2015 WI 75



# S UPREME 

# C OURT OF 

# W ISCONSIN

C ASE N O .: 2014AP1099-CR C OMPLETE T ITLE : State of Wisconsin,

Plaintiff-Respondent, v. Maltese Lavele Williams, Defendant-Appellant.

ON CERTIFICATION FROM THE COURT OF APPEALS

O PINION F ILED : July 10, 2015 S UBMITTED ON B RIEFS : O RAL A RGUMENT : April 21, 2015.

S OURCE OF A PPEAL : C OURT : Circuit C OUNTY : Milwaukee J UDGE : Jeffrey A. Wagner

J USTICES : C ONCURRED : ABRAHAMSON, J., concurs. (Opinion Filed.) D ISSENTED : N OT P ARTICIPATING :

A TTORNEYS : 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

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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 Cou rt for Milwaukee County, Jeffrey A. Wagner, Judge. Affirmed.

¶1 DAVID T. PROSSER, J. This case is before the c ourt 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 e rroneous jury instructions in criminal trials.

1 All subsequent references to the Wisconsin Statute s are to the 2011-12 version unless otherwise indicated.No. 2014AP1099-CR

2 ¶2 Maltese Lavele Williams (Williams) and two accom plices attempted to rob Michael Parker (Parker) in Parker' s home on the evening of January 14, 2013. During the robbery, P arker and a houseguest, Authur Robinson (Robinson), were shot a nd killed. At trial, the jury was given an instruction indicat ing that they could convict Williams of the felony murder of Robi nson if the defendants had attempted to rob Robinson and the at tempted robbery caused Robinson's death. However, the Stat e presented insufficient evidence at trial that the defendants had attempted to rob Robinson. Instead, the State relied primari ly on the theory that the men attempted to rob Parker. The j ury 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 o f felony murder for the death of Robinson would be th at Williams, as party to a crime, caused the death of Robinson w hile engaged in an attempted armed robbery of Parker. However, Williams argues that the jury was obligated to follow the in structions given to them on felony murder, and that the eviden ce presented was insufficient for the jury to convict him under the instructions given. The State counters that any er ror in the jury instructions only increased the burden on the State, and that it is clear that had the jury been given the p roper

2 Milwaukee County Circuit Judge Jeffrey A. Wagner p resided at the trial.No. 2014AP1099-CR

3 instruction, the jury still would have found Willia ms 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 cas e 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 th e jury was given an instruction that inaccurately added an ele ment——not required by the statute——to the crime of fleeing or evading a police officer. ¶5 In certifying this case for our review, the cour t of appeals noted that "[e]ach of these three cases, Wu lff, Beamon, and now Williams, appears to present a subtle varia tion of the same issue," and observed that it was "uncertain wh ether Williams is more like Wulff or more like Beamon." State v. Williams, No. 2014AP1099-CR, unpublished certificat ion (Wis. Ct. App. Nov. 6, 2014). The court of appeals also note d that two other issues on appeal——ineffective assistance of c ounsel claims related to trial counsel's decision not to strike a juror and not to object to the admission of crime scene photo graphs—— involved the application of settled law. ¶6 We hold that a jury instruction may be considere d erroneous when it describes a theory of criminal cu lpability that was not presented to the jury or it omits a va lid theory of criminal culpability that was presented to the jury

.No. 2014AP1099-CR

4 Convictions under erroneous jury instructions are s ubject to harmless error review. When an erroneous instructi on has been given but it is clear beyond a reasonable doubt tha t the jury would have convicted the defendant had the proper i nstruction been given, the jury verdict can be affirmed. ¶7 Here, based on the strength of the evidence pres ented 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 in struction accurately reflected the State's theory of the crim e. We therefore hold that the defect in the jury instruct ions was harmless error. Furthermore, we conclude that Will iams was not prejudiced by his trial counsel's decision not to s trike a juror and not to object to the admission of crime scene p hotographs. 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 le arned 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 k itchen. Both victims died from bullet wounds. ¶9 Police recovered a cell phone at the scene of th e murders and traced the phone to an individual named DajuanNo. 2014AP1099-CR

