|
COURT OF APPEALS DECISION DATED AND RELEASED September 10, 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. 95-2992-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Dietreich Andrew
Wilson,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DIANE S. SYKES, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Dietreich Andrew Wilson appeals from the
judgment of conviction for first-degree reckless endangering safety while
armed,[1]
and from the trial court order denying his postconviction motion. He argues that the jury instructions denied
him due process of law, that his counsel was ineffective for failing to object
to the instructions, and that he deserves a new trial in the interests of
justice. We affirm.
Wilson was charged with
attempted first-degree intentional homicide while armed for firing at an
undercover police officer who was responding to a shootout between rival
groups. Wilson's theory of defense was
that he acted to protect his brother when he saw a man, who he did not realize
was an undercover police officer, pointing a gun at his brother. Wilson maintained that he surrendered when
he realized the man was a police officer.
The trial court instructed the jury on attempted first-degree
intentional homicide while armed, and on two lesser-included offenses: first-degree reckless endangering safety
while armed, and second-degree reckless endangering safety while armed. The trial court also instructed on defense
of others.
Wilson argues that
although the trial court's instructions were correct individually, “the manner
in which they were given in this case prevented the jury from considering
defense of others with respect to the lesser-included offenses.... This improperly relieved the State of its
burden of disproving the defense before it could convict him of either
lesser-included offense.”
After reading the
substantive instructions on first-degree intentional homicide and the two
lesser-included offenses, the trial court instructed that before the defendant
could be found guilty “of the offense charged in count one of the Information,”
it would have to “be satisfied beyond a reasonable doubt that any use of force
... was not privileged under the law of defense of others.” Wilson argues that the jury could have
misinterpreted this to only apply his defense of others theory of defense to
the charge of attempted first-degree intentional homicide while armed, and not
to the lesser-included offenses.
As we have explained:
Whether jury instructions violate a defendant's
right to due process is a question of law subject to de novo
review.... Relief is not warranted
unless the appellate court is “persuaded that the instructions, when viewed as
a whole, misstated the law or misdirected the jury” in the manner asserted by
the challenger. Where a criminal
defendant claims that the jury instructions violated constitutional due
process, the issue is whether there is a reasonable likelihood that the jury
applied the instruction in a way that violates the defendant's rights. In making that assessment, we consider the
challenged portion of the instructions in context with all other instructions
provided by the trial court.
State
v. Foster, 191 Wis.2d 14, 28, 528 N.W.2d 22, 28 (Ct. App. 1995)
(citations omitted).
Viewing the instructions
“as a whole” and considering “the challenged portion of the instructions in
context with all other instructions,” we conclude that the trial court's
instructions accurately stated the law and properly directed the jury. The instructions included explicit
references to “any of the offenses I have submitted to you on count
one,” and to the privilege being “a defense to prosecution for any crime
based on that conduct.” (Emphasis added.)
The instructions also included countless, consistent implicit references
directing the jury's attention to all three possible count one offenses,
together.
As the trial court
explained in its thorough and thoughtful written decision denying Wilson's
postconviction motions:
[T]he
reference to "count one of the Information" in the concluding
paragraph of the defense of others instruction was merely a
"shorthand" reference to the group of offenses which were being
submitted to the jury for consideration in connection with the first count of
the information, to alert the jury to the fact that the privilege analysis was
to be applied to count one relating to the shooting as distinct from count two
relating to the drug possession.
We
agree. Therefore, there is no
“reasonable likelihood that the jury applied the instruction in a way that
violates the defendant's rights.” Foster,
191 Wis.2d at 28, 528 N.W.2d at 28.
Wilson's arguments that
counsel was ineffective for failing to object to the instructions and that the
interests of justice require a new trial are premised on his contention that
the instructions misled the jury. Our
rejection of his primary contention, however, obviates the need to further
address Wilson's additional arguments. See Gross v. Hoffman, 227 Wis. 296, 300, 277
N.W. 663, 665 (1938) (only dispositive issue need be addressed).
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.