State v. Miller

Plaintiff-Appellant, of Wisconsin, State v. Defendant-Respondent. James D. Miller, † Appeals Court of No. 2, 2007AP1052-CR. Submitted on November 2007. briefs 2, Decided July

2009 WI App (Also 188.) reported in 772 N.W.2d † Petition to Abrahamson, review denied C.J. and 12/14/09. Crooks, J., dissents.

On behalf of the the cause was plaintiff-appellant, C. Wolford, William briefs of assistant submitted on the Hollen, and J.B. Van attorney general, attorney gen- eral. defendant-respondent,

On behalf of the the cause Miller, submitted on the brief of James D. se. pro Higginbotham, Dykman Vergeront, EJ., Before JJ. appeals

¶ 1. HIGGINBOTHAM, EJ. The State an vacating judgment order James D. Miller's of conviction first-degree reckless while armed with a 940.23(1) dangerous weapon, § in violation of Wis. Stat. (2005-06),1 aggravated battery while armed with a dangerous weapon, in violation of Wis. 940.19(5). Because we conclude that the evidence was first-degree insufficient to convict Miller of injury, vacating we affirm the trial court's order his charge conviction on this and remand for the trial court judgment acquittal. to enter a However, we reverse vacating the trial court's decision Miller's conviction for aggravated battery. Accordingly, modify we the trial part order, and, court's modified, as affirm in and part in reverse and remand with directions.

BACKGROUND following ¶ 2. The facts are taken from trial tes- timony. night January One in 1999, Calvin Nakai was with two of his cousins at Ella's Bar in Stevens Point. drinking many Nakai became intoxicated after beers tequila argued and At time, shots. bar Nakai with his cousins, who left the bar without him. He received a people ride from three he did not know. The driver stopped nearby gas at a station, and Nakai waited in the car as the others went inside. Nakai testified that he anything does not remember much of that occurred gas after the station. gas

¶ 3. station, Inside the a man and a woman group given with the that had Nakai a ride met James 1All references the Wisconsin Statutes are to the 2005-06 version unless otherwise noted. way standing on his in line. Miller was

Miller while and five bar, he consumed between from a where home Miller invited four hours. in the course of seven beers They quick couple for a beer. to his trailer back they accepted, had another Miller that and informed up they picked person at the bar. had them whom with see them fine, that he would that was Miller said there. guests trailer, met at the Miller and his 4. When cousins, Simonis; Russell's roommate, Russell

Miller's Corey Kesy; Lewer, friend, Josh John Simonis and Corey living asleep Russell, John and in the room. were stayed quickly in the Josh to Russell's bedroom. retired living slept Miller offered his the sofa. room and on people guests minutes, the Miller After about ten beer. leaving left, behind store Nakai met at the convenience Miller. with living in the room and and Nakai sat 5. Miller picture commented on a

talked. Nakai in the Nakai that he was uniform, and Miller informed army Miller that he was a marine Nakai told reserve. special American, Nakai, forces. who Native complained treatment of Native Americans about the give argued by that whites should back whites, and Miller testified from his ancestors. land that was stolen just time, for some but he listened to Nakai eventually he did not believe that he told Nakai that happened responsible to held for what should be by drawing responded closer Nakai Nakai's ancestors. loudly. speaking to Miller told Nakai Miller and more to argumentative. grew more After down, but Nakai settle angry forty-five and minutes, Nakai became about pre- slapped he the face. Miller testified Miller across happen the because he did not want this did not tended agreeing conflict to escalate. Miller started with Nakai change subject. and tried to the topic Nakai But returned to the of Native grievances, agitated. American and remained At one point, picked up large rolling and, Nakai a screwdriver, you it in hand, Miller, his said to "Do I know what could responded: probably do with Miller this?" "Youcould kill you you going my it, me with but are not to are because eventually put friend." Nakai the screwdriver down. ¶ 7. Miller home, offered to drive Nakai and went up twenty out to his the minutes, warm car. For next persuade accept Miller tried to Nakai to the ride. Nakai insisting refused, that Miller's trailer his was home because it was on land from ancestors, stolen his and slapped again. car, Miller turned Miller off the and pillow sleep offered a Nakai blanket and so could he go on the floor. Nakai told Miller he did not want to sleep, they going and were to do what he wanted. "going get

¶ 8. Nakai told he Miller was [Miller's] walking little sister" and started the down hallway the toward bedrooms.2 Nakai entered Miller's roommate's bedroom where Russell Simonis and his Cory Kesy, sleeping. cousins, John Simonis and were up Russell and, woke when Nakai entered the room taking standing from cues Miller was behind who yelled sleep Nakai, offered Nakai his bed to in. at Nakai you responded Russell, I am?" "Do know who Russell not, he did and him Nakai smacked across the face. "Alpha" Russell testified that Nakai said that he was "Omega" "quoting and lot, Bible talking beginning about and the end." Russell When bathroom, announced that he use needed to Nakai doorway pass. blocked the refused let him 2 There were no women in trailer. "pretty . . out of control. much was that Nakai

testified babbling going getting off and more violent more and crazy things." and the kitchen Miller went about help. 911 for called dispatcher at least one to send told the 9. Miller acting big man and was a Nakai

officer because crazy. he heard after 911 call short Miller cut the cry the bed- Miller walked toward "ow, ow!" Russell standing Russell, who was over Nakai rooms and saw hallway up Russell floor. When in a ball on curled attempted get him across the feet, hit his Nakai Raising time, first for the his voice the head. back of way police yelled on the were that Miller shoving started leave the home. Nakai Nakai to ordered hallway to the kitchen. from the retreated Miller, who the face for Miller across followed, and smacked Nakai Nakai to demand that continued a third time. Miller By time, Russell and John were this the home. leave that this was Nakai declared well, kitchen as told place men to sit where he the three and ordered his to leave. and told Nakai The men refused them to. up guitar picked and smashed it from the floor Nakai cracking against upholstered chair, its neck. an swinging charged Miller, his fists. at 10. Nakai exchanged quick blows. Nakai a few Miller Nakai and grabbed separated, the screw- and Nakai and Miller night. up picked Nakai earlier that he had driver holding step and, Miller closer to or two moved you I can what air, said: "Do know in the screwdriver probably responded that he could do with this?" agreed he could. Miller moved him, kill and Nakai and John Russell the kitchen island where back behind standing. afraid for his that he was Miller testified were part life, in because he had heard that marines in the special everyday objects forces are trained to use as weapons. lethal get

¶ shotgun 11. Miller decided to from his go bedroom. He announced that he had to to the right bathroom and that he would be back. He back- pedalled away from Nakai then took off down the hallway, leaving Nakai with Russell and John. Miller pulled shotgun off a rack in his bedroom and loaded it with point, three or four shells. He that, testified at this yet he had not decided to shoot Nakai. He said he figured gun only option that the was the to defend himself and Russell and John. He testified that it twenty thirty passed seemed like or minutes had since though he had 911, called even it had in fact been no eight more than seven or minutes. gone

¶ 12. ap Miller was from the kitchen for proximately thirty sixty seconds. Miller walked down hallway carrying the shotgun. toward the kitchen the holding He saw Nakai the screwdriver over his head speaking loudly. Miller could not see Russell or Corey John, and did not know where or Josh were.3 pumped shotgun, Miller a sound John testified that he gun heard in the kitchen. Miller trained the on yelled: Nakai and "Get the hell out of here!" Nakai appear gun looked at Miller but did not to react to the or move toward the door. Miller waited three or four aiming thigh, seconds, then, for Nakai's left fired a single hip, dropping shot which him entered Nakai's left to the floor. Corey Both Josh and were in the trailer at the time.

However, appears it that neither Corey Josh nor was at the center of the events leading up to shooting. his in shooting Miller that purpose testified him from him," prevent "to stop

Nakai was Miller admitted that John. While Russell and stabbing that he was Nakai, he testified intended to shoot he he and not his when fired hip at Nakai's aiming thigh and ran at Nakai gun pointed shot. Miller kept him to out his man, ordering get toward wounded he that Nakai was Miller believed house. testified a threat. still about one minute again 14. Miller called 911 talking dispatcher, to the While shooting.

after Nakai, an on who keep eye at Russell yelled the front Miller testified he porch. now on it like the time because seemed called 911 second to 911 call by the first responded should have police heavily was and then, bleeding and because Nakai still on the with the help. phone needed Miller was arrived at the trailer. Deputy when officers dispatcher that Miller asked him Ronald testified Ryskoski Sheriff Miller right. if to be all going at the scene Nakai was not to attempted to officers that Nakai had admitted screwdriver, him or John with the and stab or Russell close to stab him standing enough was not that Nakai he fired the shot. when first-degree Miller with reck- charged 15. was

¶ a weapon while armed with and injury dangerous less dangerous armed a while with aggravated battery that he acted in trial, At Miller asserted weapon. of John. The and in defense Russell and self-defense any on lesser-included offenses. jury was instructed counts, a verdict of on both jury guilty The returned four years' court concurrent sentences of stayed and the count, on on placed each imprisonment for eight years. probation 2000, In January 16. Miller's trial counsel

moved trial § for a new under Wis. Stat. 809.30 on grounds that was jury extraneous exposed preju- dicial information deliberations. trial during The court motion, denied the and Miller's trial counsel filed an appeal on Miller's behalf. affirmed judgment We a Miller, State v. conviction in May opinion. No. (WI 00-2779-CR, unpublished slip op. May 23, App 2002). In April 2006, Miller filed se motion pro

for postconviction relief under Wis. 974.06. counsel, Miller was appointed who filed an amended § 974.06 motion the evidence alleging against Miller was insufficient to support the conviction for first-degree The injury. alleged motion also Miller's trial counsel rendered ineffective assistance on (1) several grounds, raise including: failing to (2) issue; sufficiency evidence failing request jury instruction on second-degree reckless as a lesser-included offense first-degree reckless injury (3) and aggravated battery; object failing when the given the wrong jury instruction on self-defense, 805, Wis JI — Criminal in- self-defense crimes, struction for intentional instead of Wis JI— 801, the self-defense instruction for crimes of Criminal recklessness or negligence. Following 18. a Machner4 the inef hearing on claims,

fective granted assistance the trial court Miller's motion, that concluding trial counsel was ineffective in to failing challenge sufficiency of the evidence because the evidence did that Miller's conduct prove showed an "utter human disregard life," for an element 4 (Ct. Machner, State v. 92 797, 804, 2dWis. 285 905 N.W.2d 1979). App.

