COURT OF APPEALS
DECISION
DATED AND FILED
August 4, 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
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Sheffield Groves, Sr.,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: CHARLES
F. KAHN, JR. and M. JOSEPH DONALD, Judges. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Sheffield Groves, Sr., pro se, appeals from a judgment of
conviction entered after a jury found him guilty of two counts of first-degree
intentional homicide as a party to a crime. See Wis. Stat. §§ 940.01(1)(a), 939.05
(2003-04). Groves
also appeals from an order denying his pro
se motion for postconviction relief. Groves
argues that the evidence at trial was insufficient to sustain his convictions,
the jury was improperly instructed, his trial counsel was ineffective in
failing to challenge the jury instructions, and the verdicts were
inconsistent. We reject his contentions
and affirm.
BACKGROUND
¶2 This case arises from
the shooting deaths of Austin J. Howard and John Tolefree in a Milwaukee residence on
February 15, 2005. The State charged Groves with two counts of
first-degree intentional homicide while armed with a dangerous weapon, as a
habitual offender and as a party to the crime.
The State also charged Groves
with possession of a firearm by a felon as a habitual offender. Groves
entered pleas of not guilty, and the matters proceeded to a jury trial.
¶3 Although Groves presented an alibi defense, numerous
witnesses placed Groves at the scene of the
homicides, and two witnesses testified that they saw Groves shoot the victims. The jury found Groves guilty of two counts of first-degree
intentional homicide as a party to a crime.
The jury found, however, that Groves
did not commit the offenses by use of a dangerous weapon. The jury further found Groves not guilty of being a felon in
possession of a firearm.
¶4 At sentencing, Groves
stipulated to prior felony convictions and the circuit court determined that he
was a habitual criminal. See Wis.
Stat. § 939.62 (2003-04).
The court imposed two concurrent life sentences without the possibility
of extended supervision, and the court added an additional six years of
imprisonment to each life sentence as a penalty for committing the offenses as
a habitual criminal.
¶5 Groves
discharged his appointed postconviction and appellate counsel and filed a pro se postconviction motion. The circuit court denied the motion, and this
appeal followed.
DISCUSSION
¶6 Groves
first claims that the evidence at trial was insufficient to support the
convictions. We review the sufficiency
of evidence using a strict standard.
[A]n appellate court may not substitute its judgment
for that of the trier of fact unless the evidence, viewed most favorably to the
state and the conviction, is so lacking in probative value and force that no
trier of fact, acting reasonably, could have found guilt beyond a reasonable
doubt. If any possibility exists that
the trier of fact could have drawn the appropriate inferences from the evidence
adduced at trial to find the requisite guilt, an appellate court may not
overturn a verdict even if it believes that the trier of fact should not have
found guilt based on the evidence before it.
State v. Poellinger, 153 Wis. 2d 493, 507,
451 N.W.2d 752 (1990) (citations omitted).
¶7 The evidence included testimony from Darlene Whitelow that,
on February 15, 2005, she went to 2847 North 10th Street in
Milwaukee, where she smoked marijuana and crack cocaine. Other people, including Groves, were also in the residence. Groves
asked for “a little privacy” and went into the living room, closing the door
behind him. According to Whitelow,
Maurice Batchelor and Joe King were in the living room when Groves closed the door. Whitelow heard shots coming from the living
room, and she fled from the residence.
¶8 Batchelor and King both testified that they were with Groves
on February 15, 2005, in the living room of 2847 North 10th Street,
when Groves shot and killed Howard and Tolefree. Sammie Riley testified that he was in a
bedroom of the residence when he heard gunshots coming from behind the closed
living room door. Riley testified that Groves and Batchelor came out of the living room shortly
after the shots were fired, and Groves
told Riley, “don’t call the police or anything.
If they come, just tell them some n*****s came and did the
shooting.” According to Riley, Batchelor
made a similar statement while wiping the living room doorknob with a cap.
