State v. Miller

Full title: State of Wisconsin, Plaintiff-Appellant, v. James D. Miller…

Court: Court of Appeals of Wisconsin, District IV

Date published: Apr 23, 2009

No. 2007AP1052-CR (Wis. Ct. App. Apr. 23, 2009)

Opinion

No. 2007AP1052-CR.

Opinion Filed: April 23, 2009.

APPEAL from an order of the circuit court for Portage County: THOMAS T. FLUGAUR, Judge. Modified, and as modified, affirmed in part; reversed in part and cause remanded with directions.

Before Higginbotham, P.J., Dykman and Vergeront, JJ.

[EDITORS' NOTE: THE PUBLICATION STATUS OF THIS OPINION IS GOVERNED BY WIS. STAT. RULE 809.23 (2) AND (3).]

HIGGINBOTHAM, P.J.

¶ 1 The State appeals an order vacating James D. Miller's judgment of conviction for first-degree reckless injury while armed with a dangerous weapon, in violation of WIS. STAT. § 940.23(1) (2005-06), ¹ and aggravated battery while armed with a dangerous weapon, in violation of WIS. STAT. § 940.19(5). Because we conclude that the evidence was insufficient to convict Miller of first-degree reckless injury, we affirm the trial court's order vacating his conviction on this charge and remand for the trial court to enter a judgment of acquittal. We further conclude that trial counsel was ineffective for failing to adequately inform Miller of the option to request a jury instruction for second-degree reckless injury, a lesser-included offense of first-degree reckless injury, and that this error was prejudicial. However, we reverse the trial court's decision vacating Miller's conviction for aggravated battery. Accordingly, we modify the trial court's order, and, as modified, affirm in part and reverse in part and remand with directions.

1 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.

BACKGROUND

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

¶ 3 Inside the gas station, a man and a woman with the group that had given Nakai a ride met Jim Miller while standing in line. Miller was on his way home from a bar, where he had drunk between five and seven beers in the course of four hours. Miller invited the couple back to his trailer for a quick beer. They accepted, and informed Miller that they had another person with them whom they had picked up at the bar. Miller said that was fine, and that he would see them there.

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

¶ 5 Miller and Nakai sat in the living room and talked. Nakai commented on a picture of Miller in uniform, and Miller informed Nakai that he was in the army reserve. Nakai told Miller that he was a marine in the special forces. Nakai, who is Native American, complained about the treatment of Native Americans by whites, and argued that whites should give back the land that was stolen from his ancestors. Miller testified that he just listened to Nakai for some time, but eventually told Nakai that he did not believe that he should be held responsible for what happened to Nakai's ancestors. Nakai responded by drawing closer to Miller and speaking more loudly. Miller told Nakai to settle down, but Nakai grew more argumentative. After about forty-five minutes, Nakai became angry and slapped Miller across the face. Miller testified he pretended this did not happen because he did not want the conflict to escalate. Miller started agreeing with Nakai and tried to change the subject.

¶ 6 But Nakai returned to the topic of Native American grievances, and remained agitated. At one point, Nakai picked up a large screwdriver, and, rolling it in his hand, said to Miller, "Do you know what I could do with this?" Miller responded: "You could probably kill me with it, but you are not going to because you are my friend." Nakai eventually put the screwdriver down.

¶ 7 Miller offered to drive Nakai home, and went out to warm up his car. For the next twenty minutes, Miller tried to persuade Nakai to accept the ride. Nakai refused, insisting that Miller's trailer was his home because it was on land stolen from his ancestors, and slapped Miller again. Miller turned off the car, and offered Nakai a blanket and a pillow so he could sleep on the floor. Nakai told Miller he did not want to go to sleep, and they were going to do what he wanted.

¶ 8 Nakai told Miller he was "going to get [Miller's] little sister" and started walking down the hallway toward the bedrooms.² Nakai entered Miller's roommate's bedroom where Russell Simonis and his cousins, John Simonis and Cory Kesy were sleeping. Russell woke up when Nakai entered the room and, taking cues from Miller who was standing behind Nakai, offered Nakai his bed to sleep in. Nakai yelled at Russell, "Do you know who I am?" Russell responded that he did not, and Nakai smacked him across the face. Russell testified that Nakai said that he was the "Alpha" and the "Omega" and was "quoting the Bible a lot, talking about the beginning and the end." When Russell announced that he needed to use the bathroom, Nakai blocked the doorway and refused to let him pass. Miller testified that Nakai was "pretty much out of control . . . getting more and more violent and going off babbling about crazy things." Miller went to the kitchen and called 911 for help.

2 There were no women in the trailer.

¶ 9 Miller told the dispatcher to send at least one officer because Nakai was a big man and was acting crazy. Miller cut the 911 call short after he heard Russell cry "ow, ow!" Miller walked toward the bedrooms and saw Nakai standing over Russell, who was curled up in a ball on the hallway floor. When Russell attempted to get to his feet, Nakai hit him across the back of the head. Raising his voice for the first time, Miller yelled that the police were on the way and ordered Nakai to leave the home. Nakai started shoving Miller, who retreated from the hallway to the kitchen. Nakai followed, and smacked Miller across the face for the third time that night. Miller continued to demand that Nakai leave the home. By this time, Russell and John were in the kitchen as well, and Nakai declared that this was his place and ordered the three men to sit where he told them to. The men refused and told Nakai to leave. Nakai picked up a guitar from the floor and smashed it against an upholstered chair, cracking its neck.

¶ 10 Nakai charged at Miller, swinging his fists. Nakai and Miller exchanged a few quick blows. Nakai and Miller separated, and Nakai grabbed the screwdriver that he had picked up earlier that night. Nakai moved a step or two closer to Miller and, holding the screwdriver in the air, said: "Do you know what I can do with this?" Miller responded that he could probably kill him, and Nakai agreed that he could. Nakai moved back behind the kitchen island where Russell and John were standing. Miller testified that he was afraid for his life, in part because he had heard that marines in the special forces are trained to use everyday objects as lethal weapons.

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

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

3 Both Josh and Corey were in the trailer at the time. However, it appears that neither Josh nor Corey were at the center of the events leading up to the shooting.

¶ 13 Miller testified that his purpose in shooting Nakai was "to stop him," and to prevent him from stabbing Russell and John. While Miller admitted that he intended to shoot Nakai, he testified that he was aiming at Nakai's thigh and not his hip when he fired the shot. Miller kept the gun pointed at Nakai and ran toward the wounded man, ordering him to get out of his house. Miller testified that he believed that Nakai was still a threat.

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

¶ 15 Miller was charged with first-degree reckless injury while armed with a dangerous weapon and aggravated battery while armed with a dangerous weapon. At trial, Miller asserted that he acted in self-defense and in defense of Russell and John. The jury was not instructed on any lesser-included offenses of first-degree reckless injury and aggravated battery. The jury returned a verdict of guilty on both counts, and the court issued stayed concurrent sentences of four years' imprisonment on each count, and placed Miller on probation for eight years.

¶ 16 In January 2000, Miller's trial counsel moved for a new trial under WIS. STAT. § 974.06 on grounds that the jury was exposed to extraneous prejudicial information during deliberations. The trial court denied the motion, and Miller's trial counsel filed an appeal on Miller's behalf. We affirmed the judgment of conviction in a May 2002 opinion. State v. Miller , No. 00-2779-CR, unpublished slip op. (WI App May 23, 2002).

¶ 17 In April 2006, Miller filed a pro se motion for postconviction relief under WIS. STAT. § 974.06. Miller was appointed counsel, who filed an amended § 974.06 motion alleging that the evidence against Miller was insufficient to support the conviction for first-degree reckless injury. The motion also alleged Miller's trial counsel rendered ineffective assistance on several grounds, including: (1) failing to raise the sufficiency of the evidence issue; (2) failing to request a jury instruction on second-degree reckless injury as a lesser-included offense of first-degree reckless injury and aggravated battery; and (3) failing to object when the jury was given the wrong jury instruction on self-defense, WIS JI-CRIMINAL 805, the self-defense instruction for intentional crimes, instead of WIS JI-CRIMINAL 801, the self-defense instruction for crimes of recklessness or negligence.