737 injury first-degree 940.23. under Wis. reckless trial counsel was ineffec that The court also concluded jury failing request on be instructed that the in to tive failing object to to the offenses, and in lesser-included wrong jury The court instruction. use of the court's prejudicial effect of the the cumulative that concluded performance by multiple trial of deficient instances trial and vacated Miller to a new counsel entitled judgment on both counts.5 of conviction

DISCUSSION (1) argues claims are that: Miller's The State Escalona-Naranjo, by procedurally 185 State v. barred (2) (1994); trial 157 168, 185-86, 517 N.W.2d Wis. 2d concluding of a that, the context within court erred counsel, the evidence assistance claim of ineffective first-degree Miller of reckless to convict was insufficient injury; (3) concluding the trial court erred failing adequately to trial counsel was ineffective option request of a to submission inform Miller of the injury, second-degree jury instruction for first-degree reckless offense of lesser-included arguments battery.6 aggravated Miller makes two battery aggravated pertain conviction for to his namely, argues address; he the trial court did not which 5 stayed pending Miller's sentence the trial court Because begin serving his appeal, Miller did not the resolution of his first discharged Miller was from the State's until 2002. sentence granted Miller's motion custody in 2006 after the trial court completed He therefore modify length probation. of his has his sentence. challenge to the trial court's do not address the State's We object failing ineffective for trial counsel was conclusion that of a instruction the trial court's omission self-defense recklessness, have instructed which would relating to crimes failing apprise that trial counsel was ineffective for plea him offer, of the existence of a and that the trial mismanaged jury court deliberations. appeal

¶ 20. We address the issues raised in this I., In Part as follows. we conclude that the State has argument procedur- waived its that Miller's claims are ally by II.A., barred In Part Escalona. we conclude that sufficiency may directly a of evidence claim be in raised § In II.B., Wis. 974.06 motion. Part we conclude Stat. that the evidence was insufficient to first-degree convict injury,

reckless and remand for the court to judgment acquittal III., enter a on this count. In Part aggravated battery that, count, we conclude on the counsel did not render ineffective assistance with re- spect to a lesser-included offense instruction for second- degree jury reckless because no reasonable would acquitted aggravated battery have Miller of while con- victing second-degree injury. him of IV, In Part we conclude that other attacks Miller makes on his aggravated battery conviction that were not addressed by the trial court lack merit.

I. Escalona

¶ 21. The State raises here for the first time the argument appeal by that Miller's is barred Escalona- Naranjo. supreme interpreted Escalona, In court 974.06(4)7 § prohibit Wis. Stat. claims of error that appeal could have been raised in the in direct or to take into account Miller's claims self-defense evaluating disregard." whether he acted with "utter 974.06(4) provides: Wisconsin grounds person

All for relief available ato under this section must original, supplemental be raised his or her or amended motion. Any ground finally adjudicated raised, knowingly, or not so or in § from raised a being motion under 974.06 previous reason § 974.06 motion absent sufficient subsequent claims in the earlier proceed- for the failure to raise the 2d at 185-86. 185 Wis. ing. Escalona-Naranjo, that the State waived its responds in to raise it argument by failing postconvic Escalona that the State's fail tion Miller observes proceedings.8 sifter he ure to raise this occurred even argument § 974.06 in his se motion under Wis. Stat. argued pro be barred in that his claims should not procedurally that the State would raise Escalona. Miller anticipation waiver, that, further he satisfies argues regardless requirement Escalona's "sufficient reason" because sev in the present appeal allege eral of the claims raised counsel, assistance of trial and Miller was ineffective his trial counsel in his 2000 direct represented by Robinson, Miller notes that we held in State v. appeal. (Ct. 46, 53, 1993), 177 2d 501 N.W.2d 831 App. Wis. 473, 477, 221 2d 585 Hensley, State v. Wis. N.W.2d 683 (Ct. 1998) that Robinson was not over App. (stating Escalona), trial counsel by inability turned voluntarily intelligently proceeding waived in the that re- any proceeding sulted in the conviction or sentence or other person may to secure relief for a has taken not be basis motion, ground subsequent unless the court finds a for relief asserted which for sufficient reason was not asserted or was inadequately original, supplemental raised in the or amended motion. parties The use term waiver this context. We note appropriate the more term here. forfeiture is See State v.

Ndina, 21, 29-30, 653, 2009 WI 315 Wis. 2d 761 N.W.2d 612 ¶¶ waiver, (distinguishing noting forfeiture from that the former is timely right, the failure to make the assertion of a while the relinquishment is the or latter intentional abandonment of a right). However, waiver, parties known because the use the term readability. well for the we use it as sake to assert his or her own ineffectiveness in the direct appeal constitutes sufficient reason under 974.06(4). § dispute

¶ 23. The State does not that it failed to argue by that Miller's claims were barred Escalona argues may impose court, before the trial but that we requirements against of Escalona a defendant when the procedural citing State fails to assert below, bar State App Crockett, ¶¶ 235, 6-10, v. 2001 WI 120, 248 Wis. 2d 635 N.W.2d673. The State further observes that Miller's pro addressing se Wis. 974.06 motion Escalona superseded by by an amended motion filed Miller's counsel that did merits, not mention Escalona. On the argues exception the State that the in Escalona stated inapplicable Robinson is because Miller retained Attor ney Robert Henak in counsel, addition to his trial Attorney during appeal. Rushevics, Maris the first responds merely that Henak was an advisor to Rush only evics, and was retained after the trial court denied postconviction point appellate motion, at which already issues had been framed. application

¶ 24. We conclude that of the waiver appropriate rule is here, and therefore decline to ad argument. dress the State's Escalona Waiver a rule of judicial apply administration, and whether we the rule is a matter addressed to our discretion. See Ford Motor (Ct. Lyons, Co. v. 397, 417, 137 Wis. 2d 405 N.W.2d354 1987). App. Miller's Crockett, case differs from wherein prior the defendant failed to raise his claim in three postconviction motions, and did not assert a sufficient failing appeal reason for to raise his claim in his direct prior postconviction proceedings. or Crockett, present 120, Wis. 2d 10. The case is more akin to Avery, State v. 228, 247-48, 213 Wis. 2d 570 N.W.2d573 (Ct. 1997), App. in which we concluded that State right procedural had its to assert the bar of waived Avery prior Miller, Escalona. Like had made no Wis. § Moreover, case, as in 974.06 motions. Miller's Stat. heavily reaching weighed circumstances favor of Avery's alleged miscarriage justice merits. motion discovery department based on the late that the sheriffs Here, had withheld evidence. Miller's motion asserts appeal, that he unable in his claims to raise direct as alleges explained below,and that the State failed to meet proof first-degree its burden of on his conviction for injury. foregoing reasons, For the we therefore argument conclude that the has its State waived procedurally by Miller's claims are barred Escalona.9 Sufficiency Supporting II. Evidence Conviction First-Degree Injury Reckless Sufficiency May

A. Whether Evidence Be Directly Raised in a Wis. 974.06 Mo- tion argues

¶ 25. The State next that the trial court concluding erred trial Miller's counsel was 9We are doubtful that the result would be different were we argument. to reach the merits of the State's Escalona In Robinson, by we held represented that when the defendant is the appeal, same counsel at trial and both on counsel's inability to assert his or her own ineffectiveness constitutes a § "sufficient reason" under Wis. Stat. 974.06. State v. Robin (Ct. 1993). son, 46, 53, App. Here, 177 Wis. 2d 501 N.W.2d 831 although regarding Henak advised trial counsel Rushevics the appeal, represent first post- Rushevics continued to Miller in proceedings conviction and before this court. Rushevics only attorney the appeal. on the briefs in Miller's first See

