State v. Howard

• Decision Date: 26 June 1997
• Docket Number: No. 95-0770,95-0770
• Citation: 211 Wis.2d 269,564 N.W.2d 753
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Frank P. HOWARD, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 753

564 N.W.2d 753

211 Wis.2d 269

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Frank P. HOWARD, Defendant-Appellant.

No. 95-0770.

Supreme Court of Wisconsin.

Argued Jan. 8, 1997.

Decided June 26, 1997.

[211 Wis.2d 271] For the plaintiff-respondent-petitioner the cause was argued by Sharon Ruhly, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief by Daniel R. Clausz and Williams Law Offices, Delavan and oral argument by Daniel R. Clausz.

Amicus curiae brief was filed by Robert R. Henak and Shellow, Shellow & Glynn, S.C., Milwaukee, for Wisconsin Association of Criminal Defense Lawyers.

¶1 JANINE P. GESKE, Justice

The State seeks review of a published decision of the court of appeals ¹ reversing an order of the Waukesha County Circuit Court, Lee S. Dreyfus, Jr., Judge. The circuit court refused to grant the defendant, Frank P. Howard, a new trial on the issue of whether he was guilty of delivery of a controlled substance while possessing a dangerous weapon.

¶2 Howard contends that because the jury was not required to find beyond a reasonable doubt that he possessed a dangerous weapon to facilitate the commission of the drug offense, due process and our decision in State v. Peete ² require that he receive a new trial

on the issue of the dangerous weapon enhancer. We conclude that the holding of Peete applies to cases of actual as well as constructive possession, and must be applied retroactively to this case. We further hold that because Howard could not have foreseen the effect of the Peete decision at the time of his original appeal, his motion for a new trial is not barred by our decision in State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994). We therefore affirm the court of appeals.

FACTS AND PROCEDURAL HISTORY

¶3 In 1989, the State charged Howard with, inter alia, aiding and abetting the unlawful delivery of a controlled substance (cocaine) while possessing a dangerous weapon, in violation of Wis. Stat. §§ 161.41(1)(c)2, 939.05, 939.63(1)(a)3 and 2 (1987-88). At trial, the police testified that when they searched Howard at the scene, they found a handgun in his coat pocket. At that point, Howard told them that he had another gun in his jacket. Howard, however, testified that he told the police he had two guns on his person before the police initiated their search of him. When Howard was arrested, he had approximately $2,200 in cash on his person, as well as the two handguns. According to his testimony, Howard had the money at his garage, because he saved it to buy, fix up and sell cars. He had the guns at the garage for protection. According to Howard, his garage was in a high crime area of Milwaukee.

¶4 In February of 1990, Howard was tried by jury. At the conclusion of the evidence, the circuit court instructed the jury on the elements of the first charged offense. The court also instructed the jury on the penalty enhancer of possessing a dangerous weapon. ³ Wis JICriminal 990. "Possession" was not defined in that jury instruction. The court also instructed the jury on the charge of possession of a firearm by a felon, using Wis JICriminal 1343. That instruction defined "possession" as "the defendant knowingly had a firearm under his actual physical control." Howard did not object to these jury instructions.

¶5 In closing argument, the prosecutor described to the jury the elements necessary to prove the charges against Howard. With regard to the penalty enhancer, the prosecutor stated,

"[A]nd further as to the January 20th incident, out at the Marriott, an additional factor you must consider in that count alone is did he commit that crime; that is, the delivery of cocaine over 10 and under 30 grams while possessing a firearm. In this case, it's clear the Defendant admitted that he had the two firearms with him on that date, so if you find the Defendant guilty of that offense and I ask you to do so, finding that he possessed those firearms is also a given fact."

Wrapping up his argument, the prosecutor stated:

"I ask you to reach a quick verdict as well as a guilty verdict finding that, ... on January 20th, 1989, he knowingly and unlawfully helped, assisted, and, in fact, was a supplier for delivery of cocaine from Jay Clemins to Officer Adlam unwittingly and that he had a couple guns with him at the time, and also on that day, that he was a convicted felon and had those guns with him also."

