State v. Maltese Lavele Williams , 364 Wis. 2d 126 ( 2015 )

2015 WI 75SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1099-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Maltese Lavele Williams,
Defendant-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: July 10, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 21, 2015.
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jeffrey A. Wagner
JUSTICES:
CONCURRED: ABRAHAMSON, J., concurs. (Opinion Filed.)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs by John A.
Pray and the Frank J. Remington Center, University of Wisconsin
Law School, and oral argument by John A. Pray.
For the plaintiff-respondent, the cause was argued by
Daniel J. O’Brien, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.
2015 WI 75NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1099-CR
(L.C. No. 2013CF30)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUL 10, 2015
Maltese Lavele Williams,
Diane M. Fremgen
Defendant-Appellant. Clerk of Supreme Court
APPEAL from a judgment and order of the Circuit Court for
Milwaukee County, Jeffrey A. Wagner, Judge. Affirmed.
¶1 DAVID T. PROSSER, J. This case is before the court
on certification by the court of appeals, pursuant to Wis. Stat.
§ 809.61 (2011-12).1 The court of appeals certified the case
asking this court to clarify precedent related to erroneous jury
instructions in criminal trials.
1
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
No. 2014AP1099-CR
¶2 Maltese Lavele Williams (Williams) and two accomplices
attempted to rob Michael Parker (Parker) in Parker's home on the
evening of January 14, 2013. During the robbery, Parker and a
houseguest, Authur Robinson (Robinson), were shot and killed.
At trial, the jury was given an instruction indicating that they
could convict Williams of the felony murder of Robinson if the
defendants had attempted to rob Robinson and the attempted
robbery caused Robinson's death. However, the State presented
insufficient evidence at trial that the defendants had attempted
to rob Robinson. Instead, the State relied primarily on the
theory that the men attempted to rob Parker. The jury convicted
Williams of felony murder in Robinson's death even though they
found Williams not guilty of the attempted robbery of Robinson.2
¶3 The parties do not dispute that a valid theory of
felony murder for the death of Robinson would be that Williams,
as party to a crime, caused the death of Robinson while engaged
in an attempted armed robbery of Parker. However, Williams
argues that the jury was obligated to follow the instructions
given to them on felony murder, and that the evidence presented
was insufficient for the jury to convict him under the
instructions given. The State counters that any error in the
jury instructions only increased the burden on the State, and
that it is clear that had the jury been given the proper
2
Milwaukee County Circuit Judge Jeffrey A. Wagner presided
at the trial.
2
No. 2014AP1099-CR
instruction, the jury still would have found Williams guilty of
felony murder.
¶4 We are presented with two seemingly conflicting
precedents that address the question at issue. The first case
is State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997), in
which we held that a defendant cannot be convicted on a theory
of a crime not presented to a jury. The second case is State v.
Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, in which we
upheld the conviction of a defendant even though the jury was
given an instruction that inaccurately added an element——not
required by the statute——to the crime of fleeing or evading a
police officer.
¶5 In certifying this case for our review, the court of
appeals noted that "[e]ach of these three cases, Wulff, Beamon,
and now Williams, appears to present a subtle variation of the
same issue," and observed that it was "uncertain whether
Williams is more like Wulff or more like Beamon." State v.
Williams, No. 2014AP1099-CR, unpublished certification (Wis. Ct.
App. Nov. 6, 2014). The court of appeals also noted that two
other issues on appeal——ineffective assistance of counsel claims
related to trial counsel's decision not to strike a juror and
not to object to the admission of crime scene photographs——
involved the application of settled law.
¶6 We hold that a jury instruction may be considered
erroneous when it describes a theory of criminal culpability
that was not presented to the jury or it omits a valid theory of
criminal culpability that was presented to the jury.
3
No. 2014AP1099-CR
Convictions under erroneous jury instructions are subject to
harmless error review. When an erroneous instruction has been
given but it is clear beyond a reasonable doubt that the jury
would have convicted the defendant had the proper instruction
been given, the jury verdict can be affirmed.
¶7 Here, based on the strength of the evidence presented
and the statutory elements that the jury found, it is clear
beyond a reasonable doubt that the jury still would have
convicted Williams of felony murder had the jury instruction
accurately reflected the State's theory of the crime. We
therefore hold that the defect in the jury instructions was
harmless error. Furthermore, we conclude that Williams was not
prejudiced by his trial counsel's decision not to strike a juror
and not to object to the admission of crime scene photographs.
Accordingly, we affirm the circuit court's judgment of
conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶8 In the early morning hours of January 15, 2013,
Milwaukee police responded to a double homicide at a house on
Milwaukee's south side. The investigators later learned that
the killings occurred during a failed drug heist. The first
homicide victim, Michael Parker, was found dead in the snow
across the street from his home. The second victim, Authur
Robinson, was found dead on the floor of Parker's kitchen. Both
victims died from bullet wounds.
¶9 Police recovered a cell phone at the scene of the
murders and traced the phone to an individual named Dajuan
4
No. 2014AP1099-CR
Collins. Collins, in turn, led the police to Williams, who was
arrested around 3:00 p.m. on January 21, 2013.
¶10 Milwaukee Police Detective Kent Corbett interviewed
Williams the next day at the Milwaukee Police Department.
Williams first denied knowing Parker or Collins, but eventually
admitted to knowing both. Williams also admitted that he had
arranged the drug deal and was at the scene when the homicides
occurred. He said that Collins had killed Parker.
¶11 Williams explained that the events leading up to the
killings began when Collins called Williams seeking an ounce of
marijuana. Williams knew that Parker sold similar quantities,
so Williams arranged a deal. Some time later, Williams met up
with Collins and a third individual, Maurice Dixon. The three
of them then walked to Parker's home.
¶12 When the trio arrived at Parker's home, Williams and
Collins went inside, while Dixon remained outside. Williams
noticed Robinson sleeping in the living room. Parker called
Williams into the kitchen, and as Parker and Williams were
discussing Parker's marijuana, Collins burst into the room
pointing a gun and demanding the marijuana.
¶13 Parker attempted to flee and Collins opened fire.
Collins fired one shot in the kitchen and then followed Parker
into the living room where Collins fired several additional
shots.
¶14 In spite of being shot three times, Parker managed to
escape through the front door of his home. After getting
5
No. 2014AP1099-CR
outside, however, Parker ran across the street, collapsed in the
snow and died.
