2015 WI 64



# S UPREME 

# C OURT OF 

# W ISCONSIN

C ASE N O .: 2013AP557-CR C OMPLETE T ITLE : State of Wisconsin,

Plaintiff-Respondent-Petitioner, v. Corey R. Kucharski, Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 354 Wis. 2d 622, 848 N.W.2d 903)

(Ct. App. 2014 – Unpublished)

O PINION F ILED : July 7, 2015 S UBMITTED ON B RIEFS : O RAL A RGUMENT : March 10, 2015

S OURCE OF A PPEAL : C OURT : Circuit C OUNTY : Milwaukee J UDGE : Jean A. DiMotto

J USTICES : C ONCURRED : D ISSENTED : BRADLEY, J., joined by ABRAHAMSON, J. dissent (Opinion filed). N OT P ARTICIPATING :

A TTORNEYS : For the plaintiff-respondent-petitioner, the cause was argued by Marguerite M. Moeller , assistant attorney general, with whom on the briefs was Brad D. Schimel , attorney general.

For the defendant-appellant, there was a brief by Matthew S. Pinix , Milwaukee, and oral argument by Matthew S. Pinix

.

An amicus curiae brief was filed by Melinda A. Swartz , Milwaukee, on behalf of the Wisconsin Association o f Criminal Defense Lawyers.1 2015 WI 64

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP557-CR (L.C. No. 2010CF652)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin, Plaintiff-Respondent-Petitioner,

v. Corey R. Kucharski, Defendant-Appellant. 

## FILED JUL 7, 2015

Diane M. Fremgen Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Reversed and

remanded.

¶1 N. PATRICK CROOKS, J. This is a double-murder c ase that centers on the evidence presented on the quest ion of the defendant's mental responsibility. The circuit cou rt 1 found the defendant responsible. The court of appeals, in a split decision, 2 granted the defendant a new trial under its discretionary authority to reverse convictions in c ases where "it appears from the record that . . . it is probab le that

1 The Milwaukee County Circuit Court, the Honorable Jean DiMotto presiding.

2 State v. Kucharski, No. 2013AP557-CR, unpublished slip op. (Wis. Ct. App. May 6, 2014).No. 2013AP557-CR

2 justice has for any reason miscarried[.]" 3 We now reverse the grant of a new trial because we conclude that the c ourt of appeals erroneously exercised its discretion, and w e remand to the court of appeals for the resolution of the rema inder of the claims raised on appeal. ¶2 Corey Kucharski was charged with two counts of intentional homicide for the murders of his parents , which he later said he committed in obedience to voices he h eard. He pleaded not guilty by reason of mental disease or d efect (an NGI plea). He pleaded no contest to the guilt phase of the trial, and waived a jury trial on the responsibility phase

. 4

3 Wisconsin Stat. § 752.35 (2013-14) states In an appeal to the court of appeals, if it appears from the record that the real controversy has not b een fully tried, or that it is probable that justice ha s for any reason miscarried, the court may reverse th e judgment or order appealed from, regardless of whet her the proper motion or objection appears in the recor d and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessa ry to accomplish the ends of justice. All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.

4 State v. Magett, 2014 WI 67, ¶¶33-34, 39, 355 Wis. 2d 617, 850 N.W.2d 42, states A bifurcated criminal trial consists of two phases: (1) the guilt phase; and (2) the responsibility pha se. When a criminal defendant pleads not guilty and not guilty by reason of mental disease or defect, the j ury hears evidence relating to the defendant's guilt in the first phase of the trial, and if the jury findsNo. 2013AP557-CR

3 ¶3 During the trial, one doctor, Dr. Rawski, testif ied as the sole witness for the defense; his and other doc tors' reports and materials were entered into evidence. Dr. Raws ki testified that it was his opinion to a reasonable degree of m edical certainty that Kucharski's symptoms of schizophreni a were so severe on the night he killed his parents that he l acked substantial capacity to appreciate the wrongfulness of his conduct or conform his conduct to the law. A secon d doctor who examined him for the defense, Dr. Pankiewicz, was a lso of the opinion that at the time of the crime, Kucharski wa s not mentally responsible. A third expert who examined Kucharski at the State's request, Dr. Jurek, did not come to any different conclusion. At trial, the State presented no witne sses; it did not dispute that Kucharski was mentally ill but arg ued that

the defendant guilty, the trial proceeds to the sec ond phase. Wis. Stat. § 971.165(1)(a). In the second phase, the jury considers whether the defendant had a mental disease or defect at the time of the crime a nd whether, "as a result of mental disease or defect t he person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct o r conform his or her conduct to the requirements of law." Wis. Stat. § 971.15(1). The responsibility phase described above has evolve d over time and has now become close to a civil trial

.

. . . 

### [T] he defendant has the burden of proof to show mental disease or defect by the greater weight of t he credible evidence, the same burden imposed for most issues in civil trials. If the NGI plea were tried to a jury, the verdict w ould have to be agreed to by at least five sixths of the jurors. See Wis. Stat. § 971.165(2).No. 2013AP557-CR

4 undisputed evidence of Kucharski's actions showed t hat he did have substantial capacity to appreciate the wrongfu lness of what he did and to conform his conduct to the law. ¶4 The circuit court agreed with the State, citing evidence such as Kucharski's statements about expec ting punishment for the crime and his decision not to co mmit suicide or engage in a shootout with police despite reporti ng that he had heard voices telling him to do so. In light of that evidence, the circuit court found that Kucharski ha d not met his burden on the issue of responsibility. 5 He was convicted and sentenced to consecutive life sentences. ¶5 Though Kucharski raised several claims on appeal , the court of appeals' analysis focused solely on granti ng his motion for a new trial under Wis. Stat. § 752.35, the disc retionary reversal statute. For purposes of interpreting that statute, justice has miscarried if "there is a substantial p robability that a new trial would produce a different result." 6 We have held that "only in exceptional cases" is it appropr iate for a reviewing court to exercise its discretion to grant a new trial in the interest of justice. 7

5 Wisconsin Stat. § 971.15(3) (stating that the burd en on defendant in NGI trial is to prove "to a reasonable certainty by the greater weight of the credible evidence" that h e is not responsible).

