State v. Jackson

• Decision Date: 27 April 2011
• Docket Number: No. 2010AP678–CR.,2010AP678–CR.
• Citation: 2011 WI App 63,333 Wis.2d 665,799 N.W.2d 461
• Parties: STATE of Wisconsin, Plaintiff–Respondent,v.Darron D. JACKSON, Defendant–Appellant.†
• Court: Wisconsin Court of Appeals

333 Wis.2d 665

799 N.W.2d 461

2011 WI App 63

STATE of Wisconsin, Plaintiff–Respondent,

v.Darron D. JACKSON, Defendant–Appellant.†

No. 2010AP678–CR.

Court of Appeals of Wisconsin.

Oral Argument Feb. 3, 2011.Opinion Filed April 27, 2011.

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

Darron Jackson appeals his conviction for recklessly endangering safety while armed, contrary to Wis. Stat. §§ 941.30(1) & 939.63 (2009–10).¹ He was fifteen years old when he was charged with attempted first-degree intentional homicide, contrary to Wis. Stat. §§ 940.01(1)(a) & 939.32, for firing a gun at another person. After the close of evidence, the State moved to include recklessly endangering safety while armed as a lesser included offense. Jackson's counsel objected on the basis that the evidence was insufficient for this lesser included. The trial court allowed it and he was convicted of the lesser offense. He now alleges several errors in that conviction, including that recklessly endangering safety while armed is not a lesser included offense of attempted first-degree intentional homicide. Even if that issue is waived for failing to object on this basis, he argues that his attorney was ineffective. We disagree—there was waiver and because trial counsel is not ineffective when the law is unsettled, as it is in this case, counsel was not ineffective here. Jackson also makes several other arguments, none of which persuade. We affirm.

¶ 2 On May 28, 2008, Jackson fired a gun at, and missed, Christopher Brown. Several people were present when the crime occurred, including Brown's stepfather, who identified Jackson as the shooter. Although Jackson was only fifteen when he was charged, the charges against him were serious enough to give the adult court original jurisdiction. See Wis. Stat. § 938.183(am). Jackson petitioned for reverse waiver into juvenile court. After his petition was denied, he was tried in adult court.

¶ 3 When the police interviewed Jackson, he initially denied he was at the scene of the shooting. Eventually, he admitted he was present, but he maintained his denial of being the shooter. Before trial, Jackson moved to suppress his statements to the police alleging that his statements were involuntary and without adequate waiver of his Miranda² rights. The motion was denied, and a video recording of the interrogation was played at trial.

At trial, the victim's stepfather identified Jackson as the shooter. Other witnesses, including the victim and his mother, were unable to do the same. The victim's brother, who had previously picked Jackson out in a line-up, testified that he did not know who had shot at Brown. He also testified that when he picked Jackson out of the line-up, it was in response to the police asking him to point out a person called “Big Bub.”

¶ 5 As we indicated at the outset, when both sides had rested, the State asked for a lesser included offense instruction for first-degree reckless endangerment of safety, with the penalty enhancer “while armed.” Jackson's counsel objected that the facts adduced at the trial did not fit the lesser included instruction. The objection was overruled, and the instruction was given. The jury convicted Jackson of recklessly endangering safety while armed. Because Jackson was convicted of the lesser offense rather than the offense that was originally charged, he moved the court for reverse waiver for a second time after trial. His motion was denied, and he was sentenced in adult court. He subsequently filed a postconviction motion, which was denied in its entirety, and we have this appeal.

¶ 6 Jackson's brief raises three issues in addition to the one we deem to be the major issue. Those are: that his statements to police were wrongfully admitted at trial; that during closing arguments, the prosecutor made several inappropriate comments which he claims prejudiced him; and that, if we are to allow the recklessly endangering safety conviction to stand, then since that crime would not have been grounds for waiver into adult court had it been originally charged, the burden placed on him at his post-trial reverse waiver hearing was unconstitutional. We will address these arguments after the lesser included offense discussion.

DISCUSSION

Lesser Included Offense

¶ 7 Jackson argues that the lesser included offense instruction was “reversible error” because recklessly endangering safety while armed is not a lesser included offense of attempted first-degree intentional homicide. If we are to find waiver, he alternatively argues that his trial counsel was ineffective for failing to object properly to the instruction.