742 suffi- the adequately challenge to failing ineffective first-degree on the the evidence ciency that court's conclusion defends the trial charge. and further seeks regard, in this was ineffective counsel in evidence of the sufficiency directly challenge to the reasons motion. For § 974.06 of his Wis. context Stat. raise his may that Miller below, we conclude stated § in his 974.06 directly the evidence claim sufficiency motion. § is the primary 974.06 26. Wisconsin Stat. or her challenge his may a defendant by

method which has appeal expired. the time for direct after conviction A motion 2d at 176. 185 Wis. Escalona-Naranjo, See juris to matters of scope is limited § under 974.06 State, Peterson v. dimension.10 diction or constitutional (1972). 837 370, 381, 195 N.W.2d 54 Wis. 2d raise a may that Miller The State argues in his Wis. Stat. insufficient evidence claim of direct evidence sufficiency motion because § 974.06 Thus, http://libcd.law.wisc.edu/~wb/will0086/48772445.pdf. own ineffectiveness had to assert his would have Rushevics regardless of Henak's appeal brought in this raise the claims distinguishable present case is fail to see how the We assistance. from Robinson. pertinent: provides, as 974.06 Wisconsin (1) remedy provided postconviction appeal the time for or After custody of a expired, prisoner in under sentence has in s. 974.02 placed a volunteers person with or a convicted court claiming right to be released

probation program under s. 973.11 imposed of the in violation upon ground the sentence was state, of this the constitution or laws constitution or U.S. sentence, jurisdiction impose or that the such court was without by law or is the maximum authorized was in excess of sentence attack, may subject the court which move to collateral otherwise vacate, the sentence. aside or correct imposed set the sentence dimension, not a matter of constitutional Peter citing son, In Peterson, 54 Wis. 2d at 381. after observing §a 974.06 motion is limited in of scope matters jurisdictional dimension, and constitutional the su court said: "Such preme issues as of the sufficiency evidence, instructions, error in admission of evi dence and other be by errors cannot reached procedural (footnote omitted). a sec. 974.06 Id. motion." The su court preme repeatedly has cited Peterson's statement evidence sufficiency may of claims not be in raised §a 974.06 when discussing motion scope statute, most in recently Evans, 84, State v. 2004 WI 33, 192, 784, 273 Wis. 2d 682 ¶ N.W.2d overruled on other grounds, ex rel. State Coleman v. McCaughtry, 2006 49, 19-29, 352, WI 2d 290 Wis. 714 N.W.2d ¶¶ Lo, 900. See v. 107, 24, also State 2003 WI 264 Wis. 2d 1, 756; 665 Carter, 81, N.W.2d State v. 131 Wis. 2d 69, (1986); 389 N.W.2d 1 and State v. 109 2d Walberg, Wis. (1982). 96, 103, 325 687 in However, N.W.2d none these cases did the issue pertain whether a suffi ciency of the evidence claim be could raised in a § 974.06 The motion. court's citation of in Peterson these cases was for the limited purpose providing legal background about of a motion scope under § 974.06. Despite above-cited language Peter-

son, al., et other decisions of our court and the supreme United States Supreme Court after issued Peterson us that a persuade sufficiency of the evidence challenge may be raised directly a Wis. 974.06 motion because claim such a is a matter of constitutional dimension. In Discussing re 358, 397 U.S. 364 Winship, (1970), the Court in Supreme Jackson v. 443 Virginia, 307, (1979), U.S. declared that process guaranteed by the essential of the due an person [is] that no shall be Fourteenth Amendment except a onus of criminal conviction made suffer the necessary to a upon sufficient... evidence convince of the beyond fact a doubt existence trier of reasonable every element of the offense. of supreme recog Citing Winship Jackson, our court Ivy, 608, 591, in State 119 Wis. 2d 350 N.W.2d nized v. (1984), sufficiency are that of the evidence claims 622 process guarantees grounded of Four in the due the Ivy presented The in teenth Amendment. issue was sufficiency required this to address whether court presented other the evidence claims when the case of Ivy grounds must this court reversal. held sufficiency in a case address a claim of of evidence such Jeopardy of Fifth the Double Clause the because precludes the is Amendment retrial when evidence citing States, 1, 18 insufficient, Burks v. United 437 U.S. (1978). Ivy, 2d at 119 Wis. 608-11. Ivy appeal

¶ arose direct under 29. While on a § not the 974.02, and therefore did address Wis. Stat. § principle Ivy scope in 974.06, of the stated —that sufficiency implicates of the due the evidence claim guarantee process of the United States Constitution— implicitly premise suffi overruled the in Peterson that ciency of the is a constitutional claim. evidence recently Hayes, 80, 2d in v. 2004 WI 273 Wis. More State the that a suffi 1, 203, 681 N.W.2d court concluded ciency claim waived when of evidence is not court. fails to raise the claim before trial defendant majority its came to based on While this conclusion justices interpretation did 974.02, three Wis. of part recognition that claims on the such so based "go[] guilt in a to the of a heart determination Hayes, 1, ¶¶ 4, 2d 48 criminal trial." 273 Wis. JJ.). (Abrahamson, joined by Bradley C.J., Crooks, justice explained addition, In fourth a concurrence that claims of insufficient evidence should not be appeal deemed waived when first raised in a direct because such claims are "bottomed in. . . the funda- principle mental constitutional that a defendant presumed proves innocent him until State or her guilty by degree requisite proof." Id., (Roggensack, concurring). J., light In more these recent constitutional developments, language we must conclude that in Peter- sufficiency son to effect that of the evidence claims may lack constitutional dimension and therefore not be § super- raised in Wis. Stat. 974.06 motion has been directly seded. We therefore address Miller's claim that support the evidence was insufficient to his conviction first-degree injury. for reckless

B. Whether the Evidence was Sufficient First-Degree Convict Miller Reckless In- of uphold ¶ We 31. must Miller's conviction "unless probative is evidence so insufficient in value and force as a law, matter of no reasonable fact finder guilt beyond could have determined a reasonable ¶ doubt." v. Jensen, State 84, 23, 2000 WI 236 Wis. 2d requires 521, 613 N.W.2d 170. test This tous view the light evidence in the most favorable to the conviction. support Id. Whether the is evidence sufficient question is a conviction law that of we de review novo. ¶ Booker, State 79, 12, v. 2006 43, WI 292 2dWis. 717 N.W.2d676.

746 ¶ for on his conviction first- Miller's attack degree injury turns whether the evidence on reckless prove with "utter disre that he acted sufficient was gard second-degree Both first- and human life." for injury proof require of reckless conduct caus reckless bodily ing great 940.23.11 First- harm. Wis. aggravating degree element, includes an disregard perpetrator proof "utter acted with disregard phrase The "utter for for life." Id. human meaning "depraved mind, as human life" has the same regardless language used life," of the former aggravating 1987 to denote the Wisconsin code until 2d Jensen, 236 Wis. element in crimes of recklessness. omitted). (citations 521, 18 high disregard requires "more than 33. Utter degree negligence Wagner State, v. or recklessness." of (1977) (citation 30, 331 46, 2d Wis. N.W.2d omitted). disregard, "[t]he mind must To evince utter disregard safety only another but be devoid not regard depraved A mind lacks a the life of another. appreciation life, sense, an unreasonable moral omitted). (citation acting person judgment." A lacks Id. possess disregard "a mind must state of with utter regard the or social duties of a no for moral which has ^[11] Wisconsin § 940.23 provides, pertinent part: (a) First-Degree Injury, recklessly (1) Whoever Reckless being circum- great bodily under harm to another human causes disregard guilty of a human life is utter stances which show felony. D Class Second-Degree Injury. (2)(a) recklessly Whoever Reckless being guilty of a great bodily is harm to another human causes felony. F Class

747 being." Wagner, (citing human 76 Wis. 2d at 45 v. State (1973)). Weso, 404, 410, 2d 60 Wis. 210 N.W.2d442 disregard proved through ¶ 34. "Utter an ex- [injury] amination of the or act, acts, that caused totality of the circumstances that surrounded that Edmunds, conduct." v. 229 67, 77, State Wis. 2d 598 (Ct. 1999). App. evaluating N.W.2d 290 In whether proof disregard there is sufficient of utter for human many including life, we consider factors, act, nature, type why perpetrator its acted as did, injuries the extent of the victim's and the he/she degree of force was required inju- to cause those ries. also the type victim, We consider the victim's age, vulnerability, fragility, relationship to the perpetrator. finally, And we consider whether total- ity of any the circumstances regard showed for the victim's life. (quoting

Jensen, 521, 236 Wis. 2d 229 Edmunds, 77). 2dWis. at

¶ 35. We are aware no Wisconsin cases chal lenging sufficiency prove of evidence to "utter disregard" "depraved or mind" that have arisen on facts present Wagner similar to those of the case. Miller cites State, and Balistreri v. 440, 83 Wis. 2d 265 N.W.2d290 (1978), involving cases crimes related to the reckless of an automobile, use wherein the court concluded that prove the evidence was insufficient to that the defen depraved dants acted with a mind where the defendants swerved at the last minute to avoid an The accident. "shaken-baby" Jensen, State cites case which the court concluded that the evidence of abuse was suffi prove cient to defendant acted with utter disregard. Jensen, 521, 25; 236 Wis. 2d see also Ed ("shaken-baby" reject- munds, 229 Wis. 2d at 77-78 case sufficiency showing of the evidence challenge ing However, it is difficult to draw conclu disregard). utter utter Miller's conduct evinced sions about whether of these cases because the by any resort disregard to the of these cases are dissimilar circumstances case.12 present State calls attention State v. 36. The our

