COURT OF APPEALS DECISION DATED AND RELEASED September 26, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3365-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHN LEE GRIFFIN,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Rock County: J. RICHARD LONG, Judge. Affirmed.
Before Dykman, P.J.,
Vergeront, J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. John Lee Griffin appeals from a judgment of conviction
and an order denying his postconviction motion. The dispositive issues are whether he waived objections to the
trial court's answers to jury questions during deliberation and whether his
sentence is excessive. We affirm.
Griffin was charged with
disorderly conduct and resisting, both as a habitual offender. The resisting charge arose from his conduct
following the events that were alleged to be disorderly conduct. The jury acquitted Griffin on the first
charge but convicted him of resisting.
During deliberation, the jury sent out a note with two questions. The trial court discussed its proposed
answers to those questions with counsel for both parties. Counsel stated they had no objections to the
answers, both before and after the court gave them to the jury. Griffin now argues that the court's answers
were improper.
We have previously held
that failure to object to the court's answers to jury questions waives the
issue. State v. Mann, 135
Wis.2d 420, 427, 400 N.W.2d 489, 492 (Ct. App. 1986). Griffin's argument in response to Mann appears to
proceed as follows. The circuit court's
answers to the jury's questions in Griffin's case prevented the possibility of
jury nullification and unfairly emphasized one element of the resisting charge. As a result, Griffin was essentially
deprived of his constitutional right to a jury trial. We may not conclude that he waived his right to a jury trial
because that right is one that cannot be waived by counsel, but only by the
defendant personally, and no such waiver is of record here.
Griffin does not cite
any case law adopting this novel theory.
We reject it. Even if we were to
accept that the court's answers to the jury questions were erroneous, this error
did not deprive Griffin of his right to a jury trial. He received a jury trial.
He did not complain then that the trial court's answers to the jury's
questions were erroneous. No personal
waiver was necessary.
Griffin also argues that
the court's sentence of three years in prison, the maximum available, violated
the Eighth Amendment's bar on cruel and unusual punishment. A sentence is excessive only when it is
"so excessive and unusual and so disproportionate to the offense committed
as to shock public sentiment and violate the judgment of reasonable people
concerning what is right and proper under the circumstances." State v. Thompson, 172 Wis.2d
257, 264, 493 N.W.2d 729, 732 (Ct. App. 1992).
Specifically, Griffin argues that the court failed to consider that
Griffin was acquitted on the disorderly conduct charge. He argues that it shocks one's conscience to
sentence him to three years for resisting arrest for an offense on which he was
acquitted. We disagree. One resists an arrest at his or her
peril. There is no inconsistency in
being found not guilty of disorderly conduct but guilty of resisting
arrest. The place to challenge
disorderly conduct is in the courts, not the streets. We also note that the court's sentence was not based solely on
this offense, but also on Griffin's lengthy record as a repeater.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.