¶ 8 We hold that there was waiver here. The objection made, that the evidence was insufficient to support the lesser included instruction, is an altogether different one than a claim that the elements of the proposed “lesser” charge are different than the main charge and, therefore, cannot be called a “lesser included” crime. Had the proper objection been made, the prosecutor may have disregarded the “while armed” portion of the request for the lesser included in order to be safe. Or, the trial court may not have allowed the lesser included. We do not, of course, know for sure what would have happened. But we rarely reverse a trial court for something that it was never allowed to decide and we will not do so here. See Wirth v. Ehly, 93 Wis.2d 433, 443–44, 287 N.W.2d 140 (1980), superseded by statute on other grounds.

¶ 9 Because we find waiver, for Jackson's lesser included offense issue to have any traction, it must come under the guise of ineffective assistance of counsel. See State v. Koller, 2001 WI App 253, ¶ 44, 248 Wis.2d 259, 635 N.W.2d 838. As such, Jackson must show that his trial counsel's performance was constitutionally deficient, and that as a result, he suffered actual prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whether counsel's performance was deficient and prejudicial is a question of law which we review de novo, though we will uphold the trial court's findings of fact unless they are clearly erroneous. State v. Johnson, 153 Wis.2d 121, 127–28, 449 N.W.2d 845 (1990). Deficient performance is judged by an objective test, not a subjective one. See State v. Kimbrough, 2001 WI App 138, ¶ 31, 246 Wis.2d 648, 630 N.W.2d 752. So, regardless of defense counsel's thought process, if counsel's conduct falls within what a reasonably competent defense attorney could have done, then it was not deficient performance. See id.

¶ 10 When the law is unsettled, the failure to raise an issue is objectively reasonable and therefore not deficient performance. See State v. Maloney, 2005 WI 74, ¶ 23, 281 Wis.2d 595, 698 N.W.2d 583. When case law can be reasonably analyzed in two different ways, then the law is not settled. State v. McMahon, 186 Wis.2d 68, 84, 519 N.W.2d 621 (Ct.App.1994). Here, the State submits that the law as to the elements of recklessly endangering safety while armed was unsettled, and therefore Jackson's trial counsel's performance was not deficient. We agree, but for different reasons than asserted by the State—as we shall soon discuss.

¶ 11 Wisconsin uses an “elements-only” test to determine if a crime is a lesser included offense of another. State v. Carrington, 134 Wis.2d 260, 264, 397 N.W.2d 484 (1986) ( Carrington II ). A lesser included offense may not include an additional element beyond those essential for conviction of the crime charged. Id. at 265, 397 N.W.2d 484. Unquestionably, in order to convict a person of attempted first-degree intentional homicide, the State need not show that the person was armed. However, the “while armed” component of the charge is actually a penalty enhancer under Wis. Stat. § 939.63, not part of the statutory definition of recklessly endangering safety. The parties dispute whether the “while armed” penalty enhancer is also unequivocally an element of recklessly endangering safety while armed.

¶ 12 Recklessly endangering safety is a lesser included offense of attempted first-degree intentional homicide. Hawthorne v. State, 99 Wis.2d 673, 681–82, 299 N.W.2d 866 (1981) (endangering safety by conduct regardless of life is a lesser included offense of attempted first-degree intentional homicide); State v. Weeks, 165 Wis.2d 200, 205–06 & n. 5, 477 N.W.2d 642 (Ct.App.1991) (the current offense of recklessly endangering safety is analogous to the older endangering safety by conduct regardless of life). However, the parties could point us to no case law definitively stating that the “while armed” penalty enhancer always constitutes an element for the purpose of determining whether something is a lesser included offense. In State v. Carrington, 130 Wis.2d 212, 221–22, 386 N.W.2d 512 (Ct.App.1986) ( Carrington I ), rev'd on other grounds by Carrington II, 134 Wis.2d at 262, 268–69, 397 N.W.2d 484, we did hold that “while armed” was not only a penalty enhancer, it was also an element of the offense for purposes of the elements only test.

¶ 13 It is Jackson's contention that counsel was ineffective for failing to heed the pronouncement in Carrington I and object to the lesser included on the basis of that case. Jackson acknowledges that Carrington I was reversed by the supreme court in Carrington II. See Carrington II, 134 Wis.2d at 262, 397 N.W.2d 484. But he points out that the reversal was on other grounds. See id. at 267–69, 397 N.W.2d 484. Moreover, he argues that the supreme court accepted the premise...