2015 WI 64 

SUPREME COURT OF WISCONSIN

CASE NO.: 2013AP557-CR 

COMPLETE TITLE: 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 App. 2014 – Unpublished) 

OPINION FILED: July 7, 2015 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: March 10, 2015 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Milwaukee 

 JUDGE: Jean A. DiMotto 

 

JUSTICES: 

 CONCURRED: 

 DISSENTED: BRADLEY, J., joined by ABRAHAMSON, J. dissent 

(Opinion filed). 

 NOT PARTICIPATING: 

 

ATTORNEYS: 

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 of 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 case 

that centers on the evidence presented on the question of the 

defendant's mental responsibility. The circuit court1 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 cases where 

"it appears from the record that . . . it is probable 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2 State v. Kucharski, No. 2013AP557-CR, unpublished slip op.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 court of 

appeals erroneously exercised its discretion, and we remand to 

the court of appeals for the resolution of the remainder 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 heard. He 

pleaded not guilty by reason of mental disease or defect (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 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 proper motion or objection appears in the record 

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 necessary 

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 phase. 

When a criminal defendant pleads not guilty and not

guilty by reason of mental disease or defect, the jury 

hears evidence relating to the defendant's guilt in

the first phase of the trial, and if the jury finds
No. 2013AP557-CR 

3

¶3 During the trial, one doctor, Dr. Rawski, testified as 

the sole witness for the defense; his and other doctors' reports 

and materials were entered into evidence. Dr. Rawski testified 

that it was his opinion to a reasonable degree of medical 

certainty that Kucharski's symptoms of schizophrenia were so 

severe on the night he killed his parents that he lacked 

substantial capacity to appreciate the wrongfulness of his 

conduct or conform his conduct to the law. A second doctor who 

examined him for the defense, Dr. Pankiewicz, was also of the 

opinion that at the time of the crime, Kucharski was 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 witnesses; it did 

not dispute that Kucharski was mentally ill but argued that 

 

the defendant guilty, the trial proceeds to the second 

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 and 

whether, "as a result of mental disease or defect the 

person lacked substantial capacity either to 

appreciate the wrongfulness of his or her conduct or 

conform his or her conduct to the requirements of 

law." Wis. Stat. § 971.15(1). 

The responsibility phase described above has evolved 

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 the 

credible evidence, the same burden imposed for most

issues in civil trials. 

If the NGI plea were tried to a jury, the verdict would 

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 that he did 

have substantial capacity to appreciate the wrongfulness 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 expecting 

punishment for the crime and his decision not to commit suicide 

or engage in a shootout with police despite reporting that he 

had heard voices telling him to do so. In light of that 

evidence, the circuit court found that Kucharski had 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 granting his motion 

for a new trial under Wis. Stat. § 752.35, the discretionary 

reversal statute. For purposes of interpreting that statute, 

justice has miscarried if "there is a substantial probability 

that a new trial would produce a different result."6 We have 

held that "only in exceptional cases" is it appropriate 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 burden on 

defendant in NGI trial is to prove "to a reasonable certainty by 

the greater weight of the credible evidence" that he is not 

responsible). 

6 State v. Murdock, 2000 WI App 170, ¶31, 238 Wis. 2d 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 substantial 

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 responsible for 

the murders. It found that the evidence in his favor "certainly 

comprised 'the greater weight of the credible evidence.'"9 The 

dissent would have affirmed the circuit court, citing the wellestablished proposition that "the credibility of witnesses, the 

weight of the evidence and the determination of whether the 

defendant has met his burden" are questions that "are the 

province of the trial court alone."10 

¶7 The State argues that the trial court appropriately 

weighed the evidence in a way that is consistent with 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 substitute[d] its 

 

8 State v. Kucharski, No. 2013AP557-CR, ¶35, unpublished 

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 725 

(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 appellate court 

should have "unfettered discretion to review the record 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'Acquisto13 we stated, 

The appropriate standard of review for assessing the 

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 view 

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 rarely used power 

of discretionary reversal was that the defendant had "met his 

 

12 The State also argues that this court should "tighten the 

requirements for granting a new trial on mental responsibility 

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 the 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 incorrect 

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 application of the 

law. See Dissent, ¶3. 
No. 2013AP557-CR 

7

burden," which is going too far for a reviewing court on a 

question of fact. Further, the sole reason given for the 

discretionary reversal was that improperly reached conclusion. 

