|
COURT OF APPEALS DECISION DATED AND RELEASED January 9, 1996 |
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. 95-0725-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WILLIAM WARNER DAVIS,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: VICTOR MANIAN, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. William Warner Davis appeals from a judgment
of conviction, following jury trial, for second-degree reckless injury,
contrary to § 940.23(2), Stats. He also appeals from the trial court's order
denying his motion for postconviction relief.
Davis argues that his trial counsel was ineffective for failing to
investigate the extent of the victim's injuries and for failing to object to
the jury instruction on great bodily harm.
We reject his arguments and affirm.
During the course of a
roommate/tenant dispute, Davis threw industrial-strength drain cleaner
containing sulfuric acid into the victim's face. The victim suffered burns and scarring. Photos taken of the victim a few days after the incident were
admitted at trial and the victim also showed his remaining injuries to the jury
at the time of trial. The exact extent
of the permanency of the victim's injuries is uncertain due, in part, to his
death prior to the postconviction motion hearing.
The trial court
instructed the jury that “great bodily harm means serious bodily injury.” Davis argues that trial counsel was
ineffective for failing to object to the wording of the instruction because the
instruction failed to incorporate the more complete definition of “great bodily
harm” either from the pattern jury instruction, see Wis J I—Criminal 1252, or from
§ 939.22(14), Stats. Davis argues that the trial court's
instruction, in effect, directed a verdict on the second element of the
offense.
At the postconviction
motion hearing, Davis's trial counsel explained that he did not actively
contest the “great bodily harm” element, but instead focused on Davis's claim
of self-defense. Defense counsel
stated:
The
issue of serious bodily injury was not an issue that I wanted to push, because
I felt I would damage the self-defense argument.
It
was very clear that [the victim] had had serious burns. I do not know if the scarring would be
permanent or not, but when you look at the serious bodily injury I felt that
serious bodily injury was a foregone conclusion for anyone who looked at it and
looked at the pictures from October vers[u]s the scarring that was present at
the time of trial.
So I felt that would damage the self-defense
argument. So I ... did not emphasize
that through the trial.
In ruling on Davis's
postconviction motion, the trial court concluded that the instruction had been
adequate. The trial court also stated
that defense counsel was “correct, that the serious bodily harm was obvious.... And so pursuing that and making an issue out
of something that was so obvious and ... would have detracted from the
self-defense argument.” The trial court
concluded Davis's defense counsel had provided effective representation.
Generally, a trial court
has broad discretion in choosing the language of jury instructions so long as
they fully and fairly inform the jury of the rules of law applicable to the
case. State v. McCoy, 143
Wis.2d 274, 289, 421 N.W.2d 107, 112 (1988).
Additionally, when reviewing a trial court's decision on whether a
defendant received ineffective assistance of counsel, we employ a mixed
standard of review. The defendant must
show that counsel's performance was deficient and prejudicial. Strickland v. Washington, 466
U.S. 668, 687 (1984). In reviewing the
trial court's decision, we accept its findings of fact, its “‘underlying
findings of what happened,'” unless they are clearly erroneous, while
independently reviewing “the ultimate determination of whether counsel's
performance was deficient and prejudicial.”
State v. Johnson, 153 Wis.2d 121, 127-128, 449 N.W.2d 845,
848 (1990) (citation omitted).
The trial court's
instruction to the jury that “great bodily harm means serious bodily injury”
was taken from the pattern instruction for this element of second-degree
reckless injury. On this element, Wis J I—Criminal 1252 provides:
“Great bodily harm” means serious bodily
injury.
[Injury
which creates a substantial risk of death, or which causes serious permanent
disfigurement, or which causes a permanent or protracted loss or impairment of
the function of any bodily member or organ or other serious bodily injury is
great bodily harm.]
In
footnote 3 of the comment to this instruction, however, the Wisconsin Criminal
Jury Instruction Committee states: “The
Committee has concluded that defining great bodily harm as ‘serious bodily
injury’ is sufficient in most cases.
The material in brackets is the remainder of the definition found in
§ 939.22(14) and should be used as needed.” Although the comments of the jury instruction committee are not
binding authority, we may, nonetheless, consider them persuasive
authority. See State v.
Olson, 175 Wis.2d 628, 642 n.10, 498 N.W.2d 661, 667 n.10 (1993).
Here, the instruction
given by the trial court was not incomplete or inaccurate. While the more expanded definition of “great
bodily harm” may have been proper, it was not legally necessary. Defining “great bodily harm” as “serious
bodily injury” was both fair and accurate.
Based on the descriptions of the photographs taken of the victim a few
days after the incident that were admitted at trial[1]
and based on the description of the victim's injuries at the time of trial, it
was well-within the province of the jury to conclude that the “great bodily
harm” element of the offense had been satisfied.
Additionally, the trial
court never told the jury that it was free to disregard the “great bodily harm”
element of second-degree reckless injury.
In fact, in addition to the given instruction, the trial court expressly
stated that the State was required to “prove every element of the offense
charged beyond a reasonable doubt.”
Therefore, we reject Davis's argument that the instruction relieved the
State of its burden of proof. Further,
because we find no error with regard to the jury instruction, we reject Davis's
ineffective-assistance-of-trial-counsel claim.
Finally, Davis claims
that trial counsel failed to investigate the victim's injuries. Davis, however, makes this assertion in
concluding his discussion of trial counsel's alleged ineffectiveness as to the
“great bodily harm” jury instruction.
Appellate counsel fails to develop this argument or cite any legal
authority in support of it. Therefore,
we decline to address it. See State
v. Pettit, 171 Wis.2d 627, 646-647, 492 N.W.2d 633, 642 (Ct. App.
1992).
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.