6 State v. Murdock, 2000 WI App 170, ¶31, 238 Wis. 2 d 301, 617 N.W.2d 175.

7 State v. Armstrong, 2005 WI 119, ¶114, 283 Wis. 2d 639, 700 N.W.2d 98, State v. Avery, 2013 WI 13, ¶38, 345 Wis. 2d 407, 826 N.W.2d 60, Morden v. Cont'l AG, 2000 WI 51, ¶87 , 235 Wis. 2d 325, 611 N.W.2d 659.No. 2013AP557-CR

5 ¶6 The court of appeals held that there was a subst antial probability of a different outcome at a new trial " because [Kucharski] met his burden" 8 of proving by the greater weight of the credible evidence that he was not mentally resp onsible for the murders. It found that the evidence in his fav or "certainly comprised 'the greater weight of the credible evide nce.'" 9 The dissent would have affirmed the circuit court, citi ng the wellestablished proposition that "the credibility of wi tnesses, the weight of the evidence and the determination of whe ther the defendant has met his burden" are questions that "a re the province of the trial court alone." 10 ¶7 The State argues that the trial court appropriat ely weighed the evidence in a way that is consistent wi th prior case law such as State v. Sarinske, 11 which holds that a trier of fact is not required to accept the opinion of an expert, even if uncontradicted. The State argues that the court of appeals "wholly ignore[d] this requirement and instead subs titute[d] its

8 State v. Kucharski, No. 2013AP557-CR, ¶35, unpubli shed slip op. (Wis. Ct. App. May 6, 2014).

9 Id.

10 Id., ¶45.

11 State v. Sarinske, 91 Wis. 2d 14, 48, 280 N.W.2d 7 25 (1979).No. 2013AP557-CR

6 judgment for that of the fact-finder . . . ." 12 Kucharski argues that "[t]he very nature of the test for miscarriage of justice necessitates substitution of the appellate court's judgment for that of the factfinder" and that in fact an appella te court should have "unfettered discretion to review the re cord without deference to the factfinder's conclusions." ¶8 We uphold discretionary rulings unless they are reached under an incorrect view of the facts or the law. In State v. D'Acquisto 13 we stated, The appropriate standard of review for assessing th e propriety of the court of appeals' [discretionary ruling] is that this court will uphold the court's discretion if its decision is made on appropriate facts and the correct law and thus is one which a court reasonably could have reached. If it is demonstrated that the court of appeals made a discretionary order, . . . based upon a mistaken v iew of the law, we will ordinarily reverse that order. In this case, that is what happened. 14 The reason given by the court of appeals in this case for invoking the rare ly used power of discretionary reversal was that the defendant ha d "met his

12 The State also argues that this court should "tigh ten the requirements for granting a new trial on mental res ponsibility under the miscarriage-of-justice prong of § 752.35" by adding a requirement that "error, counsel's misfeasance, or some form of unfairness infected the defendant's trial." We are confident that the existing rules are adequate and decline th e invitation to write additional requirements into the statute.

13 State v. D'Acquisto, 124 Wis. 2d 758, 762, 370 N.W .2d 781 (1985) (citations omitted).

14 Even under this deferential standard, it is not in correct for this court to reverse a ruling based on mistake of law. It would not be proper to leave undisturbed, under the guise of a deferential standard of review, a mistaken applicat ion of the law. See Dissent, ¶3.No. 2013AP557-CR

7 burden," which is going too far for a reviewing cou rt on a question of fact. Further, the sole reason given f or the discretionary reversal was that improperly reached conclusion. The framework for reviewing evidentiary challenges must recognize "established rules of jurisprudence desig ned to protect the sanctity of findings of fact . . . ." 15 It is thus error for a reviewing court to set aside findings o f fact without evaluating them under the proper standard o f review. ¶9 The proper standard of review for appellate revi ew of whether a party has met his burden on the matter of mental responsibility is uncontroversial and well establis hed in both Wisconsin law and federal law: whether a person has met his or her burden on the question of mental responsibility is a question of fact, subject to a clearly erroneous st andard of review. 16

15 State v. Hintz, 200 Wis. 636, 642, 229 N.W. 54 (19 30).

16 Wisconsin cases that support this proposition incl ude State v. Leach, 124 Wis. 2d 648, 660, 370 N.W.2d 24 0 (1985); State v. Sarinske, 91 Wis. 2d 14, 48, 280 N.W.2d 72 5, (1979); Pautz v. State, 64 Wis. 2d 469, 476, 219 N.W.2d 327 (1974); Kemp v. State, 61 Wis. 2d 125, 137, 211 N.W.2d 793 (1973 ); State v. Bergenthal, 47 Wis. 2d 668, 685, 178 N.W.2d 16 (197 0);; State v. Ryan, 2000 WI App 47, ¶16, 233 Wis. 2d 273, 610 N.W .2d 229; and State v. Murdock, 2000 WI App 170, ¶3, 238 Wis.2d 3 01, 617 N.W.2d 175..

Federal cases that have stated this standard includ e United States v. Waagner, 319 F.3d 962, 964 (7th Cir. 2003 ); United States v. Barton, 992 F.2d 66, 68 (5th Cir. 1993); and United States v. Smeaton, 762 F.2d 796, 798-99 (9th Cir. 1 985). A law review article summarizing the development of appel late standards for review of federal insanity defense ca ses described two of the key cases as follows:No. 2013AP557-CR

8 ¶10 The court of appeals' holding reveals its error : it simply performs a new weighing of the evidence and then states outright that Kucharski "met his burden" and that t he evidence "certainly comprised" the required burden of proof-

- determinations that are unquestionably issues of fa ct, not law. By way of illustration, in State v. Hintz, 17 a case that considered a sufficiency of the evidence challenge and discretionary reversal, we acknowledged, as we rema nded for a new trial, that the ultimate question of whether th e evidentiary burden was met would be one for the trier of fact a nd not for the reviewing court: Noting that "it is the functio n of the [trier of fact] to resolve this doubt," we remanded so that "the

In United States v. Barton in 1993, the Fifth Circu it addressed whether the Jackson sufficiency of the evidence standard applied in situations when insani ty is an affirmative defense, and the defendant, rathe r than the prosecution, has the burden of proof. . . . After recognizing the implications of shifti ng the burden of proof to the defendant, the court not ed that slight modification to the sufficiency of the evidence standard was necessary. Accordingly, the Barton court stated that it "should reject the jury verdict only if no reasonable trier of fact could h ave failed to find that the defendant's criminal insani ty at the time of the offense was established by clear and convincing evidence." . . . As in Jackson, the Barton court noted that appellat e courts are not to supplant the role of the jury as fact finders when reviewing the sufficiency of the evidence supporting a conviction. Kevin Thompson, Criminal Appellate Procedure——Insan ity Defense—— the Proper Standard of Appellate Review When Review ing A Jury Decision on Sanity, State v. Flake, 88 S.W.3d 540 ( Tenn. 2002), 70 Tenn. L. Rev. 1213, 1224-25 (2003).

