COURT OF APPEALS DECISION DATED AND FILED December 30, 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 II |
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State of
Plaintiff-Respondent, v. Antonio R. Martinez,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Brown, C.J.,
¶1 PER CURIAM. Antonio R. Martinez appeals from
the judgment of conviction entered against him and the order denying his motion
for postconviction relief. He argues
that the jury instructions violated his constitutional right to a unanimous jury,
and that a photo array used to identify him was unduly suggestive. We conclude that the jury instructions
properly directed the jury to consider both counts of the crime charged. We also conclude that even assuming the photo
array may have been unduly suggestive, under the totality of the circumstances,
the identification of
¶2
¶3 At trial, the two victims of the attempted homicides
testified that
¶4 After trial,
¶5
If you’re satisfied beyond a reasonable doubt that the defendant intended to kill Richard Smetana and/or Nicholas Seeger, and the defendant’s acts demonstrated unequivocally that the defendant intended to kill and would have killed Richard Smetana, and/or Nicholas Seeger except for the intervention of another person or some other extraneous factor, you should find the defendant guilty of attempted first degree homicide.
The court went on to say:
To explain to you here again, Counts 1 and 2 are the same crime charged but with respective different victims. So I’ve read the instruction once but the same language I just read applies to both Counts 1 and 2. The difference is that Count 1 has the name of victim Richard Smetana and Count 2 has the name of victim Nicholas Seeger.
¶6 Martinez argues that the “and/or” language in the instruction was confusing to the jury because the jury could have thought that the circuit court meant that Martinez could be found guilty of any count of attempted first-degree intentional homicide if he attempted to kill either Smetana and/or Seeger. We disagree.
¶7 First,
¶8 When
determing whether an instruction was confusing, we may consider whether the
“overall meaning” was communicated to the jury.
¶9 Similarly, we agree with the circuit court that the
instruction in this case was not confusing. Further, even if the instruction itself was
confusing, the explanation given by the court immediately following the reading
of the instruction communicated to the jury a correct statement of the law. We reject
¶10 The next issue is whether the circuit court erred when it
denied
¶11 Even if a photo display is impermissibly suggestive, however, the
court may consider whether under the totality of the circumstances, the “very
substantial likelihood … of misidentification” has been avoided. State v. Mosley, 102
“. . . the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”
¶12 In this case, the evidence was such that the photo arrays were
almost superfluous. Both of the victims
identified
¶13 Consequently, we conclude that the circuit court did not err
when it denied
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.