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COURT OF APPEALS
DECISION
DATED AND FILED
December 14, 2010
A.
John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Tony Lamont Jackson,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: M.
JOSEPH DONALD, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 BRENNAN, J. Tony Lamont Jackson
appeals the trial court’s judgment entered after a jury found him guilty of
second-degree reckless homicide, contrary to Wis.
Stat. § 940.06(1) (2007-08),
and of being a felon in possession of a firearm, contrary to Wis. Stat. § 941.29(2)(a). He also appeals the trial court’s order
denying his postconviction motion. More
specifically, Jackson
alleges that: (1) the trial court should
have suppressed his confession because he was in custody when he confessed and
he had not been read the Miranda warnings; and (2) the trial
court erred in failing to instruct the jury on the lesser-included offense of
homicide by negligent handling of a dangerous weapon. We affirm the trial court.
BACKGROUND
¶2 On May 2, 2007, the State filed a criminal complaint charging
Jackson with
first-degree reckless homicide and of being a felon in possession of a
firearm. The complaint alleged that on
April 29, 2007, Milwaukee police were dispatched
to 701 West Maple Street
in the City of Milwaukee
in response to a call of “shots fired.”
Upon arrival, police determined that Anicka Labourgeois had been shot
and she was transferred to the hospital.
¶3 Shortly after arriving on the scene, in an effort to
determine what happened and identify additional witnesses, Milwaukee Police
Detective Erik Gulbrandson spoke with Jackson, a witness to the crime, who was
Labourgeois’s boyfriend and the father of her unborn child. Detective Gulbrandson testified that
his purpose in speaking with Jackson
was to question him as a witness to the shooting. To that end, Detective Gulbrandson spoke with
Jackson for approximately
two hours—from 12:00 a.m. until 2:00 a.m.
The interview took place in an unmarked police car, with Jackson seated in the
front passenger’s seat and Detective Gulbrandson in the driver’s seat. Jackson
was not handcuffed or otherwise restrained.
¶4 While seated in the car, Jackson told Detective Gulbrandson about a
fight that occurred just prior to the shooting, involving several females. Detective Gulbrandson then asked Jackson if he would come
down to the police station to look at photographs and help identify the
individuals involved in the fight. Jackson agreed and Detective Gulbrandson arranged for
another officer to transport Jackson
to the station while Detective Gulbrandson remained at the scene to assist in
the investigation. Detective Gulbrandson
informed the transporting officer that Jackson
was not in custody and while Jackson
was transported to the police station he was not restrained in any manner.
¶5 After Jackson was transported to the police station,
Detective Gulbrandson learned that Labourgeois had died. Between approximately 2:30 a.m. and 2:45 a.m.,
Detective Gulbrandson returned to the police station. Once back at the station, Detective
Gulbrandson attempted to identify the individuals who Jackson had described at the scene and
participated in a briefing with detectives on the next shift. Meanwhile, Jackson was waiting for Detective Gulbrandson
in an interview room, with concrete walls and no windows other than one in the
door, which was locked from the inside. Detective Gulbrandson testified that the room
was locked, not because Jackson was in custody, but “because there are people
[in the police station] that actually are in custody, and we can’t allow people
to roam the halls free, as they would be able to open the other rooms and it
puts them at risk as well as other people in the building at risk.” However, Detective Gulbrandson stated that
routine checks of the room were made and that if Jackson had expressed a desire to leave he
would have been able to do so.
¶6 At 4:17 a.m., Detective Gulbrandson was able to continue his
interview with Jackson
with another detective present.
Detective Gulbrandson began the interview by introducing the other
detective, going over the story that Jackson
had previously provided, and asking a few follow-up questions. Approximately twenty minutes into the
interview, Jackson
asked how Labourgeois was doing.
Detective Gulbrandson informed Jackson
that Labourgeois had passed away. Jackson began to cry and
asked Detective Gulbrandson if he was serious.
When Detective Gulbrandson assured Jackson
that he was, Jackson
continued to cry and admitted that he had accidentally shot Labourgeois. At the time of Jackson’s admission he was not handcuffed or
restrained in any manner. Detective
Gulbrandson testified that after Jackson’s
confession he and the other detective immediately stopped the interview. They subsequently obtained a recording device
and escorted Jackson
into another interview room.
¶7 Upon entering the new room, Detective Gulbrandson advised Jackson of the Miranda
warnings. Detective Gulbrandson
testified that when he asked Jackson if he
understood the warnings, Jackson said “yes,” and
that he then asked Jackson if he wanted to talk
and Jackson
replied: “[Y]eah, we can talk.” This post-Miranda interview at the
police station is not part of Jackson’s
present appeal.
