COURT OF APPEALS DECISION DATED AND RELEASED February 21, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0047-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LAVELLE ALLISON,
a/k/a LEVELL ALLISON,
a/k/a LAVELL ALLISON,
a/k/a LEAVELL ALLISON,
a/k/a LAVELLE
ANDERSON,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Kenosha County:
ROBERT V. BAKER, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
PER CURIAM. Lavelle Allison appeals from an order
denying his motion for a new trial and sentence modification.[1] We conclude that the evidence was sufficient
to convict Allison of aggravated battery contrary to § 940.19(2), Stats., 1991-92, as a repeater, that he
waived his challenge to the manner in which jurors were selected for voir dire
and that trial counsel was not ineffective for failing to request a jury
instruction on identification. Accordingly,
we affirm.
The following facts are
undisputed. On May 24, 1993, the
victim, Matthew Nelson, had an altercation with four individuals who were
creating a disturbance at his place of employment. One of the individuals, later identified as Allison, threw a
chunk of concrete at Nelson's back and punched Nelson in the face while holding
a rock. While Nelson was struggling
with Allison in an attempt to hold him until police could arrive, Allison
pushed Nelson down to the pavement.
Nelson hit his forehead and nose
on the pavement. He suffered a broken
nose, severe facial lacerations with permanent scarring, and thoracic back
injuries. Nelson's facial lacerations
did not require suturing, but they needed to be debrided and cleansed, and
antibiotics were applied. After a
two-day trial, a jury found Allison guilty of aggravated battery.
On appeal, Allison
argues that there is insufficient evidence that he caused Nelson "great
bodily harm." Section 940.19(2), Stats., 1991-92, under which Allison
was charged and convicted, provides:
"Whoever causes great bodily harm to another by an act done with
intent to cause great bodily harm to that person or another with or without the
consent of the person so harmed is guilty of a Class C felony." Section 939.22(14), Stats., 1991-92, defines "great bodily harm" as
"bodily injury which creates a substantial risk of death, or which causes
serious permanent disfigurement, or which causes a permanent or protracted loss
or impairment of the function of any bodily member or organ or other serious
bodily injury."
In La Barge v.
State, 74 Wis.2d 327, 246 N.W.2d 794 (1976), the court addressed the
"other serious bodily injury" portion of the definition of great
bodily harm. The court concluded that
the legislature intended the phrase to broaden the scope of the statute
"to include bodily injuries which were serious, although not of the same
type or category as those recited in the statute." Id. at 332, 246 N.W.2d at
796. It is a jury question whether the
injuries constituted "other serious bodily injury." Id. at 334-35, 246 N.W.2d at
797-98. The credibility and weight to
be given testimony regarding a victim's injuries for purposes of establishing
great bodily harm is within the jury's province. Flores v. State, 76 Wis.2d 50, 60, 250 N.W.2d 720,
725 (1977), overruled on other grounds, 123 Wis.2d 1, 365 N.W.2d 7
(1985). The line between great bodily
harm, which requires "serious" injury, and mere bodily harm, while
not mathematically precise, is one that a jury is capable of drawing. Cheatham v. State, 85 Wis.2d
112, 124, 270 N.W.2d 194, 200 (1978).
Allison apparently
argues that Nelson's injuries did not rise to the level of great bodily harm as
a matter of law. While we do not
necessarily condone the decision to charge Allison with aggravated battery,
there was sufficient evidence adduced at trial to permit the jury to decide
whether Nelson suffered great bodily harm, in the form of serious bodily
injury.
Having concluded that
the jury was properly charged with determining the severity of Nelson's
injuries, we turn to whether the evidence is sufficient to uphold the jury's
finding that Nelson sustained great bodily harm. Upon a challenge to the sufficiency of the evidence to support a
jury's guilty verdict, we may not substitute our judgment for that of the jury
"unless the evidence, viewed most favorably to the state and the
conviction, is so lacking in probative value and force" that no reasonable
jury "could have found guilt beyond a reasonable doubt." State v. Poellinger, 153
Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990). We will uphold the verdict if any possibility exists that the
jury could have drawn the inference of guilt from the evidence. See id. at 507, 451
N.W.2d at 758. It is the jury's
province to fairly resolve conflicts in the testimony, weigh the evidence and
draw reasonable inferences from the facts.
