Appeal From the Judgment of Conviction and the Final Order...
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STATE OF WISCONSIN COURT OF APPEALS DISTRICT II Appeal No. 2010AP678 (Racine County Case No. 2008CF634) STATE OF WISCONSIN, Plaintiff-Respondent, v. DARRON D. JACKSON, Defendant-Appellant. Appeal From the Judgment of Conviction and the Final Order Entered in the Circuit Court for Racine County, the Honorable Judge Stephen Simanek, Circuit Judge, Presiding BRIEF AND APPENDIX OF DEFENDANT-APPELLANT ATTORNEY REBECCA R. LAWNICKI State Bar No. 1052416 HENAK LAW OFFICE, S.C. 316 North Milwaukee Street, Suite 535 Milwaukee, Wisconsin 53202 (414) 283-9300 Counsel for Defendant-Appellant
Transcript of Appeal From the Judgment of Conviction and the Final Order...
STATE OF WISCONSINCOURT OF APPEALS
DISTRICT II
Appeal No. 2010AP678(Racine County Case No. 2008CF634)
STATE OF WISCONSIN,
Plaintiff-Respondent, v.
DARRON D. JACKSON,
Defendant-Appellant.
Appeal From the Judgment of Conviction and the Final Order Entered in the Circuit Court for Racine County,
the Honorable Judge Stephen Simanek, Circuit Judge, Presiding
BRIEF AND APPENDIX OFDEFENDANT-APPELLANT
ATTORNEY REBECCA R. LAWNICKIState Bar No. 1052416
HENAK LAW OFFICE, S.C.316 North Milwaukee Street, Suite 535
Milwaukee, Wisconsin 53202(414) 283-9300
Counsel for Defendant-Appellant
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TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . x
STATEMENT ON ORAL ARGUMENT
AND PUBLICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. BECAUSE RECKLESSLY ENDANGERING SAFETY
WHILE ARMED IS NOT A LESSER-INCLUDED
OFFENSE OF ATTEMPTED FIRST-DEGREE INTEN-
TIONAL HOMICIDE, THE TRIAL COURT ERRED
BY INSTRUCTING ON THE OFFENSE. . . . . . . . . 4
A. Standard of Review. . . . . . . . . . . . . . . . . . . . . 4
B. The Trial Court Erred in Instructing the Jury on
First-degree Recklessly Endangering Safety
While Using a Dangerous Weapon Because it is
Not Contained in the Greater Offense. . . . . . . 5
C. This Error was not Harmless. . . . . . . . . . . . . . 7
II. THE TRIAL COURT ERRED WHEN IT REFUSED TO
SUPPRESS JACKSON’S STATEMENT . . . . . . . . . 8
A. Standard of Review. . . . . . . . . . . . . . . . . . . . . 8
B. Jackson’s Statement was Coerced and
Involuntary .. . . . . . . . . . . . . . . . . . . . . . . . . . 10
C. The Erroneous Admission of Jackson’s Statement
was Not Harmless.. . . . . . . . . . . . . . . . . . . . . 14
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III. PROSECUTORIAL MISCONDUCT DENIED JACK-
SON A FAIR TRIAL AND DUE PROCESS. . . . . . 14
A. Standard of Review. . . . . . . . . . . . . . . . . . . . 15
1. Due Process and Prosecutorial
Misconduct. . . . . . . . . . . . . . . . . . . . . 15
2. Plain Error. . . . . . . . . . . . . . . . . . . . . . 16
B. The Prosecutor’s Statements to the Jury Regard-
in g th e W i tn e s s ’ C re d ib i l i t y W ere
Plain Error.. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
C. The Prosecutor’s Attempt to Shift the Burden of
Proof to Jackson Was Plain Error.. . . . . . . . . 19
D. The Prosecutor’s Suggestion that Jackson was in
a Gang Was Plain Error . . . . . . . . . . . . . . . . . 21
IV. JACKSON WAS DENIED THE EFFECTIVE ASSIS-
TANCE OF COUNSEL. . . . . . . . . . . . . . . . . . . . . . 23
A. Standard for Ineffectiveness . . . . . . . . . . . . . 23
B. Trial Counsel’s Performance Was Deficient. 25
1. Failure to object on appropriate grounds to
the lesser offense instruction . . . . . . . 25
2. Failure to object during the prosecutor’s
closing argument. . . . . . . . . . . . . . . . . 26
C. Trial Counsel’s Deficient Performance Prejudiced
Jackson’s Defense at Trial. . . . . . . . . . . . . . . 26
V. JACKSON IS ENTITLED TO A NEW TRIAL IN THE
INTERESTS OF JUSTICE. . . . . . . . . . . . . . . . . . . . 27
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VI. PLACING THE BURDEN ON JACKSON TO JUSTIFY
REVERSE WAIVER AFTER TRIAL VIOLATED HIS
RIGHTS TO DUE PROCESS AND EQUAL PROTEC-
TION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
A. Applicable Law.. . . . . . . . . . . . . . . . . . . . . . . 28
1. Reverse Waiver. . . . . . . . . . . . . . . . . . 28
2. Equal Protection and Due Process.. . . 31
B. Jackson’s Rights to Equal Protection and Due
Process Were Violated Because the Burden was
on Him to Prove Reverse Waiver was Appropriate
Upon Conviction.. . . . . . . . . . . . . . . . . . . . . . 31
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
TABLE OF AUTHORITIES
Cases
Alvarez v. Boyd, 225 F.3d 820 (7 Cir. 2000). . . . . . . . . . . . . . . . .th 26
Chapman v. California, 386 U.S. 18,
87 S.Ct. 824 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 17
Colorado v. Connelly, 479 U.S. 157 (1986). . . . . . . . . . . . . . . . 9, 10
Dixon v. Snyder, 266 F.3d 693 (7 Cir. 2001). . . . . . . . . . . . . . . .th 24
Gauthier v. State, 28 Wis.2d 412,
137 N.W.2d 101 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
Hardaway v. Young, 302 F.3d 757 (2002). . . . . . . . . . . . . . . . . . . 11
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Hawthorne v. State, 99 Wis.2d 673,
299 N.W.2d 866 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-7
In re Jerrell C.J., 2005 WI 105,
283 Wis.2d 145, 699 N.W.2d 110 . . . . . . . . . . . . . . . . . 9, 11, 12, 14
Kimmelman v. Morrison, 477 U.S. 365 (1986). . . . . . . . . . . . . . . 23
Kyles v. Whitley, 514 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . . 19, 20
Lynumn v. Illinois, 372 U.S. 528 (1963). . . . . . . . . . . . . . . . . . . . 12
Murray v. Carrier, 477 U.S. 478 (1986). . . . . . . . . . . . . . . . . . . . . 23
Neder v. United States, 527 U.S. 1,
119 S.Ct. 1827 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Norwood v. State, 74 Wis.2d 343,
246 N.W.2d 801 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Rhode Island v. Innis, 446 U.S. 291 (1980). . . . . . . . . . . . . . . . . . 14
Schneckloth v. Bustamonte, 412 U.S. 218 (1973). . . . . . . . . . . . . . 8
Smith v. Phillips, 455 U.S. 209 (1982). . . . . . . . . . . . . . . . . . . . . . 15
State v. Harvey, 2002 WI 93,
254 Wis.2d 442, 647 N.W.2d 189. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
State v. Weed, 2003 WI 85,
263 Wis.2d 434, 666 N.W.2d 485. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
State v. Adams, 221 Wis.2d 1,
584 N.W.2d 695 (Ct.App.1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
State v. Albright, 98 Wis.2d 663,
298 N.W.2d 196 (Ct. App. 1980).. . . . . . . . . . . . . . . . . . . . . . . . . . 21
State v. Anderson, 2006 WI 77,
291 Wis.2d 673, 717 N.W.2d 74. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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State v. Carrington, 130 Wis.2d 212,
386 N.W.2d 512 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
State v. Carrington, 134 Wis.2d 260,
397 N.W.2d 484 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7
State v. Clappes, 136 Wis.2d 222,
401 N.W.2d 759 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
State v. Davidson, 2000 WI 91,
236 Wis.2d 537, 613 N.W.2d 606. . . . . . . . . . . . . . . . . . . . . . . 15, 17
State v. Dombrowski, 44 Wis. 2d 486,
171 N.W.2d 349 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
State v. Draize, 88 Wis.2d 445,
276 N.W.2d 784 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21
State v. Hambly, 2008 WI 10,
307 Wis.2d 98, 745 N.W.2d 48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State v. Hoppe, 2003 WI 43,
261 Wis.2d 294, 661 N.W.2d 407 . . . . . . . . . . . . . . . . . . . . . . 10, 12
State v. Johnson, 133 Wis.2d 207,
395 N.W.2d 176 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24
State v. Jorgensen, 2008 WI 60,
310 Wis.2d 138, 754 N.W.2d 77. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
State v. Koller, 2001 WI App. 253,
248 Wis.2d 259, 635 N.W.2d 838. . . . . . . . . . . . . . . . . . . . . . . . . . 24
State v. Kramar, 149 Wis.2d 767,
440 N.W.2d 317 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State v. Lettice, 205 Wis.2d 347,
556 N.W.2d 376 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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State v. Lynch, 2006 WI App 231,
297 Wis.2d 51, 724 N.W.2d 656 . . . . . . . . . . . . . . . . . . . . . . . . . . 31
State v. Mayo, 2007 WI 78,
301 Wis.2d 642, 734 N.W.2d 115. . . . . . . . . . . . . . . . . . . . . . . 16, 17
State v. Moffett, 147 Wis.2d 343,
433 N.W.2d 572 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-26
State v. Morgan, 195 Wis.2d 388,
536 N.W.2d 425 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State v. Patino, 177 Wis.2d 348,
502 N.W.2d 601 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
State v. Pheil, 152 Wis.2d 523,
449 N.W.2d 858 (Ct. App. 1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State v. Poellinger, 153 Wis.2d 493,
451 N.W.2d 752 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
State v. Quintana, 2007 WI App 29,
