COURT OF APPEALS
DATED AND FILED
April 27, 2011
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
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.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
Darron D. Jackson,
from a judgment and an order of the circuit court for Racine County: stephen
a. simanek, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
¶1 BROWN, C.J. Darron
Jackson appeals his conviction for recklessly endangering safety while armed,
contrary to Wis. Stat. §§ 941.30(1)
& 939.63 (2009-10).
was fifteen years old when he was charged with attempted first-degree
intentional homicide, contrary to Wis.
Stat. §§ 940.01(1)(a) & 939.32, for firing a gun at another
person. After the close of evidence, the
State moved to include recklessly endangering safety while armed as a lesser
included offense. Jackson’s counsel objected on the basis that
the evidence was insufficient for this lesser included. The trial court allowed it and he was
convicted of the lesser offense. He now
alleges several errors in that conviction, including that recklessly
endangering safety while armed is not a lesser included offense of attempted
first-degree intentional homicide. Even
if that issue is waived for failing to object on this basis, he argues that his
attorney was ineffective. We
disagree—there was waiver and because trial counsel is not ineffective when the
law is unsettled, as it is in this case, counsel was not ineffective here. Jackson
also makes several other arguments, none of which persuade. We affirm.
¶2 On May 28, 2008, Jackson
fired a gun at, and missed, Christopher Brown.
Several people were present when the crime occurred, including Brown’s
stepfather, who identified Jackson
as the shooter. Although Jackson was only fifteen
when he was charged, the charges against him were serious enough to give the
adult court original jurisdiction. See Wis.
Stat. § 938.183(am). Jackson petitioned for
reverse waiver into juvenile court. After his petition was denied, he was tried
in adult court.
¶3 When the police interviewed Jackson, he initially denied he was at the
scene of the shooting. Eventually, he
admitted he was present, but he maintained his denial of being the
shooter. Before trial, Jackson moved to suppress his statements to
the police alleging that his statements were involuntary and without adequate
waiver of his Miranda rights. The motion was denied, and a video recording
of the interrogation was played at trial.
¶4 At trial, the victim’s stepfather identified Jackson as the shooter. Other witnesses,
including the victim and his mother, were unable to do the same. The victim’s brother, who had previously
out in a line-up, testified that he did not know who had shot at Brown. He also testified that when he picked Jackson out of the
line-up, it was in response to the police asking him to point out a person
called “Big Bub.”
¶5 As we indicated at the outset, when both sides had rested,
the State asked for a lesser included offense instruction for first-degree
reckless endangerment of safety, with the penalty enhancer “while armed.” Jackson’s
counsel objected that the facts adduced at the trial did not fit the lesser
included instruction. The objection was
overruled, and the instruction was given.
The jury convicted Jackson
of recklessly endangering safety while armed.
was convicted of the lesser offense rather than the offense that was originally
charged, he moved the court for reverse waiver for a second time after
trial. His motion was denied, and he was
sentenced in adult court. He
subsequently filed a postconviction motion, which was denied in its entirety,
and we have this appeal.
brief raises three issues in addition to the one we deem to be the major
issue. Those are: that his statements to police were wrongfully
admitted at trial; that during closing arguments, the prosecutor made several
inappropriate comments which he claims prejudiced him; and that, if we are to
allow the recklessly endangering safety conviction to stand, then since that
crime would not have been grounds for waiver into adult court had it been
originally charged, the burden placed on him at his post-trial reverse waiver
hearing was unconstitutional. We will
address these arguments after the lesser included offense discussion.
Lesser Included Offense
argues that the lesser included offense instruction was “reversible error”
because recklessly endangering safety while armed is not a lesser included
offense of attempted first-degree intentional homicide. If we are to find waiver, he alternatively
argues that his trial counsel was ineffective for failing to object properly to
¶8 We hold that there was waiver here. The objection made, that the evidence was
insufficient to support the lesser included instruction, is an altogether
different one than a claim that the elements of the proposed “lesser” charge
are different than the main charge and, therefore, cannot be called a “lesser
included” crime. Had the proper
objection been made, the prosecutor may have disregarded the “while armed”
portion of the request for the lesser included in order to be safe. Or, the trial court may not have allowed the
lesser included. We do not, of course,
know for sure what would have happened.