¶8 Jackson filed a motion to
suppress his confession,
arguing that there was no evidence that Jackson
waived the Miranda warnings after they were read to him in the second
interview room. A hearing was held on May 27, 2008, at which
Detective Gulbrandson was the only witness.
The trial court denied the motion.
¶9 A jury trial was held on May 28 through June 2, 2008, after
which, the jury found Jackson guilty of the lesser-included offense of
second-degree reckless homicide and of being a felon in possession of a
firearm.
¶10 On November 18, 2009, Jackson
filed a motion for postconviction relief, contending that: (1) he was in custody when he confessed to
the shooting and should have been read the Miranda warnings; and (2) the trial
court erred in denying his request to include a lesser-included offense jury
instruction for homicide by negligent handling of a dangerous weapon. The trial court denied the motion. Jackson
appeals.
DISCUSSION
¶11 Jackson raises two claims on appeal: (1) that the trial court should have
suppressed his confession because when he admitted to shooting Labourgeois he
was in custody and had not been read the Miranda warnings; and (2) that the
trial court erred in failing to instruct the jury on the lesser-included
offense of homicide by negligent handling of a dangerous weapon. We address each contention in turn.
I. Jackson was not in
custody when he confessed to shooting Labourgeois.
¶12 Jackson
first argues that the trial court should have suppressed his confession because
at the time it was given he was in custody and he had not been read the Miranda
warnings. The State disagrees and
further argues that Jackson
waived his custody claim when he failed to argue it before the trial court
during the initial suppression hearing.
While it is true that Jackson
did not raise the custody claim in his initial suppression motion, he did raise
it in his postconviction motion, giving the parties and the trial court an
opportunity to address it at the trial level. Accordingly, we will exercise our discretion
to address Jackson’s
custody claim on appeal. See State v. McMahon, 186 Wis. 2d 68, 93, 519 N.W.2d 621 (Ct. App.
1994).
¶13 “In Miranda [v. Arizona, 384 U.S. 436 (1966)],
the United States Supreme Court held that law enforcement officers conducting a
custodial interrogation must employ procedural safeguards sufficient to protect
a defendant’s Fifth Amendment and Fourteenth Amendment privilege against
compelled self-incrimination.” State
v. Armstrong, 223 Wis.
2d 331, 351, 588 N.W.2d 606 (1999) (citations and quotation marks
omitted). Police are required to read
those procedural safeguards, commonly known as the Miranda warnings, to
suspects in custody and under interrogation. Id. at
351-52. Here, the parties agree that Jackson confessed to shooting Labourgeois before being
read the Miranda warnings, but the State argues that Miranda
warnings were not necessary because Jackson
was not yet in custody. We agree.
¶14 Whether a
person is in custody for Miranda purposes is a question of law we
review de novo. State v. Buck, 210 Wis. 2d 115, 124, 565
N.W.2d 168 (Ct. App. 1997). To determine
whether Jackson was in custody at the time he confessed to shooting
Labourgeois, we look at the totality of the circumstances, see State v. Gruen, 218 Wis. 2d 581, 593-94,
582 N.W.2d 728 (Ct. App. 1998), and ask if a reasonable person would have
considered himself in custody, see Berkemer v. McCarty,
468 U.S. 420, 442 (1984); State v. Koput, 142 Wis. 2d 370, 380,
418 N.W.2d 804 (1988).
¶15 When
determining whether under the totality of the circumstances “a
reasonable person would have considered himself in custody” we look at such
factors as the “defendant’s freedom to leave the
scene; the purpose, place and length of the interrogation; and the degree of
restraint.” Gruen, 218 Wis. 2d at 594. When exploring the degree of restraint, we
can consider as relevant factors:
(1) whether the
defendant was handcuffed; (2) whether a gun was drawn on the defendant; (3)
whether a Terry frisk was performed; (4) the manner in which the
defendant was restrained; (5) whether the defendant was moved to another
location; (6) whether the questioning took place in a police vehicle; and (7)
the number of police officers involved.
Id. at 594-96 (footnotes and citations omitted). The burden is on the State to disprove
custody by a preponderance of the evidence.
See Armstrong, 223 Wis. 2d
at 351.
¶16 Jackson first
argues, without explanation, that he was in custody, and therefore should have
been read the Miranda warnings, at the scene of the crime when he was interviewed
by Detective Gulbrandson in the front passenger’s seat of the unmarked police
car. The facts do not support his
assertion.