See id. at 506, 451 N.W.2d at 757. We conclude that there is sufficient
evidence from which the jury could determine that the total effect of Nelson's
injuries, as described earlier in this opinion, amounted to "other serious
bodily injury," i.e., great bodily harm.
Allison's reliance upon State
v. Bronston, 7 Wis.2d 627, 97 N.W.2d 504 (1959), overruled on other
grounds, 74 Wis.2d 327, 246 N.W.2d 794 (1976), is misplaced. He contends that Bronston
leaves to the trial court the task of determining as a matter of law whether
the injuries rise to the level of great bodily harm. However, we conclude that the more recent case of La Barge
governs. Whether Nelson suffered great
bodily harm was properly decided by the jury.
See La Barge, 74 Wis.2d at 334-35, 246 N.W.2d at
797-98.
Allison next argues that
the manner in which jurors were selected for voir dire violated the statutes
governing jury selection and his due process right to be present at every
significant phase of the criminal proceeding.
The selection of individuals for voir dire is governed by § 756.096,
Stats., which directs that those
persons be selected in the presence and under the direction of the court. Specifically, Allison objects to the use of
a computer program to select individuals for voir dire because the selection
occurred outside his and the court's presence and he had no assurance that the
selection was truly random.
This challenge is waived
because it was first raised on postconviction motion. Allison did not object to the manner in which the prospective
jurors were chosen, either before or after the jury was empaneled. Claims of error relating to the assembly of
a jury list must be made before the jury is empaneled and prior to trial. Brown v. State, 58 Wis.2d 158,
164, 205 N.W.2d 566, 570 (1973); see also Shotwell Mfg. Co. v. United
States, 371 U.S. 341, 362 (1963) (an objection to the petit jury array
is not timely if it is first raised after the verdict).
The application of the
waiver rule is appropriate under these circumstances because Allison's claim of
error can only be reviewed upon a proper record. Here, there is no record which would permit us to consider the
issues raised. Furthermore, had Allison
objected at the appropriate time, the trial court would have had an opportunity
to address his complaint and establish a remedy, if needed.[2] See State v. Holt, 128
Wis.2d 110, 124, 382 N.W.2d 679, 686 (Ct. App. 1985).
In his reply brief, Allison
argues that the State waived its right to argue Allison's waiver because the
State did not object when he raised this issue on postconviction motion. A respondent is not held to the same rules
of waiver that apply to an appellant. State
v. Truax, 151 Wis.2d 354, 359, 444 N.W.2d 432, 435 (Ct. App.
1989). In arguing that Allison waived
his opportunity to object to the manner in which the petit jury was selected,
the State, as respondent, seeks to uphold the result reached at trial. Allison seeks to reverse his conviction on
the ground that the jury selection was flawed.
See Holt, 128 Wis.2d at 124, 382 N.W.2d at
686. The State's waiver argument
suggests that "the appellant's argument in favor of reversal is without
merit." Id. at 124,
382 N.W.2d at 687. The State's argument
does not offend principles of efficient judicial administration the way an
untimely appellant's argument does, particularly in the absence of the
necessary record. See id.
at 124, 382 N.W.2d at 686-87.
Finally, Allison argues that
his trial counsel was ineffective because he did not request either the short
or long form of the jury instruction on identification, Wis J I—Criminal 141.
He further argues that counsel's failure to request the long form
instruction deprived him of the opportunity to have the jury focus on the
various factors relevant to identification which are enumerated in that
instruction.
To establish a claim of
ineffective assistance, a defendant must show that counsel's performance was
deficient and that it prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a defendant
must show that his counsel made errors so serious that he or she was not
functioning as the "counsel" guaranteed by the Sixth Amendment. Id.
Even if deficient
performance is found, a judgment will not be reversed unless the defendant
proves that the deficiency prejudiced his or her defense. State v. Johnson, 153 Wis.2d
121, 127, 449 N.W.2d 845, 848 (1990).