729 N.W.2d 776 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
State v. Randolf, 83 Wis. 2d 630,
266 N.W.2d 334 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
State v. Salter, 118 Wis.2d 67, 83,
346 N.W.2d 318 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
State v. Smith, 2003 WI App 234,
268 Wis.2d 138, 671 N.W.2d 854. . . . . . . . . . . . . . . . . . . . . . . . . . 21
State v. Sonneberg, 117 Wis.2d 159,
344 N.W.2d 95 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
State v. Thiel, 2003 WI 111,
264 Wis.2d 571, 665 N.W.2d 305 . . . . . . . . . . . . . . . . . . . . . . . . . 25
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State v. Verhagen, 198 Wis 2d 177,
542 N.W.2d 189 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
State v. Villarreal, 153 Wis.2d 323,
450 N.W.2d 519 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
State v. Wallace, 59 Wis.2d 66,
207 N.W.2d 855 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
State v. Weeks, 165 Wis.2d 200,
477 N.W.2d 642 (Ct. App. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State v. Wolff, 171 Wis.2d 161,
491 N.W.2d 498 (Ct. App.1992). . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . 23, 24
United States v. Castaneda-Castaneda,
729 F.2d 1360 (7th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Agurs, 427 U.S. 97 (1976) . . . . . . . . . . . . . . . 16, 17
United States v. Cronic, 466 U.S. 648 (1984).. . . . . . . . . . . . . . . . 23
United States v. Lewis, 910 F.2d 1367 (7 Cir. 1990) . . . . . . . . . .th 21
United States v. Pirovolos, 488 F.2d 415 (7th Cir. 1988). . . . . . . . 16
United States v. Rodriguez, 925 F.2d 1049 (7 Cir. 1991) . . . . . .th 21
United States v. Sargent, 98 F.3d 325 (7 Cir. 1996). . . . . . . . . . .th 22
United States v. Sblendorio, 830 F.2d 1382 (1987). . . . . . . . . . . . 20
United States v. Severson, 3 F.3d 1005 (7th Cir.1993). . . . . . . 17, 18
United States v. Vargas, 583 F.2d 380 (7th Cir. 1978). . . . . . . . . . 20
Virgil v. State, 84 Wis.2d 166,
267 N.W.2d 852 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Vollmer v. Luety, 156 Wis.2d 1,
456 N.W.2d 797 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Washington v. Smith, 219 F.3d 620 (7 Cir. 2000). . . . . . . . .th 25, 26
Wiggins v. Smith, 539 U.S. 510 (2003).. . . . . . . . . . . . . . . . . . 24, 25
Williams v. Taylor, 529 U.S. 362 (2000). . . . . . . . . . . . . . . . . . . . 24
Constitutions, Rules and Statutes
Wis. Stat. (Rule) 809.30(2)(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Wis. Stat. §901.03(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,22
Wis. Stat. §938.12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
Wis. Stat. §938.18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Wis. Stat. §938.18(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Wis. Stat. §938.18(5)(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31
Wis. Stat. §938.18(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 30
Wis. Stat. §938.183(1m)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Wis. Stat. §938.183(2)(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-30
Wis. Stat. §938.183(2)(a)1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Wis. Stat. §938.183(2)(a)2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Wis. Stat. §939.32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Wis. Stat §938.34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Wis. Stat. §940.01(1)(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 29
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Wis. Stat. §941.29(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Wis. Stat. §970.032(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-29
Wis. Stat. §974.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Wis-JI Crim. 100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Wis-JI Crim. 140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Other Authorities
3 Wright, Federal Practice and Procedure (1969). . . . . . . . . . . . . . 16
Rough Justice: Lynching & American Society, 1874-1947
(University of Illinois Press 2004). . . . . . . . . . . . . . . . . . . . . . . . . . 13
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ISSUES PRESENTED FOR REVIEW
1. Whether the trial court committed reversible error by
instructing the jury on an uncharged offense that was not a lesser-
included offense of the charged offense.
The trial court held it did not and denied Jackson’s motion on
this ground. (R61:29-30; App. 3-4)
2. Whether the trial court erred in refusing to suppress
Jackson’s statement to police when it was coerced and involuntary.
The trial court held it did not and denied Jackson’s motion on
this ground. (R61:31-31; App. 4-5)
3. Whether prosecutor’s request that the jury punish Jackson
for the insincerity of the witnesses, attempted to shift the burden of
proof onto Jackson, and using of Jackson’s name in correlation with
gangs was prosecutorial misconduct and denied Jackson a fair trial.
The trial court held it did not and denied Jackson’s motion on
this ground. (R61:36-38; App. 10-12)
4. Whether Jackson was denied the effective assistance of
counsel when his trial attorney failed to object to the trial court’s
instructing the jury on an uncharged crime that is not a lesser-included
offense of first-degree intentional homicide or to the prosecutor’s
misconduct.
The trial court held it did not and denied Jackson’s motion on
this ground. (R61:38-41; App.12-15)
5. Whether Jackson is entitled to a new trial in the interests
of justice under Wis. Stat. §752.35.
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The trial court did not address this claim but denied Jackson’s
motion for reversal in the interests of justice under Wis. Stat/
§805.15(1). (R61:44-45; App. 18-19.)
6. Whether placing the burden on Jackson to justify reverse
waiver after he was convicted of a lesser-offense that did not warrant
original jurisdiction in the adult court violated due process and equal
protection.
The trial court denied Jackson’s motion on this ground.
(R61:41-44; App.15-18.)
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STATEMENT ON ORAL ARGUMENT
AND PUBLICATION
Oral argument is appropriate in this case under Wis. Stat. (Rule)
809.22. Appellant's arguments clearly are substantial and do not fall
within that class of frivolous or near frivolous arguments concerning
which oral argument may be denied under Rule 809.22(2)(a).
Publication is justified under Wis. Stat. (Rule) 809.23, both to
remind the lower courts of the limitations on what lesser offenses may
be submitted to the jury and to resolve the constitutional validity of the
burden of proof at a post-conviction waiver hearing.
STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT II
Appeal No. 2010AP678(Racine County Case No. 2008CF634)
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DARRON D. JACKSON,
Defendant-Appellant.
BRIEF OF DEFENDANT-APPELLANT
STATEMENT OF THE CASE
By criminal complaint dated May 29, 2008, the state charged
Darron Jackson with one count each of attempted first-degree inten-
tional homicide, contrary to Wis. Stat. §§940.01(1)(a), 939.32, and
possession of a firearm subsequent to being adjudicated delinquent for
an act that, if committed by an adult in this state, would be a felony,
contrary to Wis. Stat. §941.29(2)(b) (R1). Jackson was 15 years old at
the time the state charged him, but due to the nature of the attempted
homicide charge, the state brought the case in adult court (R41:3;
R46:3). See State v. Verhagen, 198 Wis 2d 177, 542 N.W.2d 189
(1995). Because the attempted homicide count conferred jurisdiction
on the criminal court despite his young age, Jackson filed a request for
a reverse waiver (R46:3).
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According to the criminal complaint, Reginald Bell told police
he watched as one youth approached a group of teenagers standing near
or on his lawn and started a fight with Bell’s stepson, Christopher
Brown (R1:2). According to Bell, the two boys had begun throwing
punches when another youth, whom Bell later identified as Jackson, ran
at them, pulled a small gun, and fired a round without hitting anyone.
Id.; (R45:20). Bell claimed Jackson and Brown took off running in
opposite directions, and that Jackson fired another shot, missing again.
Id. Bell claimed he followed the shooter in his truck and attempted to
apprehend him. Id.
The trial court held a preliminary hearing on July 31, 2008, and
bound Jackson over on the specific charge of attempted first-degree
intentional homicide. See generally (R45). Jackson filed a motion for
reverse waiver (R28). At the reverse waiver hearing on August 28,
2008, his argument and witnesses outlined his youth and extremely
limited mental capabilities, the available treatment in the juvenile
correctional system, and the lack of appropriate treatment in the adult
system (R47). The trial court nonetheless denied the motion (R47:48-
59).