¶9 Riley testified that after Groves and Batchelor left the residence,
another man in the house looked into the living room and said: “these guys got shot.” Riley and a companion then went to a pay
phone to call the police. City of Milwaukee Police Officer Brian Shull
testified that he was dispatched to 2847
North 10th Street on February 15,
2005. He discovered the bodies of two
men who had been shot multiple times.
¶10 The foregoing evidence amply supported the jury’s conclusion
that Groves
committed two homicides as a party to the crimes. Groves
argues, however, that the evidence was insufficient because he effectively
impeached the various witnesses against him, and because Riley’s testimony
conflicted with the testimony of other State’s witnesses. We must reject these arguments. “Where there are inconsistencies in the
testimony of a witness or between witnesses, the jury may choose to disbelieve
either version or make a choice of one version rather than another.” State v. Saunders, 196 Wis. 2d 45, 54, 538
N.W.2d 546 (Ct. App. 1995). This court will not reweigh the testimony of the witnesses and
reach a conclusion regarding credibility contrary to that reached by the fact
finder. See Lessor v. Wangelin,
221 Wis. 2d
659, 669, 586 N.W.2d 1 (Ct. App. 1998).
¶11 Groves
also asserts that “the jury’s decision as to the use of a dangerous weapon
shows that the evidence was insufficient to prove all the elements of the
underlying crime.” Groves misunderstands the implications of the
jury’s verdicts. The jury’s decision not
to convict him of using a dangerous weapon when committing the homicides says
nothing about the sufficiency of the evidence. “Juries have always had the inherent and
fundamental power to return a verdict of not guilty irrespective of the
evidence.” State v. Thomas, 161 Wis. 2d 616, 630,
468 N.W.2d 729 (Ct. App. 1991).
¶12 We next address Groves’s
contention that the circuit court erred by instructing the jury on party to a
crime liability. The court instructed
the jury that a person may be a party to a crime if the person either directly
commits a crime or intentionally aids and abets the commission of a crime. See
Wis. Stat. § 939.05(2)(a)-(b). The evidence supported the instruction.
¶13 The testimony of Whitelow and Riley permits a reasonable
inference that Batchelor was the principal actor and that Groves aided and abetted in the
offenses. Moreover, Groves’s trial counsel acknowledged this
inference during the instruction conference and, for this reason, withdrew an
objection to instructing the jury on party to a crime liability. Thus, Groves
waived any contention that the instruction was improper. See
Bethards
v. State, 45 Wis. 2d
606, 616, 173 N.W.2d 634 (1970) (withdrawing objection to jury instruction
constitutes a waiver).
¶14 Groves
next weaves several arguments around one theory: the State charged him with two counts of
first-degree intentional homicide by use of a dangerous weapon, and therefore
he could not be convicted of the homicides unless the jury found that he used a
dangerous weapon to commit the crimes.
Thus, Groves
believes that: (1) the circuit court
should have instructed the jury to find him not guilty of the homicides if it
rejected the State’s proof that he used a dangerous weapon; and (2) his trial
counsel was ineffective by not asking for such an instruction. Groves’s
theory is incorrect, however, and the arguments that he makes in reliance on
that theory are without merit.
¶15 When a defendant commits a crime while possessing, using, or
threatening to use a dangerous weapon, the defendant’s sentence may be
increased. See Wis. Stat. § 939.63. Thus, § 939.63 is a penalty
enhancer. State v. Villarreal, 153 Wis. 2d 323, 328,
450 N.W.2d 519 (Ct. App. 1989). To
invoke the penalty enhancer, the State must prove at trial both the facts
supporting the allegation that the defendant used a dangerous weapon and the
elements of the underlying offense. Id. at
328-29. “Thus, use of a dangerous weapon
is not only a penalty enhancer. It is
also an element of the crime charged.” Id. at 329
(citation omitted).