The framework for reviewing evidentiary challenges must 

recognize "established rules of jurisprudence designed to 

protect the sanctity of findings of fact . . . ."15 It is thus 

error for a reviewing court to set aside findings of fact 

without evaluating them under the proper standard of review. 

¶9 The proper standard of review for appellate review of 

whether a party has met his burden on the matter of mental 

responsibility is uncontroversial and well established 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 standard of 

review.16

 

15 State v. Hintz, 200 Wis. 636, 642, 229 N.W. 54 (1930). 

16 Wisconsin cases that support this proposition include 

State v. Leach, 124 Wis. 2d 648, 660, 370 N.W.2d 240 (1985); 

State v. Sarinske, 91 Wis. 2d 14, 48, 280 N.W.2d 725, (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 (1970);; 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 301, 617 

N.W.2d 175.. 

Federal cases that have stated this standard include 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. 1985). A law 

review article summarizing the development of appellate 

standards for review of federal insanity defense cases 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 the evidence 

"certainly comprised" the required burden of proof--

determinations that are unquestionably issues of fact, 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 remanded for a 

new trial, that the ultimate question of whether the evidentiary 

burden was met would be one for the trier of fact and not for 

the reviewing court: Noting that "it is the function of the 

[trier of fact] to resolve this doubt," we remanded so that "the 

 

In United States v. Barton in 1993, the Fifth Circuit 

addressed whether the Jackson sufficiency of the 

evidence standard applied in situations when insanity 

is an affirmative defense, and the defendant, rather 

than the prosecution, has the burden of proof. 

 . . . After recognizing the implications of shifting 

the burden of proof to the defendant, the court noted 

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 have 

failed to find that the defendant's criminal insanity 

at the time of the offense was established by clear

and convincing evidence." . . . 

As in Jackson, the Barton court noted that appellate 

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——Insanity Defense——

the Proper Standard of Appellate Review When Reviewing 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 court concerning 

the burden of proof because they are not clearly erroneous, we 

conclude that the court of appeals erroneously exercised its 

discretion. In this case the only reason given by the court of 

appeals for the new trial in the interest of justice was that 

court's improper de novo weighing of the evidence. When the 

evidence is reviewed under the proper standard, there is not a 

probability of a different result on retrial such that a new 

trial in the interest of justice is warranted. 

¶12 We therefore reverse the grant of a new trial under 

Wis. Stat. § 752.35 and remand to the court of appeals for the 

resolution of Kucharski's remaining unaddressed claims.19 

I. BACKGROUND 

¶13 Kucharski called 911 after midnight on a February 

night in 2010 to request a coroner. He told the 911 operator 

that his parents were dead, named the gun he had used to kill 

them, and was clear in communicating that there was no need to 

send medical assistance. When police arrived, he surrendered 

 

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 responsibility lack 

support in the record, and that he was entitled to a new trial 

due to ineffective assistance of counsel. See State 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 right to 

counsel when asked specifics about the shootings. When he was 

questioned by detectives, after he received his Miranda 

warnings, Kucharski stated, "[A]s far as the statement about 

most of what happened that evening and I'd rather have 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, fine. . . . I 

know you want to talk about the evening but I still rather have 

somebody here before I start answering questions about that 

night."20 

¶15 He willingly talked to investigators without counsel 

present about his history, prior drug use, alcohol use, and his 

experience of hearing voices, which he said began five years 

earlier after a period of extensive drug use. He said 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 expect 

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 that 

he was criminally charged. He was not so out of touch 

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 daily and 

amassing a gun collection. He sought disability benefits for a 

medical condition but gave no indication at that time that he 

was experiencing mental health problems. He was never 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 [expletive] 

kill them, give them what they want . . . ." At that point, he 

 

21 Dr. Rawski's written report, which is in the record, also 

contained Kucharski's account of the evening of the murders. He 

stated that he had been drinking beginning in the afternoon but 

did not specify the number of drinks he had. He did 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 – executed set of 

executions in a[n] organized fashion driven by motive, driven by 

– by delusion and hallucinations, in my opinion, not 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 gone downstairs 

and confronted his father in the kitchen and shot him. He had 

stepped into another room and shot his mother, apparently as she 

was coming toward him. Kucharski's father was shot 10 times; 

his mother was shot four times. He had waited a couple of hours 

before placing the 911 call. He stated that in the past his 

father had stated that if he had a medical emergency, he wished 

for Kucharski to delay an hour before calling 911 so that there 

would be no possibility of resuscitation. He stated he did so 

in this instance in keeping with his father's wishes. 

