RES — jury instructions — defense of others

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Wisconsin Court of Appeals

Criminal

RES — jury instructions — defense of others

Where the jury was not given a proper self-defense or defense of others instruction in a prosecution for recklessly endangering safety, a new trial is required.

“We further do not know what difference, if any, a proper instruction on self-defense would have made.  That is, had the jury concluded Austin was guilty of either degree of recklessly endangering safety and rejected defense of others, we simply do not know whether, given all of the testimony about what led to the stabbings, the jury would have believed Austin—who was twenty years older, five inches shorter, and ten to twenty pounds lighter than his victims—was acting in self-defense and acquitted him on that ground.  Given these uncertainties regarding the verdict, we are not confident that counsel’s lack of objection did not result in prejudice.”

“However, it is not necessary for this court to remand for a hearing on counsel’s ineffectiveness.  It is undisputed that Austin stabbed both victims.  The only real issue was whether Austin was properly acting in his or his cousin’s defense.  By not properly instructing the jury, the circuit court failed to provide it with the proper framework for analyzing that question.  Thus, regardless of whether trial counsel’s performance was prejudicial, we conclude this is one of those very limited instances in which we must reverse and remand for a new trial in the interests of justice.  See State v. Perkins, 2001 WI 46, ¶12, 243 Wis. 2d 141, 626 N.W.2d 762 (An appellate court ‘may reverse a conviction based on a jury instruction regardless of whether an objection was made, when the instruction … arguably caused the real controversy not to be fully tried.’).”

Reversed and Remanded.

Recommended for publication in the official reports.

2012AP11-CR State v. Austin

Dist. I, Milwaukee County, Cimpl, J., Kessler, J.

Attorneys: For Appellant: Hinkel, Andrew, Madison; For Respondent: Loebel, Karen A., Milwaukee; Sanders, Michael C., Madison