Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Trammell

Supreme Court of Wisconsin

May 31, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Emmanuel Earl Trammell, Defendant-Appellant-Petitioner.

          Submitted on Briefs: Oral Argument: March 26, 2019

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 382 Wis.2d 832, 917 N.W.2d 233

          Circuit Court Milwaukee county L.C. No. 2015CF3109 Jeffrey A. Wagner Judge

          For the defendant-appellant-petitioner, there were briefs filed by Urszula Tempska and Law Office of U. Tempska, Shorewood. There was an oral argument by Urszula Tempska.

          For the plaintiff-respondent, there was a brief filed by Tiffany M. Winter, assistant attorney general, with whom on the brief is Joshua L. Kaul, attorney general. There was an oral argument by Tiffany M. Winter.

          An amicus curiae brief was filed on behalf of Wisconsin Association of Criminal Defense Lawyers by Ellen Henak and Henak Law Office, S.C., Milwaukee.

          An amicus curiae brief was filed on behalf of Wisconsin State Public Defender by Jefren E. Olsen, assistant state public defender, with whom on the brief was Kelli S. Thompson, state public defender.

          ANNETTE KINGSLAND ZIEGLER, J.

         ¶1 This is a review of an unpublished, per curiam decision of the court of appeals, State v. Trammell, No. 2017AP1206-CR, unpublished slip op. (Wis. Ct. App. May 8, 2018), affirming a jury verdict convicting Emmanuel Earl Trammell ("Trammell") on one count of armed robbery and one count of operating a vehicle without the owner's consent, and affirming the Milwaukee County circuit court's order denying Trammell's motion for postconviction relief.[1] Though he failed to object at the jury instruction and verdict conference as required by Wis.Stat. § 805.13(3) (2015-16), [2] Trammell claims that Wis JI-Criminal 140 (2017)[3] unconstitutionally reduced the State's burden of proof, and confused and misled the jury such that he should be entitled to a new trial. Lastly, Trammell alternatively claims that discretionary reversal is warranted under Wis.Stat. § 751.06.

         ¶2 We conclude that Trammell waived his right to object to the use of Wis JI-Criminal 140 by failing to object to its use at the jury instruction and verdict conference, pursuant to Wis.Stat. § 805.13(3) . On that basis, the court of appeals properly denied Trammell's appeal and correctly concluded that it could not consider whether Wis JI-Criminal 140 misstates the law, confuses the jury, and reduces the State's burden. However, unlike the court of appeals, this court may nonetheless consider the instruction under its discretionary power of review. State v. Schumacher, 144 Wis.2d 388, 409-10, 424 N.W.2d 672 (1988) . We exercise that power here. The constitutional question with which we are presented is whether there is a reasonable likelihood that the jury understood the instructions to allow a conviction based upon insufficient proof. We conclude that Wis JI-Criminal 140 does not unconstitutionally reduce the State's burden of proof below the reasonable doubt standard. Lastly, we conclude that discretionary reversal under Wis.Stat. § 751.06 is not warranted. We therefore affirm the court of appeals.

         I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

         ¶3 Trammell was arrested on July 8, 2015, after stealing a car from a convenience store parking lot while armed. On July 10, 2015, the State charged Trammell with one count of armed robbery and one count of operating a motor vehicle without the owner's consent. Trammell entered a plea of not guilty.

         ¶4 Prior to trial, Trammell submitted a list of proposed jury instructions pursuant to the circuit court's scheduling order. Included in the list of proposed jury instructions was Wis JI-Criminal 140 titled, "Burden of Proof and the Presumption of Innocence."[4]

         ¶5 A two-day jury trial commenced on April 4, 2016. During testimony, the victim identified Trammell in court and testified that on July 8, 2015, the victim and his girlfriend drove to a convenience store in his mother's Buick Regal. The victim testified that he went into the store while his girlfriend waited in the Buick. He testified that while he was in the store, Trammell approached him and patted him down, telling the victim that he was looking for a gun. The victim stated that after not finding a gun, Trammell snatched money from the victim and asked him whose car he came in. The victim testified that he told Trammell the Buick belonged to his mother. The victim tried to stop Trammell but Trammell brandished a gun, got in the driver's seat of the Buick, and drove away. The other two individuals with Trammell drove away in another car. The victim's girlfriend's testimony corroborated the victim's recollection of events.