5 Collins. Collins, in turn, led the police to Willi ams, who was arrested around 3:00 p.m. on January 21, 2013. ¶10 Milwaukee Police Detective Kent Corbett intervi ewed Williams the next day at the Milwaukee Police Depar tment. Williams first denied knowing Parker or Collins, bu t eventually admitted to knowing both. Williams also admitted t hat he had arranged the drug deal and was at the scene when th e homicides occurred. He said that Collins had killed Parker. ¶11 Williams explained that the events leading up t o 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, Will iams 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, William s and Collins went inside, while Dixon remained outside. Williams noticed Robinson sleeping in the living room. Park er called Williams into the kitchen, and as Parker and Willia ms were discussing Parker's marijuana, Collins burst into t he room pointing a gun and demanding the marijuana. ¶13 Parker attempted to flee and Collins opened fir e. Collins fired one shot in the kitchen and then foll owed Parker into the living room where Collins fired several ad ditional
shots. ¶14 In spite of being shot three times, Parker mana ged to escape through the front door of his home. After g ettingNo. 2014AP1099-CR

6 outside, however, Parker ran across the street, col lapsed in the snow and died. ¶15 Williams explained to Detective Corbett that he remained in the kitchen until after the initial fus illade. Williams then returned to the living room and saw C ollins and Robinson fighting for control of the gun. Williams said that he exited the house through the front door while Colli ns and Robinson continued to fight. ¶16 In the initial information filed February 5, 20 13, after a preliminary examination, Williams was charg ed 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 char ges to two counts of first-degree intentional homicide as part y to a crime, and two counts of attempted robbery as party to a c rime. 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 photograp hs from the scene that have blood on them, that have people dec eased, people

3 Contrary to Wis. Stat. §§ 940.03, 943.32(2), 939.3 2, 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 Dixo n 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 vie wing this type of evidence would cause problems for anyone, s everal jurors expressed reservations about their capacity to exam ine 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 reservati ons, stating, "As far as the pictures, I can't do that." Juror N o. 12 said: "It would be totally gross, grossed out in that sit uation." 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 lis ten to all the facts, to hear the testimony and weigh the evid ence and make a decision in this case? Anyone feel they would no t 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 photo graph issue. Juror No. 6 said the photos would make her uncomfortable and would probably be something she'd think about a ll 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 pr ompted theNo. 2014AP1099-CR

8 court to interject with the comment that "everybody would agree they're not pleasant pictures to look at . . . . T he question is whether or not it would impair your ability to c ome 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 so ught clarification of Juror No. 12's comment. After a b rief exchange, Juror No. 12 agreed that what he was tryi ng to convey was that looking at the pictures would make him fee l 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 cou nsel never moved to strike the juror for cause or by a perempt ory strike. ¶22 Williams' trial lasted a total of four days, du ring which the jury heard testimony from two police offi cers, a lieutenant, five detectives, forensic investigators , a DNA analyst, Parker's neighbor, and the medical examine r, Dr. Brian Linert, who conducted autopsies on the victims. Dr . Linert testified that Parker had been struck by three bull ets. Dr. Linert also testified that Robinson died of a penet rating gunshot wound to the chest. The State entered seve ral exhibits into evidence during Dr. Linert's testimony, includ ing a number of autopsy photographs depicting Parker's wounds, w hich the State used to clarify the nature, extent and locati on of Parker's wounds. Similar exhibits were entered rel ating to Robinson, including the autopsy report, a photograp h of theNo. 2014AP1099-CR

