State v. Darryl Allen Flynn
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COURT OF APPEALS DECISION DATED AND FILED May 8, 2018 Sheila T. Reiff Clerk of Court of Appeals Appeal No. NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62. Cir. Ct. No. 2004CF2483 2017AP935 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, V. DARRYL ALLEN FLYNN, DEFENDANT-APPELLANT. APPEAL from an order of the circuit court for Milwaukee County: M. JOSEPH DONALD, Judge. Affirmed. Before Brennan, P.J., Brash and Dugan, JJ. 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). ¶1 PER CURIAM. Darryl Allen Flynn, pro se, appeals an order denying his motion for postconviction relief. Flynn argues that his trial lawyer No. 2017AP935 ineffectively represented him by failing to object to jury instructions that: (1) did not inform the jury of the State’s burden to disprove self-defense beyond a reasonable doubt for first-degree and second-degree reckless homicide; (2) did not inform the jury that, with regard to self-defense, a belief could be reasonable, even though it is mistaken; (3) did not properly inform the jury to consider the law of self-defense of others with each offense; and (4) did not inform the jury that Flynn had a right to protect his children. Flynn further argues we should exercise our discretionary power to grant him a new trial in the interests of justice under WIS. STAT. § 752.35 (2015-16).1 We affirm. ¶2 The circuit court’s written decision properly analyzes and disposes of Flynn’s argument that he received ineffective assistance of trial counsel. Therefore, we affirm as to that issue for the reasons explained in the circuit court’s decision, which is attached. See WIS. CT. APP. IOP VI. (5)(a) (Nov. 30, 2009) (“When the trial court’s decision was based upon a written opinion … the panel may … make reference thereto, and affirm on the basis of that opinion.”). ¶3 Flynn also argues that we should exercise our discretionary power to grant him a new trial under WIS. STAT. § 752.35. That statute authorizes us to reverse a judgment and order a new trial “if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried.” Id. Flynn contends that there are inherent due process violations in this case because the jury was not properly instructed. Flynn has not persuaded us that the alleged errors to which he points warrant a new trial. 1 All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted. 2 No. 2017AP935 By the Court.—Order affirmed. This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5. 3
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