¶ (Ct. 280, App. 219 Bernal, 111 2d 330 N.W.2d Wis. 1983). case, discharge Like Miller's Bernal involved the similarities However, firearm. that is where of a Bernal, In Bernal and the case end. present between a loaded handgun, into bar with defendant walked man, and inten the bar with another saw his wife at The male friend shot his wife the back. wife's tionally his Bernal, weapon, and Bernal discharged charged the evidence in the man. We concluded killing man killing for was sufficient Bernal's conviction for disregard that Bernal had acted with utter conclude Bernal, life. 111 Wis. 2d at 284-85. human wrote in Bernal 37. We ready to at [i]ntentiona!ly pointing gun a loaded shoot dangerous to person imminently is conduct another defensible, it privileged or otherwise another. Unless 12 reason, reject suggestion that the State's For this we for the Wagner, may and be read to stand Balistreri Jensen is of regard for life proposition that evidence of "after-the-fact" during regard for life evincing conduct import less than totality consider the of the circumstances before the act. Courts regard some determining whether the defendant showed when before, during life, may occurring which include conduct criminally act itself. See of the after the commission 521, Jensen, 84, 32, 2d N.W.2d 2000 WI 236 Wis. 613 State v. 582, (1977); 170; Olson, 575, 12 v. 75 2d 250 N.W.2d State Wis. (Ct. 78, App. Edmunds, 67, 2d 290 598 N.W.2d State v. Wis. 1999). mind, regardless

the act depraved evinces a of human life, holding the person weapon whether the to intends frighten, or stop person intimidate the other and does to intend shoot. argues Bernal, 111 at Wis. 2d 285. The State that pointed shotgun because Miller the loaded Nakai, at jury rejected privilege, and the claim Miller's i.e. compels others, self-defense and defense of Bernal disagree. in result this We case. Bernal that states pointing gun a loaded at another is not conduct evinc- (utter ing depraved disregard) a mind if it is "otherwise privileged. analysis defensible," even if it is not As the below demonstrates, whether Miller's conduct was "oth- very erwise defensible" is much at in issue this case. might appear Moreover, to the extent that Bernal to per supreme rule, establish a se we note that the court carefully per has avoided se rules in this area and consistently applied totality instead has a of the circum- approach stances to the cases. Lacking

¶ might 38. cases from which we reach a by analogy, subject conclusion we the facts of case this determining test multi-factored for utter disre- gard set forth in Jensen. Applying type Jensen, that we observe injuries act,

and nature of the the extent of Nakai's degree support of force used a that conclusion disregard. shotgun Miller with acted utter Miller fired a person range eighteen at a from a of sixteen to feet, causing great bodily exposing harm to Nakai and Nakai an extreme risk that could have caused Nakai's remaining However, death. factors set forth including principally Jensen, the reason for Miller's persuade conduct, us that the evidence insufficient was acted with reasonable conclude life. for human While Miller's conduct disregard utter 940.23, § under have been reckless Wis. may an no reasonable view did Miller's conduct evince under for human life within the disregard meaning utter 940.23(1). 40. Miller's uncontroverted was testimony home, violent and Nakai, guest bellig- Miller's his throughout erent toward Miller and friends Miller testified that he offered course of several hours. home, ride and when Nakai refused to to Nakai a give leave, got that this was "his Miller insisting place," Nakai, and to on the pillow Nakai a blanket floor. sleep special Miller that he was a marine in the who informed to kill Miller forces, threatened with screwdriver. head, his Nakai Later, the over waiving screwdriver Miller, kill Russell and John. Miller shot threatened to threats, made these and only only Nakai after Nakai Miller, Russell and John at after Nakai had attacked times rejected While the during night. other the others claim of self-defense and defense of Miller's acknowledged the 939.48, prosecutor under Wis. acting in his that Miller "was closing argument self-defense, acting he wasn't lawful self-defense." but if reason, It that a not the appear undisputed would for Miller's conduct was to himself and reason, protect friends. This reason is inconsistent with conduct his State, v. 64 Wis. 2d disregard. utter See Seidler evincing (1974) of mind 465-66, ("depravity 219 N.W.2d 320 456, causing demonstrates [injury] exists when the conduct life safety an lack of concern for the and utter is no justification and which conduct there another for excuse") added). or (emphasis not a or Additionally, Nakai was blameless ¶ Jensen, 521, 24 See 236 Wis. 2d ¶ vulnerable victim.

751 (victim's age, vulnerability, fragility, relationship to relevant to utter It perpetrator disregard analysis). that was established Nakai was a man than larger Miller friends, and his and informed Miller he was a marine in the special forces. Nakai was belligerent Miller throughout toward and refused to night, leave trailer when repeatedly, asked insisting the trailer his was home. Nakai could have left but instead escalated the confrontation with Miller and his friends, threatening them with the screwdriver. 42. Finally, Miller regard showed some for hu- life man under the of the totality circumstances. Miller did not Nakai for the engage physically first several hours, even after Nakai struck Miller. Miller offered to Nakai give a ride home and a blanket got pillow him to on the Before sleep floor. Miller shooting, called as the began escalate, situation with Nakai to and shot only Nakai when Nakai continued threaten Russell and with John after screwdriver. Moments firing the shot, called report shooting, and later an asked officer was going whether Nakai okay. be 43. We note that testimony Miller's uncon

troverted, was remarkably consistent with his initial statements to investigators and with testi the mony statements of the other witnesses. It was also largely consistent with the physical evidence. We do believe that the evidence reasonably supports compet ing inferences so to as contrary Miller's testimony support reasonable conclusion Miller that acted with utter for life.13 disregard human While the evidence

13The evidence, dissent maintains that the when viewed in verdict, light the most favorable to the raises reasonable infer- ences from jury which a reasonable could find that Miller acted conclusion that his conduct was a reasonable supports it be read to reckless, reasonably cannot criminally Miller's state of mind was such that a view that support the moral or social duties of a he "no for regard showed Weso, 60 2d at 410. human Wis. being." reasons, we therefore con- foregoing 44. For the evidence, light clude that the viewed the most conviction, the that Miller favorable to demonstrates life. Accordingly, for human we regard showed some of a trial on the the trial court's order new modify and remand for first-degree charge See acquittal. Ivy, the court to enter a judgment that an appellate Wis. 2d at 608-609 when (explaining that the was insufficient court determines evidence example, disregard when he Nakai. For with utter shot may suggests Miller have points dissent evidence that Nakai, Miller, unsurprisingly, egged-on perhaps and that was most, firing At angry Nakai when the shots. dissent with may complicated be more showing succeeds in that facts However, suggests. persuade dissent fails to us than Miller inferences, weight negative viewed in that the cumulative of the verdict, light jury's support most favorable to the view disregard. jury Even if the disbe that Miller acted with utter testimony entirety proposition lieved in its difficult Miller's —a and, testimony at largely Miller's uncontroverted because outlines, only of events least in its broad was the version police for presented jury to the fact that Miller called 911 —the testimony twice and the officer's asked assistance Miller evinced going alright to be show that whether Nakai was above, disregard, regard some life. Utter as noted human regard that is "devoid of for the life of describes a state of mind life, sense, appreciation moral an another... lacks a State, v. 2d judgment." Wagner 76 Wis. unreasonable and lacks (1977). 30, conclude could 46, To 250 N.W.2d 331 case would reasonably disregard find on the facts of this utter represent expansion aggravating of the factor in crimes of an disregard" Simply put, this is not an "utter case. recklessness. 753 support remedy judgment a conviction the order a is to 18). acquittal, citing Burks, 437 U.S. at Respect III. Assistance With an In- Ineffective on struction Lesser-included Offense of Second-Degree Injury Aggravated Reckless Battery hearing testimony

¶ 45. After from Miller and his hearing, trial counsel at Machner the trial court inadequately found that tried counsel discussed with option request Miller the of a in submission second-degree injury, struction for reckless Wis. Stat. 940.23(2)(a),14 § aggravated a lesser-included offense of 940.19(5).15 battery, § Wis. Stat. The court concluded performance that this constituted deficient and that "it appears by prejudiced" that Miller was this deficient performance.16 challenges

¶ 46. The State the court's conclusion grounds, of ineffective assistance of counsel on several one which is that Miller was not entitled to an second-degree injury instruction on reckless because 14Second-degree injury "recklessly reckless is defined as caus[ing] great bodily harm being. to another human ..." Wis. 940.23(2)(a). Stat. §940.19(5) "[wjhoever provides Wisconsin great causes harm bodily by to another an done act with intent great bodily person to cause harm to that another guilty or E felony." Class 16The court findings circuit made the same and conclusions regarding second-degree reckless as a lesser-included first-degree However, offense of injury. reckless dowe majority address issue opinion because we have concluded that to judgment Miller is entitled of acquittal on first-degree injury charge. an reasonably support acquittal does not the evidence battery conviction on aggravated charge on the Miller contends injury. Although reckless second-degree discussing deficient for not that trial counsel was both offense instruction with him and for a lesser-included one, arguments, the of both as premise not requesting he the them, understand that was entitled to we on the evidence. Because we agree instruction based does not reasonably the State that the evidence with an on and a greater the support acquittal charge on lesser conclude trial coun charge, conviction the we address sel was not deficient and we do not the parties' Straten, State v. 140 Wis. 2d arguments. other See Van 1987) (Ct. 320, 448 306, App. (rejecting 409 N.W.2d for fail defendant's claim counsel was ineffective him to consult on a lesser-included offense ing with such an failing request instruction and instruction instruction). did not support because evidence A assistance of counsel 47. claim ineffective ¶ was deficient proof performance counsel's requires See prejudiced and that deficiencies defendant. (1984). In 668, v. 687 Washington, Strickland 466 U.S. court's deficient reviewing the trial determination the trial court's factual uphold we will performance, erroneous, subject con- clearly unless its findings constitutionally clusion that counsel's performance Doss, v. 2008 deficient to de novo review. See State WI 23, 570, 2d 93, 312 Wis. 754 N.W.2d ¶ 48. A criminal is entitled to a lesser- defendant included instruction if when reason- requested offense in the both for on able exist evidence grounds acquittal