17 Hintz, 200 Wis. at 642.No. 2013AP557-CR

9 question of defendant's guilt should be passed upon by another jury . . . ." 18 ¶11 Applying the proper standard of review and not disturbing the factual findings of the circuit cour t concerning the burden of proof because they are not clearly er roneous, we conclude that the court of appeals erroneously exer cised its discretion. In this case the only reason given by the court of appeals for the new trial in the interest of justic e was that court's improper de novo weighing of the evidence. When the evidence is reviewed under the proper standard, the re is not a probability of a different result on retrial such t hat a new trial in the interest of justice is warranted. ¶12 We therefore reverse the grant of a new trial u nder Wis. Stat. § 752.35 and remand to the court of appe als for the resolution of Kucharski's remaining unaddressed cla ims. 19

I. BACKGROUND ¶13 Kucharski called 911 after midnight on a Februa ry night in 2010 to request a coroner. He told the 911 operator that his parents were dead, named the gun he had us ed to kill them, and was clear in communicating that there was no need to send medical assistance. When police arrived, he s urrendered

18 Id.

19 Kucharski argued at the court of appeals that the trial court erred in its application of Wis. Stat. § 971 .15, that the trial court’s conclusions regarding mental responsi bility lack support in the record, and that he was entitled to a new trial due to ineffective assistance of counsel. See Stat e v. Kucharski, No. 2013AP557-CR, unpublished slip op., ¶31, n.2 (Wis. App., May 6, 2014).No. 2013AP557-CR

10 without incident. Police found Kucharski's father and mother in the home, dead of multiple gunshot wounds. ¶14 Once in police custody, Kucharski invoked his r ight to counsel when asked specifics about the shootings. When he was questioned by detectives, after he received his Mir anda warnings, Kucharski stated, "[A]s far as the statem ent about most of what happened that evening and I'd rather h ave a lawyer here for that." When the detective reiterated his right to do that, Kucharski stated, "If you want to ask me any questions about my background or any, any other questions, fi ne. . . . I know you want to talk about the evening but I still rather have somebody here before I start answering questions ab out that night." 20 ¶15 He willingly talked to investigators without co unsel present about his history, prior drug use, alcohol use, and his experience of hearing voices, which he said began f ive years earlier after a period of extensive drug use. He sa id he

20 Dr. Rawski, the doctor who testified at the trial, acknowledged on direct examination that Kucharski clearly . . . recognized the illegality of homicide and recognized that there would be, in his term, quote, repercussions, unquote, that he did not expe ct to have to deal with when planning his – the executions because he expected to have been killed by police afterwards and – and engaging in a shootout with them. His – His decision to invoke his right [ to counsel] is based on his knowledge that he would be in legal trouble, that he was arrested by police and t hat he was criminally charged. He was not so out of tou ch with reality that he didn't know he was in jail or that he didn't know he was arrested or that he didn 't know what he had actually done.No. 2013AP557-CR

11 continued hearing the voices after he stopped using drugs. The voices he heard told him to do specific things and berated him for certain mistakes. He also disclosed that he had experienced other auditory distortions such as hearing another person's voice while a person was speaking to him. He drank heavily, which he said was an effort to quiet the voices. 21 He had held jobs in prior years both in Wisconsin and in other states. In 2005 he had returned to his parents' Milwaukee home , where he spent his time increasingly isolated, drinking dail y and amassing a gun collection. He sought disability ben efits for a medical condition but gave no indication at that ti me that he was experiencing mental health problems. He was ne ver treated for mental health issues and never told anyone that he was experiencing them. ¶16 At trial, Dr. Rawski testified that Kucharski's account of the evening was that he had been present at an argument between his parents in the early evening. Afterward, he recalled, he had heard voices saying, "[J]ust [e xpletive] kill them, give them what they want . . . ." At th at point, he

21 Dr. Rawski's written report, which is in the recor d, also contained Kucharski's account of the evening of the murders. He stated that he had been drinking beginning in the a fternoon but did not specify the number of drinks he had. He di d not consider himself intoxicated after he awoke from a nap. In testimony, Dr. Rawski noted that Kucharski "was not assessed to be intoxicated by alcohol by the police afterwards. " It was Dr. Rawski's conclusion that "[t]his is a planned – exe cuted set of executions in a[n] organized fashion driven by moti ve, driven by – by delusion and hallucinations, in my opinion, no t by disinhibition and behavior by alcohol dependence." The circuit court made no contrary findings regarding the role of alcohol or drug use in Kucharski's health or in the homicides.No. 2013AP557-CR

12 had gone to his bedroom to sleep. He had awakened a couple of hours later and had heard a clear voice telling him to "end it" —— to kill his parents and die while engaging in a shootout with police when they arrived. At that point, he had go ne downstairs and confronted his father in the kitchen and shot h im. He had stepped into another room and shot his mother, appa rently as she was coming toward him. Kucharski's father was shot 10 times; his mother was shot four times. He had waited a co uple of hours before placing the 911 call. He stated that in the past his father had stated that if he had a medical emergenc y, he wished for Kucharski to delay an hour before calling 911 s o that there would be no possibility of resuscitation. He state d he did so in this instance in keeping with his father's wishe s. ¶17 Kucharski was charged with two counts of first- degree intentional homicide while using a dangerous weapon

. 22 He entered an NGI plea under Wis. Stat. § 971.15. ¶18 Kucharski waived his right to trial on the issu e of guilt, instead pleading no contest. The issue of m ental responsibility was tried to the court after he waiv ed his right to a jury. The three doctors who examined him all concluded in their reports that, as a result of his schizophreni a, Kucharski "lacked substantial capacity either to appreciate t he wrongfulness of his . . . conduct or conform his . . . conduct

22 The statutes defining first degree intentional hom icide by use of a dangerous weapon are Wis. Stat. §§ 940. 01(1)(a), 939.50(3)(a), and 939.63(1)(b).No. 2013AP557-CR

13 to the requirements of law," that he satisfied both requirements of the test, and that he was therefore not mentally responsible. ¶19 The circuit court found that Kucharski had fail ed to meet his burden of proving that he was not responsi ble. The circuit court concluded that Kucharski did suffer f rom schizophrenia; however, it also concluded that the experts' opinions that he was not mentally responsible were speculative and insufficient to overcome other evidence from wh ich it could be inferred that he appreciated the wrongfulness of his conduct and had the capacity to conform his conduct to the requirements

of the law. ¶20 As to the question concerning his ability to appreciate the wrongfulness of his conduct, the cir cuit court stated, "[T]here are indications, very near the poi nt in time that the Defendant committed these crimes, that he understood they were wrongful, illegal." For example, the cou rt said, he had expressed the knowledge that he needed a lawyer and would be "rotting in jail" for the killings. ¶21 As to the issue of whether he could conform his conduct to the requirements of the law, the circuit court stated that Kucharski had heard command voices about killing himself, and he did no t follow through with that before or after he killed his parents. . . . [Y]et he doesn't respond to the comm and voice, especially the derogatory one that he was th e cause of the fight, and he should kill himself and so on, whether directly, or through a shootout with th e police.No. 2013AP557-CR

14 The court subsequently stated, "I'm finding him leg ally responsible because I'm not persuaded beyond a leve l scale. . . . It's not tipping, even slightly, that he lac ked substantial capacity to conform his conduct to the law." The circuit court observed that "the basis of [the expe rts'] opinions . . . is that they're speculating about wh at happened. ¶22 The court of appeals reversed, and the State petitioned for review, which we granted.

