State v. Gordon

Plaintiff-Respondent- of Wisconsin, State Petitioner, Gary Defendant-Appellant. L. Gordon,

Supreme Court argument No. 01-1679-CR. Oral October 2002. Decided June

2003 WI 69 (Also 765.) reported in 663 N.W.2d plaintiff-respondent-petitioner the cause For the attorney argued by Freimuth, James M. assistant was Doyle, general, E. on the briefs was James with whom attorney general. defendant-appellant there brief and

For the argument by public Weiss, state P. assistant oral Steven defender. Gary J. Gordon was SYKES, 1. DIANE S. arising

charged three criminal counts out with injunction, violating dispute: abuse domestic domestic second-degree disorderly armed, endangering safety. recklessly own He testified constituting en- to defense and admitted facts disorderly count, wit, that when hanced conduct response police the domestic violence arrived grabbed dispatch, the officers at he two knives hold bay attempted arrest, and remained while he evade police pursued him armed with those knives while through neighborhood. on foot During closing argument, trial Gordon's argued acquittal more serious for on the two counsel charges. disorderly count, however, conduct As "obviously running attorney conceded that Gordon's disorderly neighborhood two knives is around the with it is conduct while armed." conduct and jury counts. verdicts of all three returned argued appeal, ¶ that his trial Gordon On closing argument the concession of on counsel's disorderly inef- armed count constituted type counsel of a conclu- fective assistance of automatically requir- sively presumed prejudicial, to he ing error: the He claimed instructional a new trial. also

383 penalty instruction for the "while armed" enhancer charge on the conduct did not the include required instruction, Peete "nexus" which is when charged committing underlying defendant is with possessing dangerous weapon." crime "while State See (1994); Peete, 4, 9, 185 Wis. 2d N.W.2d Wis. (2001-2002).1 § penalty Stat. 939.63 Because the en- hancer is an element of the offense, contended Gordon object that per trial failure counsel's to this error prejudicial automatically se and therefore revers- ible. appeals agreed, concluding 4. The court of attorney's equivalent concession was the functional guilty plea, prerogative is a which constitutional lawyer. accused, Gordon, not his State v. 2002 WI

App ¶53, 641 N.W.2d 183. The appeals object court of also concluded that the failure to per prejudicial. to the erroneous instruction was se Id., ¶¶ 32-38. 5. We reverse. The concession counsel was equivalent guilty plea functional a under the closing case,

circumstances of this where it came in argument, multiple-count on one in a count case, after testing full adversarial of the State's case and after the defendant had admitted the witness stand the facts constituting the offense. In addition, omission subject analy- the Peete instruction to harmless error (1999), States, sis under Neder v. United 527 U.S. Harvey, State v. 2002 WI 93, 254 2d Wis. object Therefore, N.W.2d 189. the failure per prejudicial purposes omission was not se for analysis. ineffective assistance of counsel We reverse subsequent All statutory references are 2001-2002 version of the Wisconsin Statutes. Howard, 269, 290-95, 2d v. 211 Wis. N.W.2d

State (1997), Avila, 870, 891-93A, State 192 Wis. v. (1995), Krueger, and N.W.2d423 State (Ct. 2000), App. 644, 649-51, 632 N.W.2d a rule of automatic extent that those cases established omits an element of instruction reversal where the offense.

I. PROCEDURAL HISTORY FACTS AND Margaret ¶ 6. domestic abuse Wilder obtained injunction Gary against Gordon on 1998. October years boyfriend of 12 Wilder's sometime Gordon was though drug occasionally and her, with who lived relationship. Despite in- alcohol use strained junction, her to live with and Wilder allowed Gordon grandson apart- six-year-old her in their Milwaukee during spring beginning ment late sometime year. continuing into fall of that Wilder and and at trial that she had was wheelchair-bound testified help her; care for allowed to live with her Gordon when he resumed that he was unaware Gordon testified living injunction was still effect. with Wilder that evening Gordon On the October nearly apartment finished off a at and had was Wilder's got an when he and Wilder into 32-ounce bottle argument. beer "agitated" that Gordon was Wilder testified "verbally feared that Gordon had abusive." She also "doing drugs," upon certain based behaviors been he had in him when characteristics that she observed previously had done so. apart- police her called the to come to 8. Wilder injunction against Gordon. Offic-

ment and enforce the Amberg Bongard and were dis- John ers Matthew patched, apartment, they outside the and when arrived they Gordon realized were for there him and decided to attempt "escape" arming himself with two knives. up picked He testified that he first knife because he jail," go grabbed "didn't want to then to and a second knife. grandson Bongard

¶ 9. Wilder's let Officer into apartment. living From her in wheelchair room, shouted, Wilder "He's there and he has some referring standing knives," Gordon, to who was in an hallway. interior Bongard pointed gun

¶ 10. Officer drew and his at ordering drop Gordon, him to the knives. Officer Am- berg help. continually ran then inside to Gordon re- drop saying fused the knives, officer's commands to going drop fucking that he "wasn't telling to knives," no and going jail." "I ain't officers, to no The officers backup. Amberg radioed for Officer described the style knives as "butcher knife" and a "steak knife." ¶ 11. Still armed with the knives, Gordon fled to a back bedroom and closed the door. this Because room backyard, Amberg had a door to the Officer went intending neighbor outside secure the area. A had seen Gordon run in bushes, outside and hide some and Amberg. alerted Officer Bongard joined

¶ 12. Officer the search outside spotted hedges, away and in Gordon a few houses apartment. clutching from Wilder's Gordon was still Bongard gun, yelled knives. Officer drew his for Gordon drop knives, and ordered him to "freeze." Gordon comply, did not officer, and the at least one more time, drop stepped ordered him the knives. Gordon then Bongard Officer towards and started to raise the knives. attempting Gordon testified he was to surrender Interpreting the knives. Gordon's movement as an imminent attack rather than a surrender, Officer Bon- quick gard fired shots at Gordon succession. two hit in the arm the stomach. was Gordon immediately help. summoned medical officers County charged in ¶ 13. Milwaukee Gordon crimes: violation domes- Court with three Circuit contrary injunction, to Wis. Stat. tic abuse 813.12(8)(a); disorderly § armed, con- §§ trary 939.63; and to Wis. Stat. 947.01 second- contrary recklessly endangering safety, degree to Wis. 941.30(2). § first At he testified that when he trial, Stat. apartment, police he officers had arrived at the saw two knives order to set in motion armed himself with coming up escape: got I "Well,when I seen them up when, and he in. And then and I walked came that's up you picked I didn't know, I the knife because want jail. jail. go going I'm to You know what to I ain't saying?" repeatedly that he He testified reason jail: going was the knives to avoid to armed himself with testified, sir, you being Q: you And while were asked in front of the by your attorney questions these grabbed you real- you knives when here because, coming quote, I ized that officers were jail. you correct? Is this what going am not to Is this told us? go They said, fitting jail." "I'm to to [the

A: Yeah. I said, I going jail. me that I "I'm not officers] told jail." going go to no

Q: why you grabbed the knife? That's A: Yes. knives time?

Q: grab Did both at the same you one, grabbed grabbed I then I the other one off the A: counter. Q: So, presence of these two you knives armed

yourself with in the kitchen of apartment this was for purposes deterring these officers from grabbing you you so go wouldn't jail, right? Well, you so,

A: say yes. could 14. Regarding the confrontation with the police outside the apartment, Gordon testified: Yeah,

A: [the he officer] seen me. Weboth like upmet on each other through as he came yard. caught We each eye other's and he turned to me and told me to freeze.