But we rarely reverse a trial court for something that it was never
allowed to decide and we will not do so here.
See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287
N.W.2d 140 (1980), superseded by statute
on other grounds.
¶9 Because we find waiver, for Jackson’s lesser included offense issue to
have any traction, it must come under the guise of ineffective assistance of
counsel. See State v. Koller, 2001 WI
App 253, ¶44, 248 Wis. 2d
259, 635 N.W.2d 838. As such, Jackson must show that
his trial counsel’s performance was constitutionally deficient, and that as a
result, he suffered actual prejudice. See Strickland v. Washington,
668, 687 (1984). Whether counsel’s
performance was deficient and prejudicial is a question of law which we review
de novo, though we will uphold the trial court’s findings of fact unless they
are clearly erroneous. State
v. Johnson, 153 Wis.
2d 121, 127-28, 449 N.W.2d 845 (1990).
Deficient performance is judged by an objective test, not a subjective
v. Kimbrough, 2001 WI App 138, ¶31, 246 Wis. 2d 648, 630 N.W.2d 752. So, regardless of defense counsel’s thought
process, if counsel’s conduct falls within what a reasonably competent defense
attorney could have done, then it was not deficient performance. See
¶10 When the law is unsettled, the failure to raise an issue is
objectively reasonable and therefore not deficient performance. See
Maloney, 2005 WI 74, ¶23, 281 Wis. 2d
595, 698 N.W.2d 583. When case law can
be reasonably analyzed in two different ways, then the law is not settled. State v. McMahon, 186 Wis. 2d 68, 84, 519
N.W.2d 621 (Ct. App. 1994). Here, the
State submits that the law as to the elements of recklessly endangering safety
while armed was unsettled, and therefore Jackson’s
trial counsel’s performance was not deficient.
We agree, but for different reasons than asserted by the State—as we
shall soon discuss.
uses an “elements-only” test to determine if a crime is a lesser included
offense of another. State v. Carrington, 134 Wis. 2d 260, 264,
397 N.W.2d 484 (1986) (Carrington II). A lesser included offense may not include an
additional element beyond those essential for conviction of the crime
charged. Id. at 265. Unquestionably, in order to convict a person
of attempted first-degree intentional homicide, the State need not show that
the person was armed. However, the
“while armed” component of the charge is actually a penalty enhancer under Wis. Stat. § 939.63, not part of
the statutory definition of recklessly endangering safety. The parties dispute whether the “while armed”
penalty enhancer is also unequivocally
an element of recklessly endangering safety while armed.
¶12 Recklessly endangering safety is a lesser included offense of
attempted first-degree intentional homicide.
Hawthorne v. State,
99 Wis. 2d 673, 681-82, 299 N.W.2d 866
(1981) (endangering safety by conduct regardless of life is a lesser included
offense of attempted first-degree intentional homicide); State v. Weeks, 165 Wis. 2d 200, 205-06
& n.5, 477 N.W. 2d 642 (Ct. App. 1991) (the current offense of recklessly
endangering safety is analogous to the older endangering safety by conduct
regardless of life). However, the
parties could point us to no case law definitively stating that the “while
armed” penalty enhancer always constitutes an element for the purpose of
determining whether something is a lesser included offense. In State v. Carrington, 130 Wis. 2d 212,
221-22, 386 N.W.2d 512 (Ct. App. 1986) (Carrington I), rev’d on other grounds by Carrington
II, 134 Wis. 2d at 262, 268-69, we did hold that “while
armed” was not only a penalty enhancer, it was
also an element of the offense for purposes of the elements only test.