II. STANDARD OF REVIEW ¶23 "This court does not normally review a discreti onary decision of the court of appeals. However, when [i t] do[es] review a discretionary act of the Court of Appeals, [it] review[s] the decision as [it] would any other exer cise of discretion." 23 "[A] court erroneously exercises its discretion when it fails to set forth its reasoning and the fa cts of record do not support its decision. Further, a court erro neously exercises its discretion when it proceeds under a m istaken view

of the law." 24 "This court has held that it is an erroneous exercise of discretion for the court of appeals . . . to shortcut [established] procedures . . . when there is no

23 Raz v. Brown, 2003 WI 29, ¶14, 260 Wis. 2d 614, 66 0 N.W.2d 647.

24 State v. Evans, 2004 WI 84, ¶20, 273 Wis. 2d 192, 682 N.W.2d 784, abrogated on other grounds by State ex rel. Coleman v. McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714 N.W .2d 900 (citations omitted).No. 2013AP557-CR

15 apparent reason for doing so." 25 Reversals in the interest of justice should be granted only in exceptional cases

. 26 ¶24 "The credibility of the witnesses is properly t he function of the jury or the trier of fact, in [case s where the right to a jury is waived,] the trial judge. It is only when the evidence that the trier of fact has relied upon is inherently or patently incredible that the appellate court will s ubstitute its judgment for that of the fact finder, who has the g reat advantage of being present at the trial." 27

III. DISCUSSION

A. REVERSAL UNDER WIS. STAT. 752.35 WAS ERROR BECA USE REVERSAL WAS BASED ON AN IMPROPER WEIGHING OF THE E VIDENCE

WITHOUT APPLYING THE CORRECT STANDARD ¶25 Two of the remedies that can be sought by a def endant following conviction are an outright reversal of a conviction and a reversal and remand. An outright reversal ca n be based on various grounds, including a conclusion that the ev idence is insufficient as a matter of law; this results in no retrial. 28 A reversal and remand for a new trial may be granted for various reasons, including when it is probable that justice has

25 Id.

26 State v. Armstrong, 2005 WI 119, ¶114, 283 Wis. 2d 639, 700 N.W.2d 98, State v. Avery, 2013 WI 13, ¶38, 345 Wis. 2d 407, 826 N.W.2d 60.

27 Gauthier v. State, 28 Wis. 2d 412, 416, 137 N.W.2d 101 (1965).

28 State v. Hayes, 2004 WI 80, ¶40, 273 Wis. 2d 1, 68 1 N.W.2d 203.No. 2013AP557-CR

16 miscarried and justice requires that the evidence b e presented to a new trier of fact for a verdict. 29 ¶26 We focus on the reason given by the court of ap peals that it was probable that there would be a differen t outcome on retrial. It was clearly a reweighing of the eviden ce. The court of appeals stated: We agree with Kucharski that there is a substantial probability that a new trial would produce a differ ent result because he met his burden under Wis. Stat. § 971.15(3). See Murdock, 238 Wis. 2d 301, ¶31. Th e evidence showing that Kucharski lacked substantial capacity either to appreciate the wrongfulness of h is conduct or to conform his conduct to the requiremen ts of the law was, as we will discuss more fully below , very strong, and certainly comprised "the greater weight of the credible evidence." 30

¶27 It is well established that factual findings ar e upheld unless they are clearly erroneous. 31 It is also well established that "[t]he question of whether an accu sed has or has not met this burden [of proving that the accuse d was not mentally responsible for a crime] is one of fact, n ot one of law

29 Hintz, 200 Wis. at 642 ("Whatever doubts we may en tertain concerning the justice of this verdict, our power t o disturb it is limited by established rules of jurisprudence de signed to protect the sanctity of findings of fact, a functio n which constituted society has committed to the jury.")

30 State v. Kucharski, No. 2013AP557-CR, unpublished slip op., ¶35 (Wis. Ct. App. May 6, 2014) (emphasis adde d).

31 State v. Novy, 2013 WI 23, ¶22, 346 Wis. 2d 289, 827 N.W.2d 610 ("We will uphold a circuit court's findi ngs of fact unless they are clearly erroneous.")No. 2013AP557-CR

17 for this court on appeal." 32 When the proper framework is applied to an evaluation of the factual findings, t he findings here must be upheld because there is no basis for s aying that the findings are clearly erroneous. ¶28 There are four points the court of appeals iden tified as the basis for its conclusion. ¶29 The first point was that "there is no dispute t hat Kucharski was in fact suffering from schizophrenia when he killed his parents." 33 The circuit court found that to be proved and identified the real focus of the case, stating, I don't think there's even a doubt, much less a reasonable doubt, that Mr. Kucharski suffered from a mental illness at the time that he committed these crimes, and the name of that mental illness is schizophrenia. The close call is whether he lacked substantial capacity to conform his conduct to the law or to understand the wrongfulness of his conduct. The court later repeated, "There's no question that he suffered from schizophrenia at the time that he engaged in t hat planned, purposeful, intentional behavior to shoot his paren ts to death." While this fact is listed as a reason for the court of appeals' reversal, the issue of an existing mental illness w as not the basis of the circuit court's original finding of fa ct in support of conviction, and the conclusion that Kucharski su ffered from mental illness was not an obstacle to the circuit c ourt's decision.

32 State v. Sarinske, 91 Wis. 2d 14, 47-48, 280 N.W.2 d 725 (1979) (emphasis added).

33 Id., ¶36.No. 2013AP557-CR

18 ¶30 The second point was that "the expert testimony was uncontroverted." 34 It is certainly accurate to state that the doctors who examined Kucharski came to the opinion that the schizophrenia rendered him unable to appreciate the wrongfulness of his conduct and to conform his conduct to the la w. But the opinions of experts are not dispositive. The trier of fact retains the sole responsibility for determining whe ther the defendant has met his burden. Further, we have exp licitly stated that an expert's opinion, "even if uncontrad icted need not be accepted by the [trier of fact]." 35 This is especially true where "the defense doctors relied substantiall y on information provided by [the defendant]." 36 That is precisely the situation in Kucharski's case. As Dr. Rawski, the testifying doctor, acknowledged, he had conducted a three-and-ahalf-hour meeting with Kucharski, but he was missin g much of the context he normally relies on for an NGI opinion: In my NGI evaluation we have some glaring absences of information that we typically rely upon[,] one of which is the statements of the victim or witnesses and there are none in this particular situation. Second ly – I mean there are – there are victims but there ar e no statements from them about the incident. Secondly we do not have a – a history of psychiatri c evaluations over the course of time indicating the presence of mental illness and the supporting detai ls that we look for to examine comparable contexts for similar behavior and symptoms as well, so that's absent as well, and so the evaluation and the NGI