         ¶6 The State also called Officer Steven Strasser of the Milwaukee Police Department ("Officer Strasser") to testify. Officer Strasser testified that he heard a dispatch that OnStar[5]had located the Buick and that police were pursuing it. Officer Strasser stated that he joined the pursuit, and that the Buick was ultimately stopped when police requested OnStar to cut off the ignition in the vehicle. He testified that three individuals exited and were arrested. He stated that police identified the driver as Gabarie Silas ("Silas"), and that Trammell was nowhere to be found.

         ¶7 The State also called Silas, who had entered into a plea agreement, to testify. Silas testified that on July 8, 2015, he rode to the convenience store in a Dodge Stratus with Trammell and another individual. Silas also corroborated the victim's testimony regarding what transpired at the convenience store. He stated that once the victim's girlfriend was out of the car, Trammell threw Silas the keys to the Dodge. Silas drove away in the Dodge as Trammell took the Buick. Silas testified that he and Trammell later switched cars. He further testified that he understood the incident involved a gun that Trammell provided to the victim but for which the victim never paid Trammell. Silas said that Trammell intended to return the car to the victim once Trammell and the victim settled the outstanding debt.

         ¶8 Officer Eric Draeger of the Milwaukee Police Department ("Officer Draeger") also testified for the State. Officer Draeger stated that he monitors all jail telephone calls, and that on January 6, 2016, he listened to a call Trammell made to a friend, during which Trammell asked her to offer false testimony at Trammell's trial.

         ¶9 Moreover, pursuant to a stipulation with Trammell's trial counsel, the State informed the jury that a forensic examiner identified two fingerprints lifted from the Buick as Trammell's left index finger and Silas's left middle finger. Trammell chose not to testify at trial.

         ¶10 At the close of evidence, the parties and the circuit court conducted a jury instruction and verdict conference as required by Wis.Stat. § 805.13(3). The circuit court indicated that it intended to give the standard burden-of-proof instruction, Wis JI-Criminal 140, which Trammell had specifically requested. Trammell did not object to the instruction, nor did he request that the instruction be modified in any way. Prior to closing arguments, the circuit court instructed the jury on the burden of proof using Wis JI-Criminal 140.

         ¶11 The jury convicted Trammell of both armed robbery, party to a crime, and operating a motor vehicle without the owner's consent, party to a crime. On May 17, 2016, Trammell was sentenced to 12 years in prison and 8 years of extended supervision on count one. He was further sentenced to 15 months in prison and 15 months of extended supervision on count two, running concurrently with the sentence on count one.

         ¶12 On April 10, 2017, Trammell filed a motion for postconviction relief in the circuit court. Trammell claimed that Wis JI-Criminal 140 "misstated the law, confused the jurors, and caused Trammell to be convicted based on a burden of proof lower than the constitutionally-required 'beyond reasonable doubt' standard." In support of his position, Trammell cited two law review articles written by the same two authors-one which was released shortly after Trammell's conviction, and one which was, at the time, set to be released in 2017.[6] Each law review article was based on separate but similar studies which the authors conducted. The authors opined that when jurors are instructed to "search for truth," significantly higher conviction rates result. Trammell acknowledged that "[t]he jury instructions given in this case were subject to a jury instructions conference and were given with both parties' agreement and no objections." While this would seemingly constitute waiver under Wis.Stat. § 805.13(3), Trammell nevertheless sought a new trial both in the interest of justice and due to plain error. The State argued that Trammell waived his right to object to the jury instruction by operation of § 805.13(3), and that the jury instruction did not mislead or confuse the jury or reduce the State's burden of proof.

