COURT OF APPEALS DECISION DATED AND FILED August 21, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of
Plaintiff-Respondent, v. Steven Tydal Smith,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Vergeront, Lundsten and Bridge, JJ.
¶1 PER CURIAM. Steven Smith appeals a judgment convicting him of one count of second-degree recklessly endangering safety, one count of maintaining a drug trafficking place, one count of possession of cocaine with intent to deliver between 5 and 15 grams, and one count of possession of cocaine with intent to deliver between 15 and 40 grams. He also appeals an order denying his motion for postconviction relief. We affirm.
¶2 Smith contends that the circuit court compromised his right to a unanimous verdict and denied him due process by failing to instruct the jury that each of the four counts that he was charged with constituted a separate crime.
¶3 There is no dispute that the circuit court failed to read the proper jury instruction due to confusion that arose during the jury instruction conference with the attorneys. The following exchange took place:
THE COURT: All right. Now, as to the jury instructions, the Court has before it the following instructions: Instruction 100, the opening instructions.
Any objection to that?
DEFENSE COUNSEL: No.
THE COURT: All right. I am going to mention these instructions, and once I hear–unless I hear an objection, I’ll continue ….; 482, verdict submitted for one defendant, four counts, separate verdict; 484, verdict submitted for one defendant, four counts, separate verdict on each count.
PROSECUTOR: That may be a duplicate, Judge.
THE COURT: That is a duplicate. All right. Then the verdict forms—there’s eight different forms—one for guilty and not guilty for each count. However, there has to be a second question on the amount of the drugs in each count. So you’ll provide that after lunch?
PROSECUTOR: Yes, I will, Judge.
THE COURT: All right. Are there any objections to any of those instructions?
DEFENSE COUNSEL: No.
PROSECUTOR: No.
Contrary to what the circuit
court believed, however, Wis JI—Criminal
482 is not a duplicate of Wis
JI—Criminal 484. The former is
entitled “Verdicts Submitted for One Defendant: Single Count: Included
Offense.” The latter is entitled
“Verdicts Submitted for One Defendant: Two Counts: Separate Verdict on Each
Count Required.” Because the circuit
court thought the two jury instructions were duplicative, the circuit court inadvertently
failed to give
¶4 As a preliminary matter we address the State’s argument that
Smith has waived his right to raise this error because his attorney did not
object when the jury instructions were given.
“Failure to object at the [jury instruction] conference constitutes a
waiver of any error in the proposed instructions or verdict.” See Wis. Stat. § 805.13(3) (2005-06).[1]
Although we may choose to review waived
issues in some circumstances, see State v. Gaulke, 177
¶5 In this case, however, the circuit court stated at the instruction conference that it intended to give the “separate verdict” jury instruction, although it mistakenly referred to Wis JI—Criminal 482, which the court wrongly believed to be a duplicate of Wis JI—Criminal 484. Because the court had said that it intended to give the separate verdict instruction, which Smith’s counsel had previously requested, Smith’s counsel had no reason to object. Although the court subsequently omitted the proposed separate verdict instruction while instructing the jury, Smith’s counsel’s failure to object at that point does not preclude appellate review because the statutes specifically state that “[f]ailure to object to a material variance or omission between the instructions given and the instructions proposed does not constitute a waiver of error.” Wis. Stat. § 805.13(4). Therefore, we reject the State’s argument that the error is waived.
¶6 The State argues in the alternative that any error is
harmless. “A constitutional or other
error is harmless if it is ‘clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error.’” State v.
¶7 Returning to the question of whether the error here was
harmless, we conclude that it was. The
State presented overwhelming evidence that Smith committed the four crimes by
introducing both incriminating physical evidence and the testimony of the four police
officers involved in the investigation and arrest of Smith: David Lopez, Jeffrey Sullivan, Rachel
Szedziewski, and Dereck Harris. In
addition, the court separately listed the charges for the jury and, after
reading each charge, told the jury: “To
this charge the defendant has entered a plea of not guilty, which means the
state must prove every element of the offense charged beyond a reasonable
doubt.” Based on the evidence presented
and the instructions that were given—even absent the separate verdict
instruction that should have been given—it is clear beyond a reasonable doubt
that the court’s failure to provide the separate verdict instruction did not
affect the jury’s verdict.
¶8 Smith also argues that we should reverse based on our discretionary authority under Wis. Stat. § 752.35 because the circuit court’s instructional error prevented the real controversy from being fully tried. Even though the jury was not reminded by the separate verdict jury instruction that it should consider each count separately, the circuit court presented each count separately when it instructed the jury and told them in each case: “To this charge the defendant has entered a plea of not guilty, which means the state must prove every element of the offense charged beyond a reasonable doubt.” Viewing the instructions provided the jury as a whole, we conclude that the real controversy was fully tried.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.