34 Id., ¶37.

35 Sarinske, 91 Wis. 2d at 47-48.

36 Id. at 49.No. 2013AP557-CR

19 opinion, one way or another, is going to be primari ly based largely upon the evidence such as the jail observations afterwards, the police observations afterwards, the random statements by neighbors who did not know Mr. Kucharski very well because of his ver y isolated lifestyle and based upon the limited information from that disability report. ¶31 Sarinske also involved a mental responsibility trial. Although the State in that case did put on an exper t witness who contradicted the defense witnesses, Sarinske stated that a trier of fact may reject the opinions of an expert, even when there is no testimony to the contrary, when the basis of the expert's opinion is information substantially derived from t he defendant. As Sarinske stated: [T]he jury is free to disbelieve the defense witnes ses entirely, and even if the State declines . . . to present any experts in rebuttal, the accused may fa il to satisfy his burden of affirmatively proving that he was suffering from mental disease. Because the defense doctors relied substantially on information provided by [the defendant], the basis of their opinion and their diagnoses could be questioned by the jury on this ground alone. 37

¶32 The source of virtually all of the reports and interviews came down to Kucharski's own version of events and perspective. The evidence of mental health issues that preceded the murders included the defendant's own account th at he had begun hearing voices about five years earlier and s everal pages of handwritten notes found in his room that he said were his attempts over a period of a year to document the co mments the voices made. Dr. Rawski described the notes as "ve ry bizarre

37 Id. at 48-49 (citations omitted) (emphasis added).No. 2013AP557-CR

20 and inexplicable." Therefore, under Sarinske, the fact that the expert reports were uncontroverted is not dispositi ve. The circuit court had no obligation in its role as the trier of fact to accept the conclusion of the experts who relied on Kucharski for their reports. ¶33 The third point was that "there was a complete lack of evidence of alternative explanations for Kucharski' s behavior." 38 The court of appeals cited to State v. Murdock, app arently for the implied proposition that absent a rational exp lanation for behavior, it may be inferred that the explanation i s that the person lacked capacity to appreciate the wrongfulne ss of his conduct or conform it to the law. 39 However, it cites to no

38 State v. Kucharski, No. 2013AP557-CR, unpublished slip op. ¶40 (Wis. Ct. App. May 6, 2014).

39 Murdock, 238 Wis. 2d 301, ¶44, made its statement in the context of setting forth the facts in that case: The evidence presented at trial presents no explanation for why Murdock would stab Grams approximately twenty times in order to steal his ca r, but then park the car in front of the Smiths' house , drag Grams out of the back of the car and leave him in the Smiths' front yard. Although Murdock demanded money from the Smiths, tried to prevent Shirley Smi th from calling the police, and fled to the basement w hen the police came in the house after him, viewed as a whole, his behavior does not appear as purposeful a s the State contends. After demanding money from the Smiths, Murdock "went berserk stabbing" them. When the first police officer arrived, Murdock was sitting o n the Smiths' front steps near Grams's dead body. Murdock did not try to flee, but instead stoo d up and sat back down on the steps, and went in and out of the house several times. He even opened the door to the Smiths' house so that the police could come inside. (emphasis added).No. 2013AP557-CR

21 authority for the proposition that a rational expla nation must be offered for a criminal act. Indeed, that approa ch would appear to shift the burden of proof on an NGI plea to the State. As the circuit court noted, I think both Dr. Pankiewicz and Dr. Rawski opined t hat they could not find evidence of a rational, alternative motive for the Defendant's behavior. I don't disagree with that. I think shooting your parents to death with a gun, is conduct that we mig ht not find quote unquote rational. ¶34 The fourth point was that the court of appeals "conclude[d] that evidence that Kucharski appeared to understand the legality of his actions and did not commit suic ide as the voices directed does not mean that he was generally able to control his behavior or appreciate its wrongfulness at the time of the shooting." 40 This is the crux of the court of appeals' reasoning, and it is a bare reweighing of what the evidence means, which is not permitted by a reviewing court. ¶35 Kucharski argues that "[t]he very nature of a t est for a miscarriage of justice necessitates substitution of the appellate court's judgment for that of the factfind er." That is

not correct. ¶36 To agree would allow any sufficiency of the evi dence claim to be converted to an interest of justice cla im, thereby evading the stringent standard for reviewing findin gs by the trier of fact. That is contrary to the law. It wo uld also be an inappropriate use of the power to grant discreti onary

40 State v. Kucharski, No. 2013AP557-CR, unpublished slip op. ¶41 (Wis. Ct. App. May 6, 2014).No. 2013AP557-CR

22 reversals. Put a different way, a reversal in the i nterest of justice is not intended to put the reviewing court in the shoes of the trier of fact in a way that is otherwise not permitted. It is not permitted to review factual findings with out employing the correct standard of review. 41 The reviewing court in such a case may go only so far as to say that it is "proba ble" that justice has miscarried and that it concludes that " the question of defendant's guilt should be passed upon by anoth er jury

. . . . " 42

41 The approach Kucharski argues for, that an appella te court should have "unfettered discretion to review the record without deference to the factfinder's conclusions," is in conflict with the proper standard of review; it wou ld turn appellate courts into simple do-overs. However, it is inaccurate to say that appellate courts are preclud ed by that standard of review from evaluating the evidence. I t is, in fact, the kind of evaluating of evidence that appel late courts routinely do when they are reviewing questions of f act. Contrary to the dissent's assertions, we apply sett led law on questions of fact and appellate standards of review here and make no new law.

42 Hintz, 200 Wis. 636, 637. The court of appeals imprecisely characterized the conclusion of this co urt in regard to the Kemp case when it stated, "The supreme court reversed Kemp's conviction, concluding that he lacked the ca pacity to appreciate the wrongfulness of his conduct or confo rm his conduct to the requirements of the law." State v. Kucharski, 2014 WI App 71, ¶42, 354 Wis. 2d 622, 848 N.W.2d 90 3 (emphasis added). That is not correct. In Kemp v. State, 61 Wis. 2d 125, 137, 211 N.W.2d 793 (1973), this court stopped shor t of making that factual finding and merely remanded for a find ing on that question to be made by a second trier of fact. Kem p, 61 Wis. 2d at 137 ("We believe the weight of the testimony is such that justice has probably miscarried and that it is prob able a new trial will result in a contrary finding.")No. 2013AP557-CR

23 ¶37 The court of appeals considered the facts of th is case comparable to those of Kemp v. State, 43 in which the defendant, a Vietnam veteran who had been treated extensively fo r war-related mental health problems, was granted a new trial aft er being convicted of shooting and killing his wife. The co urt of appeals said that "Kemp supports our decision to re verse . . . . " We disagree. In that case, there was ev idence of pervasive and debilitating mental illness that had resulted in inpatient and outpatient treatment of the defendant over a period of years prior to the shooting. 44 There was testimony from neighbors about the absence of any indication that Kemp would have intentionally killed her. 45 The court of appeals also noted that in this case, unlike in Kemp, there were no experts who concluded Kucharski was mentally responsible fo r the killings; therefore, it concluded that reversal in this case was even more justified than in Kemp, where the experts consulted had come to varying conclusions. ¶38 Where a defendant seeks to mitigate punishment for a crime on the basis of mental disease or defect, it is highly relevant to consider the kind of external corrobora ting evidence that existed prior to the charged offense. In Kemp this court recognized this when it noted, "The record clearly reveals that this is not a case where the question of the defend ant's mental