755 offense greater and conviction on the lesser offense. (Ct. Foster, 14, State 23, v. Wis. 2d N.W.2d 22 1995). App. 49. The elements aggravated crime of (1)

battery applied as to this case are: Miller caused (2) great Nakai; harm to bodily and Miller intended to cause great bodily harm Nakai. Wis JI — Criminal 1224. The elements of the crime of second-degree (1) as here applied are: Miller caused (2) great Nakai; harm to bodily and Miller caused great bodily by harm reckless conduct. criminally Wis JI— Criminal 1252.17 50. As the notes, State the heard a jury

¶ stipula- tion that Nakai "great sustained harm" bodily as a result of the shooting, satisfying the first element of aggravated battery. regard With to the second element, Miller, the State observes that his by admission, own intended to shoot Nakai in thigh range at a of no more eighteen than with feet a The shotgun. State as argues that, law, a matter of such conduct demon- strates intent to cause great bodily harm, fulfilling the second element of the crime of aggravated battery. Miller maintains that a reasonable jury conclude, could based on the fact that he fired the at Nakai's gun thigh and not vital his and on organs, testimony that his purpose in shooting him," Nakai was "to stop that he did not intend to cause great Nakai bodily harm. 51. "Great harm" is bodily

¶ defined the Wis- consin statutes as "bodily injury which creates a sub- stantial death, risk of or which causes perma- serious nent disfigurement, or which causes a or permanent 17The second-degree State does not contend that injury is not aggravated a lesser-included offense of battery. We therefore assume that it is for purposes of this discussion. any impairment protracted function of of the loss or bodily injury." organ bodily other serious or or member 939.22(14). acting person § criminal A with Wis. Stat. thing purpose to do the or cause has a intent "either specified, her conduct is is that his or or aware result practically that result." Wis. to cause certain 939.23(3). shooting as a matter of law 52. Weconclude eighteen range thigh person of sixteen to at a a shotgun practically to cause at certain feet with impairment protracted of the function loss or least a constituting person's leg, and is therefore meaning bodily "great statutes. harm" within by reject argument concluding, that, Miller's we In so thigh aiming abdomen, chest or and not his for Nakai's he did not could conclude that head, reasonable bodily great harm. intend to cause Nakai Miller, had who We further conclude army experience and a as an reservist firearms with was that his conduct been aware hunter, would have impair- protracted practically loss or to cause certain reject leg. Miller's of Nakai's We ment of function jury argument concluded could have that a reasonable bodily great to cause Nakai Miller did not intend that testimony purpose in his his based on harm stop shooting Miller's The fact that "to him." Nakai was by posed the threat intended to neutralize conduct was firing by negate the that, the fact Nakai does thigh, shotgun to cause also intended Miller at Nakai's by committing bodily great act that he an harm Nakai great practically in result certain to was aware was bodily harm to Nakai. only

¶ that, We 54. conclude because the reason- able of the view evidence that Miller intended to "great bodily cause § harm" Nakai as defined Wis. 939.22(14), jury acquitted no reasonable could have aggravated battery accepted Miller of unless it his defense of self-defense or However, defense others. if jury accept defenses, reasonable did one of those it acquit second-degree would also Miller of reckless in- jury. Thus, there is no reasonable basis in the evidence acquittal aggravated battery charge for an on the and a second-degree injury charge. on the conviction reckless Accordingly,Miller was not entitled to a lesser-included second-degree for instruction charge. reckless this Challenges Pertaining TV.Additional Con- Aggravated Battery viction for remaining The 55. trial court's bases for con- cluding that Miller was denied assistance effective pertain only first-degree of counsel injury charge. rejected only We have basis on which aggra- the trial court vacated Miller's conviction for battery, vated which that trial counsel was ineffec- respect tive with to an instruction on the lesser- arguments However, included offense. Miller makes concerning which trial court did not address plea counsel's failure to him inform of a offer and alleged mismanagement by deliberations pertain aggravated trial court to his conviction for battery. arguments We address these in turn. argues First, Miller that trial counsel ren- failing apprise dered ineffective assistance plea of the of a existence offer. The trial court concluded performance in this was deficient that, while counsel's by regard, prejudiced counsel's error Miller was not hearing that he testified at the Machner because Miller probably had been have taken the offer he would not testimony, we likewise it. Based on this informed of apprise Miller of trial failure to counsel's conclude reject prejudicial plea therefore not offer was argument. this arguments Second, Miller makes a set of jury alleged mismanagement of delibera-

that concern by court, trial ineffective assistance tions alleged mismanage- object to the failure to counsel's juror changed allegation jury, that a and an ment of "guilty" jury so that he to end deliberations his vote to fishing trip. of these The relevant facts leave for a could jury informed the at the as follows. The court claims are days. expected to last two outset that the trial day, clear that the second it became When, at the end of jurors they long, if asked trial run the court would following day. juror One to return the would be able planned tpwn to leave informed the court that he had fishing day trip. following p.m. 3:00 for an annual at likely juror that the case would The court advised the happened, jury by the case did noon. As it be sent to the jury jury p.m., go and the returned to the until 4:12 night. approximately guilty at 8:30 verdict accompanying his Wis. avers an affidavit juror fishing-trip later told an that the 974.06 motion investigator "innocent" his vote from that he switched "guilty" that he could to end deliberations so trip. leave for the appeal, the trial Miller contends that 58. On jury despite being in- convene the

court's decision to judicial trip juror's fishing violated rules of formed of the (SCR) Supreme Court Rule set forth administration regarding management jury, 73.0318 of a and that this error was not harmless. He also contends that trial objecting counsel was ineffective for not to the court's question jurors requiring failure to the before them to light juror's scheduling deliberate in of one known Finally, argues fishing-trip juror conflict. he that the deprived right process incident him of his to due and a jury twelve-person entitling trial, him ato new trial. responds argument ¶ 59. The State that Miller's only juror's to the trial court concerned the statement changed "guilty" that he alleged his vote to and not the court's 73.03,

violation of SCR and therefore Miller any argument supreme has waived based on the court observe, rules. however, We that Miller raised his argument pro under SCR 73.03 his initial se brief to reject the trial court. We therefore the claim State's waiver. Assuming argument's

¶ 60. sake that provides court's actions violated 73.03, SCR no authority proposition for the that a court's violation of supreme may, grounds court rule alone, be for rever- adopt sal of a conviction, criminal and we decline to Supreme Wisconsin provides, Court Rule 73.03 perti- as nent: (1) Jury place deliberations shall take under conditions and

pursuant procedures designed impartiality that are to maintain making. and to enhance rational decision (2) judge jury concerning appropriate The shall instruct procedures during to he followed deliberations. (4) judge determine, considering The shall after the needs of jury, parties system, and the court whether a will working deliberate after normal hours. Cook, 166, here.19 Cook v. 208 Wis. 2d such a rule Cf. (court (1997) appeals prima 189, 560 N.W.2d246 court). error-correcting supplemental rily In author an App ity, Ruiz-Velez, 169, Miller cites State v. 2008 WI ¶ 6, 724, 449, 314 Wis. 2d 762 N.W.2d which addressed 71.01(2), requiring reporting proceedings of all SCR reversing denying court, in circuit court order recording transcription of an audiovisual of a child However, victim in a sexual assault case. Ruiz-Velez concluded that the circuit court's denial violated Wis. requiring reporting videotaped 908.08, Stat. Rule testimony presented at trial. This court's brief discus 71.01(2) Ruiz-Velez, sion of SCR which concluded rule, action violated the followed that the circuit court's our conclusion that the circuit court violated Rule "reinforc[e] merely 908.08, and offered our was analysis." persuade therefore does not us Ruiz-Velez 71.01(2) that, occurred, if even a violation of SCR reversal of Miller's conviction would be warranted. argument regard

¶ 61. With to Miller's that coun- objecting sel was ineffective for not to the trial court's jurors ordering question them to failure to before deliberate, we conclude that Miller has failed to dem- performance was deficient. onstrate that his counsel's juror following exchange The court had the with the fishing trip: about the situation, your And what sir?

Court: distinguish supreme adopted court rule from rules We a authority adopt by supreme pursuant court to its See, procedural e.g. codified in the statutes. rules Wisconsin (rules action); commencing Stat. Rule 801.02 for an Wis. Wis. (electronic rules); filing Wis. Stat. Rule 801.17 Rule rules). (pleading 802.02 sturgeon fishing trip planned I have a Juror: tomorrow, long. I depends but I can wait. It all how was by planning to leave 3:00. right.

