COURT OF APPEALS DECISION DATED AND FILED March 17, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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 III |
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State of
Plaintiff-Respondent, v. Mark A. Laguna,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Mark Laguna appeals a judgment, entered upon a jury’s verdict, convicting him of second-degree intentional homicide. Laguna also appeals the denial of his postconviction motion for a new trial. Laguna seeks a new trial on the basis of ineffective assistance of trial counsel or, alternatively, in the interest of justice. We reject Laguna’s arguments and affirm the judgment and order.
Background
¶2 The State charged Laguna with first-degree intentional homicide, arising from the March 16, 2005 shooting death of his wife, Brenda. Laguna had been upset and depressed between early November and the date of the homicide because Brenda had moved out with the couple’s two daughters, obtained a restraining order and refused to talk to him about why she wanted to end the marriage. Laguna’s contemporaneous journal writings showed he was becoming increasingly angry and vengeful, as he complained about having nothing left and being forced to live in his parents’ house. In one entry, Laguna wrote:
This divorce is bullshit. I’m growing very impatient with her. Time will tell all. She destroyed my world, my marriage my family. Rage is building up inside of me now. Bad thoughts. Very bad thoughts. It’s hard to concentrate on anything now. I’m consumed with hate and vengeance.
On the night of March 15 and during the day of March 16, Laguna vandalized what was the couple’s home, writing on the walls and sticking poems and a wedding picture to the walls with knives. Laguna left a letter at the house labeled, “Final Words to Brenda,” again expressing his unhappiness with the situation.
¶3 On the day of the shooting, Laguna waited in his vehicle for Brenda to leave her job at the Iron County Courthouse and then repeatedly rammed her car into a snow bank. As Brenda ran from the car, Laguna shot her in the back of the head with a sawed-off shotgun. Laguna then surrendered to authorities.
¶4 Laguna initially entered a plea of not guilty by reason of mental disease or defect (NGI) and also sought to pursue a defense of involuntary intoxication by prescription drugs.[1] At trial, however, Laguna abandoned the insanity defense, opting to pursue only the involuntary intoxication defense. Laguna presented psychiatric opinion evidence, in addition to mental health history and lay evidence, to support the involuntary intoxication defense. Laguna argued that his various prescription medications in combination with his bipolar disorder prevented him from distinguishing between right and wrong at the time of the murder. The jury ultimately found Laguna guilty of the lesser-included offense of second-degree intentional homicide. Following a Machner[2] hearing, the trial court denied Laguna’s postconviction motion for a new trial. This appeal follows.
Discussion
I. Ineffective Assistance of Counsel
¶5 Laguna claims he was denied the effective assistance of trial
counsel. This court’s review of an
ineffective assistance of counsel claim is a mixed question of fact and
law. State v. Erickson, 227
¶6 “The benchmark for judging whether counsel has acted
ineffectively is stated in Strickland v. Washington, 466 U.S.
668 (1984).” State v. Johnson, 153
¶7 In order to establish deficient performance, a defendant must
show that “counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
¶8 The prejudice prong of the Strickland test is
satisfied where the attorney’s error is of such magnitude that there is a
reasonable probability that, absent the error, the result of the proceeding
would have been different.
¶9 Here, Laguna argues trial counsel was ineffective for
abandoning the insanity defense in favor of focusing on an involuntary
intoxication defense. In the context of
the insanity defense,
¶10 Relevant to this appeal, psychiatric opinion testimony about
whether the defendant had the capacity to form criminal intent is inadmissible
at the guilt phase of a bifurcated trial.
Steele v. State, 97
¶11 A reviewing court is not required to view defense counsel’s
subjective testimony as dispositive of an ineffective assistance claim. State v. Kimbrough, 2001 WI App 138,
¶35, 246
¶12 Laguna fails to demonstrate that counsel’s conclusion was
objectively unreasonable, as the state of the law on this subject is
unsettled. Citing State v. Flattum, 122
¶13 In State v. Repp, 122
¶14 In State v. Gardner, 230
¶15 Ultimately, Laguna identifies no precedent on point regarding
the admissibility of psychiatric opinion evidence to support an involuntary
intoxication defense during the guilt phase of a bifurcated insanity
trial. “Because the law is not an exact
science and may shift over time, the rule that an attorney is not liable for an
error of judgment on an unsettled proposition of law is universally recognized.” State v. Maloney, 2005 WI 74, ¶23,
281
II. A New Trial in the Interest of Justice
¶16 Laguna seeks a new trial under Wis. Stat. § 752.35,
which permits us to grant relief if we are convinced “that the real controversy
has not been fully tried, or that it is probable that justice has for any
reason miscarried.” In order to
establish that the real controversy has not been fully tried, Laguna must
convince us “that the jury was precluded from considering ‘important testimony
that bore on an important issue’ or that certain evidence which was improperly
received ‘clouded a crucial issue’ in the case.” State v. Darcy N.K., 218
¶17 Laguna’s claim for discretionary reversal in the interest of
justice hinges on a conclusion that counsel was ineffective for failing to
pursue the insanity defense. As we
discussed above, counsel
was not deficient for opting to forgo that defense. Moreover, Wis. Stat. § 752.35
“was not intended to vest this court with power of discretionary reversal to
enable a defendant to present an alternative defense that may have not been
advanced by trial counsel … whose representation is alleged to be ineffective
because of that failure.” State
v. Flynn, 190
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The insanity defense provides that a person is not
responsible for criminal conduct “if at the time of such conduct as a result of
mental disease or defect the person lacked substantial capacity either to
appreciate the wrongfulness of his or her conduct or conform his or her conduct
to the requirements of law.” Wis. Stat. § 971.15
(2007-08). All references to the
Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
In turn, the involuntary intoxication defense provides that an intoxicated or drugged condition of the actor is a defense only if such condition is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed. Wis. Stat. § 939.42(1).
[2] State
v. Machner, 92
[3] Unlike the test for involuntary intoxication, which requires that the intoxication render the defendant incapable of distinguishing right from wrong, a voluntary intoxication defense requires that the intoxication render the defendant incapable of forming the specific intent to commit the crime. Wis. Stat. § 939.42(2).