No.
94-1045-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN
Plaintiff-Respondent,
v. ERRATA
SHEET
GILBERT J. GROBSTICK,
Defendant-Appellant.
Marilyn L. Graves Clerk of Court of
Appeals 231 East, State
Capitol Madison, WI 53702 |
Peg Carlson Chief Staff
Attorney 119 Martin Luther
King Blvd. Madison, WI 53703 |
Court of Appeals
District I 633 W. Wisconsin
Ave., #1400 Milwaukee, WI 53203-1918 |
Court of Appeals
District II 2727 N. Grandview
Blvd. Waukesha, WI 53188-1672 |
Court of Appeals
District III 740 Third Street Wausau, WI 54403-5784 |
Court of Appeals
District IV 119 Martin Luther
King Blvd. Madison, WI 53703 |
Jennifer Krapf Administrative
Assistant 119 Martin Luther
King Blvd. Madison, WI 53703 |
Hon. Michael J.
Mulroy LaCrosse Co.
Courthouse 400 North Fourth
Street LaCrosse, WI 54601 |
James M. Freimuth Asst. Attorney
General |
Todd W. Bjerke Asst. District
Attorney LaCrosse County
Courthouse 400 North Fourth
Street LaCrosse, WI 54601 |
Katherine R. Kruse Attorney at Law 212 N. Bassett St. Madison, WI 53703 |
Ferrel A. Deml Trial Court Clerk Case No. 92-CF-1426 LaCrosse Co.
Courthouse 400 North Fourth
Street LaCrosse, WI 54601 |
PLEASE
TAKE NOTICE that the attached page 11 is to be substituted for page 11 in the
above-captioned opinion which was released on February 15, 1996.
Dated this 6th day of December, 2006.
We decline
to exercise our power of discretionary reversal under § 752.35, Stats.
For us to reverse under that statute on grounds that it is probable that
justice has miscarried, we must first find a substantial probability that a
second trial will produce a different result.
State v. Wyss, 124 Wis.2d 681, 736, 370 N.W.2d 745, 771 (1985);
Vollmer, 156 Wis.2d at 16, 456 N.W.2d at 804. We are far from satisfied that a second
trial will probably produce a different result.
For us to
reverse under § 752.35, Stats.,
on grounds that the real controversy was not tried, we need not find a
substantial probability of a different result at the second trial. Vollmer, 156 Wis.2d at 16, 456
N.W.2d at 804. Assuming that the trial
court erred by submitting the warrant as an alternative basis for his
conviction for felony escape, the unobjected-to-instructional error did not
prevent the real controversy from being tried.
The instruction also referred to disorderly conduct. Deputy Lubinski testified that he arrested Grobstick
for disorderly conduct before Grobstick fled from the police car. Disorderly conduct is a crime. It matters not that the State never charged
Grobstick with disorderly conduct.[1]
The
actor's innocence of the crime for which he is in custody is no defense to the
crime of escape. Wis J I--Criminal 1772 n.4 (quoting
Judiciary
[1] The State concedes that if we reach the question of instructional error and conclude that the State relied on the warrant as an alternative basis for Grobstick's pre-escape custody in presenting its case to the jury, then Grobstick would be entitled to vacation of his conviction of felony escape. This is a concession of law which does not bind an appellate court. State v. Gomaz, 141 Wis.2d 302, 307, 414 N.W.2d 626, 629 (1987). The fact is that Grobstick failed to object to the instruction, and as we have said, we lack the power even to review unobjected-to-instructional error, except for purposes of exercising our discretion under § 752.35, Stats.