¶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 issue of 

guilt, instead pleading no contest. The issue of mental 

responsibility was tried to the court after he waived his right 

to a jury. The three doctors who examined him all concluded in 

their reports that, as a result of his schizophrenia, Kucharski 

"lacked substantial capacity either to appreciate the 

wrongfulness of his . . . conduct or conform his . . . conduct 

 

22 The statutes defining first degree intentional homicide 

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 failed to 

meet his burden of proving that he was not responsible. The 

circuit court concluded that Kucharski did suffer from 

schizophrenia; however, it also concluded that the experts' 

opinions that he was not mentally responsible were speculative 

and insufficient to overcome other evidence from which 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 circuit court 

stated, "[T]here are indications, very near the point in time 

that the Defendant committed these crimes, that he understood 

they were wrongful, illegal." For example, the court 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 not 

follow through with that before or after he killed his 

parents. . . . [Y]et he doesn't respond to the command 

voice, especially the derogatory one that he was the 

cause of the fight, and he should kill himself and so 

on, whether directly, or through a shootout with the 

police. 
No. 2013AP557-CR 

14

The court subsequently stated, "I'm finding him legally 

responsible because I'm not persuaded beyond a level scale. 

 . . . It's not tipping, even slightly, that he lacked 

substantial capacity to conform his conduct to the law." The 

circuit court observed that "the basis of [the experts'] 

opinions . . . is that they're speculating about what 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 discretionary 

decision of the court of appeals. However, when [it] do[es] 

review a discretionary act of the Court of Appeals, [it] 

review[s] the decision as [it] would any other exercise of 

discretion."23 "[A] court erroneously exercises its discretion 

when it fails to set forth its reasoning and the facts of record 

do not support its decision. Further, a court erroneously 

exercises its discretion when it proceeds under a mistaken 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, 660 

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 the 

function of the jury or the trier of fact, in [cases 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 substitute its 

judgment for that of the fact finder, who has the great 

advantage of being present at the trial."27 

III. DISCUSSION 

A. REVERSAL UNDER WIS. STAT. 752.35 WAS ERROR BECAUSE 

REVERSAL WAS BASED ON AN IMPROPER WEIGHING OF THE EVIDENCE 

WITHOUT APPLYING THE CORRECT STANDARD 

¶25 Two of the remedies that can be sought by a defendant 

following conviction are an outright reversal of a conviction 

and a reversal and remand. An outright reversal can be based on 

various grounds, including a conclusion that the evidence 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, 681 

N.W.2d 203. 
No. 2013AP557-CR 

16

miscarried and justice requires that the evidence be presented 

to a new trier of fact for a verdict.29 

¶26 We focus on the reason given by the court of appeals 

that it was probable that there would be a different outcome on 

retrial. It was clearly a reweighing of the evidence. The 

court of appeals stated: 

We agree with Kucharski that there is a substantial

probability that a new trial would produce a different 

result because he met his burden under Wis. Stat. 

§ 971.15(3). See Murdock, 238 Wis. 2d 301, ¶31. The 

evidence showing that Kucharski lacked substantial 

capacity either to appreciate the wrongfulness of his 

conduct or to conform his conduct to the requirements 

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 are 

upheld unless they are clearly erroneous.31 It is also well 

established that "[t]he question of whether an accused has or 

has not met this burden [of proving that the accused was not 

mentally responsible for a crime] is one of fact, not one of law 

 

29 Hintz, 200 Wis. at 642 ("Whatever doubts we may entertain 

concerning the justice of this verdict, our power to disturb it 

is limited by established rules of jurisprudence designed to 

protect the sanctity of findings of fact, a function 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 added). 

31 State v. Novy, 2013 WI 23, ¶22, 346 Wis. 2d 289, 827 

N.W.2d 610 ("We will uphold a circuit court's findings 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, the findings 

here must be upheld because there is no basis for saying that 

the findings are clearly erroneous. 

