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COURT OF APPEALS DECISION DATED AND RELEASED JULY 30, 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. 96-0642-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
EMMANUEL PAGE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: STANLEY A. MILLER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Following a jury trial, Emmanuel Page was convicted of
two counts of first-degree intentional homicide while armed, party to the
crime, and one count of attempted armed robbery, party to the crime. The trial court sentenced Page to two
consecutive life terms, with parole eligibility dates, respectively, of thirty
and twenty years on the two homicide counts.
The trial court then imposed and stayed a twenty-year term of
imprisonment for the attempted armed robbery, consecutive to the second
homicide count, and ordered Page placed on probation for ten years.
Page filed a
postconviction motion for a new trial, alleging that the trial court erred
when it failed to give lesser-included jury instructions of felony murder and
first-degree reckless homicide as to counts one and two of the amended
information. The trial court denied the
motion.
On appeal, Page's
counsel, Attorney Robert A. Kagen, has filed a no merit report pursuant to Rule 809.32, Stats., and Anders v. California, 386 U.S. 738
(1967). Page filed a response to the no
merit report and Attorney Kagen filed a reply.[1] Based upon our review of the no merit
report, Page's response, Attorney Kagen's reply to the response, and an
independent review of the record, we conclude that there is no arguable merit
to any issue that could be raised in this appeal. Therefore, we affirm the circuit court's judgment and order.
The no merit identifies
three possible issues: (1) whether the trial court erred in refusing to give
certain lesser-included jury instructions; (2) whether the evidence was
sufficient to support Page's convictions; and (3) whether the trial court
abused its discretion when sentencing Page.
Page's response raises two additional potential issues: (1) whether the
trial court properly instructed the jury on reasonable doubt; and (2) whether
the trial court properly instructed the jury on intent.
1. Propriety of denying lesser included offense
instructions
The trial court
conducted a jury instruction conference following the close of testimony in the
case. At the hearing, the State
requested instructions on lesser included offenses of felony murder and
first-degree reckless homicide for each count of first-degree intentional
homicide. Despite counsel's objections,
Page argued against the trial court's giving any lesser included jury
instructions. The trial court
ultimately agreed with Page and denied the State's request.
Even if the trial court
erred in denying the State's request for lesser included offense instructions,
that error cannot form the basis of a successful appeal. That is because " a defendant cannot
complain of the failure to instruct on an included offense unless he has asked
for that instruction." Green
v. State, 38 Wis.2d 361, 364, 156 N.W.2d 477, 479 (1968). Because Page did not preserve the alleged
error for review by joining in the State's request, he was barred from raising
the alleged error in his postconviction motion, and he is barred from raising
it on appeal.
2. Sufficiency of the
evidence
We will not reverse a
conviction unless the evidence, viewed in the light most favorable to the State
and jury's verdict, is so lacking in probative value and force that, as a
matter of law, no reasonable trier of fact could have found guilt beyond a
reasonable doubt. State v.
Poellinger, 153 Wis.2d 493, 503-504, 451 N.W.2d 752, 756 (1990).
The
test is not whether this court or any of the members thereof are convinced [of
the defendant's guilt] beyond reasonable doubt, but whether this court can
conclude the trier of facts could, acting reasonably, be so convinced by
evidence it had a right to believe and accept as true.... The credibility of the witnesses and the
weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view
the evidence in the light most favorable to the finding.
Id.
(citation omitted).
Overwhelming evidence
supports Page's convictions of the crimes charged. Page admitted in his confession to police that he and his
companions, armed with handguns and an AK-47 rifle, went to an apartment they
believed was a drug house with the purpose of robbing its occupants. Shortly after their arrival, a struggle
ensued between members of Page's group and certain occupants of the drug
house. Page opened fire with his .38
caliber handgun. More gun fire erupted
and two men were shot. One of the
residents of the drug house, John Guirau, testified at trial. He described the botched robbery, the chaos
during the gunfire and the subsequent deaths of his roommate Daniel Valentin
and their acquaintance, Felix Rodriguez.
Guirau identified Page as the assailant who had put a gun to his head
during the altercation. We determine
that this evidence, viewed in the light most favorable to the jury's verdict,
is of sufficient probative value and force for a reasonable jury to find Page
guilty as a party to the crime of two counts of first degree intentional
homicide and attempted robbery, while armed.
3. Adequacy of reasonable doubt and intent jury
instructions
Page claims that the
trial court failed to instruct the jury on either reasonable doubt or intent in
it's final charge to the jury. The
record belies these claims. The trial
court read Wis J I—Criminal 140,
"Burden of Proof and Presumption of Innocence," to the jury. That instruction addresses the reasonable
doubt. The trial court's instructions
to the jury on intent were embodied in additional instructions it gave,
including Wis J I—Criminal 1010
on first degree intentional homicide, Wis
J I—Criminal 580 on attempt, Wis
J I—Criminal 1480 on armed robbery, and Wis J I—Criminal 400 on parties to crime. We conclude that the record does not support
Page's allegation on this matter.
4.
Sentencing
It
is a well-settled that the trial court exercises discretion in sentencing, and
on appeal, review is limited to determining if discretion was erroneously
exercised. State v. Larsen,
141 Wis.2d 412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987). The primary factors to be considered by the
trial court are the gravity of the offense, the character and rehabilitative
needs of the offender, and the need to protect the public. State v. Paske, 163 Wis.2d 52,
62, 471 N.W.2d 55, 59 (1991). The court
must also consider the defendant's criminal record and his attitude, including
whether he shows remorse. Id. An erroneous exercise of discretion occurs
if the trial court fails to state on the record the factors influencing the
sentence or if too much weight is given to one factor in the face of
contravening factors. Larsen,
141 Wis.2d at 428, 415 N.W.2d at 542.
The weight to be given to each of the factors, however, is for the trial
court to determine. Id.
Appellate review is
tempered by a strong policy against interfering with the sentencing discretion
of the trial court. Id.
at 426, 415 N.W.2d at 541. The trial
court is presumed to have acted reasonably, and the defendant bears the burden
of showing from the record that the sentence was unreasonable. State v. Haskins, 139 Wis.2d
257, 268, 407 N.W.2d 309, 314 (Ct. App. 1987).
Before imposing sentence
in this case, the trial court reviewed Page's criminal history and prior
convictions. The trial court noted that
Page seemed to be "drifting through life," as he exhibited difficulty
following the law, an inability to be productive, and the willingness to
associate with criminals bent on violating the law. The trial court considered the gravity of the present crimes and
Page's lack of appreciation of his role in the killings that occurred.
This record demonstrates
that the trial court considered Page's character, the gravity of these offenses
and the obvious need to protect the public from persons willing to engage in
the conduct underlying these convictions.
Accordingly, we conclude that the trial court considered the relevant
factors and properly exercised its discretion in imposing sentence.
Based on the record
before us, we conclude that any further appellate proceedings on behalf of Page
would be frivolous and wholly without arguable merit within the meaning of Anders
and Rule 809.32, Stats.
Accordingly, we affirm the judgment of conviction. Attorney Kagen is relieved of any further
representation of Page in this appeal.
By the Court.—Judgment
and order affirmed.