State v. Emmanuel Earl Trammell, 928 N.W.2d 564

Background

Emmanuel Trammell was tried for armed robbery and taking a vehicle without consent after allegedly stealing a Buick while armed; witnesses (victim, victim’s girlfriend, accomplice Silas) and fingerprint and police evidence implicated him.
Trammell requested and received the standard Wisconsin burden-of-proof instruction, Wis JI-Criminal 140, at the instruction conference; his counsel did not object or seek modification at trial.
The jury convicted Trammell on both counts; he was sentenced to concurrent prison terms and later filed a postconviction motion arguing that Wis JI-Criminal 140 lowered the State’s burden of proof and confused jurors.
Trammell relied on two law-review articles reporting studies suggesting that “search for truth” language increases conviction rates; those articles were published after his trial.
The circuit court denied relief; the court of appeals affirmed on waiver grounds (failure to object at the instruction conference) and on Avila precedent. The Wisconsin Supreme Court granted discretionary review.
The Supreme Court concluded Trammell waived his objection under Wis. Stat. §805.13(3), exercised its discretionary review, and held Wis JI‑Criminal 140 constitutional on the record before it; discretionary reversal under Wis. Stat. §751.06 was denied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Waiver of challenge to jury instruction	Trammell: instruction objection was "unknowable" pre-trial because supporting studies published after trial, so failure to object should not bar review	State: counsel proposed and accepted Wis JI‑Criminal 140 and made no timely objection at the instruction conference; §805.13(3) requires objection or waiver	Waived: failure to object at the instruction conference under §805.13(3) waived the issue; "unknowable" claim rejected as instruction language and challenges were longstanding
Whether Wis JI‑Criminal 140 misstates law or should be overruled (Avila)	Trammell: empirical studies show dual‑directive language ("search for truth" vs "not to search for doubt") increases convictions and dilutes beyond‑reasonable‑doubt standard; urges overruling Avila	State: instruction has long history, committee review, and Avila controls; studies are methodologically weak and not persuasive	Avila stands: Court declines to overrule Avila and exercises discretionary review to hold the instruction, read as a whole, is not reasonably likely to permit conviction on less than reasonable doubt
Constitutional adequacy of specific language in Wis JI‑Criminal 140	Trammell: several phrases ("important affairs of life," "reasonable hypothesis," negative definitions of doubt, and "search for the truth") individually and cumulatively mislead jurors and reduce burden	State: instruction must be read in context of entire charge and repeated emphasis on presumption of innocence and burden on State; other jurisdictions use similar formulations	Instruction constitutional: when read with entire charge, the instruction repeatedly emphasizes presumption and beyond‑reasonable‑doubt burden; no reasonable likelihood jury convicted on less than constitutionally required proof
Discretionary reversal under Wis. Stat. §751.06	Trammell: even if waived, instruction confused jury and miscarried justice, warranting new trial	State: record contains strong corroborating evidence; no showing real controversy not fully tried nor substantial probability of different outcome on retrial	Denied: real controversy fully tried; overwhelming evidence supports verdict; no substantial probability of different result on retrial

Key Cases Cited

State v. Avila, 192 Wis. 2d 870 (1995) (upheld Wis JI‑Criminal 140 as not diluting the reasonable‑doubt standard)
State v. Schumacher, 144 Wis. 2d 388 (1988) (explains Supreme Court’s discretionary review power to consider unobjected‑to instructions)
Victor v. Nebraska, 511 U.S. 1 (1994) (constitutional test: whether there is a reasonable likelihood the jury applied an instruction to allow conviction on less than Winship reasonable doubt)
In re Winship, 397 U.S. 358 (1970) (due process requires proof beyond a reasonable doubt for criminal guilt)
State v. Dubose, 285 Wis. 2d 143 (2005) (used social‑science evidence to interpret Wisconsin Constitution more broadly in identification context)
State v. Perkins, 243 Wis. 2d 141 (2001) (§751.06 reversal where jury instructions failed to define an essential element and real controversy not fully tried)
Sullivan v. Louisiana, 508 U.S. 275 (1993) (reversal where instruction could allow conviction on less than reasonable doubt)
Cage v. Louisiana, 498 U.S. 39 (1990) (same principle applied to imprecise definitions of reasonable doubt)