¶15 Williams explained to Detective Corbett that he
remained in the kitchen until after the initial fusillade.
Williams then returned to the living room and saw Collins and
Robinson fighting for control of the gun. Williams said that he
exited the house through the front door while Collins and
Robinson continued to fight.
¶16 In the initial information filed February 5, 2013,
after a preliminary examination, Williams was charged with two
counts of felony murder, with an attempt to commit armed robbery
as party to a crime as the underlying offense.3 An amended
information, filed March 13, 2013, amended the charges to two
counts of first-degree intentional homicide as party to a crime,
and two counts of attempted robbery as party to a crime.4
Following some preliminary motions, jury selection for Williams'
trial began April 22, 2013.5
¶17 During jury selection, prospective jurors were
informed that they might "have to look at photographs from the
scene that have blood on them, that have people deceased, people
3
Contrary to Wis. Stat. §§ 940.03, 943.32(2), 939.32, and
939.05.
4
Contrary to Wis. Stat. §§ 940.01(1)(a), 943.32(1)(a) and
(2), 939.50(3)(a) and (c), 939.05, and 939.32.
5
Throughout the pretrial process, Williams and Dixon
appeared together as co-defendants. However, Dixon was
eventually tried separately.
6
No. 2014AP1099-CR
with gunshot wounds, the victims in this case. You may have to
look at other photographs." When asked whether viewing this
type of evidence would cause problems for anyone, several jurors
expressed reservations about their capacity to examine such
evidence. Juror No. 21 explained that her children were the
source of her reservations about dealing with that type of
evidence. In response to a follow-up question, she reiterated
her doubts, stating, "I don't know if I can look at the
pictures." Juror No. 6 expressed similar reservations, stating,
"As far as the pictures, I can't do that." Juror No. 12 said:
"It would be totally gross, grossed out in that situation."
Jurors Nos. 8 and 9 said they shared these concerns.
¶18 A short time later, the prospective jurors were again
asked whether any of them "would not be able to listen to all
the facts, to hear the testimony and weigh the evidence and make
a decision in this case? Anyone feel they would not be able to
do that?" Despite their reservations about seeing the
photographs, none of the jurors raised their hands.
¶19 Still, Williams' attorney returned to the photograph
issue. Juror No. 6 said the photos would make her uncomfortable
and would probably be something she'd think about all day.
Juror No. 6 denied that the photos would anger her, but agreed
that she would find them difficult to view. Juror No. 12 said
he felt the same as Juror No. 6.
¶20 When asked if the photographs might affect
deliberations, Juror No. 12 answered: "Really hard to say. I
don't know if I would have a bias or not." This prompted the
7
No. 2014AP1099-CR
court to interject with the comment that "everybody would agree
they're not pleasant pictures to look at . . . . The question
is whether or not it would impair your ability to come to [a]
fair and just result in the matter after listening to the
testimony." Juror No. 12 responded that he thought he would be
a little biased. Williams' attorney immediately sought
clarification of Juror No. 12's comment. After a brief
exchange, Juror No. 12 agreed that what he was trying to convey
was that looking at the pictures would make him feel sympathy
for the victims.
¶21 Although potential Jurors 6, 8, 9, and 21, who
expressed concerns about the photographs, were not selected for
the trial, Juror No. 12 was seated, and defense counsel never
moved to strike the juror for cause or by a peremptory strike.
¶22 Williams' trial lasted a total of four days, during
which the jury heard testimony from two police officers, a
lieutenant, five detectives, forensic investigators, a DNA
analyst, Parker's neighbor, and the medical examiner, Dr. Brian
Linert, who conducted autopsies on the victims. Dr. Linert
testified that Parker had been struck by three bullets. Dr.
Linert also testified that Robinson died of a penetrating
gunshot wound to the chest. The State entered several exhibits
into evidence during Dr. Linert's testimony, including a number
of autopsy photographs depicting Parker's wounds, which the
State used to clarify the nature, extent and location of
Parker's wounds. Similar exhibits were entered relating to
Robinson, including the autopsy report, a photograph of the
8
No. 2014AP1099-CR
bullet recovered from Robinson's chest, another showing the
entrance wound of the fatal shot, and several depicting blunt
force injuries possibly consistent with an altercation.
¶23 On the last day of trial, prior to closing arguments,
the parties and the court discussed jury instructions. Although
Williams was charged with first-degree intentional homicide, the
jury instructions also contemplated a number of lesser included
offenses, including first-degree reckless homicide and felony
murder. Williams' counsel observed, as proposed instructions
were being discussed, that "the way this case has been charged
and now in combination with the lesser included
offenses, . . . has created a legal Rubik's Cube that I'm not
sure [Judge Learned Hand] could untangle."
¶24 Prior to closing arguments, the court reviewed the
instructions with the jury. The court explained that if the
jury did not find Williams guilty of first-degree intentional or
reckless homicide, they would need to decide whether Williams
was guilty of felony murder.
¶25 The court instructed the jury that "Felony murder
requires the state to prove the defendant caused the death of
the victim while committing the crime of attempted armed
robbery, party to a crime."
¶26 Later the court again said that felony murder is
committed by "one who causes the death of another human being
while attempting to commit the crime of armed robbery, party to
a crime."
9
No. 2014AP1099-CR
¶27 The jury was told that to find Williams guilty of
felony murder, the State must prove the following beyond a
reasonable doubt "that the defendant attempted to commit the
crime of armed robbery as a party to a crime, that the death of
Michael Parker in Count 1 and Authur Robinson in Count 2 was
caused by the attempt to commit armed robbery, party to a
crime."
¶28 Then the court added: "The first element of felony
murder requires that the defendant attempted to commit the crime
of armed robbery, party to a crime."
The crime of armed robbery is committed by one
who with intent to steal and by the use of or threaten
to use a dangerous weapon, takes property from the
presence of the owner by using force against the
person of the owner with intent to overcome physical
resistance or physical power to resist the taking or
carrying away of that property.
The elements of the crime that the state must
prove are:
That Michael Parker, Count 1, and Authur
Robinson, Count 2, was the owner of the property.
Owner means a person who has possession of the
property. The defendant or a person with whom the
defendant was acting as party to a crime, took
property from the person of Michael Parker, Count 1,
and Authur Robinson, Count 2, the defendant or person
with whom the defendant was acting as a party to a
crime took the property with intent to steal.
(Emphasis added.)