Q: Did he you ... tell repeatedly drop the knives? said, A: Twice he "Drop knives, drop the fucking knives." my language. Pardon That is the exact words he said. In closing argument, Gordon's trial counsel

focused on disputing Gordon's guilt on the felony charge of second-degree recklessly endangering safety and the misdemeanor charge of violating the domestic injunction. abuse He said little, however, about misdemeanor charge of disorderly armed, save for the following:

But I very want to be doubt, clear there is no there is no question that at the moment when Bongard Officer Gordon, shot Mr. Mr. subject Gordon was to arrest for disorderly conduct while Obviously armed. running around the neighborhood with two knives disorderly conduct and it disorderly conduct while armed. But in and of itself that conduct does not create an unrea- sonable and substantial risk great of death or bodily Walking harm.... around neighborhood the with two knives doesn't create that kind of anyone. risk to assailed the State's 16. Gordon's trial counsel (violation a domes- first and third counts of case on the injunction second-degree recklessly en- tic abuse weight dangering safety), contrasting the evi- the of disorderly charge of the with the lack dence on conduct charges.2 two He evidence on the other more serious asking you argument saying: "I'm his concluded charges acquit on first and third folks to Mr. Gordon injunction [violating a domestic abuse and second- nothing recklessly endangering safety]." degree He said disorderly charge conduct stem- more of the enhanced part ming from use of the knives as Gordon's attempt escape arrest. "while 17. was instructed disorderly conduct

armed" enhancement element charge as follows: only not the defendant commit- alleges

[C]ount disorderly conduct, also he did ted the crime of but using, threatening possessing, or to use so while you dangerous guilty If find the defendant weapon. 2, you following charge in count must answer question: Did the defendant commit crime or possessing, using threaten- ing to use weapon? dangerous § added); (emphasis and Wis see also Wis. Stat. 939.63 In order found JI —Criminal 990. to be "possession" crime form of a "while armed" enhanced § have 939.63, a defendant must be found to under underlying possessed weapon to "facilitate" the Here, however, Peete, while crime. See 185 Wis. at statutory for enhancement— all three alternatives to live with testified that she had allowed Gordon Wilder that, upon her. testified based help and to care for Gordon her this, injunction was still in effect. he did believe

"possessing, using threatening dangerous or to use a weapon" given, the Peete "nexus" instruction was —were attorney object omitted.3 Gordon's did not to the omis- sion.

¶ 18. The found Gordon on all three counts, and the court, circuit the Honorable Richard J. imposed years Sankovitz, consecutive sentences: two felony second-degree recklessly endangering safety conviction, nine months on the misdemeanor domestic injunction abuse violation, and six months on the disorderly conduct while armed conviction. Gordon post-conviction alleging, among filed a motion other things, stemming ineffective assistance of counsel from closing argument concession and the failure to object to the omission of the Peete instruction. The circuit court denied the motion written decision, hearing, concluding preju- without a that there was no dice. appealed, appeals 19. Gordon and the court of second-degree

affirmed Gordon's conviction for reck- lessly endangering safety, but reversed his convictions violating injunction for a domestic abuse and for disor- derly Gordon, armed.4 State v. 2002 WI

3 A Peete "nexus" instruction necessary is not where the charged enhancer on the basis of the defendant's use or threat a dangerous use weapon, because in such cases a nexus exists Peete, matter. See State v. primary as a 4, 18, 185 Wis. 2d (1994) ("If N.W.2d 149 a defendant commits a using crime while or threatening dangerous use a weapon, a nexus is estab lished.").

4 The reversal of the conviction violating for a domestic injunction abuse is not before us on this review. Subsequent Harvey, appeals decision, State v. court of this court decided 93, 35, 442, and State v. WI 189, 2dWis. 647 N.W.2d Tomlinson, 58-59, 2002 WI ¶¶ 648 N.W.2d App court of 641 N.W.2d183. The 250 Wis. argument closing appeals concession concluded that the attorney equivalent of a the functional Gordon's guilty plea, accused, decision which the fundamental lawyer, authority Id., make. has the ultimate not his hearing ¶¶ The remanded for Machner 25-27. court had whether consented determine Gordon (citing closing argument ¶ Id., v. 31 State concession. (Ct. 554-55, 2d 582 409 Curtis, 550, N.W.2d 218 Wis. 1998)(holding hearing prereq- App. a Machner that counsel)). a claim of ineffective assistance uisite to appeals concluded that the omission The court of also prejudicial per and auto- instruction was se the Peete (citing matically Krueger. ¶ id., reversible under See 38 15). accepted Krueger, ¶¶ 12, 644, We 148, 685, review, 2002 WI 252 Wis. 644 N.W.2d reverse. and now CLOSING ARGUMENT

II. DEFENSE COUNSEL'S CONCESSION ¶ The Sixth Amendment the United States 20. prosecu "[i]n guarantees all criminal Constitution right... enjoy have the accused shall tions, the Const., for his defence." U.S. Counsel Assistance § I, also Const. art. 7. VI; amend. see Wis. plead The is one of several decision to regarding the case" over which decisions

"fundamental authority." lawyer, accused, not his has the "ultimate (1983)(citing Barnes, Wain- 745, Jones v. 463 U.S. States, v. United U.S. 1 Neder 367, adopting applying appropriate (1999), holding analysis that harmless error instruction, including one of an erroneous a case an element an offense. omits (1977)

wright Sykes, (Burger, v. 433 U.S. 93 n.1 C.J., concurring)). However, counsel is entrusted with the authority regarding to make "tactical" decisions trial strategy. e.g., See, Faretta v. California, U.S. (1975). closing 22. Gordon's attack on his trial counsel's argument concession of on the conduct count is made in the context of a claim of ineffective "squarely governed" by assistance of counsel, which is Supreme the United States Court's decision in Strick- (1984).5 Washington, land v. 466 U.S. 668 See Williams (2000). Taylor, familiar 529 U.S. Strick- land formulation of constitutional ineffectiveness is:

First, the defendant must show that per- counsel's formance was deficient. requires This showing that counsel made errors so serious that counsel was not functioning as the guaranteed 'counsel' the defendant by the Sixth Second, Amendment. the defendant must show that performance deficient prejudiced the defense. requires This showing that counsel's errors were so deprive serious as to the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 Strickland, U.S. at 687. Under "counsel strongly presumed adequate to have rendered assis- significant tance and made all in decisions the exercise professional judgment." of reasonable Id. at 690. 5 The dissent contends this ineffective assistance of governed counsel claim is not by Strickland v. Washington, (1984), U.S. citing in Haynes Cain, a dissent 298 F.3d (5th 2002) (Parker, J., Cir. dissenting). Dissent, ¶ 71 n.30. We authority know of no for the assertion that ineffective assistance of counsel governed claims are not by Strickland's two-pronged analysis of performance deficient prejudice. and ¶ a ineffectiveness, 23. "To establish 'defendant representation that counsel's fell below an must show objective Williams, standard of reasonableness.'" 688). (quoting Strickland, at 390-91 466 U.S. at U.S. prejudice he a "To establish 'must show that there is probability unprofes- that, reasonable but for counsel's proceeding errors, the have sional result would probability probability A different. reasonable a been to undermine confidence in the outcome.'" Id. sufficient 694). (quoting Strickland, at 391 466 U.S. at appeals ¶ 24. The court of held that the defense attorney's closing argument disor- concession derly conduct while armed count was the functional equivalent plea, improper a if done without conclusively presumed to be consent, Gordon's disagree. prejudicial. Gordon, 25. We guilty plea trial, A waives cross-examination of wit- testify right call in nesses, the witnesses one's defense, and the to a unanimous verdict own beyond doubt. The concession reasonable case had none of these effects. Gordon had this witnesses, trial, cross-examined the State's testified guilty beyond adjudged defense, his own and was jury. reasonable doubt a unanimous testimony conceded the facts 25. Gordon's own constituting armed count. summary, following: he In he admitted the that had drinking and had involved in a domestic been been dispute police arrived, he Wilder; with that when the escape; armed two knives to facilitate his himself with drop the that he refused the officer's commands to apartment armed knives; that he fled the while still pursued through neighbor- with the knives and was the by police officers; hood the two that the when officers caught up they drop with him him twice commanded initially knives; the he so; refused to do and that changed he when his mind and started to surrender police knives, the shot him in the arm and the stomach. ¶ 26. Under these circumstances it not defi- performance attorney cient for Gordon's to concede the overwhelming weight of the evidence on the misde- disorderly closing meanor argument conduct count and focus his charges

