Waiver of Escalona argument; claim of self-defense where crime includes “utter disregard of life” element
Click here for court of appeals decision, PFR filed 8/3/09
(opinion originally issued 4/23, withdrawn 5/12, reissued 5/21, withdrawn 6/12, reissued 7/2. Groundhog Day? Not quite: the withdrawn opinions found that trial counsel was ineffective for not seeking a lesser included instruction to reckless injury, but the new opinion rejects that conclusion)
Issue/Holding: State failure to argue, in the trial court, that Miller’s 974.06 motion was barred under Escalona-Naranjo waived the argument on appeal:
¶25 We conclude that application of the waiver rule is appropriate here, and therefore decline to address the State’s Escalona argument. Waiver is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987). Miller’s case differs from Crockett, wherein the defendant failed to raise his claim in three prior postconviction motions, and did not assert a sufficient reason for failing to raise his claim in his direct appeal or the prior postconviction proceedings. Crockett, 248 Wis. 2d 120, ¶10. The present case is more akin to State v. Avery, 213 Wis. 2d 228, 247-48, 570 N.W.2d 573 (Ct. App. 1997), in which we concluded that the State had waived its right to assert the procedural bar of Escalona. Like Miller, Avery had made no prior § 974.06 motions. Moreover, as in Miller’s case, the circumstances weighed heavily in favor of reaching the merits. Avery’s motion alleged a miscarriage of justice based on the late discovery that the sheriff’s department had withheld evidence. Here, Miller’s motion asserts claims that he was unable to raise in his direct appeal, as explained below, and alleges that the State failed to meet its burden of proof on his conviction for first-degree reckless injury. For the foregoing reasons, we therefore conclude that the State has waived its argument that Miller’s claims are procedurally barred by Escalona. 
The court further indicates, fn. 9, that the indistinguishable State v. Robinson, 177 Wis. 2d 46, 53, 501 N.W.2d 831 (Ct. App. 1993) (serial-litigation bar inapplicable where trial counsel was also direct-appeal counsel) would nullify Escalona here anyway. Note, as well, the court’s instruction, ¶22 fn. 10, citing State v. Ndina, 2009 WI 21, ¶¶29-30, that “forfeiture” is the correct nomenclature; “waiver” used merely because the parties use the term.
Issue/Holding: Because sufficiency of evidence to sustain the conviction is a matter of constitutional dimension, it may be raised via § 974.06 motion, ¶¶25-30.
The court’s discussion also indicates, at least implicitly, that the State v. Obea S. Hayes, 2004 WI 80 holding (sufficiency claim not waived on direct appeal even though not raised in trial court) applies in the context of 974.06 review.
Issue/Holding: Miller incontrovertibly had some basis to fire a shotgun at his drunken, violent antagonist and even if not adequate to establish full self-defense was enough to defeat the reckless injury element of utter disregard for human life, thereby requiring entry of judgment of acquittal on remand, ¶¶31-44.
Lengthy clips from the court’s detailed analysis omitted, but make no mistake: this is a very significant case with potential ramifications for more than a few prosecutions, especially any crime having utter-disregard as an element where self-defense is raised. What it probably boils down to is that utter-disregard requires conduct for which there is no justification or excuse, and someone with a colorable claim of self-defense by definition will have some justification. Thus, the court indicates that pointing a loaded gun at someone evinces a depraved mind unless “otherwise defensible” even if not privileged, ¶37. Miller’s conduct was aimed at protecting himself and his friends from an aggressor and therefore not conduct for which “there is no justification or excuse,” ¶40. In this case, the court deeming the evidence uncontroverted, Miller’s conduct undoubtedly was not depraved-mind. In the typical case, the evidence might not establish enough justification to defeat the element incontestably, but could nonetheless support an argument to the jury on absence of depraved mind and/or some or another lesser-offense option not, of course, containing the utter-disregard element.
Note as well the court’s recognition, ¶35 n. 12, that conduct occurring after the injury-causing event isn’t necessarily less important than before-and-during conduct. That’s probably something that cuts both ways, but in this case helps Miller.
Finally, given the result, the court didn’t have to discuss the underlying question, which was whether counsel performed deficiently in not discussing a lesser offense option with Miller. The dissent, however, deems the evidence sufficient and proceeds to discuss the subsidiary issue at length, ¶¶81-95, concluding that submission of a lesser is a matter of trial tactics delegated to counsel rather than a personal decision residing with the defendant.
Issue/Holding: ¶52 We conclude as a matter of law that shooting a person in the thigh at a range of sixteen feet with a shotgun is practically certain to cause at least a protracted loss or impairment of the function of the person’s leg, and is therefore injury constituting “great bodily harm” within the meaning of the statutes. In so concluding, we reject Miller’s argument that, by aiming for Nakai’s thigh and not his abdomen, chest or head, a reasonable jury could conclude that he did not intend to cause Nakai great bodily harm.
