COURT OF APPEALS DECISION DATED March 2, 2010 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. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 FINE, J. Mitchell A. Boose appeals the
judgment of conviction entered after a jury found him guilty of first-degree
reckless homicide while armed, see Wis.
I.
¶2 On
¶3 Boose was charged with first-degree reckless homicide while
armed and being a felon in possession of a firearm. Boose told police that he was at his friend
Trenton Edwards’s house at the time of the shooting.
¶4 As we have seen, the jury found Boose guilty. He filed a postconviction motion claiming his lawyer was ineffective because the lawyer: (1) did not argue at Boose’s preliminary examination the apparent conflict between Badger’s testimony that the argument was face-to-face, and the fact that Richardson was shot in the back; (2) did not appeal the bindover because of this alleged inconsistent evidence; (3) agreed to a self-defense instruction at trial; and (4) did not object to the prosecutor’s statement during closing argument that Richardson “turned away” just before he was shot. The trial court denied the motion:
[T]he prosecutor’s closing argument was fair argument and constituted a reasonable and permissible assessment of the evidence. The State offered its own theory as to what could have occurred to explain the discrepancy in the evidence. The court finds the argument entirely proper.
The trial court further found that “there was sufficient evidence for bindover,” the self-defense request was reasonable, and any objection during the prosecutor’s closing would have been overruled. We address these matters in turn.
II.
A. Sufficiency of the Evidence.
¶5 Boose argues the evidence is insufficient to support his
conviction because the evidence as to how
¶6 In reviewing claims of insufficiency, we apply the standard
recounted in State v. Poellinger, 153
[I]n reviewing the sufficiency of the evidence to
support a conviction, an 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.
Here, the evidence is more than
sufficient to support the conviction.
The elements required to prove first-degree reckless homicide are that: (1) the defendant caused the death of the
victim, (2) the defendant acted recklessly, and (3) the circumstances showed
utter disregard for human life. See Wis.
¶7 Boose argues that Badger’s testimony about the face-to-face
confrontation renders it impossible to find that Boose shot
¶8 Further, Boose’s lawyer made the same contention to the jury
that Boose makes on appeal—“You cannot shoot somebody face to face and have the
shot go in the back.” His lawyer
attacked Badger’s credibility, arguing her testimony was inconsistent and she
was making things up. Credibility
determinations and resolution of inconsistencies or discrepancies in the
testimony, however, are resolved by the jury.
State v.
B. Prosecutorial Misconduct.
¶9 Boose’s next complaint is that “it was prosecutorial
misconduct to tell the jury that
¶10 A prosecutor is allowed latitude in closing and “may comment on
evidence and argue from it to a conclusion.”
State v. Cockrell, 2007 WI App 217, ¶41, 306
¶11 As we have seen, there is no evidence that Boose and Richardson were face-to-face at the moment the gun was fired. So, Boose is wrong—the prosecutor’s “turned away” comment did not contradict the evidence. Although it is true that no one testified to seeing Richardson turn away, the prosecutor’s suggestion that Richardson turned before he was shot was not “[a]rgument on matters not in evidence,” see State v. Albright, 98 Wis. 2d 663, 676, 298 N.W.2d 196, 203 (Ct. App. 1980), which would be improper. Rather, it was a reasonable inference the prosecutor could logically ask the jury to draw.
¶12 We affirm the trial court’s discretionary ruling that the “[p]rosecutor’s closing argument was fair argument and constituted a reasonable and permissible assessment of the evidence.”
C. Ineffective Assistance.
¶13 As noted, Boose argues he received ineffective assistance of counsel. He claims: (1) the lawyer who represented him at the preliminary examination should have argued the inconsistency during that hearing; (2) the lawyer who represented him after the preliminary examination should have appealed the bindover decision; (3) his lawyer should have objected to the prosecutor’s closing argument and moved for a mistrial; and (4) his lawyer should not have agreed to the self-defense instruction because, he contends, it does not apply to a reckless homicide charge.[1] We address and reject each contention in turn.
¶14 To establish ineffective assistance of counsel, a
defendant must show: (1) deficient
performance; and (2) prejudice. Strickland v.