¶28 There are four points the court of appeals identified 

as the basis for its conclusion. 

¶29 The first point was that "there is no dispute that 

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 that planned, 

purposeful, intentional behavior to shoot his parents to death." 

While this fact is listed as a reason for the court of appeals' 

reversal, the issue of an existing mental illness was not the 

basis of the circuit court's original finding of fact in support 

of conviction, and the conclusion that Kucharski suffered from 

mental illness was not an obstacle to the circuit court's 

decision. 

 

32 State v. Sarinske, 91 Wis. 2d 14, 47-48, 280 N.W.2d 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 law. But the 

opinions of experts are not dispositive. The trier of fact 

retains the sole responsibility for determining whether the 

defendant has met his burden. Further, we have explicitly 

stated that an expert's opinion, "even if uncontradicted need 

not be accepted by the [trier of fact]."35 This is especially 

true where "the defense doctors relied substantially 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 missing 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. Secondly 

– I mean there are – there are victims but there are 

no statements from them about the incident. 

Secondly we do not have a – a history of psychiatric 

evaluations over the course of time indicating the 

presence of mental illness and the supporting details 

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 primarily 

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 very 

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 expert 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 the defendant. 

As Sarinske stated: 

[T]he jury is free to disbelieve the defense witnesses 

entirely, and even if the State declines . . . to 

present any experts in rebuttal, the accused may fail 

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 that he had 

begun hearing voices about five years earlier and several pages 

of handwritten notes found in his room that he said were his 

attempts over a period of a year to document the comments the 

voices made. Dr. Rawski described the notes as "very 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 dispositive. 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, apparently for 

the implied proposition that absent a rational explanation for 

behavior, it may be inferred that the explanation is that the 

person lacked capacity to appreciate the wrongfulness 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 car, 

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 Smith 

from calling the police, and fled to the basement when 

the police came in the house after him, viewed as a

whole, his behavior does not appear as purposeful as 

the State contends. After demanding money from the 

Smiths, Murdock "went berserk stabbing" them. When the 

first police officer arrived, Murdock was sitting on 

the Smiths' front steps near Grams's dead 

body. Murdock did not try to flee, but instead stood 

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 explanation must 

be offered for a criminal act. Indeed, that approach 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 that 

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 might 

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 suicide 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 test for 

a miscarriage of justice necessitates substitution of the 

appellate court's judgment for that of the factfinder." That is 

not correct. 

¶36 To agree would allow any sufficiency of the evidence 

claim to be converted to an interest of justice claim, thereby 

evading the stringent standard for reviewing findings by the 

trier of fact. That is contrary to the law. It would also be 

an inappropriate use of the power to grant discretionary 

 

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 interest 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 without 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 "probable" that 

justice has miscarried and that it concludes that "the question 

of defendant's guilt should be passed upon by another jury 

. . . . "42 

 

41 The approach Kucharski argues for, that an appellate 

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 would turn 

appellate courts into simple do-overs. However, it is 

inaccurate to say that appellate courts are precluded by that 

standard of review from evaluating the evidence. It is, in 

fact, the kind of evaluating of evidence that appellate courts 

routinely do when they are reviewing questions of fact. 

Contrary to the dissent's assertions, we apply settled 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 court in regard 

to the Kemp case when it stated, "The supreme court reversed 

Kemp's conviction, concluding that he lacked the capacity to 

appreciate the wrongfulness of his conduct or conform his 

conduct to the requirements of the law." State v. Kucharski, 

2014 WI App 71, ¶42, 354 Wis. 2d 622, 848 N.W.2d 903 (emphasis 

added). That is not correct. In Kemp v. State, 61 Wis. 2d 125, 

137, 211 N.W.2d 793 (1973), this court stopped short of making 

that factual finding and merely remanded for a finding on that 

question to be made by a second trier of fact. Kemp, 61 Wis. 2d 

at 137 ("We believe the weight of the testimony is such that 

justice has probably miscarried and that it is probable a new 

trial will result in a contrary finding.") 
No. 2013AP557-CR 

23

¶37 The court of appeals considered the facts of this case 

comparable to those of Kemp v. State,43 in which the defendant, a 

Vietnam veteran who had been treated extensively for war-related 

mental health problems, was granted a new trial after being 

convicted of shooting and killing his wife. The court of 

appeals said that "Kemp supports our decision to reverse 

. . . . " We disagree. In that case, there was evidence 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 for 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 corroborating 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 defendant'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 circumstances that 

might suggest the defense is a self-serving afterthought to 

avoid legal responsibility."46 

¶39 Kucharski's, in contrast, is exactly that type of 

case. The expert reports dismissed concerns that Kucharski was 

malingering, but, contrary to the court of appeals' implication, 

those opinions are not dispositive. The trier of fact was not 

bound to accept those conclusions in light of evidence such as 

Kucharski's extraordinarily careful statements to law 

enforcement, from which contrary inferences could be drawn. 

