State v. Maltese Lavele Williams

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Appeal No. 2014AP1099-CR Cir. Ct. No. 2013CF30
WISCONSIN COURT OF APPEALS

DISTRICT I
STATE OF WISCONSIN,
PLAINTIIFF-RESPONDENT, FILED
V. NOV 06, 2014
MALTESE LAVELE WILLIAMS, Diane M. Fremgen
Clerk of Supreme Court
DEFENDANI-APPELLANT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Blanchard, P.J., Lundsten and Kloppenburg, JJ.

We certify this case to the supreme court because we are uncertain
which of two decisions is controlling: Slate v. Wilff, 207 Wis. 2d 143, 557
N.W.2d 813 (1997), or State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830
N.W.2d 681. The issue is whether, under the circumstances here, a sufficiency of
the evidence challenge requires us to measure the evidence against the instructions
the jury received, as the court did in Widff, or instead against statutory
requirements, as the court did in Beamon!

! This appeal raises two additional issues that, in our view, are not difficult and do not
warrant certification: (1) whether defendant Maltese Williams’ trial counsel was ineffective by
failing to seek removal of an allegedly biased juror, and (2) whether counsel was ineffective by
failing to object to the introduction into evidence of crime scene and autopsy photographs.

No. 2014AP1099-CR
2
We first summarize the circumstances here. We then discuss Wulff
and Beamon and explain why we are uncertain which controls.
A jury found Maltese Williams guilty of two counts of felony
murder. The charges were based on Williams’ involvement in the shooting deaths
of two men, a drug dealer named Parker and another person present in Parker’s
home, Robinson, during an attempt to take marijuana from Parker’s home. The
issue we certify involves Williams’ felony murder conviction relating to
Robinson.
The felony murder statute requires an underlying crime, and that
crime here was attempted armed robbery. See WIS. STAT. § 940.03.2 Armed
robbery requires the taking of “property from the person or presence of the
owner.” See WIS. STAT. § 943.32(1). The trial evidence was sufficient to support
a finding that Williams and his accomplices attempted to take marijuana from
Parker and, therefore, as pertinent here, was sufficient to support a finding that
Williams attempted an armed robbery of Parker. However, there does not appear
to be sufficient evidence to support a finding of an attempted armed robbery of
Robinson.3 This is significant because the jury was instructed that Williams could
2 All references to the Wisconsin Statutes are to the 2011-12 version, unless otherwise
noted.
3 It appears the circuit court concluded that the trial evidence was sufficient to support a
finding of an attempted armed robbery of Robinson. Our contrary conclusion is based on our
own review of the evidence, and on the State’s plainly conscious decision not to defend the
circuit court’s conclusion that the evidence was sufficient when measured against the instructions.
We say “plainly conscious” because it is difficult to comprehend how the State could have
overlooked the argument or failed to make it if the State thought that argument was viable. The
State’s implicit concession is apt because we see no evidence to support a finding that Robinson
had a possessory or other ownership interest in the marijuana and, therefore, no evidence to
support a finding that Williams and his accomplices attempted an armed robbery of Robinson.

No. 2014AP1099-CR
3
be found guilty of the felony murder of Robinson only if there was an attempted
armed robbery of Robinson.4
Accordingly, if measured against the jury instructions, the evidence
does not appear to be sufficient to support the felony murder conviction relating to
Robinson because there is insufficient evidence of the predicate felony as that
predicate crime was defined to the jury, namely, the attempted armed robbery of
Robinson. On the other hand, we perceive no dispute that, under the applicable
statutory scheme, all that was required to sustain a conviction on the felony
murder count for Robinson’s death was proof of an attempted armed robbery of
Parker. This situation prompts the parties’ dispute over whether Wulff or Beamon
applies here.
In Wulff, the supreme court reversed a conviction, and directed that
the circuit court enter a judgment of acquittal, because the evidence was
insufficient when measured against the jury instructions. Wulff, 207 Wis. 2d at
144, 149-54. The crime there was attempted second-degree sexual assault. Id. at
144. The applicable statutes required an attempt at “sexual contact” or “sexual
intercourse,” with sexual intercourse defined to include “fellatio” and “intrusion
… into the genital or anal opening.” See id. at 147-48. In Wulff, the evidence
showed that the victim awoke to the defendant attempting to force his penis into
her mouth. Id. at 146. The evidence was therefore sufficient to support a finding
4 Another possible reading of the jury instructions might be that the instructions told the
jury that Williams could be found guilty of felony murder of Robinson only if Williams and his
accomplices attempted an armed robbery of both Parker and Robinson. However, Williams does
not read the instructions this way and, as far as we can tell, neither does the State. Regardless
which way the instructions are read, the issue we certify remains because, under either reading,
the instructions told the jury that it needed to find that there was an attempted armed robbery of
Robinson.