¶29 Both sides then gave their closing arguments. During
the State's closing argument, the prosecutor discussed the
felony murder charge:
10
No. 2014AP1099-CR
That the defendant is involved in an attempted
armed robbery. And that in the course of that
attempted armed robbery, a death is caused. And
that's felony murder.
So as to Mr. Parker, it's clearly felony murder.
It's his home. He's [nicknamed] Old School. The
defendant knows him. He's going to rob him.
As to the attempted armed robbery to Mr.
Robinson, he is a member of that household with Mr.
Parker, as the law indicates. He is in control of
that property, the marijuana as well. And he attempts
to prevent the taking of that marijuana from the
premises. So he is a victim of the attempted armed
robbery as well.
But more importantly, whether he's the victim or
Parker's the victim, he is killed in the course of the
armed robbery. So he is a victim of the felony murder
as well.
(Emphasis added.)
¶30 During Williams' closing argument, defense counsel
emphasized the lack of evidence as to an attempted armed robbery
of Robinson, and the effect that had on the homicide analysis:
Now, the analysis for Mr. Robinson is nearly
identical except for the fact there's an added lack of
evidence when it comes to Robinson.
There was no evidence that he was the owner of
any of the property in that house. There was no
evidence that he was an employee of Parker; in other
words, like the store clerk.
There was no evidence that any demand was made of
Mr. Robinson for anything. And there was no evidence
that any force was used or attempted to be used to get
him to give up his property.
So in addition to there being no evidence that
Williams knew a robbery was going to take place, there
isn't even evidence that an attempted armed robbery
occurred as to Robinson.
11
No. 2014AP1099-CR
So when you get to that, the answer is no and
your work is done. You find Mr. Williams not guilty
of attempted armed robbery of Robinson and not guilty
of any level of the homicides we've discussed.
(Emphasis added.)
¶31 During the State's rebuttal, the prosecutor again
returned to felony murder:
The last thing [defense counsel] said to you was
that you have to find that, in this case, the
defendant attempted, as a party to a crime, to rob
Authur Robinson in order to find him guilty of the
death of Authur Robinson under a felony murder. That
is not true. That is simply a blatant misstatement of
the law.
Felony murder is a special type of murder under
the law. And it's typically used in just this type of
situation.
Someone goes into a bank, for instance, a store.
In this case, a drug house. The intent is to rob the
bank, or the store, or the drug house. And the state
has to show that there was a robbery or an attempted
armed robbery in this case taking place.
But doesn't have to show that Authur Robinson was
a victim. Because if in the course of this armed
robbery anyone is killed, whether it be the bank
clerk, the bank's security guard, an accomplice, a kid
walking down the street, if anybody, whether it's
Authur Robinson, or anyone else was killed while an
armed robbery of [Michael] Parker is taking place,
that is felony murder.
¶32 Following deliberations, the jury found Williams
guilty of two counts of felony murder. The jury also returned
verdicts for the two counts of attempted armed robbery, despite
having been instructed not to return those verdicts if they
found Williams guilty of felony murder. The jury found Williams
12
No. 2014AP1099-CR
guilty of the attempted armed robbery of Parker, and not guilty
of the attempted armed robbery of Robinson.
¶33 Williams appealed, arguing that there was insufficient
evidence for a finding of guilt as to the felony murder of
Robinson and that his trial counsel was ineffective. The court
of appeals certified the case for our review, and we granted
review on December 18, 2014.
II. STANDARD OF REVIEW
¶34 We first address whether there was sufficient evidence
to convict Williams of the felony murder of Robinson.
Generally, we give significant deference to jury verdicts in
criminal cases. However, "[w]here jury instructions do not
accurately state the controlling law, we will examine the
erroneous instructions under the standard for harmless error,
which presents a question of law for our independent review."
Beamon, 347 Wis. 2d 559, ¶19 (citing State v. Harvey, 2002 WI
93, ¶18, 254 Wis. 2d 442, 647 N.W.2d 189). In determining
whether an error was harmless, we will not overturn the jury
verdict "unless the evidence, viewed most favorably to
sustaining the conviction, 'is so insufficient in probative
value and force that it can be said as a matter of law that no
trier of fact, acting reasonably, could have found guilt beyond
a reasonable doubt.'" Id., ¶21 (quoting State v. Poellinger,
153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990)).
¶35 We also address whether Williams received ineffective
assistance from his trial counsel. Claims of ineffective
assistance of counsel are mixed questions of fact and law.
13
No. 2014AP1099-CR
State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665
N.W.2d 305. We uphold the circuit court's findings of fact——
including findings about trial counsel's conduct and strategy——
unless those findings are clearly erroneous. Id. Whether trial
counsel's performance unconstitutionally deprived the defendant
of the right to counsel is a question of law we review de novo.
Id.III. DISCUSSION
¶36 Our discussion proceeds in two main parts. First, we
address the jury instructions and the question of whether the
evidence presented was sufficient to sustain a conviction for
the felony murder of Authur Robinson. Second, we address
Williams' claims that his trial counsel's performance
unconstitutionally deprived him of the right to counsel.
A. Sufficiency of Evidence
¶37 We begin by considering whether the evidence presented
to the jury was sufficient to sustain conviction for the second
count of felony murder. This involves an examination of the
jury instructions and their relationship to the crime charged.
We start with Wulff and Beamon, the controlling cases.
i. Wulff and Beamon
¶38 This court decided Wulff in 1997. The defendant,
Brian C. Wulff, was charged with attempted second-degree sexual
assault following an incident that occurred in La Crosse in the
early morning hours of September 17, 1993. Wulff and the
victim, C.D., had encountered each other at a bar that evening.
14
No. 2014AP1099-CR
After C.D. became separated from her friends, Wulff agreed to
walk her home. Wulff, 207 Wis. 2d at 145-46.
¶39 According to C.D., she agreed to let Wulff stay at her
apartment for the night if Wulff slept on the couch. C.D.
testified that she fell asleep in her bedroom fully clothed.
However, at some point in the night, she awoke completely naked
with Wulff on top of her attempting to force his erect penis
into her mouth. C.D. screamed, and Wulff collected his clothing
and left. C.D. discovered that her tampon had been removed but
she had no memory of how. Id. at 146.
¶40 C.D. was examined at the hospital. Cervical, oral,
and anal swabs revealed that no semen was present, and no semen
was found on the tampon that had been removed. Combings taken
from C.D. did not include any of Wulff's hair, and combings
taken from Wulff did not include any of C.D.'s hair. Id. at
146-47.