on the more serious in the case, disorderly which, unlike the count, conduct remained testimony. conceding after contestable Gordon's While facts out of Gordon's own mouth amounted to attorney armed, Gordon's ar- gued vigorously acquittal felony for on more serious and misdemeanor counts. This awas reasonable tacti- approach plainly cal under circumstances, calcu- credibility lated to maintain with the and enhance prospects acquittal on the more two serious charges. attorney anything Gordon's did not concede that Gordon had not admitted as a factual matter on stand; the witness the concession, therefore, did not conflict with Gordon's own testimonial admissions. Ac- cordingly, attorney's regard the defense in conduct this objective did not fall below an standard of reasonable- prejudicial. ness, nor itwas ¶ 27. cites a Gordon number of cases that have attorney's guilt during held an concession trial to be equivalent guilty plea, presump- the functional tively prejudicial if done without the defendant's con- factually distinguishable sent, but each of these cases is case, from this because each is characterized one or 1) following: charges more of the all concession to (or 2) only charge) case; concession made opening any statement before adversarial or eviden- 3) in occurred; had a concession made testing tiary objection from presence contemporaneous 4) in direct defendant; or a concession made conflict the defendant's testimony.6 with The more cases hold that where analogous on a in a counsel concedes lesser count multiple- case, count evidence on that light overwhelming count and an effort and win gain credibility on the other the concession is a charges, acquittal reasonable tactical decision and counsel is not deemed See, e.g., ineffective. constitutionally to have been (1st Gomes, United States v. 76, 177 F.3d 83-84 Cir. denied, cert. United States v. 1999), (1999); 528 911 U.S. (7th Wilks, v. United States 640, 1995); 46 F.2d 644 Cir. (1st Tobares, Underwood v. 405, 409 1991); 951 F.2d Cir. (7th Clark, States v. United 473, 1991); 939 F.2d 474 Cir. (7th Simone, Mc- 1186, 1991);7 F.2d 1194-97 Cir. 931 6 (5th Cain, 2001); 757, Cir. See Haines v. 272 F.3d 762 (9th Swanson, 1070, 1991); v. 943 F.2d 1074 Cir. United States (7th Simone, 1991); 931 Cir. Francis United States v. F.2d 1186 (11th 1983); 1190, Wiley v. Spraggins, v. 720 F.2d 1193 Cir. (6th Sowders, Rice, 1981); F.2d 642 Cir. Brown v. 693 647 (W.D.N.C. 1988); 381, Singletary, v. 758 F.Supp. 395-97 Nixon (Fla. (Fla. State, 513, 2000); 618 Childers v. 782 So. 2d 517 So.2d (Ill. 2001); Hattery, 513 App. People Dist. Ct. v. 488 N.E.2d (Kan. Carter, 1985); 1138, 1141, 2000); v. 14 P.3d 1148 State (La. Arnold, 578, 1998); App. 2d 584-86 Ct. State v. 706 So. (Mich. Fisher, 1982); 537, People App. v. 326 N.W.2d 539-40 Ct. (Minn. Moore, 1990); 90, Wiley v. State v. 458 N.W.2d 95-96 (Miss. State, State, 1373, 1381-82 1987); So.2d Jones v. 877 517 (Nev. 1994); Anaya, 592 A.2d P.2d 1056-57 State (N.H. Harbison, 1991); 1145-47 State v. 337 S.E.2d (N.C. 1985). United States v. quotation The dissent's citation and from (7th Dissent, Simone, 1991), misleading. F.2d 1186 Cir. says the admissions concern 61 n.23. Simone this: "But when (C.D. Hill,

Clain v. 1133, 1143 2d Cal. F.Supp. 1999); States, v. United Ramirez 67-68 F.Supp. (D.R.I. 1998); United Pledger, States v. 887 F.Supp. (D. State, Williams v. 1995); 1406-07 Kan. (Miss. Silva, State v. 2001); So.2d 899-900 Ct. App. (Wash. Richardson v. 2001); P.3d Ct. App. (D.C. States, United 698 A.2d 444-45 Ct. App. 1997). Underwood is one of the 29. leading cases in

this area: argues

[The defendant] that it is ineffective assistance lawyer per counsel se for a to concede his client's guilt true, without the client's consent. What al- though really nothing it has to do with ineffective assistance, plead is that a defendant cannot he made to guilty against wishes, however plea wise such a lawyer would be. And if his told the in closing argument, "my plead guilty," client has decided to that plea, deprive would be a forced and would the defen- dant of his put prosecution proof to its guilt. closing argument It- is otherwise if in counsel acknowledges what the course of the trial has made particular undeniable —that on a count the evidence of overwhelming. acknowledgment Such can be a sound tactic when overwhelming the evidence is indeed (and suppose any juror there is no reason to that doubts this) question count, and when the count in is a lesser advantage so that there is an gained by winning to be jury. the confidence Such was this case.... way [T]here going was no the world that the acquit charge]. [the defendant] [the lesser The lawyer did plead guilty; merely [the defendant] he acknowledged weight [the evidence of lesser only the charges proven, they some of to be or when do not actually guilt, concede counsel's concessions have been treated as tactical retreats and deemed to be effective assistance." Simone, 931 F.2d at 1196.

charge] in order to contrast it with the lack of direct evidence charge]. [on the more serious lawyer's reasonable, tactic was though... say we cannot it had client, the consent of the lawyer is not required to consult with his client on tactical moves. (7th 1991) (internal Underwood, 939 F.2d at 474 Cir. omitted). citations

¶ 30. We reach the same conclusion here. The per circumstances of this case do not warrant a rule of closing argument se ineffectiveness. Defense counsel's constitutionally concession was not deficient, i.e., it did objective not fall below an standard of reasonableness meaning within the Strickland, of Strickland. 466 U.S. Beyond prejudiced. at that, Gordon was not He has probability not demonstrated a reasonable proceeding result of the would have been different attorney's without the Strickland, concession. 466 U.S. testimony, way at 694. After Gordon's "there was no jury going acquit" the world that was on the disorderly conduct while Underwood, armed count. closing argument F.2d at 474. The concession did not constitute ineffective assistance of counsel.

III. THE PEETE ERROR ¶ 31. As we noted, have in- circuit court statutory structed the on all three alternatives for disorderly pur- commission of conduct while armed for 1) poses penalty posses- of the "while armed" enhancer: 2) 3) dangerous weapon. sion; use; and threat of of a use 939.63(1). § Ordinarily, Wis. Stat. where the State al- leges possessed dangerous weapon that the defendant a purposes in the commission of a crime for of the "while penalty armed" a enhancer, Peete nexus instruction is

required. Peete, 185 Wis. 2d at 9. The nexus instruction "possessing"

explains in order to be found underly- weapon dangerous of the in the commission a possessed ing must have crime, the defendant underlying dangerous weapon crime. "facilitate" the Id, possession instruction on Here, the Peete nexus omitted. alternative was uses or contrast, a defendant In where dangerous weapon in the commission a