Jackson next filed a motion to suppress based on the adequacy
of the Miranda warnings and the voluntariness of his custodial
statement to police. After a hearing, the trial court denied that motion
as well. Id. at 56; (R51:45-57; App. 22-34) The state played a video
recording of the statement at trial (R54:2-56). In the statement, Jackson
initially denied he was at the scene of the shooting at all, but eventually
told police he was at the scene, but was not the shooter. Id.
At trial, Bell testified that he saw Jackson run out of the crowd,
reach into his pocket, pull out a gun, and shoot at Christopher Brown
from approximately 15 feet away (R54:2-36-37). Bell stated Brown
swerved and ran and Jackson moved in the opposite direction,
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increasing the distance between him and Brown to up to 20 feet.
According to Bell, Jackson attempted to take another shot, but the gun
misfired. He ultimately aimed and shot once more, missing Brown for
the second time. Id. at 38-39. On cross, Bell admitted that he was
unable to pick Jackson out of a photo lineup hours after the shooting
occurred. Id. at 48.
Except for Bell, none of the witnesses gave a story that was
helpful to the state. Bell’s other stepson, Nicholas Brown, testified he
never saw the shooter and that police asked him to identify “Big Bub”
(not the shooter) in a photo lineup, and that is what he did (R53:81, 87).
Nicholas Brown did not identify Jackson as the shooter at trial. Chris
Brown’s mother, Stacy Love, could not pick Jackson out of a line up
two hours after the shooting. Id. at 72. In fact, she never identified
Jackson as the shooter. Id. Chris Brown, the victim, never identified
Jackson as the shooter at all. Id. at 99.
At the close of evidence, the state requested a “lesser-included
offense” instruction for the offense of first-degree recklessly endanger-
ing safety with the use of a dangerous weapon (R56:61). Over
Jackson’s objection, the trial court granted the state’s request and the
jury ultimately convicted Jackson of the lesser offense and the gun
count. Id. at 145.
Because the jury convicted him of lesser offenses that would not
have granted the trial court original jurisdiction over him, Jackson again
moved the court for reverse waiver, this time under Wis. Stat.
§938.183(1m)(3). Following a hearing on March 28, 2009, the trial
court refused to grant waiver (R59:78).
On April 21, 2009, the trial court sentenced Jackson to eight
years imprisonment, consisting of five years initial confinement and
three years extended supervision on the recklessly endangering safety
-4-
while armed count, and a consecutive two years incarceration consist-
ing of one year initial confinement and one year extended supervision
on the gun charge and entered judgment (R60:28).
On November 24, 2009, Jackson filed a post-conviction motion
pursuant to Wis. Stat. §974.02 and (Rule) 809.30(2)(h), challenging his
conviction and sentence. On February 22, 2010, the circuit court held
a hearing at which time it denied Jackson’s motion in its entirety. (R39;
R61:29-45; App. 2-19). Jackson timely filed a notice of appeal on
March 16, 2010 (R34).
ARGUMENT
I.
BECAUSE RECKLESSLY ENDANGERING SAFETY
WHILE ARMED IS NOT A LESSER-INCLUDED OFFENSE
OF ATTEMPTED FIRST-DEGREE INTENTIONAL
HOMICIDE, THE TRIAL COURT ERRED
BY INSTRUCTING ON THE OFFENSE
Recklessly endangering safety while armed is not a lesser-
included offense of attempted first-degree intentional homicide. The
trial court accordingly committed reversible error by instructing on the
lesser offense over defense counsel’s objections.
A. Standard of Review
Whether the trial court should instruct a jury on a lesser-included
offense is a matter of law. State v. Salter, 118 Wis.2d 67, 83, 346
N.W.2d 318, 326 (1984). A trial court may not instruct the jury on a
lesser crime that is not a lesser-included of the offense charged.
Hawthorne v. State, 99 Wis.2d 673, 680, 299 N.W.2d 866 (1981).
In reviewing whether a lesser-included offense instruction was
appropriate, this Court considers if the instruction was for a lesser-
included offense of the crime charged and if it was, considers whether
-5-
the instruction was justified. See State v. Morgan, 195 Wis.2d 388,
434, 536 N.W.2d 425 (1995). Wisconsin uses an “elements only” test
to determine if a crime is a lesser-included offense of another. State v.
Carrington, 134 Wis.2d 260, 397 N.W.2d 484 (1986) (“Carrington
II”). Under this test, a lesser-included offense is “[a] crime which does
not require proof of any fact in addition to those which must be proved
for the crime charged.” Wis. Stat. §939.66(1). A lesser-included
offense may not include an additional element beyond those essential
for conviction of the crime charged. Carrington II, 134 Wis.2d at 274.
It must be “utterly impossible” to commit the greater offense without
committing the lesser one. State v. Randolf, 83 Wis. 2d 630, 645, 266
N.W.2d 334 (1978).
In applying this standard, this Court must consider all elements
of each offense, including elements imposed by statutes separate from
those defining the basic offense. Thus, application of a “while armed”
enhancer adds the element that the defendant commit the offense
“while armed,” even though the basic offense imposes no such
requirement. Carrington II, 134 Wis.2d at 267-69. This Court reviews
whether the circuit court should have given a lesser offense jury
instruction de novo. State v. Kramar, 149 Wis.2d 767, 791, 440
N.W.2d 317 (1989).
B. The Trial Court Erred in Instructing the Jury on
First-degree Recklessly Endangering Safety While
Using a Dangerous Weapon Because it is Not Con-
tained in the Greater Offense
First-degree recklessly endangering safety is a lesser-included
offense of attempted first-degree intentional homicide. Hawthorne v.
State, 99 Wis.2d 673, 299 N.W.2d 866 (1986); State v. Weeks, 165
Wis.2d 200, 205-06, 477 N.W.2d 642 (Ct. App. 1991). However, first-
degree recklessly endangering safety while using a dangerous weapon
is not a lesser-included offense of attempted first-degree intentional
-6-
homicide. See Carrington II, supra, citing Randolf, 83 Wis.2d at 645;
see also State v. Carrington, 130 Wis.2d 212, 386 N.W.2d 512 (1986)
(“Carrington I”) reversed on other grounds.
The elements of attempted first-degree intentional homicide are:
(1) attempting (2) to cause the death (3) of another human being (4)
with intent to kill that person or another. The elements of first-degree
recklessly endangering safety while armed are (1) recklessly endanger-
ing (2) another’s safety (3) under circumstances which show utter
disregard for human life (4) while using a dangerous weapon.
Although first-degree recklessly endangering safety contains elements
that are parallel to the attempted homicide charge, see Hawthorne, 99
Wis.2d at 682, there is no “while using a dangerous weapon” element
to the homicide. See Wis. Stat. §§940.01, 941.30, 939.63.
The use of a dangerous weapon is an element of the crime,
changing the nature of the crime, and not just an enhancer used at
sentencing. It adds an additional element not included in the charged
offense. Carrington II, 134 Wis.2d at 267-69; Carrington I, 130
Wis.2d at 220-21; State v. Villarreal, 153 Wis.2d 323, 450 N.W.2d 519
(1989). Accordingly, the crime of first-degree recklessly endangering
safety while using a dangerous weapon is not a lesser-included offense
of attempted first-degree intentional homicide, and the trial court erred
when it instructed the jury otherwise.
The trial court also erred in finding the “while armed” element
was merely a sentencing enhancer at the February 22, 2010 post-
conviction motion hearing (R61:33-34; App.7-8). At the hearing, the
trial court found:
There was no way the jury could confuse while armed with anelement of the offense. It is an enhancer, pure and simple. Itrequires a separate spot on the verdict form, because it is precisely[sic] because it is not an element of the offense charged, and inCarrington the Supreme Court never addressed and never held after
-7-
a dispute that it was, in fact, an element of the offense. Theysimply note in a footnote that the D.A. never argued it. They neverraised it. They conceded it, and therefore the Supreme Court didnot decide it.
Id. The trial court was wrong and the state undoubtedly repeatedly
concedes the point because it is clear under the Carrington analysis that
the while armed enhancer is an element of the offense. See also JI -
(including while armed). This Court has at least twice found a “while
armed” enhancer is an element of an offense. See Carrington I, 130
Wis.2d at 220-21; Villarreal, 153 Wis.2d at 328-329.
As we previously concluded in Carrington, “[s]ec. 939.63 [, Stats.,] isindeed a penalty enhancer, but unlike the ‘repeater’ statute, sec. 939.62,Stats., it requires the establishment of a separate fact ... as well as theelements of the underlying offense.” Carrington, 130 Wis.2d at 220-21,386 N.W.2d at 516. Unlike the repeater allegations in McAllister, anallegation of use of a dangerous weapon changes the nature of theunderlying crime. See id. at 221, 386 N.W.2d at 516. Thus, use of adangerous weapon is not only a penalty enhancer. Id. at 222, 386 N.W.2dat 516. It is also an element of the crime charged. Id.