¶41 Wulff was charged with attempted second-degree sexual
assault in an information that used the precise language of the
statute. The information stated that Wulff had attempted
"sexual contact or sexual intercourse with a person who the
defendant knows is unconscious." Id. at 148. The relevant
statute defined "sexual intercourse" as including "[vulvar
penetration] as well as . . . fellatio, or . . . any other
intrusion, however slight, of any part of a person's
body . . . into the genital or anal opening either by the
defendant or upon the defendant's instruction." Id. (quoting
Wis. Stat. § 940.225(5)(c) (1993-94)). In its closing argument,
15
No. 2014AP1099-CR
the State presented theories of attempted sexual contact,
attempted sexual intercourse by fellatio, and attempted sexual
intercourse by vulvar penetration. However, when the jury was
instructed on the charge, the court's instruction omitted
fellatio as a possible avenue for finding criminal liability.6
Despite this omission, the jury found Wulff guilty. Id. at 148-
49.
¶42 Wulff appealed, contending that there was no evidence
that he had attempted sexual intercourse with C.D. as defined in
the jury instructions. This court observed that in Chiarella v.
United States, 445 U.S. 222, 236 (1980), the Supreme Court
6
Specifically, the jury instruction given was as follows:
Take the law as it is given in the jury's
instructions and apply the law to the facts in the
case which are properly proven by the evidence.
Consider only the evidence received during this trial
and the law as given to you by these instructions and
from these alone, guided by your soundest judgment,
reach your verdict.
The crime of second degree sexual assault is
committed by:
A person who has sexual intercourse with a person
the defendant knows is unconscious.
The first element requires that the defendant had
sexual intercourse with [C.D.]
"Sexual intercourse" means any intrusion, however
slight, by any part of a person's body or of any
object, into the genital or anal opening of another.
Emission of semen is not required.
State v. Wulff, 207 Wis. 2d 143, 148, 557 N.W.2d 813 (1997).
16
No. 2014AP1099-CR
stated "we cannot affirm a criminal conviction on the basis of a
theory not presented to the jury." Thus, although the State had
provided sufficient evidence to sustain a jury verdict on the
theory of attempted fellatio, this court reversed the conviction
because the theory of attempted fellatio had not been given as a
part of the jury instructions. Wulff, 207 Wis. 2d at 154.
¶43 In 2013 this court revisited the issue of faulty jury
instructions in Beamon. In the early morning hours of November
19, 2007, Racine police officers were involved in the pursuit of
a vehicle driven by Courtney C. Beamon. Id., ¶¶5-6, 11. While
being pursued by a police car with its emergency lights and
siren activated, Beamon's vehicle reached speeds of 45-50 miles
per hour on city streets without the headlights activated. Id.,
¶7. Shortly after driving through an intersection controlled by
a four-way stop sign without stopping or slowing down, Beamon
rolled out of the vehicle with the vehicle still in motion.
Id., ¶¶8-9. The vehicle ran over Beamon's legs and collided
with a parked car; but Beamon fled on foot before being
apprehended after a lengthy chase. Id., ¶¶9-10.
¶44 Beamon was charged with multiple counts, including
"Vehicle Operator Flee/Elude Officer, in violation of Wis. Stat.
§ 346.04(3)" (2007-08). Id., ¶11. The information stated in
relation to the charge:
On or about 11–19–2007 . . . [defendant Beamon
did] unlawfully and feloniously, as the operator of a
vehicle, after having received a visual or audible
signal from a traffic officer, or marked police
vehicle, knowingly flee or attempt to elude any
traffic officer by willful or wanton disregard of such
17
No. 2014AP1099-CR
signal so as to interfere with or endanger the
operation of the police vehicle, or the traffic
officer or other vehicles or pedestrians, or did
increase the speed of the vehicle or extinguish the
lights of the vehicle in an attempt to elude or
flee . . . .
Id. (alterations in original). This information closely tracked
the language of the statute. See Wis. Stat. § 346.04(3) (2007-
08).
¶45 However, the jury instructions did not follow the
information or the statute. Instead, the jury instructions
stated that a person violates the statute "by willful disregard
of [a police emergency] signal so as to interfere with or
endanger the traffic officer by increasing the speed of the
vehicle to flee." Id., ¶15 (emphasis added).
¶46 Missing from the jury instruction was the key word
"or" before the clause "by increasing the speed of the vehicle."7
See Wis. Stat. § 346.04(3) (2007-08). As a result, the jury
instruction appeared to require that the defendant be found to
have interfered with or endangered the officer by increasing the
speed of the vehicle. The State never presented evidence to the
jury that Beamon accelerated his vehicle. Nevertheless, the
jury convicted him of the charge.
¶47 This court affirmed the conviction. Beamon, 347
Wis. 2d 559, ¶4. First, we noted that it is inappropriate to
7
A person could also violate the law by extinguishing the
lights on the vehicle in an attempt to flee; however, that seems
not to have been an issue in the case because Beamon apparently
never turned the vehicle's lights on. See State v. Beamon, 2013
WI 47, ¶6, 347 Wis. 2d 559, 830 N.W.2d 681.
18
No. 2014AP1099-CR
measure the sufficiency of evidence against a jury instruction
that provides an erroneous statement of the law, as "doing so
would, in effect, allow the parties and the circuit court in
that case to define an ad hoc, common law crime." Id., ¶23.
Such a possibility would violate the principle of Wisconsin law
that crimes are defined only by the legislature. Id. (citing
Wis. Stat. §§ 939.10, 939.12).
¶48 Second, we acknowledged that faulty jury instructions
are subject to harmless error review. Id., ¶24 (citing Hedgpeth
v. Pulido, 555 U.S. 57, 61 (2008); Neder v. United States, 527
U.S. 1, 11 (1999)). Harmless error review applies both to jury
instructions that have omissions and to jury instructions that
place an additional burden on the State. Id., ¶¶24-25.
"Therefore, where a jury instruction erroneously states the
applicable statute, we must determine whether, under the
totality of the circumstances, the erroneous instruction
constituted harmless error." Id., ¶27 (citing Harvey, 254
Wis. 2d 442, ¶46).
