State v. Pettit

• Decision Date: 07 October 1992
• Docket Number: 91-2905-CR,Nos. 91-2825-C,s. 91-2825-C
• Citation: 492 N.W.2d 633,171 Wis.2d 627
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jason PETTIT, Defendant-Appellant. STATE of Wisconsin, Plaintiff-Respondent, v. Reese IWEN, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 633

492 N.W.2d 633

171 Wis.2d 627

STATE of Wisconsin, Plaintiff-Respondent, v. Jason PETTIT, Defendant-Appellant.

STATE of Wisconsin, Plaintiff-Respondent, v. Reese IWEN, Defendant-Appellant.

Nos. 91-2825-CR, 91-2905-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 29, 1992.

Opinion Released Oct. 7, 1992.

Opinion Filed Oct. 7, 1992.

On behalf of the defendant-appellant, Jason Pettit, the cause was submitted on the brief of Carol J. Lazzaro, Waukegan, Ill.

On behalf of the defendant-appellant, Reese Iwen, the cause was submitted on the brief of Patricia Flood, Asst. State Public Defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Maureen McGlynn Flanagan, Asst. Atty. Gen.

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

NETTESHEIM, Presiding Judge.

Jason Pettit and Reese Iwen (the defendants) appeal from judgments of conviction for armed burglary as parties to the crime, contrary to secs. 939.05 and 943.10(1)(a) and (2), Stats. They argue that a jury instruction not only misstated the law, but also denied them their constitutional right to due process by placing on them the burden of disproving the "intent to steal" element of the respective armed burglary charges. ¹ Because we conclude that the trial court's instruction neither misstated the law nor placed the burden of persuasion on Pettit or Iwen regarding the element of intent, we affirm the judgments of conviction for armed burglary.

Pettit also argues that the state's failure to disclose certain discovery materials deprived him of a fair trial. Because we conclude that the state's failure to disclose the materials did not prejudice Pettit, we disagree with his contention that he was deprived of a fair trial. We decline to address Pettit's additional issues because his brief fails to adequately address the issues and otherwise violates fundamental briefing rules of this court.

FACTS AND TRIAL EVENTS

The defendants' convictions arise from an occurrence on the evening of July 23, 1990. On that date, Pettit, Iwen and another friend, Shane Ingram, went to Larry Morrison's trailer home to recover money Pettit believed Morrison had stolen from him two days before. ² Pettit, Iwen and Ingram entered the trailer and accused Morrison of having stolen Pettit's money. Also present at the trailer home was Morrison's son, Travis. Though the parties presented substantially different versions of that confrontation during the trial, they agree that after Pettit and Morrison argued for several minutes, the two fought about Pettit's accusation that Morrison stole the money. The parties disagree, however, as to whether Pettit took a ten dollar bill and some change from Larry Morrison's pants pocket during the course of the confrontation, whether a handgun was displayed, and whether Iwen stole several compact discs (CD's) from Travis Morrison's bedroom located at the rear of the trailer.

The state charged the defendants as parties to the crimes of armed robbery and armed burglary with intent to steal. The defendants' principal defense at trial was that they lacked the requisite intent to steal as to both charges. Their defense stemmed from events of two days earlier, on the evening of July 21, 1990. On that day, while Pettit was at the home of his girlfriend, Lauren Bloom, someone stole approximately $840 belonging to Pettit from Bloom's purse. Though Pettit testified that he identified both Larry Morrison and Bloom's cousin, Sheila Musselman, as suspects when he reported the theft to the police, it was undisputed at trial that Pettit later believed that Morrison was responsible for the theft. Consequently, Pettit and Iwen claimed at trial that they went to Morrison's trailer only to retrieve the money Pettit believed Morrison had stolen, not to steal property belonging to either Larry or Travis Morrison. Pettit further denied that he took any money from Morrison during the confrontation.

At the jury instruction conference after the close of the evidence, the trial court stated that it intended to augment the "intent to steal" language of the standard armed robbery and armed burglary instructions. The proposed change was to reflect the defendants' "self-help" defense that they were simply trying to repossess the money that Pettit believed Morrison had stolen. The court's proposed instruction, similar in part to one submitted by the state, was based on the language and holding of Edwards v. State, 49 Wis.2d 105, 181 N.W.2d 383 (1970).

