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COURT OF APPEALS DECISION DATED AND FILED August 17, 2010 A.
John Voelker Acting 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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Ian M. Gulbronson, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Ian M. Gulbronson appeals from a
judgment of conviction, entered upon a jury’s verdict, on one count of
aggravated battery. Gulbronson also
appeals from an order denying his postconviction motion for a new trial. Gulbronson argues that he was denied the
effective assistance of counsel because his trial attorney failed to object to
two errors in the jury instructions.
Specifically, he complains counsel should have objected to the court’s
modification of the self-defense instruction,
self-defense. Any errors in the instructions
were, therefore, harmless. Further, even
if counsel should have objected at the time, Gulbronson has suffered no
prejudice. We therefore affirm the trial
court on different grounds. See
BACKGROUND
¶2 Gulbronson did not testify at trial. However, based on his statement to police and the testimony of his victim, the following is the relevant factual background. On February 24, 2008, Gulbronson was at a bar with girlfriend Brooke Scholler. He was intoxicated; she had allegedly used cocaine earlier in the evening. They became annoyed with each other and agreed to leave the bar. Scholler dropped Gulbronson at a gas station to buy cigarettes. She continued to drive home and Gulbronson walked home.
¶3 According to Gulbronson’s statement, the exterior door was locked when he arrived home. He called Scholler and then walked around the block until the door was opened. He went in, went upstairs to the kitchen, and argued with Scholler. The next thing he remembers is Scholler grabbing a knife and stabbing him.
¶4 According to Scholler’s trial testimony, after she dropped Gulbronson at the gas station, she went home and went to bed. When Gulbronson returned, he attempted to argue with her, but she refused to engage him. He grabbed her by the arm, pulling her from the bed onto the floor. She managed to get up and run to the kitchen. He followed her. She grabbed a steak knife. He pulled her hair. She turned around and stabbed him.
¶5 The accounts then generally reconverge. When both parties recognized Gulbronson—who had been stabbed on the left side of his chest, near his heart—was bleeding, Scholler agreed to take him to the hospital. They went downstairs; Gulbronson exited first. Scholler, still inside, attempted to close the door behind him. He kicked the door open and then began to beat Scholler. She suffered multiple injuries, including a fractured nose, a laceration requiring stitches, and a possible concussion. Gulbronson later told police officer Wayne Treep that, because of Scholler’s refusal to take him to the hospital, he feared for his life.
¶6 Ultimately, a neighbor called 911, and paramedics transported Gulbronson for medical attention. He was subsequently charged with one count of second-degree recklessly endangering safety, a Class G felony, which was later amended to aggravated battery, a Class E felony.
¶7 When it came time to decide on jury instructions, Gulbronson
requested the self-defense instruction, which the State opposed. After much discussion, defense counsel
conceded that “the [theory of] self-defense is him deciding to beat her as a
way to convince her to take him to the hospital.” The court
ultimately determined:
I’ll be honest, it’s a close call. I’m going to give 805 but here’s the ruling. First of all, I’m modifying the first sentence from “self-defense is an issue in this case.” I’m modifying it to read “self-defense may be an issue in this case.” The rest of the self-defense instruction I’m going to read pretty much verbatim. (Quotation marks added.)
¶8 The court also concluded, based on Gulbronson’s behavior,
that it would be appropriate to give
¶9 Gulbronson filed a postconviction motion. Among other things, he alleged that his trial counsel was ineffective for failing to object to the jury instructions. He asserted counsel should have objected to the court’s modification of Wis JI—Criminal 805, from “self-defense is” to “self-defense may be an issue,” because “this modification … renders the self-defense instruction meaningless in that the jury need not consider evidence of self-defense at all.” Gulbronson further claimed the evidence did not support giving the provocation instruction, as “his actions before the knife attack … did not by any means deprive him of his right to exercise self-defense.”