¶49 Applying these principles, the court determined that
the jury instruction given on fleeing or evading an officer was
erroneous in that it "combined two alternative methods of
proving the second requirement of the offense," but that the
error was harmless. Id., ¶¶35, 37. We concluded that the error
was harmless because it was "clear beyond a reasonable doubt
that the jury would have convicted Beamon" had the jury
instruction been correct. Id., ¶37.
19
No. 2014AP1099-CR
¶50 The court also took care to distinguish Wulff. We
identified two significant ways in which Beamon's case was
different. We noted that in Wulff, the jury was given an
accurate instruction that merely omitted a possible avenue for
finding the defendant guilty——and all of the evidence presented
related to that omitted avenue. Id., ¶44. We also explained
that Wulff predated the court's adoption of the harmless error
test in Harvey, and thus did not consider harmless error. Id.,
¶46.
ii. Clarification of the Rule
¶51 With this background in mind, we turn to the rule to
be gleaned from our prior case law on the subject of sufficiency
of evidence and erroneous jury instructions. First, we
reiterate that errant jury instructions are subject to harmless
error analysis. See Hedgpeth, 555 U.S. at 61; Neder, 527 U.S.
at 11; Beamon, 347 Wis. 2d 559, ¶¶24-25; Harvey, 254
Wis. 2d 442, ¶47. See also Wis. Stat. § 805.18. This includes
errors that omit an element, cf. State v. Smith, 2012 WI 91,
¶¶60-63, 342 Wis. 2d 710, 817 N.W.2d 410, as well as errors that
create requirements beyond the statute. Beamon, 347
Wis. 2d 559, ¶25. See also State v. Zelenka, 130 Wis. 2d 34,
48-49, 387 N.W.2d 55 (1986); State v. Courtney, 74 Wis. 2d 705,
715-16, 247 N.W.2d 714 (1976).
¶52 In addition to having precedential support, this
holding represents sound policy. As this court noted in Wulff,
a criminal defendant whose conviction is overturned due to
insufficient evidence cannot be retried for that crime. Wulff,
20
No. 2014AP1099-CR
207 Wis. 2d at 153. This all-or-nothing proposition would yield
extraordinary results if appellate courts could not review even
simple scriveners' errors in jury instructions for harmlessness.
We do not think that the United States and Wisconsin
Constitutions require that criminals go free simply because of
typos. A more reasonable approach is available.
¶53 The application of harmless error analysis to jury
instructions in sufficiency-of-evidence cases asks two basic
questions. First, was the jury instruction erroneous? Second,
is it clear beyond a reasonable doubt that the jury still would
have convicted the defendant had the correct instruction been
provided?
¶54 In Beamon, we identified one way in which a jury
instruction can be erroneous: "a jury instruction that does not
accurately state the statutory requirements for the crime
charged constitutes an erroneous statement of the law." Beamon,
347 Wis. 2d 559, ¶24. However, it would oversimplify the law to
hold that a jury instruction for a crime is erroneous only if
the instruction omits an element or includes an extra element.
¶55 The statutory elements of some crimes may be highly
context-specific. See id., ¶55 (Bradley, J., dissenting)
("[C]ourts throughout this state regularly give jury
instructions that contain factual theories of prosecution.").
If the State pursues charges on one theory for a crime, it
cannot be said that a jury instruction is erroneous if it omits
theories of the crime that were not presented to the jury. This
is particularly true with crimes such as felony murder, for
21
No. 2014AP1099-CR
which there are a number of possible underlying crimes.8 For
example, a jury instruction in a felony murder case involving an
armed robbery does not need to inform the jury that felony
murder can occur during the course of a sexual assault.
¶56 On the other hand, we think it is apparent that jury
instructions can be considered erroneous if they instruct the
jury on a theory of the crime that was not presented to the
jury.
¶57 In much the same way, jury instructions may be
erroneous if they fail to instruct the jury on the theory of the
crime that was presented to the jury during trial. See Manning
v. Kentucky, 23 S.W.3d 610, 614 (Ky. 2000) ("A trial court is
required to instruct on every theory of the case reasonably
deducible from the evidence."). The jury instructions in Wulff
are an example of this type of error. In a sense, these jury
instructions are erroneous because they do not "accurately state
the statutory requirements for the crime charged" as applicable
to the facts presented. Beamon, 347 Wis. 2d 559, ¶24. This
concept is a mere variant of the established principles
discussed above.
8
"Whoever causes the death of another human being while
committing or attempting to commit a crime specified in s.
940.19, 940.195, 940.20, 940.201, 940.203, 940.225 (1) or (2)
(a), 940.30, 940.31, 943.02, 943.10 (2), 943.23 (1g), or 943.32
(2)" is guilty of felony murder. Wis. Stat. § 940.03. This
list of crimes includes battery (§ 940.19), sexual assault
(§ 940.225), arson (§ 943.02), and robbery (§ 943.32).
22
No. 2014AP1099-CR
¶58 In concluding that erroneous jury instructions are
subject to harmless error analysis, we do not mean to discount
the vital importance of correct instructions to the
administration of justice. The State has the burden of
developing and presenting a theory of the crime to the jury.
State v. Velez, 224 Wis. 2d 1, 15-16, 589 N.W.2d 9 (1999). The
State cannot second-guess its theory or theories after trial,
Chiarella, 445 U.S. at 236, and jury instructions must be
expected to control jurors' deliberations.
¶59 In any event, not every erroneous jury instruction is
harmless, so we turn now to how some erroneous instructions may
be considered harmless. To affirm a conviction based on an
erroneous instruction, a court must be convinced beyond a
reasonable doubt that the jury still would have convicted the
defendant of the charge had the correct jury instruction been
provided. See Beamon, 347 Wis. 2d 559, ¶4.
¶60 Simplifying Wulff and Beamon provides illustrations of
how this concept works in practice. In Wulff, the defendant was
charged with a crime that had as its elements A or B or C.9 The
9
Under the relevant statute:
"Sexual intercourse" includes the meaning
assigned under sec. 939.22(36) ["A"] as well as
cunnilingus, fellatio, or anal intercourse between
persons ["B"] or any other intrusion, however slight,
of any part of a person's body or of any object into
the genital or anal opening either by the defendant or
upon the defendant's instruction ["C"].
Wis. Stat. § 940.225(5)(c) (1993-94).
23
No. 2014AP1099-CR
State presented evidence that Wulff had done B. The jury was
instructed that they could convict Wulff if he had done C, and
the jury convicted him. The conviction was reversed because the
jury's verdict that Wulff had done C was not sufficient to
demonstrate, beyond a reasonable doubt, that the jury would have
concluded that Wulff had done B.