Villarreal, 153 Wis.2d at 328-329 (emphasis added).
Because first-degree recklessly endangering safety while using
a dangerous weapon is not a lesser-included offense of attempted first-
degree intentional homicide, the trial court erred in instructing the jury
and in finding otherwise. Hawthorne, supra.
C. This Error was not Harmless
As an alternative to its holding that it did not err in giving the
reckless endangerment instruction, the court below opined that the error
was harmless because it sentenced Jackson within the boundaries of the
recklessly endangering safety charge, regardless of the while armed
enhancer (R61:36; App. 10). This logic is flawed.
As the beneficiary of the error, the state must carry the burden
-8-
of proving the error harmless beyond a reasonable doubt. Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824 (1967), Neder v. United States,
527 U.S. 1, 2-3, 119 S.Ct. 1827 (1999); State v. Weed, 2003 WI 85, ¶
29, 263 Wis.2d 434, 666 N.W.2d 485; State v. Harvey, 2002 WI 93,
¶ 48, n. 14, 254 Wis.2d 442, 647 N.W.2d 189. Here, it cannot meet that
burden. The trial court cannot lawfully deem Jackson convicted of a
charge that never should have been before the jury, even if the sentence
on that charge would have been lawful if the jury had been instructed
on, and considered Jackson on a true lesser-included offense. The trial
court instructed on an offense that never should have been before the
jury. The jury convicted only on that offense, not the greater offense
of attempted homicide.
II.
THE TRIAL COURT ERRED
WHEN IT REFUSED TO SUPPRESS
JACKSON’S STATEMENT
There is no question police coerced Jackson’s statement,
rendering it involuntary. This is illustrated by Jackson’s young age,
limited mental capabilities and the unscrupulous tactics used by the
police in securing the statement. The trial court erred in finding
otherwise.
A. Standard of Review
The voluntariness of a confession turns on whether the person
“made an independent and informed choice of his own free will,
possessing the capability to do so, his will not being over-borne by the
pressures and circumstances swirling around him.” United States v.
Castaneda-Castaneda, 729 F.2d 1360, 1362 (7th Cir. 1984) (citation
omitted). Voluntariness depends on the totality of the circumstances
and must be evaluated on a case-by-case basis. Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973).
-9-
Although coercive police activity is a necessary predicate to the
finding that a statement is involuntary under the Due Process Clause,
Colorado v. Connelly, 479 U.S. 157, 167 (1986), coercive activity
alone does not, in and of itself, establish involuntariness. Rather, the
“[d]etermination of whether a statement is voluntary requires a
balancing of the personal characteristics of the defendant against the
coercive or improper police pressures.” State v. Pheil, 152 Wis.2d 523,
449 N.W.2d 858, 863 (Ct. App. 1989). These factors include age,
education and intelligence, the circumstances under which the
interrogation occurred, and the police strategies in obtaining the
confession. Norwood v. State, 74 Wis.2d 343, 365, 246 N.W.2d 801
(1976).
It is important under this analysis to determine that the individ-
ual “was not the victim of a conspicuously unequal confrontation in
which the pressures brought to bear on him by representatives of the
state exceed[ed] the [individual’s] ability to resist.” State v. Clappes,
136 Wis.2d 222, 401 N.W.2d 759, 765 (1987) (citation omitted).
“When applying this test to a juvenile interrogation, [the Wisconsin
Supreme Court] note[d] that ‘[t]he Supreme Court in the past has
spoken of the need to exercise ‘special caution’ when assessing the
voluntariness of a juvenile confession, particularly when there is
prolonged or repeated questioning or when the interrogation occurs in
the absence of a parent, lawyer, or other friendly adult.’” In re Jerrell
C.J., 2005 WI 105, ¶21, 283 Wis.2d 145, 699 N.W.2d 110 (citations
omitted).
In determining whether evidence should be suppressed, the trial
court is required to apply the law to the facts. As a result, the trial court
must make findings of facts, which will be upheld by an appellate court
unless they are clearly erroneous. Application of the law to these facts,
however, is a legal question reviewed de novo. State v. Hambly, 2008
WI 10, ¶16, 307 Wis.2d 98, 745 N.W.2d 48.
-10-
B. Jackson’s Statement was Coerced and Involuntary
Over the course of the roughly 1.5 hour interrogation, police
used coercive tactics to elicit the 15-year-old Jackson’s statement.
Police lied to him, telling him a number of witnesses positively
identified him in photo lineups (R51:15). In fact, only one witness,
Nicholas Brown, picked him out of a line up, and even he could not
identify Jackson as the shooter, but only picked him in response to the
instruction to pick out “Big Bub.” (R51:15-16). Moreover, Officer
Klinkhammer, the officer interrogating Jackson, made backhanded
racial threats, telling Jackson “I’m not here to hang you from a noose
and say hey your life’s over.” (R51:18).
Whether such conduct would be deemed coercive in other
circumstances is not at issue. There can be little doubt that it was here.
Jackson’s IQ was 73, only three points above mentally retarded
(R51:40). He performed at a third grade level, even though he was in
high school. Id. No parents, friendly adults, or attorneys were present
during his interrogation (R51:45; App. 22). Police only gave Jackson
access to his stepfather and aunt after the interview. Id. The limited
visit was short lived.
Improper or coercive police conduct is a necessary prerequisite
for a finding of involuntariness. State v. Hoppe, 2003 WI 43, ¶ 37, 261
Wis.2d 294, 661 N.W.2d 407 (citing Colorado v. Connelly, 479 U.S.
at 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Clappes, 136 Wis.2d at
239, 401 N.W.2d 759). However, police conduct is not required to be
egregious or outrageous in order to be coercive. Clappes. ¶ 46. “Rather,
subtle pressures are considered to be coercive if they exceed the
defendant's ability to resist. Accordingly, 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 uncom-
monly susceptible to police pressures.” Id.
-11-
The relevant facts here closely parallel those found to require
suppression in In re Jerrell C.J., 2005 WI 105,283 Wis. 2d 145, 699
N.W.2d 110. The Supreme Court there emphasized the vast difference
in the effects of coercion on children versus adults and stressed
“[s]imply put, children are different than adults, and the condition of
being a child renders one “uncommonly susceptible to police pres-
sures.” Id. at ¶ 26, citing Hardaway v. Young, 302 F.3d 757, 765
(2002).
In Jerrell C.J., the Court viewed “Jerrell’s young age of 14 to
be a strong factor weighing against the voluntariness of his confession.”
Id. at ¶ 26. Accordingly, this Court should give Jackson’s young age
of 15 the same weight. The Jerrell C.J. Court considered that Jerrell
was in the eighth grade and, even though he had a high grade point
average, he had an IQ of 84, which showed a low average intelligence.
The Court stressed previous school records showing failing and average
grades in considering Jerrell’s “limited education and low average
intelligence as additional reasons for why he was susceptible to police
pressure.” Id. at ¶ 27.
Jackson was even lower-functioning than Jerrell. Jackson’s IQ
was 73, his grade point average was a 0.4, and he performed at a third
grade level (R51:40). Like Jerrell, Jackson had been arrested twice
before. See Jerrell C.J., 2005 WI 105 at ¶ 29. Although Jackson was
not handcuffed to a wall, and his interview was shorter than in Jerrell
C.J., Jackson was held for a significant amount of time and had no
access to adults until after the interrogation ceased. As in Jerrell C.J.,
the detective here refused to believe Jackson’s denials of guilt until he
finally altered his story to a less exculpatory account.
Unlike Jerrell, moreover, Jackson was subjected to what any
young black man would view to be racial threats. (R51:18)
(Investigator Klinkhammer told Jackson he was not there to hang him
-12-
from a noose.) When balancing these factors under Hoppe and
considering the warnings of Jerrell C.J. regarding the need for “special
caution” when assessing the statements of a juvenile, it is clear
Jackson’s statement was involuntary and coerced. Jerrell C.J., 2005
WI 105 at ¶¶ 27-29; Hoppe, 2003 WI 43 at ¶ 37.
The trial court’s rationale for denying Jackson’s suppression
motion was erroneous. That court found that the detective did not
intend to make threats by informing Jackson he was not there to hang
him by a noose:
You know, I don't think that Mr. or that Investigator Klinkhammerhad any intention of trying to coerce Mr. Jackson into making astatement by that reference. It may have been a poor choice ofwords, but clearly it was not, I believe, intended to elicit improp-erly a response... .”
(R51:56; App. 33). The trial court also relied on Lynumn v. Illinois,
372 U.S. 528 (1963) and State v. Wallace, 59 Wis.2d 66, 81-82, 207
N.W.2d 855 (1973), in finding Jackson’s previous experience with
police, two juvenile adjudications which would have been felonies if he
were an adult, made him “street smart.” (R51:53; App. 30). The trial
court found that Jackson was allowed outside communication, even
though it was after the interview ended and that “I have to look at if
he's being held up incommunicado.” (R51:49; App. 26) The trial court
found misrepresentation is an accepted police tactic. Id. at 51.