Court: All I would think that that's —We fairly would still be close. We should be done before that, you long I don't know how would be deliber- but you say sturgeon ating, obviously, "planned so when for, trip," something you paid you or this is have planned for some time? yearly thing,

Juror: but I can wait. It's juror colloquy Weconclude that the court's with the was satisfy process. requirements of due sufficient to juror The assured the court that he could wait on the fishing trip explained after the court had that it long might certain how deliberations run. Given these required assurances, the court was not as a matter of process juror inquiry due to make a further of the following giving jury. afternoon before the case to the objection The lack of an was therefore not deficient performance. Finally, argument

¶ 62. consider Miller's we allegations he is entitled to a new trial based on in in contained an affidavit which Miller avers that the fishing-trip juror investigator by told an hired Miller changed "guilty" that he his vote to to end delib- fishing trip. erations so that he could leave for his 906.06(2) § juror may provides that a Wisconsin Stat. testimony provide inquiry validity an into the "except... question a verdict on the whether extrane- prejudicial brought improperly ous information was to jury's any attention or whether outside influence improperly brought any juror." upon bear was to To be evidentiary hearing inquiring entitled to an into the of a validity verdict, the party seeking set aside a verdict grounds on of extraneous prejudicial informa tion or outside influence must make a preliminary showing by affidavit or nonjuror evidence. Manke v. Physicians Ins. Co. of Wis., Inc., 50, 25, WI App ¶ 750, 289 Wis. 2d 712 N.W.2d 40. The affidavit or non- juror evidence must demonstrate "the subject matter of the proposed is within hearing an exception to 906.06(2) § Wis. Stat. and must assert that, true, facts if would require a new trial." Id. Whether the affidavit in this case meets this legal standard is a question law, which we review de novo. Id. at 19. ¶ 63. We conclude Miller's affidavit fails to allege facts that would him entitle to an evidentiary hearing into the inquiring validity verdict, of the let alone entitle him new trial. Miller claims that juror's fishing-trip "impending departure for his annual and no doubt the trip, he chiding could from his expect buddies," was an outside influence improperly brought to bear upon juror. We conclude that the scheduled fishing trip, any criticism the juror might expect receive from his fishing buddies for missing the trip, not, as a matter law, an "outside influence" 906.06(2). within the meaning ofWis.

CONCLUSION In sum, we conclude that evidence was insufficient to convict Miller of reckless first-degree However, injury. we conclude that the trial court erred Miller's vacating conviction for aggravated battery. Accordingly, we modify the trial order for a new court's trial on the conviction for first-degree and remand for the trial court to enter a judgment of portion

acquittal, of the trial court's and we reverse aggravated vacating for bat- Miller's conviction order tery. By modified, modified, and as the Court.—Order part part; cause remanded in in reversed affirmed with directions. (dissenting part). I write

¶ VERGERONT, J. 65. separately evi- I there was sufficient because conclude injury. first-degree I reckless convict Miller of dence to respectfully Part II.B. of the dissent from therefore majority opinion. agree that Miller is entitled Because I do not 66. charge, request acquittal for I address his an on this charge based on ineffective assis- trial on this a new assis- I he received effective tance of counsel. conclude writing majority I I for the would of counsel. Were tance trial on the circuit court's order for new reverse judgment first-degree and affirm the reckless conviction. Sufficiency First-Degree In- Reckless

I. of Evidence— if evidence is that, I conclude viewed light verdict, it is sufficient to favorable to the most first-degree injury, support a conviction beyond particular, find a reason- and, in is sufficient to disregard for hu- Miller showed utter able doubt that majority's my opinion recitation of the life. In man most favorable to the facts is not a view of the evidence testimony primarily Miller's on It relies on verdict. portions of his roommate's and direct examination testimony that are consistent his roommate's cousin's testimony. majority not examine Miller's The does with inconsistencies in the or testimony inconsistencies be- tween the trial and testimony prior statements, and it does not draw all reasonable inferences from the evi- dence in favor of the verdict. 68. I will focus on the

¶ events with beginning Miller's first call to 911 because I think a reasonable jury would view those as most I important. But first note examples evidence not by mentioned the major- ity opinion that could cause a reasonable jury to believe Miller, that at trial Russell Simonis, and John Simonis were overstating Nakai's aggressiveness and understat- ing their own in the part altercations to the leading up first 911 call. For example, John testified on cross- examination that he was awakened Miller by shaking him awake and yelling his name "[o]h, saying you can just mess him bit," with a little meaning that Miller was telling Nakai that Nakai could mess with John. Accord- ing John, is when Nakai said "I'm to kick going your ass"; he, John, but did not want to play along with it and said "[y]eah, go ahead. Kick I'm my ass. going back to sleep," Nakai left him alone. A reasonable jury could infer from this and other evidence that Miller knew that Nakai was extremely intoxicated and was egging on, Nakai at least the beginning. 69. Another that, example while Russell tes-

tified at trial that Nakai slapped him in bedroom, reasonable could find this less credible than the statement Russell gave soon after the event in which he did not mention being slapped, but said instead Nakai might grabbed have his wrist and it," tried "like twisting saying you "[w]ill listen to me when I'm talking you." John Although corroborated Russell's trial testimony, John also testified that his and Kesey's reaction was to at laugh the interaction. after Miller called occurred to what Turning his statements that, based on time, I note the first incident, Miller after officer soon investigating

to an hallway back to he went really angry when Nakai Russell, striking from away he Nakai pulled it easy to see how was surprised several times. Nakai, and, he and take control him to strike was for to do with Nakai's something had stated, that probably credit jury could A reasonable of alcohol. consumption testimony, trial than Miller's rather this statement Miller, recites, and could decide majority which hand. Nakai, had the upper Russell, agree and Russell 71. Both John ¶ and said to John off, get went taken his shirt having ass," and to kick his going We're out here. "[h]ey, get Nakai. kitchen, Miller was with where both went to kitchen into the and Russell came after John just It was to According the screwdriver. up picked that Nakai officer, at this the investigating to Miller's statements table and an island one side of a Nakai was on point on other side. three were kitchen and the other on cross-examination testimony Russell's According going said he was Nakai never testimony, and Miller's said, you Nakai "Do screwdriver. kill them with the said, you "[y]eah, I this?" what can do with know answered, "[y]eah, us," kill and Nakai probably could Miller all that at John, Russell, agreed that's right." of them with the lunge any at time did Nakai no them any of with attempt or to stab screwdriver motion with the Nakai's John described screwdriver. with his it from side to side ... "moving as screwdriver as his wrist moving Miller described Nakai full arm." stabbing made no or Nakai agreed side to side and from A inference with it. reasonable motions sharp, jerky verdict, is that of the evidence, drawn favor from this Nakai picked up screwdriver to defend himself against three other one people, of whom had said just were they to "kick going ass." his 72. A reasonable jury could also decide that it was evident to Miller that Nakai was having difficulty moving because he was so intoxicated. Evidence sup porting this reasonable inference is Miller's statement officer, to the referred into paragraph 5, and Russell's that in the testimony kitchen Nakai was stumbling, fell down a couple times, and used the table and counter for support.1 Russell told the investigating officer that Nakai was intoxicated "beyond oblivion." 73. Miller that, testified when Nakai picked up the screwdriver, Miller decided he was going get his from shotgun his Miller, John, bedroom. and Russell all agreed that Nakai did not stop Miller when he said he was going to the bathroom and left the kitchen. Miller told the investigating officer that no one was being threatened at that time. Miller looked back once when he was going down the hall to his bedroom and could see only Nakai, and only back, his not his whole body. Miller acknowledged that while he was in the bedroom getting his gun it loading with .12 gauge shells, he could not hear what was being said the kitchen, just noise. John testified that neither he nor Russell called to Miller for after Miller help left the kitchen. 74. Miller testified on

¶ that, cross-examination as he walked out of the bedroom with the gun loaded, he told Nakai "F" get to the out of his house and then he 1Russell was describing how moving Nakai was immedi- ately kitchen, after and, thus, Miller left the Miller would not precise have seen these However, movements. reasonable could infer that having Nakai was the difficulty same walking steadily and maintaining his balance before Miller left the kitchen and that Miller saw this. stopped moving. gun

pumped He he was still his while gun hallway Nakai; the at and leveled in the while still general in the same still that Nakai was he could see that he kitchen and had left the Miller area as when only anyone. lunging Nakai; he see He could at was not The inves- John were. Russell and where did know tigating location the from the that officer testified hallway view, Miller evidence, in his showed the where trigger, standing pulled Miller could the he when anyone in harm's kitchen was in the not see whether way. investigating According officer, Miller was to the away Nakai when feet from or seventeen about sixteen trigger. that pulled the officer Miller never told thought the he going he Nakai was because he shot Nakai him. stab get telling his out of than Nakai 75. Other any give agreed he did not Nakai

house, Miller trigger. pulling warning Miller estimated before telling Nakai seconds after he three or four that waited trigger. pulling get Miller of his house before out told the a firearm. John Nakai he had did not tell investigating Miller tell he did not hear officer that get shot, trial before the but at out of his house Nakai to "immediately say that and he did hear John said he did not Russell testified that, I heard the shot." after Immediately any warning before before the shot. hear looking at testified, Nakai was shot, Russell Nakai was looking anywhere else, John; he was not him and forgotten about Miller. he had investigating officer that he 76. Miller told hip think, I midsection, area, "fired towards bottom just pointed just it in it, kind of kind of... I didn't aim general agreed cross-examination He on area." gun pointed "mid area." Miller testified at Nakai's he agreed Nakai, he kill but he did not intend to great damage [him]."Although he intended to "cause Miller denied that he intended to shoot Nakai when he acknowledged bedroom, entered his he also that noth- ing changed had from the time he left the kitchen that caused him to decide to shoot Nakai. jury

¶ 77. A reasonable could conclude from the viewing evidence, above it in favor of the verdict, that any danger Miller knew he was immediate when he shot Nakai and neither were Russell, John and and person thought that no reasonable would have other- jury Awise. reasonable could conclude that Miller did just not tell Nakai to leave before the and, shot even if warning did, it was not intended as a and Miller it knew could not have functioned as one because the immediately

shot came after, and Miller knew Nakai quickly could not have moved because of his intoxica- testimony tion. Based on Russell's on where Nakai was looking, a reasonable could infer either that Miller looking knew Nakai him, was not at or that Miller did looking not care whether Nakai was at him not, or despite testimony contrary. Miller's to the A reasonable jury could determine that Miller was so frustrated and angry badly with Nakai that he wanted him to hurt primary this was his motivation.