¶61 In Beamon, the defendant also was charged with a crime
that had as its elements A or B or C.10 The jury was presented
only with evidence that Beamon had done A. However, unlike in
Wulff, the jury in Beamon was instructed that they could convict
Beamon if he had done both A and B. The jury convicted Beamon,
and the conviction was affirmed because the jury's verdict that
Beamon had done both A and B was sufficient for this court to be
certain that the jury would have concluded that Beamon had done
A.
¶62 Thus, when an erroneous jury instruction raises the
State's burden by adding an element not necessary for
10
Under the relevant statute:
No operator of a vehicle, after having received a
visual or audible signal from a traffic officer, or
marked police vehicle, shall knowingly flee or attempt
to elude any traffic officer by willful or wanton
disregard of such signal so as to interfere with or
endanger the operation of the police vehicle, or the
traffic officer or other vehicles or pedestrians
["A"], nor shall the operator increase the speed of
the operator's vehicle ["B"] or extinguish the lights
of the vehicle ["C"] in an attempt to elude or flee.
Wis. Stat. § 346.04(3) (2007-08).
24
No. 2014AP1099-CR
conviction, and the jury convicts, the jury verdict will often
sufficiently show that the jury would have convicted if
instructed on the proper elements. However, if an erroneous
jury instruction omits an element or instructs on a different
theory, it will often be difficult to surmise what the jury
would have done if confronted with a proper instruction, even if
the jury convicted under the erroneous instruction. In other
words, in the latter situation it will be more difficult to
demonstrate that the error in the jury instruction was harmless.
¶63 In sum, what constitutes an "erroneous" jury
instruction goes beyond simple misstatements of statutory
elements. Even instructions that provide a correct statement of
the statutory elements of one way to commit a crime may be
erroneous in the context of a given case, as, for example, under
facts similar to those in Wulff.11 These erroneous instructions
are subject to harmless error review, and a conviction based on
an erroneous instruction can be upheld if the court is
convinced, beyond a reasonable doubt, that the jury would have
convicted the defendant if a proper instruction——an instruction
11
Wulff was not analyzed under the harmless error framework
because it predated this court's adoption of the harmless error
analysis in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647
N.W.2d 189. If this court were to decide Wulff today, it would
do so under Harvey's harmless error framework.
25
No. 2014AP1099-CR
that is consistent with both the relevant statute and the
factual theory presented——had been provided to the jury.12
iii. Application
¶64 Having clarified the legal standard for sufficiency-
of-evidence claims in cases involving erroneous jury
instructions, we now examine the case at hand.
¶65 The evidence relevant to this appeal that the State
presented at trial focused on establishing three facts: (1)
Williams participated in an attempted armed robbery of Parker,
(2) the attempted armed robbery caused the death of Parker, and
(3) the attempted armed robbery caused the death of Robinson.
Williams does not contend that the evidence presented at trial
is insufficient to sustain a finding of these three facts.
Williams also does not dispute that these three facts are
sufficient for a finding of guilt for the felony murder of both
Parker and Robinson.13 Instead, Williams argues that he is
entitled to acquittal on the felony murder charge related to
Robinson's death because the jury instruction stated that the
predicate offense for that charge was the attempted robbery of
12
To be clear, this is not a new harmless error test.
Instead, we merely describe how the harmless error test adopted
in Harvey applies in the context of erroneous jury instructions.
13
See State v. Rivera, 184 Wis. 2d 485, 487-90, 516
N.W.2d 391 (1994).
26
No. 2014AP1099-CR
Robinson himself and the State did not present sufficient
evidence of such an attempt.14
¶66 Williams contends that this case is similar to Wulff
because the jury instruction described one possible way,
consistent with the statute, that the crime of felony murder
could be committed. The jury instruction in question, which
defined armed robbery as the predicate offense for felony
murder, is worth quoting at length:
That Michael Parker, Count 1, and Authur
Robinson, Count 2, was [sic] the owner of the
property.
The defendant or a person with whom the defendant
was acting as party to a crime, took property from the
person of Michael Parker, Count 1, and Authur
Robinson, Count 2, the defendant or person with whom
the defendant was acting as a party to a crime took
the property with intent to steal.
. . . .
Forcibly means that the person or persons with
whom the defendant was acting as a party to a crime
used force against Michael Parker, Count 1, and Authur
Robinson, Count 2, with the intent to overcome or
prevent the physical resistance or physical power of
resistance to taking and carrying away the property.
14
One of the many charges submitted to the jury was for the
attempted robbery of Robinson. Despite being instructed not to
complete the verdict form for this charge if they found Williams
guilty of felony murder, the jury did complete the form——and
found Williams not guilty of the attempted robbery of Robinson.
In light of this, the State does not argue that there was
sufficient evidence to sustain a jury verdict of felony murder
for the death of Robinson if the predicate offense was the
attempted robbery of Robinson.
27
No. 2014AP1099-CR
¶67 The jury instruction suggests that finding Williams
guilty of Count 2 (i.e., felony murder of Robinson) required
theft of Robinson's property. However, the parties agree that
the felony murder statute does not require such proof, and the
State clearly did not limit itself to that theory at trial. In
his closing argument, the prosecutor emphasized exactly the
opposite:
The last thing [defense counsel] said to you was
that you have to find that . . . the defendant
attempted, as a party to a crime, to rob Authur
Robinson in order to find him guilty of the death of
Authur Robinson under a [sic] felony murder. That is
not true. That is simply a blatant misstatement of
the law.
. . . .
[The State] doesn't have to show that Authur Robinson
was a victim [of attempted robbery]. Because if in
the course of this armed robbery anyone is killed,
whether it be the bank clerk, the security guard, an
accomplice, a kid walking down the street, if anybody,
whether it's Authur Robinson, or anyone else was
killed while an armed robbery of [Michael] Parker is
taking place, that is felony murder.
¶68 The prosecutor's contradiction of the jury instruction
describes a different legal theory under which the jury could
28
No. 2014AP1099-CR
convict Williams of felony murder.15 Given that it is the role
of the prosecutor to decide what charges to bring, see State v.
Karpinski, 92 Wis. 2d 599, 285 N.W.2d 729 (1979), we conclude
that the jury instruction——which did not accurately reflect the
State's predominant theory of the case (as evidenced by the
State's closing argument)——was erroneous.