At the post-conviction motion hearing, the trial court simply
reiterated its earlier findings, that police did not overpower Jackson and
the “interrogation was appropriate, did not violate any of Mr. Jackson’s
constitutional rights.” (R61:29-31; App.3-5). The trial court found “I
think all the appropriate bases were touched with regard to the typical
things that are raised when there is a request to suppress.” Id. at 30.
The trial court’s original denial of the suppression motion, and
-13-
upholding its decision at the post-conviction motion hearing, were
erroneous. The trial court erred at the suppression hearing by focusing
on the detective’s intent rather than on the effect of his threats.
Regardless of intent, the officer’s choice of words is shockingly
offensive, and could have no other effect but to coerce a young,
mentally impaired black man such as Jackson and to remove any ability
to make an informed choice of his own free will. At the post-convic-
tion motion hearing, the trial court again found “[t]he interrogation by
Klinkhammer was not overbearing.” (R61:30; App. 4). However, the
pressure police used here was not subtle. It is common knowledge that
this country has an unfortunate history of lynching young black men
and that police were often involved. See Rough Justice: Lynching &
American Society, 1874-1947 (University of Illinois Press 2004).
The trial court also erred by over-emphasizing the sophistication
gained from Jackson’s prior adjudications. Although Jackson had two
juvenile adjudications, neither of them were anywhere near as serious
as the charges he was facing here. See (R51:8) (“...the juvenile was
charged with operating a motor vehicle without owner's consent, and
that was amended down to the passenger OVWOC [operating a motor
vehicle without the owners consent] where he was adjudicated
delinquent on June 12th of ‘07. Furthermore, in Racine County case
file number 07JV7l9, the juvenile was charged with disorderly conduct
and possession with intent to deliver, and that’s THC less than two
hundred grams”). Nothing about these adjudications suggests a greater
ability to resist police pressures than is reflected in Jackson’s age and
intellectual level. Certainly, nothing about them suggests the ability of
this young black man to resist what reasonably could be viewed as
threats of racial violence.
Finally, the trial court’s belief that the statement was not
inculpatory was erroneous. The proof was not “in the pudding.” The
statement was inculpatory because it placed Jackson at the scene, and
-14-
the state used it for that purpose (R56:91-92). The Supreme Court has
recognized, contrary to the trial court’s holding, that the term
“incriminating response” “refers to any response - whether inculpatory
or exculpatory that the prosecution may seek to introduce at trial.”
Rhode Island v. Innis, 446 U.S. 291, 301 fn 5 (1980).
When comparing the facts here to the situation in Jerrell C.J.,
Jackson was in a similar if not worse position vis a vis the police than
was the youth whose statement was deemed involuntary. The trial
court’s admission of Jackson’s custodial statement was clearly
erroneous, and violated his due process rights under the Fourteenth
Amendment of the U.S. Constitution and Article I, Section 8 of the
Wisconsin Constitution. Jackson is entitled to a new trial.
C. The Erroneous Admission of Jackson’s Statement
was Not Harmless.
Once again, the state cannot satisfy its burden of showing this
error to have been harmless beyond a reasonable doubt. The central
issues at trial was whether Jackson was present at the incident here and
fired at Christopher Brown. Only Bell identified him as being there,
while others with a better opportunity to observe the perpetrator did not.
Under these circumstances, in which the jury easily could have found
reason to doubt Bell’s claims, the defendant’s own statement that he
was present easily could have made all the difference.
III.
PROSECUTORIAL MISCONDUCT
DENIED JACKSON A FAIR TRIAL
AND DUE PROCESS
Prosecutorial misconduct denied Jackson due process. The
prosecutor made impermissible comments about witness credibility,
attempted to shift the burden of proof to Jackson, and essentially told
-15-
the jury Jackson was in a gang, although neither party proffered
evidence that he was. Accordingly, Jackson is entitled to a new trial.
A. Standard of Review
1. Due Process and Prosecutorial Misconduct
The Supreme Court has held that the “touchstone of due process
analysis in cases of alleged prosecutorial misconduct is the fairness of
the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455
U.S. 209, 220 (1982). The question generally is whether the prosecuto-
rial misconduct “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” State v. Davidson, 2000
WI 91, ¶¶81-89, 236 Wis.2d 537, 613 N.W.2d 606. (citations omitted);
State v. Wolff, 171 Wis.2d 161, 167, 491 N.W.2d 498 (Ct. App.1992).
Thus, the courts have held that prosecutorial misconduct results in
deprivation of a fair trial where, absent the misconduct, the trial’s
outcome probably would have been different. E.g., State v.
Dombrowski, 44 Wis. 2d 486, 506, 171 N.W.2d 349, 360 (1969).
In closing argument, the prosecutor may comment on and detail
the evidence, argue from it to a conclusion, and state that the evidence
convinces him or her and should convince the jurors. State v. Adams,
221 Wis.2d 1, 19, 584 N.W.2d 695 (Ct.App.1998). The prosecutor may
comment on a witness’ credibility, but may not do so by implying the
existence of certain facts not in evidence. State v. Draize, 88 Wis.2d
445, 455, 276 N.W.2d 784 (1979). The Court must examine the
prosecutor’s comments in context in order to determine whether they
exceed the bounds of proper argument. Wolff, 171 Wis.2d at 168, 491
N.W.2d 498.
“When the seriousness of prosecutorial misconduct and the
weakness of evidence of guilt causes [the court] to question a trial’s
fairness, [the court] will not hesitate to reverse the resulting conviction
-16-
and order a new trial.” State v. Lettice, 205 Wis.2d 347, 352, 556
N.W.2d 376 (1996), citing United States v. Pirovolos, 488 F.2d 415,
425 (7th Cir. 1988). In such instances, reversal is warranted unless the
government can prove beyond a reasonable doubt the error was
harmless. State v. Lettice, 205 Wis.2d at 352 (citations omitted). In
making this reasonable doubt determination, a court examines whether
it is “‘clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error[.]’” State v. Mayo, 2007 WI
78, ¶ 47, 301 Wis.2d 642, 734 N.W.2d 115 (citations omitted).
2. Plain Error
Wisconsin courts have long struggled to define plain error,
finding the task “difficult, if not impossible.” State v. Jorgensen, 2008
WI 60, ¶59, 310 Wis.2d 138, 754 N.W.2d 77 (Abrahamson, C.J.
concurring).
The purpose of the plain error doctrine is to review unobjected
to errors that would otherwise have been waived. See Wis. Stat.
§901.03(4). The idea is that defendants are entitled to relief from errors
that are fundamental, substantial and obvious, despite their attorney’s
failure to object. See Mayo, 2007 WI 78, ¶29. But see Wis. Stat.
¶901.03(4) (authorizing plain error review of evidentiary rulings).
There is no bright-line rule for identifying a plain error; rather
the appellate courts know it when they see it. Mayo at ¶29 (“the
existence of plain error will turn on the facts of the particular case”)
citing Virgil v. State, 84 Wis.2d 166, 190-91, 267 N.W.2d 852 (1978).
That being said, however, a plain error is an “‘error so fundamental that
a new trial or other relief must be granted even though the action was
not objected to at the time.’” Virgil, 84 Wis.2d at 191 quoting 3
Wright, Federal Practice and Procedure, sec. 851 (1969). Thus, the
identified error must be “obvious and substantial[.]” State v.
Sonneberg, 117 Wis.2d 159, 177, 344 N.W.2d 95 (1984).
-17-
If the defendant gets past this first hurdle by demonstrating that
the unobjected to error was fundamental, obvious and substantial, the
burden then shifts to the state to show that the error was harmless.
Mayo at ¶29. “[T]he error is harmless if the beneficiary of the error
proves ‘beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” Mayo at ¶47 citing State v.
Anderson, 2006 WI 77, ¶114, 291 Wis.2d 673, 717 N.W.2d 74, quoting
Chapman v. California, 386 U.S. 18 (1967).
Unobjected to misconduct of counsel during closing arguments
is properly analyzed under the plain error doctrine. See Davidson, 2000
WI at ¶¶81-89.
B. The Prosecutor’s Statements to the Jury Regarding
the Witness’ Credibility Were Plain Error
The primary evidence against Jackson came from the testimony
of one citizen witness. None of the witnesses, other than Reginald Bell,
gave a story that matched up with the state’s theory of Jackson’s guilt,
and Bell could not even identify Jackson in a photo lineup roughly two
hours after the shooting. He only identified Jackson in court where
Jackson was the only defendant seated at counsel table (R45:20;
R53:48-55). The prosecutor attempted to make up for weaknesses in
his case in his closing argument by encouraging the jury to go beyond
its charged duty of evaluating the evidence and applying it to the law,
and instead to punish Jackson both for what he submitted was the
state’s and defense’s witnesses’ lack of credibility in failing to identify
Jackson as the shooter (R56:77-78).
