State v. Trammell, 2017AP1206-CR

• Citation: 387 Wis.2d 156,928 N.W.2d 564,2019 WI 59
• Decision Date: 31 May 2019
• Docket Number: No. 2017AP1206-CR,2017AP1206-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Emmanuel Earl TRAMMELL, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

387 Wis.2d 156

928 N.W.2d 564

2019 WI 59

STATE of Wisconsin, Plaintiff-Respondent,

v.Emmanuel Earl TRAMMELL, Defendant-Appellant-Petitioner.

No. 2017AP1206-CR

Supreme Court of Wisconsin.

Oral Argument: March 26, 2019

Opinion Filed: May 31, 2019

For the defendant-appellant-petitioner, there were briefs filed by Urszula Tempska and Law Office of U. Tempska, Shorewood. There was an oral argument by Urszula Tempska.

For the plaintiff-respondent, there was a brief filed by Tiffany M. Winter, assistant attorney general, with whom on the brief is Joshua L. Kaul, attorney general. There was an oral argument by Tiffany M. Winter.

An amicus curiae brief was filed on behalf of Wisconsin Association of Criminal Defense Lawyers by Ellen Henak and Henak Law Office, S.C., Milwaukee.

An amicus curiae brief was filed on behalf of Wisconsin State Public Defender by Jefren E. Olsen, assistant state public defender, with whom on the brief was Kelli S. Thompson, state public defender.

ANNETTE KINGSLAND ZIEGLER, J.

¶1 This is a review of an unpublished, per curiam decision of the court of appeals, State v. Trammell, No. 2017AP1206-CR, unpublished slip op. (Wis. Ct. App. May 8, 2018), affirming a jury verdict convicting Emmanuel Earl Trammell ("Trammell") on one count of armed robbery and one count of operating a vehicle without the owner's consent, and affirming the Milwaukee County circuit court's order denying Trammell's motion for postconviction relief.¹ Though he failed to object at the jury instruction and verdict conference as required by Wis. Stat. § 805.13(3) (2015–16),² Trammell claims that Wis JI—Criminal 140 (2017)³ unconstitutionally reduced the State's burden of proof, and confused and misled the jury such that he should be entitled to a new trial. Lastly, Trammell alternatively claims that discretionary reversal is warranted under Wis. Stat. § 751.06.

¶2 We conclude that Trammell waived his right to object to the use of Wis JI—Criminal 140 by failing to object to its use at the jury instruction and verdict conference, pursuant to Wis. Stat. § 805.13(3). On that basis, the court of appeals properly denied Trammell's appeal and correctly concluded that it could not consider whether Wis JI—Criminal 140 misstates the law, confuses the jury, and reduces the State's burden. However, unlike the court of appeals, this court may nonetheless consider the instruction under its discretionary power of review. State v. Schumacher, 144 Wis. 2d 388, 409–10, 424 N.W.2d 672 (1988). We exercise that power here. The constitutional question with which we are presented is whether there is a reasonable likelihood that the jury understood the instructions to allow a conviction based upon insufficient proof. We conclude that Wis JI—Criminal 140 does not unconstitutionally reduce the State's burden of proof below the reasonable doubt standard. Lastly, we conclude that discretionary reversal under Wis. Stat. § 751.06 is not warranted. We therefore affirm the court of appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶3 Trammell was arrested on July 8, 2015, after stealing a car from a convenience store parking lot while armed. On July 10, 2015, the State charged Trammell with one count of armed robbery and one count of operating a motor vehicle without the owner's consent. Trammell entered a plea of not guilty.

¶4 Prior to trial, Trammell submitted a list of proposed jury instructions pursuant to the circuit court's scheduling order. Included in the list of proposed jury instructions was Wis JI—Criminal 140 titled, "Burden of Proof and the Presumption of Innocence."⁴

¶5 A two-day jury trial commenced on April 4, 2016. During testimony, the victim identified Trammell in court and testified that on July 8, 2015, the victim and his girlfriend drove to a convenience store in his mother's Buick Regal. The victim testified that he went into the store while his girlfriend waited in the Buick. He testified that while he was in the store, Trammell approached him and patted him down, telling the victim that he was looking for a gun. The victim stated that after not finding a gun, Trammell snatched money from the victim and asked him whose car he came in. The victim testified that he told Trammell the Buick belonged to his mother.

The victim tried to stop Trammell but Trammell brandished a gun, got in the driver's seat of the Buick, and drove away. The other two individuals with Trammell drove away in another car. The victim's girlfriend's testimony corroborated the victim's recollection of events.