¶69 Williams' argument that this case is more like Wulff
than Beamon largely misses the point, as Wulff and Beamon are
not that dissimilar. Both cases involved erroneous jury
instructions. The approach in each case was different because,
as we pointed out in Beamon, Wulff predated Wisconsin's modern
formulation of the harmless error test. Beamon, 347
Wis. 2d 559, ¶46. The real difference between Wulff and Beamon—
—under modern harmless error analysis——is the way in which the
nature of each erroneous jury instruction affected the court's
ability to conclude whether the jury still would have convicted
if given a proper instruction.
15
The State contends that Williams' failure to object to
the prosecutor's statement during closing arguments means that
the argument is now forfeited, and Williams can pursue only an
ineffective assistance of counsel claim for his trial counsel's
failure to object at that time. However, Williams is not
challenging the prosecutor's statement in this appeal; Williams
is challenging the sufficiency of the evidence to sustain the
jury's verdict. The State provides no authority to support its
argument that a defendant's failure to object to a portion of a
closing argument somehow changes the relationship between jury
instructions and sufficiency of evidence. Accordingly, we
proceed with our analysis using the framework described above
rather than an ineffective assistance of counsel framework.
29
No. 2014AP1099-CR
¶70 This brings us to the question of whether it is clear
beyond a reasonable doubt that the jury still would have
convicted Williams of felony murder for the death of Robinson
had the proper jury instruction been given.
¶71 The erroneous jury instruction essentially required
four elements for two counts of felony murder: (1) the attempted
robbery of Parker, (2) the death of Parker, (3) the attempted
robbery of Robinson, and (4) the death of Robinson. The
appropriate jury instruction, which would comport with the
prosecutor's theory, would have required only 1, 2, and 4 to
convict on both counts.
¶72 We are convinced that the jury's guilty verdict on all
four elements provides certainty beyond a reasonable doubt that
the jury would have returned a guilty verdict if the instruction
had required three of those four elements. The strength of the
State's evidence supports this conclusion. Accordingly, we hold
that the erroneous jury instruction in this case was harmless
error, and that there was sufficient evidence to convict
Williams of felony murder in connection with Robinson's death.
B. Ineffective Assistance of Counsel
¶73 Having resolved the issue presented for certification,
this court has two procedural alternatives for resolving the
remaining issue of whether Williams received ineffective
assistance of counsel: We can remand the case to the court of
appeals or decide the issue here and now. In the interests of
providing the defendant a timely resolution of his case and
30
No. 2014AP1099-CR
preserving judicial resources, we have chosen to decide the
remaining issue now.
¶74 Wisconsin has adopted the United States Supreme
Court's two-pronged Strickland test to analyze claims of
ineffective assistance of counsel. Strickland v. Washington,
466 U.S. 668 (1984); State v. Johnson, 153 Wis. 2d 121, 127, 449
N.W.2d 845 (1990). To prevail under Strickland, a defendant
must prove that counsel's representation was both deficient and
prejudicial. State v. Erickson, 227 Wis. 2d 758, 768, 596
N.W.2d 749 (1999). Deficient performance means that defendant's
counsel's conduct "so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result." Strickland, 466 U.S. at 686.
Prejudice means that, but for counsel's unprofessional errors,
there is a reasonable probability that the trial's outcome would
have been different. Id. at 694. A reasonable probability is
"a probability sufficient to undermine confidence in the
outcome." Id. Courts may apply the deficient performance and
prejudice tests in either order, and may forgo the deficient
performance analysis altogether if the defendant has not shown
prejudice. Johnson, 153 Wis. 2d at 128.
¶75 Williams presents two arguments in support of his
contention that he was afforded ineffective assistance of trial
counsel. We do not review the arguments in isolation, but
instead make our determination based on whether the cumulative
effect is sufficient to undermine the outcome of the trial.
Thiel, 264 Wis. 2d 571, ¶63. Williams first argues that his
31
No. 2014AP1099-CR
counsel was ineffective because counsel did not move to strike a
juror who——during voir dire——expressed an aversion to viewing
crime scene photographs. Williams' second argument is that his
attorney's assistance was ineffective because the attorney did
not object when the State offered photographs depicting the
crime scene and the victims' bodies.
¶76 We disagree with both of Williams' arguments and hold
that Williams was not prejudiced by his counsel's trial
performance. Because Williams was not prejudiced, there is no
need to determine whether his attorney's performance was
deficient. See Johnson, 153 Wis. 2d at 128. We address each
argument in turn.
i. Voir Dire
¶77 Williams argues that his right to a fair trial was
compromised because his attorney did not move to strike a juror
who expressed an aversion to viewing photographs depicting the
crime scene and the bodies of the victims. We reject this
argument and hold that Williams was not prejudiced by his
counsel's decision not to strike the juror.
¶78 The United States and Wisconsin Constitutions
guarantee a criminal defendant the right to a trial by an
impartial jury. See U.S. Const. amend. VI; Wis. Const. art. I,
§ 7; State v. Oswald, 2000 WI App 2, ¶16, 232 Wis. 2d 62, 606
N.W.2d 207. A juror who "has expressed or formed any opinion,
or is aware of any bias or prejudice in the case" should be
removed from the panel. Oswald, 232 Wis. 2d 62, ¶16. See also
Wis. Stat. § 805.08(1).
32
No. 2014AP1099-CR
¶79 Here we must ask whether the prospective juror
demonstrated subjective bias. "[S]ubjective bias refers to the
bias that is revealed by the prospective juror on voir dire: it
refers to the prospective juror's state of mind." State v.
Faucher, 227 Wis. 2d 700, 717, 596 N.W.2d 770 (1999). "A
prospective juror is subjectively biased if the record reflects
that the juror is not a reasonable person who is sincerely
willing to set aside any opinion or prior knowledge that the
prospective juror might have." Oswald, 232 Wis. 2d 62, ¶19.
The circuit court is in the best position to determine whether
subjective bias exists, so "we will uphold the circuit court's
factual finding that a prospective juror is or is not
subjectively biased unless it is clearly erroneous." State v.
Lindell, 2001 WI 108, ¶36, 245 Wis. 2d 689, 629 N.W.2d 223.
