State v. Hughes
| Decision Date | 11 September 2001 |
| Docket Number | No. 00-3176-CR.,00-3176-CR. |
| Citation | 635 N.W.2d 661,248 Wis.2d 133,2001 WI App 239 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Isaac HUGHES, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of James Rebholz and Ann Auberry of Rebholz, Auberry & Malone, Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Lara M. Herman, assistant attorney general.
Before Fine, Schudson and Curley, JJ.
¶ 1.
Isaac Hughes appeals from a judgment convicting him of possession of cocaine with intent to deliver, within 1,000 feet of a school, see WIS. STAT. §§ 961.49(1)(b)6 & 961.49(2)(a)2f, and of resisting a law enforcement officer, see WIS. STAT. § 946.41(1). Hughes's case was tried to a jury. Although phrased in a variety of different ways, his sole claim on appeal is that the trial court erred when it entered judgment on the jury's finding that Hughes possessed cocaine with intent to deliver within 1,000 feet of a school, as was charged in the amended information, and disregarded the jury's verdict also finding that Hughes simply possessed the cocaine. Although he seeks a new trial on both the cocaine and obstruction charges, Hughes asserts no separate claim in connection with the jury's finding that he was also guilty of obstructing an officer. We affirm.
¶ 2. The trial court gave the jury three separate verdict forms in connection with the cocaine charge. The first verdict form had two parts and read:
Yes ___ No ___
The jury checked the "yes" spaces for each part, and the foreman signed and dated the form. The second verdict form had one part and read:
We, the jury, find the defendant, Isaac Hughes, guilty of Possession of Cocaine, an included offense, in violation of Section 961.41(3g)(c) of the Criminal Code of Wisconsin at the time and place charged in Count 1 of the information.
The foreman signed and dated this form as well. Although it is not in the record on appeal, the trial court also gave the jury a "not guilty" verdict form in connection with the cocaine charge. ¶ 3. The trial court instructed the jury that:
As noted, the jury found both that Hughes possessed cocaine with intent to deliver and that he possessed cocaine.
¶ 4. When the jury returned its verdicts, the trial court told the jury that it had done too much:
The concern I have deals with the verdict with respect to the lesser included offense, and the instructions in this regard indicates [sic] that if you find the defendant guilty of the charge of count one, possession with intent to deliver controlled substance-cocaine within a thousand feet of a school, then it is not necessary to answer this question of possession of cocaine, which is an included offense.
The trial court then conferred with counsel in an off-the-record sidebar, after which the trial court told the jury that it was going to poll the jurors individually "to make sure that the record is clear and that this was the verdict of the jury."2
¶ 5. The trial court polled the jury and each juror affirmed that the verdicts were the verdicts to which he or she agreed. The trial court then discharged the jury, and granted the State's motion for "judgment of conviction on the verdict." Hughes's lawyer asked that the trial court enter a "judgment of not guilty on the verdict notwithstanding." Hughes's lawyer did not, on the record at least, ask that the trial court either: 1) direct that the jury choose between the two verdicts finding Hughes guilty in connection with the cocaine charge; 2) enter judgment on the simple possession verdict; or 3) take some other action. In response to the motion by Hughes's lawyer that the trial court find Hughes not guilty of the cocaine charge "notwithstanding" the verdicts, the trial court noted that it "found the testimony to be reasonable and credible, and found that the jury reached a true and fair verdict." Hughes's lawyer made no further comment or objection in connection with the verdicts; accordingly, it is safe to assume that his motion went to the sufficiency of the evidence to convict rather than the jury's return of two "guilty" verdicts in connection with the cocaine charge.
¶ 6. As we have seen, Hughes claims on appeal that the trial court should not have entered a judgment convicting him of the charge as framed by the information — namely, possession of cocaine with intent to deliver within 1,000 feet of a school. He contends that the verdict was "perverse and hopelessly ambiguous"; that by entering judgment on the verdict finding Hughes guilty of the possession-with-intent-to-deliver charge, the trial court "invaded the province of the jury," denied Hughes his constitutional right to a unanimous jury (despite the fact that when they were polled all of the jurors told the trial court that they agreed with each of the verdicts), and also endangered "the integrity of the jury trial process" by allegedly sanctioning the jury's disregard of the trial court's instructions. Hughes also asserts, in an alternative argument, that under "the rule of lenity" the trial court should have entered judgment on the lesser-included-charge of possession of cocaine. For the reasons we explain below, the trial court did not err.
[1]
¶ 7. Although the State argues that Hughes waived his right to complain about the two "guilty" verdicts in connection with the cocaine charge because he did not object either before the trial court discharged the jury or in post-conviction motions, we believe that it is consistent with judicial economy to address Hughes's claims to avoid later ineffective-assistance-of-counsel proceedings. See Wirth v. Ehly, 93 Wis. 2d 433, 443-444, 287 N.W.2d 140, 145-146 (1980)
().
¶ 8. Whether Hughes is entitled to either a new trial or entry of a judgment on the verdict form finding him guilty of simple possession of cocaine presents an issue of first impression in Wisconsin. The issue has arisen in other jurisdictions, however, and no court has held that a trial court violates a defendant's rights by entering a judgment of conviction on a verdict finding the defendant guilty on the greater charge when the jury also finds the defendant guilty of the lesser-included offense.
[2, 3]
¶ 9. We start with a common sense analysis of what the jury did. It is not possible for a person to possess cocaine with intent to deliver without also possessing that cocaine. Indeed, in the context of this case, that is the crux of what a lesser-included offense is: an "included crime" encompasses "[a] crime which does not require proof of any fact in addition to those which must be proved for the crime charged." WIS. STAT. § 939.66(1). See also State v. Dowe, 197 Wis. 2d 848, 851, 541 N.W.2d 218, 220 (Ct. App. 1995)
(), reversed on other grounds, 207 Wis. 2d 129, 557 N.W.2d 812 (1997). Thus, the jury's unanimous findings (confirmed when the trial court polled the jury) that Hughes possessed cocaine with the intent to deliver it, and that he also possessed that cocaine were not inconsistent. Additionally, Hughes does not explain beyond mere rhetoric how the jury's unanimous findings that Hughes both possessed cocaine and that he possessed that cocaine with intent to deliver it was either "perverse" or "ambiguous," or violated any of his rights — constitutional or otherwise. See State v. Schlise, 86 Wis. 2d 26, 29, 271 N.W.2d 619, 620 (1978) (). Indeed, had the jury followed the trial court's instructions, the jury would have stopped after it unanimously found that Hughes possessed cocaine with intent to deliver within 1,000 feet of a school. Thus, the second "guilty" verdict, which affirmed that Hughes possessed that cocaine, was mere surplusage and is precisely the type of harmless error that WIS. STAT. RULE 805.18(2) commands shall not be the basis for a reversal:
No judgment shall be reversed or set aside or new trial granted in any action or proceeding on the ground of . . . misdirection of the jury . . . or for error as to any matter of . . . procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.
RULE 805.18(2) applies to criminal cases as well as civil ca...
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