In making this argument, the prosecutor improperly asked the
jury to go beyond its sole charged duty of applying the evidence to the
law. See United States v. Severson, 3 F.3d 1005, 1015 (7th Cir.1993).
In summarizing the evidence, the prosecutor discussed the witnesses
testimony at length and he informed the jury that the majority of
-18-
witnesses lied on the stand. He claimed both Nicholas and Christopher
Brown lied, all of the defense witnesses lied, and Jackson lied in his
statement to police. After making these claims, he told the jury he
would discuss applying the evidence to the law with them, but that the
case “...is actually a little bit bigger than that. This case is about what
twelve people from the county of Racine is [sic] going to decide what
this criminal justice process is all about.” (R56:78). He claimed it was
clear the shooting occurred, but “...this case is really about whether
twelve of you are going to be duped into this silly little game that's
being played by two of the state's witnesses and all of the defendant
witnesses.” Id. He asked the jury to punish Jackson for what he
perceived as insincerity of all of the witnesses because the people of
their “horrible” neighborhood “...don't deserve the Wild Wild West that
Darron Jackson wants to live in, that Nicholas Brown wants to live in,
and that all of these kids want to live in.” Id. “You can convict either
way. But the bigger question is if you're going to allow a shooter to be
not brought to justice because of the game these children chose to play
in this very adult place.” (R56:100). Every single time he told the jury
to apply the law to the facts he also told them to punish Jackson for the
allegedly incredible witnesses.
Contrary to what the prosecutor told the jury, it was their duty to
simply apply the evidence to the law, and nothing more. Severson,
supra (any comment inviting conviction for reasons other than proof of
guilt beyond a reasonable doubt is improper); Wis-JI Crim. 100. The
jury’s only job is to “decide which evidence is credible and which is not
and how conflicts in the evidence are to be resolved.” State v.
Poellinger, 153 Wis.2d 493, 503, 451 N.W.2d 752 (1990). See also id.
at 506 (“It is the function of the trier of fact...to fairly resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts”). Encouraging the jury to
base its verdict on anything other than the evidence, including the
purportedly false stories of the witnesses, is improper. See Pollinger,
-19-
153 Wis.2d at 502.
The prosecutor used his closing argument to shore up his case
where the evidence could not. His closing argument asked the jury to
convict Jackson for reasons other than proof of guilt beyond a reason-
able doubt. The jury was left with an impression that it was permissible
for them to punish Jackson for the witnesses’ insincerity. The
prosecutor encouraged the jury to act on that mistaken impression, in
an effort to sway them to convict, not on the facts, but because of the
lying witnesses. There is no reason to believe that they were not
swayed. C.f. Kyles v. Whitley, 514 U.S. 419, 448 (1995) (“If a police
officer thought so, a juror would have too”).
C. The Prosecutor’s Attempt to Shift the Burden of
Proof to Jackson Was Plain Error
On two occasions the prosecutor back-handedly shifted the
burden of proof to Jackson. In discussing what he perceived as the lack
of credibility of the defense witnesses, the prosecutor told the jury that,
because Jackson chose to put on a defense, the jury could hold him
accountable. (R56:91) (“... but when you choose to put on a defense,
you, as a jury, can hold them to some standard.”) Again, when
discussing Jackson’s failure to call an expert witness to testify in
rebuttal the prosecutor told the jury, “...they have no requirement to put
on a defense, but once they put on a defense and make arguments, you
should hold them to some type of standard.” (R56:124).
This argument is plain error. The burden to prove each element
of the charged offenses beyond a reasonable doubt is on the state in
criminal cases. Gauthier v. State, 28 Wis.2d 412, 415-416, 137
N.W.2d 101 (1965), Wis-JI Crim. 140. This is one of the most
fundamental principals of law, and the prosecutor knew or should have
known this. The only standard the jury can permissibly apply is
whether, given all the evidence, or in this case the lack of evidence, the
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state has met its burden of proving every fact beyond a reasonable
doubt. Gauthier, 28 Wis.2d at 416. It is improper to shift the burden
of proof on to the defendant. See United States v. Vargas, 583 F.2d
380, 386 (7th Cir. 1978).
While a prosecutor’s comments on the shortcomings of defense
evidence do not per se constitute a shifting of the burden of proof, State
v. Patino, 177 Wis.2d 348, 382, 502 N.W.2d 601 (1993), adopting
United States v. Sblendorio, 830 F.2d 1382, 1390-94 (1987), that is not
what the prosecutor did here. Rather, he told the jury that it must hold
Jackson to a higher standard because he chose to put on a defense. This
argument was misleading, false and could only have caused confusion.
The prosecutor’s statements were improper because Jackson was
not required to meet any sort of standard. Any reasonable juror would
have heard the prosecutor’s words as a requirement that Jackson must
prove his innocence or, at very least provide some additional evidence.
C.f. Kyles, 514 U.S. at 448. The state’s remarks were inappropriate and
impermissible, and infected the trial with unfairness. This error could
not be harmless because, given the extreme weakness of the state’s
case, any shifting of the burden of proof from the state to the defense
easily could have made the difference between conviction and acquittal.
C.f. U.S. v. Agurs, 427 U.S. 97, 113 (1976) (where the state’s case
already is of marginal sufficiency, even otherwise minor errors can
have a great impact on the jury).
At the post-conviction motion hearing, the trial court simply
found “I just don’t think it happened” regarding Jackson’s claim that
the state shifted the burden of proof to Jackson, commenting on how
neither undersigned counsel, nor the assistant district attorney who
appeared at the post-conviction motion were present at trial (R84: 37-3.
However, it is clear from the trial record that the trial court was wrong
and this misconduct did occur.
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D. The Prosecutor’s Suggestion that Jackson was in a
Gang Was Plain Error
No evidence was presented at trial or otherwise that Jackson was
or is a gang member. In his closing argument, the prosecutor nonethe-
less associated Jackson with gangs, explaining that only gang members
have nicknames. 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.” (R56:84). This statement was 1) irrelevant, 2)
unsupported by the evidence, and 3) inflammatory. There was not a
shred of evidence that this shooting was gang related or that Jackson
was in a gang. None of the officers testified they had reason to believe
Jackson was a gang member, and he specifically denied gang involve-
ment when asked during his custodial interview. Any reference to
gangs thus was irrelevant to the charges.
The fact that the prosecutor’s suggestion itself was unsupported
by the record makes it inappropriate on that ground as well. The
prosecutor related Jackson to a gang even though there was no evidence
he had any affiliation with gangs. It has long been held that it is
improper for the parties to comment on facts not in evidence. See State
v. Albright, 98 Wis.2d 663, 298 N.W.2d 196 (Ct. App. 1980); Draize,
supra; State v. Smith, 2003 WI App 234, ¶23, 268 Wis.2d 138, 671
N.W.2d 854.
The statements are even more egregious here because the term
‘gang’ carries a heavy stigma in society. Equating Jackson to a gang
member is highly prejudicial. United States v. Rodriguez, 925 F.2d
1049, 1053 (7 Cir. 1991) quoting United States v. Lewis, 910 F.2dth
1367, 1372 (7 Cir. 1990) (“[E]vidence of membership in a street gangth
is likely to be ‘damaging to [a defendant] in the eyes of the jury.’”)
(“This circuit is cognizant of the insidious quality of such evidence and
the damage it can do.”) United States v. Sargent, 98 F.3d 325, 328 (7th
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Cir. 1996).
At the February 22, 2010 post-conviction motion hearing, the
trial court explained that it knew the ADA often skirted unethical
behavior.
Mr. Luell and I got into it frequently with regard to him going over the line.And I don't think he went over the line here or I would have respondedappropriately.
(R61:37; App. 11). The trial court cited an undisclosed Court of
Appeals case where the issue of the prejudicial nature of the word gang
had been an issue and found, although completely unsupported by the
record, that “the parties were cognizant that you couldn’t tar and feather
a defendant by spewing venom to a jury with regard to the repulsive
activity of gangs.” Id. The trial court found:
I don't have total familiarity with the transcript of the trial, but I thinkbecause of the Court's knowledge that it was an area where you could notgo without prejudicing the jury, that the Court would have, even without anobjection by Mr. Johnson, sue sponte have called Mr. Luell with regard tothat kind of argument.
(R84:37.) However, the ADA must not have been aware of this
mysterious case because that is exactly what he did, and the trial court’s
role was to know the record and not to speculate regarding what it
probably did.
* * * *
Individually, the prosecutor’s statements warrant a new trial, but
taken together, they were so egregious that they amounted to plain
error, denied Jackson a fair trial, and thereby also violated his right to
due process. State v. Sonnenberg, 117 Wis.2d 159, 177, 344 N.W.2d
95, 103-04 (1984); see Wis. Stat. §901.03(4). Given the extreme
weakness of the state’s case and both the intent and the effect of the
prosecutor’s comments to reduce his own burden and shift the burden
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to the defense, it is not clear beyond a reasonable doubt that a rational
jury would have found Jackson guilty in the absence of the prosecutor’s
impermissible comments. See Agurs, supra
IV.