¶15 To prove prejudice, a defendant must demonstrate that the
lawyer’s errors were so serious that the defendant was deprived of a fair trial
and a reliable outcome.
1. Preliminary Examination.
¶16 Boose claims that his lawyer should have noticed an apparent conflict between the autopsy report (defendant shot in the back) and the testimony that the men were facing each other. Boose, however, fails to explain how not arguing this alleged conflict caused him prejudice.
¶17 The burden of proof at the preliminary examination is whether
there is sufficient evidence to believe that a felony was committed. State v.
¶18 At Boose’s preliminary examination, Badger testified she saw
Boose shoot
¶19 For the same reason, we reject Boose’s claim that his lawyer should have appealed the bindover. Under the applicable standard governing bindovers that we have already mentioned, any petition to appeal this non-final order either would not have been granted or, if granted, the appeal would not have been successful because, as we have seen, there was clearly sufficient evidence to support the bindover. Therefore, Boose has not established that any prejudice resulted from his lawyer’s failure to appeal the bindover.
2. Closing argument—Mistrial.
¶20 Boose also contends that his trial lawyer was ineffective for
not objecting when the prosecutor argued in summation that
¶21 First, Boose’s lawyer argued to the jury during his summation that
it should find Boose not guilty because of the inconsistencies in the evidence. His lawyer argued that no one testified that
Boose shot
¶22 As we have already seen, the prosecutor responded to the defense’s contentions in its rebuttal closing argument, explaining why the defense theory with respect to the shooting and the bullet hole going through the back was without merit. As we have also seen, this was wholly permissible and any objection during the rebuttal argument would have properly been denied. Accordingly, Boose has not shown prejudice.
¶23 Second, with regard to the stippling, Badger estimated the
distance between Boose and
3. Self-defense Instruction.
¶24 Boose claims his trial lawyer was ineffective for requesting a self-defense instruction on a charge of reckless homicide. He claims that “[s]elf-defense requires intent on the part of the defendant, and cannot be invoked in a case of reckless or negligent conduct.” We disagree.
¶25 The trial court instructed the jury:
Self-defense is an issue in this case. The law of self-defense allows the defendant to threaten or intentionally use force against another only if the defendant believed that there was an actual or imminent unlawful interference with the defendant’s person, and the defendant believed that the amount of force the defendant used or threatened to use was necessary to prevent or terminate the inference and the defendant’s beliefs were reasonable.
The defendant may intentionally use force which is intended or more likely to cause death or great bodily harm only if the defendant reasonably believed that the force was used is necessary to prevent imminent death or great bodily harm to himself. A belief may be reasonable even though mistaken.
In determining whether the defendant’s beliefs were reasonable, the standard is what a person of ordinary intelligence and prudence would have believed the defendant’s position under the circumstances that existed at the time of the alleged offense.
The reasonableness of the defendant’s beliefs must be determined from the standpoint of the defendant at the time of the defendant’s acts and not from the viewpoint of the jury now.
There is no duty to retreat. However, in determining whether the defendant reasonably believed the amount of force used was necessary to prevent or terminate the interference, you may consider whether the defendant had the … opportunity to retreat.
You should also consider whether the defendant provoked the attack.… However, if the attack which follows causes the person reasonably to believe that he is in imminent danger of death or great bodily harm, he may legally act in self-defense. But the person may not use or threaten force intended or likely to cause death or great bodily harm unless he reasonably believes he has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.
….
The state must prove by evidence which satisfies you beyond a reasonable doubt that the defendant did not act lawfully in self-defense. If you’re satisfied beyond a reasonable doubt that all three elements of first degree reckless homicide have been proved and the defendant did not act lawfully in self-defense, you should find the defendant guilty. If you’re not so satisfied you must find the defendant not guilty.
¶26 In contending that this was error, Boose relies on Werner
v. State, 66
¶27
By the Court.—Judgment and order affirmed.
Publication in the official reports is not recommended.
[1] Boose also argues the trial court erroneously exercised its discretion in giving the self-defense instruction. Boose’s lawyer, however, stipulated to the instruction and therefore waived any right to challenge the instruction on the merits. We therefore address it only in the context of ineffective assistance of counsel.