2015 WI 75

SUPREME 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 75

NOTICE

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, 

 v. 

Maltese Lavele Williams, 

 Defendant-Appellant. 

FILED 

JUL 10, 2015 

Diane M. Fremgen 

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 

¶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. 
No. 2014AP1099-CR 

3 

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. 
No. 2014AP1099-CR 

4 

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 
No. 2014AP1099-CR 

5 

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 
No. 2014AP1099-CR 

6 

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. 
No. 2014AP1099-CR 

7 

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 
No. 2014AP1099-CR 

8 

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 
No. 2014AP1099-CR 

9 

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." 
No. 2014AP1099-CR 

10 

¶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: 
No. 2014AP1099-CR 

11 

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. 
No. 2014AP1099-CR 

12 

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 
No. 2014AP1099-CR 

13 

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. 
No. 2014AP1099-CR 

14 

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. 
No. 2014AP1099-CR 

15 

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, 
No. 2014AP1099-CR 

16 

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). 
No. 2014AP1099-CR 

17 

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 
No. 2014AP1099-CR 

18 

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. 
No. 2014AP1099-CR 

19 

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. 
No. 2014AP1099-CR 

20 

¶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, 
No. 2014AP1099-CR 

21 

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 
No. 2014AP1099-CR 

22 

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). 
No. 2014AP1099-CR 

23 

¶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). 
No. 2014AP1099-CR 

24 

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). 
No. 2014AP1099-CR 

25 

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. 
No. 2014AP1099-CR 

26 

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 sufficiencyof-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). 
No. 2014AP1099-CR 

27 

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. 
No. 2014AP1099-CR 

28 

¶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 
No. 2014AP1099-CR 

29 

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. 
No. 2014AP1099-CR 

30 

¶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 
No. 2014AP1099-CR 

31 

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 
No. 2014AP1099-CR 

32 

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). 
No. 2014AP1099-CR 

33 

¶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. 
No. 2014AP1099-CR 

34 

¶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 
No. 2014AP1099-CR 

35 

¶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 
No. 2014AP1099-CR 

36 

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 
No. 2014AP1099-CR 

37 

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. 
No. 2014AP1099-CR.ssa 

1 

¶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. 
No. 2014AP1099-CR.ssa 

1