¶6 The State also called Officer Steven Strasser of the Milwaukee Police Department ("Officer Strasser") to testify. Officer Strasser testified that he heard a dispatch that OnStar⁵ had located the Buick and that police were pursuing it. Officer Strasser stated that he joined the pursuit, and that the Buick was ultimately stopped when police requested OnStar to cut off the ignition in the vehicle. He testified that three individuals exited and were arrested. He stated that police identified the driver as Gabarie Silas ("Silas"), and that Trammell was nowhere to be found.¶7 The State also called Silas, who had entered into a plea agreement, to testify. Silas testified that on July 8, 2015, he rode to the convenience store in a Dodge Stratus with Trammell and another individual. Silas also corroborated the victim's testimony regarding what transpired at the convenience store. He stated that once the victim's girlfriend was out of the car, Trammell threw Silas the keys to the Dodge. Silas drove away in the Dodge as Trammell took the Buick. Silas testified that he and Trammell later switched cars. He further testified that he understood the incident involved a gun that Trammell provided to the victim but for which the victim never paid Trammell. Silas said that Trammell intended to return the car to the victim once Trammell and the victim settled the outstanding debt.

¶8 Officer Eric Draeger of the Milwaukee Police Department ("Officer Draeger") also testified for the State. Officer Draeger stated that he monitors all jail telephone calls, and that on January 6, 2016, he listened to a call Trammell made to a friend, during which Trammell asked her to offer false testimony at Trammell's trial.

¶9 Moreover, pursuant to a stipulation with Trammell's trial counsel, the State informed the jury that a forensic examiner identified two fingerprints lifted from the Buick as Trammell's left index finger and Silas's left middle finger. Trammell chose not to testify at trial.

¶10 At the close of evidence, the parties and the circuit court conducted a jury instruction and verdict conference as required by Wis. Stat. § 805.13(3). The circuit court indicated that it intended to give the standard burden-of-proof instruction, Wis JI—Criminal 140, which Trammell had specifically requested.

Trammell did not object to the instruction, nor did he request that the instruction be modified in any way. Prior to closing arguments, the circuit court instructed the jury on the burden of proof using Wis JI—Criminal 140.

¶11 The jury convicted Trammell of both armed robbery, party to a crime, and operating a motor vehicle without the owner's consent, party to a crime. On May 17, 2016, Trammell was sentenced to 12 years in prison and 8 years of extended supervision on count one. He was further sentenced to 15 months in prison and 15 months of extended supervision on count two, running concurrently with the sentence on count one.

¶12 On April 10, 2017, Trammell filed a motion for postconviction relief in the circuit court. Trammell claimed that Wis JI—Criminal 140 "misstated the law, confused the jurors, and caused Trammell to be convicted based on a burden of proof lower than the constitutionally-required ‘beyond reasonable doubt’ standard." In support of his position, Trammell cited two law review articles written by the same two authors—one which was released shortly after Trammell's conviction, and one which was, at the time, set to be released in 2017.⁶ Each law review article was based on separate but similar studies which the authors conducted. The authors opined that when jurors are instructed to "search for truth," significantly higher conviction rates result. Trammell acknowledged that "[t]he jury instructions given in this case were subject to a jury instructions conference and were given with both parties' agreement and no objections." While this would seemingly constitute waiver under Wis. Stat. § 805.13(3), Trammell nevertheless sought a new trial both in the interest of justice and due to plain error. The State argued that Trammell waived his right to object to the jury instruction by operation of § 805.13(3), and that the jury instruction did not mislead or confuse the jury or reduce the State's burden of proof.

¶13 On April 14, 2017, the circuit court issued a written order denying Trammell's motion for postconviction relief. The circuit court noted that Wis JI—Criminal 140 "was formulated and approved by Wisconsin's Jury Instruction Committee," and stated that "[a]lthough the studies performed by Cicchini and White make for interesting reading, the court is bound by the standard jury instruction implemented by the Jury Instruction Committee which has been accepted for years by Wisconsin's appellate courts." The circuit court therefore declined to grant Trammell a new trial due to any purported plain error and rejected Trammell's argument that Wis JI—Criminal 140 "prevented the true controversy from being fully tried."⁷

¶14 Trammell appealed. On May 8, 2018, the court of appeals issued a per curiam opinion affirming the circuit court. The court of appeals first concluded that Trammell waived his right to object to the jury instruction pursuant to Wis. Stat. § 805.13(3) by failing to object at the jury instruction and verdict conference, and that the court of appeals lacked authority to disregard waiver of a jury instruction objection. Trammell, No. 2017AP1206-CR, unpublished slip op., ¶¶11–13....