¶ 18 Following a Machner ⁴ hearing on the ineffective assistance claims, the trial court granted Miller's motion, concluding that trial counsel was ineffective in failing to challenge the sufficiency of the evidence because the evidence did not prove that Miller's conduct showed an "utter disregard for human life," an element of first-degree reckless injury under WIS. STAT. § 940.23. The court also concluded that trial counsel was ineffective in failing to request that the jury be instructed on lesser-included offenses, and in failing to object to the court's use of the wrong jury instruction. The court concluded that the cumulative prejudicial effect of the multiple instances of deficient performance by trial counsel entitled Miller to a new trial and vacated the judgment of conviction on both counts.⁵

4 State v. Machner , 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct.App. 1979).

5 Because the trial court stayed Miller's sentence pending the resolution of his first appeal, Miller did not begin serving his sentence until 2002. Miller was discharged from the State's custody in 2006 after the trial court granted Miller's motion to modify the length of his probation. He has therefore completed his sentence.

DISCUSSION

¶ 19 We address three challenges the State makes to the trial court's reversal of Miller's conviction. The State argues that: (1) Miller's claims are procedurally barred by State v. Escalona-Naranjo , 185 Wis. 2d 168, 185-86, 517 N.W.2d 157 (1994); (2) the trial court erred in concluding that, within the context of a claim of ineffective assistance of counsel, the evidence was insufficient to convict Miller of first-degree reckless injury; and (3) the trial court erred in concluding that trial counsel was ineffective for failing to adequately inform Miller of the option to request submission of a jury instruction for second-degree reckless injury, a lesser-included offense of first-degree reckless injury and aggravated battery.⁶ Miller makes two arguments that pertain to his conviction for aggravated battery which the trial court did not address; namely, he argues that trial counsel was ineffective for failing to apprise him of the existence of a plea offer, and that the trial court mismanaged jury deliberations. We consider the parties' respective arguments in turn.

6 We do not address the State's challenge to the trial court's conclusion that trial counsel was ineffective for failing to object to the trial court's omission of a self-defense jury instruction relating to crimes of recklessness, which would have instructed the jury to take into account Miller's claims of self-defense in evaluating whether he acted with "utter disregard." We do not address this challenge because it pertains to Miller's conviction on the first-degree reckless injury charge only, and our conclusion that the evidence was insufficient to support Miller's conviction for first-degree reckless injury is dispositive.

Escalona

¶ 20 The State raises here for the first time the argument that Miller's appeal is barred by Escalona-Naranjo . In Escalona , the supreme court interpreted WIS. STAT. § 974.06(4) ⁷ to prohibit claims of error that could have been raised in the direct appeal or in a previous motion under § 974.06 from being raised in a subsequent § 974.06 motion absent a sufficient reason for the failure to raise the claims in the earlier proceeding. Escalona-Naranjo , 185 Wis. 2d at 185-86.

7 WISCONSIN STAT. § 974.06(4) provides:

All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.

¶ 21 Miller responds that the State waived its Escalona argument by failing to raise it in postconviction proceedings. Miller observes that the State's failure to raise this argument occurred even after he argued in his pro se motion under WIS. STAT. § 974.06 that his claims should not be procedurally barred in anticipation that the State would raise Escalona . Miller further argues that, regardless of waiver, he satisfies Escalona 's sufficient reason requirement because several of the claims raised in the present appeal allege ineffective assistance of trial counsel, and Miller was represented by his trial counsel in his 2000 direct appeal. Miller notes that we held in State v. Robinson , 177 Wis. 2d 46, 53, 501 N.W.2d 831 (Ct.App. 1993), and State v. Hensley , 221 Wis. 2d 473, 477, 585 N.W. 2d 683 (Ct.App. 1998) (stating that Robinson was not overturned by Escalona ), that the inability of trial counsel to assert his or her own ineffectiveness in the direct appeal constitutes a sufficient reason under WIS. STAT. § 974.06(4).

¶ 22 With regard to the issue of waiver, the State does not dispute that it failed to argue that Miller's claims were barred by Escalona before the trial court, but argues that we may impose the requirements of Escalona against a defendant when the State fails to assert the procedural bar below, citing State v. Crockett , 2001 WI App 235, ¶¶ 6-10, 248 Wis. 2d 120, 635 N.W.2d 673. The State further observes that Miller's pro se WIS. STAT. § 974.06 motion addressing Escalona was superseded by an amended motion filed by Miller's counsel that did not mention Escalona . On the merits, the State argues that the exception to Escalona stated in Robinso n is inapplicable because Miller retained Attorney Robert Henak in addition to his trial counsel, Attorney Maris Rushevics, during the first appeal. Miller responds that Henak was merely an advisor to Rushevics, and was retained only after the trial court denied the postconviction motion, at which point the appellate issues had already been framed.

¶ 23 We conclude that application of the waiver rule is appropriate here, and therefore decline to address the State's Escalona argument. Waiver is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. See Ford Motor Co. v. Lyons , 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct.App. 1987). Miller's case differs from Crockett , wherein the defendant failed to raise his claim in three prior postconviction motions, and did not assert a sufficient reason for failing to raise his claim in his direct appeal or the prior postconviction proceedings. Crockett , 248 Wis. 2d 120, ¶ 10. The present case is more akin to State v. Avery , 213 Wis. 2d 228, 247-48, 570 N.W.2d 573 (Ct.App. 1997), in which we concluded that the State had waived its right to assert the procedural bar of Escalona . Like Miller, Avery had made no prior § 974.06 motions. Moreover, as in Miller's case, the circumstances weighed heavily in favor of reaching the merits. Avery's motion alleged a miscarriage of justice based on the late discovery that the sheriff's department had withheld evidence. Here, Miller's motion asserts claims that he was unable to raise in his direct appeal, as explained below, and alleges that the State failed to meet its burden of proof on his conviction for first-degree reckless injury. For the foregoing reasons, we therefore conclude that the State has waived its argument that Miller's claims are procedurally barred by Escalona .⁸

8 We are doubtful that the result would be different were we to reach the merits of the State's Escalona argument. In Robinson , we held that when the defendant is represented by the same counsel both at trial and on appeal, counsel's inability to assert his or her own ineffectiveness constitutes a "sufficient reason" under WIS. STAT. § 974.06. Robinson , 177 Wis. 2d at 53. Here, although Henak advised trial counsel Rushevics regarding the first appeal, Rushevics continued to represent Miller in postconviction proceedings and before this court. Rushevics was the only attorney on the briefs in Miller's first appeal. See http://libcd.law.wisc.edu/~wb/will0086/48772445.pdf. Thus, Rushevics would have had to assert his own ineffectiveness to raise the claims brought in this appeal regardless of Henak's assistance. We fail to see how the present case is distinguishable from Robinson .

Sufficiency of Evidence Supporting Conviction for First-Degree Reckless Injury

¶ 24 The State next argues that the trial court erred in concluding that Miller's trial counsel was ineffective for failing to adequately challenge the sufficiency of the evidence on the reckless injury charge. Miller defends the trial court's conclusion that counsel was ineffective in this regard, and further seeks to directly challenge the sufficiency of the evidence in the context of his WIS. STAT. § 974.06 motion. For the reasons stated below, we conclude that Miller may raise his sufficiency of the evidence claim directly.