No. 2014AP1099-CR
4
of guilt under the statutory requirements. However, the evidence was insufficient
when measured against the instructions the jury received because the instructions
made no reference to “sexual contact” or fellatio and did not otherwise cover
penis-to-mouth sexual contact. See id. at 148.
The supreme court in Wulff began its sufficiency-of-the-evidence
analysis by observing that there are “different ways” of accomplishing sexual
intercourse under the statutes. Id. at 149. The court stated that it could “uphold
Wulff’s conviction only if there was sufficient evidence to support guilt on the
charge submitted to the jury in the instructions.” Id. at 153; see also id. at 152
(quoting Chiarella v. United States, 445 U.S. 222, 236 (1980), for the proposition
that “‘we cannot affirm a criminal conviction on the basis of a theory not
presented to the jury’”). The court determined that the evidence was insufficient
to support a finding of guilt based on the instructions. Id. at 144, 153-54. The
court concluded that it had no alternative but to reverse the conviction and direct
the circuit court to enter a judgment of acquittal. Id. at 153-54.
In contrast with Wulff, the supreme court in Beamon measured
sufficiency of the evidence against the statutory requirements. Beamon, 347 Wis.
2d 559, ¶¶3, 40, 50. The crime there was “fleeing or attempting to elude a traffic
officer.” See id., ¶¶1, 15-16, 29 (citing WIS. STAT. § 346.04(3) (2009-10)). The
court in Beamon explained that one of the statutory requirements for this crime
can be proven in three alternative ways. Id., ¶¶2, 29-32, 35. One statutory
alternative requires proof that the defendant increased the speed of his vehicle to
flee. Id. The evidence in Beamon was sufficient to support at least one other
alternative, but not sufficient to support the increasing-speed alternative. See id.,
¶¶5-13, 39.

No. 2014AP1099-CR
5
The court in Beamon explained that the jury instructions
“combined” alternatives in a way that made the increased-speed alternative a
requirement. Id., ¶¶15, 35-36. The court determined that the instructions were
erroneous because they “added” a requirement to the statutory definition of the
crime. Id., ¶¶2-3, 35-37. The Beamon court concluded that, because the
instructions added a requirement and “created a charge that does not exist,” the
sufficiency of the evidence should be measured against the statute instead of the
instructions. See id., ¶¶23-24, 44-45.
The Beamon court distinguished Wulff, explaining as follows:
The primary distinction between Wulff and our
decision today is the nature of the jury instructions in each
case. In Wulff, the instructions did not add a requirement
to the applicable law; instead, the instructions properly
stated one of the methods by which a defendant could
commit second-degree sexual assault and completely
omitted the method for which there was testimony.
Therefore, in Wulff, the jury was asked to apply the correct
law to the facts adduced at trial, and reached a conclusion
contrary to the evidence. In that situation, the proper
standard for evaluating the sufficiency of the evidence was
the jury instructions, because the instructions conveyed a
correct statement of the law, and thereby informed the jury
of the requirements of an actual statutory offense….
In contrast to Wulff, in which we stated that we
could uphold the conviction “only if there was sufficient
evidence to support guilt on the charge submitted to the
jury,” 207 Wis. 2d at 153, here, the addition of a
requirement created a charge that does not exist in the
statutes. If we evaluated sufficiency of the evidence
against the instructions given, we would be sanctioning the
creation of a new crime that was not created by the
legislature. This is contrary to WIS. STAT. § 939.10, which
outlaws common law crimes. Therefore, sufficiency of the
evidence in Beamon’s case cannot justifiably be measured
against the jury instructions.
Beamon, 347 Wis. 2d 559, ¶¶44-45 (emphasis added).

