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COURT OF APPEALS DECISION DATED AND RELEASED June 12, 1996 |
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. 95-1443-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHN H. FISHER,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Kenosha County: BRUCE E. SCHROEDER, Judge.
Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER
CURIAM. John H. Fisher appeals from judgments convicting him
of first-degree recklessly endangering safety with a weapon and felon in
possession of a firearm, both as a repeater,[1]
and from an order denying his postconviction motion for a new trial. On appeal, Fisher challenges the trial
court's refusal to conduct an evidentiary hearing on all postconviction issues
and claims that his trial counsel was ineffective and there was insufficient
evidence to convict him of first-degree recklessly endangering safety while
armed. We decide these issues against
Fisher and affirm.
Fisher was charged with
endangering the safety of Kenyada Helton under circumstances which showed utter
disregard for human life while possessing a dangerous weapon. See § 941.30(1), Stats.
Helton testified that in May 1993, after spending approximately two
hours at Fisher's home with Fisher and Helton's brother, Cory Burr, Fisher
drove them to Racine at approximately midnight. On the way back to Kenosha, they stopped at a restaurant because
Fisher was hungry. Fisher ordered food
for himself and Helton; Burr used the rest room, returned to the car and fell
asleep in the back seat.
Fisher drove Helton home
and when he stopped in front of her house inquired where his wallet was. Helton said she did not have it. Fisher then drove away from Helton's home
and they argued while he was driving.
Helton testified that Fisher stopped the car and said he was going to show
how mad he gets when his wallet is missing.
Fisher reached between his legs and raised a gun to Helton's head. Helton, who was in the passenger seat, tried
to grab the gun and unlock the car door with her other hand. Fisher grabbed her, pulled her toward him
and told her she was not going anywhere.
Helton then grabbed the gun and they started wrestling on the floor of
the car. She testified that Fisher
threatened that if she did not release the gun, he was going to shoot. Helton refused to release the gun, and
approximately three seconds later the gun discharged. She was wounded in the finger.
Helton managed to escape Fisher's grasp and he tried to pull the trigger
again. Helton fled the car and ran down
an alley where she met Charles Petrin, who took her to his home and called
police. Petrin confirmed that Helton
was extremely agitated when he encountered her.
Burr testified that
Helton was in the front passenger seat and he was asleep in the back seat on
the trip from Racine to Kenosha. Burr said
that he remembered hearing a gunshot, waking up and asking where Helton
was. Fisher told him she was gone. Burr said he never owned a gun and never saw
a gun that night.
Fisher testified that
when he, Helton and Burr left Racine to return to Kenosha, Burr was awake in
the back seat. Fisher testified that he
noticed his driver's license was under the armrest of the car and that this was
unusual because he keeps the license in his wallet. He then pulled over, checked his pocket and found that his wallet
was missing. Fisher admitted that he
accused Helton and Burr of stealing his wallet. Helton denied having the wallet, and when she tried to get out of
the car, Fisher locked the door. Fisher
told her she could not leave until they determined what happened to his
wallet. Fisher testified that Burr told
him Helton did not know anything about the wallet and that Burr told him he was
going to take them home. At that point,
Fisher felt something in the lower part of his back and saw that Burr had a gun
in his back. Fisher grabbed Burr's arm
and they struggled for the gun. During
the struggle, Burr pointed the gun toward Helton; she pushed it away. The gun went off, Helton opened the door,
and Burr and Helton ran off. Fisher
denied possessing a gun that night and said that Burr took the gun with him
after the shooting. The jury convicted
Fisher.
Fisher claims that his
trial counsel was ineffective because he failed to: (1) request instructions on lesser-included offenses; (2) object
to the form of the verdict on first-degree recklessly endangering safety and to
the instruction on the “while armed” portion of the associated jury
instruction; and (3) offer a stipulation on Fisher's prior felony conviction
and request a cautionary instruction after the nature of Fisher's prior felony
conviction was disclosed. The trial
court did not hold an evidentiary hearing on the first two claims of
ineffective assistance of counsel.
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 or her 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. See 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, 541 (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.
Fisher argues that the
trial court erroneously denied him a full evidentiary hearing on his
ineffective assistance of counsel claims.