¶40 It is clear from Kemp that the court placed great 

weight on the evidence of the prior corroborated mental health 

problems. This single distinguishing fact is enough to make it 

unreasonable to view Kemp as supportive of a reversal on these 

facts. 

¶41 Kemp is instructive in that it also illustrates the 

principle that other claims of error must be addressed before 

moving to a consideration of whether a case is so exceptional 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 noted, "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 exceptional 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 analysis 

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 error: "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 apparent reason for doing 

so."51 In an exceptional case, after all other claims are 

weighed and determined to be unsuccessful, a reviewing court may 

determine that reversal is nevertheless appropriate under Wis. 

Stat. § 752.35. 

 

B. THE FACT-FINDING OF THE TRIER OF FACT THAT KUCHARSKI 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. The 

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 court of 

appeals erroneously exercised its discretion when it failed to 

properly analyze whether this was an exceptional case that 

entitled Avery to a new trial in the interest of justice.") 

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 uphold the 

finding that Kucharski did not meet his burden of showing 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 responsibility. 

It found that Kucharski was able to appreciate the 

wrongfulness of his conduct, quoting the experts that 

Kucharski thought killing his parents was the right

thing to do and quoting Dr. Rawski as saying Kucharski 

knew right after the shooting that he needed a lawyer. 

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 voices 

commanded and chose not to obey other parts . . . . 

The trial court drew proper inferences from the 

evidence and found those inferences more reliable than 

the doctors' opinions as to the second prong of mental 

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 weighing 

process that the Wisconsin Supreme Court approved in 

Sarinske.53 

IV. CONCLUSION 

¶46 Applying the proper standard of review and not 

disturbing the factual findings of the circuit court 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 erroneous, we 

conclude that the court of appeals erroneously exercised its 

discretion. In this case the only reason offered by the court 

of appeals for the new trial in the interest of justice was that 

court's improper de novo weighing of the evidence concerning the 

burden of proof on the NGI plea of the defendant. When the 

evidence is reviewed under the proper standard, there is not a 

probability of a different result on retrial such that a new 

trial in the interest of justice is warranted. 

¶47 We therefore reverse the grant of a new trial under 

Wis. Stat. § 752.35 and remand to the court of appeals for the 

resolution of Kucharski's remaining unaddressed claims. 

By the Court.—Reversed and remanded. 
1 

¶48 ANN WALSH BRADLEY, J. (dissenting). I agree with the 

majority that a reviewing court's discretionary power of 

reversal should be sparingly exercised. Majority op., ¶¶5, 42. 

I part ways with the majority's analysis, however, because it 

formulates a new rule that arbitrarily limits our powers. The 

majority declares that a reviewing court cannot base a decision 

to reverse in the interest of justice on a reassessment of the 

evidence. Id., ¶¶10, 26. 

¶49 Its decision to limit a reviewing court's 

discretionary powers in this manner is extraordinary. It 

conflicts with the expressed purpose of the discretionary 

reversal statute and contradicts decades of precedent. Because 

this court's discretionary powers of reversal are coterminous 

with the powers of the court of appeals, the majority inexorably 

limits the discretionary powers of both. 

 ¶50 The exercise of discretion is a core judicial 

function. The court of appeals' decision to reverse in the 

interest of justice is an exercise of discretion entitled to a 

deferential standard of review. Even if we may disagree with 

the result, this court "will uphold the discretion of a court 

[it is] reviewing if the decision made on appropriate facts and 

the correct law is one which a court reasonably could have 

reached." McConnohie, 113 Wis. 2d 362, 370, 334 N.W.2d 903 

(1983). 

