State v. Marcum

• Decision Date: 08 October 1991
• Docket Number: No. 91-0592-CR,91-0592-CR
• Citation: 166 Wis.2d 908,480 N.W.2d 545
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Harrison M. MARCUM, Defendant-Appellant. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 545

480 N.W.2d 545

166 Wis.2d 908

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Harrison M. MARCUM, Defendant-Appellant.

No. 91-0592-CR.

Court of Appeals of Wisconsin.

Oral Argument Oct. 8, 1991.

Opinion Released Jan. 22, 1992.

Opinion Filed Jan. 22, 1992.

On behalf of the defendant-appellant, there were briefs and oral argument by Marla J. Stephens, Asst. State Public Defender.

On behalf of the plaintiff-respondent, there were briefs by James E. Doyle, Atty. Gen., and Jerome S. Schmidt, Asst. Atty. Gen. There was oral argument by Jerome S. Schmidt, Asst. Atty. Gen.

Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.

BROWN, Judge.

Harrison M. Marcum appeals two convictions of sexually assaulting his stepdaughter, C.O. We reverse one of the convictions because the verdict was so unspecific as to violate Marcum's sixth amendment right to a unanimous verdict and his fifth amendment due process right to verdict specificity. We do this on ineffective assistance of counsel grounds for failure to object to the final verdict forms. We affirm the other conviction.

The facts relating to the reversal will be stated first. The complaint charged Marcum with two counts, alleging one event in August 1989 and one in September 1989. Even so, the complaint alleged that Marcum committed hand-to-vagina, hand-to-breast, and penis-to-vagina contact twice in August and twice in September. The complaint also stated that sometimes there was penis-to-mouth contact.

At the preliminary hearing, C.O. related two September incidents. On the first occasion, there was hand- to-vagina contact; on the second, there was both penis-to-vagina and penis-to-mouth contact. The subsequent information charged Marcum with six counts. Counts four, five, and six related to the September incidents. The three September counts obviously tracked C.O.'s preliminary hearing testimony alleging three different forms of sexual contact having taken place during the two September occasions.

Identical wording was used in each of the six counts, except for the month and year. Counts four, five, and six were worded in the following manner:

[The defendant did] in September 1989 feloniously have sexual contact with a person who has not attained the age of 13 years, to wit, C.O. a juvenile female whose date of birth is 2/4/79; said conduct by the defendant being contrary to Section 948.02(1), Wisconsin Statutes.

The trial testimony was not altogether consistent with the preliminary hearing testimony. There was confusion, for instance, about how many occurrences took place in September. The September incidents were sometimes described as occurring on two days and at other times as occurring on three days. Occasionally, there was also an inference that the September incidents occurred on one day, since they were described simply as the "last time" sexual contact occurred.

As another illustration, there was also confusion about what acts took place and on which occasion. In the opening statement to the jury, the prosecutor described the sexual contact in September as taking place on one afternoon. This was referred to as the "last time" and was described as the time in which hand-to-vagina, hand-to-breast and penis-to-vagina contact occurred.

However, when C.O. testified about the "last time," she said that there was only hand-to-vagina contact over her clothes. The prosecutor then began to read from the preliminary hearing testimony. The defense attorney objected and the court ruled that, rather than a narrative, the prosecutor must ask C.O. "each series of questions."

The prosecutor then asked C.O. whether Marcum made her touch his penis with her hand or mouth in September. C.O. said that he did. However, C.O. again said that during the "last time," only hand-to-vagina contact over her clothes occurred.

The prosecutor then introduced C.O.'s original signed statement through the testimony of a detective. The statement was basically similar to what was alleged in the complaint--mainly, that three acts occurred during the "last time" in September: hand-to-vagina, hand-to-breast, and penis-to-vagina contact. The statement went on to allege that this occurred two times in August and two times in September. It also alleged, without specifying a date, that penis-to-hand and mouth contact also took place.

Tracking C.O.'s statement, the prosecutor's closing argument described hand-to-vagina, hand-to-breast, and penis-to-vagina contact as having occurred during the "last time." The prosecutor told the jury that "two counts arise out of that." The prosecutor then described hand-to-vagina contact and, curiously, penis-to-mouth contact.