The defendant must show that there is a reasonable probability that but
for counsel's unprofessional errors, the result of the proceeding would have
been different. Id. at
129, 449 N.W.2d at 848. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome. Id. In applying this principle, reviewing courts
are instructed to consider the totality of the evidence before the trier of
fact. Id. at 129-30, 449
N.W.2d at 848-49. We need not consider
whether trial counsel's performance was deficient if we can resolve the
ineffectiveness issue on the ground of lack of prejudice. State v. Moats, 156 Wis.2d 74, 101, 457 N.W.2d 299, 311
(1990).
The question of whether
there has been ineffective assistance of counsel is a mixed question of law and
fact. State ex rel. Flores v.
State, 183 Wis.2d 587, 609, 516 N.W.2d 362, 368‑69 (1994). An appellate court will not overturn a trial
court's findings of fact concerning the circumstances of the case and counsel's
conduct and strategy unless the findings are clearly erroneous. State v. Knight, 168 Wis.2d
509, 514 n.2, 484 N.W.2d 540, 542 (1992).
However, the final determinations of whether counsel's performance was
deficient and prejudiced the defense are questions of law which this court
decides without deference to the trial court.
Id.
The long form of Wis J I—Criminal 141 provides in
full:
The
identification of the defendant is in issue in this case.
IF
THE ACCURACY OF AN EYEWITNESS IDENTIFICATION IS A MAJOR ISSUE IN THE CASE, ADD
THE FOLLOWING:
[In
evaluating the evidence relating to the identification of the defendant as the
person who committed the alleged crime, you are to consider those factors which
might affect human perception and memory.
You are to consider all the circumstances relating to the
identification.
Consider
the witness' opportunity for observation, how long the observation lasted, how
close the witness was, the lighting, the mental state of the witness at the
time, the physical ability of the witness to see and hear the events, and any
other circumstances of the observation.
With
regard to the witness' memory, you should consider the period of time which
elapsed between the witness' observation and the identification of the
defendant and any intervening events which may have affected the witness'
memory.]
CONTINUE WITH THE FOLLOWING IN ALL CASES:
If you find that the crime alleged was
committed, before you may find the defendant guilty, you must be satisfied
beyond a reasonable doubt that the defendant is the person who committed the
crime.
The shorter form of this
instruction, the use of which is committed to the trial court's discretion, see
State v. Waites, 158 Wis.2d 376, 383-84, 462 N.W.2d 206, 208
(1990), "is identical to the more detailed [or long form] instruction
except that the bracketed paragraphs are not included." Id. at 380 n.2, 462 N.W.2d at
207.
At the postconviction
motion hearing, trial counsel testified that alibi and identification were
issues at trial. He stated that his
failure to request an identification instruction did not result from any
tactical decision, rather, "it slipped [his] mind." Counsel agreed that there was no legitimate
reason not to request an identification instruction when identification is an
issue at trial. The court determined
that identification was not a major issue and that the issue had been well
litigated.
Allison argues that the
absence of an identification instruction deprived the jury of an opportunity to
focus on the factors impacting whether the State demonstrated beyond a
reasonable doubt that Allison committed the crime. We disagree. Defense
counsel's closing argument addressed numerous factors influencing identification.
During closing argument,
defense counsel argued that there was reasonable doubt as to whether Allison
beat Nelson. Counsel pointed out that
descriptions of Nelson's attacker did not include Allison's very prominent
front gold teeth. Defense counsel also
stressed that the identification of Allison did not occur immediately. Rather, he was identified a few weeks after
the crime, and only one witness was able to identify him. Defense counsel also questioned the
potential suggestiveness of the manner in which Allison's photograph was
displayed to witnesses.
Even though the jury was
not instructed on identification, it received instructions on reasonable
doubt, Wis J I—Criminal 140, and
credibility, Wis J I—Criminal 300. These instructions, when combined with
defense counsel's closing arguments regarding identification, sufficiently
focused the jury's attention on the State's burden to establish every necessary
fact before Allison could be found guilty.
See Waites, 158 Wis.2d at 386, 462 N.W.2d at 210. The jury was adequately informed of the
possibility of human error and the need to scrutinize carefully all testimony,
including identification testimony.
In light of the
foregoing, we do not see a reasonable probability that had counsel requested
and received an identification instruction, the result of the proceeding would
have been different. See Johnson,
153 Wis.2d at 129, 449 N.W.2d at 848.
Therefore, Allison has not demonstrated that his counsel's performance
prejudiced him.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.