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Record supported trial court’s rejection of NGI defense

State v. Corey R. Kucharski, 2013AP557-CR, 3/1/16, District 1 (not recommended for publication); case activity (including briefs)

The trial court correctly applied the elements of § 971.15, and the record supports the trial court’s finding that Kucharski failed to meet his burden of showing that he lacked mental responsibility when he killed his parents.

Kucharski pleaded not guilty by reason of mental disease or defect to charges he killed his parents. He waived his right to trial on the guilt phase and his right to a jury on the mental responsibility phase. Kucharski argues the trial court incorrectly believed Kucharski had the burden of showing he lacked substantial capacity both to appreciate the wrongfulness of his behavior and to conform his conduct to the law, when § 971.15(1) clearly provides he need only show he lacked substantial capacity “either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of the law.” (¶¶5-8).

The court of appeals says the trial court understood the standard because it found Kucharski’s evidence deficient as to both grounds. “The court addressed the capacity to conform first, then the capacity to appreciate, and then worded its finding in the negative, saying it was not convinced he lacked either of the two capacities.” (¶9). The confusing exchange between the trial court and defense counsel doesn’t persuade the court of appeals otherwise:

¶10    …. In a combination of mishearing each other and confusing grammar, trial defense counsel and the trial court talked past each other about the statutory requirements and the trial court’s actual findings. Right after the trial court made the above findings as to Kucharski’s failure to prove each incapacity, trial defense counsel said she thought the trial court had to make specific findings on each incapacity––appreciation of wrongfulness and conforming conduct to the law. She stressed the linking word “and.” The trial court corrected her, apparently hearing the word “and,” saying the statute only required “either or.” Trial defense counsel again asserted that the statute required “and conform his behavior to the requirements of the law.” (Emphasis added.)

¶11      We recognize that this type of communication confusion is easier for this court to sort out with transcripts than it was for the participants in real time at trial. Nonetheless, with the assistance of the transcripts, we are satisfied that the record shows that the trial court understood and applied the correct requirements of Wis. Stat. § 971.15.

The trial court also helpfully explained at a postconviction hearing that it understood the requirements of § 971.15. (¶12).

Further, the trial court’s findings about Kucharski’s capacities are supported by the record. Three experts opined that Kucharski lacked mental responsibility. The trial court rejected these uncontradicted expert opinions. It was entitled to reject the opinions if it had sound reasons for doing so, State v. Sarinske, 91 Wis. 2d 14, 48, 280 N.W.2d 725 (1979), and the court of appeals concludes it did in this case because:

  • The bulk of information on which the experts relied came from Kucharski’s self-report, which the trial court found unreliable.
  • There were no witnesses to his crime, so there were no observations from third parties as to his behavior or words.
  • One expert quoted Kucharski as saying he knew after the shooting that he needed a lawyer, showing that he understood what he did was wrong.
  • Kucharski obeyed part of what the voices commanded and chose not to obey other parts (killing his parents but not himself), showing he was able to make a volitional choice.
  • Kucharski had no prior reported mental health history of any kind.
  • Five months before the murders, Kucharski denied having hallucinations or delusions at a Social Security interview.


Finally, trial counsel wasn’t ineffective for failing to present the testimony of only one of the three experts in support of Kucharski’s NGI defense or for failing to offer into evidence “delusional” writings found in Kucharski’s home. The reports of the experts who didn’t testify were admitted into evidence, and the expert who did testify testified that the opinions of the one of the other experts was substantially the same. The testifying expert also described some of Kucharski’s writings in detail, as they were a basis for his opinion. In light of the fact the state was not presenting any evidence, expert or otherwise, contradicting the defense expert, it was reasonable for trial counsel not to call the other experts or offer the original writings, and in any event was not prejudicial. (¶¶26-42).

This decision comes after remand from the supreme court, which reversed the court of appeals’ previous ruling that Kucharski was entitled to a new trial in the interest of justice. State v. Kucharski, 2015 WI 64, 363 Wis. 2d 658, 866 N.W.2d 697. Because it granted discretionary relief, the court of appeals didn’t address the issues decided here. (¶4). Note that despite an explicit statement in the supreme court’s mandate, 363 Wis. 2d 658, ¶12 n.19, the court of appeals expresses confusion about whether it should address the issue of whether the trial court’s findings about Kucharski’s capacities are supported by the record, or whether the supreme court already decided that issue. (¶¶17-20). It goes on to address the issue, however, “in an excess of caution (and in the interest of not receiving a second remand),” and “adopt[s]” the supreme court’s reasoning. (¶21).

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