¶17 When Jackson
was questioned by Detective Gulbrandson at the scene of the shooting, Jackson sat in the front
passenger’s seat of the unmarked police car, as opposed to the back of the
police car where those individuals in custody are typically held. Jackson
was not handcuffed or otherwise restrained and there is no evidence that he could
not have exited the car at any time.
Moreover, Jackson was in the car because
police had been told Jackson
had just witnessed a serious crime.
There is simply no evidence to support the assertion that Jackson was in custody
when Detective Gulbrandson talked to him at the scene.
¶18 In the
alternative, Jackson
contends that he was in custody at 4:17 a.m. when Detective Gulbrandson
first questioned him at the police station.
Jackson asserts that a reasonable person would believe he was in custody
at that time because: (1) he was taken
from the scene to the police station in a marked police car; (2) he was placed
in a locked interview room at the police station for two hours and seventeen
minutes; and (3) the room was made of cinder block walls and had no windows
except for one in the door. In
short, when these factors are placed in context with the other circumstances
surrounding Jackson’s confession, we are not
persuaded that Jackson
was in custody.
¶19 First, while Jackson
was taken from the scene in a marked police car, he went voluntarily. Jackson had consented to Detective
Gulbrandson’s request that Jackson go to the police station to try to identify
some of the individuals that he claimed he saw fighting with Labourgeois the
night she was shot. The fact that
Detective Gulbrandson remained at the scene while Jackson
rode with another officer indicates Jackson
was not a suspect. That the car used to
transport Jackson to the police station was a marked police car does not mean
Jackson was in custody because Jackson went down to the police station under
his own volition to assist the police in identifying possible suspects.
¶20 Second, Jackson does not argue that he knew that the room in
which he was sitting at the police station was locked and even if he did know,
Detective Gulbrandson sufficiently explained why the door was locked:
The reason for the room being secured is because there
are people that actually are in custody, and we can’t allow people to roam the
halls free, as they would be able to open the other rooms and its puts them at
risk as well as other people in the building at risk.
Moreover, Jackson was not in the room unduly long. He was in the room for only two hours and
seventeen minutes while Detective Gulbrandson wrapped up other
matters—including surveying the scene and briefing the next shift of detectives—and
Jackson was routinely checked on while he waited.
¶21 Third, while the accommodations were perhaps a little sparse, Jackson was not
restrained, and sparse accommodations are hardly enough to establish
custody.
¶22 Consequently, we agree with the trial court that Jackson was not in custody
until after he confessed to shooting Labourgeois. Up until that moment, Jackson had voluntarily come to the police
station as a citizen witness to a crime.
He presented no evidence that he was aware that he was in a locked
interview room. And the State has shown
that the room was locked for Jackson’s
own safety and the safety of those in the building. Simply stated, a reasonable person in Jackson’s position would
not have believed he was in custody.
II. The trial court did not err in failing
to instruct the jury on the lesser‑included offense of homicide by
negligent handling of a dangerous weapon.
¶23 Next, Jackson
argues that the trial court erred in denying his request for a jury instruction
on the lesser-included offense of homicide by negligent handling of a dangerous
weapon. The State argues that the trial
court did not err because reasonable grounds did not exist for both acquittal
of the second-degree reckless homicide charge and conviction of homicide by
negligent handling of a dangerous weapon.
We agree.
¶24 “A trial court engages in a two-step analysis in determining
whether to submit a lesser-included offense jury instruction.” State v. Morgan, 195 Wis. 2d 388,
433-34, 536 N.W.2d 425 (Ct. App. 1995).
First, the trial “court must determine whether the crime is a
lesser-included offense of the charged crime.”
Id.
at 434. Then, the trial “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 and if
the defendant requests it, the trial court should then submit the
lesser-included offense instruction to the jury. Id. “A trial court commits reversible error if it
refuses to submit an instruction on an issue that is supported by the
evidence.” Id.
Whether a trial court should have instructed the jury on a
lesser-included offense 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.” Id.
¶25 Here, the parties agree that homicide by negligent handling of
a dangerous weapon is a lesser-included offense of second-degree reckless
homicide. Accordingly, our analysis
turns on whether there is a reasonable basis in the evidence for the jury to acquit
on second-degree reckless homicide and to convict on homicide by negligent
handling of a dangerous weapon.
¶26 When faced with the same question, the trial court concluded
that no reasonable basis existed for a conviction on homicide by negligent
handling of a dangerous weapon, founding its decision on Jackson’s defense—that he was shooting at a
passing vehicle, purportedly in self-defense, and did not mean to hit
Labourgeois. The trial court held as follows:
With respect to that instruction, and I too find it
difficult to accept one version of events; that the defendant somehow feared
for his safety, and that is the reason why he intentionally fired the gun, then
to say that somehow this was a negligent handling of a dangerous weapon. There is nothing negligent about
intentionally pulling the trigger and firing the gun. The only negligent aspect of it is that the
defendant was intending to shoot at some other target and not necessarily the
victim in this matter, but that doesn’t necessarily make this a negligent
handling case.
