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Forgoing lesser-included instruction a reasonable strategic choice

State v. Terry S. Shannon, 2015AP922, 12/7/2016, District 2 (not recommended for publication); case activity (including briefs)

Terry Shannon appeals the denial of his Wis. Stat. § 974.06 motion. He was convicted, at trial, of first-degree intentional homicide; he alleges his trial counsel was ineffective for not requesting that the jury be instructed on second-degree intentional.

The instruction Shannon says his lawyer should have requested was the one for “imperfect” self-defense. For anybody a few years removed from law school, the opinion here provides a handy refresher on the interplay between some of the various defenses and degrees of homicide. (¶¶11-16). In the end, however, the court rejects the claim because it agrees with the trial court that the decision to forego the instruction and “go for broke”–that is, to force the jury to choose between first-degree intentional homicide and acquittal–was a reasonable one:

Shannon’s primary strategy to the State’s charge of first-degree intentional homicide was to show that someone in Smith’s car caused Smith’s death; his secondary strategy was that even if he caused Smith’s death, it occurred under the privilege of perfect self-defense, i.e., that he reasonably believed his life was in imminent danger and he reasonably believed that it was necessary to use force which was intended or likely to cause death. If Shannon had been successful on either strategy, he would have walked out of the courtroom a free man.

Shannon was aware of and considered his right to have second-degree intentional homicide on the verdict. Shannon agreed with the advice of his counsel and chose an “all-or-nothing” strategy of going to trial solely on first-degree intentional homicide. Shannon’s strategy was to beat the charge of first-degree intentional homicide by convincing the jury that the State did not meet its burden to prove that Shannon caused the death of Smith. Shannon’s secondary strategy, that he acted in perfect self-defense, was also reasonable given the amount of gunfire coming out of the Smith vehicle.

(¶¶20-21).

The opinion also makes clear that it was Shannon, rather than his lawyer, who made the decision not to ask for the instruction (though he did so with counsel’s advice). (¶6). Some of the cases the opinion cites, however, seem to suggest that this is a call for the lawyer, rather than the defendant. See, e.g., State v. Koller, 87 Wis. 2d 253, 264, 274 N.W.2d 651 (1979); State v. Kimbrough, 2001 WI App 138, ¶32, 246 Wis. 2d 648, 630 N.W.2d 752 (2001). Whether to forego the possibility of a less serious conviction in order to maximize chances of acquittal seems like a decision about the “objectives of the representation” and thus one reserved for the client. SCR 20:1.2 (2013-14). Views on the matter differ, however. See Rodney J. Uphoff, Allocation of Decisionmaking between Defense Counsel and Criminal Defendant: An Empirical Study of Attorney-Client Decisionmaking, 47 U. Kan. L. Rev. 1 (1998).

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