A trial court properly exercises its discretion to deny a postconviction
motion without a hearing “if the record conclusively demonstrates that the
defendant is not entitled to relief.” State
v. Washington, 176 Wis.2d 205, 215, 500 N.W.2d 331, 336 (Ct. App. 1993)
(quoted source omitted).
In declining to hold an
evidentiary hearing on Fisher's first two ineffective assistance of counsel
claims, the trial court essentially moved directly to the prejudice prong of
the Strickland analysis and determined as a matter of law that
Fisher was not prejudiced by counsel's performance. We review this legal conclusion independently.
Trial counsel is not
ineffective if he or she fails to request a lesser-included offense instruction
when the defendant would not have been entitled to the instruction in the first
instance. See State v. Van
Straten, 140 Wis.2d 306, 320, 409 N.W.2d 448, 454‑55, cert.
denied, 484 U.S. 932 (1987); State v. Leach, 124 Wis.2d 648,
675, 370 N.W.2d 240, 254 (1985). In
deciding whether to instruct the jury on a lesser-included offense, the circuit
court must determine as a matter of law whether the lesser offense is a
lesser-included offense and whether the instruction is justified based on the
evidence. State v. Carrington,
134 Wis.2d 260, 262 n.1, 397 N.W.2d 484, 485 (1986). A lesser-included offense instruction is appropriate where there
are reasonable grounds in the evidence for acquittal on the original offense
and conviction on a lesser offense. State
v. Chapman, 175 Wis.2d 231, 241, 499 N.W.2d 222, 226 (Ct. App.
1993). In ruling on the propriety of a
lesser-included offense instruction, the court must view the evidence in the
light most favorable to the defendant and the requested instruction. State v. Foster, 191 Wis.2d
14, 23, 528 N.W.2d 22, 26 (Ct. App. 1995).
The State argues that
the trial court correctly determined that Fisher was not entitled to an
instruction on second-degree recklessly endangering safety because there was no
reasonable basis for acquitting him on the greater offense of first-degree
recklessly endangering safety. The
State also argues that the trial court correctly concluded that Fisher was not
entitled to an instruction on endangering safety by use of a dangerous weapon,
§ 941.20, Stats., because
that crime is not a lesser-included offense of first-degree recklessly
endangering safety while armed under § 941.30(1), Stats.
The State concedes that
second-degree recklessly endangering safety is a lesser-included offense of
first-degree recklessly endangering safety.
See § 939.66(1), Stats.
(an included crime is one which does not require proof of any fact in addition
to those facts which must be proved for the crime charged). Both degrees of recklessly endangering
safety require reckless endangerment.
First-degree recklessly endangering safety requires the additional
element of having done so “under circumstances which show utter disregard for
human life.” Section 941.30(1), Stats. We turn to whether there was an evidentiary basis to acquit Fisher
of first-degree recklessly endangering safety while armed and convict him of
second-degree recklessly endangering safety.
See Chapman, 175 Wis.2d at 241, 499 N.W.2d at 226.
In considering whether
trial counsel was ineffective for not requesting a second-degree recklessly
endangering safety instruction, the court noted that the evidentiary basis for
such an instruction was lacking in the record.
The victim testified that Fisher held a gun to her head and threatened
to shoot before the struggle for the gun ensued. From this testimony, the court concluded that Fisher's conduct
demonstrated utter disregard for human life.
Fisher claimed he never had the gun and that he was innocent in the
incident. Because Fisher denied having
the gun and contended that Burr was holding the gun when it went off, the court
found that there was no reasonable view of the evidence which would justify a
jury finding that Fisher endangered Helton's safety without demonstrating utter
disregard for human life. That is, if
Fisher recklessly endangered Helton's safety, he did it with a gun, a
circumstance which showed utter disregard for human life.