And although the parties are
correct in that [homicide by negligent handling of a dangerous weapon] is a
lesser included [offense], the facts in the case do not support that; namely,
because the defendant, in essence, is asking for the instruction of
self-defense. And even though the
defendant may have believed that the force was necessary, or even if that
belief was mistaken, that is sort of the argument in the case, and not that it
was just a negligent handling of a dangerous weapon because it is clear from
the testimony thus far, the evidence offered, that the defendant intended to
fire the gun.
We agree with the trial court
that Jackson’s
defense—that he was intentionally shooting at a moving vehicle in self-defense
and hit Labourgeois by mistake—is inconsistent with a finding of guilty on the
homicide-by-negligent-handling-of-a-dangerous-weapon offense.
¶27 In order for a jury to find a defendant guilty of homicide by
negligent handling of a dangerous weapon, it must be satisfied beyond a
reasonable doubt that: (1) “[t]he
defendant operated or handled a dangerous weapon”; (2) “[t]he defendant
operated or handled a dangerous weapon in a manner constituting criminal
negligence”; and (3) “[t]he defendant’s operation or handling of a dangerous
weapon in a manner constituting criminal negligence caused the death of [the
victim].” Wis JI—Criminal 1175.
¶28 In Lofton v. State, 83 Wis.
2d 472, 266 N.W.2d 576 (1978), the supreme court affirmed the trial court’s
decision not to give a lesser-included instruction on homicide by negligent
handling of dangerous weapon. In Lofton,
the defendant brought out a loaded gun in an attempt to convince her
brother-in-law to move his car during a heated argument and later alleged she
shot him accidentally. Id. at 477, 488-89. The supreme court concluded that:
by wielding a gun in this situation the defendant
demonstrated more than ordinary negligence to a high degree—she demonstrated a
conscious disregard for the safety of another and a willingness to take known
chances of perpetrating injury. This was
not a situation of people calmly discussing a problem and casually examining a
weapon. It is because of the violent
situation in which the defendant brought out the gun that her actions
constitute reckless conduct rather than a high degree of negligence.
Id. at 489.
¶29 Similarly, when Jackson
made a conscious decision to pick up a gun and shoot at a vehicle on a public
street he “demonstrated more than ordinary negligence to a high degree.” See
id. Instead, Jackson’s actions “demonstrated a conscious
disregard for the safety of another and a willingness to take known chances of
perpetrating injury.” See id.
While Jackson
may not have intended to cause Labourgeois harm, he certainly intended to cause
someone harm. And by choosing to effectuate that harm by
shooting at a moving vehicle on a public street he demonstrated something more
than negligence.
¶30 Jackson
contends that Lofton is inapplicable because the defendant in Lofton
“pulled out a gun and shot the victim at point blank range. The victim was the defendant’s intended
target.” Jackson asserts that because he intended to
shoot someone other than the victim he could be found merely negligent. We fail to see how it matters for purposes of
conviction of homicide by negligent use of a dangerous weapon who a bullet hits when the intent of the
shooter was to hit a person. If anything, the defendant in Lofton
puts forth a better case for negligence than Jackson because the defendant in Lofton
alleged that she did not intend to shoot the gun at all, as opposed to claiming
that she intended to shoot someone else and missed.
¶31 Moreover, Jackson
argues that by interpreting the homicide-by-negligent-use-of-a-dangerous-weapon
statute in this manner “a person who intentionally uses a dangerous weapon
could never be guilty of negligent homicide.”
According to Jackson,
under our interpretation:
[t]he statute would be reserved for those persons who,
for example, were in possession of a loaded gun and dropped the weapon on the
ground accidentally, causing the gun to discharge and kill somebody. The defense would not be available to the person
at the shooting range with poor eyesight or a lousy marksman. Indeed, Jackson
appears to fall into this latter category.
We find the comparison of
Jackson—who intentionally shot at a moving vehicle on a public street,
presumably to injure whoever was inside—to a lousy marksman at a shooting
range—who aims his weapon in a location designated for such a purpose and with
the intent to hit an inanimate object—to be disingenuous at best. Jackson picked
up a gun with the intent to hit a person in a moving vehicle, that Jackson injured the wrong
person was the tragic risk he took when firing the shot. His actions were not negligent, and,
therefore, the trial court did not err in refusing to submit an instruction on
negligence to the jury.
By the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.