¶13 It is Jackson’s
contention that counsel was ineffective for failing to heed the pronouncement
I and object to the lesser included on the basis of that case. Jackson
acknowledges that Carrington I was reversed by the supreme court in Carrington
II. See Carrington II, 134 Wis. 2d
at 262. But he points out that
the reversal was on other grounds. See id.
at 267-69. Moreover, he argues
that the supreme court accepted the premise that “while armed” is an element of
recklessly endangering safety while armed.
¶14 The State points out that, in Carrington II, while the
supreme court did analyze the case based on “while armed” being an element, it
explicitly noted that the State had conceded that point. Id. at
267 n.5. The State therefore contends
II is not authority which bolsters Jackson’s position. It posits that a concession for the sake of
argument, which is adopted by the supreme court and is not thereafter the
subject of studied discussion, cannot be considered as a holding worthy of
precedential value. We agree with the
State and will not consider Carrington II as authority for the
proposition that “while armed” is an element.
But that begs the question of whether Carrington I compelled Jackson’s trial attorney
to object to the lesser included.
¶15 To this question, the State offers a couple of different
arguments, but we are convinced that they are without merit. We find it unnecessary to discuss these
arguments at length and relegate them to a footnote. But, we may affirm for reasons other than
those raised by the State. See State v. Holt, 128 Wis. 2d 110, 124-25, 382 N.W.2d 679 (Ct.
App. 1985), superseded by statute on
¶16 The simple reality is that the holding in Carrington I was based on
an altogether different factual situation than the one in this case. The posture of the case in Carrington
I was summarized by the court thusly:
instant case, the record shows that the criminal complaint identified the
charge against Carrington as “endangering safety by conduct regardless of life
while armed,” that the trial court described the charge to the jurors in those
terms, and that the jury was instructed to determine whether Carrington
committed the crime of endangering safety by conduct regardless of human life
while using a dangerous weapon. Clearly,
the element of “using a dangerous weapon” became
an element of the charge against Carrington.
Carrington I, 130 Wis. 2d at 221-22
(emphasis added). It is evident to us
that the case was prosecuted so as to include “while armed” as an element, and,
importantly, the jury was asked to consider the “while armed” portion as an
element. Therefore, by virtue of the
state of the record, the “while armed portion” became an element.
¶17 The posture of the case is different here. Since recklessly endangering safety while
armed was not added to the instructions until after testimony, the “while
armed” component was certainly not included as part of the offense in the
complaint. And, our review of the jury
instructions and verdict form reveals that the “while armed” penalty enhancer
had its own instruction, separate from the elements listed in the recklessly
endangering safety instruction.
¶18 The recklessly endangering safety instruction stated that the
offense has “three elements”:
The defendant endangered the safety of another human
The defendant endangered the safety of another by
criminally reckless conduct.
The circumstances of the defendant’s conduct show utter
disregard for human life.
Then, on the jury verdict form,
the jury was asked two separate questions regarding the lesser included
offense: whether it found Jackson guilty of recklessly endangering safety and
was armed while committing recklessly endangering safety. It answered “yes” to both. Under this record, it would be reasonable for
an attorney to believe that the jury was not being asked to consider the “while
armed” enhancer as an element for the purpose of deciding whether the Jackson
should be found guilty of the recklessly endangering safety charge as a lesser
included offense. We therefore are
convinced that counsel was not ineffective for failing to raise Carrington
¶19 We acknowledge that a reasonable attorney could have objected to the lesser included instruction given here,
based on Carrington I. But, since
the case can be reasonably limited to its specific fact situation, the trial
attorney’s failure to object was not deficient performance. See McMahon, 186 Wis. 2d at 84. Because of that, Jackson’s ineffective assistance of counsel
claim on this issue fails. We now
address the three remaining issues.
Statements to Police
¶20 We have a two-step standard of review for constitutional
questions. First, we uphold the trial
court’s findings of evidentiary or historical fact unless they are clearly
erroneous. See State v. Clappes, 136 Wis. 2d 222, 235, 401 N.W.2d 759
(1987). Then, we review de novo how
those facts apply to a constitutional standard.
