PUBLISHED OPINION
Case No.: 96-0265-CR
†Petition for
Review filed.
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Respondent,
v.
DAVID L. REYNOLDS,
Defendant-Appellant.†
Submitted
on Briefs: September 6, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: November 7, 1996
Opinion
Filed: November
7, 1996
Source
of APPEAL Appeal from a judgment and an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Columbia
(If
"Special" JUDGE: Daniel
S. George
so
indicate)
JUDGES: Eich,
C.J., Dykman, P.J., and Deininger, J.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the briefs of Katherine R. Kruse of Legal
Assistance to Institutionalized Persons Project of Madison.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of James E. Doyle, attorney general,
with Marguerite M. Moeller, assistant attorney general.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED November
7, 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. 96-0265-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID
L. REYNOLDS,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Columbia County: DANIEL S. GEORGE, Judge. Affirmed.
Before
Eich, C.J., Dykman, P.J., and Deininger, J.
EICH,
C.J. David L. Reynolds appeals from a
judgment convicting him of burglary/battery and intermediate battery and from
an order denying his motion for postconviction relief. He argues that he was denied effective assistance
of counsel because his attorney failed to raise a double-jeopardy objection to
the charges, which he contends are multiplicitous. We disagree and affirm the judgment and order.
Reynolds
and several acquaintances broke into an eighty-six-year-old woman's home
looking for food and money. During the
course of the burglary, the victim was struck repeatedly in the head with a
frying pan. One witness testified that
Reynolds was responsible for the beating.[1] Reynolds was charged with several offenses
as a result of the incident and, as indicated, the jury found him guilty of
burglary/battery and intermediate battery.[2] In his motion for postconviction relief,
Reynolds argued that his trial counsel's failure to raise the double-jeopardy
defense denied him effective assistance of counsel and prejudiced his appeal
because even an unsuccessful motion would have preserved the issue for review. After an evidentiary hearing, the trial
court denied the motion, and Reynolds appeals.
For
a defendant to prevail on a claim of ineffective assistance of counsel, he or
she must establish that counsel's actions constituted deficient performance and
that the deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Representation is not constitutionally
ineffective unless both elements of the test are satisfied. State v. Guck, 170 Wis.2d 661,
669, 490 N.W.2d 34, 37 (Ct. App. 1992), aff'd, 176 Wis.2d 485, 500
N.W.2d 910 (1993). The defendant must
show that his or her counsel "`made errors so serious that counsel was not
functioning as the "counsel" guaranteed ... by the Sixth Amendment.'" State v. Johnson, 153 Wis.2d
121, 127, 449 N.W.2d 845, 847 (1990) (quoted source omitted). Review of counsel's performance gives great
deference to the attorney, and every effort is made to avoid determinations of
ineffectiveness based on hindsight.
"Rather, the case is reviewed from counsel's perspective at the
time of trial, and the burden is ... on the defendant to overcome a strong
presumption that counsel acted reasonably within professional norms." Id. at 127, 449 N.W.2d at
847-48.
We
consider first whether Reynolds's assertion of a double-jeopardy violation has
merit.
Multiple
convictions for the same offense violate the double-jeopardy protections of the
state and federal constitutions. State
v. Sauceda, 168 Wis.2d 486, 492, 485 N.W.2d 1, 3 (1992). Whether a violation exists in a given case
is a question of constitutional law which we review de novo. Id.
We
employ a two-step test to analyze claims of multiplicity. We first apply the "elements only"
test of Blockburger v. United States, 284 U.S. 299 (1932), to
determine whether each charged offense requires proof of an additional element
or fact which the other does not. State
v. Johnson, 178 Wis.2d 42, 48-49, 503 N.W.2d 575, 576 (Ct. App.
1993). The analysis focuses entirely on
the statutes defining the offenses and has been codified in § 939.66(1), Stats., which provides that a defendant
"may be convicted of either the crime charged or an included crime, but
not both," and defines "included crime" as one "which does
not require proof of any fact in addition to those which must be proved for the
crime charged." Id.
at 49, 503 N.W.2d at 576. Thus, under
the Blockburger test:
[A]n offense is a "lesser included" one only
if all of its statutory elements can be demonstrated without proof of any fact
or element in addition to those which must be proved for the
"greater" offense ... [and an] offense is not a lesser-included one
if it contains an additional statutory element.
Johnson, 178 Wis.2d at 49, 503 N.W.2d at 576 (quoted source omitted).
If
the Blockburger test is met—if each offense requires proof of an
element the other does not—a presumption arises that the legislature intended
to permit cumulative punishments unless other factors indicate otherwise. State v. Selmon, 175 Wis.2d
155, 161, 498 N.W.2d 876, 878 (Ct. App. 1993).