threatens to use penalty purposes exists for crime, a nexus fully Here, of law.8 the evidence enhancer as a matter beyond-a-reasonable-doubt supports conclusion a of the crime knives in the commission used the Gordon part disorderly and Indeed, conduct. the knives were posses- disorderly parcel itself; conduct Gordon's escape in his effort to arrest was sion of the knives largely conduct the first what made his place. on the Nevertheless, was instructed possession instruction, alternative, a nexus absent Peete objection, however; There no was error. this challenged in the context therefore, the error has been of counsel claim. ineffective assistance Gordon's 8Peete, 185 Wis. 2d at 18: threatening using crime or to use If a defendant commits a while dangerous weapon, use is established. The defendant's or nexus fear, puts dangerous weapon the crime victim in use a threat to defendant, any protects in the protects contraband possession. effects of the use or threat to use defendant's These predicate weapon offense. Thus the facilitate commission of establish, possess requirement a defendant nexus we offense, predicate weapon makes facilitate commission of the meaning possessing" parallel § language in 939.63 in "while threatening using" . or "while ... to use." "while . . added, ellipses original). in (emphasis Id. at 18 appeals ¶ Here, too, 33. the court of followed a per prejudice, citing Krueger. rule of Gordon, se See Krueger ¶ 702, Wis. 2d 38. held that where defense object jury counsel fails to to a instruction that omits an prejudice crime, essential element of the under Strick- conclusively presumed land is and reversal is auto- Krueger, Krueger ¶¶ matic. 644, 240 Wis. 2d 6-15. relied on court, Avila, two cases from this Howard and analysis apply which held that harmless error does not to an erroneous instruction that omits an element (citing Id., ¶¶ of the offense. 11-12 Howard, 211 Wis. 893A). 292, Avila, 2d at 192 Wis. 2d at Krueger, Howard, 34. and Avila cannot survive Harvey, applied our decision term in last in which we analysis harmless error an erroneous instruc operated mandatory presump tion that as a conclusive penalty Harvey, tion on an element of a enhancer. Harvey adopted ¶¶ 2d 442, Wis. 47-49. the United Supreme analysis States Court's harmless error Neder, which reaffirmed and refined the harmless error (1967). Chapman test v. California, 386 U.S. 18 Harvey, ¶¶ 254 Wis. 2d 44-46; see also State v. Tomlinson, 2002 WI 254 Wis. 2d 648 N.W.2d Harvey, began by citing

¶ 35. In we Neder's basic premise: that while a "limited class of errors" is deemed requiring regardless "structural," automatic reversal any (i.e., complete effect on the outcome denial of judge; counsel; biased trial racial discrimination grand jury; the selection of a denial of self- representation public trial; at denial trial; or a instruction), defective reasonable doubt errors, most including ones, constitutional are reviewed harm- for Harvey, (citing Neder, lessness. 7). 527 U.S. at ¶ reaffirmation on to note Neder's 36. We went " Chapman harmless error: 'That test... test for "beyond appears that the a reasonable doubt it

whether complained to the verdict of did not contribute error (quoting Harvey, ¶ 44 254 Wis. obtained."'" quoting Chapman, in Neder, 15-16, turn 527 U.S. at 24). applying in also observed that U.S. at We Chapman in error at issue to the instructional test Supreme in used "somewhat case, Court Neder " beyond language": clear a reasonable 'Is it different have found the defen- a rational would doubt that Harvey, guilty absent the error?'" dant 18). (quoting Neder, ¶ 527 U.S. at language, said, in we did not This difference Chapman test, an but constitute abandonment to meet the of "what it takes clarification the Court conclude that an error 'did test; is, that, in order to meaning to the verdict' within not contribute 'beyond Chapman, be able to conclude a court must jury would have found doubt that a rational reasonable Id., ¶ error.'" 48 n.14 absent the the defendant 18). Ultimately, (quoting Neder, Court in at 527 U.S. reviewing court concludes Neder held that "where beyond that the omitted element a reasonable doubt by overwhelming supported evi- uncontested and jury verdict would have been the dence, such that the error, the erroneous instruction is absent same properly Neder, 527 U.S. at 17. found to be harmless." "completely argues that Neder is 38. Gordon Supreme more recent Court's irreconcilable" with (2000), Jersey, Apprendi v.New 530 U.S. 466 decision suspect" by suggests virtue that "Neder's force the Court's decision The cases are not Apprendi.9 has not undermined Neder. Apprendi inconsistent, did Apprendi error, 39. not involve instructional but, rather, was a facial to that challenge portion committed Jersey New hate crimes law that jury, by rather than the mere judge preponderance evidence, the elements of the hate crimes penalty (2000). Apprendi, See enhancer. In 530 U.S. 468-69 event, federal and state courts have had any appellate no difficulty reconciling two cases. Neder's harmless applied Apprendi-type error has been errors analysis in federal In every single addition, circuit.10 appellate Neder several state have also appellate applied courts 9 (were law) We note that the Neder dissent it the would not here, it help appropriate Gordon for declared that reversal Neder, only timely objection. where a defendant has made a 527 (Scalia, J., concurring part dissenting U.S. at 34-35 n.1 in ("[J]ust waived, part) as the absolute to trial can be object deprivation point so also the failure to at the its where deprivation can preclude be remedied will automatic rever universally acknowledged principle "[i]t sal" because of law sleeps rights rights— that one fundamental who —even them."). noted, may lose As we Gordon did not make a have timely objection to the instruction. erroneous 10 (1st 2001); Bailey, See United States v. F.3d 83 Cir. (2nd 2002); Joyner, United States v. 313 F.3d 40 Cir. United (3d 2002); 271 F.3d Vazquez, States v. Cir. United States v. (4th Stewart, Matthews, 2001); 256 F.3d 231 Cir. States v. United (5th Zidell, 2002); 312 F.3d 652 Cir. United States v. 323 F.3d (7th (6th Nance, 2003); Cir. United 236 F.3d 820 States (8th 2000); Wheat, 2001); F.3d Cir. United States v. Cir. (9th Sanchez-Cervantes, United States v. 282 F.3d 664 Cir. (10th Prentiss, 2002); 2001); United States v. 273 F.3d 1277 Cir. (11th Candelario, 2001); United States v. 240 F.3d 1300 Cir. (D.C. 2002). Samuel, United States v. 296 F.3d 1169 Cir. argu- Contrary Apprendi-type to Gordon's errors.11 application acceptance Neder, in the and its ment, appears practi- Apprendi-type errors, to be context cally universal.12 way distinguish meaningful There is no Harvey instruction that error

the instructional —an mandatory presumption conclusive contained —-from of the offense. that omits an element an instruction erroneously Neder itself involved an instruction Neder, at 15. of the offense. 527 U.S. omitted an element types error are reviewed under Both of instructional Harvey. analysis, pursuant to Neder and harmless error those Howard and Avila to the extent that We overrule reversal where a cases established a rule of automatic omits an element of the offense. instruction holding Krueger Avila; was based on Howard Krueger error law overruled. harmless is also Wisconsin by implication, Krueger) (including Avila, Howard, and, Harvey's adop- federal harmless error law. has followed Chapman- of Neder and its reaffirmation of the tion analysis requires that we overrule harmless error based Krueger, Howard, and reversal rule of automatic Avila. 11 (Ariz. 915, 2003); Ring, v. 65 P.3d 935 State v. See State (Ariz. Scott,

Garcia, 2001); 327, App. People v. 28 P.3d 331 Ct. (Cal. Price, 2001); Rptr. App. 111 328-29 Ct. State v. Cal. (Conn. Davis, 2001); 772 A.2d 767 A.2d 113 State v. (Conn. Thurow, (2003), 2001); People v. 203 Ill.2d 352 2001). (Me. Burdick, 1019; A.2d See N.E.2d State v. (D.C. 2002). States, Bellamy v. United 810 A.2d 401 also only finding to locate one case structural We are able (6th Mitchell, 2002), error, 414, 421 310 F.3d Cir. a Esparza involving challenge Eighth a under the Amendment capital case Amendment. rather than the Sixth ¶ 41. The removal of the automatic reversal rule prejudice to the realm of Strickland's returns this issue attorney object analysis, not because Gordon's did can the omission of the Peete "nexus" instruction. We confidently say probability that there is no reasonable a had circuit of different outcome counsel alerted the missing Peete instruction. court that he armed with 42. Gordon testified himself during knives a heated confrontation with the two police apartment spilled out from into the Wilder's surrounding neighborhood, escape inall order to arrest. possession circumstances, Under these Gordon's disorderly only conduct, it knives not "facilitated" the disorderly place. made his conduct in the first was what testimony, patently obvious, own It is based Gordon's merely possessed in the the knives were not actually underlying commission of the crime but were underlying to commit the crime. used closing In ar- conclusion, we hold that the gument counsel was not the concession Gordon's equivalent guilty plea functional on the a count, but, rather, armed reason- decision under the circumstances of this able tactical perfor- The concession did not constitute deficient case. prejudicial. Nor was the failure to mance, it was object nexus instruction to the absence of Peete prejudicial, has not demonstrated because Gordon probability result had the different reasonable given. instruction been

By appeals decision of the court of the Court.—The is reversed.