¶ 25 WISCONSIN STAT. § 974.06 is the primary method by which a defendant may challenge his or her conviction after the time for direct appeal has expired. See Escalona-Naranjo , 185 Wis. 2d at 176. A motion under § 974.06 is limited in scope to matters of jurisdiction or constitutional dimension.⁹ Peterson v. State , 54 Wis. 2d 370, 381, 195 N.W.2d 837 (1972).

9 WISCONSIN STAT. § 974.06 provides, as pertinent:

(1) After the time for appeal or postconviction remedy provided in s. 974.02 has expired, a prisoner in custody under sentence of a court or a person convicted and placed with a volunteers in probation program under s. 973.11 claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

¶ 26 The State argues that Miller may not raise a direct claim of insufficient evidence in his WIS. STAT. § 974.06 motion because sufficiency of the evidence is not a matter of constitutional dimension, citing Peterson , 54 Wis. 2d at 381. In Peterson , after observing that a § 974.06 motion is limited in scope to matters of jurisdictional and constitutional dimension, the supreme court said: "Such issues as sufficiency of the evidence, jury instructions, error in admission of evidence and other procedural errors cannot be reached by a sec. 974.06 motion." Id. (footnote omitted). The supreme court has repeatedly cited Peterson 's statement that sufficiency of evidence claims may not be raised in a § 974.06 motion when discussing the scope of the statute, most recently in State v. Evans , 2004 WI 84, ¶ 33, 273 Wis. 2d 192, 682 N.W.2d 784, overruled on other grounds, State ex rel. Coleman v. McCaughtry , 2006 WI 49, ¶¶ 19-29, 290 Wis. 2d 352, 714 N.W.2d 900. See also State v. Lo , 2003 WI 107, ¶ 24, 264 Wis. 2d 1, 665 N.W.2d 756; State v. Carter , 131 Wis. 2d 69, 81, 389 N.W.2d 1 (1986); and State v. Walberg , 109 Wis. 2d 96, 103, 325 N.W.2d 687 (1982). However, in none of these cases did the issue pertain to whether a sufficiency of the evidence claim could be raised in a § 974.06 motion. The court's citation of Peterson in these cases was for the limited purpose of providing legal background about the scope of a motion under § 974.06.

¶ 27 Despite the above-cited language in Peterson , et al., other decisions of our supreme court and the United States Supreme Court issued after Peterson persuade us that a sufficiency of the evidence challenge may be raised directly in a WIS. STAT. § 974.06 motion because such a claim is a matter of constitutional dimension. Discussing In re Winship , 397 U.S. 358, 364 (1970), the Supreme Court in Jackson v. Virginia , 443 U.S. 307, 316 (1979), declared that

an essential of the due process guaranteed by the Fourteenth Amendment [is] that no person shall be made to suffer the onus of a criminal conviction except upon sufficient . . . evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.

Citing Winship and Jackson , our supreme court recognized in State v. Ivy , 119 Wis. 2d 591, 608, 350 N.W.2d 622 (1984), that sufficiency of the evidence claims are grounded in the due process guarantees of the Fourteenth Amendment. The issue presented in Ivy was whether this court was required to address sufficiency of the evidence claims when the case presented other grounds for reversal. Ivy held that this court must address a claim of sufficiency of evidence in such a case because the Double Jeopardy Clause of the Fifth Amendment precludes retrial when the evidence is insufficient, citing Burks v. United States , 437 U.S. 1, 18 (1978). Ivy , 119 Wis. 2d at 608-11.

¶ 28 While Ivy arose on a direct appeal under WIS. STAT. § 974.02, and therefore did not address the scope of § 974.06, the principle stated in Ivy — that a sufficiency of the evidence claim implicates the due process guarantee of the United States Constitution — implicitly overruled the premise in Peterson that sufficiency of the evidence is not a constitutional claim. More recently in State v. Hayes , 2004 WI 80, 273 Wis. 2d 1, 681 N.W.2d 203, the court concluded that a sufficiency of the evidence claim is not waived when the defendant fails to raise the claim before the trial court. While the majority came to this conclusion based on its interpretation of WIS. STAT. § 974.02, three justices did so based in part on the recognition that such claims "go[] to the heart of a determination of guilt in a criminal trial." Hayes , 273 Wis. 2d 1, ¶¶ 4, 48 (Abrahamson, C.J., joined by Bradley and Crooks, JJ.). In addition, a fourth justice in a concurrence explained that claims of insufficient evidence should not be deemed waived when first raised in a direct appeal because such claims are "bottomed in . . . the fundamental constitutional principle that a defendant is presumed innocent until the State proves him or her guilty by that requisite degree of proof." Id. , ¶ 118 (Roggensack, J., concurring).

¶ 29 In light of these more recent constitutional developments, we must conclude that language in Peterson to the effect that sufficiency of the evidence claims lack constitutional dimension and therefore may not be raised in a WIS. STAT. § 974.06 motion has been superceded. We therefore directly address Miller's claim that the evidence was insufficient to support his conviction for first-degree reckless injury.

¶ 30 We must uphold Miller's conviction "unless the evidence is so insufficient in probative value and force that as a matter of law, no reasonable fact finder could have determined guilt beyond a reasonable doubt." State v. Jensen , 2000 WI 84, ¶ 23, 236 Wis. 2d 521, 613 N.W.2d 170. This test requires us to view the evidence in the light most favorable to the conviction. Id. Whether the evidence is sufficient to support the conviction is a question of law that we review de novo. State v. Booker , 2006 WI 79, ¶ 12, 292 Wis. 2d 43, 717 N.W.2d 676.

¶ 31 Miller's attack on his conviction for first-degree reckless injury turns on whether the evidence was sufficient to prove that he acted with "utter disregard for human life." Both first-and second-degree reckless injury require proof of reckless conduct causing great bodily harm. WIS. STAT. § 940.23.¹⁰ First-degree reckless injury includes an aggravating element, proof that the perpetrator acted with "utter disregard for human life." Id. The phrase "utter disregard for human life" has the same meaning as "depraved mind, regardless of life," the former language used in the Wisconsin code until 1987 to denote the aggravating element in crimes of recklessness. Jensen , 236 Wis. 2d 521, ¶ 18 (citations omitted).

10 WISCONSIN STAT. § 940.23 provides, in pertinent part:

(1) FIRST-DEGREE RECKLESS INJURY. (a) Whoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class D felony.

. . . .

(2)(a) SECOND-DEGREE RECKLESS INJURY. Whoever recklessly causes great bodily harm to another human being is guilty of a Class F felony.

¶ 32 Utter disregard requires "more than a high degree of negligence or recklessness." Wagner v. State , 76 Wis. 2d 30, 46, 250 N.W.2d 331 (1977) (citation omitted). To evince utter disregard, "[t]he mind must not only disregard the safety of another but be devoid of regard for the life of another. A depraved mind lacks a moral sense, an appreciation of life, is unreasonable and lacks judgment." Id. (citation omitted). A person acting with utter disregard must possess "a state of mind which has no regard for the moral or social duties of a human being." Wagner , 76 Wis. 2d at 45 (citing State v. Weso , 60 Wis. 2d 404, 410, 210 N.W.2d 442 (1973)).

¶ 33 "Utter disregard is proved through an examination of the act, or acts, that caused [injury] and the totality of the circumstances that surrounded that conduct." State v. Edmunds , 229 Wis. 2d 67, 77, 598 N.W.2d 290 (Ct.App. 1999). In evaluating whether there is sufficient proof of utter disregard for human life, we consider many factors, including

the type of act, its nature, why the perpetrator acted as he/she did, the extent of the victim's injuries and the degree of force that was required to cause those injuries. We also consider the type of victim, the victim's age, vulnerability, fragility, and relationship to the perpetrator. And finally, we consider whether the totality of the circumstances showed any regard for the victim's life.

Jensen , 236 Wis. 2d 521, ¶ 24 (quoting Edmunds , 229 Wis. 2d at 77).