Id. In police statement cases, the
threshold question is whether the defendant’s statement was coerced or the
product of improper police pressure. State
v. Hoppe, 2003 WI 43, ¶37, 261 Wis. 2d
294, 661 N.W.2d 407. To determine
voluntariness, we examine the totality of the circumstances surrounding the
confession to balance the personal characteristics of the defendant against any
coercive or improper conduct. State
v. Jerrell C.J., 2005 WI 105, ¶20, 283 Wis. 2d 145, 699 N.W.2d 110.
asserts that his interrogation was coercive.
Specifically, he contends that during the 1.5 hour interrogation, police
lied to him (by claiming that multiple witnesses had identified in a photo
lineup) and made “backhanded racial threats” (by stating “I’m not here to hang
you from a noose and say hey your life’s over”). Jackson
claims that these actions, in combination with his IQ of 73 and age, resulted
in an involuntary confession.
¶22 The State responds that, while it may not have been true that
multiple people had identified Jackson
in a lineup, one person had. And
misrepresentation or trickery does not make an otherwise voluntary statement
involuntary—it is only one factor to consider in the totality of the
circumstances. State v. Ward, 2009 WI
60, ¶27, 318 Wis. 2d
301, 767 N.W.2d 236. As we explained in State
v. Triggs, 2003 WI App 91, ¶19, 264 Wis. 2d 861, 663 N.W.2d 396,
Inflating evidence of [the defendant’s] guilt
interfered little, if at all, with his “free and deliberate choice” of whether
to confess, for it did not lead him to consider anything beyond his own beliefs
regarding his actual guilt or innocence, his moral sense of right and wrong,
and his judgment regarding the likelihood that the police had garnered enough
valid evidence linking him to the crime.
Id. (quoting Holland v. McGinnis, 963
F.2d 1044, 1051 (7th Cir. 1992)).
The same is true here—the officer exaggerated the evidence of Jackson’s guilt. This
does not make Jackson’s
¶23 As far as the officer’s statement to Jackson that he was not
there to hang him “from a noose” is concerned, the officer testified that his
intention was to minimize the offense, and that the possible racial undertones
never occurred to him. The trial court,
having reviewed the videotape of the interrogation, placed particular emphasis
on the officer’s physical demeanor while that statement was being made, as well
as throughout the interview. The trial
court did not view the officer’s demeanor as intimidating or coercive. After our review of the video, we concur.
¶24 Correlatively, Jackson
points out that police conduct need not be egregious to be coercive—“subtle
pressures are considered to be coercive if they exceed the defendant’s ability
to resist.” See Jerrell C.J., 283 Wis. 2d 145, ¶19
(citation omitted). Pressures that are
not coercive in one set of circumstances may be coercive in another set of
circumstances “if the defendant’s condition renders him or her uncommonly
susceptible to police pressures.” Id. Jackson
submits that he is like the defendant in Jerrell C.J., where our supreme
court decided that a juvenile’s confession was involuntary under the totality
of the circumstances. See id., ¶36. Jerrell, like Jackson, was a juvenile
with an IQ below average, a history of poor performance in school, and two
prior contacts with police. See Jerrell C.J., 283 Wis. 2d 145, ¶¶27-29.
¶25 The test, however, requires balancing the personal
characteristics of the defendant against any coercive or improper conduct. See id., ¶20. And while there are some similarities between
Jerrell and Jackson’s personal characteristics, the police conduct was very
different. As the State points out,
Jerrell was left alone for two hours, handcuffed to a wall. Id.,
¶33. Then, he was interrogated for five
and a half hours. Id.
Numerous requests to call his parents were denied. Id.,
¶10. Jackson, on the other hand, was brought in by
his father. Although he was alone with
an officer in the interrogation room, he was not handcuffed and the
interrogation lasted only one and a half hours.
He never did confess to a crime.
We agree with the State and the trial court that the totality of the
circumstances in this case do not support that Jackson’s statement was involuntary.
