State v. Christopher L. Jackson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 2, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1820-CR Cir. Ct. No. 2016CF18

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHRISTOPHER L. JACKSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Waukesha County: LEE S. DREYFUS, JR., Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP1820-CR

¶1 PER CURIAM. Christopher L. Jackson appeals from a judgment of
conviction and an order denying his postconviction motions. He contends that the
circuit court erred in (1) denying his request for a lesser-included jury instruction;
(2) addressing a question of the jury outside the presence of the parties; and
(3) denying his claim of ineffective assistance of counsel without an evidentiary
hearing. For the reasons that follow, we affirm.

¶2 In 2016, Jackson was charged with two counts of attempted first-
degree intentional homicide, one count of first-degree recklessly endangering
safety, and one count of possession of a firearm by a felon. He was accused of
shooting into a moving vehicle that contained two adults (A.W. and his wife,
N.G.) and their small child (A.D.W.). A.W. was struck in the chin and thigh.
N.G. and A.D.W. were uninjured, though one bullet went through N.G.’s headrest.
Jackson was purportedly angry for having been cheated in a drug deal by A.W.
and N.G.

¶3 The matter proceeded to trial where numerous witnesses testified,
including Jackson. At the conclusion of the defense’s case-in-chief, Jackson asked
for the lesser-included jury instruction of first-degree recklessly endangering
safety on the two counts of attempted first-degree intentional homicide, which
related to A.W. and N.G. The circuit court denied the request, determining that
there was no evidence to support a jury verdict acquitting Jackson of attempted
first-degree intentional homicide and convicting him of first-degree recklessly
endangering safety.

¶4 After the case was submitted, the jury sent out a note indicating that
they were looking for clarification on the intent to kill element. The note asked,
“Are we to interpret intent to kill as the intent to kill a specific person or is it a

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No. 2018AP1820-CR

general intent to kill any human being?” Without consulting the parties, the circuit
court responded, “The definition of intent to kill that you are to utilize is contained
in the instruction for attempted first degree intentional homicide. No further
clarification will be provided.”1 The court later informed the parties of this
communication before the jury returned with their verdicts. Neither party objected
to what the court had done.

¶5 Ultimately, the jury found Jackson guilty on all counts. The circuit
court sentenced him to a total of thirty years of initial confinement and twenty
years of extended supervision.

¶6 Jackson filed multiple postconviction motions for relief. In one, he
complained that the circuit court had engaged in improper communication with the
jury. In another, he accused his trial counsel of ineffective assistance for failing to
file a motion to suppress evidence seized from his residence pursuant to a
warrant.2 The court denied the motions without an evidentiary hearing. This
appeal follows.

¶7 On appeal, Jackson first contends that the circuit court erred in
denying his request for the lesser-included jury instruction of first-degree
recklessly endangering safety. He seeks a new trial on that basis.

1
The instruction for attempted first-degree intentional homicide defines intent to kill as
“the defendant had the mental purpose to take the life of another human being or was aware that
(his) (her) conduct was practically certain to cause the death of another human being.” See WIS
JI—CRIMINAL 1070.
2
The search of Jackson’s residence yielded the gun used in the shooting.

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No. 2018AP1820-CR

¶8 A defendant is entitled to a lesser-included jury instruction “when
reasonable grounds exist in the evidence both for acquittal on the greater offense
and conviction on the lesser offense.” State v. Miller, 2009 WI App 111, ¶48, 320
Wis. 2d 724, 772 N.W.2d 188. Whether the evidence permits the giving of such
an instruction is a question of law that we review de novo. See State v. Kramar,
149 Wis. 2d 767, 792, 440 N.W.2d 317 (1989).

¶9 Here, we are satisfied that the circuit court properly denied Jackson’s
request for the lesser-included jury instruction. To begin, Jackson presented no
basis for the instruction with his theory of defense, which denied that he was the
shooter. Moreover, there were no reasonable grounds in the evidence to support a
conviction of first-degree recklessly endangering safety with respect to A.W. and
N.G. According to A.W., the shooter, whom he identified as Jackson, pulled up
next to him, raised a gun, and fired directly into his vehicle towards the front seats
where he and N.G. sat.3 There was nothing reckless about this conduct. Rather, it
unequivocally demonstrated intent to kill.