¶ ABRAHAMSON,CHIEF JUS- 44. SHIRLEY S. guilty (dissenting). pled not TICE The defendant 403 During trial, and asked for a trial. three counts guilt conceded the defendant's to one of defense counsel armed with a counts— object dangerous weapon failed to instruc- —and omitted an element of this crime.1 The mere tions that simple, undisputed of these facts illustrates statement majority in the decision. the flaws provides the decision Constitution plead rests with the defendant alone. The due protects process clause of the Fourteenth Amendment usurping against defense counsel's that decision.2 No constitutionally can fair trial thus be considered when attorney hold an overrides the accused's wishes to beyond government proof to its burden reasonable charge.3 doubt on each criminal ¶ 46. I would therefore affirm the decision of the appeals. conclude, court of I would as did the court of appeals, that a clear rule should be established that may any charged defense counsel never concede offense without the defendant's consent.41 would there-

1 The circuit court found that defense counsel's remarks during closing argument amounted to a concession of the guilt. appeals defendant's The court of concluded that this finding clearly erroneous. (1966) Janis, 1, (Harlan, J.,

2 Brookhart v. 384 U.S. concurring). 2002) (5th Cain, Haynes See v. 298 F.3d Cir.

(Parker, J., dissenting). Gordon, App See State WI 250 Wis. ("[A] attorney may 641 N.W.2d 183 defense not admit his contrary guilt, plea guilty, client's which is to his client's of not unequivocally unless the defendant understands and consents Woessner, admission."); see also Heidi H. Criminal Testing: Law—The Crucible Adversarial Assis Ineffective tance Counsel and Unauthorized Concessions Client's the court, as did to the circuit remand the cause fore evidentiary hearing appeals, deter- for an court of voluntarily, knowingly, defendant mine whether intelligently conces- to defense counsel's consented guilt.5 of sion of hold, did the court I further as 47. would object

appeals, failure to defense counsel's jury instructing the on the circuit court's omission prejudicial can be error. No trial nexus element constitutionally who fair when a defendant considered guilt finding pleads convicted without beyond of the crime on each element a reasonable doubt beyond guilt proving charged. a reason- burden determination the State and the doubt rests with able jury. met rests with burden has been of whether this following complete failure to instruct A conviction of a crime violates element on an essential process rights due constitutional accused's cannot stand. trial, and (2002) (a

Guilt, clear rule Eng. L. Rev. W. New defense counsel never reasonable for establishing that it is any doubt as to any reasonable the absence of concede or supported the defendant's consent charged offense without attorney- nature of existing of the collaborative notions surrounding protections relationship and constitutional client litigation). reduce a clear rule would entry guilty pleas; Machner, 285 N.W.2d See State 1979). (Ct. App. counsel's to defense did not consent

If the defendant further directed appeals guilt, the court concession of a new opportunity to conduct the State the give court to circuit armed" "while charge proscribed solely on the trial enhancer. Gor- resentencing for without conduct or allow don, 250 Wis.

H adopt ¶ 48. This court must a clear rule that may guilt defense counsel not concede a defendant's to charged offense without the defendant's consent. As I (A) plead guilty show, will the decision to is a funda- belongs mental choice that alone, defendant guilt because defense counsel's concession of at trial operates equivalent guilty plea, as the functional aof necessary; the defendant's consent to the concession is (B) majority's attempts distinguish to the conces- guilt present sion of in the case from concessions of equivalent guilty that serve as the functional of a (C) plea scrutiny; properly do not withstand under- stood, this case is not about ineffective assistance of process counsel, rather, but the due violation that usurps right occurs when defense counsel plead guilty personally. defendant to

A plead guilty ¶ 49. The decision to is one of the squarely fundamental choices that remain in the hands of the defendant at all Barnes, times.6 In Jones v. 463 (1983), Supreme 745, U.S. recognized 751 the United States Court authority an that accused has the ultimate regarding to make certain fundamental decisions his including plead guilty. case, the decision to Moreover, 6 Barnes, Jones v. (1983); 463 U.S. Wainwright 751 v. (1977) Sykes, C.J., 433 U.S. 93 n.1 (Burger, concurring); (1975). California, Faretta v. 422 U.S. Wayne See also 3 al., 11.6(a) (2d R. LaFave et § Criminal Procedure at 598 ed. 1999) ("The Supreme stated, Court has holding, dictum or that it is for the defendant to decide whether to take each of the following steps: plead guilty or take action tantamount ...."). entering plea Albright, 122, 129-30, N.W.2d

State v. Wis. (1980), "[C]ertain explained, constitu- this court rights of a defendant are so fundamen- tional criminal rights they personal which tal are deemed to be personally by In this must the defendant. be waived personal rights category is found the decision plead guilty."7 whether to right An to make fundamen- accused's these personally abolished, diminished, or

tal decisions is not affected an accused's constitutional otherwise In Faretta 422 U.S. California, counsel. (1975), Supreme explained right to Court predicated respect for the individual's counsel is liberty defense, make his choices as own ultimately, himself who it is the individual because "[T]he consequences those of choices. must bear is to of counsel under the Sixth Amendment function by dignity autonomy person protect of a on trial assisting making make, him in choices that are his to not choices him .. . ."8 to make for guilt in concede statements decision to equivalent guilty that amount to the functional by person- plea, therefore, must made the accused be conceding ally.9 strategic Regardless of the wisdom of 7 Burns, 594 N.W.2d also State v. 226 Wis. See 20:1.2(a) ("In any (1999); proceeding a criminal case or 799 SCR deprivation liberty, lawyer in shall abide that could result of decision, lawyer, as to after consultation with the the client's entered, plea whether to waive trial and whether to be testify."). client will 8 (1983) Barnes, (Brennan, J., at 759 Jones v. 463 U.S. dissenting). (11th See, Cir. Francis 720 F.2d 1190 e.g., Spraggins, v. 1983) (counsel to may guilt not without client's consent concede Hutto, 589 credibility sentencing phase); v.

maintain for the Cox

guilt, attorney may a defense not concede his client's guilt consent; without the an client's accused's consti- right plead guilty personally tutional to cannot be stripped away strategy. in the name of trial Under the right plead guilty person- Constitution, an accused's ally trumps attorney's ability a defense to determine strategy. trial majority deny

¶ 52. The does not that the decision plead guilty is a fundamental choice that remains squarely in the defendant, hands of the not of majority acknowledges counsel. The even that defense guilt charge counsel this case conceded (8th 1979) (a 394, 395, F.2d Cir. attorney's stipulat defense ing to an prior accused's convictions at a trial on a habitual offender charge amounts to a waiver of the right accused's prove prior have the State offenses and the accused's to rebut the State's evidence and cannot accepted be without defendant); (Ill. consent of the People Hattery, 488 N.E.2d 513 1986) (counsel may guilt not concede client's without client's hope obtaining consent a more lenient sentence where plea guilty entered); Carter, has been State v. 14 P.3d (Kan. 2000) (counsel's concession of defendant's to a robbery charge equivalent entering guilty plea cannot be made over objection); Moore, defendant's State v. (Minn. 1990) (new N.W.2d 90 trial ordered when the defense attorney's concession amounted to an admission that the ac cused "was heat-of-passion manslaughter" without the acquiescence consent or accused); State v. Wiplinger, 343 (Minn. 1984) (a 858, 860, N.W.2d attorney defense who indirectly an guilt by admits accused's asking questions of witnesses that imply that one charged was, of two crimes in fact, by accused, committed the guilt admits rising to the level guilty plea of a requires and consent); State, a client's Jones v. (Nev. 1994) (new 877 P.2d 1057 trial was ordered when guilt during guilt/innocence counsel conceded the phase consent). trial without client's majority, armed.10 The how- rejects the of the defendant's claim that concession ever, equivalent guilty guilt functional a amounted to the guilt According majority, plea. the concession of approach"11 merely tactical and a "reasonable here was unnecessary.12 the defendant's consent was therefore need not utter the words 53. Defense counsel participate guilty" pleads then to accused and cease "the or to in in order for his words actions further the trial guilty plea." equivalent of a as the "functional serve by to Rather, or actions defense counsel amount words they equivalent guilty plea when the functional effectively rights are asserted undermine those pleads not and elects to be a defendant when jury.13 a tried before guilty, pled he here 54. the defendant When open court to make statement