¶ 34 We are aware of no Wisconsin cases challenging the sufficiency of evidence to prove "utter disregard" or "depraved mind" that have arisen on facts similar to those of the present case. Miller cites Wagner and Balistreri v. State , 83 Wis. 2d 440, 265 N.W.2d 290 (1978), cases involving crimes related to the reckless use of an automobile, wherein the court concluded that the evidence was insufficient to prove that the defendants acted with a depraved mind where the defendants swerved at the last minute to avoid an accident. The State cites Jensen , a "shaken-baby" case in which the court concluded that the evidence of abuse was sufficient to prove that the defendant acted with utter disregard. Jensen , 236 Wis. 2d 521, ¶ 25; see also State v. Edmunds , 229 Wis. 2d 67, 77-78, 598 N.W.2d 290 (Ct.App. 1999) ("shaken-baby" case rejecting challenge of sufficiency of the evidence showing utter disregard). However, it is difficult to draw conclusions about whether Miller's conduct evidenced utter disregard by resort to any of these cases because the circumstances of these cases are dissimilar to the present case.¹¹

11 For this reason, we reject the State's suggestion that Wagner , Balistreri and Jensen may be read to stand for the proposition that evidence of "after-the-fact" regard for life is of less import than conduct evincing regard for life during and before the act. Courts consider the totality of the circumstances when determining whether the defendant showed some regard for life, which may include conduct occurring before, during and after the commission of the criminally reckless act itself. See State v. Jensen , 2000 WI 84, ¶ 32, 236 Wis. 2d 521, 613 N.W.2d 170; State v. Olson , 75 Wis. 2d 575, 582, 250 N.W.2d 12 (1977); State v. Edmunds , 229 Wis. 2d 67, 78, 598 N.W.2d 290 (Ct.App. 1999).

¶ 35 The State calls our attention to State v. Bernal , 111 Wis. 2d 280, 330 N.W.2d 219 (Ct.App. 1983). Like Miller's case, Bernal involved the discharge of a firearm. However, that is where the similarities between Bernal and the present case end. In Bernal , the defendant walked into a bar with a loaded handgun, saw his wife at the bar with another man, and intentionally shot his wife in the back. The wife's male friend charged Bernal, and Bernal discharged his weapon, killing the man. We concluded that the evidence in Bernal's conviction for killing the man was sufficient to conclude that Bernal had acted with utter disregard for human life. Bernal , 111 Wis. 2d at 284-85.

¶ 36 We wrote in Bernal that

[i]ntentionally pointing a loaded gun ready to shoot at another person is conduct imminently dangerous to another. Unless it is privileged or otherwise defensible, the act evinces a depraved mind, regardless of human life, whether the person holding the weapon intends to frighten, intimidate or stop the other person and does not intend to shoot.

Bernal , 111 Wis. 2d at 285. The State argues that because Miller pointed the loaded shotgun at Nakai, and the jury rejected Miller's claim of privilege, i.e. self-defense and defense of others, Bernal compels the result in this case. We disagree. Bernal states that pointing a loaded gun at another is not conduct evincing a depraved mind (utter disregard) if it is "otherwise defensible," even if it is not privileged. As the analysis below demonstrates, whether Miller's conduct was "otherwise defensible" is very much at issue in this case. Moreover, to the extent that Bernal might appear to establish a per se rule, we note that the supreme court has carefully avoided per se rules in this area and instead has consistently applied a totality of the circumstances approach to the cases.

¶ 37 Lacking cases from which we might reach a conclusion by analogy, we subject the facts of this case to the multi-factored test for determining utter disregard set forth in Jensen .

¶ 38 Applying Jensen , we observe that the type and nature of the act, the extent of Nakai's injuries and the degree of force used support a conclusion that Miller acted with utter disregard. Miller fired a shotgun at a person from a range of eighteen feet, causing great bodily harm to Nakai and exposing Nakai to an extreme risk that could have caused Nakai's death. However, the remaining factors set forth in Jensen , including principally the reason for Miller's conduct, persuade us that the evidence was insufficient for a reasonable jury to conclude that Miller acted with utter disregard for human life. While Miller's conduct may have been reckless under WIS. STAT. § 940.23, under no reasonable view did Miller's conduct evince an utter disregard for human life within the meaning of § 940.23(1).

¶ 39 Miller's uncontroverted testimony was that Nakai, a guest in Miller's home, was violent and belligerent toward Miller and his friends throughout the course of several hours. Miller testified that he offered to give Nakai a ride home, and when Nakai refused to leave, insisting that this was "his place," Miller got Nakai a blanket and pillow to sleep on the floor. Nakai, who informed Miller that he was a marine in the special forces, threatened to kill Miller with a screwdriver. Later, waiving the screwdriver over his head, Nakai threatened to kill Miller, Russell and John. Miller shot Nakai only after Nakai made these threats, and only after Nakai had attacked Miller, Russell and John at other times during the night. While the jury rejected Miller's claim of self-defense and defense of others under WIS. STAT. § 939.48, the prosecutor acknowledged in his closing argument that Miller "was acting in self-defense, but he wasn't acting in lawful self-defense." It would appear undisputed that a reason, if not the reason, for Miller's conduct was to protect himself and his friends. This reason is inconsistent with conduct evincing utter disregard. See Seidler v. State , 64 Wis. 2d 456, 465-66, 219 N.W.2d 320 (1974) ("depravity of mind exists when the conduct causing [injury] demonstrates an utter lack of concern for the life and safety of another and for which conduct there is no justification or excuse") (emphasis added).

¶ 40 Additionally, Nakai was not a blameless or vulnerable victim. See Jensen , 236 Wis. 2d 521, ¶ 24 (victim's age, vulnerability, fragility, and relationship to the perpetrator relevant to utter disregard analysis). It was established that Nakai was a larger man than Miller and his friends, and informed Miller that he had military training. Nakai was belligerent toward Miller throughout the night, and refused to leave the trailer when asked repeatedly, insisting that the trailer was his place. Nakai could have left but instead escalated the confrontation with Miller and his friends, threatening them with the screwdriver.

¶ 41 Finally, Miller showed some regard for human life under the totality of the circumstances. Miller did not engage Nakai physically for the first several hours, even after Nakai attempted to strike Miller. Miller offered to give Nakai a ride home and got a blanket and pillow for him to sleep on the floor. Before the shooting, Miller called 911 as the situation with Nakai began to escalate, and shot Nakai only when Nakai continued to threaten Russell and John with the screwdriver. Moments after firing the shot, Miller called 911 to report the shooting, and later asked an officer whether Nakai was going to be okay.

¶ 42 We note that Miller's testimony was uncontroverted, and was remarkably consistent with his initial statements to investigators and with the testimony and statements of the other witnesses. It was also largely consistent with the physical evidence. We do not believe that the evidence reasonably supports competing inferences so contrary to Miller's testimony as to support a reasonable conclusion that Miller acted with utter disregard for human life.¹² While the evidence supports a reasonable conclusion that his conduct was criminally reckless, it cannot reasonably be read to support a view that Miller's state of mind was such that he showed "no regard for the moral or social duties of a human being." Weso , 60 Wis. 2d at 410.

12 The dissent maintains that the evidence, when viewed in a light most favorable to the verdict, raises reasonable inferences from which a reasonable jury could find that Miller acted with utter disregard when he shot Nakai. For example, the dissent points to evidence that suggests Miller may have egged-on Nakai, and that Miller, perhaps unsurprisingly, was angry with Nakai when firing the shots. At most, the dissent succeeds in showing that the facts may be more complicated than Miller suggests. However, the dissent fails to persuade us that the cumulative weight of the negative inferences, viewed in a light most favorable to the jury's verdict, support the view that Miller acted with utter disregard. Even if the jury disbelieved Miller's testimony in its entirety — a difficult proposition because Miller's testimony was largely uncontroverted and, at least in its broad outlines, was the only version of events presented to the jury — the fact that Miller called 911 for police assistance twice and the officer's testimony that Miller asked whether Nakai was going to be alright show that Miller evinced some regard for human life. Utter disregard, as noted above, describes a state of mind that is "devoid of regard for the life of another . . . lacks a moral sense, an appreciation of life, is unreasonable and lacks judgment." Wagner v. State , 76 Wis. 2d 30, 46, 250 N.W.2d 331 (1977). To conclude that a jury could reasonably find utter disregard on the facts of this case would represent an expansion of the aggravating factor in crimes of recklessness. Simply put, this is not an "utter disregard" case.