At the instructions conference, Marcum's attorney stated that the proposed identical verdicts needed specification as to the time frame. He expressed concern that "the jury will not know what or recall what count 1, 2, 3, 4, 5, 6 is in their deliberations." The court agreed to change the wording of the verdicts to include the language about the dates for each count "as set forth in the information." Marcum's attorney accepted the change. The verdict forms for counts four, five, and six were identically worded as follows:

We the jury find the defendant, Harrison M. Marcum, [guilty/not guilty] of having sexual contact with [C.O.], a juvenile female whose date of birth is 2/4/79, in September of 1989, as set forth in Count [Four/Five/Six] of the information.

The jury returned a guilty verdict on count six and not guilty on counts four and five. ¹ A postconviction motion alleging unanimity problems was denied by the trial court on the ground that the three counts in September involved "conceptually similar acts."

Marcum's appeal rests on claimed errors in the jury instructions and verdict. We cannot review whether the trial court erred in giving instructions and verdict forms, however, because Marcum did not raise an adequate objection. Concerning the instructions, Marcum's attorney explicitly stated that he agreed with the proposed substantive jury instructions. One of these instructions was the standard jury instruction on unanimity. Concerning the proposed verdicts, it is true that Marcum's attorney initially expressed concern that the verdicts were not specific as to date or time frame. Yet, after the trial court inserted the month and year into each count, Marcum's attorney did not seek to distinguish the identical counts. He never phrased his objection in terms of a failure of the verdict forms to specify what particular act went with what verdict.

In State v. Schumacher, 144 Wis.2d 388, 409, 424 N.W.2d 672, 680 (1988), our supreme court ruled that the court of appeals is prohibited from reviewing instructions and verdict forms absent a timely objection by the defendant. Because there was no timely objection, we will not review the instructions or the verdict forms in the context of whether the trial court erred. ²

The Schumacher court, however, also held that the instructions and verdict forms may be revisited under claims of ineffective assistance of counsel or if the claimed error is reviewable under sec. 752.35, Stats., as a miscarriage of justice or as a failure to try the real controversy. Schumacher, 144 Wis.2d at 408 and n. 14, 424 N.W.2d at 680. Marcum argues both ineffective assistance of counsel and a right of review under sec. 752.35. We will discuss only the ineffective assistance of counsel argument.

The two-pronged test for ineffective assistance of counsel is deficient performance of counsel and prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Pitsch, 124 Wis.2d 628, 633, 369 N.W.2d 711, 714 (1985). The test for the performance prong is whether counsel's assistance was reasonable under the facts of the particular case, viewed as of the time of counsel's conduct. Pitsch at 636-37, 369 N.W.2d at 716. In making that determination, we must keep in mind that counsel's function is to make the adversarial testing process work in the particular case. Id.

The test for the prejudice prong is whether counsel's errors deprived the defendant of a fair trial, a trial whose result is reliable. Id. at 640-41, 369 N.W.2d at 718. Contrary to the state's assertion, this is not an outcome determinative standard. Id. at 642, 369 N.W.2d at 718. The ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id. at 642, 369 N.W.2d at 719. Our concern must be whether there was a breakdown in the adversarial process that our system counts on to produce just results. Id. Even where the evidence is sufficient to sustain the conviction, when a defendant's constitutional rights are violated because of counsel's deficient performance, the adversarial process breaks down and our confidence in the outcome is undermined. Id. at 645-46, 369 N.W.2d at 720.

We turn to the initial question of whether counsel's performance was deficient. Marcum first asserts that counsel failed to object to the standard instruction on unanimity given in this case.

The trial court gave the jury the following standard instruction on unanimity:

This is a criminal, not a civil case. Therefore, before the jury may return a verdict which may be legally received, such verdict must be received [sic] unanimously. In a criminal case all 12 jurors must agree in order to arrive at a verdict.

See Wis. J I--Criminal 515. There was no request for a different instruction on unanimity. Nor is there any other standard jury instruction which would have been applicable to this case. ³

We acknowledge that any unanimity problem could have been avoided by an instruction telling the jurors that they must be unanimous about the specific act that formed the basis for each count. See State v. Gustafson, 112 Wis.2d 369, 379, 332 N.W.2d 848, 852-53 (Ct.App.1983). And, if the conduct involves separate transactions and separate crimes, the...