The trial court's
analysis was correct. The State was
required to prove that Fisher had “utter disregard for human life,” which is
analogous to the former “depraved mind” standard. See State v. Holtz, 173 Wis.2d 515, 519 n.2,
496 N.W.2d 668, 670 (Ct. App. 1992); see also State v. Loukota,
180 Wis.2d 191, 198, 508 N.W.2d 896, 898 (Ct. App. 1993) (conduct evincing a
depraved mind remains an element of first-degree reckless endangerment). The State had to prove that Fisher engaged
in conduct imminently dangerous to another, evincing a depraved mind. See State v. Blanco,
125 Wis.2d 276, 280-81, 371 N.W.2d 406, 409 (Ct. App. 1985). Where a defendant points a gun at a vital
part of the victim's body, there is no reasonable basis to acquit the defendant
of a crime in which depraved mind is an element. See State v. Davis, 144 Wis.2d 852, 863-64,
425 N.W.2d 411, 416 (1988).
Accordingly, it would not have been reasonable to acquit Fisher of a
crime where utter disregard for human life was an element when the evidence
demonstrated that he pointed a loaded gun at Helton's head and threatened to
shoot. Fisher's contention that he
never had the gun is not consistent with the possibility of a conviction for
second-degree recklessly endangering safety.
We also reject Fisher's
contention that endangering safety by use of a dangerous weapon contrary to
§ 941.20, Stats., is a
lesser-included offense of first-degree recklessly endangering safety, the
crime with which he was charged.
Section 941.20 has four variations.
Each of these variations requires proof of an element not required to
establish first-degree recklessly endangering safety under § 941.30(1), Stats.[2] Because endangering safety by use of a
dangerous weapon is not a lesser-included offense of first-degree recklessly
endangering safety, see § 939.66(1), Stats.,
the court correctly concluded that trial counsel was not ineffective for
failing to seek such an instruction.
In arguing the opposite
proposition, Fisher relies upon State v. Carrington, 130 Wis.2d
212, 386 N.W.2d 512 (Ct. App. 1986), in which the court of appeals held that
endangering safety under the then-current § 941.20(1), Stats., is a lesser-included offense of
first-degree recklessly endangering under § 941.30(1), Stats.
However, the supreme court reversed and held that one was not a
lesser-included offense of the other. Carrington,
134 Wis.2d at 270, 397 N.W.2d at 488‑89.
We are at a loss to understand why the appellant's brief relies upon a
superseded court of appeals case.
Next, Fisher challenges
trial counsel's failure to object to the verdict which lacked a special
question regarding whether Fisher possessed or used a dangerous weapon while
committing first-degree recklessly endangering safety and to the “while armed”
portion of the associated jury instruction.
Fisher contends the
verdict was flawed. The verdict
stated: “We, the jury, find the
defendant, John H. Fisher, guilty of first-degree recklessly endangering the
safety of another while armed with a dangerous weapon.”
Fisher argues that under
State v. Peete, 185 Wis.2d 4, 517 N.W.2d 149 (1994), whether he
used a dangerous weapon had to be submitted to the jury in the form of a
special question on the verdict.
However, a single verdict question which incorporates the dangerous
weapon element has been approved by this court. State v. Villarreal, 153 Wis.2d 323, 330, 450
N.W.2d 519, 522-23 (Ct. App. 1989). Peete
and Villarreal are not inconsistent.
Peete
requires that before a defendant's sentence may be enhanced for committing a
crime with a dangerous weapon under § 939.63, Stats., the state must prove a nexus between the predicate
offense and the weapon possession. Peete,
185 Wis.2d at 17, 517 N.W.2d at 154.
Here, the victim testified that Fisher pointed a gun at her head and
that it ultimately discharged and hit her in the finger. Therefore, there were sufficient facts
before the jury to permit it to find the required nexus, that is, that Fisher
possessed a gun to facilitate the commission of the predicate crime: first-degree recklessly endangering
safety.
Fisher also argues that
the trial court failed to instruct the jury on the Peete nexus
requirement. Fisher premises his
argument on the fact that only a jury can make a factual finding regarding
possession of a weapon to facilitate the commission of first-degree recklessly
endangering safety. However, the jury
was required to do just that by virtue of the verdict it was handed, the
versions of the incident presented by the victim and Fisher, and other
instructions it was given.
The court submitted a
verdict requiring the jury to determine whether Fisher acted while armed with a
dangerous weapon and so instructed the jury.
We presume jurors follow the instructions given to them. State v. Johnston, 184 Wis.2d
794, 822, 518 N.W.2d 759, 768-69, cert. denied, 513 U.S. ___, 115 S. Ct.
