State v. Peete
| Decision Date | 22 June 1994 |
| Docket Number | No. 92-0270-CR,92-0270-CR |
| Citation | 185 Wis.2d 4,517 N.W.2d 149 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jerry L. PEETE, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the plaintiff-respondent the cause was argued by Paul Lundsten, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.
This is a review of an unpublished per curiam decision of the court of appeals affirming a judgment of the Milwaukee County circuit court, Judge William D. Gardner, 504 N.W.2d 873. The judgment convicted Jerry L. Peete, pursuant to a jury verdict, of possession of cocaine with intent to deliver while armed, under secs. 161.16(2)(b)1, Stats., 161.41(1m)(c)2, Stats., and 939.63(1)(a)3, Stats. We accepted review limited to three issues. The first issue we address on review is whether sec. 939.63, Stats., 1 which establishes an enhanced penalty for a person who commits a crime while "possessing" a dangerous weapon, penalizes both actual and constructive possession. We conclude that it does. When interpreting Wisconsin criminal statutes, this court has consistently concluded that the term "possession" includes both actual and constructive possession. Furthermore, the criminal jury instruction on "possession" provides instruction on both actual and constructive possession. This instruction is used for possessory offenses throughout the criminal code.
The second issue we address on review is whether the language in sec. 939.63, "while possessing," requires the state to prove the existence of a nexus between the crime and the weapon. We conclude the state must prove that the defendant possessed the weapon to facilitate commission of the predicate offense.
Because we conclude that the state must prove the nexus set forth above, we are obliged to reverse the decision of the court of appeals. The jury found Peete guilty of possession of cocaine with intent to deliver. That verdict stands. The jury made a separate finding that Peete committed the crime while possessing a dangerous weapon. Because the circuit court did not instruct the jury on the nexus requirement, the jury did not find beyond a reasonable doubt the existence of each element of sec. 939.63 necessary to convict a person for committing the predicate offense "while possessing ... a dangerous weapon." Therefore, that verdict cannot stand. We remand the cause to the circuit court to enter a judgment of conviction solely on the offense of possession of cocaine with intent to deliver. We also direct the circuit court to conduct a new trial solely on the issue of whether Peete is guilty of engaging in the conduct prohibited by sec. 939.63--committing the predicate crime while possessing a dangerous weapon. 2
On November 7, 1990, Milwaukee police officers executed a search warrant for a residence located at 2440 West State Street. Tina Randolph, her three children, Jerry L. Peete and John Northern were in the residence while the search was being conducted. Randolph and her children lived at this residence. Peete, Randolph's boyfriend, stayed with Randolph two to three nights per week.
While searching Randolph's bedroom, the police found plastic bags containing 152 bindles 3 of cocaine stuffed into socks in a dresser drawer. Later, the police determined that the cocaine weighed a total of 13.369 grams. A police detective testified that the cocaine has a street value of $10 per bindle--$1,520 total.
The police also found socks stuffed with cash totaling $2,230 in the same drawer that contained the drugs. A beeper that Peete claimed he owned lay on top of the dresser. A notebook on top of the dresser contained paper that appeared to match the paper bindles. The police also found some of Peete's personal property and papers in the bedroom. Articles of men's clothing hung in the bedroom closet. The clothing appeared to belong to Peete because the pockets contained Peete's driver's license and other papers such as his vehicle registration, social security card, letters and receipts.
During the search, the police also found four loaded handguns. One gun was stuffed between the mattresses in Randolph's bedroom. A cereal box in the kitchen pantry contained the three remaining guns. Police found ammunition for three of the guns in boxes under Randolph's bed. The police also found a triple beam scale in the kitchen pantry. At trial, a detective testified that this type of scale, which can weigh extremely small amounts, is commonly used for weighing drugs.
The police arrested Peete on the scene. During the search incident to arrest, the police discovered that Peete had a key to Randolph's apartment.