exercised Majority op., ¶ 11Id. it Professional Conduct make Rules of Wisconsin that are strategic or tactical decisions

clear that even those attorney to be made after province the of an are within (a lawyer SCR 20:1.2 shall with the client. See consultation concerning objectives repre by a decisions abide client's to the means and consult with client as sentation shall 20:1.4(b) (a they lawyer explain shall pursued); are SCR which necessary permit client reasonably a matter the extent regarding representation). to make informed decisions (1966) (defense See, Brookhart, e.g., U.S. at 7 trial, in agree prima facie which decision to counsel's is not allowed proof is defense State's burden of lowered witnesses, held to be or present evidence cross-examine Sowders, 647 Wiley equivalent guilty plea); functional (counsel's (6th 1981) Cir. admission F.2d 649-50 argument a surrender of sword closing constituted strategy). cannot be overlooked as trial that he intended to hold the State to the strict standard proof beyond a reasonable doubt as to each of the charged.14 pled Moreover, offenses when the defendant guilty right and also asserted his to a trial, he exercised his to have a unanimous verdict of guilt beyond a reasonable doubt on each of the offenses charged.15 Despite guilty plea the defendant's not present jury, case, defense counsel said to the

"[T]here question" is no doubt, there is no that at the provided moment the defendant was shot his conduct grounds disorderly sufficient to arrest him for conduct "Obviously, while armed. Defense counsel continued: running neighborhood around the with two knives is disorderly disorderly conduct and it is armed." Moreover, defense counsel concluded his clos- ing argument charged trial, at in which his client was by stating, asking you with three crimes, "I'm folks to acquit [the defendant] on the first and the third charges. you." charge Thank on which defense acquittal counsel disorderly did not ask for an was conduct while armed. stating 56. Defense counsel, that the defen- running neighborhood was,

dant in fact, around the "obviously" with knives and that his actions constituted disorderly essentially conduct armed, while told the jurors agreeing that he with the State that charged. defendant was of the crime Moreover, point defense counsel drove the home when he re- Nixon v. Singletary, (Fla. 2000) 758 So. 2d (citing Byrd States, United (D.C. 1965)). 342 F.2d Cir. Lomagro, State v. 588-89, 335 N.W.2d (1983). jury acquit quested on two defendant charge charges, on the conduct. but not only logical that can be 57. The conclusion the is that it served as drawn from this concession guilty plea. equivalent Defense of a counsel's functional plea guilt toppled the defendant's of of concession guilty.16 up the tents and waved counsel folded Defense disorderly flag while armed to the conduct the white charge, signaling jury had that the State met its to the guilty. proof in fact of and the defendant was burden complete of concession the Defense counsel's guilt thereby compromised the adversarial defendant's right jury process to a defendant's and nullified the prove guilt eradicating trial,17 the State's burden disorderly beyond the conduct doubt on reasonable charge.18 of The effect the concession was while armed guilty plea substantially the of a the same as effect closing at the rebuttal Indeed, would have been. State's argument, made, the State after the concession was ("Unquestionably, the F.2d at 650 consti Wiley, See plead guilty,' 'not or right tutional of a criminal defendant obliga the accurately plead guilty, entails perhaps not to more the trial the case around his attorney of his to structure of tion plea."). client's

17Wiley, F.2d at 650. (1984) Cronic, 648, 656 466 U.S. See United States v. ("The right right of is thus the to the effective assistance counsel case to survive require prosecution's accused meaningful testing... process [I]f of adversarial crucible adversaries, confrontation as a between loses its character Nixon, violated."); So. also guarantee constitutional see (an attorney's to the functional at 623 statement amounted it the strict burden equivalent guilty plea because removed guilt beyond a reasonable prove the accused's on State to doubt). charge no mention made conduct only charges. other focused two

B majority single para- concludes, 58. The in a graph, that the concession in case this did not amount equivalent plea to the functional because it any rights did not serve to waive that are typical guilty According plea. sacrificed majority, the concession of had no effect on the right right trial, defendant's ato his to cross- right testify examine the witnesses, State's his defense, own and his to have a unanimous guilt beyond verdict a reasonable doubt.19 majority simply wrong ¶ 59. The in its conclu- sion. A defendant cannot be considered to have exer- rights cised these when defense counsel concedes the guilt. defendant's guilty plea

¶ 60. The defendant's not entitled the guilt presented to defendant have the issue of his to the jury anas adversarial issue in the which State bears the proving guilt beyond burden a reasonable doubt.20 process guilt an Without adversarial in which is actu- ally jury perfunctory; contested, role the of the is simply way a deliberations become There charade. is no jury's to know this case whether the determination of guilt beyond a reasonable doubt resulted from the 19Majority op., ("In Nixon, case, See 758 So. 2d at every criminal a can, attorney very least, defense at the hold the State to its proof by clearly burden of articulating jury or fact-finder that the State must establish each element of charged the crime and that a only upon beyond conviction can be proof based doubt."). reasonable presented weight or the concession from of the evidence regard- conclude, however, It to seems safe itself.21 jury reach evidence, no a not of the rational would less agree parties guilty the defen- both verdict when guilty. a defendant cannot convince his own If dant attorney argue at trial, his innocence there virtu- guilty. ally find him not no likelihood that a would guilt rendered the unanimous verdict The concession of guilt charge of conduct while armed the foregone conclusion. majority further concludes that the 61. The case not amount to func- concession in this does (1) equivalent guilty plea it was because tional charges regard only one three made with (2) charges; faced, not all of the the conces- defendant argument during closing after adver- sion was made argu- during opening testing evidence, not sarial (3) contemporaneously not defendant did ment; (4) object the defendant's testi- concession; mony In least did conflict with the concession.22 at majority, ways, this case is one of these four asserts in which a defense counsel's from other cases different was held to amount to functional concession of plea.23 equivalent (1983)("An Johnson, See U.S. Connecticut of the crime disputed on a element presumption

erroneous on the issue because the renders irrelevant evidence upon presumption upon rather than may have relied evidence."). Majority op., ¶ Simone, F.2d Id. United States v. But see (7th 1991), stated: Cir. in which the court deliberate, explicit approve do defense counsel's

We not charge in find his client admission that a should any suggestion in the that the defendant concurred absence of ¶ 62. reasons, however, These do not withstand scrutiny. First, the fact that defense counsel conceded charges guilt only many to one of is irrelevant. The grant right Constitution does not an accused to plead guilty only charges all or to none of the he or she plead personal Rather, faces. charge. as counsel, accused to each Defense case, in this charge. one admitted criminal The State was respect put proof thus not burden of its with to that charge plea guilty required. as the not defendant's

¶ 63. Second, the fact that defense counsel con- guilt during closing argument opening ceded and not argument is also irrelevant. The Constitution does not may plead guilty. when restrict an accused An accused authority" does lose his "ultimate over the decision plead guilty simply impan- because a has been eled. majority might suggesting