         ¶13 On April 14, 2017, the circuit court issued a written order denying Trammell's motion for postconviction relief. The circuit court noted that Wis JI-Criminal 140 "was formulated and approved by Wisconsin's Jury Instruction Committee," and stated that "[a]lthough the studies performed by Cicchini and White make for interesting reading, the court is bound by the standard jury instruction implemented by the Jury Instruction Committee which has been accepted for years by Wisconsin's appellate courts." The circuit court therefore declined to grant Trammell a new trial due to any purported plain error and rejected Trammell's argument that Wis JI-Criminal 140 "prevented the true controversy from being fully tried."[7]

         ¶14 Trammell appealed. On May 8, 2018, the court of appeals issued a per curiam opinion affirming the circuit court. The court of appeals first concluded that Trammell waived his right to object to the jury instruction pursuant to Wis.Stat. § 805.13(3) by failing to object at the jury instruction and verdict conference, and that the court of appeals lacked authority to disregard waiver of a jury instruction objection. Trammell, No. 2017AP1206-CR, unpublished slip op., ¶¶11-13. Second, the court of appeals concluded that even if it could overlook Trammell's failure to object, the outcome was controlled by this court's holding that Wis JI-Criminal 140 was constitutional in State v. Avila, 192 Wis.2d 870, 532 N.W.2d 423 (1995) overruled on other grounds by State v. Gordon, 2003 WI 69, 262 Wis.2d 380, 663 N.W.2d 765. Trammell, No. 2017AP1206-CR, unpublished slip op., ¶¶14-17. Third, the court of appeals rejected Trammell's arguments that a new trial was warranted in the interest of justice or due to plain error. Id., ¶¶18-20.

         II. STANDARD OF REVIEW

         ¶15 We will address four issues: (1) whether Trammell waived his challenge to the use of Wis JI-Criminal 140; (2) whether Wis JI-Criminal 140 misstates the law so to confuse and mislead the jury thus requiring us to overrule Avila; (3) whether Wis JI-Criminal 140 is otherwise constitutionally infirm; and (4) whether discretionary reversal is warranted under Wis.Stat. § 751.06.

         ¶16 This court reviews questions of waiver de novo. State v. Kelty, 2006 WI 101, ¶13, 294 Wis.2d 62, 716 N.W.2d 886. Additionally, "[w]nether a jury instruction from the circuit court deprives a defendant of his right to due process is a question of law, which we review de novo." State v. Tomlinson, 2002 WI 91, ¶53, 254 Wis.2d 502, 648 N.W.2d 367 (citing State v. Kuntz, 160 Wis.2d 722, 735, 467 N.W.2d 531 (1991)). Lastly, "[u]nder Wis.Stat. § 751.06, we have independent discretionary authority to reverse a conviction and order a new trial where' it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried.'" State v. Langlois, 2018 WI 73, ¶55, 382 Wis.2d 414, 913 N.W.2d 812 (quoting § 751.06). "The interpretation and application of a statute present questions of law that we review de novo." Id. (citing Estate of Miller v. Storey, 2017 WI 99, ¶25, 378 Wis.2d 358, 903 N.W.2d 759).

         III. ANALYSIS

         A. Waiver Under Wis.Stat. § 805.13(3)

         ¶17 We first address whether Trammell waived his objection to the use of Wis JI-Criminal 140 by failing to object to it at the jury instruction and verdict conference, as required by Wis.Stat. § 805.13(3) . We begin with the language of § 805.13. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110. Section 805.13 provides, in pertinent part, as follows:

At the close of the evidence and before arguments to the jury, the court shall conduct a conference with counsel outside the presence of the jury. At the conference, or at such earlier time as the court reasonably directs, counsel may file written motions that the court instruct the jury on the law, and submit verdict questions, as set forth in the motions. The court shall inform counsel on the record of its proposed action on the motions and of the instructions and verdict it proposes to submit. Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict.

§ 805.13(3). Section 805.13(3) provides no exceptions to the requirement that any objection be made at the jury instruction conference.

