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Objection to Jury Instructions

By: Derek Hawkins//June 26, 2019//

Objection to Jury Instructions

By: Derek Hawkins//June 26, 2019//

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WI Supreme Court

Case Name: State of Wisconsin v. Emmanuel Earl Trammell

Case No.: 2019 WI 59

Focus: Objection to Jury Instructions

This is a review of an unpublished, per curiam decision of the court of appeals, State v. Trammell, No. 2017AP1206-CR, unpublished slip op.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. Though he failed to object at the jury instruction and verdict conference as required by Wis. Stat. § 805.13(3) (2015–16), 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.

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.

Affirmed

Concur: DALLET, J. concurs, joined by A.W. BRADLEY, J. (opinion filed).

Dissent:

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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