"The question then becomes whether there are `other factors which
evidence a contrary legislative intent.'"
Johnson, 178 Wis.2d at 49, 503 N.W.2d at 576 (quoted
source omitted).
The Blockburger analysis begins
with the applicable statutes. Reynolds
argues that because the phrase "a battery" in § 943.10(2)(d), Stats., may be said to refer to any of
the types of battery listed in § 940.19, Stats.,
intermediate battery under § 940.19(3) must necessarily be a lesser-included
offense of burglary/battery under § 943.10(1)(a) and (2)(d). As a result, he maintains that conviction of
both contravenes Blockburger as well as § 939.66, Stats.
We
reject the argument. The language of §
943.10(2)(d), Stats., is
ambiguous in that it is capable of being understood by reasonably well-informed
persons in either of two senses—the phrase "a battery" could be
considered to mean either a simple battery or any of the batteries defined in
the statute. See Robinson
v. Kunach, 76 Wis.2d 436, 444, 251 N.W.2d 449, 452 (1977). As a result, we may construe it in light of
its history, context, subject matter and scope. Kluth v. General Cas. Co., 178 Wis.2d 808, 815, 505
N.W.2d 442, 445 (Ct. App. 1993).
Section
943.10(2)(d), Stats., had its
origin in § 343.11(3), Stats.,
1953, entitled "aggravated burglary," which, although phrased
somewhat differently, penalized the same conduct as the present statute. A Legislative Council comment to § 343.11(3)
stated that the battery which formed the antecedent offense to "aggravated
burglary" was "[b]attery [as] defined in section 340.20"—the
language of which is essentially identical to today's "simple
battery" statute.[3] 5
Wisconsin Legislative Council, Judiciary Committee Report to the Criminal Code
104 (1953). Our review of this history
satisfies us that the legislature intended the term "a battery" in §
943.10(2)(d) to refer solely to simple battery under § 940.19(1), and that it
may not be read to refer or apply to other forms of battery created by later
legislatures.
Moving
to the Blockburger "additional fact" test, we note
first the elements of simple battery.
They are (1) causing bodily harm to another (2) by an act done with
intent to cause bodily harm to that person or another (3) and without the
consent of the injured party and (4) with the defendant's knowledge of the lack
of consent. Wis J I—Criminal 1220 (1994). Intermediate battery, on the other hand, has the following
elements: (1) causing bodily harm to another (2) by an act done with intent to
cause such harm and (3) which act creates a high probability of great bodily
harm and (4) the defendant has knowledge of such probability. See Wis
J I—Criminal 1226 (1994).[4] The jury in this case was so instructed.
Reynolds
concedes that Blockburger permits multiple convictions for simple
battery and intermediate battery. He
acknowledges that each offense requires proof of a fact that the other does
not: simple battery requires proof of nonconsent, which is not an element of
intermediate battery, and intermediate battery requires proof of conduct that
creates a high probability of great bodily harm, which is not an element of
simple battery. See State
v. Richards, 123 Wis.2d 1, 365 N.W.2d 7 (1985).[5] We agree with him that if the predicate
offense for the burglary/ battery charge was intermediate battery and he was
charged with intermediate battery, the charges would fail Blockburger. But, as we noted above, that did not occur
here. The Blockburger
test was met, triggering the presumption that the legislature intended to allow
cumulative punishments for the same offenses.
Reynolds
argues that, even so, other factors indicate that the legislature did not
intend to permit cumulative punishments under the two statutes. First, he points to § 939.66(2m), Stats., which provides that a
"less serious" form of battery is an included offense of a more
serious battery, and he maintains that even though conviction for simple and
intermediate battery is permissible under Blockburger, the
statute establishes that the legislature did not intend to allow cumulative
punishments.
The
crimes charged here are not differing degrees of battery. We have discussed the legislative history of
the burglary/battery statute. It
originated in the "property crimes" chapter of the statutes and
remains there today as a form of burglary.
The "battery" element of the offense is a penalty-enhancer,
increasing the possible penalty if the burglar "[w]hile in the burglarized
enclosure commits a battery on a person lawfully therein," just as other
aggravating circumstances—such as being armed, or attempting to use an
explosive, during the burglary—serve a similar penal purpose. Section 943.10(2), Stats. Battery, on
the other hand, is—and always has been—found in the "crimes against life
and bodily security" chapter.
Section 940.19, Stats. They are separate offenses, and we agree
with the State that there is nothing in § 939.66(2m), Stats., to suggest that it was intended
to affect the State's ability to convict a defendant of both burglary/battery
(with simple battery as its predicate) and intermediate battery.[6] Had the legislature so intended, it would
have been easy to say so in the statute, as it did with respect to several
other offenses.