¶ 64. The be that a during closing argument concession is different than a during opening argument concession because the defen- rights, dant has some exercised of his trial such as the right to witnesses, cross-examine call witnesses on his testify behalf, own he chooses, and if so in his own ability rights, defense. The to exercise some however, up rights not make does for the fact that other were violated. fact remains that the effect of the conces- proceed However, decision to in such a manner. before the case us, attorney intentionally [the stipulated defendant's] facts and charges conceded those for which was there unrefutable evidence mandatory sentences, no forcefully argued [the but charges defendant's] penalties, innocence on the with heavier as part strategy. plan of a trial It was a reasonable evident beginning object from the trial. At no time did the defendant it; fact, we he believe chose or at least condoned the tactics. position post-trial [the Our defendant's] was reinforced letter to sentencing judge provided ample ap- which evidence proval strategy. right away defendant's time is to take the sion at either through whereby guilt jury an trial, a his is decided to process in which the State bears the burden adversarial right proof beyond doubt, and his a of a reasonable unanimous verdict. making In distinction between a conces- 65. only guilt charges opposed as one of to all

sion of guilt many during charges a of and between concession closing argument, argument opening opposed to as why may strategically majority it be mistakes reasons why guilt concede for reasons concession wise to guilt equivalent considered functional should not be guilty might very good plea. make tactical sense It many charges guilt serious of to concede least credibility with and enhance order to maintain charges, acquittal prospects more serious might even sense to wait to concede and it make better presented has until all of the evidence been deciding appears challenged it over- whether before strategically whelming. would be That a concession it a wise, however, not make "tactical" decision that does may consent.24 made the defendant's be without may strategically plead It be wise hearing following preliminary State at which the corroborating airtight produces an confession physical it evidence, but still remains decision go to trial. The to make alone whether to accused just disappear because the State that decision does ("If Cronic, fide U.S. at 656 n.19 there is no bona See may the interests charge, counsel disserve defense time, At the same even by attempting client a useless charade. available, to stand theory if the decision when no of defense is made, prosecution to counsel must hold the its trial has been doubt.") (citations heavy beyond a reasonable proof burden of omitted).

successfully physical introduces confession and during evidence trial and defense counsel realizes that legitimate there is no be defense to made. by

¶ 67. The other two distinctions drawn majority are also irrelevant. The fact that the defendant object did not to the concession and that the defendant's testimony comported only with the concession address whether the defendant consented to defense counsel's concession, not whether concession amounts to the equivalent guilty plea. functional Moreover, an accused's consent cannot be inferred from his failure to object guilt to counsel's concession of or from his own testimony. up

¶ 68. The defendant's failure to stand at trial object closing argument and to defense counsel's is insufficient to constitute consent to defense counsel's "indulge every pre- conduct. Courts must reasonable sumption against waiver of fundamental constitutional rights" "presume acquiescence and should not in the rights.25 requires loss" of those The Constitution showing, "allegation there must be an affirmative or an guilty plea and evidence shows," which a voluntarily, knowingly, intelligently and made.26 Thus, upon a silent record cannot form the basis which we guilty plea knowingly, determine whether a is voluntar- ily, intelligently and made.27 25 Zerbst, (1938) (citations 458, Johnson v. 304 U.S. 464 omitted). 26 246, v. Bangert, 257, State 389 N.W.2d 12 (1986) Alabama, (1969)). (citing Boykin v. U.S. 242 27See, e.g., Boykin, 395 U.S. (extending at 242-43 Carnley v. Cochran, (1962), 369 U.S. hold to that a silent record is to insufficient guilty plea determine whether a knowingly voluntarily made); State Armstrong, Wis. 2d (1999) ("This N.W.2d always court high has set standards of testimony stating Similarly, defendant's finding support a facts that not amount to consent defense counsel's

armed does story guilt. The defendant told his after concession of guilty. changed plea, pleading never it is not He his made under conclude that factual admissions absurd to prosecutor cross-examination amounted permit change plea. The Constitution does prosecution's guilty, directed verdict of even when is uncontradicted or the evidence over- evidence prov- whelming, improperly since to do so invades jury.28 cannot Therefore, ince of the the Constitution right to a a defendant to have waived consider verdict trial and his unanimous by testifying beyond simply doubt facts a reasonable guilt. support finding a that of

C erroneously majority ¶ character- Because the 70. guilt mere as a tactical decision izes the concession subjects defendant, it counsel, to not the left defense test for ineffective defense counsel's actions to the v. Wash- announced Strickland assistance counsel v. "); State rights,... proof for the waiver of constitutional (1980) (Abrahamson, Albright, 96 Wis. 122, 2d 487 291 N.W.2d (waiver as it J., dissenting) presumed not from silence should be openly oppose expect a defendant to stand and unrealistic to testify). counsel over decision on whether 28 (5th States, 681, F.2d See Edwards v. United 286 683 Cir. 1960) ("No evidence, may a court conclusive the matter how 93, Harvey, v. 2002 see also State guilt."); WI direct verdict ("[A] 'may not 442, judge 189 647 N.W.2d 254 Wis. ¶ State, overwhelming how the for the no matter direct verdict Louisiana, evidence.'") U.S. 277 (quoting Sullivan (1993)). (1984).

ington, majority U.S. The concludes light that the tactical decision was reasonable in testimony defendant's own did therefore not con- performance. stitute deficient Moreover, writes the ma- jority, performance attorney's if the even was deficient, prejudice the defendant suffered no since there was "no way going acquit" world the that the the conduct while armed count.29 performance,

¶ Questions of deficient how- inquiry. ever, are irrelevant to our "Strickland does not provide appropriate analyzing the framework for this [T]his case. . . . case raises much concern broader goes very core of what the Sixth Amendment important questions asks means and us to address involving process due to a fair trial."30 attorney's

¶ A72. defense concession many charges may one of smartest, be the best, and strategy possible, most attorney's performance, trial effective and the defense may

in that sense, not be question presented deficient.31Yetthe in this case is one 29 Majority op., course, way 30. Of "no ¶ would acquit" applied. is not standard to be majority As the opinion explains, reliable," test is whether "result majority op., 22 (quoting Washington, Strickland v. 466 U.S. (1984)), is, attorney's whether deficient performance Major "undermine[s] confidence in the outcome." ity 390-91). op., (quoting v. Taylor, Williams 529 U.S. simply appellate test is not whether an weighing court hindsight evidence in determines that the would have convicted regardless the defendant of the error. 30Haynes, (Parker, J., 298 F.3d dissenting). at 385 31 See, Haynes, J., e.g., (Parker, 298 F.3d at dissenting) ("Trial Haynes' counsel's decision guilt to concede on the second degree charge murder probably However, was a wise move. this point absolutely is irrelevant to the issue before us. The right process the to fair trial: Who has of due effectively guilt to remove decide whether concede unanimously convince a the burden to State's guilt beyond doubt, the accused or the a reasonable find lawyer? accused's way, presented question this When the is 73.

stripped basics, the answer is down to its essentials and explained previ- As we well-settled constitutional law. majority ously opinion concedes, the due the and as guarantees only process not accused, an clause that right guilty plea.32 enter counsel, the a defense has Only the to decide whether an accused has open that amount to the make concessions in court equivalent guilty plea. if the defense of a And functional attorney consent, accused's does so without a of due must vacated for violation conviction be process. not The does forbid defense Constitution conceding charge guilt

attorney strategically ato from require, however, trial. does at The Constitution attorney client the consent before defense obtain guilt conceding amount to the functional in terms that guilty plea. equivalent to concede decision

Constitution mandates attorney, accused, not his made charge lesser must be attorney to mount may it be for regardless of how difficult charges."). a defense on all ("Although attorney can Nixon, at So. decisions, choice as to which the ultimate

make some tactical question up is left defendant. direction sail correct; rather, question whether the route taken course."). approved defendant] [the whether

II present ¶ in the defendant case was not constitutionally once, but twice denied his to a fair charge disorderly trial on the conduct while armed. majority explains, alleged As the an when accused to possessed dangerous weapon have in the commission purposes penalty of a crime for "while armed" give required enhancer, the circuit court a Peete instructing instruction, nexus it that must find dangerous weapon underling facilitated the present case, crime.33 In the however, after defense counsel conceded the defendant's give armed, the circuit court failed charge Peete nexus instruction for the State's of disor- derly conduct while armed defense counsel did not object.