43 Kemp, 61 Wis. 2d at 137.

44 Id. at 134.

45 Id.No. 2013AP557-CR

24 condition was asserted for the first time after the act or the commencement of a criminal prosecution under circum stances that might suggest the defense is a self-serving afterth ought to avoid legal responsibility." 46 ¶39 Kucharski's, in contrast, is exactly that type of case. The expert reports dismissed concerns that K ucharski was malingering, but, contrary to the court of appeals' implication, those opinions are not dispositive. The trier of f act was not bound to accept those conclusions in light of evide nce such as Kucharski's extraordinarily careful statements to l aw enforcement, from which contrary inferences could b e drawn. ¶40 It is clear from Kemp that the court placed gre at weight on the evidence of the prior corroborated me ntal health problems. This single distinguishing fact is enoug h to make it unreasonable to view Kemp as supportive of a revers al on these

facts. ¶41 Kemp is instructive in that it also illustrates the principle that other claims of error must be addres sed before moving to a consideration of whether a case is so e xceptional it warrants reversal in the interest of justice. 47 Before beginning its analysis of the interest of justice claim, the court addressed one claimed evidentiary error and then no ted, "The defendant has asserted other procedural errors. We have reviewed

46 Id. at 137.

47 Where there is no identified error in the circuit court, a defendant will have a more difficult time showing reversal is warranted in the interest of justice.No. 2013AP557-CR

25 them and find no error." 48 As noted above, reversals under Wis. Stat. § 752.35 are rare and reserved for exceptiona l cases. 49 ¶42 In Avery, this court further noted that a determination that a case was the exceptional case that warranted such a reversal must be supported by an a nalysis setting forth the reasons for the determination. 50 ¶43 We have similarly held that taking "shortcuts" where a particular analysis is prescribed will be deemed er ror: "This court has held that it is an erroneous exercise of discretion for the court of appeals . . . to shortcut [estab lished] procedures . . . when there is no apparent reason f or doing

so." 51 In an exceptional case, after all other claims ar e weighed and determined to be unsuccessful, a review ing court may determine that reversal is nevertheless appropriate under Wis. Stat. § 752.35.

B. THE FACT-FINDING OF THE TRIER OF FACT THAT KUCHA RSKI DID NOT MEET HIS BURDEN IS NOT CLEARLY ERRONEOUS ¶44 A reviewing court upholds the findings of fact by a trier of fact unless they are clearly erroneous. T he determination of whether a party has met his or her burden is a

48 Kemp, 61 Wis. 2d at 136.

49 Armstrong, 283 Wis. 2d 639, ¶114; Avery, 345 Wis . 2d 407, ¶38; Morden, 235 Wis. 2d 325, ¶87.

50 Avery, 345 Wis. 2d 407, ¶59 (holding that "the co urt of appeals erroneously exercised its discretion when i t failed to properly analyze whether this was an exceptional ca se that entitled Avery to a new trial in the interest of ju stice.")

51 Id.No. 2013AP557-CR

26 matter of fact, not law. 52 Therefore, unless it is clearly erroneous, the court of appeals is obligated to uph old the finding that Kucharski did not meet his burden of s howing by the greater weight of the credible evidence that he was not mentally responsible for the crimes. ¶45 We agree with the court of appeals' dissent in this

case: The trial court gave reasoned explanations for its findings on the second prong of mental responsibili ty. It found that Kucharski was able to appreciate the wrongfulness of his conduct, quoting the experts th at Kucharski thought killing his parents was the right thing to do and quoting Dr. Rawski as saying Kuchar ski knew right after the shooting that he needed a lawy er. And the trial court found that Kucharski failed to meet his burden of showing that he lacked the substantial capacity to conform his conduct to the rules of law because he obeyed part of what the voi ces commanded and chose not to obey other parts . . . . The trial court drew proper inferences from the evidence and found those inferences more reliable t han the doctors' opinions as to the second prong of men tal responsibility. The trial court explained that it distrusted the self-report basis for the doctors' opinions. . . . In questioning the basis for the experts' opinion, the trial court was engaging in the same evidence weigh ing process that the Wisconsin Supreme Court approved i n Sarinske. 53

IV. CONCLUSION ¶46 Applying the proper standard of review and not disturbing the factual findings of the circuit cour t concerning

52 Sarinske, 91 Wis. 2d at 48.

53 State v. Kucharski, No. 2013AP557-CR, unpublished slip op. ¶¶47-49 (Wis. Ct. App. May 6, 2014).No. 2013AP557-CR

27 the burden of proof because they are not clearly er roneous, we conclude that the court of appeals erroneously exer cised its discretion. In this case the only reason offered b y the court of appeals for the new trial in the interest of jus tice was that court's improper de novo weighing of the evidence c oncerning the burden of proof on the NGI plea of the defendant. When the evidence is reviewed under the proper standard, the re is not a probability of a different result on retrial such t hat a new trial in the interest of justice is warranted. ¶47 We therefore reverse the grant of a new trial u nder Wis. Stat. § 752.35 and remand to the court of appe als for the resolution of Kucharski's remaining unaddressed cla ims. By the Court. —Reversed and remanded.1

¶48 ANN WALSH BRADLEY, J. (dissenting). I agree w ith the majority that a reviewing court's discretionary pow er of reversal should be sparingly exercised. Majority o p., ¶¶5, 42. I part ways with the majority's analysis, however, because it formulates a new rule that arbitrarily limits our p owers. The majority declares that a reviewing court cannot bas e a decision to reverse in the interest of justice on a reassess ment of the evidence. Id., ¶¶10, 26. ¶49 Its decision to limit a reviewing court's discretionary powers in this manner is extraordinar y. It conflicts with the expressed purpose of the discret ionary reversal statute and contradicts decades of precede nt. Because this court's discretionary powers of reversal are c oterminous with the powers of the court of appeals, the majori ty inexorably limits the discretionary powers of both. ¶50 The exercise of discretion is a core judicial function. The court of appeals' decision to revers e in the interest of justice is an exercise of discretion en titled to a deferential standard of review. Even if we may dis agree with the result, this court "will uphold the discretion of a court [it is] reviewing if the decision made on appropria te facts and the correct law is one which a court reasonably cou ld have reached." McConnohie, 113 Wis. 2d 362, 370, 334 N. W.2d 903 (1983). ¶51 I conclude that the court of appeals decision t o reverse in the interest of justice should be upheld . Because the court of appeals' discretionary decision was ba sed onNo. 2013AP557-CR.awb

2 appropriate facts and the correct law, and was a de cision that a court could reasonably reach, I respectfully dissen t.