Reynolds
also contends that the felony-murder statute—which he says has been interpreted
to preclude bringing charges for both the homicide and the predicate felony—is
directly analogous. Even if we were to
agree with the latter proposition, however, the cases Reynolds cites in support
of this argument involved crimes that were lesser-included offenses of the
murder charge,[7] in other
words, charges that would fail the Blockburger elements-only
test. And, as we have held above—and as
Reynolds concedes—the charges in this case pass that test.
Because
a double-jeopardy motion would have been denied under the facts and applicable
law, the failure to bring such a motion cannot be said to have been either
deficient performance or prejudicial, and Reynolds's appeal fails.
By
the Court.—Judgment and order affirmed.
[1] At trial and on
appeal, Reynolds maintains that James Helmer, who entered a plea agreement with
the State for his involvement in the burglary, battered the victim. Although Reynolds confessed to beating the
victim, he states he did so in response to threats from Helmer. This is not, however, an issue on
appeal.
[2] The jury acquitted Reynolds of a more serious
"aggravated" battery charge under § 940.19(2), Stats., 1991-92, and convicted him of
the lesser-included offense of "intermediate" battery under
§ 940.19(3). The words
"aggravated," "intermediate" and "simple" in
respect to types of battery are not statutory terms but "convenient
shorthand expressions of the statutory crimes." See State v. Richards, 123 Wis.2d 1, 2 n.2,
365 N.W.2d 7, 7 (1985). The battery
statute, § 940.19, Stats.,
1991-92, provides:
[Simple Battery] (1) Whoever causes bodily harm to another by an act done
with intent to cause bodily harm to that person or another without the consent
of the person so harmed is guilty of a Class A misdemeanor.
[Intermediate Battery] (1m) Whoever causes
great bodily harm to another by an act done with intent to cause bodily harm to
that person or another without the consent of the person so harmed is guilty of
a Class E felony.
[Aggravated Battery] (2) Whoever causes great bodily harm to another by an act
done with intent to cause great bodily harm to that person or another with or
without the consent of the person so harmed is guilty of a Class C felony.
[Intermediate Battery] (3) Whoever intentionally causes bodily harm to another by
conduct which creates a high probability of great bodily harm is guilty of a
Class E felony. A rebuttable
presumption of conduct creating a substantial risk of great bodily harm arises:
(a) If the person harmed is 62 years of age or older ....
Subsection (1) is also referred to
as misdemeanor battery and subsections (1m), (2) and (3) as felony
battery. We refer to the subsections as
indicated above. Subsection (3), under
which Reynolds was convicted, was subsequently amended. See § 940.19(6), Stats.
Reynolds
was also charged with a third count of first-degree recklessly endangering
safety, and when the jury failed to return a verdict, the trial court declared
a mistrial as to that count and dismissed it.
[3] Section 340.20, Stats., 1953, defined the term as "[c]aus[ing] bodily
harm to another by an act done with intent to cause bodily harm to that person
or another without consent ...."
The definition of simple battery in § 940.19(1), Stats., 1993-94, is "caus[ing] bodily harm to another by
an act done with intent to cause bodily harm to that person or another without
the consent of the person so harmed ...."
[4] The 1994 version uses "substantial
risk" instead of "high probability." See Wis
J I—Criminal 1226 cmt. (1994).
[5] In
Richards, the supreme court held that both simple battery and
intermediate battery, as defined in § 940.19(1m), Stats., 1979-80, require proof of an element not required for
proof of aggravated battery—nonconsent of the victim—and that, as a result,
simple battery and intermediate battery are not lesser-included offenses of
aggravated battery. Richards,
123 Wis.2d at 5, 365 N.W.2d at 8-9. We
believe Richards still controls here because we are comparing the
elements of simple battery and the form of intermediate battery set forth in
subsection (3), and they have different elements, as we discussed above. See supra note 2.
[6] As Reynolds suggests, § 939.66(2m), Stats., was enacted in response to the Richards
decision, which held that simple battery and intermediate battery were not
lesser-included offenses of aggravated battery. See supra note 5.
The Richards court's concern was that the absence of any
lesser-included battery offense made the prosecutor's charging decision
particularly difficult and deprived the defendant of the option of pleading
guilty to a lesser degree of battery. Richards,
123 Wis.2d at 12, 365 N.W.2d at 12. We
agree with the State that such a concern is unrelated to Reynolds's claim that
the legislature intended to prevent multiple punishment for burglary/battery
and felony battery based on the same conduct.
The same
is true with the other concern expressed in Richards: the
incongruity of having attempted battery legislatively made a lesser-included
offense of aggravated battery while a completed—although less serious—form of
battery was not. Id. This, too, has nothing to do with the
propriety of punishing a defendant for both burglary/battery and intermediate
battery based on the same conduct.