Peete was charged with possession of cocaine with intent to deliver while possessing a dangerous weapon, under secs. 161.16(2)(b)1, Stats., 161.41(1m)(c)2, Stats., and 939.63, Stats. The case was tried to a jury, but the court declared a mistrial because the jury could not reach a verdict. The parties then tried the case a second time.
At the end of the second trial, the court instructed the jury on the elements of the offense of possessing cocaine with intent to deliver. The court gave the following instruction on possession, in conformity with Wisconsin criminal jury instruction 920:
Possessed means that the defendant knowingly had a substance under his actual physical control. Now, an item is also in a person's possession if it's in an area over which the person has control and the person intends to exercise control over the item.
It is not required that a person own an item, in other words, to possess it. What is required is that the person exercise control over the item.
Possession may be shared with another person. If a person exercises control over an item that item is in his possession, even though another person may also have similar control.
The court then instructed the jury on the lesser included offense of possessing cocaine. Thereafter, the court instructed the jury on the sec. 939.63 penalty enhancer, committing a crime while possessing a dangerous weapon, stating:
The information alleges not only that the defendant committed the crime of possession of cocaine with intent to deliver, but also that he did he [sic] so while possessing a dangerous weapon. If you find defendant guilty, you must answer the following question: Did the defendant commit the crime of possession of cocaine with intent to deliver while possessing a dangerous weapon. Before you may answer this question yes, you must be satisfied beyond a reasonable doubt that the defendant committed the crime while possessing a dangerous weapon.
The court provided further instruction on what constitutes a "dangerous weapon."
After deliberating, the jury returned its verdict. The jury found Peete guilty of possession of cocaine with intent to deliver. The jury answered "yes" to the separate question, on the verdict form, of whether Peete committed the offense while possessing a dangerous weapon. The jury also answered "yes" to the question of whether Peete possessed more than ten grams of cocaine.
For the offense of possession of more than ten but not more than twenty-five grams of cocaine, sec. 161.41(1m)(2)2 sets a maximum sentence of five years imprisonment. The penalty enhancer in sec. 939.63 allows the court to increase the sentence up to an additional four years. The circuit court sentenced Peete to seven years imprisonment.
The court of appeals affirmed the judgment of conviction. Peete made the following arguments: sec. 939.63, Stats., requires actual, not constructive possession; even if "possessing" under sec. 939.63 includes constructive possession, the jury instruction for the penalty enhancer required the state to prove actual possession; and the evidence was insufficient to prove that Peete had constructive possession of the weapons. The court of appeals interpreted these arguments as objections to the jury instruction on the penalty enhancer. The court of appeals concluded that Peete had waived the right to appeal any error in these instructions because he had not objected to the instructions at trial.
On review before this court, Peete asserts that the court of appeals misinterpreted his arguments. The state agrees. Peete does not claim that the court's instructions to the jury on sec. 939.63 were in error. Peete raises an issue of statutory construction, an issue of what the jury was required to find under the instruction as given, and an issue of sufficiency of the evidence. Peete has not waived the right to raise the issues on review before this court.
The statute at issue in this case, sec. 939.63(1)(a), Stats. 1989-90 provides:
If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased as follows: [the statute proceeds to set increased penalties which vary according to the penalty for the predicate offense].
The first issue we address on review is whether the term "possession" in sec. 939.63, Stats., encompasses both actual and constructive possession. Statutory construction is a question of law that this court reviews de novo. State v. Eichman, 155 Wis.2d 552, 560, 456 N.W.2d 143 (1990). The principal objective of statutory construction is to ascertain the legislature's intent. Id.
Section 939.63 sets forth a possessory offense linked to a predicate offense. If a defendant commits a crime while possessing a dangerous weapon, the defendant's sentence may be increased by varying amounts of time, depending on the maximum sentence for the predicate offense. See sec. 939.63(1)(a) 1-4. In cases interpreting criminal statutes governing possessory offenses, this court has consistently concluded that the term "possession" includes both actual and constructive possession. In State v. Dodd, 28 Wis.2d 643, 137 N.W.2d 465 (1965), the court interpreted the former sec....
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