9 bullet recovered from Robinson's chest, another sho wing the entrance wound of the fatal shot, and several depic ting blunt force injuries possibly consistent with an altercat ion. ¶23 On the last day of trial, prior to closing argu ments, the parties and the court discussed jury instructio ns. Although Williams was charged with first-degree intentional homicide, the jury instructions also contemplated a number of les ser included offenses, including first-degree reckless homicide and felony murder. Williams' counsel observed, as proposed in structions were being discussed, that "the way this case has b een charged and now in combination with the lesser included offenses, . . . has created a legal Rubik's Cube th at 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 th at if the jury did not find Williams guilty of first-degree i ntentional or reckless homicide, they would need to decide whethe r Williams was guilty of felony murder. ¶25 The court instructed the jury that "Felony mu rder requires the state to prove the defendant caused th e 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 i s committed by "one who causes the death of another h uman being while attempting to commit the crime of armed robbe ry, 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 b eyond a reasonable doubt "that the defendant attempted to c ommit the crime of armed robbery as a party to a crime, that the death of Michael Parker in Count 1 and Authur Robinson in Co unt 2 was caused by the attempt to commit armed robbery, part y to a crime." ¶28 Then the court added: "The first element of fel ony murder requires that the defendant attempted to com mit 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 threa ten 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 physica l resistance or physical power to resist the taking o r 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 pers on 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 discus sed 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 attem pts 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 mur der as well. (Emphasis added.) ¶30 During Williams' closing argument, defense coun sel emphasized the lack of evidence as to an attempted armed robbery of Robinson, and the effect that had on the homicid e 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 othe r words, like the store clerk. There was no evidence that any demand was made of Mr. Robinson for anything. And there was no eviden ce 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, th ere 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 guilt y of attempted armed robbery of Robinson and not guil ty of any level of the homicides we've discussed. (Emphasis added.) ¶31 During the State's rebuttal, the prosecutor aga in 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. Th at 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 t he bank, or the store, or the drug house. And the sta te has to show that there was a robbery or an attempte d 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 William s guilty of two counts of felony murder. The jury al so returned verdicts for the two counts of attempted armed robb ery, despite having been instructed not to return those verdicts if they found Williams guilty of felony murder. The jury f ound WilliamsNo. 2014AP1099-CR

13 guilty of the attempted armed robbery of Parker, an d not guilty of the attempted armed robbery of Robinson. ¶33 Williams appealed, arguing that there was insuf ficient evidence for a finding of guilt as to the felony mu rder of Robinson and that his trial counsel was ineffective . The court of appeals certified the case for our review, and w e granted review on December 18, 2014.
II. STANDARD OF REVIEW ¶34 We first address whether there was sufficient e vidence to convict Williams of the felony murder of Robinso n. Generally, we give significant deference to jury ve rdicts in criminal cases. However, "[w]here jury instruction s do not accurately state the controlling law, we will exami ne the erroneous instructions under the standard for harml ess error, which presents a question of law for our independen t review." Beamon, 347 Wis. 2d 559, ¶19 (citing State v. Harve y, 2002 WI 93, ¶18, 254 Wis. 2d 442, 647 N.W.2d 189). In dete rmining 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 p robative 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. P oellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990)). ¶35 We also address whether Williams received ineff ective assistance from his trial counsel. Claims of ineff ective assistance of counsel are mixed questions of fact a nd 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 an d strategy—— unless those findings are clearly erroneous. Id. Whether trial counsel's performance unconstitutionally deprived t he defendant of the right to counsel is a question of law we rev iew de novo.
Id.
III. DISCUSSION ¶36 Our discussion proceeds in two main parts. Fir st, we address the jury instructions and the question of w hether the evidence presented was sufficient to sustain a conv iction for the felony murder of Authur Robinson. Second, we a ddress Williams' claims that his trial counsel's performan ce unconstitutionally deprived him of the right to cou nsel. A. Sufficiency of Evidence ¶37 We begin by considering whether the evidence pr esented to the jury was sufficient to sustain conviction fo r the second count of felony murder. This involves an examinati on of the jury instructions and their relationship to the cri me charged. We start with Wulff and Beamon, the controlling cas es. i. Wulff and Beamon ¶38 This court decided Wulff in 1997. The defendan t, Brian C. Wulff, was charged with attempted second-d egree sexual assault following an incident that occurred in La C rosse in the early morning hours of September 17, 1993. Wulff a nd the victim, C.D., had encountered each other at a bar t hat 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 comp letely naked with Wulff on top of her attempting to force his er ect 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, o ral, and anal swabs revealed that no semen was present, and no semen was found on the tampon that had been removed. Com bings 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 lan guage of the statute. The information stated that Wulff had att empted "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 . . . an y 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 clos ing argument,No. 2014AP1099-CR

16 the State presented theories of attempted sexual co ntact, attempted sexual intercourse by fellatio, and attem pted sexual intercourse by vulvar penetration. However, when t he jury was instructed on the charge, the court's instruction o mitted 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 ev idence 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 Suprem e Court

6 Specifically, the jury instruction given was as fo llows: 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 tri al and the law as given to you by these instructions a nd 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 81 3 (1997).No. 2014AP1099-CR

