COURT OF APPEALS DECISION DATED AND RELEASED February 4, 1997 |
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. 95-2759-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LEONARD AVERY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
PATRICIA D. McMAHON,
Judge. Affirmed.
Before Fine, Schudson
and Curley, JJ.
PER
CURIAM. Leonard Avery (hereinafter “Leonard”) appeals from his
conviction of one count of first-degree intentional homicide while possessing a
dangerous weapon, as a party to a crime.
Leonard was also convicted of two counts of first-degree recklessly
endangering safety while possessing a dangerous weapon, as a party to a crime;
however, those convictions are not a part of this appeal.
Leonard, along with his
brother, Andre Avery (hereinafter “Andre”), were both charged with the same
crimes and were tried together but had separate juries. Leonard believes the trial court erred in
not submitting to his jury his requested jury instruction for the
lesser-included offense of second-degree intentional homicide. Although this instruction was given to his
brother’s jury, both brothers were found guilty of first-degree intentional
homicide while possessing a dangerous weapon, as a party to a crime. Because the trial court correctly determined
that there was no evidence in the record of any mitigating circumstances
involving Leonard, it was entirely proper to refuse to give the lesser-included
offense instruction for second-degree intentional homicide to Leonard's
jury. We affirm.
I. Background.
The jury was faced with
a variety of conflicting and contradictory versions of the events leading to
the shooting. What is known and
undisputed is that both Averys and the victim of the homicide, Chris Davis,
grew up in the same neighborhood.
Testimony at trial revealed a history of friction between members of the
two families. Among the incidents
related were allegations of one of the Averys burglarizing the Davis home,
which resulted in years of retaliatory acts including confrontations in parks,
shootouts, gunplay, and other violent acts.
On the night of the
shooting, the parties agree that both Leonard and Davis were at the Tapp I
tavern. There was a confrontation between
the two men and an exchange of angry words.
It is also uncontroverted that Davis was following Leonard out the door
of the tavern when Davis was shot by Andre.
The conflicts in
testimony revolve around the events which took place earlier in the evening. Three different versions were presented to
the jury. Sackie Roby, a friend of the
two brothers, testified at trial. At
the time of the trial he had pleaded guilty to lesser offenses connected with
this incident but had not yet been sentenced.
Roby told the jury that early on the night of the shooting he was with
Andre at a store where Andre worked.
Roby left to buy more beer. When
he returned, Andre was on the phone with his brother Leonard. After concluding the phone call, Andre told
him that Leonard and Davis were both at the same bar and Davis was “talking
crazy.” The two men then decided to
drive to the bar, but returned to the store when they did not see Leonard's
wife’s car. Shortly thereafter, Leonard
arrived at the store. Leonard told the
two of them that Davis was making threats.
This led to the collective decision to return to the bar and ambush
Davis. According to Roby, Leonard
planned to go into the bar and lure Davis out of the tavern. Roby testified that upon arriving at the
bar, the three of them walked to the tavern with Leonard going inside to entice
Davis to come out. He and Andre
remained outside. Roby claimed that
after waiting several minutes, Leonard walked out of the tavern door. Roby testified he did not see Davis
following him but he did witness Andre fire several shots at the door of the
bar. Roby stated that after the shots
were fired by Andre he ran to the car, never firing his gun.
The next version of the
events was related by Andre. It differs
from that of Roby. Andre admits to
shooting Davis and agrees with some of Roby's testimony with respect to the
events earlier in the evening. The
significant difference in their stories, however, is Andre's insistence that
Leonard never came to the store, nor was there a plan to ambush Davis. Andre testified that he and Roby,
independent of any request by Leonard, decided to go to the bar after Andre
talked to Leonard on the phone. Their
intent, according to Andre, despite the fact they were both armed when they left
the store, was to see if they could gain access to the bar as they believed the
bar to be extremely crowded. Andre
related that after driving with Roby to the Tapp I, and while approaching the
bar entrance, he happened to see his brother walk down the steps of the bar
with Davis behind him holding a gun pointed at his brother's back. Believing that his brother was about to be
shot, Andre fired his gun, killing Davis.
Andre explained that the reason fifteen or sixteen rounds were fired was
because the gun was an automatic and it simply kept firing.
The final version of the
night's events came from Leonard.
Leonard did not testify at the trial, but several of his statements
given earlier to the police were introduced. The gist of Leonard’s first statement
was that he called Andre to tell him Davis was at the bar and that Davis had
threatened him. After concluding the
phone call, he felt uneasy as he feared Andre might come to the bar because
there was significant ill will between Davis and his brother. He then tried calling his brother back, but
no one answered. Leonard claimed that
some time later Davis approached him in the bar and offered to fight him
outside. Leonard then proceeded outside
under the belief he and Davis would fight.
When he got outside, much to his surprise, he saw Roby and his brother
approach the bar with drawn guns. Upon
seeing them, Leonard stated he ran into a yard. Simultaneous with his running, he heard several gunshots. He told the police he never saw Davis with a
gun that evening. In later statements
given to police, Leonard admitted asking Roby and Andre to come to his aid, but
he denied asking them to bring guns, stating he only wanted them as backup
because he was outnumbered by Davis’s friends and family. In both statements, Leonard disputed Roby’s
claim that he came to the store and plotted with the two of them before
returning to the bar.
II. Analysis.
Leonard submits that the
trial court erred in failing to give his requested lesser-included instruction
of second-degree intentional homicide.
We disagree.
A trial court engages in
a two-step analysis in determining whether to submit a lesser-included offense
jury instruction. See State v. Muentner, 138 Wis.2d 374,
387, 406 N.W.2d 415, 421 (1987). First, the court must determine whether the
crime is a lesser-included offense of the charged crime. Id.