¶51 I conclude that the court of appeals decision to 

reverse in the interest of justice should be upheld. Because 

the court of appeals' discretionary decision was based on 
No. 2013AP557-CR.awb 

2 

appropriate facts and the correct law, and was a decision that a 

court could reasonably reach, I respectfully dissent. 

I 

¶52 The majority errs by creating a new rule that limits 

the discretion of reviewing courts: a reviewing court's decision 

to reverse in the interest of justice cannot be based on a 

reassessment of the evidence. See Majority op., ¶34. This 

arbitrary limit on a reviewing court's discretion conflicts with 

the expressed purpose of the discretionary reversal statute. 

¶53 For over a century, appellate courts in Wisconsin 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 appear 

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 also, 

in the case of reversal, direct the entry of the 

proper judgment or remit the case to the trial court 

for a new trial, and direct the making of such 

amendments in the pleadings and the adoption of such 

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 technicalities would not 

be permitted to thwart justice. See Marvin B. Rosenberry, J., 

Recent Progress in Judicial Administration and Procedure in 

Wisconsin, 5 Marq. L. Rev. 3, 4-5, 9 (1920). 
No. 2013AP557-CR.awb 

3 

¶54 The statute has subsequently gone through slight 

revisions and has been renumbered as Wis. Stat. § 751.06. The 

substance, however, is substantially the same: 

In an appeal in the supreme court, 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 proper motion or objection appears in the record, 

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 necessary 

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 proper 

motion or objection appears in the record 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 necessary to accomplish the 

ends of justice. 
No. 2013AP557-CR.awb 

4 

Wis. Stat. § 752.35 share the same language, this court has 

determined that "the power of reversal under these statutes is 

identical." Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 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 751.06 

indicates that the legislature intended the discretionary 

reversal power of reviewing courts to cover a broad range of 

situations. For example, they both permit reversal 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 meant to 

provide courts with the opportunity to exercise their discretion 

without constraint." Monica Mark, A Fearless Search for the 

Truth No Longer: State v. Henley and Its Destructive 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 achieve 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 (1968) ("The 

statute is intended as an emergency exit for the probably 

innocent."). Considering that "[t]he function of the judiciary 
No. 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 discretionary 

reversal statute is appropriate. 

¶58 By determining that appellate discretion does not 

extend to a reassessment of the evidence, the majority 

erroneously constricts the discretionary power of reviewing 

courts. It removes a swath of cases from review, opening the 

door for the potential of an unaddressed and unreviewable 

miscarriage of justice. The majority's determination to limit 

reviewing courts' discretion runs counter to the broad language 

of the statute and its expressed purpose "to accomplish the ends 

of justice." Wis. Stat. § 752.35. 

¶59 The majority opinion is further flawed because it 

contradicts decades of Wisconsin precedent permitting reviewing 

courts to reverse in the interest of justice when the 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) ("Occasionally 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 courts 

may reassess the evidence when considering whether justice has 

miscarried. For example, in Hintz, 200 Wis. 636, 229 N.W.2d 54 

(1930) the court's decision to reverse in the interest of 
No. 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 element of the 

charge was the intent to defraud. The court recited 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 the "evidence 

leaves the question of defendant's intent to defraud in the 

greatest of doubt," the court concluded that "[w]hile it is the 

function of the jury to resolve this doubt, it seems probable to 

us that justice has miscarried by the verdict rendered. Under 

such circumstances it is within our power to order a new trial." 

Id. at 642. Accordingly, the court reversed the conviction 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 evidence had been 

presented to raise a jury question, it expressed doubts 

regarding the witness's version of events: "the story of the 

complaining witness is inherently improbable." Id. at 11-12. 

It further described the story presented as "doubtful" and 

indicated that the circumstances added to its "misgivings." 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 the 
No. 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 there 

is good ground to conclude that justice has probably 

miscarried. In view of this conclusion, we deem it

proper, in the exercise of authority conferred by sec. 