17 stated "we cannot affirm a criminal conviction on t he basis of a theory not presented to the jury." Thus, although the State had provided sufficient evidence to sustain a jury verd ict on the theory of attempted fellatio, this court reversed t he conviction because the theory of attempted fellatio had not be en given as a part of the jury instructions. Wulff, 207 Wis. 2d at 154. ¶43 In 2013 this court revisited the issue of fault y jury instructions in Beamon. In the early morning hours of November 19, 2007, Racine police officers were involved in t he pursuit of a vehicle driven by Courtney C. Beamon. Id., ¶¶5-6 , 11. While being pursued by a police car with its emergency li ghts and siren activated, Beamon's vehicle reached speeds of 45-50 miles per hour on city streets without the headlights act ivated. Id., ¶7. Shortly after driving through an intersection controlled by a four-way stop sign without stopping or slowing do wn, 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 b eing apprehended after a lengthy chase. Id., ¶¶9-10. ¶44 Beamon was charged with multiple counts, includ ing "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 s uchNo. 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 cl osely tracked the language of the statute. See Wis. Stat. § 346. 04(3) (2007- 08). ¶45 However, the jury instructions did not follow t he information or the statute. Instead, the jury inst ructions stated that a person violates the statute "by willf ul disregard of [a police emergency] signal so as to interfere w ith or endanger the traffic officer by increasing the spee d of the vehicle to flee." Id., ¶15 (emphasis added). ¶46 Missing from the jury instruction was the key w ord "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 i ncreasing the speed of the vehicle. The State never presented ev idence to the jury that Beamon accelerated his vehicle. Neverthe less, the jury convicted him of the charge. ¶47 This court affirmed the conviction. Beamon, 34 7 Wis. 2d 559, ¶4. First, we noted that it is inappr opriate to

7 A person could also violate the law by extinguishi ng the lights on the vehicle in an attempt to flee; howeve r, that seems not to have been an issue in the case because Beamo n 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 W isconsin law that crimes are defined only by the legislature. I d. (citing Wis. Stat. §§ 939.10, 939.12). ¶48 Second, we acknowledged that faulty jury instru ctions are subject to harmless error review. Id., ¶24 (ci ting 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 instru ctions that place an additional burden on the State. Id., ¶¶24 -25. "Therefore, where a jury instruction erroneously st ates the applicable statute, we must determine whether, unde r the totality of the circumstances, the erroneous instru ction constituted harmless error." Id., ¶27 (citing Harv ey, 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 meth ods of proving the second requirement of the offense," but that the error was harmless. Id., ¶¶35, 37. We concluded t hat the error was harmless because it was "clear beyond a reasona ble 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 c ase was different. We noted that in Wulff, the jury was gi ven an accurate instruction that merely omitted a possible avenue for finding the defendant guilty——and all of the eviden ce presented related to that omitted avenue. Id., ¶44. We also explained that Wulff predated the court's adoption of the har mless 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 ru le to be gleaned from our prior case law on the subject o f 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; Nede r, 527 U.S. at 11; Beamon, 347 Wis. 2d 559, ¶¶24-25; Harvey, 25 4 Wis. 2d 442, ¶47. See also Wis. Stat. § 805.18. T his includes errors that omit an element, cf. State v. Smith, 20 12 WI 91, ¶¶60-63, 342 Wis. 2d 710, 817 N.W.2d 410, as well a s errors that create requirements beyond the statute. Beamon, 34 7 Wis. 2d 559, ¶25. See also State v. Zelenka, 130 W is. 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, thi s holding represents sound policy. As this court not ed in Wulff, a criminal defendant whose conviction is overturned due to insufficient evidence cannot be retried for that cr ime. Wulff,No. 2014AP1099-CR