¶ 43 For the foregoing reasons, we therefore conclude that the evidence, viewed in a light most favorable to the conviction, demonstrates that Miller showed some regard for human life. Accordingly, we modify the trial court's order of a new trial on the charge of first-degree reckless injury and remand for the court to enter a judgment of acquittal. See Ivy , 119 Wis. 2d at 608-609 (explaining that when an appellate court determines that the evidence was insufficient to support a conviction the remedy is to order a judgment of acquittal, citing Burks , 437 U.S. at 18).

Ineffective Assistance for Failure to Inform Miller of Option to Request Instruction on Lesser-Included Offense

¶ 44 Having concluded that the evidence was insufficient to support Miller conviction for first-degree reckless injury, we ordinarily would decline to address additional grounds for reversal. See Hull v. State Farm Mut. Auto. Ins. Co. , 222 Wis. 2d 627, 640 n. 7, 586 N.W.2d 863 (Ct. App. 1998) (when resolution of one issue is dispositive, we generally do not address others). However, we exercise our discretion to address Miller's argument that counsel was ineffective for failing to inform Miller of the option to request the lesser-included offense of second-degree reckless injury. We conclude that Miller's claim of ineffective assistance states an alternate ground for reversal.

¶ 45 After hearing testimony from Miller and his trial counsel at the Machner hearing, the trial court found that trial counsel inadequately discussed with Miller the option to request submission of a jury instruction for second-degree reckless injury, WIS. STAT. § 940.23(2),¹³ a lesser-included offense of first-degree reckless injury, § 940.23(1), ¹⁴ and aggravated battery, WIS. STAT. § 940.19(5).¹⁵ The trial court also found that Miller did not understand the concept of lesser-included offenses at the time, and that any discussion regarding counsel's decision to opt for a "go-for-broke" strategy "was done briefly, generally and without a full understanding by the defendant." Further, the court found that had Miller been given the choice at the time, Miller would have requested submission of an instruction on the lesser-included offense.

13 Second-degree reckless injury is defined as "recklessly caus[ing] great bodily harm to another human being. . . ." WIS. STAT. § 940.23(2).

14 First-degree reckless injury is defined as "recklessly caus[ing] great bodily harm to another human being under circumstances which show utter disregard for human life. . . ." WIS. STAT. § 940.23(1).

15 WISCONSIN STAT. § 940.19(5) provides that "[w]hoever causes great bodily harm to another by an act done with intent to cause great bodily harm to that person or another is guilty of a Class E felony."

¶ 46 The State contends that trial counsel was not deficient in failing to adequately discuss submission of a jury instruction for second-degree reckless injury with Miller because counsel, not Miller, was entitled to decide whether to request submission of the lesser-included offense instruction. The State further argues that, to the extent that Miller had a right to participate in this decision, testimony of trial counsel at the postconviction hearing established that Miller did not want a felony conviction and that he did not believe that he had done anything wrong, statements from which trial counsel could reasonably conclude that Miller opposed submission of the lesser-included offense instruction and instead favored a "go-for-broke" strategy. Finally, with regard to the aggravated battery count only, the State contends that the fact that counsel did not discuss the option of requesting a lesser-included instruction for second-degree reckless injury was not deficient performance because the evidence does not reasonably support an acquittal on the aggravated battery count.

¶ 47 A claim of ineffective assistance of counsel requires proof that counsel's performance was deficient and that the deficiencies prejudiced the defendant. See Strickland v. Washington , 466 U.S. 668, 687 (1984). In reviewing the trial court's determination of deficient performance, we will uphold the trial court's factual findings unless clearly erroneous, and subject its conclusion that counsel's performance was constitutionally deficient to de novo review. See State v. Doss , 2008 WI 93, ¶ 23, __ Wis. 2d __, 754 N.W.2d 150.

¶ 48 A criminal defendant is entitled to a lesser-included offense instruction if requested when reasonable grounds exist in the evidence both for acquittal on the greater offense and conviction on the lesser offense. State v. Foster , 191 Wis. 2d 14, 23, 528 N.W.2d 22 (Ct.App. 1995).¹⁶ However, the right to request submission of a lesser-included offense instruction is "neither a constitutional nor a fundamental right." State v. Eckert , 203 Wis. 2d 497, 509, 553 N.W.2d 539 (Ct.App. 1996). "The decision of whether to request a lesser-included offense instruction is a complicated one involving legal expertise and trial strategy" that is ultimately addressed to trial counsel. Eckert , 203 Wis. 2d at 509.

16 The State does not contend that second-degree reckless injury is not a lesser-included offense of both aggravated battery and first-degree reckless injury. We therefore assume that it is for purposes of this discussion.

¶ 49 We address the State's last argument first, which pertains to the aggravated battery count only. The State asserts that not informing Miller of the lesser-included offense was not deficient performance because, on the evidence presented, no reasonable jury would have acquitted Miller of aggravated battery, WIS. STAT. § 940.19(5), ¹⁷ while convicting him of the lesser charge of second-degree reckless injury. See State v. Van Straten , 140 Wis. 2d 306, 320, 409 N.W.2d 448, 454-455 (Ct.App. 1987) (failure to request a lesser-included offense instruction is not ineffective assistance when defendant would not have been entitled to the instruction in the first instance).

17 WISCONSIN STAT. § 940.19(5) provides that "[w]hoever causes great bodily harm to another by an act done with intent to cause great bodily harm to that person or another is guilty of a Class E felony."

¶ 50 The elements of the crime of aggravated battery as applied to this case are: (1) Miller caused great bodily harm to Nakai; and (2) Miller intended to cause great bodily harm to Nakai. WIS JI — CRIMINAL 1224. The elements of the crime of second-degree reckless injury as applied here are: (1) Miller caused great bodily harm to Nakai; (2) Miller caused great bodily harm by criminally reckless conduct. WIS JI — CRIMINAL 1252.

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

¶ 52 "Great bodily harm" is defined in the Wisconsin statutes as "bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury." WIS. STAT. § 939.22(14). A person acting with criminal intent "either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result." WIS. STAT. § 939.23.

¶ 53 We conclude as a matter of law that shooting a person in the thigh at a range of sixteen feet with a shotgun is practically certain to cause at least a protracted loss or impairment of the function of the person's leg, and is therefore injury constituting "great bodily harm" within the meaning of the statutes. In so concluding, we reject Miller's argument that, by aiming for Nakai's thigh and not his abdomen, chest or head, a reasonable jury could conclude that he did not intend to cause Nakai great bodily harm.

¶ 54 We further conclude that Miller, who had experience with firearms as an army reservist and a hunter, would have been aware that his conduct was practically certain to cause protracted loss or impairment of function of Nakai's leg. We reject Miller's argument that a reasonable jury could have concluded that Miller did not intend to cause Nakai great bodily harm based on his testimony that his purpose in shooting Nakai was "to stop him." The fact that Miller's conduct was intended to neutralize the threat posed by Nakai does not negate the fact that, by firing the shotgun at Nakai's thigh, Miller also intended to cause Nakai great bodily harm by committing an act that he was aware was practically certain to result in great bodily harm to Nakai.