I ¶52 The majority errs by creating a new rule that l imits the discretion of reviewing courts: a reviewing cou rt's decision to reverse in the interest of justice cannot be bas ed on a reassessment of the evidence. See Majority op., ¶3 4. This arbitrary limit on a reviewing court's discretion c onflicts with the expressed purpose of the discretionary reversal statute. ¶53 For over a century, appellate courts in Wiscons in have had the power to reverse judgments in the interest of justice. Since its initial codification in 1913, this power has been broadly stated: In any action or proceeding brought to the supreme court by appeal or writ of error, if it shall appea r to that court from the record, that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried , the supreme court may in its discretion reverse the judgment or order appealed from, regardless of the question whether proper motions, objections, or exceptions appear in the record or not, and may als o, in the case of reversal, direct the entry of the proper judgment or remit the case to the trial cour t for a new trial, and direct the making of such amendments in the pleadings and the adoption of suc h procedure . . . as shall be deemed necessary to accomplish the ends of justice. Wis. Stat. § 2405m (1913). The statute's enactment was part of a movement to simplify the law so that technicaliti es would not be permitted to thwart justice. See Marvin B. Rose nberry, J., Recent Progress in Judicial Administration and Proc edure in Wisconsin, 5 Marq. L. Rev. 3, 4-5, 9 (1920).No. 2013AP557-CR.awb

3 ¶54 The statute has subsequently gone through sligh t revisions and has been renumbered as Wis. Stat. § 7 51.06. The substance, however, is substantially the same: In an appeal in the supreme court, if it appears fr om the record that the real controversy has not been fully tried, or that it is probable that justice ha s for any reason miscarried, the court may reverse th e judgment or order appealed from, regardless of whet her the proper motion or objection appears in the recor d, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessa ry to accomplish the ends of justice. Wis. Stat. § 751.06. ¶55 When the court of appeals was created in 1978, the legislature enacted a nearly identical statute, Wis . Stat. § 752.35, granting the same power of discretionary reversal to the court of appeals. 1 State v. Schumacher, 144 Wis. 2d 388, 399-400, 424 N.W.2d 672 (1988). Because Wis. Stat. § 751.06 and

1 Wisconsin Stat. § 752.35 provides: Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the prop er motion or objection appears in the record and may direct the entry of the proper judgment or remit th e case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption o f such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish t he ends of justice.No. 2013AP557-CR.awb

4 Wis. Stat. § 752.35 share the same language, this c ourt has determined that "the power of reversal under these statutes is identical." Vollmer v. Luety, 156 Wis. 2d 1, 19, 4 56 N.W.2d 797 (1990); see also State v. Avery, 2013 WI 13, ¶38 n. 17, 345 Wis. 2d 407, 826 N.W.2d 60 ("The discretionary reversal power of this court and the court of appeals is coterminous."). ¶56 The language used in Wis. Stat. §§ 752.35 and 7 51.06 indicates that the legislature intended the discret ionary reversal power of reviewing courts to cover a broad range of situations. For example, they both permit reversa l when "it is probable that justice has for any reason miscarried ." Wis. Stat. §§ 751.06, 752.35 (emphasis added). Further, under the statutes, neither court's ability to reverse in the interest of justice is limited to proper motions or objections appearing in the record. Id. "[The statutes'] very breadth, as a matter of statutory interpretation, indicates that they are m eant to provide courts with the opportunity to exercise the ir discretion without constraint." Monica Mark, A Fearless Searc h for the Truth No Longer: State v. Henley and Its Destructiv e Impact on New Trials in the Interest of Justice, 2012 Wis. L. Rev. 1367, 1386. ¶57 This court has explained that "[t]his broad discretion enables [the court of appeals] to achiev e justice in individual cases." Vollmer, 156 Wis. 2d at 21; see also State v. Mathis, 39 Wis. 2d 453, 458, 159 N.W.2d 729 (196 8) ("The statute is intended as an emergency exit for the pr obably innocent."). Considering that "[t]he function of t he judiciaryNo. 2013AP557-CR.awb

5 is the administration of justice," In re Kading, 70 Wis. 2d 508, 518, 235 N.W.2d 409 (1975), the breadth of the disc retionary reversal statute is appropriate. ¶58 By determining that appellate discretion does n ot extend to a reassessment of the evidence, the major ity erroneously constricts the discretionary power of r eviewing courts. It removes a swath of cases from review, o pening the door for the potential of an unaddressed and unrevi ewable miscarriage of justice. The majority's determinati on to limit reviewing courts' discretion runs counter to the br oad language of the statute and its expressed purpose "to accomp lish the ends of justice." Wis. Stat. § 752.35. ¶59 The majority opinion is further flawed because it contradicts decades of Wisconsin precedent permitti ng reviewing courts to reverse in the interest of justice when t he evidence raises great doubts about whether the state has met its burden, suggesting that justice has miscarried. See State v. Fricke, 215 Wis. 661, 667, 255 N.W. 724 (1934) ("Occasional ly when such grave doubts exist in our minds regarding guilt of a defendant as to make us conscientiously believe that justice probably has miscarried, we exercise the authority specifically given to us by section 251.09 [subsequently renumbered as Wis. Stat. § 751.06], and reverse the judgment for a new trial ."). ¶60 This court has oft recognized that reviewing co urts may reassess the evidence when considering whether justice has miscarried. For example, in Hintz, 200 Wis. 636, 2 29 N.W.2d 54 (1930) the court's decision to reverse in the inter est ofNo. 2013AP557-CR.awb

6 justice was based on an assessment of the evidence. In that case, the court reviewed a conviction for obtaining money under false pretense. It observed that an essential elem ent of the charge was the intent to defraud. The court recite d the evidence relating to intent, which strongly favored the defendant, and acknowledged that weighing this sort of evidence is typically a jury function. Id. at 641. However , the court's analysis did not stop there. After stating that th e "evidence leaves the question of defendant's intent to defrau d in the greatest of doubt," the court concluded that "[w]hi le it is the function of the jury to resolve this doubt, it seem s probable to us that justice has miscarried by the verdict rende red. Under such circumstances it is within our power to order a new trial." Id. at 642. Accordingly, the court reversed the co nviction and remanded the cause for a new trial. Id. ¶61 Similarly, in Hughes v. State, 219 Wis. 9, 261 N.W. 670 (1935), the court's determination that justice had been miscarried was based on its review of the evidence. There, although the court observed that sufficient evidenc e had been presented to raise a jury question, it expressed do ubts regarding the witness's version of events: "the st ory of the complaining witness is inherently improbable." Id. at 11-12. It further described the story presented as "doubtf ul" and indicated that the circumstances added to its "misg ivings." Id. Due to its uneasiness with the evidence presented, the court ordered a new trial in the interest of justice:

