State v. Silva

• Decision Date: 14 January 2020
• Docket Number: Appeal No. 2017AP2139-CR
• Citation: 2020 WI App 10,939 N.W.2d 875 (Table),390 Wis.2d 833
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Alejandro E. SILVA, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

390 Wis.2d 833

939 N.W.2d 875 (Table)

2020 WI App 10

STATE of Wisconsin, Plaintiff-Respondent,

v.Alejandro E. SILVA^† , Defendant-Appellant.

Appeal No. 2017AP2139-CR

Court of Appeals of Wisconsin.

DATED AND FILED January 14, 2020

PER CURIAM.

¶1Alejandro Silva appeals a judgment of conviction, entered upon a jury verdict, for first-degree intentional homicide and an order denying his postconviction motion, in which he sought a new trial based on an allegedly erroneous jury instruction and alleged juror misconduct.On appeal, Silva asserts that one of the jury instructions misstated the law regarding self-defense with respect to unintentional injuries to third parties, that the evidence was insufficient to convict him of the intentional homicide charge, and that the circuit court erroneously exercised its discretion by not ordering a retrial based on juror misconduct.Given these asserted errors, Silva also argues we should order a new trial in the interest of justice.We reject each of Silva’s arguments and affirm.

BACKGROUND

¶2 After a seven-day trial, a jury found Silva guilty of first-degree intentional homicide in the August 2013 shooting death of Kamewan Salzman outside of Benderz Bar in the Town of Oneida.The State’s theory of the case was that Silva had fired four shots at Kamewan from a distance of about fifty feet following a bar fight involving Kamewan and his brother, Benno Salzman.¹The bullet that struck Kamewan had ricocheted off the pavement before piercing his heart and killing him.

¶3 Benno testified that Silva and Silva’s friend, Benjamin Evans, had been kicked out of Benderz Bar because they were not of legal drinking age.Silva and Evans were later seen handling a firearm outside the bar.Around bar closing, there was a physical fight that began outdoors behind the bar between two small groups, one of which included Benno and Kamewan and the other of which included Silva and Evans.The fight eventually migrated into the street near Harley Bob’s, a bar and grill across the street from Benderz Bar.²By that point, there were many spectators watching the fight, some of whom attempted to intervene to stop it.

¶4 One of the witnesses to the incident, Rhys Pocan, testified that Silva ran toward Harley Bob’s, while Evans continued fighting.Benno pursued Silva and knocked him to the ground.Pocan’s husband, Charles Little Bull, intervened and pulled Benno off of Silva.Silva got to his feet and attempted to hit Benno but missed and fell, and Benno then kicked Silva in the face.³Silva then stood up and urged Pocan and Little Bull to leave, and Benno walked away.Thereafter, according to Little Bull, "[a]ll of the fighting started to calm down."Other witnesses confirmed that the fight appeared over and that Silva had started to walk away from the area of the fight toward Harley Bob’s.Benno and Kamewan had started to back away from the confrontation toward Benderz Bar.

¶5 Approximately five to ten seconds later, Little Bull heard gunshots.One witness recounted that when Silva was retreating, she saw Evans hand him a gun.Witnesses testified Silva racked the handgun slide to chamber a round, raised his right arm, and fired the weapon toward the group in front of Benderz Bar.At the time, no one appeared to be advancing or throwing objects toward Silva or Evans.Benno testified he saw Silva appear to aim the gun at Kamewan.Edward Skippergosh, who was watching the fight from the residence above Benderz Bar, saw Silva point the gun straight out from his body.⁴Pocan testified she saw sparks from bullets hitting the ground near her.Afterward, Silva was seen fleeing with the gun.He eventually returned to the scene and asked to be placed in a police car.As part of his subsequent discussions with police, Silva told them that he was not afraid of anyone.

¶6 Silva’s defense presentation included expert witness Edward Hueske, who testified regarding his conclusion that the bullet that killed Kamewan had ricocheted off the ground.One of Silva’s friends, Gerald Diamond, testified he saw Silva pull back the gun slide, point the gun at the ground in front of him toward the center of the road where the fight had occurred, and then fire the gun.

¶7 Silva also testified, explaining that he had asked Evans to bring the gun to Benderz Bar and to "take care of me if anything happens."Silva testified that Benno started the fight with him behind the bar.Silva wound up on the ground and attempted to run toward the front of Benderz Bar, where Kamewan and Benno pulled him back into the fight.After another few minutes of being hit, Silva attempted to run away across the street.He testified that he was followed by three or four people and was pushed down from behind while he was near the front of Harley Bob’s.