21 207 Wis. 2d at 153. This all-or-nothing propositio n 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 Wisconsi n Constitutions require that criminals go free simply because of typos. A more reasonable approach is available. ¶53 The application of harmless error analysis to j ury instructions in sufficiency-of-evidence cases asks two basic questions. First, was the jury instruction erroneo us? Second, is it clear beyond a reasonable doubt that the jury still would have convicted the defendant had the correct instru ction been provided? ¶54 In Beamon, we identified one way in which a jur y instruction can be erroneous: "a jury instruction t hat does not accurately state the statutory requirements for the crime charged constitutes an erroneous statement of the l aw." Beamon, 347 Wis. 2d 559, ¶24. However, it would oversimpli fy the law to hold that a jury instruction for a crime is erroneo us only if the instruction omits an element or includes an ext ra element. ¶55 The statutory elements of some crimes may be hi ghly context-specific. See id., ¶55 (Bradley, J., disse nting) ("[C]ourts throughout this state regularly give jur y instructions that contain factual theories of prose cution."). If the State pursues charges on one theory for a cr ime, it cannot be said that a jury instruction is erroneous if it omits theories of the crime that were not presented to th e jury. This is particularly true with crimes such as felony mur der, forNo. 2014AP1099-CR

22 which there are a number of possible underlying cri mes. 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 assa ult. ¶56 On the other hand, we think it is apparent that jury instructions can be considered erroneous if they in struct the jury on a theory of the crime that was not presente d 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 tria l court is required to instruct on every theory of the case re asonably deducible from the evidence."). The jury instructi ons in Wulff are an example of this type of error. In a sense, these jury instructions are erroneous because they do not "acc urately state the statutory requirements for the crime charged" a s applicable to the facts presented. Beamon, 347 Wis. 2d 559, ¶ 24. This concept is a mere variant of the established princi ples discussed above.

8 "Whoever causes the death of another human being w hile committing or attempting to commit a crime specifie d 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 (§ 943.3 2).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 burde n 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 af ter trial, Chiarella, 445 U.S. at 236, and jury instructions m ust be expected to control jurors' deliberations. ¶59 In any event, not every erroneous jury instruct ion is harmless, so we turn now to how some erroneous inst ructions may be considered harmless. To affirm a conviction bas ed on an erroneous instruction, a court must be convinced be yond a reasonable doubt that the jury still would have con victed the defendant of the charge had the correct jury instru ction been provided. See Beamon, 347 Wis. 2d 559, ¶4. ¶60 Simplifying Wulff and Beamon provides illustrat ions 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 sligh t, of any part of a person's body or of any object int o 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. Th e jury was instructed that they could convict Wulff if he had done C, and the jury convicted him. The conviction was reverse d because the jury's verdict that Wulff had done C was not suffic ient to demonstrate, beyond a reasonable doubt, that the ju ry 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 convi cted Beamon, and the conviction was affirmed because the jury's verdict that Beamon had done both A and B was sufficient for thi s court to be certain that the jury would have concluded that Bea mon had done
A. ¶62 Thus, when an erroneous jury instruction raises the State's burden by adding an element not necessary f or

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 atte mpt 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 th e traffic officer or other vehicles or pedestrians ["A"], nor shall the operator increase the speed of the operator's vehicle ["B"] or extinguish the ligh ts 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 convicte d 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 instruc tion, even if the jury convicted under the erroneous instruction. In other words, in the latter situation it will be more diff icult 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 sta tutory 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 e xample, under facts similar to those in Wulff. 11 These erroneous instructions are subject to harmless error review, and a convict ion 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 fr amework because it predated this court's adoption of the ha rmless error analysis in State v. Harvey, 2002 WI 93, 254 Wis. 2 d 442, 647 N.W.2d 189. If this court were to decide Wulff tod ay, it would do so under Harvey's harmless error framework.No. 2014AP1099-CR