Next, the court must weigh whether there is a reasonable basis in the evidence
for a jury to acquit on the greater offense and to convict on the lesser
offense. Id. If both steps are satisfied, the trial court
should submit the lesser-included instruction to the jury if the defendant
requests it. See id. A trial court commits reversible error if it
refuses to submit an instruction on an issue that is supported by the evidence.
State v. Weeks, 165 Wis.2d 200, 208, 477 N.W.2d 642, 645 (Ct.
App. 1991). Whether the evidence adduced at trial requires a jury charge on the
lesser-included offense instruction is a question of law that we review de
novo. Id. In addition, we must view the evidence in a light
most favorable to the defendant. State v. Davis, 144 Wis.2d 852,
855, 425 N.W.2d 411, 412 (1988).
Second-degree
intentional homicide is a lesser-included offense of first-degree intentional
homicide because it is a less serious form of criminal homicide. See § 939.66(2), Stats.
Therefore, we need only address whether there was a reasonable basis in
the evidence for the jury to acquit Leonard of first-degree intentional
homicide and convict him of second-degree intentional homicide. Muentner, 138 Wis.2d at 387,
406 N.W.2d at 421.
At trial, Leonard argued
that since his criminal acts consisted solely of being a party to the crime of
first-degree intentional homicide (the state alleging his role was limited to
that of a co-conspirator/aider and abettor to the actual shooter), he should
automatically be entitled to the benefit of the lesser-included offense
instruction given to the shooter.
Alternately, at trial Leonard presented a theory—now abandoned—that his
phone call to his brother might be construed as a cry for help or a cry for
some kind of a defense which would provide sufficient basis to give a
lesser-included offense instruction.
In his appellate brief,
Leonard has argued for the first time that there were sufficient grounds in the
record for the second-degree intentional homicide instruction. Leonard submits that the jury could have
mixed and matched the various versions of the events, and if they believed
parts of each, he could be found guilty of second-degree intentional
homicide. Leonard contends that the
jury could have believed, as related by Roby, that there was a conspiracy to
ambush Davis, but the jury could then also have believed the part of Andre's
story in which he related that he only shot Davis to protect his brother, when
he realized Davis was pointing a gun at his brother’s head.
With respect to the new
theory Leonard raised in his appellate brief, the State submits that under the
dictates of State v. Rogers, 196 Wis.2d 817, 539 N.W.2d 897 (Ct.
App. 1995), Leonard has waived this argument.
We agree. Generally, “a party
seeking reversal may not advance arguments on appeal which were not presented
to the trial court.” Id.
at 826, 539 N.W.2d at 900.
[This] rule is based on a policy of
judicial efficiency. By forcing parties
to make all of their arguments to the trial court, it prevents the extra trials
and hearings which would result if parties were only required to raise a
general issue at the trial level with the knowledge that the details could
always be relitigated on appeal.
Id. at
827, 539 N.W.2d at 901 (citation omitted).
Leonard never presented this theory to the trial court; thus, he did not
preserve the argument for our review.
It is also Leonard's
contention that he is entitled to the same instructions given to his brother's
jury. His brother, Andre, successfully
argued at trial that the lesser-included offense instruction of second-degree
intentional homicide be given to the jury.
The trial court reasoned that Andre’s version of the events, if
believed, warranted the giving of the second-degree instruction. Andre’s version denies any conspiracy or
plan among himself, his brother and Roby.
Andre testified he fortuitously appeared on the scene to witness his
brother and Davis exit the tavern.
Believing his brother was in danger of being injured as Davis was
pointing a gun at him, he shot Davis.
Accordingly, the trial court found that he was entitled to the
second-degree intentional homicide instruction because his account, if true,
would fall within the mitigation provisions of § 940.01(2)(b), Stats.[1]
As the State correctly
argued, however, none of the three versions of the homicide presented, when
viewed separately, reasonably required the trial court to give Leonard's jury
the second-degree homicide instruction.
In Roby's version, Leonard, Andre, and Roby planned an ambush with
Leonard enticing the victim outside. In
this version, the jury could conclude that each was a party to the crime of
first-degree intentional homicide. In
Andre's version, the jury could reasonably conclude that there was no prior
plan to shoot Davis. Andre suggested
that he happened to come to the bar at the exact moment his brother and Davis
walked out. In this version, Leonard
was guilty of no crime. Finally, in
Leonard's version, as related by his statements to the police, Leonard had a
conversation with his brother and Roby about Davis, but there was no plan to
harm him. In his version Leonard
claimed he knew nothing about the victim pointing a gun at him, and was
surprised to encounter his brother with a drawn gun when he stepped outside
with Davis. If the jury believed
Leonard's rendition, Leonard was, again, not guilty of any wrongdoing.
While the jury could
reasonably find Andre guilty of second-degree intentional homicide based on the
presented evidence, none of the versions, even when viewed most favorably to
Leonard, would allow a reasonable jury to acquit Leonard of first-degree
intentional homicide and convict him of second-degree intentional homicide. In denying Leonard’s request for this
lesser-included offense, the trial court stated: “[E]xamining the evidence, [this court] could not find any other
facts that would justify giving the instructions on second-degree .... There still must be an evidentiary basis for
the Court to give those instructions and the Court found none.” We agree.
Under the above three versions of the evidence, Leonard was either
guilty of first-degree intentional homicide or no criminal homicide at
all. As such, the trial court did not
err in refusing to give the lesser-included jury instruction.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Section 940.01(2)(b), Stats., provides:
(2) MITIGATING CIRCUMSTANCES. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd‑degree intentional homicide under s. 940.05:
....
(b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.