¶10 Jackson next contends that the circuit court erred in addressing the
jury’s question about intent to kill outside the presence of the parties. Again, he
seeks a new trial on that basis, asserting that the court violated his constitutional
right to be present.

¶11 As a threshold matter, Jackson forfeited this issue by failing to make
a timely objection. See State v. Pinno, 2014 WI 74, ¶¶7-8, 356 Wis. 2d 106, 850

3
A.D.W. sat in a child seat in the back of the car. It was unclear whether Jackson knew
he was there. Accordingly, the State charged Jackson with first-degree recklessly endangering
safety with respect to A.D.W.

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No. 2018AP1820-CR

N.W.2d 207 (claims of constitutional errors, even structural errors, may be
deemed forfeited if a timely objection is not made). Jackson was aware of the
circuit court’s communication with the jury before they returned with their
verdicts; nonetheless, he did nothing about it.

¶12 In any event, we are not convinced that the circuit court’s action
prejudiced Jackson. The court did not substantively answer the jury’s question
about intent to kill. Instead, it simply directed them back to the definition found in
the jury instruction, which was legally sound and had previously been agreed upon
by the parties. On this record, any error in addressing the jury’s question was
harmless. See May v. State, 97 Wis. 2d 175, 185, 293 N.W.2d 478 (1980) (circuit
court’s answering of a jury question without notifying counsel is subject to
harmless error review).

¶13 Finally, Jackson contends that the circuit court erred in denying his
claim of ineffective assistance of counsel without an evidentiary hearing. As
noted above, Jackson accused his trial counsel of ineffective assistance for failing
to file a motion to suppress evidence seized from his residence pursuant to a
warrant. Jackson believed that counsel should have pursued a Franks/Mann4
motion based on his claim that the no-knock provision of the warrant was invalid.
Jackson maintained that the affidavit used to obtain the provision contained a false
statement about his gang affiliation.

¶14 When a defendant pursues postconviction relief based on ineffective
assistance of counsel, the defendant must preserve counsel’s testimony at an

4
See Franks v. Delaware, 438 U.S. 154 (1978); State v. Mann, 123 Wis. 2d 375, 367
N.W.2d 209 (1985).

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No. 2018AP1820-CR

evidentiary hearing. State v. Curtis, 218 Wis. 2d 550, 554-55, 582 N.W.2d 409
(Ct. App. 1998). However, a defendant is not automatically entitled to an
evidentiary hearing upon filing a postconviction motion that alleges ineffective
assistance of counsel. Id. at 555 n.3.

¶15 To earn an evidentiary hearing on a postconviction motion, the
defendant must allege “sufficient material facts that, if true, would entitle the
defendant to relief.” State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682
N.W.2d 433. If the motion alleges sufficient facts, a hearing is required. Id. If
the motion is insufficient, if it presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the circuit
court may exercise its discretion in deciding whether to grant a hearing. Id. We
review the court’s discretionary decision under the deferential erroneous exercise
of discretion standard. Id.

¶16 We are not persuaded that Jackson was entitled to an evidentiary
hearing on his claim of ineffective assistance of counsel. As noted by the State,
Jackson’s allegations in his postconviction motion were conclusory and
insufficient. He failed to make a “‘substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the truth,
was included by the affiant in the warrant affidavit’” and that the “‘allegedly false
statement is necessary to the finding of probable cause.’” State v. Mann, 123
Wis. 2d 375, 384, 367 N.W.2d 209 (1985) (quoting Franks v. Delaware, 438 U.S.
154, 155-56 (1978)).

¶17 At any rate, the record demonstrates that a motion to suppress would
not have succeeded. Setting aside the disputed gang affiliation, police still had “a
reasonable suspicion that knocking and announcing their presence, under the

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No. 2018AP1820-CR

particular circumstances, would be dangerous.” State v. Eason, 2001 WI 98, ¶18,
245 Wis. 2d 206, 629 N.W.2d 625 (citation omitted). As detailed in the affidavit,
Jackson was a convicted felon who police believed had tried to kill multiple
people with a firearm. Because there was a sufficient independent basis to
authorize the no-knock provision, Jackson’s trial counsel was not ineffective for
failing to file a motion to suppress. See State v. Allen, 2017 WI 7, ¶46, 373
Wis. 2d 98, 890 N.W.2d 245 (trial counsel cannot be ineffective for failing to
make a meritless argument).

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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