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 the many 

decisions granting reversal in the interest of justice 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 as a whole 

predominated on Kemp's side); Combs v. Peters, 23 Wis. 2d 629, 

129 N.W.2d 174 (1964) (given the evidence of record tending to 

show that the defendant was the offending driver, court 

determined that the jury finding to the contrary was probably a 

miscarriage of justice, reversed the judgment, and remanded for 

a new trial); Schuh v. State, 221 Wis. 180, 183, 266 N.W. 234 

(1936) (reversing in the interest of justice where the 

circumstances under which the alleged act took place were 

"inherently improbable"); Jacobson v. State, 205 Wis. 304, 309-

10, 237 N.W. 142 (1931) (determining that "it is probable 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 errors, the 

case against defendant was very "doubtful" and defendant should 

have the opportunity to present the case to another jury); State 
No. 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 justice 

because, considering the evidence presented at trial, there was 

a substantial probability that a new trial would produce a 

different result). 

¶63 Although the majority does acknowledge Kemp and 

attempts to distinguish it on the facts, it misses that Kemp did 

the very thing that the majority now states is prohibited: it 

reversed in the interest of justice based on a reassessment of 

the evidence. The failure to address this aspect of Kemp, as 

well as numerous other cases taking the approach that it now 

disavows, greatly undermines the majority opinion. 

II 

¶64 In contrast to the majority, I conclude that the court 

of appeals' decision to reverse in the interest of justice 

should be upheld. Its decision to reverse in the interest of 

justice is an exercise of discretion entitled to a deferential 

standard of review. This court "will uphold the discretion of a 

court [it is] reviewing if the decision made on appropriate 

facts and the correct law is one which a court reasonably could 

have reached." McConnohie, 113 Wis. 2d at 370. Here, the court 

of appeals' discretionary decision was based on appropriate 

facts and the correct law, and was a decision that a court could 

reasonably reach. 

¶65 The court of appeals' decision accurately recited the 

following facts of this case. State v. Kucharski, No. 

2013AP557-CR, unpublished slip op. (Wis. Ct. App. May 6, 2014). 
No. 2013AP557-CR.awb 

9 

Kucharski, charged with two counts of first degree intentional 

homicide, pled not guilty by reason of mental defect. Id., ¶3. 

He asserted that he began having hallucinations and hearing 

voices in 2005. Id., ¶6. Shortly thereafter, he moved 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 journal 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 told 

Kucharski to "simply end it." Id., ¶12. He intended to follow 

their directives by killing his parents and then killing 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 psychiatrists 

to support his defense. Both opined that he was suffering from 

schizophrenia at the time he killed his parents. Id., ¶15. One 

determined that Kucharski lacked substantial capacity to 

appreciate the wrongfulness of his actions. Id. Similarly, the 

other determined that he lacked the capacity to appreciate the 

wrongfulness of his actions and to conform his behavior to the 

requirements of the law. Id. 

¶68 The psychiatrists based their opinions on interviews 

with Kucharski, his actions on the day of the incident, 

recordings of his 911 call shortly after the incident, his 

responses on the SIRS-II test (which is used to detect feigning 
No. 2013AP557-CR.awb 

10 

or exaggeration of mental illness), his journal, clinical 

observations by a psychologist, and information from police 

reports. Id., ¶¶17-25. Kucharski also presented the report of 

a psychologist, who indicated that he would not have a different 

conclusion regarding Kucharski's mental responsibility. Id., 

¶15. 

¶69 After reciting the above facts, the court of appeals 

correctly described the governing law for this case, Wis. Stat. 

§ 752.35, which permits the court of appeals to reverse in the 

interest of justice when "it is probable that justice 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 discretion only in 

exceptional cases. Id. 

¶70 Reasonably applying this law to the facts of the case, 

the court of appeals determined that the evidence "'predominates 

quite heavily on the side of the defendant on the issue of his 

mental responsibility,' and that, consequently, 'justice has 

miscarried and . . . a new trial will probably bring a different 

result.'" Id., ¶44 (quoting Kemp, 61 Wis. 2d at 138). It 

observed that Kucharski was suffering from schizophrenia when he 

killed his parents; the expert evidence supporting his defense 

was uncontroverted; and there was a complete lack of evidence of 

alternative explanations for Kucharski's behavior. Id., ¶¶36-

41. 
No. 2013AP557-CR.awb 

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¶71 The court of appeals' analysis is consistent with 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 that 

discretion. 

¶72 Rather than creating a new rule of law that limits the 

discretionary powers of reviewing courts, I would apply well 

established existing precedent and give deference to the court 

of appeals discretionary decision. Because the court of 

appeals' exercise of its discretion was based on appropriate 

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 

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