¶ 55 Thus, we conclude that Miller intended to cause Nakai "great bodily harm" as defined in WIS. STAT. § 939.22(14), and therefore no reasonable jury could have acquitted Miller of aggravated battery while convicting him of second-degree reckless injury. Accordingly, Miller was not entitled to a lesser-included instruction for second-degree reckless injury for this charge, and, thus, trial counsel was not deficient for not discussing the lesser-included instruction with Miller.

¶ 56 Having concluded that counsel did not render deficient performance in not discussing the lesser-included instruction of second-degree reckless injury on the aggravated battery count, we turn to the question of whether counsel had a duty to inform Miller about the option to request the lesser-included instruction of second-degree reckless injury on the first-degree reckless injury count. On this count, the State's argument is not that counsel was not deficient because no reasonable jury would have acquitted Miller of the greater charge while convicting him of the lesser charge. Instead, the State argues that counsel's performance was not deficient under Eckert . There, we affirmed a conviction for armed robbery as a party to the crime, concluding that trial counsel was not deficient for failing to specifically discuss with Eckert the option of requesting an instruction on the lesser-included offense of robbery or for failing to request the instruction where counsel had discussed the general theory of defense with Eckert, and an instruction on the lesser-included offense would have been inconsistent with, or harmful to, the general theory of defense. Eckert , 203 Wis. 2d at 509-10.

¶ 57 The State asserts that here, as in Eckert , trial counsel discussed the theory of defense with the defendant, and that, from conversations with Miller in which Miller said he believed that he had done nothing wrong and he did not want a felony conviction, counsel could have reasonably concluded that Miller did not want the lesser-included offense instruction to be read to the jury. However, the trial court found that any discussion counsel had with Miller "was done briefly, generally, and without a full understanding by the defendant," and that Miller would have wanted counsel to request the lesser-included offense instruction had he been adequately informed of the strategic options. The State does not challenge these factual findings on appeal, nor does it explicitly argue that counsel who engages in a "brief, general" discussion of the defendant's strategic options which results in the defendant lacking a full understanding of these options renders effective assistance to the defendant.

¶ 58 Eckert is further distinguishable from the present case because an instruction on the lesser-included offense of second-degree reckless injury would not have been inconsistent with the theory of defense Miller presented at trial — self defense. In Eckert , the defendant's theory of defense was that he was somewhere else when the armed robbery occurred. A request for an instruction on the lesser-included offense of robbery would have suggested to the jury that Eckert was there but that he was unarmed, contradicting Eckert's alibi defense. By contrast, Miller's assertion of self defense is not inconsistent with a request for an instruction on second-degree reckless injury because it admits that he engaged in the alleged conduct and rests only on the claim that he had a privileged reason for doing so.

¶ 59 Miller's circumstances differ significantly from those in Eckert . First, as noted, a lesser-included offense instruction for second-degree reckless injury would not have been inconsistent with nor harmful to Miller's claim of self-defense.¹⁸ Second, because second-degree reckless injury is a lesser-included offense of both first-degree reckless injury and aggravated battery, conviction on the lesser offense would have precluded Miller from being convicted of two felonies, dramatically reducing Miller's exposure to criminal penalties. See WIS. STAT. §§ 940.19(5) and 939.50(3)(e) (classifying aggravated battery as a Class E felony punishable by up to fifteen years' imprisonment and a $50,000 fine); 940.23(1) and 939.50(3)(e) (classifying first-degree reckless injury as a Class D felony punishable by up to twenty-five years' imprisonment and a $100,000 fine); 940.23(2) and 939.50(3)(f) (classifying second-degree reckless injury as a Class F felony punishable by up to twelve years' and six months' imprisonment and a $25,000 fine). Third, the trial court found that, had counsel adequately informed Miller about the option to request the lesser-included offense instruction, Miller would have asked counsel to request the instruction.

18 The State argues that even if a lesser-included offense instruction would not be inconsistent with Miller's assertion of self-defense, it was nonetheless harmful to Miller's defense because trial counsel could have reasonably concluded that the presentation of such an alternative would have harmed Miller's claim that he acted in self-defense. This overlooks the court's finding that Miller, had he been properly informed of his options, would have wanted counsel to request an instruction on the lesser-included offense.

¶ 60 Under these circumstances, we conclude that trial counsel was deficient for failing to adequately inform Miller of the option to request a lesser-included offense instruction. While counsel had the right to make the decision whether to request a lesser-included offense instruction, his failure to adequately inform Miller about the option to make the request was deficient performance. Counsel's failure deprived Miller of the opportunity to express to counsel his views on a strategic decision with serious implications for his future, and to fire counsel if, after being properly informed, he still opposed counsel's strategic decision.

¶ 61 Having concluded that trial counsel was deficient for failing to adequately inform Miller of the option to request the lesser-included offense of second-degree reckless injury on the first-degree reckless injury count, we consider whether counsel's deficient performance prejudiced Miller. To prove prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694.

¶ 62 In the prior section, we examined the evidence against Miller and concluded that it was insufficient to support Miller's conviction for first-degree reckless injury. Thus, given the dearth of evidence to support the higher charge, we must conclude that the failure to submit an instruction for the lesser charge of second-degree reckless injury was prejudicial. Even if we had not concluded that the evidence was insufficient to support a charge of first-degree reckless injury, we would conclude that a strong probability exists that, but for counsel's failure to adequately inform Miller of the option to request an instruction on second-degree reckless injury, the result would have been different. That is, a strong probability exists that the jury, had it received an instruction on second-degree reckless injury consistent with Miller's wishes, would have found Miller guilty of the lesser-included offense of second-degree reckless injury and not of the more serious offense for which he was convicted, first-degree reckless injury. We therefore conclude that an alternate ground for reversal exists based upon counsel's failure to inform Miller of his option to request a lesser-included offense instruction.

Additional Challenges Pertaining to the Conviction for Aggravated Battery

¶ 63 The trial court's remaining bases for concluding that Miller was denied the effective assistance of counsel pertain only to the first-degree reckless injury charge. We have rejected the only basis on which the trial court vacated Miller's conviction for aggravated battery, which was that trial counsel was ineffective in failing to adequately inform him of the option to request an instruction on the lesser-included offense. However, Miller makes arguments concerning counsel's failure to inform him of a plea offer and alleged mismanagement of jury deliberations by the trial court that pertain to his conviction for aggravated battery which the trial court did not address. We address these arguments in turn.

¶ 64 First, Miller argues that trial counsel rendered ineffective assistance in failing to apprise Miller of the existence of a plea offer. The trial court concluded that, while counsel's performance was deficient in this regard, Miller was not prejudiced by counsel's error because Miller testified at the Machner hearing that he probably would not have taken the offer had he been informed of it. Based on this testimony, we likewise conclude that trial counsel's failure to apprise Miller of the plea offer was not prejudicial and therefore reject this argument.

¶ 65 Second, Miller makes a set of arguments that concern alleged mismanagement of jury deliberations by the trial court, ineffective assistance for counsel's failure to object to the alleged mismanagement of the jury, and an allegation that a juror changed his vote to "guilty" to end jury deliberations so that he could leave for a fishing trip. The relevant facts of these claims are as follows. The court informed the jury at the outset that the trial was expected to last two days. When, at the end of the second day, it became clear that the trial would run long, the court asked jurors if they would be able to return the following day. One juror informed the court that he had planned to leave town the following day at 3:00 p.m. for an annual fishing trip. The court advised the juror that the case would likely be sent to the jury by noon. As it happened, the case did not go to the jury until 4:12 p.m. the following day, and the jury returned a guilty verdict at approximately 8:30 that night. Miller avers in an affidavit accompanying his WIS. STAT. § 974.06 motion that the fishing-trip juror later told an investigator that he switched his vote from "innocent" to "guilty" to end jury deliberations so that he could leave for the trip.