State’s Closing Arguments
¶26 Jackson complains that “[t]he prosecutor made impermissible
comments about witness credibility, attempted to shift the burden of proof to
Jackson, and essentially told the jury Jackson was in a gang, although neither
party proffered evidence that he was.” Jackson highlights three
specific statements made by the prosecutor during closing arguments. First, he claims that the prosecutor accused
witnesses of lying on the stand. Second,
he states that the prosecutor shifted the burden of proof by stating more than
once that the defendant had no obligation to put on a defense, but once he
chose to do so, the jury could hold him to a certain standard. Finally, he contends that the prosecutor
improperly implied that Jackson
was in a gang even though there was no evidence to that effect at trial.
¶27 In anticipation of the State’s arguing that Jackson
waived these arguments by failing to object to the statements at the trial
claims that the prosecutor’s statements were plain error. Alternatively, he alleges that his trial
counsel was ineffective for failing to object to them. For us to find plain error, the error must be
“obvious and substantial.” State
v. Sonnenberg, 117 Wis. 2d
159, 177, 344 N.W.2d 95 (1984).
Regarding the ineffective assistance claim, as we said in our earlier
discussion on ineffective assistance of counsel, there must be deficient performance,
which means counsel must have performed below an objective standard of
reasonableness. See Koller, 248 Wis. 2d
¶28 Our supreme court has explained that prosecutors have
significant latitude with their closing arguments:
[C]ounsel in closing argument should be allowed
“considerable latitude,” with discretion to be given to the trial court in
determining the propriety of the argument.
The prosecutor may “comment on the evidence, detail the evidence, argue
from it to a conclusion and state that the evidence convinces him and should
convince the jurors.”
The line between permissible and impermissible argument
is thus drawn where the prosecutor goes beyond reasoning from the evidence to a
conclusion of guilt and instead suggests that the jury arrive at a verdict by
considering factors other than the evidence.
State v. Draize, 88 Wis. 2d 445, 454,
276 N.W.2d 784 (1979) (citations omitted).
The court went on to state that “we will not throttle the advocate by
unreasonable restrictions so long as the comments relate to the evidence.” Id. at
¶29 Jackson’s first two
arguments involve comments made by the prosecutor about conclusions the jury
should draw from evidence, which means the prosecutor should be afforded
“considerable latitude.” See id.
at 454 (citation omitted). And
did not object to the comments at trial, we will not reverse unless the
comments were so obviously improper that the failure to object was plain error
or deficient performance by counsel. See Sonnenberg,
117 Wis. 2d at 177; Koller, 248 Wis. 2d 259,
¶¶53-56. Accusing a witness of lying,
based on the evidence, is not even close to being beyond the pale. Nor is the comment that, once a defendant
chooses to put witnesses on the stand, those witnesses are subject to “some type
of standard.” Although Jackson argues that this comment somehow
shifts the burden of proof, we view it as a permissible reminder that the jury
can evaluate the credibility of defense witnesses by the same standard as
witnesses for the State.
final argument involves the following statement made by the State:
The intelligence of the City of Racine Police
Department that deals with a lot of gang members, and everyone has got a street
name, is that there’s nobody else in the City of Racine that they’re aware of with the street
name Big Bub.
The comment was based on trial
testimony from an officer stating that he was not aware of any other people
with the street name “Big Bub.”
¶31 The State argues that the statement was not plain error because
the comment was based on evidence and the prosecutor did not say that Jackson was a gang
member. It also points out that Jackson’s trial counsel
testified that the decision not to object was strategic because he did not want
to call the jury’s attention to the gang reference. Therefore, it argues, there was no deficient
performance. See State v. Cooks, 2006 WI App 262, ¶44,
297 Wis. 2d
633, 726 N.W.2d 322 (explaining that trial counsel’s decision to forgo an
objection to avoid unwanted jury attention was not deficient performance). We
agree on both points.