¶ 78. The evidence of Miller's conduct immedi- ately favorably after he Nakai, shot viewed most to the supports According verdict, this determination. testimony, couple Russell's trial Nakai fell to the floor a being investigat- of seconds after shot. Russell told the ing officer that shot, when Nakai Miller came running shotgun down hall with the and screamed "[g]et my the fuck house," out of and "I'm sick of this you "[w]ill open although shit," door," at trial Russell said he did not remember that. Russell did getting remember that Nakai "I'm said out" and was lay could move trying floor,hut he on the move as he acknowledged very slowly Miller only Russell get door and roll grabbed him out the tried to Nakai and investigating According steps. him to the down Nakai, he went that, he shot after officer, Miller said drag push or him and tried to kicked to him and over although Miller denied him at trial house, of the out yelling Nakai that he stood over Miller did admit this. gun pointed get Nakai, at still out, with his at him to them. could still harm Nakai he was afraid because jury the inconsis- could resolve A79. reasonable to the accounts Miller's and Russell's between tencies investigating their trial hand, one and officer, on the choosing by testimony, to believe hand, on the other by other blood described the amount of former. Given given de- and other witnesses' Russell's and witnesses jury scriptions shot, a reasonable after he was of Nakai that Nakai to Miller that it was evident could believe seriously injured A reason- not a threat. and was kicking dragging jury Miller's could decide that able fear, as done out the house was not Nakai out of regard anger and without testified, but out of at that time could treatment of Nakai fact that such by already posed life threat to Nakai's exacerbate the just A reasonable inflicted. Miller had Miller treated evidence of how have found this could revealing shooting directly more after the Nakai 911, call to than the second true motivation Miller's dragged Nakai, and subsequent after he kicked Miller made which inquiry revealing than Miller's more right. going to be all Nakai was whether if evidence, I Because conclude beyond prove correctly evaluated, is sufficient disregard for Miller showed utter doubt that reasonable agree life, human I do not that Miller is entitled to a judgment acquittal first-degree injury- on the charge. First-Degree

II. Ineffective Assistance of Counsel— Injury Reckless Because I conclude that Miller is not en- acquittal first-degree injury

titled to an on the reckless charge, I address his claim that he is entitled to a new charge trial on this because he received ineffective Specifically, contends, assistance of counsel. he and the agreed, trial court that counsel was ineffective with respect to a lesser-included offense instruction and with respect given to the instruction on self-defense. Miller concluding also asserts that the circuit court erred in although performed deficiently that, conveying counsel in not pleading second-degree

to him the offer of injury, prejudiced reckless Miller was not because he accepted testified he would not I have offer. con- any clude trial counsel was not ineffective on of these grounds.

A. Lesser-included Offense ¶ 82. The lesser-included offense at issue is second-degree injury.2 hearing reckless At the Machner dispute there was no that Miller felt he had been justified shooting Nakai as he did in order to defend dispute second-degree There nois that reckless is a first-degree injury. lesser-included offense of reckless Both require proof causing great bodily harm, of reckless conduct but first-degree injury requires proof in addition of "cir- disregard which cumstances show utter for human life ... ." Cf. 940.23(l)(a) (2)(a) (1997-1998). para. Wis. with conveyed others, he this to trial himself and that agreed they counsel, that discussed and on theory. and defense of others Trial counsel self-defense very strong thought that he Miller had a testified undisputed facts, on how Miller defense based on the jury, persuasive- to the and on the would come across testimony Russell, John and with whom ness of the Trial counsel knew Miller tried counsel had met. planned post-graduate studies and did not want a felony conviction. Trial counsel believed that this was prison case" even if Miller were convicted of the not "a charged, he and trial two crimes with which prison trying risk of was worth counsel felt small felony. Miller testified that his avoid conviction for generally available to him and trial counsel was went acknowledged the defense him. Miller also over with reasonably im- that trial counsel would have had the going accept any- pression he, Miller, was not thing felony. him of a would convict testimony

¶ 83. The of Miller and his trial counsel conflict on the extent of discussions between them did on a lesser-included offense. The circuit court found that, if trial counsel ever discussed lesser-included general in Miller, manner, offenses with it was done a concept, Miller did not understand the and Miller did engage meaningful not in a discussion on the merits of all-or-nothing an verdict versus lesser-included of- any fenses. The circuit court also found that discussion regarding all-or-nothing compro- an verdict versus a general mised verdict was and without a full under- standing by Further, that, Miller. the court found had given time, Miller been the choice at the he would have requested an on submission of instruction the lesser- injury. second-degree included offense of reckless The court concluded that trial counsel was deficient because

772 he failed to discuss and obtain Miller's specifically rejection lesser-included offense instruc requesting in a situation in which a lesser-included offense tion here, not inconsistent with the self-defense defense — and the defense of others. The court also concluded that "it Miller prejudiced" by that was this deficient appears because one conviction on performance second-degree reckless would have been far less than a injury serious conviction on the two more serious felonies.3 that 84. The State contends trial counsel did not deficiently either dis- perform failing adequately cuss the an for option instruction second- requesting degree reckless or to make that injury failing request because it strategy was reasonable trial to request it. Miller trial counsel had a responds duty him ground discuss the with and that this is a option a determination of deficient performance separate distinct from counsel's an instruction request failure offense, which, contends, on the lesser-included was also deficient performance. I do not with Miller or the circuit agree

court failure to discuss the of a lesser- option included a defendant is a basis offense instruction with for a determination of deficient without performance an regard to whether or not instruction was requesting a reasonable trial More I do not strategy. specifically, with Miller's and the circuit court's agree reading Ambuehl, 343, 355-56, v. 2d 425 N.W.2d State Wis. apparently referring The trial court to Miller's testi- that, mony had convicted him of both lesser-included being second-degree offenses —both reckless —there injury. only second-degree could be one conviction for However, III, join, majority opinion in Section in which I has concluded that Miller was not entitled to a lesser-included battery aggravated charge. offense instruction on the 773 (Ct. 1988), App. Eckert, v. 203 2d State Wis. (Ct. 1996). App. 497, 509, 553 N.W.2d539 rejected ¶ 86. In Ambuehl we the defendant's deficiently performed failing claim that trial counsel request a lesser-included offense instruction or at to to discuss the matter with her at the close of least Ambuehl, 2d Trial evidence. 145 Wis. at 354-55. coun- sel discussed the instruction with her before trial and rejected again it; she counsel did not discuss it with her. that, Id. at 354. We stated that we "refuse to hold as always law, it is for to matter of unreasonable counsel presume pre-trial that the client's decision not to re- quest a lesser-included instruction will be the same rejected after all the evidence is in." Id. at 357. We each contending for it the defendant's reasons was unrea- presumption sonable for counsel to make that in her case. Id. at 355-58. language arguably 87. There is Ambuehl that

may adoption by be read as an this of the court commentary the ABA to Justice, Standards Criminal 4-5.2(a)(i) duty to the effect that counsel has a initially regarding confer with the client a lesser- belong included offense and that the decision should Ambuehl, the client. See 145 Wis. 2d at 355. Miller language. However, in Eckert, relies on this 203 Wis. 2d expressly rejected reading 508-09, at this Am- we buehl.

¶ 88. In Eckert the defendant contended that trial performed deficiently counsel because he failed to dis- cuss a him lesser-included offense with and failed to request rejecting the instruction. Id. at After argument Standard, based on Ambuehl and the ABA we principle referred to the well-established that there is right neither a constitutional nor a fundamental request a lesser-included offense instruction. Id. at 509. to decision whether request also stated that "the We complicated is a offense instruction a lesser-included For strategy." and trial Id. legal expertise involving one reasons, explained these we unwilling conclude that trial counsel's are to

[w]e possible specifically discuss with Eckert the failure to robbery and counsel's failure lesser-included offense of request a lesser-included offense instruction consti- to performance. tuted deficient

Rather, a defendant does not we conclude that where defense counsel has receive ineffective assistance general theory defense, the client the discussed with theory, trial general and when based on that counsel strategic request not to a lesser- makes decision inconsistent included instruction it would be because to, with, general theory of defense. or harmful the Id. at 509-10. defense, theory of based on 89. In Eckert that Eckert Eckert, with was

counsel's conversations in the at not armed participate not and did present was he that it would inconsis- robbery, and counsel testified for the instruction theory robbery this to ask tent with that was telling that "would be Eckert because he did not know there, even if he was there, but at "Under these circum- 508, Id. gun." about stated, that trial counsel stances," "we cannot hold we Eckert lesser- to discuss with required specifically conflict with included offense instruction would so to do under theory. To counsel require defense unnecessarily upon intrude these circumstances would the client's strategically manage ability trial counsel's at 510-11. defense." Id. out a "limited carving 90. Miller reads Eckert as with the rule must consult to the that counsel

exception words, [lesser-included offenses]." client on In other Eckert according Miller, acceptable holds it is only not consult when instruction would be "incon- with, to, sistent or harmful general theory See 510. I In we disagree. defense." id. at Eckert make rule; no general clear that there is we do not carve out an the exception but instead circumstances in identify to that case that led us conclude that counsel did not either in a perform failing to lesser- deficiently discuss offense an failing included or instruction on request that, does not if one. It follow the circumstances differ case, in is in performance another there deficient failing to consult with a client on a lesser-included offense instruction. 91. It is true that in we did Eckert not directly