¶8 Silva testified that the fight eventually broke up and he retreated toward Harley Bob’s, where he saw Evans near the truck in which they had driven to the bar.Silva testified he planned to "grab his pistol from [Evans] and walk home."He stated he did not take the gun from Evans with the intent to use it, but he wanted to have it with him for protection.Silva conceded that the fight was over by the time he was handed the gun.

¶9 Silva further testified that after taking the gun from Evans, he saw approximately three people coming toward him, including Benno.Kamewan was not among these individuals; Silva did not know where Kamewan was at the time he fired the shots.Silva testified he"decided to fire warning shots at these people" when they were between twenty and twenty-five feet away.Silva chambered a round and fired four shots in the direction of the people coming toward him.Silva testified he fired at the ground about ten feet in front of him to "kind of ward them away from me."Silva stopped shooting when the gun jammed, and then he ran into the woods.He testified he did not intend to hurt anyone when he fired the shots, and he did not fire them at anyone in particular.

¶10 After the evidentiary portion of the trial, the circuit court conducted a jury instruction conference outside the jury’s presence.The parties agreed that, in addition to the first-degree intentional homicide instruction, the jury should be provided with jury instructions regarding the lesser-included offenses of second-degree intentional homicide and first-degree reckless homicide.The parties also agreed that the triggering mechanism for those lesser-included offenses was Silva’s self-defense claim.As a result, the parties agreed that the court should give WIS JI—CRIMINAL 1016(2015), which sets forth how the jury is to consider self-defense in the context of determining whether to convict a defendant of any of the lesser-included offenses.

¶11The circuit court then discussed two additional instructions it was considering to give relative to Silva’s self-defense claims.First, the court stated it had discovered a withdrawn instruction, WIS JI—CRIMINAL 821, which discussed the privilege of self-defense as to first-degree intentional homicide under circumstances where the force used by the defendant causes unintended harm to a third party.⁵The court stated it was attempting to gather further information as to why instruction 821 was withdrawn, and it also suggested that WIS JI—CRIMINAL 820 was appropriate.⁶Instruction 820 explains the privilege of self-defense as to reckless conduct that injures a third party.The instruction, as modified for use in this case, stated that the jury was to consider the law of self-defense in deciding whether Silva’s conduct as to Kamewan was criminally reckless conduct that showed utter disregard for human life.The instruction also advised the jury, however, that Silva "does not have a privilege of self-defense as to Kamewan Salzman if he was defending against actions of Benno Salzman."The 820 instruction was given to the jury over Silva’s objection.

¶12 After the closing arguments, two of the fourteen jurors were randomly selected as alternates, and the remaining twelve jurors began deliberations on Thursday, July 16, 2015.During deliberations, the jurors requested the circuit court to clarify whether "intent to kill" for purposes of first-degree intentional homicide related only to Kamewan or to other persons in the area.After the court provided further instruction consistent with WIS JI—CRIMINAL 1016, the jury concluded its deliberations on Thursday and returned a guilty verdict for first-degree intentional homicide.The jury was polled, and each juror confirmed that the verdict was unanimous.

¶13 The day after the trial concluded, defense counsel notified the circuit court that it had spoken with one of the alternate jurors, who had alleged there was juror misconduct during the trial.Based on defense counsel’s letter, the court ordered the alternate juror, Jane,⁷ to give in-camera testimony at two hearings.Jane testified that the foreperson and three other jurors had, primarily on the penultimate day of the trial, discussed whom they thought should serve as alternate jurors based upon their perception that Jane and others were sympathetic to Silva.⁸Jane testified that the foreperson was concerned about missing a trip to Washington, D.C., if deliberations were not concluded quickly, and two other jurors also had trips scheduled.

¶14 Additionally, Jane testified that on the final day of trial, before Silva had concluded his testimony, the foreperson told the other jurors, "[W]e can start deliberations now because we already know how this case is going to go," although the foreperson did not state how she planned to vote.Jane testified that she and some other jurors responded, "[L]et’s not talk about it."Jane acknowledged she did not have any interaction with any of the other jurors after she was selected as an alternate.Nonetheless, Jane testified that her opinion was that Silva should not have been convicted of first-degree intentional homicide and that "the jurors were in too much of a...