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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
May 21, 1996
A party may file with the Supreme Court                                              This opinion is subject to further editing.
a petition to review an adverse decision                                             If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                           appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                  Official Reports.
No.   95-2250-CR
STATE OF WISCONSIN                                                                   IN COURT OF APPEALS
                                                                                     DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KEITH C. BANKS,
Defendant-Appellant.
APPEAL  from  a  judgment  of  the  circuit  court  for  Milwaukee
County:    DAVID A. HANSHER, Judge.  Affirmed.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
PER  CURIAM.    Keith  C.  Banks  appeals  from  a  judgment  of
conviction, following a jury trial, for kidnapping (party to a crime), two counts
of first-degree sexual assault, armed robbery (party to a crime), and carjacking
(party to a crime).   He argues that:   the trial court erroneously instructed the
jury; the prosecutor offered improper rebuttal during closing argument; and his




No.   95-2250-CR
convictions  should  be  reversed  in  the  interest  of  justice.    We  reject  his
arguments and affirm.
Banks and a co-defendant abducted a woman as she was getting
out of her car, took her to a park, and sexually assaulted her.   Despite the fact
that she was blindfolded most of the time, she was able to identify both her
assailants at a lineup, though she was primarily able to identify Banks by his
voice.
The issue at trial was identification.   The trial court instructed the
jury according to WIS J I—CRIMINAL 141 (the long version), in part as follows:
Consider the witness's opportunity for observation,
how  long  the  observation  lasted,  how  close  the
witness  was,  the  lighting,  the  mental  state  of  the
witness at the time, the physical ability of the witness
to see and hear the events, and any other circumstances of
the observation.
(Emphasis added.)   During the course of its deliberations, the jury sent out a
question, which read:                                                                   “[T]he physical ability of witness to see and hear the
events, and any other circumstances of the observation”—“Is it and or could it
be  or  or  both”?                                                                      (Emphasis  in  original.)    The  parties  and  the  trial  court
interpreted the jury's question to ask whether identification could be based on
voice, appearance, or both.   Over defense counsel's objection, the trial court
responded that the “and” could be “or” or both.
A trial court has wide discretion in using jury instructions to
“‘fully and fairly inform the jury of the rules of law applicable to the case and to
assist the jury in making a reasonable analysis of the evidence.’”    State v.
Waites, 158 Wis.2d 376, 385, 462 N.W.2d 206, 209 (1990) (citation omitted).   In
reviewing alleged error in jury instructions, “we do not view the challenged
word or phrase in isolation.”   State v. Foster, 191 Wis.2d 14, 28, 528 N.W.2d 22,
28 (Ct. App. 1995).   We must view the jury instructions as a whole to determine
whether they misstated the law or misdirected the jury.    Id.    Additionally,
“[j]ust as the initial jury instructions are within the trial court's discretion, so,
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No.   95-2250-CR
too, is the ‘necessity for, the extent of, and the form of re-instruction’ in response
to requests or questions from the jury.”   State v. Simplot, 180 Wis.2d 383, 404,
509 N.W.2d  338,  346  (Ct. App.  1993)  (citation omitted).                                              “[W]hen the court
receives an inquiry from the jury, it should ‘respond ... with sufficient specificity
to clarify the jury's problem.’”  Id. at 404-405, 509 N.W.2d at 346.
Banks argues that the trial court's response improperly permitted
or directed the jury to ignore the weaknesses in the victim's visual identification.
Banks  is  wrong.    The  trial  court's  reinstruction  was  legally  correct.    The
instruction directed the jury to consider both voice and visual forms of evidence.
The reinstruction did nothing to reduce the jury's opportunity to consider the
weaknesses of the victim's visual identification.  Further, in addition to WIS J I—
CRIMINAL  141, the jury was given instructions on reasonable doubt, witness
credibility,  and  on  the  alibi  defense,  which  combined  with  the  witnesses'
testimony and the arguments of counsel, focused the jury's attention on the
identification issue.   See Waites, 158 Wis.2d at 385-389, 462 N.W.2d at 209-211.
The instructions, as a whole, remained accurate, fully and fairly informed the
jury of the applicable rules of law, and assisted the jury in making a reasonable
analysis of the evidence.  See id., 158 Wis.2d at 385, 462 N.W.2d at 209.1
Banks next argues that the trial court improperly failed to grant his
motion for a mistrial based on the prosecutor's rebuttal argument.   Defense
counsel for Banks's co-defendant argued, in essence, that the victim had not
been sexually assaulted because her injuries were too minor to be consistent
with her testimony regarding the assaults.  On rebuttal, the prosecutor argued:
Counsel, both defense counsel and I, stipulated that
the Crime Lab found that there was semen on the
face of  [the victim], and that's certainly consistent
with her testimony that she was forced to suck both
men's penises, and in fact she testified that she had to
suck Mr. Arms' [Banks's co-defendant] penis after he
had had his penis in her vagina.   And there's also
1   Banks also claims that the trial court's reinstruction violated his due process rights.   Because
we  conclude  that  the  reinstruction  was  a  correct  statement  of  law,  we  do  not  address  his
constitutional argument.
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No.   95-2250-CR
testimony that there was a sperm found in her mouth
swab, or we stipulated to that, and that there was a
sperm found in the vaginal swab.   Now these things
didn't just come through the air, ladies and gentlemen,
and there's absolutely no evidence that there's any other
source for this semen on [the victim].
(Emphasis added.)
Banks claims that these comments went beyond the stipulated
evidence in the case that told the jury that the semen and sperm had been
recovered on those swabs “but there was not enough semen present for testing
to be done.”   In Banks's estimation, the significance of the prosecutor's remark
related to the fact, unknown to the jury, that the victim had had sex with
someone hours before the assault.   The trial court denied Banks's motion for a
mistrial, reasoning that the prosecutor had been responding to “the contention
on closing arguments about the lack of semen” to establish that the assaults had
taken place.
“The decision whether to grant a motion for a mistrial lies within
the sound discretion of the trial court.”  State v. Bunch, 191 Wis.2d 501, 506, 529
N.W.2d  923, 925  (Ct. App. 1995).                                                    “We will reverse the trial court's mistrial
ruling only on a clear showing of an erroneous exercise of discretion.”  Id.
Although  the  State  initially  argues  waiver  because  neither
defendant objected to the prosecutor's remark until after the jury was sent to
deliberate, we address the merits of Banks's argument.  Wrenched from context,
the prosecutor's remarks might seem to violate the rape shield preclusion of
references to semen sources.   In this case, however, the argument was a proper
rebuttal  to  closing  argument  by  counsel  for  Banks's  co-defendant  who
contended that the evidence did not even show that a sexual assault had taken
place.   The trial court did not erroneously exercise its discretion by denying
Banks's mistrial motion.
Finally, Banks argues for a new trial in the interest of justice.   His
argument, however, is simply a re-hash of the two arguments we have already
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No.   95-2250-CR
rejected.   Therefore, we also reject his final argument.   See Mentek v. State, 71
Wis.2d 799, 809, 238 N.W.2d 752, 758 (1976) (“Zero plus zero equals zero.”).
By the Court.—Judgment affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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