         ¶18 Here, it is undisputed that Trammell's trial counsel listed Wis JI-Criminal 140 as one of Trammell's proposed jury instructions submitted to the circuit court prior to trial. It is further undisputed that the circuit court properly held the jury instruction and verdict conference at the close of evidence and prior to closing arguments. Although circuit courts can and do modify jury instructions, Trammell concedes that at no point did his trial counsel object to the use of Wis JI-Criminal 140 as part of the instructions the circuit court would read to the jury. Trammell also concedes that his trial counsel did not request that Wis JI-Criminal 140 be altered in any way. The circuit court instructed the jury using the pattern instruction. Trammell's objection to the use of Wis JI-Criminal 140 did not arise until over a year after his conviction, when he filed his motion for postconviction relief on April 10, 2017.

         ¶19 Applying Wis.Stat. § 805.13(3), the circuit court properly followed the requisite procedure, and Trammell's trial counsel did not timely object as required by § 805.13(3) .[8] A straightforward application of § 805.13(3) thus leads to the conclusion that Trammell failed to properly object to Wis JI- Criminal 140.

         ¶20 Trammell attempts to avoid the plain language of Wis.Stat. § 805.13(3) by asserting that his objection was "unknowable" at the time of the jury instruction and verdict conference. Specifically, Trammell asserts that the two law review articles by Cicchini and White, on which Trammell's objection is based, were not published until after Trammell's conviction. Citing State v. Howard, 211 Wis.2d 269, 287-88, 564 N.W.2d 753 (1997), overruled on other grounds by Gordon, 262 Wis.2d 380, Trammell claims that since he could not have known about the articles until after his conviction, he could not possibly have made any objection during the jury instruction and verdict conference.

         ¶21 We are not persuaded. In Howard the defendant was charged with, "inter alia, aiding and abetting the unlawful delivery of a controlled substance (cocaine) while possessing a dangerous weapon, in violation of Wis.Stat. §§ 161.41(1) (c)2, 939.05, 939.63(1) (a) 3 and 2 (1987-88)." Howard, 211 Wis.2d at 272. Howard failed to object to the use of two jury instructions during the jury instruction and verdict conference. Id. at 273. Howard was convicted and sentenced on March 23, 1990. Id. at 274. On June 22, 1994, this court issued its decision in State v. Peete, 185 Wis.2d 4, 18-19, 517 N.W.2d 149 (1994), in which this court interpreted Wis.Stat. § 939.63(1)(a) (1989-90) differently than it had previously been interpreted by incorporating a new element. Because this court's interpretation of § 939.63(1)(a) (1989-90) incorporated a new element that was not part of the jury instructions read to the jury in Howard, unlike Trammell, Howard did not waive his objection because he could not have known about the Peete holding at the time the jury instruction and verdict conference occurred. Howard, 211 Wis.2d at 275-76.

         ¶22 This court concluded that Howard did not waive his objection to the two jury instructions, holding that he could only waive objections "which he knew or should have known" at the time of the jury instruction and verdict conference. Id. at 289. Citing Wis.Stat. § 805.13(3) (1989-90), this court stated as follows:

Here, Howard and his counsel in 1990 had no way to know how this court would construe Wis.Stat. § 939.63 [1989-90] by the time it decided Peete in 1994. We agree that Howard's counsel had an obligation to object at the instructions conference based on incompleteness or other error about which he knew or should have known. We cannot agree that Howard's counsel could have stated grounds for an objection "with particularity," based on the absence of a nexus element and corresponding instruction. Howard has not waived this issue.

Id. (citation omitted).

