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COURT OF APPEALS DECISION DATED AND RELEASED October 17, 1995 |
NOTICE |
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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. 95-1176-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CARL P. FIKE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Buffalo County: DANE F. MOREY, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Carl P. Fike appeals a
judgment of conviction for criminal damage to property in excess of $1,000
contrary to § 943.01(2), Stats.,
and an order denying his motion for postconviction relief. Fike contends that he is entitled to a new
trial because the trial court erred: (1) by instructing the jury that it
was required to find him guilty of criminal damage to property because of
defense counsel's admissions during opening statements; and (2) by failing to
submit a verdict form to the jury that would have permitted it to reach a
finding of not guilty of criminal damage to property. Because we conclude that Fike waived his objections to the
instructions and verdict form and that the interests of justice do not warrant
a new trial, we affirm the judgment and order.
Fike was charged with
criminal damage to property in excess of $1,000. During the defense counsel's opening statement, counsel stated
that Fike admitted to causing criminal damage to property, but denied that the
damage was valued at more than $1,000.[1] Immediately following opening statements,
the court conducted a side bar conference at which Fike's attorney and the
prosecuting attorney were both present.
At the conclusion of the unrecorded conference, the judge advised the
jury that he would be instructing it to find the defendant guilty of criminal
damage to property and that the only question it would have to decide was
whether the damage caused was in excess of $1,000. Neither Fike nor his attorney objected to the court's instruction
to the jury. After the State had called
its first witness and asked the witness to identify Fike, the court advised the
prosecuting attorney that Fike had admitted he did criminal damage, and that
"we don't have to go through those hoops today." Again neither Fike nor his attorney
objected.
At the conclusion of the
evidentiary portion of the trial and after a jury instruction conference, the
trial court properly instructed the jury on the burden of proof and on each of
the elements of the offense charged.
The court then stated: "Now
the instruction goes into a lengthy explanation of what has to be done to prove
each one of those elements. But because
they are admitted, I'm not going to take the time to read through each one of
those."
After finishing the
instructions, the court submitted a verdict form to the jury which stated:
"We the jury find the defendant, Carl P. Fike, guilty of criminal damage
to property." The verdict form
then requested the jury to insert yes or no on the question of whether the
property was reduced in value by more than $1,000. The court did not submit a verdict form allowing the jury to find
Fike not guilty of criminal damage to property.
The jury instructions
and the verdict form were consistent with the court's instructions following
the side bar conference and were submitted to the jury without objection by
Fike or his attorney. The jury returned
the verdict finding Fike guilty of criminal damage to property and found that
the property was reduced in value by more than $1,000.
Fike contends that the
court's instructions and the single verdict form improperly directed a verdict
against him and deprived him of his constitutional right to a trial by
jury. We conclude that this is a claim
of instructional error. While State
v. Villarreal, 153 Wis.2d 323, 331, 450 N.W.2d 519, 523 (Ct. App.
1989), indicated, in a harmless error analysis, that this is not an
instructional error but an error of the wrong fact-finding entity adjudicating
guilt, other case law supports the position that this is a claim of instructional
error. See State v. Curtis,
144 Wis.2d 691, 694, 424 N.W.2d 719, 720 (Ct. App. 1988) (treating defendant's
challenge that trial court directed a verdict against him on an element of the
crime as an instructional error). While
Fike is contending that the court directed a verdict against him, this claim is
based upon the alleged improper jury instructions and verdict form. Further, in Villarreal, the
jury was not instructed on the dangerous weapon element and the dangerous
weapon element was not submitted to the jury for its consideration. Id. at 325, 450 N.W.2d at
520. In this case, the jury was
instructed on the elements of criminal damage to property, the verdict form
submitted to the jury included criminal damage to property, and the jury signed
the verdict declaring the defendant's guilt.
Therefore, Villarreal is inapposite.
Failure to object to a
jury instruction or verdict waives any error in them. State v.
Schumacher, 144 Wis.2d 388, 409, 424 N.W.2d 672, 680 (1988); §
805.13(3), Stats. This waiver rule operates even when a
constitutional right is at stake. Schumacher,
144 Wis.2d at 397, 424 N.W.2d at 675.
Because Fike failed to object to the instructions or verdict form, we
cannot review the claimed error unless we conclude that discretionary reversal
is warranted under § 752.35 Stats. Id. at 409, 424 N.W.2d at
680. We may order a discretionary
reversal in the interest of justice if the real controversey has not been fully
tried or if there has been a miscarriage of justice. Section 752.35, Stats.
We conclude that a
reversal would not be in the interests of justice in this case. The claimed error was the result of a
strategic decision by Fike and his attorney.
Fike and his attorney knew that the State had four witnesses who were
prepared to testify that they saw Fike commit the damage to the property. Faced with this overwhelming evidence, Fike
attempted to bolster his credibility on the issue of value by stipulating to
the act of damaging property. The
strategy was to try to get the offense reduced from a felony to a misdemeanor
by showing that the reduction in value was $1,000 or less. Pursuant to that strategy, Fike's attorney
admitted in his opening statement the commission of the offense but denied the
State's allegations of value. Following
the side bar conference and with the apparent concurrence of Fike and his
attorney, the court so instructed the jury.
Because this was a
strategic decision made consistent with what Fike and his lawyer believed to be
sound trial tactics, the interests of justice do not require reversal. Fike strategically presented the case in the
precise way he desired. "It is
contrary to fundamental principles of justice and orderly procedure to permit a
party to assume a certain position in the course of litigation which may be
advantageous, and then after the court maintains that position, argue on appeal
that the action was error." State
v. Gove, 148 Wis.2d 936, 944, 437 N.W.2d 218, 221 (1989). Because the claimed error was the result of
a strategic decision by Fike, we conclude that we may not exercise our
discretionary power of reversal.
Fike further argues that
there is insufficient evidence to support the jury's finding of guilt. Fike argues that the jury's finding cannot
be supported by the evidence tendered to the jury because the jury did not
recieve proof on all the essential elements of the crime. We disagree. Fike's judicial admission, in opening statements, is sufficient
evidence to support the jury's finding of guilt. See State v. Aldazabal, 146 Wis.2d 267, 430
N.W.2d 614 (Ct. App. 1988).
Because
we conclude that Fike waived any objection to the instructions and verdict form
and that a new trial is not warranted in the interests of justice, we affirm
the judgment and order.
By the Court.—Judgment
and order affirmed.
Not recommended for
publication in the official reports.