¶ the address more fundamental of question whether an of claim ineffective assistance counsel rest solely could on the failure to discuss a lesser-included offense in- struction with a defendant regard without it whether strategy was a reasonable not to an request instruction. merged We and, effect, discussion of the two concluded why reasons we there was no duty to discuss such an instruction —defense counsel had discussed the of general theory defense and a offense lesser-included would have been inconsistent with or to that harmful defense —is the same reason it awas reasonable trial strategy. 92. To the extent Eckert open leaves when, ever, if be

question perfor there can deficient mance for failure to discuss a lesser-included offense instruction with a defendant independent of an assess ment of whether it is trial reasonable not to strategy I one, am not request persuaded by argument Miller's that we should do so. Because a defendant does not have a constitutional or fundamental an right in the deci and because Wisconsin we treat struction strategy, one of trial the critical issue is whether sion as requesting, requesting, or not a lesser-included offense strategy in trial the circum instruction a reasonable may particular it be of the case. While often stances options point this for counsel to discuss on advisable not —if defendant, even if counsel does with request not to a lesser-included of decision counsel's strategy in the is a reasonable trial fense instruction particular case—the defendant circumstances of the pro counsel. Miller received effective assistance of has authority proposition that no for the trial counsel vides performs discussing possibility

deficiently in not instruction with a defendant a lesser-included offense strategy request one, not to it is a reasonable trial when supporting proposition.4 logic I no and see basing I the flaw in determination think performance on failure to dis- trial counsel's deficient the de- a lesser-included offense instruction with cuss by the in is illustrated lack of coherence fendant prejudice Miller's prejudiced he discussion. Miller asserts was he have the court that would because circuit found requesting it had known given on this instruction he insisted option it that the court would have an and was probability a he would because there is reasonable the offense rather than been convicted on lesser have attorney does that discussion an suggesting 4 I am not the a requesting on of possibility his or her client the have with to evaluation instruction is irrelevant an lesser-included offense a attorney's request not one is the decision of whether if discussion strategy. example, trial For there is a reasonable one, may he or she does not want that the defendant insists attorney's of assessing in the the a factor reasonableness be See, Ambuehl, 145 e.g., State v. not one. request decision (Ct. 1988). 343, 357, App. 2d N.W.2d 425 649 Wis. greater However, offense. this the fact overlooks that Miller's trial counsel had a different of the view appropriate strategy and that decision Eckert, to make. Wis. Miller's See 2d at 509-10. At point recognizes in later his discussion Miller that it is ultimately request trial counsel's decision whether to argues instruction, lesser-included offense he that disagrees that, if there is a discussion and the defendant decision, trial with attorney. counsel's the defendant can fire his suggests entirely preju- But this an different analysis require prove it dice because would attorney attorney that he would have fired if his his disagreed and either would been have able to hire an attorney requested who have would instruction or represented have would himself. There is no evidence any happened (beyond this have would Miller's testimony that he have insisted on would the instruc- tion) speculative inquiry and the nature this problematic importantly, But, itself. more this line of inquiry seems to have little to with do whether Miller received effective assistance of counsel at trial. his

¶ 94. Because I conclude that Eckert neither nor by supports proposi- Ambuehl, as Eckert, clarified inadequately tion trial counsel here is deficient discussing option of a lesser-included offense in- Miller, I struction with turn to trial decision counsel's request not to a lesser-included instruction for second- degree injury. reckless I conclude the decision was a strategy reasonable trial in the circumstances this first-degree The case. difference between and second- degree requires is that the former additional element "under of circumstances which show disregard Compare utter human life." Wis. 940.23(l)(a) (2)(a) (1997-1998). para. Although with I preceding viewing in that, have concluded the section light verdict, most favorable the the evidence the element, I think it of this sufficient evidence there was my colleagues very question. and the Two of is a close the is not suffi- concluded evidence circuit court have it for trial counsel cient. I conclude was reasonable jury unlikely find this ele- it that the would consider beyond and, doubt, there- ment a reasonable satisfied likely acquitted fore, it that Miller would be to consider jury reject charge. Miller's defenses of on A could this of others and still decide self-defense and defense disregard proved the element the beyond had not utter State if hand, On the other a reasonable doubt. second-degree jury given an instruction on had been very injury, likely found that the it have reckless would recklessly causing great bodily harm were of elements beyond proved and Miller would doubt, reasonable charge only acquitted if lesser then been on this have jury in self-defense or defense he had acted found others. it think there Therefore, reasonable to was (either felony on a conviction

was a lesser risk second-degree first-degree reckless or injury) option of the lesser if did not have the keeping not to with Miller's desire This offense.5 felony although there was And, all. have a conviction at sentences for difference in maximum a substantial 5 analysis with what defense my view is consistent In this hearing. it To the extent at the Machner counsel articulated other extent counsel offered differs somewhat and persuasive, I note are less for his decision that reasons performance objectively is proper inquiry whether counsel's case and that counsel's in the circumstances this reasonable thinking dispositive. State v. her is not testimony on his or 648, 31-35, 138, 2d 630 App Wis. Kimbrough, ¶¶ 2001 WI N.W.2d 752. years

each —ten first-degree for reckless injury, Class C and felony, years five second-degree D injury, a Class dif felony6 significance that —the ference in this case was much diminished. The circuit court trial agreed with counsel that this was not a case, prison meaning that difference in sentences would be limited up year jail to months to and to length probation.

B. Jury Instructions on Self-Defense 96. The circuit court instructed on jury ¶ self-defense Wis using 805, JI — Criminal "Privilege: Self-Defense: Force Intended or Likely Cause Death or Bodily Harm ..." Great rather than Wis 801, "Privilege: Self-Defense: Force JI — Criminal Less Than That Likely to Cause Death or Great Bodily Harm: Crimes Involving Recklessness or Negli- ...." The gence circuit court concluded that trial coun- sel was deficient in failing object to Wis JI — Criminal 805 and failing request Wis JI — Criminal 801 and that this deficient performance may have prejudiced Miller. The State challenges ruling this on the ground of prejudice. absence of Assuming 97. without deciding defense

counsel performed deficiently in Wis requesting 801 and not to Wis objecting JI — Criminal JI — Criminal 805, I am not persuaded that there is a reasonable that, probability had the former instruction been given latter, instead of the the outcome charge on this would have been different. See v. Strickland Washington, 466 (1984). 668, U.S. 696 940.23(l)(a) 939.50(3)(c) Compare §§ Wis.

(1997-1998) 940.23(2)(a) 939.50(3)(d) (1997-1998). §§ with first-degree instructed on the The and advised charge reckless showed utter disre- [d]etermining whether the conduct life, consider all the factors you for should gard human following: relating include the to the conduct. These doing it; why he how doing; was was the defendant what was; danger how obvious the dangerous the conduct regard any for was; conduct showed the whether human life. in- Immediately following this 1250.

Wis JI — Criminal is elf-defense an "[s] was advised that jury struction the and the case," was explained, in the self-defense issue had to prove beyond the State jury was advised lawfully not in acting that Miller was reasonable doubt instructions on defense of Parallel self-defense. "[djefense is an by of others followed, preceded others in this issue case." Miller to between only The difference points 99. that, 801 is and Wis JI — Criminal given

the instruction "[sjelf-defense in is an issue the latter states that after whether case," deciding "[i]n it jury this advises reckless con- criminally conduct was the defendant's life, you human disregard duct which showed utter lawfully defendant acted consider whether should would Presumably language similar in self-defense." of others. concerning the defense also be included told it not Although expressly 100. was to self-defense relating consider the evidence should if Miller acted in determining and defense of others I a reasonable life, of human conclude disregard utter from the instruction given understand jury would consider- evidence as its part it was to consider this why he doing [and] the defendant was ation of "what doing it." Wis JI — Criminal Convey C. to Failure the State's to Plea Miller ¶ 101. The circuit court found that the State plea pleading made a offer that would involve Miller second-degree injury, but trial counsel did not convey the offer Miller because he believed pleading any charge. Although was not interested perfor- the circuit court determined this was deficient prejudice mance, it concluded there was no because probably pleaded Miller testified that he would not have guilty charge. or no contest to that

¶ 102. Miller asks that we either make a different finding accepted factual on whether Miller would have plea finding offer or remand for more fact this on point. I would decline to do either.7 finding

¶ 103. The circuit court's that Miller probably accepted plea would not have offer clearly erroneous: is what Miller testified. We 805.17(2). accept must therefore it. Wis. argument ¶ 104. Miller's for a remand is that he plea not did raise the issue of the offer in his motion because he first learned about the offer from his trial testimony hearing. counsel's at the Therefore, Machner testimony asserts, he the on the circumstances the plea incomplete response offer and his would have been if different he knew all the circumstances. Accord-

ing to the Miller, circuit court addressed the sua issue sponte. I conclude these circumstances do not warrant

7Apparently plea offer was that plead Miller would one count of second-degree reckless and the would State first-degree dismiss both the injury charge and the aggravated battery In charge. majority Section ¶ W reject opinion, we Miller's claim of ineffective assistance of ground counsel on respect aggravated battery this with to the charge. open options Miller, several There were

a remand. by represented testified counsel, once trial counsel During hearing plea Miller could offer. about it or asked for counsel about examined trial have hearing explore further. the issue of the continuance point he not the court was did know If Miller's going its issue until the court issued to address reason Miller could decision, is still no there written brought ask in the circuit court to a motion then have be taken on issue. evidence that further

Case Details

Case Name: State v. Miller

Court Name: Court of Appeals of Wisconsin

Date Published: Jul 2, 2009

Citation: 772 N.W.2d 188

Docket Number: 2007AP1052-CR

Court Abbreviation: Wis. Ct. App.