¶10 The court adopted the State’s analysis on both points. The State had asserted the self-defense instruction was properly crafted based on the facts of the case and, based on the totality of the record, including other jury instructions, the jury was properly directed. As to the provocation instruction, the State argued that prior case law had held that conduct as simple as fighting words could justify giving the instruction. Here, the State asserted, Gulbronson pulled Scholler from bed, then followed her to the kitchen and pulled her hair, provoking subsequent events. Because the court agreed the jury was properly instructed, it concluded that trial counsel had not been ineffective for his lack of objection. Gulbronson appeals.
DISCUSSION
¶11 Failure to object at a jury instruction conference “constitutes a waiver of any error in the proposed instructions.” Wis. Stat. § 805.13(3). Gulbronson’s postconviction motion therefore alleged, and the current appeal focuses on, ineffective assistance of trial counsel for failure to make appropriate objections.
¶12 In order to prove that he has not received effective assistance
of counsel, Gulbronson must show two things:
that his attorney’s performance was deficient and that this deficiency
prejudiced his defense. See State v. Wheat, 2002 WI App 153,
¶14, 256
¶13 “A [trial] court has broad discretion when instructing a jury.” Nommensen v. Am. Cont’l Ins. Co.,
2001 WI 112, ¶50, 246
¶14 Although ultimately the burdens of proof and persuasion fall to
the State, Gulbronson had a burden of production
regarding his affirmative defenses.
¶15 To be entitled to the self-defense instruction, Gulbronson had
to show that: (1) he believed that
there was an actual or imminent unlawful interference with his person; (2) he
believed that the amount of force the defendant used or threatened to use was
necessary to prevent or terminate the interference; and (3) his beliefs
were reasonable. See
¶16 We conclude Gulbronson failed to show he was entitled to invoke self-defense. The aggravated battery was charged based on events occurring after Scholler started to lock him out of the house instead of taking him to the hospital. We conclude self-defense was unavailable because under no circumstances could Gulbronson reasonably believe he was using “only such force … necessary” to prevent interference with his person.
¶17 Gulbronson’s theory of “self-defense is him deciding to beat her as a way to convince her to take him to the hospital.” He also claimed that he feared for his life when Scholler refused to take him to the hospital. Fatal to Gulbronson’s self-defense claim, however, is Officer Treep’s testimony that:
He stated that, quote, that bitch tried to kill me. I’m going to kill her. He ended up pushing the door in, grabbing her, and he said he beat her fucking ass for at least 5 minutes and she had it coming.
¶18 Gulbronson’s reaction reveals a disproportionate amount of force necessary to get Scholler to take him to the hospital. Further, continually beating or killing the person on whom one’s survival ostensibly depends is completely unreasonable. In light of the patently unreasonable mindset, the jury should not have been instructed on self-defense at all.
¶19 If the self-defense instruction should not have been given, neither then should the provocation instruction have been given. Provocation, if shown, effectively deprives a defendant of the ability to claim the self-defense privilege. See Wis. Stat. § 939.48(2)(a). That is, a jury would not be instructed on provocation absent the self-defense instruction.
¶20 “A new trial is not warranted in cases where the trial court
erroneously gave an instruction unless the error is determined to be prejudicial.” Helmbrecht v. St. Paul Ins. Co., 122
¶21 The jury reached its guilty verdict by one of three possible paths
after first concluding that Gulbronson had battered Scholler. The first possibility is that the jury never
considered the self-defense instruction, as Gulbronson feared. The second possibility is that the jury
considered, but rejected, self-defense and thus never considered provocation. The third possibility is that the jury
concluded self-defense applied, but also considered Gulbronson to be the
provocateur, thus negating the self-defense privilege. However, the net result is the same under all
three situations: the same result would
have occurred had the jury never received the self-defense and provocation instructions. For that reason, no reversible error exists,
and any error in giving the self-defense—modified or not—and provocation
instructions was harmless. See Nommensen, 246
¶22 We also disagree with Gulbronson’s assertion that the real controversy was not fully tried. With or without the erroneous instructions on self-defense and provocation, the jury first had to determine whether Gulbronson was guilty of battery. The jury concluded he was, thereby resolving the real controversy.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.