¶ 66 On appeal, Miller contends that the trial court's decision to convene the jury despite the juror's fishing trip violated rules of judicial administration set forth in Supreme Court Rule 73.03¹⁹ regarding management of a jury, and that this error was not harmless. He also contends that trial counsel was ineffective for not objecting to the court's failure to question the jurors before requiring them to deliberate in light of one juror's known scheduling conflict. Finally, he argues that the "fishing-trip juror incident" deprived him of his right to due process and a twelve-person jury trial, entitling him to a new trial.

19 Wisconsin Supreme Court Rule 73.03 provides, as pertinent:

(1) Jury deliberations shall take place under conditions and pursuant to procedures that are designed to maintain impartiality and to enhance rational decision making.

(2) The judge shall instruct the jury concerning appropriate procedures to be followed during deliberations.

. . . .

(4) The judge shall determine, after considering the needs of the jury, the parties and the court system, whether a jury will deliberate after normal working hours.

¶ 67 The State responds that Miller's argument to the trial court concerned only the juror's statement that he changed his vote to "guilty" and not the court's alleged violation of SCR 73.08, and therefore Miller has waived any argument based on the supreme court rules. We observe, however, that Miller raised his argument under SCR 73.08 in his initial pro se brief to the trial court. We therefore reject the State's claim of waiver.

¶ 68 Assuming for argument's sake that the court's actions violated SCR 73.08, Miller provides no authority for the proposition that a court's violation of a supreme court rule may, alone, be grounds for reversal of a criminal conviction, and we decline to adopt such a rule here.²⁰ Cf. Cook v. Cook , 208 Wis.2d 166, 189, 560 N.W.2d 246 (1997) (court of appeals is primarily an error-correcting court). In supplemental authority, Miller cites State v. Ruiz-Velez , 2008 WI App 169, ¶ 6, __ Wis. 2d __, __ N.W.2d __, which addressed SCR 71.01(2), requiring the reporting of all proceedings in circuit court, in reversing a court order denying the transcription of an audiovisual recording of a child victim in a sexual assault case. However, Ruiz-Velez concluded that the circuit court's denial violated WIS. STAT. RULE 908.08, requiring the reporting of videotaped testimony presented at trial. This court's brief discussion of SCR 71.01(2) in Ruiz-Velez , which concluded that the circuit court's action violated the rule, followed our conclusion that the circuit court violated RULE 908.08, and was offered merely to "reinforc[e] our analysis." Ruiz-Velez therefore does not persuade us that, even if a violation of SCR 71.01(2) occurred, reversal of Miller's conviction would be warranted.

20 We distinguish a supreme court rule from rules adopted by the supreme court pursuant to its rule-making authority that is codified in the Wisconsin statutes. See, e.g. WIS. STAT. RULE 801.02 (rules for commencing an action); WIS. STAT. RULE 801.17 (electronic filing rules); WIS. STAT. RULE 802.02 (pleading rules).

¶ 69 With regard to Miller's argument that counsel was ineffective for not objecting to the trial court's failure to question the jurors before ordering them to deliberate, we conclude that Miller has failed to demonstrate that his counsel's performance was deficient. The court had the following exchange with the juror about the fishing trip:

Court: And what is your situation, sir?

Juror: I have a sturgeon fishing trip planned for tomorrow, but I can wait. It all depends how long. I was planning to leave by 3:00.

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

Juror: It's a yearly thing, but I can wait.

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

¶ 70 Finally, we consider Miller's argument that he is entitled to a new trial based on allegations contained in an affidavit in which Miller avers that the fishing-trip juror told an investigator hired by Miller that he changed his vote to "guilty" to end jury deliberations so that he could leave for his fishing trip. WISCONSIN STAT. § 906.06(2) provides that a juror may not provide testimony in an inquiry into the validity of a verdict "except . . . on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." To be entitled to an evidentiary hearing inquiring into the validity of a verdict, the party seeking to set aside a verdict on grounds of extraneous prejudicial information or outside influence must make a preliminary showing by affidavit or nonjuror evidence. Manke v. Physicians Ins. Co. of Wisconsin, Inc. , 2006 WI App 50, ¶ 25, 289 Wis. 2d 750, 712 N.W.2d 40. The affidavit or nonjuror evidence must demonstrate that "the subject matter of the proposed hearing is within an exception to WIS. STAT. § 906.06(2) and must assert facts that, if true, would require a new trial." Id. Whether the affidavit in this case meets this legal standard is a question of law, which we review de novo. Id . at ¶ 19.

¶ 71 We conclude Miller's affidavit fails to allege facts that would entitle him to an evidentiary hearing inquiring into the validity of the verdict, let alone entitle him to a new trial. Miller claims that the fishing-trip juror's "impending departure for his annual trip, and no doubt the chiding he could expect from his buddies," was an outside influence improperly brought to bear upon the juror. We conclude that the scheduled fishing trip, and any criticism the juror might expect to receive from his fishing buddies for missing the trip, was not, as a matter of law, an "outside influence" within the meaning of WIS. STAT. § 906.06(2).

CONCLUSION

¶ 72 In sum, we conclude that the evidence was insufficient to convict Miller of first-degree reckless injury. We further conclude that an alternate ground for reversal of the conviction for first-degree reckless injury exists based on trial counsel's failure to adequately inform Miller of the option to request a jury instruction for the lesser-included offense of second-degree reckless injury. Finally, we conclude that the trial court erred in vacating Miller's conviction for aggravated battery. Accordingly, we modify the trial court's order for a new trial on the conviction of first-degree reckless injury and remand for the trial court to enter a judgment of acquittal, and we reverse that portion of the trial court's order vacating Miller's conviction of aggravated battery.

By the Court. — Order modified, and as modified, affirmed in part; reversed in part and cause remanded with directions.

Recommended for publication in the official reports.

VERGERONT, J. (concurring in part; dissenting in part).

¶ 73 I write separately because I conclude there was sufficient evidence to convict Miller of first-degree reckless injury. In addition, while I agree that trial counsel was ineffective for failing to inform Miller of the option of a lesser-included offense for that charge, I disagree with the analysis on prejudice leading to that conclusion. On all other issues I join in the majority opinion.

I. Sufficiency of Evidence

¶ 74 I conclude that, if the evidence is viewed in the light most favorable to the verdict, it is sufficient to support a conviction for first-degree reckless injury, and, in particular, is sufficient to find beyond a reasonable doubt that Miller showed utter disregard for human life. In my view the majority's recitation of the facts is not a view of the evidence most favorable to the verdict. It relies primarily on Miller's testimony on direct examination and portions of his roommate's and his roommate's cousin's testimony that are consistent with Miller's testimony. The majority does not examine inconsistencies in the testimony or inconsistencies between the trial testimony and prior statements, and it does not draw all reasonable inferences from the evidence in favor of the verdict.

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

¶ 76 Another example is that, while Russell testified at trial that Nakai slapped him in the bedroom, a reasonable jury could find this less credible than the statement Russell gave soon after the event in which he did not mention being slapped, but instead said Nakai might have grabbed his wrist and tried "like twisting it," saying "[w]ill you listen to me when I'm talking to you." Although John corroborated Russell's trial testimony, John also testified that his and Kesey's reaction was to laugh at the interaction.

¶ 77 Turning to what occurred after Miller called 911 the first time, I note that, based on his statements to an investigating officer soon after the incident, Miller was really angry when he went back to the hallway and he pulled Nakai away from Russell, striking Nakai several times. Miller was surprised to see how easy it was for him to strike and take control of Nakai, and, he stated, that probably had something to do with Nakai's consumption of alcohol. A reasonable jury could credit this statement rather than Miller's trial testimony, which the majority recites, and could decide that Miller, not Nakai, had the upper hand.

