and (3) “We, the jury, find the defendant, (name of defendant), not guilty.” The jury is instructed: “It is for you to determine which one of the forms of verdict submitted you will bring in as your verdict.” Id. Here, it is evident from the record that this was the intended approach taken by the State and trial court in providing the verdict forms. However, instead of encompassing both the charged offense and lesser-included offense, the not guilty form in this case provided only: “We, the jury, find the Defendant, Andre Hansbrough, not guilty of Party to the Crime of First–Degree Intentional Homicide as charged in Count One of the information.” No mention is made of the lesser-included offense of felony murder and, thus, the provision of three verdict forms in this case was error. We turn to whether the error was structural error or trial error.

A. Structural Error or Trial Error

¶ 10 A defendant has a constitutional right to a jury's determination of guilt beyond a reasonable doubt as to each charged offense. See Sullivan v. Louisiana, 508 U.S. 275, 277–78, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Constitutional errors at trial fall into two categories: trial errors, which are subject to harmless error analysis, and structural errors, which “defy analysis by ‘harmless error’ standards.” Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Structural errors are subject to automatic reversal. State v. Ford, 2007 WI 138, ¶ 43, 306 Wis.2d 1, 742 N.W.2d 61. A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. (quoting Fulminante, 499 U.S. at 310, 111 S.Ct. 1246). Such errors “infect the entire trial process and necessarily render a trial fundamentally unfair.” Ford, 306 Wis.2d 1, ¶ 42, 742 N.W.2d 61 (quoting Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Structural errors “seriously affect the fairness, integrity or public reputation of judicial proceedings and are so fundamental that they are considered per se prejudicial.” Ford, 306 Wis.2d 1, ¶ 42, 742 N.W.2d 61 (citation omitted). Trial error, on the other hand, may be “quantitatively assessed” in the context of the other evidence presented in order to determine whether it was harmless beyond a reasonable doubt. Fulminante, 499 U.S. at 307–08, 111 S.Ct. 1246.

¶ 11 In Ford, our supreme court recognized that the United States Supreme Court has found structural error in only a “very limited class of cases.” Ford, 306 Wis.2d 1, ¶ 43, 742 N.W.2d 61. Citing the Supreme Court's list in Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), the Ford court noted the following cases: Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (the complete denial of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in grand jury selection); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of public trial); and Sullivan, 508 U.S. 275, 113 S.Ct. 2078 (defect in reasonable...