26 that is consistent with both the relevant statute a nd the factual theory presented——had been provided to the jury. 12 iii. Application ¶64 Having clarified the legal standard for suffici encyof-evidence claims in cases involving erroneous jur y instructions, we now examine the case at hand. ¶65 The evidence relevant to this appeal that the S tate presented at trial focused on establishing three fa cts: (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 present ed at trial is insufficient to sustain a finding of these three facts. Williams also does not dispute that these three fac ts are sufficient for a finding of guilt for the felony mu rder of both Parker and Robinson. 13 Instead, Williams argues that he is entitled to acquittal on the felony murder charge r elated to Robinson's death because the jury instruction state d 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 suff icient 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 felo ny murder could be committed. The jury instruction in questi on, 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 who m 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 Aut hur Robinson, Count 2, with the intent to overcome or prevent the physical resistance or physical power o f 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 instr ucted not to complete the verdict form for this charge if they f ound 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 the re was sufficient evidence to sustain a jury verdict of fe lony 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 Will iams 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 pro of, and the State clearly did not limit itself to that theory a t trial. In his closing argument, the prosecutor emphasized exa ctly 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 o f 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 Robins on 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, a n accomplice, a kid walking down the street, if anybo dy, whether it's Authur Robinson, or anyone else was killed while an armed robbery of [Michael] Parker i s taking place, that is felony murder. ¶68 The prosecutor's contradiction of the jury inst ruction describes a different legal theory under which the jury couldNo. 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), w e conclude that the jury instruction——which did not accurately reflect the State's predominant theory of the case (as evidence d 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 differ ent because, as we pointed out in Beamon, Wulff predated Wiscons in's modern formulation of the harmless error test. Beamon, 34 7 Wis. 2d 559, ¶46. The real difference between Wulf f and Beamon— —under modern harmless error analysis——is the way i n which the nature of each erroneous jury instruction affected the court's ability to conclude whether the jury still would ha ve convicted if given a proper instruction.

15 The State contends that Williams' failure to objec t to the prosecutor's statement during closing arguments means that the argument is now forfeited, and Williams can pur sue only an ineffective assistance of counsel claim for his tri al counsel's failure to object at that time. However, Williams is not challenging the prosecutor's statement in this appe al; Williams is challenging the sufficiency of the evidence to s ustain 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 b etween jury instructions and sufficiency of evidence. Accordin gly, we proceed with our analysis using the framework descr ibed above rather than an ineffective assistance of counsel fr amework.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 o f Robinson had the proper jury instruction been given. ¶71 The erroneous jury instruction essentially requ ired 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 w ith 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 reasonabl e doubt that the jury would have returned a guilty verdict if th e instruction had required three of those four elements. The str ength of the State's evidence supports this conclusion. Accordi ngly, we hold that the erroneous jury instruction in this case wa s harmless error, and that there was sufficient evidence to co nvict Williams of felony murder in connection with Robins on's death.

B. Ineffective Assistance of Counsel ¶73 Having resolved the issue presented for certifi cation, this court has two procedural alternatives for reso lving the remaining issue of whether Williams received ineffe ctive assistance of counsel: We can remand the case to th e court of appeals or decide the issue here and now. In the i nterests of providing the defendant a timely resolution of his case andNo. 2014AP1099-CR

31 preserving judicial resources, we have chosen to de cide the remaining issue now. ¶74 Wisconsin has adopted the United States Supreme Court's two-pronged Strickland test to analyze clai ms of ineffective assistance of counsel. Strickland v. W ashington, 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 d eficient and prejudicial. State v. Erickson, 227 Wis. 2d 758, 7 68, 596 N.W.2d 749 (1999). Deficient performance means tha t defendant's counsel's conduct "so undermined the proper functio ning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 6 86. Prejudice means that, but for counsel's unprofessio nal errors, there is a reasonable probability that the trial's outcome would have been different. Id. at 694. A reasonable pro bability is "a probability sufficient to undermine confidence i n the outcome." Id. Courts may apply the deficient perf ormance and prejudice tests in either order, and may forgo the deficient performance analysis altogether if the defendant ha s not shown prejudice. Johnson, 153 Wis. 2d at 128. ¶75 Williams presents two arguments in support of h is contention that he was afforded ineffective assista nce of trial counsel. We do not review the arguments in isolati on, but instead make our determination based on whether the cumulative effect is sufficient to undermine the outcome of th e trial. Thiel, 264 Wis. 2d 571, ¶63. Williams first argues that hisNo. 2014AP1099-CR