While none of the evidence heretofore reviewed destroys as a matter of law the credibility of theNo. 2013AP557-CR.awb

7 state's witness, we are satisfied that there are so many circumstances casting doubt upon the story of complaining witnesses, and that the evidence so strongly preponderates against her story, that ther e is good ground to conclude that justice has probabl y miscarried. In view of this conclusion, we deem it proper, in the exercise of authority conferred by s ec. 251.09 Stats. [subsequently renumbered as Wis. Stat

. § 751.06], to order a new trial. Id. at 13. ¶62 The cases described above are but a sample of t he many decisions granting reversal in the interest of just ice based solely on a reassessment of the evidence. See, e.g ., Kemp v. State, 61 Wis. 2d 125, 137, 211 N.W.2d 793 (1973) ( granting new trial in the interest of justice because evidence a s a whole predominated on Kemp's side); Combs v. Peters, 23 W is. 2d 629, 129 N.W.2d 174 (1964) (given the evidence of record tending to show that the defendant was the offending driver, c ourt determined that the jury finding to the contrary wa s probably a miscarriage of justice, reversed the judgment, and remanded for a new trial); Schuh v. State, 221 Wis. 180, 183, 26 6 N.W. 234 (1936) (reversing in the interest of justice where the circumstances under which the alleged act took plac e were "inherently improbable"); Jacobson v. State, 205 Wis. 304, 309- 10, 237 N.W. 142 (1931) (determining that "it is pr obable that justice has been miscarried" when the evidence in a bastardy case "indicate[d] very strongly" that the defendant was not the child's father); Paladino v. State, 187 Wis. 605, 606, 205 N.W. 320 (1925) (determining that despite the lack of er rors, the case against defendant was very "doubtful" and defe ndant should have the opportunity to present the case to another jury); StateNo. 2013AP557-CR.awb

8 v. Murdock, 2000 WI App 170, ¶¶40, 45, 238 Wis. 2d 301, 617 N.W.2d 175 (ordering new trial in the interest of j ustice because, considering the evidence presented at tria l, there was a substantial probability that a new trial would pr oduce a different result). ¶63 Although the majority does acknowledge Kemp an d attempts to distinguish it on the facts, it misses that Kemp did the very thing that the majority now states is proh ibited: it reversed in the interest of justice based on a reas sessment of the evidence. The failure to address this aspect o f Kemp, as well as numerous other cases taking the approach th at it now disavows, greatly undermines the majority opinion.

II ¶64 In contrast to the majority, I conclude that th e court of appeals' decision to reverse in the interest of justice should be upheld. Its decision to reverse in the i nterest of justice is an exercise of discretion entitled to a deferential standard of review. This court "will uphold the di scretion of a court [it is] reviewing if the decision made on app ropriate facts and the correct law is one which a court reas onably could have reached." McConnohie, 113 Wis. 2d at 370. He re, the court of appeals' discretionary decision was based on app ropriate facts and the correct law, and was a decision that a court could reasonably reach. ¶65 The court of appeals' decision accurately recit ed the following facts of this case. State v. Kucharski, No. 2013AP557-CR, unpublished slip op. (Wis. Ct. App. M ay 6, 2014).No. 2013AP557-CR.awb

9 Kucharski, charged with two counts of first degree intentional homicide, pled not guilty by reason of mental defec t. Id., ¶3. He asserted that he began having hallucinations and hearing voices in 2005. Id., ¶6. Shortly thereafter, he m oved in with his parents and became very isolated. Id., ¶¶6-7. The voices continued, making derogatory remarks and commanding Kucharski to do things. Id., ¶8. In 2009, he began keeping a j ournal to help him sort out what the voices meant. Id., ¶11. By 2010, this journal consisted of 40-50 pages of notes and diagrams.

Id. ¶66 On the day he killed his parents, the voices to ld Kucharski to "simply end it." Id., ¶12. He intend ed to follow their directives by killing his parents and then ki lling himself in a shoot-out with the police. Id., ¶13. However , by the time the police arrived, he forgot to have the shootout. Id., ¶14. ¶67 Kucharski presented the reports of two psychiat rists to support his defense. Both opined that he was su ffering from schizophrenia at the time he killed his parents. I d., ¶15. One determined that Kucharski lacked substantial capaci ty to appreciate the wrongfulness of his actions. Id. S imilarly, the other determined that he lacked the capacity to app reciate the wrongfulness of his actions and to conform his beha vior to the requirements of the law. Id. ¶68 The psychiatrists based their opinions on inter views with Kucharski, his actions on the day of the incid ent, recordings of his 911 call shortly after the incide nt, his responses on the SIRS-II test (which is used to det ect feigningNo. 2013AP557-CR.awb

10 or exaggeration of mental illness), his journal, cl inical observations by a psychologist, and information fro m police reports. Id., ¶¶17-25. Kucharski also presented t he report of a psychologist, who indicated that he would not hav e a different conclusion regarding Kucharski's mental responsibil ity. Id., ¶15. ¶69 After reciting the above facts, the court of ap peals correctly described the governing law for this case , Wis. Stat. § 752.35, which permits the court of appeals to rev erse in the interest of justice when "it is probable that justi ce has for any reason miscarried." Id., ¶32. It acknowledged that it may conclude that justice has miscarried if there is a substantial probability of a different result on retrial. Id., ¶33. It also acknowledged that it may exercise its discreti on only in exceptional cases. Id. ¶70 Reasonably applying this law to the facts of th e case, the court of appeals determined that the evidence " 'predominates quite heavily on the side of the defendant on the i ssue of his mental responsibility,' and that, consequently, 'ju stice has miscarried and . . . a new trial will probably brin g a different result.'" Id., ¶44 (quoting Kemp, 61 Wis. 2d at 13 8). It observed that Kucharski was suffering from schizoph renia when he killed his parents; the expert evidence supporting his defense was uncontroverted; and there was a complete lack o f evidence of alternative explanations for Kucharski's behavior. Id., ¶¶36-
41.No. 2013AP557-CR.awb

11 ¶71 The court of appeals' analysis is consistent w ith a long line of cases permitting courts to reverse in the interest of justice based on a reassessment of the evidence. See supra, ¶¶12-15. This court should be hesitant to cabin th at discretion. ¶72 Rather than creating a new rule of law that lim its the discretionary powers of reviewing courts, I would a pply well established existing precedent and give deference t o the court of appeals discretionary decision. Because the cou rt of appeals' exercise of its discretion was based on ap propriate facts and the correct law, and was a decision that a reasonable court could make, it was not erroneously exercised and should be upheld. Accordingly, I respectfully dissent. ¶73 I am authorized to state that Justice SHIRLEY S

. ABRAHAMSON joins this dissent.No. 2013AP557-CR.awb

1