JACKSON WAS DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL
Jackson’s trial counsel performed deficiently, prejudicing him
by failing to object when the trial court gave the instruction for
recklessly endangering safety while armed. Accordingly Jackson is
entitled to a new trial
A. Standard for Ineffectiveness
The standard test for ineffective assistance of counsel is
two-pronged. A defendant alleging ineffective assistance of counsel
first “must show that ‘counsel's representation fell below an objective
standard of reasonableness.’” State v. Johnson, 133 Wis.2d 207, 217,
395 N.W.2d 176, 181 (1986), quoting Strickland v. Washington, 466
U.S. 668, 688 (1984). In analyzing this issue, the Court “should keep
in mind that counsel’s function, as elaborated in prevailing professional
norms, is to make the adversarial testing process work in the particular
case.” Strickland, 466 U.S. at 690; see Kimmelman v. Morrison, 477
U.S. 365, 384 (1986).
It is not necessary, of course, to demonstrate total incompetence
of counsel, and the defendant makes no such claim here. Rather, a
single serious error may justify reversal. Kimmelman v. Morrison, 477
U.S. 365, 383 (1986); see United States v. Cronic, 466 U.S. 648, 657
n.20 (1984). “[T]he right to effective assistance of counsel . . . may in
a particular case be violated by even an isolated error . . . if that error
is sufficiently egregious and prejudicial.” Murray v. Carrier, 477 U.S.
478, 496 (1986). The deficiency prong of the Strickland test is met
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when counsel's performance was the result of oversight rather than a
reasoned defense strategy. See Wiggins v. Smith, 539 U.S. 510, 534
(2003); Dixon v. Snyder, 266 F.3d 693, 703 (7 Cir. 2001); State v.th
Moffett, 147 Wis.2d 343, 353, 433 N.W.2d 572, 576 (1989); but see
State v. Koller, 2001 WI App. 253, ¶¶8, 53, 248 Wis.2d 259, 635
N.W.2d 838.
Second, a defendant generally must show that counsel’s
deficient performance prejudiced his defense. “[A] counsel’s perfor-
mance prejudices the defense when the ‘counsel's errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is
reliable.’” Johnson, 133 Wis.2d at 222, quoting Strickland, 466 U.S.
at 687. “The defendant is not required [under Strickland] to show ‘that
counsel's deficient conduct more likely than not altered the outcome of
the case.’” Moffett, 147 Wis.2d at 354, quoting Strickland, 466 U.S.
at 693. Rather, under the constitutional standard,
The test is whether defense counsel's errors undermine confidencein the reliability of the results. The question on review is whetherthere is a reasonable probability that a jury viewing the evidenceuntainted by counsel's errors would have had a reasonable doubtrespecting guilt.
Moffett, 147 Wis.2d at 357 (citation omitted).
“Reasonable probability,” under this standard, is defined as
“‘probability sufficient to undermine confidence in the outcome.’” Id.,
quoting Strickland, 466 U.S. at 694. If this test is satisfied, relief is
required; no supplemental, abstract inquiry into the “fairness” of the
proceedings is permissible. Williams v. Taylor, 529 U.S. 362 (2000).
In addressing this issue, the Court normally must consider the totality
of the circumstances. Strickland, 466 U.S. at 695.
In assessing resulting prejudice, the Court must assess the
cumulative effect of all errors, and may not merely review the effect of
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each in isolation. E.g., Alvarez v. Boyd, 225 F.3d 820, 824 (7 Cir.th
2000), cert. denied, 531 U.S. 1192 (2001); Washington v. Smith, 219
F.3d 620, 634-35 (7 Cir. 2000); State v. Thiel, 2003 WI 111, ¶¶ 59-60,th
264 Wis.2d 571, 665 N.W.2d 305 (addressing cumulative effect of
deficient performance of counsel).
B. Trial Counsel’s Performance Was Deficient
1. Failure to object on appropriate grounds to the
lesser offense instruction
Attorney Johnson did not intentionally fail to object on the
grounds that recklessly endangering safety while armed was not a
lesser-included offense of attempted first-degree intentional homicide,
nor did he have any strategic or tactical reason to do so (R61:7-8). In
fact, he objected to the lesser offense instruction on the grounds that
nothing in the record supported the instruction, focusing specifically on
the intent element. He argued: “I think carefully aim was meant to
show some sort of intent. We're just saying sort of shooting all over, I
can understand that being a reckless, but I don't think saying he
carefully aimed serves any other purpose than to try to show intent.”
(R56:66). At the post-conviction motion hearing, Johnson explained
he believed he did not object to the instruction on the grounds that it
was not a lesser-included offense and had no strategic or tactical reason
for failing to do so (R61:7,16).
Although Johnson correctly identified there was a problem with
the instruction, he did not identify the correct grounds to object to it.
Mr. Johnson merely overlooked those defects. Id Deficient perfor-
mance is shown where counsel’s failures are the results of oversight
rather than a reasoned defense strategy. E.g., Wiggins, 539 U.S. at 534;
Moffett, 147 Wis.2d at 353.
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2. Failure to object during the prosecutor’s closing
argument
Attorney Johnson failed to object to the prosecutorial miscon-
duct identified in Section III, supra, because he failed to recognize the
prosecutor’s assertions to be objectionable (R61:5-6). Deficient
performance is shown where, as here, counsel’s failures are the results
of either an error of law or of oversight rather than a reasoned defense
strategy. E.g., Wiggins, 539 U.S. at 534; Moffett, 147 Wis.2d at 354.
C. Trial Counsel’s Deficient Performance Prejudiced
Jackson’s Defense at Trial
There can be no reasonable dispute that trial counsel’s errors
prejudiced Jackson’s defense and that, but for those errors, there exists
a reasonable probability of a different result in this case. While any of
counsel’s errors alone resulted in sufficient prejudice for reversal,
ineffectiveness of counsel must be assessed under the totality of the
circumstances. It is thus the cumulative effect of counsel’s errors and
the prosecutor’s misconduct which is controlling. E.g., Alvarez, 225
F.3d at 824; Washington, 219 F.3d at 634-35.
Here, the cumulative effect of counsel’s errors is that Jackson
was denied a fair trial. The state’s case was extremely weak, with only
one of several purported eye witnesses claiming that Jackson was the
shooter, and even that witness failed to identify Jackson during a photo-
lineup or otherwise until what were effectively one person lineups in
court (R54:48). Shifting the burden to the defense and suggesting gang
affiliation thus, had a significant impact on the jury’s verdict, just as the
prosecutor intended. See also Section IV, supra.
Where, as here, trial counsel’s errors allowed the prosecutor to
leave the jury with a false impression that they should punish Jackson
for the incredibility of other witnesses and that Jackson had to prove his
innocence, there cannot help but be a reasonable probability of a
-27-
different result, but for those errors. Nor can the failure to properly
object to the lesser-offense instruction be written off as harmless. The
jury failed to convict on the greater charge. Inclusion of the lesser-
offense as an alternative thus resulted in Jackson’s conviction for an
offense the jury could not legally consider.
The trial court found Jackson’s trial attorney was generally
effective and that “...frankly, you know, in all honesty, I think that’s a
determination for the Court of Appeals to make” (R84:41).
V.
JACKSON IS ENTITLED
TO A NEW TRIAL IN THE
INTERESTS OF JUSTICE
The interests of justice also require grant of relief pursuant to
Wis. Stat. §752.35, because the admission of highly prejudicial
evidence resulted in the real controversy not being tried. See Vollmer
v. Luety, 156 Wis.2d 1, 456 N.W.2d 797 (1990). See also Section III
& IV, supra. Even if trial counsel’s failure to object to the prosecutor’s
statements about punishing Jackson for problems with witness
credibility and shifting a burden of proof to the defense means Jackson
cannot challenge those errors as of right under Wis. Stat. §805.13, it
resulted in the real controversy not being tried. See Id. .
The trial court denied that the interests of justice required relief,
finding
I'll deny that one as well. I think Mr. Jackson got a fair trial, andfrankly, I think the jury reached the appropriate verdict, which I believeaccurately reflects what happened here and let's, you know, let's call itwhat it is. A trial is a search for the truth.
(R84:45). However, the trial court was wrong.
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VI.
PLACING THE BURDEN ON JACKSON TO JUSTIFY
REVERSE WAIVER AFTER TRIAL VIOLATED HIS
RIGHTS TO DUE PROCESS AND EQUAL PROTECTION
Although the original charge of attempted first-degree inten-
tional homicide automatically placed this case within adult court
jurisdiction, the offense of conviction did not. Placing the burden on
the defendant to prove that he meets the enumerated criteria for reverse
waiver under such circumstances creates an arbitrary and irrational
distinction between similarly situated juveniles based solely on the
prosecutor’s charging decision.