¶16 Villarreal reflects that the fact finder may determine
separately whether the defendant committed only the underlying crime or
committed the greater crime with the added element. Id.
at 330. Indeed, in Villarreal we approved
such separate determinations as “convenient and efficient.” Id. Further, an appellate court will
sustain a guilty verdict for an underlying crime when the State fails to secure
a valid conviction for committing the crime by use of a dangerous weapon. See id. at 332 (affirming defendant’s
conviction for second-degree murder while reversing as invalid defendant’s
conviction for committing the offense with a dangerous weapon); see also State v. Peete, 185 Wis. 2d 4, 23, 517
N.W.2d 149 (1994) (affirming defendant’s conviction for possession of cocaine
with intent to deliver while reversing the determination that defendant
committed that crime while possessing a dangerous weapon). Groves’s
theory that the State cannot prove a defendant guilty of an underlying crime
without also proving an alleged penalty enhancer is baseless.
¶17 In light of the foregoing, we reject Groves’s
claim of “plain error” in the jury instruction on whether Groves used a dangerous weapon to commit
homicide. The circuit court in this case
instructed the jury in accordance with Wis JI—Criminal 990:
The information alleges not only that the defendant
committed the crime of first-degree intentional homicide but also that the
defendant as party to the crime did so while using a dangerous weapon. If you find the defendant guilty of [first
degree intentional homicide] you must answer the following question: Did the defendant commit the crime of first
degree intentional homicide while using a dangerous weapon?
Dangerous weapon means any
firearm whether loaded or unloaded. A
firearm is a weapon that acts by force o[f] gun powder. Before you may answer this question yes you
must be satisfied beyond a reasonable doubt that the defendant as party to the
crime committed the act – committed the crime while using a dangerous
weapon. If you are not so satisfied, you
must answer the question no.
The court properly instructed
the jury to consider the dangerous weapon element separately from the
underlying crime. See Villarreal, 153 Wis. 2d
at 330.
¶18 Groves
further asserts that his trial counsel was ineffective by “not object[ing] to a
mandatory conclusive presumption as to the (while using a dangerous weapon)
element.” (Parentheses in original.) Groves
does not point to the text of any specific instruction that gave rise to a
“conclusive presumption.” We have
already explained that the circuit court properly instructed the jury on the
issue of whether Groves
committed the homicides while using a dangerous weapon. Accordingly, Groves fails to demonstrate that his trial
counsel had an obligation to object to the jury instructions. An attorney is not ineffective for failing to
pursue a meritless argument. See State v. Toliver, 187 Wis. 2d 346, 360, 523 N.W.2d 113 (Ct.
App. 1994).
¶19 We turn to Groves’s
suggestion that the verdicts are inconsistent and therefore cannot be
sustained. He contends that the jury
could not properly find him guilty of two homicides in which the victims were
shot while also finding that he did not use a dangerous weapon. We disagree.
“It has been universally held that logical consistency
in the verdict as between the several counts in a criminal information is not
required. The verdict will be upheld
despite the fact that the counts of which the defendant was convicted cannot be
logically reconciled with the counts of which the defendant was acquitted.”
State v. Thomas, 2004 WI
App 115, ¶41, 274 Wis. 2d
513, 683 N.W.2d 497 (citation and emphasis omitted). The rule is based on the reviewing court’s
inability to determine whether a jury’s inconsistencies are the result of
leniency, mistake, or compromise. See id.,
¶42.
¶20 In his reply brief, Groves
asserts for the first time that the circuit court erred by omitting the words “as
party to a crime” from the verdict forms asking the jury to decide whether he
used a dangerous weapon to commit homicide. We do not address issues raised for the first
time in a reply brief. See State v. Marquardt, 2001 WI App 219,
¶14 n.3, 247 Wis. 2d
765, 635 N.W.2d 188. Moreover, were we
to consider the issue, we would conclude that Groves cannot seek relief based on any
alleged defect in the forms of the verdict related to whether he used a
dangerous weapon. The jury found that Groves did not use a
dangerous weapon. Assuming without
deciding that the verdict forms as to this issue contain an error, Groves is in no way
aggrieved by such an error and cannot complain about it. See
Production
Credit Ass’n v. Nowatzski, 90 Wis. 2d
344, 356, 280 N.W.2d 118 (1979).
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.