¶32 Neither the victim nor the victim’s brother would identify Jackson from the
stand. But the victim did say on the
witness stand that if Jackson
was “Big Bub,” “that’s the shooter.” And
a police officer testified that the victim told the officer that he did not
want to press charges, he only wanted to fight “him.” The victim identified “him” as “Big
Bub.” Another officer told the jury that
“Big Bub” was Jackson’s
“street name.” He also testified that
there was no one else the police were aware of with the same “street
name.” The mother, who was present near
the shooting, also identified the shooter as “Big Bub.” Finally, even though the brother refused to
identify Jackson from the witness stand, he told
police after the altercation that the shooter was “Big Bub” and identified Jackson as “Big
Bub.” So, taking the prosecutor’s
comment in context, all the prosecutor was saying is that police encounter
“street names” all the time, that street names are plentiful because police
deal with gangs, and even though there are a plethora of street names, “Big
Bub” stands out as a unique name.
Therefore, the prosecutor was not connecting or insinuating that Jackson was a gang member, but only that the name “Big
Bub” was unique—so the jury could find that “Big Bub” was Jackson.
We see no error here.
Post-trial Reverse Waiver
¶33 Jackson argues that he was denied due process and equal
protection when he was required to
prove, by clear and convincing evidence, that reverse waiver was
appropriate. This argument is based on
the fact that adult courts have original jurisdiction over juveniles who are
charged with attempted first-degree intentional homicide on or after their 10th
birthday, Wis. Stat. § 938.183(am),
but juvenile courts have original jurisdiction over juveniles who are charged
with recklessly endangering safety while armed, Wis.
Stat. § 938.12(1). So, if Jackson had been charged
initially with recklessly endangering safety while armed, the case would have
started in juvenile court and the State would have had to prove by clear and
convincing evidence that waiver into adult court was appropriate. See
Wis. Stat. § 938.18(1)(c)
¶34 According to Jackson,
it follows that if the State would have had the burden had he been initially
charged with endangering safety while armed, it should have the burden
now. Jackson asserts that he is the victim of
disparate treatment, simply because the State chose to charge the endangering
safety while armed crime later than earlier.
He argues that, by the State’s action, it has avoided having the burden
and has instead transferred it to Jackson. He contends that this is a violation of equal
protection and due process.
¶35 We disagree. The
distinction is that, in cases that originate in juvenile court, at the time of
the State’s petition for waiver, the prosecutor’s charging discretion is
checked only by the requirement that there be a finding of prosecutive merit,
which is equivalent to a finding of probable cause at a preliminary
hearing. See Wis. Stat. § 938.18(4)-(5);
v. State, 109 Wis. 2d 179, 190, 325 N.W.2d 329 (1982). For cases like this one—where a
juvenile is tried in adult court based on an original adult jurisdiction charge
and then convicted of a lesser included offense that would have originated in
juvenile court—the trial court has significantly more information at a
postconviction reverse waiver hearing.
Specifically, it has all of the trial testimony regarding the crime of
conviction and the crime charged; the prosecutor has shown the basis for its
initial charging decision. So, it makes
sense that the burden is on the defendant to show that, despite live testimony,
despite a conviction, the juvenile should be remanded to the juvenile court for
¶36 In other words, Jackson
stands in different shoes than the juvenile who, at the beginning stages of the
process, has only probable cause showing against him or her. Jackson
has now been convicted. In the jury’s
eyes, he did the crime, beyond a reasonable doubt. There is no valid due process or equal
protection argument to be made.
Interests of Justice
final argument is that we should reverse his conviction in the interests of
justice. He claims that the real
controversy was not tried because of “the admission of highly prejudicial
evidence.” Our discretionary reversal
power under Wis. Stat. § 752.35
is formidable and should be exercised sparingly and with great caution. State
v. Williams, 2006 WI
App 212, ¶36, 296 Wis.
2d 834, 723 N.W.2d 719. We are reluctant
to grant new trials in the interests of justice and exercise our discretion to
do so “only in exceptional cases.” See
State v. Armstrong, 2005 WI 119, ¶114, 283 Wis. 2d 639, 700 N.W.2d
98. We decline to do so in this case.
By the Court.—Judgment and order