¶6 The jury found Howard guilty of party to a crime of delivery of controlled substance (cocaine) while in the possession of a firearm, possession of a firearm by a felon, and delivery of controlled substance (cocaine). Howard was sentenced on all three counts. On March 23, 1990, the circuit court sentenced him to nine years in prison, the maximum for the crime of delivery of a controlled substance ¶7 Howard filed a number of post-conviction motions and a direct appeal. After exhausting his direct appeals, Howard filed a pro se ⁴ motion on October 3, 1994, requesting postconviction relief and/or modification of sentence pursuant to Wis. Stat. § 974.06, ⁵ and based on this court's holding in Peete. In Peete, we held that when a defendant is charged with the penalty enhancer of committing a crime while in possession of a dangerous weapon, Wis. Stat. § 939.63 requires the State to prove a nexus between the underlying crime and possession of the weapon. Peete, 185 Wis.2d at 18-19, 517 N.W.2d 149. Howard thus sought a new trial, because in his first trial the jury received no instruction on the nexus element. The circuit court denied Howard's motion. The court of appeals reversed. ⁶ The State sought review by this court.

party to a crime while possessing a dangerous weapon. At that time, the maximum penalty for the underlying crime was 5 [211 Wis.2d 275] years. The maximum penalty for the enhancer charge was 4 years.

STANDARD OF REVIEW

¶8 Whether our construction of Wis. Stat. § 939.63 (1987-88) in Peete applies to cases of actual, as well as constructive, possession and if so, whether Peete must be applied retroactively to this case are questions of law that we review independently, benefiting from the analyses of the lower courts. See State v. Avila, 192 Wis.2d 870, 885, 891, 532 N.W.2d 423 (1995). If Peete is applicable to this case, we then consider, as a question of law, whether Howard's claim is barred under Escalona-Naranjo. Whether the jury instructions given by the circuit court violated the defendant's right to due process is a question of law that we review independently of the lower courts. State v. Zelenka, 130 Wis.2d 34, 43, 387 N.W.2d 55 (1986).

THE PEETE

DECISION

¶9 A review of our decision in Peete illustrates the basis for Howard's claim. Jerry Peete was arrested at his girlfriend's residence, following a search of the premises. Peete, 185 Wis.2d at 10, 517 N.W.2d 149.

                That search revealed plastic bags containing cocaine stuffed in socks in a dresser drawer in the girlfriend's bedroom.  Also in the bedroom were over $2,000 in cash and a number of personal items belonging to Peete.  Between the mattresses was a loaded handgun.  Id. at 11, 517 N.W.2d 149.   In the kitchen, police found three loaded handguns in a cereal box.  Id. Peete was arrested and convicted of possession of cocaine with intent to deliver while armed.  Id. at 9, 517 N.W.2d 149
                

¶10 At Peete's trial, the court did not give a separate instruction on what constituted "possession" of a dangerous weapon for purposes of Wis. Stat. § 939.63, the penalty enhancer. Peete, 185 Wis.2d at 12-13, 517 N.W.2d 149. On appeal, and on review by this court, Peete raised the question of what the jury was required to find under the instruction as given. Id. at 14, 517 N.W.2d 149.

¶11 On review, we engaged in statutory interpretation and construction. We held that § 939.63 ⁷ created a possessory offense linked to a predicate offense. Peete, 185 Wis.2d at 14, 517 N.W.2d 149. Section 939.63 provides that if a defendant commits a crime while in possession of a dangerous weapon, his or her sentence may be increased by varying amounts of time, depending on the maximum sentence for the underlying offense. Id. Both Peete and the State agreed that the legislature intended the enhancer to apply only when there is a relationship between the underlying crime and the weapon. Id. at 16-17, 517 N.W.2d 149. We unanimously held that Wis. Stat. § 939.63 requires the State to prove a nexus between the crime and the weapon the defendant possessed, because that nexus is an element of the penalty enhancer. Id. at 18-19, 517 N.W.2d 149. We later clarified that the weapons penalty enhancer is an element of the enhanced offense, but is not an element of the underlying offense. State v. Avila, 192 Wis.2d 870, 893b, 535 N.W.2d 440 (1995). The jury must find the nexus element beyond a reasonable doubt. Peete, 185 Wis.2d at 21, 517 N.W.2d 149.

¶12 In Peete, we also interpreted the penalty enhancer provision to apply to actual, as well as constructive possession of a weapon. Peete, 185 Wis.2d at 16, 517 N.W.2d 149; see also, Avila, 192 Wis.2d at 891, 532 N.W.2d 423. Our interpretation was consistent with the interpretation of other criminal statutes governing possessory offenses. Peete, 185 Wis.2d at 14, 517 N.W.2d 149 (citations omitted).

¶13 We then considered the proper definition of an adequate nexus. We ultimately adopted the definition proposed by the State and agreed to by Peete: "[W]hen a defendant is charged with committing a crime while possessing a dangerous weapon, under sec. 939.63, the state should be required to prove that the defendant possessed the weapon to facilitate commission of the predicate offense." Peete, 185 Wis.2d at 18, 517 N.W.2d 149 (emphasis added). We recognized that the use of, or a threat to use, a weapon facilitated commission of the predicate offense because such use or threat instills fear in the victim,...