¶ 78 Both John and Russell agree that Russell, having taken his shirt off, went to get John and said "[h]ey, get out here. We're going to kick his ass," and both went to the kitchen, where Miller was with Nakai. It was just after John and Russell came into the kitchen that Nakai picked up the screwdriver. According to Miller's statements to the investigating officer, at this point Nakai was on one side of a table and an island in the kitchen and the other three were on the other side. According to Russell's testimony on cross-examination and Miller's testimony, Nakai never said he was going to kill them with the screwdriver. Nakai said, "Do you know what I can do with this?" Miller said, "[y]eah, you could probably kill us," and Nakai answered, "[y]eah, that's right." John, Russell, and Miller all agreed that at no time did Nakai lunge at any of them with the screwdriver or attempt to stab any of them with the screwdriver. John described Nakai's motion with the screwdriver as "moving it from side to side . . . with his full arm." Miller described Nakai as moving his wrist from side to side and agreed Nakai made no stabbing or sharp, jerky motions with it. A reasonable inference from this evidence, drawn in favor of the verdict, is that Nakai picked up the screwdriver to defend himself against three other people, one of whom had just said they were going to "kick his ass."

¶ 79 A reasonable jury could also decide that it was evident to Miller that Nakai was having difficulty moving because he was so intoxicated. Evidence supporting this reasonable inference is Miller's statement to the officer, referred to in paragraph 5, and Russell's testimony that in the 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."

1 Russell was describing how Nakai was moving immediately after Miller left the kitchen, and, thus, Miller would not have seen these precise movements. However, a reasonable jury could infer that Nakai was having the same difficulty walking steadily and maintaining his balance before Miller left the kitchen and that Miller saw this.

¶ 80 Miller testified that, when Nakai picked up the screwdriver, Miller decided he was going to get his shotgun from his bedroom. Miller, John, 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 his back, not his whole body. Miller acknowledged that while he was in the bedroom getting his gun and loading it with .12 gauge shells, he could not hear what was being said in the kitchen, just noise. John testified that neither he nor Russell called to Miller for help after Miller left the kitchen.

¶ 81 Miller testified on cross-examination that, as he walked out of the bedroom with the gun loaded, he told Nakai to get the "F" out of his house and then he pumped his gun while he was still moving. He stopped while still in the hallway and leveled the gun at Nakai; he could see that Nakai was still in the same general area as when Miller had left the kitchen and that he was not lunging at anyone. He could see only Nakai; he did not know where Russell and John were. The investigating officer testified that from the location in the hallway where the evidence, in his view, showed Miller was standing when he pulled the trigger, Miller could not see whether anyone in the kitchen was in harm's way. According to the investigating officer, Miller was about sixteen feet or seventeen feet away from Nakai when he pulled the trigger. Miller never told the officer that he shot Nakai because he thought Nakai was going to stab him.

¶ 82 Other than telling Nakai to get out of his house, Miller agreed that he did not give Nakai any warning before pulling the trigger. Miller estimated that he waited three or four seconds after telling Nakai to get out of his house before pulling the trigger. Miller did not tell Nakai he had a firearm. John told the investigating officer that he did not hear Miller tell Nakai to get out of his house before the shot, but at trial John said he did hear Miller say that and "immediately after that, I heard the shot." Russell testified he did not hear any warning before the shot. Immediately before Nakai was shot, Russell testified, Nakai was looking at him and John; he was not looking anywhere else, and he had forgotten about Miller.

¶ 83 Miller told the investigating officer that he "fired towards the bottom midsection, hip area, I think, just kind of . . . I didn't aim it, just kind of pointed it in the general area." He agreed on cross-examination that he pointed the gun at Nakai's "mid area." Miller testified that he did not intend to kill Nakai, but he agreed that he intended to "cause great damage to [him]." Although Miller denied that he intended to shoot Nakai when he entered his bedroom, he also acknowledged that nothing had changed from the time he left the kitchen that caused him to decide to shoot Nakai.

¶ 84 A reasonable jury could conclude from the above evidence, viewing it in favor of the verdict, that Miller knew he was not in any immediate danger when he shot Nakai and neither were John and Russell, and that no reasonable person would have thought otherwise. A reasonable jury could conclude that Miller did not tell Nakai to leave just before the shot and, even if Miller did, it was not intended as a warning and Miller knew it could not have functioned as one because the shot came immediately after and Miller knew Nakai could not have moved quickly because of his intoxication. Based on Russell's testimony on where Nakai was looking, a reasonable jury could infer either that Miller knew Nakai was not looking at him, or that Miller did not care whether Nakai was or not, despite Miller's testimony to the contrary. A reasonable jury could determine that Miller was so frustrated and angry with Nakai that he wanted to hurt him badly and this was his primary motivation.

¶ 85 The evidence of Miller's conduct immediately after he shot Nakai, viewed most favorably to the verdict, supports this determination. According to Russell's trial testimony, Nakai fell to the floor a couple seconds after being shot. Russell told the investigating officer that when Nakai was shot, Miller came running down the hall with the shotgun and screamed "[g]et the fuck out of my house," and "I'm sick of this shit," and "[w]ill you open the door," although at trial Russell said he did not remember that. Russell did remember that Nakai said "I'm getting out" and was trying to move as he lay on the floor, but he could move only very slowly. Russell acknowledged that Miller grabbed Nakai and tried to get him out the door and roll him down the steps. According to the investigating officer, Miller said that, after he shot Nakai, he went over to him and kicked him and tried to push or drag him out of the house, although at trial Miller denied this. Miller did admit that he stood over Nakai yelling at him to get out, with his gun still pointed at Nakai, because he was afraid Nakai could still harm them.

¶ 86 A reasonable jury could resolve the inconsistencies between Miller's and Russell's accounts to the investigating officer, on the one hand, and their trial testimony, on the other hand, by choosing to believe the former. Given the amount of blood described by other witnesses and given Russell's and other witnesses' descriptions of Nakai after he was shot, a reasonably jury could believe that it was evident to Miller that Nakai was seriously injured and was not a threat. A reasonable jury could decide that Miller's kicking and dragging Nakai out of the house was not done out of fear, as Miller testified, but out of anger and without regard to the fact that such treatment of Nakai at that time could exacerbate the threat to Nakai's life already posed by the injury Miller had just inflicted. A reasonable jury could have found this evidence of how Miller treated Nakai directly after the shooting more revealing of Miller's true motivation than the second call to 911, which Miller made after he kicked and dragged Nakai, and more revealing than Miller's subsequent inquiry whether Nakai was going to be all right.

¶ 87 Because I conclude that, correctly evaluating the evidence, it is sufficient to prove beyond a reasonable doubt that Miller showed utter disregard for human life, I do not agree that the first-degree reckless injury conviction should be reversed for insufficient evidence.

II. Ineffective Assistance — Lesser-Included Offense of Second-Degree Reckless Injury

¶ 88 I agree with the analysis in paragraphs 56-60 of the majority opinion that trial counsel was deficient for failing to adequately inform Miller of the option to request the lesser-included offense of second-degree reckless injury with respect to the first-degree reckless injury charge. I also agree that Miller was prejudiced by this deficient performance, although my analysis differs. I view the evidence on the "utter disregard" element, which distinguishes the first-degree and second-degree reckless injury offenses, as presenting a very close question. Although, viewing the evidence most favorably to the conviction on the greater offense, I have concluded there is sufficient evidence, I think a reasonable jury could take a different view of the evidence and find it insufficient. I do not agree with the majority that there is a " strong probability" (emphasis added) that a reasonable jury would convict on the lesser offense had it been instructed that it could do so. However, I think there is a reasonable probability, which is "a probability sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694.

CONCLUSION

¶ 89 For the above reasons, I respectfully dissent from the majority's conclusion that there was insufficient evidence for the first-degree reckless injury conviction and I respectfully concur in the majority's conclusion that trial counsel was ineffective for failing to inform Miller of the option of a lesser-included offense for that charge. On all other issues I join in the majority opinion.