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COURT OF APPEALS DECISION DATED AND RELEASED May 21, 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. 95-2250-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KEITH C. BANKS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
DAVID A. HANSHER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Keith C. Banks appeals from a judgment of
conviction, following a jury trial, for kidnapping (party to a crime), two
counts of first-degree sexual assault, armed robbery (party to a crime), and
carjacking (party to a crime). He
argues that: the trial court erroneously
instructed the jury; the prosecutor offered improper rebuttal during closing
argument; and his convictions should be reversed in the interest of
justice. We reject his arguments and
affirm.
Banks and a co-defendant
abducted a woman as she was getting out of her car, took her to a park, and
sexually assaulted her. Despite the fact
that she was blindfolded most of the time, she was able to identify both her
assailants at a lineup, though she was primarily able to identify Banks by his
voice.
The issue at trial was
identification. The trial court
instructed the jury according to Wis J
I—Criminal 141 (the long version), in part as follows:
Consider the witness's 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.
(Emphasis
added.) During the course of its
deliberations, the jury sent out a question, which read: “[T]he physical ability of witness to see and
hear the events, and any other circumstances of the observation”—“Is it and
or could it be or or both”?
(Emphasis in original.) The
parties and the trial court interpreted the jury's question to ask whether
identification could be based on voice, appearance, or both. Over defense counsel's objection, the trial
court responded that the “and” could be “or” or both.
A trial court has wide
discretion in using jury instructions to “‘fully and fairly inform the jury of
the rules of law applicable to the case and to assist the jury in making a
reasonable analysis of the evidence.’” State
v. Waites, 158 Wis.2d 376, 385, 462 N.W.2d 206, 209 (1990) (citation
omitted). In reviewing alleged error in
jury instructions, “we do not view the challenged word or phrase in
isolation.” State v. Foster,
191 Wis.2d 14, 28, 528 N.W.2d 22, 28 (Ct. App. 1995). We must view the jury instructions as a whole to determine
whether they misstated the law or misdirected the jury. Id. Additionally, “[j]ust as the initial jury instructions are within
the trial court's discretion, so, too, is the ‘necessity for, the extent of,
and the form of re-instruction’ in response to requests or questions from the
jury.” State v. Simplot,
180 Wis.2d 383, 404, 509 N.W.2d 338, 346 (Ct. App. 1993) (citation omitted). “[W]hen the court receives an inquiry from
the jury, it should ‘respond ... with sufficient specificity to clarify the
jury's problem.’” Id. at
404-405, 509 N.W.2d at 346.
Banks argues that the
trial court's response improperly permitted or directed the jury to ignore the
weaknesses in the victim's visual identification. Banks is wrong. The trial
court's reinstruction was legally correct.
The instruction directed the jury to consider both voice and
visual forms of evidence. The
reinstruction did nothing to reduce the jury's opportunity to consider the
weaknesses of the victim's visual identification. Further, in addition to Wis J
I—Criminal 141, the jury was given instructions on reasonable doubt,
witness credibility, and on the alibi defense, which combined with the
witnesses' testimony and the arguments of counsel, focused the jury's attention
on the identification issue. See
Waites, 158 Wis.2d at 385-389, 462 N.W.2d at 209-211. The instructions, as a whole, remained
accurate, fully and fairly informed the jury of the applicable rules of law,
and assisted the jury in making a reasonable analysis of the evidence. See id., 158 Wis.2d at
385, 462 N.W.2d at 209.[1]
Banks next argues that
the trial court improperly failed to grant his motion for a mistrial based on
the prosecutor's rebuttal argument.
Defense counsel for Banks's co-defendant argued, in essence, that the
victim had not been sexually assaulted because her injuries were too minor to
be consistent with her testimony regarding the assaults. On rebuttal, the prosecutor argued:
Counsel, both defense counsel and I, stipulated
that the Crime Lab found that there was semen on the face of [the victim], and
that's certainly consistent with her testimony that she was forced to suck both
men's penises, and in fact she testified that she had to suck Mr. Arms'
[Banks's co-defendant] penis after he had had his penis in her vagina. And there's also testimony that there was a
sperm found in her mouth swab, or we stipulated to that, and that there was a
sperm found in the vaginal swab. Now
these things didn't just come through the air, ladies and gentlemen, and
there's absolutely no evidence that there's any other source for this semen on
[the victim].
(Emphasis
added.)
Banks claims that these
comments went beyond the stipulated evidence in the case that told the jury
that the semen and sperm had been recovered on those swabs “but there was not
enough semen present for testing to be done.”
In Banks's estimation, the significance of the prosecutor's remark
related to the fact, unknown to the jury, that the victim had had sex with
someone hours before the assault. The
trial court denied Banks's motion for a mistrial, reasoning that the prosecutor
had been responding to “the contention on closing arguments about the lack of
semen” to establish that the assaults had taken place.
“The decision whether to
grant a motion for a mistrial lies within the sound discretion of the trial
court.” State v. Bunch,
191 Wis.2d 501, 506, 529 N.W.2d 923, 925 (Ct. App. 1995). “We will reverse the trial court's mistrial
ruling only on a clear showing of an erroneous exercise of discretion.” Id.
Although the State
initially argues waiver because neither defendant objected to the prosecutor's
remark until after the jury was sent to deliberate, we address the merits of
Banks's argument. Wrenched from
context, the prosecutor's remarks might seem to violate the rape shield
preclusion of references to semen sources.
In this case, however, the argument was a proper rebuttal to closing
argument by counsel for Banks's co-defendant who contended that the evidence
did not even show that a sexual assault had taken place. The trial court did not erroneously exercise
its discretion by denying Banks's mistrial motion.
Finally, Banks argues
for a new trial in the interest of justice.
His argument, however, is simply a re-hash of the two arguments we have
already rejected. Therefore, we also
reject his final argument. See Mentek
v. State, 71 Wis.2d 799, 809, 238 N.W.2d 752, 758 (1976) (“Zero plus
zero equals zero.”).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.