No. 2014AP1099-CR
6
Here, defendant Williams argues that Wulff requires that the
evidence be measured against the jury instructions. The State disagrees, arguing
that Beamon controls and requires that the evidence be measured against the
statutory requirements. We see merit in both parties’ arguments.
On the one hand, as Williams argues, the instructions here may be
like those in Wulff in the sense that they could be characterized as accurately
stating one of the “methods” by which Williams and his accomplices could have
committed felony murder, namely, by causing Robinson’s death while attempting
an armed robbery of Robinson. Viewed this way, and as Williams argues, the
instructions here are not erroneous and do not implicate Beamon’s concern with
the procedure to be followed when a jury is given an erroneous instruction. Stated
differently, the jury instructions here would not create a charge that does not exist
in the statutes and, therefore, would not implicate the Beamon court’s
corresponding concerns.
On the other hand, as the State argues, the instructions here may be
like the ones in Beamon in the sense that they could be characterized as imposing
an “additional requirement” to those in the statutes, namely, a requirement that a
felony murder victim also be the victim of the predicate crime. Alternatively, as
we discuss in footnote 4 above, the instructions might be read as adding the
requirement that Williams could be guilty of felony murder of Robinson only if
Williams and his accomplices attempted an armed robbery of both Parker and
Robinson. Regardless, it is undisputed that the statutes required only that there be
an attempted armed robbery of Parker or Robinson to support a felony murder
charge for Robinson’s death. Thus, viewed this way, and as the State argues, the
jury instructions here would be “erroneous,” as in Beamon. They would create a

No. 2014AP1099-CR
7
crime that does not exist in the statutes and, therefore, implicate the Beamon
court’s corresponding concerns.
Each of these three cases, Wulff, Beamon, and now Williams,
appears to present a subtle variation on the same issue, and we are uncertain
whether Williams is more like Wulff or more like Beamon. It seems likely that
additional cases will raise the same categorization problem.
The parties’ disagreement over whether the instructions here are
“erroneous” leads to a final point. The court in Beamon concluded that the
instructional error in that case was harmless because a properly instructed jury
would have found the defendant guilty. See Beamon, 347 Wis. 2d 559, ¶39; see
also id., ¶¶3-4, 50-51. And, the Beamon court seemed to rely on harmless error as
a second reason for distinguishing Wulff. More specifically, the Beamon court
said:
Second, Wulff is distinguishable because the
decision did not address harmless error. Although we need
not decide here whether the jury instructions in Wulff
would be subject to harmless error analysis, we note that
Wulff preceded our decision in [State v. ]Harvey, [2002 WI
93,] 254 Wis. 2d 442, ¶49[, 647 N.W.2d 189], in which we
adopted the now-controlling standard for harmless error
analysis. Indeed, our analysis in this case rests largely on
the harmlessness of the erroneous jury instructions, in that
it is clear beyond a reasonable doubt that a rational jury,
properly instructed on the statutory requirements of the
offense of fleeing or eluding, would have found Beamon
guilty. Therefore, the evidence was sufficient to convict
him on that charge.
Beamon, 347 Wis. 2d 559, ¶46 (footnote omitted). We have trouble
understanding this comment because the issue at hand, as described by the
Beamon court, was sufficiency of the evidence, not whether a defendant was
entitled to a new trial because of instructional error. Moreover, the error identified

No. 2014AP1099-CR
8
by the Beamon court favored, or at least potentially favored, the defendant.
However, as we understand harmless error analysis, it is used to decide whether an
error caused a defendant harm or was, instead, harmless to the defendant.
Regardless, even if a harmless error analysis might apply here, it
appears to us that Williams’ case still turns on the threshold question of whether
the instructions here are more like those in Wulff or instead more like those in
Beamon. If the instructions are like those in Wulff and not erroneous, then it
makes no sense to ask whether a harmless error analysis applies. Moreover, as far
as we can tell, if Williams’ case is a Wulff case, we would be bound by Wulff to
reverse and direct the circuit court to enter a judgment of acquittal on Williams’
conviction for the felony murder of Robinson. If, on the other hand, the situation
is like Beamon, then Williams’ sufficiency of the evidence argument fails.
For the reasons above, we certify this appeal.