¶80 Excusing jurors for bias is proper if the juror is
unreasonable and unwilling to set aside preconceived opinions or
prior knowledge. Oswald, 232 Wis. 2d 62, ¶19. Williams has
failed to demonstrate that any juror was biased. It is not
unreasonable for jurors to experience consternation over the
prospect of having to view the often disturbing evidence
presented in criminal cases. To the contrary, it is a perfectly
reasonable and normal human response. In addition to Juror No.
12, four other prospective jurors asserted that they would have
difficulty viewing crime scene photos.16 Both the prosecutor and
Williams' attorney questioned the jurors on the issue.
16
Juror 6, Juror 8, Juror 9, and Juror 21.
33
No. 2014AP1099-CR
¶81 Williams' focus on Juror No. 12's statements is based
on his use of the term "bias" while attempting to articulate the
juror's feelings about having to view photographs of the
victims. Juror No. 12, however, did not use the term to
describe the type of subjective bias that would preclude him
from serving on the jury. Rather, Juror No. 12, like the
others, was attempting to articulate his preference not to view
victim photographs, and explained that viewing the photographs
might make him feel sympathy for the victims. Moreover, after
being advised that photographic evidence of the victims would be
presented, the jurors were specifically asked whether any of
them would be unable to render an impartial decision, and Juror
No. 12 did not come forward.
¶82 The unfortunate reality of our justice system is that
jurors are often called upon to examine evidence of heinous acts
committed against other human beings. While most jurors would
prefer never to see such evidence, that preference does not
render them biased or incapable of impartiality as a matter of
law.
¶83 In sum, we do not believe that Juror No. 12's comments
reflect a "bias" against the defendant as that concept is
understood in the law, but merely reservations about having to
view disturbing photographs. Without a showing that Juror No.
12 was biased, Williams cannot prove that he was prejudiced by
his trial counsel's decision not to strike Juror No. 12.
ii. Crime Scene Photographs
34
No. 2014AP1099-CR
¶84 "Whether photographs are to be admitted is a matter
within the trial court's discretion." State v. Pfaff, 2004 WI
App 31, ¶34, 269 Wis. 2d 786, 676 N.W.2d 562. An appellate
court "will not disturb the court's discretionary decision
unless it is wholly unreasonable or the only purpose of the
photographs is to inflame and prejudice the jury." Id. In
State v. Sage, 87 Wis. 2d 783, 788, 275 N.W.2d 705 (1979), we
held that:
Photographs should be admitted if they will help the
jury gain a better understanding of material facts;
they should be excluded if they are not "substantially
necessary" to show material facts and will tend to
create sympathy or indignation or direct the jury's
attention to improper considerations.
¶85 Here, Williams argues that his trial counsel was
ineffective for not objecting to the admission of photographs
depicting the crime scene and the victims' fatal wounds. Having
reviewed each of the photographs used as exhibits at Williams'
trial, we conclude that they were neither overly gruesome nor
unfairly prejudicial. The purpose of the photographs was to
prove an element of the crimes charged (the deaths of the
victims), not to inflame the jury. Put another way, the
probative value of the photographs was not "substantially
outweighed by the danger of unfair prejudice." See Wis. Stat.
§ 904.03. In addition, the photographs likely were useful in
helping the jury garner a more thorough understanding of the
events on the night of the killings.
¶86 Because the State used the photographs for a
legitimate purpose, the photographs could have been properly
35
No. 2014AP1099-CR
admitted into evidence regardless of whether or not Williams'
attorney had raised an objection. See Sage, 87 Wis. 2d at 788.
Thus, Williams was not prejudiced by the lack of objection, and
without prejudice, Williams cannot prevail on his claim of
ineffective assistance of counsel.
¶87 Williams briefly raises the argument that the evidence
was cumulative because Williams was willing to stipulate to the
manner of death. However, in State v. Lindvig, 205 Wis. 2d 100,
108, 555 N.W.2d 197 (Ct. App. 1996), the court of appeals
rejected the argument that a defendant's willingness to
stipulate to an element could render photographs inadmissible.
Instead, the court ruled that even if the defendant is willing
to stipulate to an element, "[e]vidence is always admissible to
prove an element of the charged crime even if the defendant does
not dispute it at trial." Id.IV. CONCLUSION
¶88 We hold that a jury instruction may be considered
erroneous when it describes a theory of criminal culpability
that was not presented to the jury or omits a valid theory of
criminal culpability that was presented to the jury.
Convictions under erroneous jury instructions are subject to
harmless error review. When an erroneous instruction has been
given but it is clear beyond a reasonable doubt that the jury
would have convicted the defendant had the proper instruction
been given, the jury verdict can be affirmed.
¶89 Here, based on the strength of the evidence presented
and the statutory elements that the jury found, it is clear
36
No. 2014AP1099-CR
beyond a reasonable doubt that the jury still would have
convicted Williams of felony murder had the jury instruction
accurately reflected the State's theory of the crime. We
therefore hold that the defect in the jury instructions was
harmless error. Furthermore, we conclude that Williams was not
prejudiced by his trial counsel's decision not to strike a juror
and not to object to the admission of crime scene photographs.
Accordingly, we affirm the circuit court's judgment of
conviction.
By the Court.—The judgment and order of the circuit court
are affirmed.
37
No. 2014AP1099-CR.ssa
¶90 SHIRLEY S. ABRAHAMSON, J. (concurring). Although I
agree that the judgment and order should be affirmed, I do not
join the majority opinion.
¶91 The court took the instant case to clarify precedent
related to erroneous jury instructions in criminal trials. I am
not sure it successfully accomplishes this goal.
¶92 The majority opinion is unclear regarding the
relationship between harmless error review and review of the
sufficiency of evidence. This confusion seems to stem from the
confusion in State v. Beamon, 2013 WI 47, ¶¶19, 20, 46, 50, 51,
347 Wis. 2d 559, 830 N.W.2d 706, on which the majority opinion
relies. As I see it, harmless error analysis renders a
sufficiency of the evidence analysis redundant. The majority
opinion's statement of its approach in ¶53 ("First, was the jury
instruction erroneous? Second, is it clear beyond a reasonable
doubt that the jury still would have convicted the defendant had
the correct instruction been provided?") seems to incorporate
only a harmless error analysis, not a sufficiency of the
evidence analysis. But Beamon sets forth and applies the two
analyses separately. The majority opinion cites and quotes
Beamon, masking the majority opinion's rejection of Beamon's
two-step analysis.
¶93 For the reasons set forth, I write separately.
1
No. 2014AP1099-CR.ssa
1