587 (1994). Where the trial court's
instructions adequately cover the law, we will not find error in the failure to
give a particular instruction. State
v. Kemp, 106 Wis.2d 697, 706, 318 N.W.2d 13, 18 (1982). Under the facts of this case, we see no
error in the manner in which the jury was instructed on committing the crime
while armed with a dangerous weapon.
Because the record
demonstrated that Fisher was not entitled to relief on his first two
ineffective assistance claims, the trial court did not err in declining to hold
an evidentiary hearing on those claims.
See Washington, 176 Wis.2d at 215, 500 N.W.2d at
336.
Finally, Fisher argues
that trial counsel was ineffective because he failed to stipulate to Fisher's
prior felony for purposes of Count 2 (felon in possession of a firearm) so that
there would have been no opportunity for the trial court and the prosecutor to
inform the jury of Fisher's prior conviction for endangering safety.[3] He further argues that because the prior
felony was of the same nature as the charged crime, he was prejudiced by this
disclosure and by trial counsel's failure to seek a cautionary instruction
regarding the references to Fisher's prior felony.
The court took evidence
on this claim at the hearing on Fisher's ineffective assistance claim. We will uphold the trial court's findings of
fact unless the findings are clearly erroneous. See Knight, 168 Wis.2d at 514 n.2, 484
N.W.2d at 541. The jury was informed on
two occasions of the nature of one of Fisher's prior felonies. The court so informed the jury when it
described the charges at the outset of trial.
The prosecutor also referred to it in his opening statement.
Where a defendant offers
to stipulate that he or she is a convicted felon, the nature of the prior crime
is not relevant. See State
v. McAllister, 153 Wis.2d 523, 529, 451 N.W.2d 764, 766-67 (Ct. App.
1989). However, McAllister does not mandate offering such a
stipulation.
We evaluate Fisher's
ineffective assistance claim by first addressing counsel's performance and
assessing whether counsel's performance fell below objective standards of
reasonableness. See State
v. McMahon, 186 Wis.2d 68, 80, 519 N.W.2d 621, 626 (Ct. App.
1994). This standard encompasses a wide
range of professionally competent assistance.
See id. “We
do not look to what would have been ideal, but rather to what amounts to
reasonably effective representation.” Id.
Fisher
cites no authority for the proposition that counsel must stipulate to the fact
that a defendant has a prior felony conviction. The existence of such a conviction is an element of the crime of
felon in possession of a firearm. We
decline to conclude that counsel is per se deficient for failing to stipulate
to an element which the State is otherwise required to prove beyond a
reasonable doubt. Turning to the
prejudice prong, we conclude that Fisher has not demonstrated a reasonable
probability that but for counsel's failure to stipulate, the outcome at trial
would have been different. See Johnson,
153 Wis.2d at 129, 449 N.W.2d at 848.
In reaching this conclusion, we review the totality of the evidence
before the trier of fact. Id.
at 129-30, 449 N.W.2d at 848-49.
If the jury believed the
victim's version of events, Fisher stood to be convicted of first-degree
recklessly endangering safety. The fact
that the jury learned that Fisher had a previous conviction for endangering
safety does not make it reasonably probable that had the jury not been so informed,
it would have acquitted Fisher on this charge.
Fisher complains that
trial counsel did not ask the court for a cautionary instruction once the
nature of the prior felony was revealed.
However, the jury was instructed that it was to decide the case based on
evidence from the witness stand and exhibits received into evidence. Therefore, the jury was not to consider
either the court's remark or the prosecutor's reference to the nature of
Fisher's prior felony. The court's
instructions at the close of the case reminded the jury that the arguments,
opinions and conclusions of the attorneys were not evidence. Jurors are presumed to follow the
instructions given to them. Johnston,
184 Wis.2d at 822, 518 N.W.2d at 768‑69.
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] Section 941.20(1)(a), Stats., requires proof that the defendant negligently operated or handled a dangerous weapon; § 941.20(1)(b) requires proof that the defendant operated or went armed with a firearm while intoxicated; § 941.20(1)(c) requires intentionally pointing a firearm at or toward another; and § 941.20(1)(d) requires discharge of a firearm within 100 yards of any building devoted to human occupancy.