2010AP678-CR State v. Jackson

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Criminal Procedure
Ineffective assistance of counsel

It was not ineffective assistance of counsel for an attorney representing a defendant charged with attempted first-degree intentional homicide, not to object to the submission to the jury of recklessly endangering safety while armed as a lesser included offense.

“The recklessly endangering safety instruction stated that the offense has ‘three elements’: 1. The defendant endangered the safety of another human being. 2. The defendant endangered the safety of another by criminally reckless conduct. … 3. The circumstances of the defendant’s conduct show utter disregard for human life. Then, on the jury verdict form, the jury was asked two separate questions regarding the lesser included offense:  whether it found Jackson guilty of recklessly endangering safety and whether Jackson was armed while committing recklessly endangering safety.  It answered ‘yes’ to both.  Under this record, it would be reasonable for an attorney to believe that the jury was not being asked to consider the ‘while armed’ enhancer as an element for the purpose of deciding whether the Jackson should be found guilty of the recklessly endangering safety charge as a lesser included offense.  We therefore are convinced that counsel was not ineffective for failing to raise Carrington I.”

“We acknowledge that a reasonable attorney could have objected to the lesser included instruction given here, based on Carrington I.  But, since the case can be reasonably limited to its specific fact situation, the trial attorney’s failure to object was not deficient performance.  See McMahon, 186 Wis. 2d at 84.  Because of that, Jackson’s ineffective assistance of counsel claim on this issue fails.”

Affirmed.

Recommended for publication in the official reports.

2010AP678-CR State v. Jackson

Dist. II, Racine County, Simanek, J., Brown, J.

Attorneys: For Plaintiff: Sally L. Wellman, Madison; For Defendant: Amelia L. Bizzaro, Milwaukee

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