¶ 76. It is clear an accused's constitutional rights are violated if a has not been instructed on every element an offense.34The Due Process Clause demands that no criminal defendant be convicted at upon except proof beyond trial a reasonable doubt of every necessary fact to constitute the crime with which charged.35 proving he or she is The burden of each and every element State; rests the determination as to whether this burden has been met as each and

33Majority op., ¶ 31. 34 Tomlinson, State v. 91, 56-57, WI 2002 254 ¶¶ Wis. 2d 367; Harvey, 502, 648 N.W.2d 442, 18-23, 29; ¶¶ Perkins, State v. 40, 46, 141, 2001 WI 243 626 ¶ Wis. 2d N.W.2d Howard, State v. 762; 269, 211 47, Wis. ¶ 564 N.W.2d 753 Avila, State v. (1997); 2dWis. 532 N.W.2d 423 (1995). 35 Howard, Winship, In re (citing Wis. 2d (1970)). U.S. Therefore, jury. element rests with the every "proper of fact- component is a crucial instruction jury finding process."36 77. also clear under law that It Wisconsin

¶ an does not to erroneous analysis apply harmless error an element of the offense. instruction that omits jury held a circuit court's consistently This court has that a a on an essential element of jury failure instruct be fundamentally crime is unfair cannot harmless Perkins, error. See v. 141, State WI 46, 2001 243 Wis. 2d Howard, State 2d v. 269, 211 564 626 N.W.2d Wis. Avila, v. (1997), and State 2d 192 Wis. N.W.2d 753 (1995).37 532 N.W.2d 423 that jury 78. The acknowledges majority

¶ The major- in the case was error.38 present instruction however, precedent, overrules clear Wisconsin ity jury on an the failure to instruct concludes that to harmless subject of the crime essential element 36 Schultz, 423, 426, Id., 2d (citing 102 Wis. State ¶ (1981)). 307 N.W.2d 151 (Wilcox, J., Perkins, concurring, J.) ("[W]here are of by Crooks, jury devoid joined instructions offense, alleged explanation regarding an element an rendering a effectively preclude jury from instructions circumstances, there can be no element. In verdict that such therefore, and, harmless jury particular that element verdict on analysis jury terms of the analyzes cases in error —which Howard, 211 Wis. inapplicable."); verdict—is (follows holding when a fails instruct Avila in that court crime is an automatic jury on an element of a there essential (concludes Avila, verdict); 893A 192 Wis. 2d at reversal guilty beyond a finding does make a "[w]hen that crime, a court cannot on an element of reasonable doubt regard to that jury instruction with conclude that a deficient error"). element is harmless Majority op., ¶ According majority, error review.39 this court's decisions in Howard and Avila "cannot our survive Harvey."40 decision last term Harvey, majority points ¶ 79. In as the out, this applied particular type court harmless error review a instructional error which the instruction improperly operated mandatory pre- as a conclusive sumption penalty on an element of a enhancer. theYet majority Harvey governs that concludes nonetheless meaningful way" this case as well there since is "no distinguish erroneously an instruction that includes mandatory presumption conclusive from an instruction erroneously omits an element offense.41 disagree meaningful

¶ 80. I no there is dis tinction the between instructional error in at issue Harvey and the instructional error at issue in the present Harvey, companion case, case. its State v. Tom linson, 91, 2002 502, WI 254 Wis. 2d 367, 648 N.W.2d and the on relied, federal case which it Neder v. United (1999), States, patterns 527 U.S. 1 all involved fact in which the trial court found for an itself element of the erroneously taking away crime, the element from the jury. present jury In case, the contrast, the received

39Id., discussing standard, ¶ 34. When the harmless error majority repeats the simply verbatim its Harvey discussion in taking without into account the of that nuances standard that been expressed opinions See, have recent of e.g., this court. v. Vanmanivong, 41-49, State 2003 WI 261 ¶¶ Wis. 2d Carlson, 76; 661 N.W.2d State v. 85-87, 261 2003 ¶¶ WI Wis. (Sykes, J., id., 51 dissenting); N.W.2d n.1 51¶ (Ahrahamson, C.J., concurring). 442). Majority op., (referring Harvey, ¶ majority overturns,

The also admitting much, without Per as kins, 243 Wis. 2d 141.

41Majority op., 40. ¶ essential element whatsoever on an no instruction finding made no on the crime, circuit court the and the either. element charged Neder, In was with the accused 81.

violating penalizing fraud. criminal statutes federal Among the with which he was the elements of crimes any charged had to be false statements made was that perpetration in- of fraud. Instead of material structing materiality, jury the the the trial court told materiality ques- jurors question of was not a that the explained jury court the decide.42The trial tion for materiality jury that "it 'need consider' language though any is used statements 'even that false "43 jury was that indictment.' The aware in the materiality Neder finding guilt. necessary for a simply trial court would was led to believe that stage finding subsequent of the trial.44 at a make Harvey Tomlinson, In circuit both jurors improperly one the ele- told the court already them had been decided for ments of crime inclusion element to the for and then offered that mandatory presump- conclusive in its deliberations as a jurors Neder, knew about the element tion. As States, (1999). 1, 6 Neder United 527 U.S. 43 Id. Neder, finding. ultimately The trial did make court ("The found, subsequently at 6 court.. . outside

527 U.S. the materi jury, the evidence established presence issue."). ality of all the false statements at are, times, The conclusions of law made Neder in at stated despite addressing an broadly example, facts. For more than its the Neder jury, away an element from instruction that took an the omission of states that the "conclusion that decision subject analysis is with" to harmless-error consistent element Neder, U.S. case law. at 10. prior and knew that trial had, effect, court made a finding that the evidence satisfied the element. By contrast, 83. hand, the case at no instruc- given tion on the nexus element was all, at and neither jury expressly the court nor the was ever asked to jurors decide the nexus element. The remained un- throughout aware their deliberations that for the de- disorderly fendant to be convicted of armed, the knives must have facilitated his present conduct. The defendant in the case was con- "dangerous weapon" penalty victed of the enhancer any finding by jury without either a court or a that each proven beyond of the elements of that crime was reasonable doubt. clearly

¶ 84. Wisconsin harmless error law distin- guishes between an instruction, Neder, erroneous inas Harvey, Tomlinson, and an instruction omits an element, Avila, essential Howard, as in and Perkins. analysis applies Harmless error to an in- erroneous apply complete struction but does not absence of explained: an essential instruction. The Howard court [I]f the circuit court fails jury to instruct a about an essential element of the crime and the must find beyond that element doubt, a reasonable there is an If, automatic however, reversal of the verdict. there is element, some instruction erroneous, on that albeit is told that the proven beyond element must be doubt, analysis reasonable then the is one of harmless error.45 Harvey In short, does not demand that we

overturn well-established Wisconsin Moreover, law. majority any does offer other reason for overturn- 45Howard, Avila, 211 Wis. 2d (citing 51¶ 893A). at does not ing Howard, This court Avila, and Perkins. justification, strong precedent there is unless overturn precedent namely detrimental become has when consistency Avila, Howard, law.46 coherence remain well and have served Wisconsin and Perkins As Jus- with the Constitution. and consistent coherent explained Perkins, if a court were tice Wilcox uphold instructed was not when conviction charge, "in it would element of the an essential "upholding in favor a directed verdict effect" be accused's] [the violate "to do so would State" process rights trial. .. and a to due constitutional strictly [that] forbidden."47 a result I forth, dissent. ¶ For the reasons set 86. that Justice ANN

¶ to state I am authorized 87. joins this dissent. BRADLEY WALSH WI Adjustment, 2001 Outagamie County Bd. State v. (internal citations 628 N.W.2d Wis. omitted).

47Perkins,

Case Details

Case Name: State v. Gordon

Court Name: Wisconsin Supreme Court

Date Published: Jun 27, 2003

Citation: 663 N.W.2d 765

Docket Number: 01-1679-CR

Court Abbreviation: Wis.