The defendants objected to the trial court's proposed instruction, arguing that it improperly placed on them the burden of disproving the intent to steal element of the respective charges. They argued that the intent to steal language of the standard armed robbery and armed burglary instructions sufficiently covered the applicable law. ³ The trial court overruled the defendants' objections and gave its augmented version of the standard instructions.

Before delivering the specific armed robbery and armed burglary instructions, the trial court recited the charges against the defendants and instructed the jury that "[t]o [these charges] each of the defendants has entered a plea of not guilty, which means the State must prove every element of the offense charged as to each defendant beyond a reasonable doubt." As to the armed burglary charge, the court also admonished the jury that "[b]efore the defendants may be found guilty of burglary, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following five elements were present." The court then gave the jury the standard armed burglary instructions, including the following language regarding the element of intent:

The fourth element of this offense requires that the defendant entered the building with intent to steal. That is that he had a mental purpose to take and carry away moveable property of another without consent and with intent to deprive the owner permanently of possession of such property.

This intent to steal must be formed before entry is made. The intent to steal, which is an essential element of burglary, is no more or less than the mental purpose to steal formed at any time before the entry, which continued to exist at the time of the entry.

You cannot look into a man's mind to find out his intent. While this intent to steal must be found as a fact before you can find the defendants guilty, it must be found, if found at all, from their acts and their words and statements, if any, bearing upon their intent.

See Wis J I--Criminal 1422 and 1480.

However, consistent with its earlier ruling, the court augmented the preceding "intent to steal" language with the following additional instruction addressing the defendants' "self-help" theory of defense:

Evidence has been received in this trial that one or more of the defendants believed he had a bona fide claim to money possessed by Larry Morrison. The use of self-help by force to enforce a bona fide claim for money does not necessarily negate an intent to steal. A person may have intent to steal when he takes money from another's possession against the possessor's consent even though he intends to apply the money to what he believes is a bona fide claim.

Unless an accused can trace his ownership to specific coins and bills in the possession of another, the other is the owner of the money in his pocket.

After giving the above instruction, the trial court again cautioned the jury that it must find the defendants not guilty unless satisfied beyond a reasonable doubt as to the existence of each element of the crimes.

The jury acquitted the defendants of armed robbery, but found them guilty of armed burglary. The defendants appeal.

SELF-HELP INSTRUCTION

We discern two clear issues from the defendants' appellate briefs on this subject: (1) that the "self-help" jury instructions under Edwards v. State, 49 Wis.2d 105, 181 N.W.2d 383 (1970), misstated the law by focusing on the defendants' intent to steal at the time of the alleged thefts--not at the time of the entry into Morrison's trailer; and (2) that the "self-help" instructions improperly shifted the burden of proof to the defendants, requiring them to disprove the intent to steal element.

What is less clear is whether the defendants are also challenging any instructional application of "self-help" law to a charge of armed burglary. Despite this uncertainty, we choose, nonetheless, to address this issue for two reasons: (1) at trial, the defendants objected to any departure from the standard instructions and, as we have noted, their briefs arguably renew this issue on appeal; and (2) a discussion of the defendants' other issues related to the instructions draws us into this threshold question in any event.

1. Application of "Self-help" to Armed Burglary ⁴

In Edwards, the supreme court addressed how a "self-help" effort to collect money by armed robbery affected the element of intent to steal. The court stated:

We think the intent to steal is present when one at gunpoint or by force secures specific money which does not belong to him in order to apply it by such self-help to a debt owed to him.... Unless the accused can trace his ownership to specific coins and bills in the possession of the debtor, the debtor is the owner of the money in his pocket and it is theft to take it from his possession with intention to permanently deprive him of its possession regardless of what other motive or intention the accused has.

The distinction between specific personal property and money in general is important. A debtor can owe another $150 but the $150 in the debtor's pocket is not the specific property of the creditor. One has the intention to steal when he takes money from another's possession against the possessor's consent even though he also intends to apply the stolen money to a debt.... A debt is a relationship and in respect to money...