By requiring the state to prove waiver where the defendant is not
charged with an offense specified in Wis. Stat. §938.183(2)(a), but
requiring the defendant to prove reverse waiver by clear and convincing
evidence when he is charged, but ultimately acquitted of such an
offense, Wis. Stat. §938.18, violates due process and equal protection.
The trial court erred by not so finding. Accordingly, this Court should
vacate the trial court’s finding on reverse waiver and order a new
reverse waiver hearing.
A. Applicable Law
1. Reverse Waiver
The juvenile court has jurisdiction “over any juvenile 10 years
of age or older who is alleged to be delinquent[,]” except in limited
circumstances. See Wis. Stat. §938.12. In most cases, in order for a
juvenile to be waived into adult court, the state must prove by clear and
convincing evidence that it is contrary to the best interests of the public
that a juvenile court retain jurisdiction. Wis. Stat. §938.18(6).
However, adult criminal courts have original jurisdiction over
Section 938.183(2)(a), Stats., provides in part: 1
(2) (a) Notwithstanding ss. 938.12(1) and 938.18, courts ofcriminal jurisdiction have exclusive original jurisdiction over ajuvenile who is alleged to have attempted or committed a violationof s. 940.01 or to have committed a violation of s. 940.02 or 940.05on or after the juvenile's 15th birthday.
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a juvenile charged with committing attempted first-degree intentional
homicide, if the offense was committed on or after the juvenile's 15th
birthday. See Wis. Stat. § 938.183(2)(a). In cases such as this, the1
burden is on the juvenile by a preponderance of the evidence to prove
reverse waiver is appropriate prior to trial. Wis. Stat. §970.032(2);Wis.
Stat. §938.18(5)(c). To effect a reverse waiver prior to trial, a juvenile
who the state prosecutes as an adult in criminal court petitions the court
to transfer the case to juvenile court for adjudication or disposition. Id.
When the reverse waiver hearing occurs prior to trial, the court
must consider:
a) That, if convicted, the juvenile could not receive adequatetreatment in the criminal justice system.
(b) That transferring jurisdiction to the court assigned to exercisejurisdiction under chs. 48 and 938 would not depreciate theseriousness of the offense.
(c) That retaining jurisdiction is not necessary to deter the juvenileor other juveniles from committing the violation of which thejuvenile is accused under the circumstances specified in s. 938.183(1)(a), (am), (ar), (b) or (c), whichever is applicable.
Wis. Stat. §970.032(2).
After trial, if the juvenile ultimately is convicted of a lesser
offense that would not have given the adult court original jurisdiction
the adult court may impose a delinquency disposition rather than an
adult sentence, only if defendant shows by clear and convincing
evidence that a number of factors are met. See Wis. Stat §§ 938.34,
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938.183(2)(a)1 and 2. If the defendant fails to satisfy that heightened
standard of proof, the trial court must impose an adult sentence. Wis.
Stat. §938.18(6).
The factors considered after conviction differ from those
considered before conviction, making it more difficult to obtain reverse
waiver after trial even if the defendant was not burdened with a higher
standard of proof. In a post-conviction reverse waiver hearing pursuant
to Wis. Stat. §938.183(1m)(3), the trial court must balance the best
interests of the juvenile and the public, and consider:
(a) The personality of the juvenile, including whether the juvenilehas a mental illness or developmental disability, the juvenile'sphysical and mental maturity, and the juvenile's pattern of living,prior treatment history, and apparent potential for responding tofuture treatment.
(am) The prior record of the juvenile, including whether the courthas previously waived its jurisdiction over the juvenile, whetherthe juvenile has been previously convicted following a waiver ofthe court's jurisdiction or has been previously found delinquent,whether such conviction or delinquency involved the infliction ofserious bodily injury, the juvenile's motives and attitudes, and thejuvenile's prior offenses.
(b) The type and seriousness of the offense, including whether itwas against persons or property and the extent to which it wascommitted in a violent, aggressive, premeditated or willful manner.
(c) The adequacy and suitability of facilities, services and proce-dures available for treatment of the juvenile and protection of thepublic within the juvenile justice system, and, where applicable,the mental health system and the suitability of the juvenile forplacement in the serious juvenile offender program under s.938.538 or the adult intensive sanctions program under s. 301.048.
(d) The desirability of trial and disposition of the entire offense inone court if the juvenile was allegedly associated in the offensewith persons who will be charged with a crime in the court ofcriminal jurisdiction.
Wis. Stat. §938.18(5).
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2. Equal Protection and Due Process
This Court has described the applicable test for assessing an
Equal Protection claim as follows:
¶12 In determining whether a statute violates the equalprotection clause, we first decide the level of scrutiny to employ.. . .. We apply the most scrutiny-“strict scrutiny”-when the statuteor classification “ ‘impermissibly interferes with the exercise of afundamental right or operates to the peculiar disadvantage of asuspect class.’ ” . . .. Under this level of scrutiny, the State mustprove that the classification is precisely tailored to promote acompelling governmental interest. . . ..
¶13 . . . Under [the “rational basis”] standard, we uphold a statuteagainst an equal protection challenge “if a plausible policy reasonexists for the classification and the classification is not arbitrary inrelation to the legislative goal.” . . .. A statute is unconstitutionalif it “is shown to be ‘patently arbitrary’ with ‘no rational relation-ship to a legitimate government interest.’”
State v. Lynch, 2006 WI App 231, ¶¶12-13, 297 Wis.2d 51, 724
N.W.2d 656 (citations and fn. omitted). Due process similarly
“requires that the means chosen by the legislature bear a reasonable and
rational relationship to the purpose or object of the enactment....” State
v. Quintana, 2007 WI App 29, ¶21, 729 N.W.2d 776 (citation and
internal quotations omitted). This Court reviews whether a statute
violates equal protection or due process de novo.
B. Jackson’s Rights to Equal Protection and Due Process
Were Violated Because the Burden was on Him to
Prove Reverse Waiver was Appropriate Upon Con-
viction
The applicable legal standard is irrelevant because there can be
no non-arbitrary reason for discriminating between juveniles charged
in adult court and convicted of a lesser offense than necessary for
original adult court jurisdiction and those charged with the same
offense in juvenile court. It is arbitrary to treat juvenile defendants like
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Jackson differently merely because the state chose to overcharge them
at the beginning of the case. While probable cause may justify
imposing the burden on juvenile defendants in reverse waivers before
trial, a defendant cannot be punished based on probable cause.
Acquittal of the charge permitting automatic adult-court
jurisdiction and conviction on a lesser offense for which waiver to adult
court is not automatic places the defendant back in the category of
juvenile defendants who are not facing conviction for an automatic
waiver offense. There thus is no rational basis for placing the burden
on the defendant to justify a juvenile disposition in one such circum-
stance, while requiring the state to justify an adult disposition in the
other. Even less rational is the requirement that the defendant justify
a juvenile disposition by clear and convincing evidence, after being
acquitted of the charge authorizing automatic adult court jurisdiction,
while requiring only proof by a preponderance of the evidence that
reverse waiver is appropriate before trial, when the greater charge is
still pending.
The trial court voiced its displeasure with the juvenile justice
code, but ultimately found it was bound by the existing statute at the
post-conviction motion hearing (R61:42; App. 16). However, because
the trial court applied a constitutionally invalid burden of proof in
denying Jackson’s post-trial reverse waiver motion, that denial must be
vacated. Jackson is entitled to a new reverse waiver hearing under the
proper standard.
CONCLUSION
For these reasons, Jackson respectfully asks that the Court
reverse the circuit court’s order denying his post-conviction motion and
remand the matter for a new trial.
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Dated at Milwaukee, Wisconsin, June 18, 2010.
Respectfully submitted,
DARRON D. JACKSON,
Defendant-Appellant
HENAK LAW OFFICE, S.C.
Rebecca R. Lawnicki
State Bar No. 1052416
P.O. ADDRESS:
316 North Milwaukee Street, Suite 535
Milwaukee, Wisconsin 53202
(414) 283-9300
Jackson Brief.wpd
RULE 809.19(8)(d) CERTIFICATION
I hereby certify that this brief conforms to the rules contained
in Rule 809.19(8)(b) and (c) for a brief produced with a proportional
serif font. The length of this brief is 9603 words.
___________________________
Rebecca R. Lawnicki
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RULE 809.19(12)(f) CERTIFICATION
I hereby certify that the text of the electronic copy of this
brief is identical to the text of the paper copy of the brief.
___________________________
Rebecca R. Lawnicki
CERTIFICATE OF MAILING
I hereby certify pursuant to Wis. Stat. (Rule) 809.80(4) that,
on the 21 day of June, 2010, I caused 10 copies of the Brief andst
Appendix of Defendant-Appellant Jackson to be mailed, properly
addressed and postage prepaid, to the Wisconsin Court of Appeals, P.O.
Box 1688, Madison, Wisconsin 53701-1688.
___________________________
Rebecca R. Lawnicki