32 counsel was ineffective because counsel did not mov e 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 a ttorney did not object when the State offered photographs depic ting the crime scene and the victims' bodies. ¶76 We disagree with both of Williams' arguments an d hold that Williams was not prejudiced by his counsel's t rial performance. Because Williams was not prejudiced, there is no need to determine whether his attorney's performanc e was deficient. See Johnson, 153 Wis. 2d at 128. We ad dress 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 st rike a juror who expressed an aversion to viewing photographs de picting the crime scene and the bodies of the victims. We reje ct 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. Co nst. 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 a ny opinion, or is aware of any bias or prejudice in the case" s hould be removed from the panel. Oswald, 232 Wis. 2d 62, ¶1 6. 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 r efers to the bias that is revealed by the prospective juror on v oir 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 rec ord reflects that the juror is not a reasonable person who is si ncerely 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 determ ine whether subjective bias exists, so "we will uphold the circ uit court's factual finding that a prospective juror is or is n ot 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 preconceive d opinions or prior knowledge. Oswald, 232 Wis. 2d 62, ¶19. Wil liams has failed to demonstrate that any juror was biased. I t is not unreasonable for jurors to experience consternation over the prospect of having to view the often disturbing evi dence presented in criminal cases. To the contrary, it i s a perfectly reasonable and normal human response. In addition to Juror No. 12, four other prospective jurors asserted that the y would have difficulty viewing crime scene photos. 16 Both the prosecutor and Williams' attorney questioned the jurors on the iss ue.

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 a rticulate the juror's feelings about having to view photographs o f the victims. Juror No. 12, however, did not use the te rm to describe the type of subjective bias that would pre clude him from serving on the jury. Rather, Juror No. 12, li ke 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. More over, after being advised that photographic evidence of the vic tims would be presented, the jurors were specifically asked wheth er any of them would be unable to render an impartial decisio n, and Juror No. 12 did not come forward. ¶82 The unfortunate reality of our justice system i s that jurors are often called upon to examine evidence of heinous acts committed against other human beings. While most j urors 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 c omments reflect a "bias" against the defendant as that conc ept is understood in the law, but merely reservations abou t having to view disturbing photographs. Without a showing tha t Juror No. 12 was biased, Williams cannot prove that he was pr ejudiced by his trial counsel's decision not to strike Juror No . 12. ii. Crime Scene PhotographsNo. 2014AP1099-CR

35 ¶84 "Whether photographs are to be admitted is a ma tter within the trial court's discretion." State v. Pfa ff, 2004 WI App 31, ¶34, 269 Wis. 2d 786, 676 N.W.2d 562. An a ppellate court "will not disturb the court's discretionary d ecision unless it is wholly unreasonable or the only purpos e 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 th e jury gain a better understanding of material facts; they should be excluded if they are not "substantia lly 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 wa s ineffective for not objecting to the admission of p hotographs depicting the crime scene and the victims' fatal wo unds. Having reviewed each of the photographs used as exhibits a t Williams' trial, we conclude that they were neither overly gr uesome nor unfairly prejudicial. The purpose of the photograp hs 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 "substan tially 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 understandi ng 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 properlyNo. 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 ob jection, and without prejudice, Williams cannot prevail on his c laim of ineffective assistance of counsel. ¶87 Williams briefly raises the argument that the e vidence was cumulative because Williams was willing to stip ulate 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 a ppeals rejected the argument that a defendant's willingnes s to stipulate to an element could render photographs in admissible. Instead, the court ruled that even if the defendant is willing to stipulate to an element, "[e]vidence is always a dmissible to prove an element of the charged crime even if the d efendant does not dispute it at trial." Id.
IV. CONCLUSION ¶88 We hold that a jury instruction may be consider ed erroneous when it describes a theory of criminal cu lpability 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 s ubject to harmless error review. When an erroneous instructi on has been given but it is clear beyond a reasonable doubt tha t the jury would have convicted the defendant had the proper i nstruction been given, the jury verdict can be affirmed. ¶89 Here, based on the strength of the evidence pre sented and the statutory elements that the jury found, it is clearNo. 2014AP1099-CR

37 beyond a reasonable doubt that the jury still would have convicted Williams of felony murder had the jury in struction accurately reflected the State's theory of the crim e. We therefore hold that the defect in the jury instruct ions was harmless error. Furthermore, we conclude that Will iams was not prejudiced by his trial counsel's decision not to s trike a juror and not to object to the admission of crime scene p hotographs. 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 affirme d, I do not join the majority opinion. ¶91 The court took the instant case to clarify prec edent 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 revi ew of the sufficiency of evidence. This confusion seems to s tem 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 major ity opinion relies. As I see it, harmless error analysis rende rs a sufficiency of the evidence analysis redundant. Th e 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 i ncorporate only a harmless error analysis, not a sufficiency o f the evidence analysis. But Beamon sets forth and appli es the two analyses separately. The majority opinion cites an d 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

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