836 N.W.2d 833
Wis. Ct. App.2013Background
- On March 17, 2009, Langston C. Austin stabbed two people after a group confrontation; he was charged with two counts of first-degree recklessly endangering safety (with a dangerous weapon).
- Austin presented evidence sufficient to put self-defense and defense of others (his cousin) at issue.
- Jury was instructed on first-degree recklessly endangering safety and the lesser-included second-degree offense; jury acquitted on first-degree counts and convicted on second-degree counts.
- Trial court gave self-defense and defense-of-others instructions tied to the first-degree charges but failed to instruct as to the State’s burden of disproving self-defense for the reckless (second-degree) instructions; defense-of-others was omitted from the second-degree instructions.
- Austin moved postconviction alleging instructional error and ineffective assistance for failure to object; trial court denied relief, finding waiver and no prejudice. Appellate court reversed and remanded for a new trial in the interests of justice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jury instructions properly placed burden on State to disprove self-defense in reckless-offense instructions | Austin: instruction omitted that State must disprove self-defense beyond reasonable doubt; omission misstated law and could mislead jury | State: for reckless/negligent crimes self-defense is a "negative" defense; pattern reckless instruction (WI JI 801) need not recite State's burden to disprove privilege | Court: instruction was erroneous — jury must be told State's burden to disprove self-defense once defense is put at issue, even for reckless offenses |
| Whether omission of defense-of-others instruction for second-degree counts was erroneous | Austin: omission left out the State's burden and gave inconsistent guidance across first- and second-degree instructions | State: circuit court’s reference to defense-of-others in context of unreasonable-risk element was adequate | Court: omission of State’s burden as to defense-of-others rendered the instructions erroneous |
| Whether failure to contemporaneously object waived the instructional errors or required ineffective-assistance showing | Austin: counsel was ineffective for not objecting; alternatively, errors warranted new trial in interests of justice | State: defects were waived; no ineffective assistance because no prejudice — no reasonable jury would have found defenses credible | Court: waiver/forfeiture does not bar relief here; because instructions arguably prevented full trial of real controversy, reversal in interests of justice was required |
| Remedy: whether remand for an ineffectiveness hearing or direct new trial | Austin: asked for relief based on counsel’s ineffectiveness and instructional error | State: argued no prejudice so no relief needed; if error, harmless | Court: reversed and remanded for a new trial in the interests of justice (no need for Strickland hearing) |
Key Cases Cited
- State v. Schulz, 102 Wis. 2d 423 (discusses jury instruction obligations and burden when defenses attack elements)
- State v. Ziebart, 268 Wis. 2d 468 (standards for reviewing jury instructions)
- State v. Patterson, 329 Wis. 2d 599 (instruction erroneous if allows conviction on insufficient proof)
- State v. Head, 255 Wis. 2d 194 (self-defense as an affirmative defense and State’s burden when asserted)
- State v. Watkins, 255 Wis. 2d 265 (distinction between affirmative and negative defenses)
- State v. Pettit, 171 Wis. 2d 627 (when negative defense is raised burden remains on State to disprove beyond reasonable doubt)
- State v. Perkins, 243 Wis. 2d 141 (appellate power to reverse for instructional error in interests of justice)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- State v. Ndina, 315 Wis. 2d 653 (distinguishing forfeiture and waiver)