         ¶23 Howard is distinguishable from this case. Here, we are not confronted with a subsequent case which changed the elements of the crime with which Trammell was charged. Instead, Trammell's argument is based purely on law review articles which incorporate the authors' non-peer-reviewed "scientific" studies. In fact, the arguments Trammell makes are indeed known as they are referenced in the jury instruction comments to Wis JI- Criminal 140. The circuit court has the authority to modify the language, and the comment to the jury instruction even provides optional language. State v. Burris, 2011 WI 32, ¶24, 333 Wis.2d 87, 797 N.W.2d 430 (citing Nommensen v. Am. Cont'l Ins. Co., 2001 WI 112, ¶50, 246 Wis.2d 132, 629 N.W.2d 301; State v. Lohmeier, 205 Wis.2d 183, 194, 556 N.W.2d 90 (1996)) ("We examine the challenged jury instructions in light of the proceedings as a whole, keeping in mind that circuit courts have broad discretion in deciding which instructions to give."); Wis JI-Criminal 140, cmt. at 5. But no one requested any such modification and the circuit court was not required to modify the instruction.

         ¶24 Unlike Howard, Trammel's post-conviction challenge to the reasonable doubt jury instruction could have been made at trial. While the two law review articles Trammell claims support his position were published after his conviction, that fact alone does not render his objection "unknowable" at the time of the conference. The language now in question has been used, in its current form, for decades and has been the subject of constitutional challenges in the past. See Wis JI-Criminal 140, cmt. at 2-5. We therefore conclude that Trammell waived his objection to the use of Wis JI-Criminal 140 by failing to object at the jury instruction and verdict conference, as required by Wis.Stat. § 805.13(3).

         ¶25 While the court of appeals correctly concluded that its analysis ended with Trammell's waiver of his objection to Wis JI-Criminal 140, we choose to continue our analysis. As this court has stated, the court of appeals has no power to reach an unobjected-to jury instruction because the court of appeals lacks a discretionary power of review. Schumacher, 144 Wis.2d at 409-10. However, this court possesses a discretionary power of review that it may exercise when a matter is properly before this court. Id. at 410 (citing State v. Strege, 116 Wis.2d 477, 492, 343 N.W.2d 100 (1984)). While we only exercise our discretionary power of review in rare circumstances, there is no dispute that this matter is properly before us, and as this court exercised its discretionary power of review in Schumacher to examine the constitutionality of an unobjected-to jury instruction, see id. at 409-10, we do so here.

         B. Wisconsin JI-Criminal 140

         ¶26 We address Trammell's arguments regarding Wis JI- Criminal 140. We begin by discussing the history of the instruction. We then examine whether this court should overrule Avila, and finally address Trammell's contention that various parts of Wis JI-Criminal 140 unconstitutionally reduced the State's burden of proof below the beyond-a-reasonable-doubt standard. We decline to overrule Avila and conclude that Wis JI-Criminal 140 does not unconstitutionally reduce the State's burden of proof so to deprive Trammell of Due Process.

         1. History of Wis JI-Criminal 140

         ¶27 Wisconsin JI-Criminal 140 was originally published by the Wisconsin Judicial Conference Criminal Jury Instructions Committee[9] (the "Committee") in 1962. The original version was similar in all material respects to the current version, and the instruction has undergone only minor revisions in 1983, 1986, 1987, 1991, and 1994. Wis JI-Criminal 140, cmt. at 2. It was republished in 2000 without any substantive change. Id. In light of numerous United States Supreme Court and Wisconsin cases addressing the substance of reasonable doubt jury instructions, the Committee "has carefully reviewed Wis JI- Criminal 140 several times." Id. It has also reviewed other pattern jury instructions such as those published by the Federal Judicial Center, and has concluded that Wis JI-Criminal 140, as it has appeared for decades, correctly states the law. Id. at 3-4. The Committee noted that "several parts of the instruction have been approved by the appellate courts," and that "[r]ather than risk creating appellate issues by significantly changing the instruction, the Committee decided it was better to retain the original version." Id. at 2-3.

         ¶28 In addition, the Committee has considered the two law review articles by Cicchini and White that Trammell relies on in this case. Id. at 5. The Committee stated that it "received several inquiries about the phrase 'you are to search for the truth, '" based on the law review articles, and that "[a]fter careful consideration, the Committee decided not to change the text of the instruction." Id. In deciding not to alter Wis JI- Criminal 140, the Committee relied in large part on this court's holding in Avila, noting that "[c]hallenges to including 'search for the truth' in the reasonable doubt instruction have been ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.