¶53 We further conclude that Miller, who had experience with firearms as an army reservist and a hunter, would have been aware that his conduct was practically certain to cause protracted loss or impairment of function of Nakai’s leg. We reject Miller’s argument that a reasonable jury could have concluded that Miller did not intend to cause Nakai great bodily harm based on his testimony that his purpose in shooting Nakai was “to stop him.” The fact that Miller’s conduct was intended to neutralize the threat posed by Nakai does not negate the fact that, by firing the shotgun at Nakai’s thigh, Miller also intended to cause Nakai great bodily harm by committing an act that he was aware was practically certain to result in great bodily harm to Nakai.
¶54 We conclude that, because the only reasonable view of the evidence is that Miller intended to cause Nakai “great bodily harm” as defined in Wis. Stat. § 939.22(14), no reasonable jury could have acquitted Miller of aggravated battery unless it accepted his defense of self-defense or defense of others. However, if a reasonable jury did accept one of those defenses, it would also acquit Miller of second-degree reckless injury. Thus, there is no reasonable basis in the evidence for an acquittal on the aggravated battery charge and a conviction on the second-degree reckless injury charge. Accordingly, Miller was not entitled to a lesser-included instruction for second-degree reckless injury for this charge.
The dissent would go farther, ¶¶81-95, and conclude that submission of a lesser is a matter of trial tactics delegated to counsel rather than a personal decision residing with the defendant
Issue/Holding: Counsel’s failure to inform Miller of a plea offer not prejudicial in view of Miller’s own testimony that he probably wouldn’t have accepted the offer, ¶56.
Issue/Holding: ¶60 Assuming for argument’s sake that the court’s actions violated SCR 73.08, Miller provides no authority for the proposition that a court’s violation of a supreme court rule may, alone, be grounds for reversal of a criminal conviction, and we decline to adopt such a rule here.  Cf. Cook v. Cook, 208 Wis.2d 166, 189, 560 N.W.2d 246 (1997) (court of appeals is primarily an error-correcting court). In supplemental authority, Miller cites State v. Ruiz-Velez, 2008 WI App 169, ¶6, __ Wis. 2d __, __ N.W.2d __, which addressed SCR 71.01(2), requiring the reporting of all proceedings in circuit court, in reversing a court order denying the transcription of an audiovisual recording of a child victim in a sexual assault case. However, Ruiz-Velez concluded that the circuit court’s denial violated Wis. Stat. Rule 908.08, requiring the reporting of videotaped testimony presented at trial. This court’s brief discussion of SCR 71.01(2) in Ruiz-Velez, which concluded that the circuit court’s action violated the rule, followed our conclusion that the circuit court violated Rule 908.08, and was offered merely to “reinforc[e] our analysis.” Ruiz-Velez therefore does not persuade us that, even if a violation of SCR 71.01(2) occurred, reversal of Miller’s conviction would be warranted.
Issue/Holding: ¶62 Finally, we consider Miller’s argument that he is entitled to a new trial based on allegations contained in an affidavit in which Miller avers that the fishing-trip juror told an investigator hired by Miller that he changed his vote to “guilty” to end jury deliberations so that he could leave for his fishing trip. Wisconsin Stat. § 906.06(2) provides that a juror may not provide testimony in an inquiry into the validity of a verdict “except … on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” To be entitled to an evidentiary hearing inquiring into the validity of a verdict, the party seeking to set aside a verdict on grounds of extraneous prejudicial information or outside influence must make a preliminary showing by affidavit or nonjuror evidence. Manke v. Physicians Ins. Co. of Wisconsin, Inc., 2006 WI App 50, ¶25, 289 Wis. 2d 750, 712 N.W.2d 40. The affidavit or nonjuror evidence must demonstrate that “the subject matter of the proposed hearing is within an exception to Wis. Stat. § 906.06(2) and must assert facts that, if true, would require a new trial.” Id. Whether the affidavit in this case meets this legal standard is a question of law, which we review de novo. Id. at ¶19.
¶63 We conclude Miller’s affidavit fails to allege facts that would entitle him to an evidentiary hearing inquiring into the validity of the verdict, let alone entitle him to a new trial. Miller claims that the fishing-trip juror’s “impending departure for his annual trip, and no doubt the chiding he could expect from his buddies,” was an outside influence improperly brought to bear upon the juror. We conclude that the scheduled fishing trip, and any criticism the juror might expect to receive from his fishing buddies for missing the trip, was not, as a matter of law, an “outside influence” within the meaning of Wis. Stat. § 906.06(2).
This and similar case summaries are archived at Appellate Procedure – State’s Waiver – Escalona-Naranjo Argument; Appellate Procedure – § 974.06, Supports Sufficiency-of-Evidence Review; Crimes – § 940.23(1), Reckless Injury – “Utter Disregard for Human Life” – Insufficient Proof, Interplay of Self-Defense; Crimes – § 940.19(5), Aggravated Battery – Intent Element not Refuted, Lesser Included Option of 2nd-Degree Reckless Injury not Supported on Facts; Counsel – Deficient Performance – Plea Bargains; Appellate Procedure – Violation of SCR as Supporting Relief against Conviction; Jury – Verdict – Competency of Juror to Impeach Verdict / Verdicts – Competency of Juror to Impeach