All jury instruction errors are to be assessed for whether the error was harmless, the supreme court declares, including errors describing a theory of criminal culpability that was not presented to the jury or omitting a valid theory that was presented to the jury. The court therefore abrogates State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997), which held that a jury instruction accurately setting out a legal basis for liability that does not fit evidence presented at trial should be assessed for whether the evidence was sufficient to support the basis for liability in the instruction.
Williams was convicted of two counts of felony murder for the shooting deaths of Parker, a marijuana dealer, and Robinson, who was present in Parker’s home when Williams and some cohorts attempted to rob Parker of his stock in trade. The predicate for the felony murder charges was the attempted armed robbery, and while the evidence was sufficient to support a finding that Williams attempted an armed robbery of Parker, it was insufficient to support a finding of an attempted armed robbery of Robinson. That matters because the jury was instructed that Williams could be found guilty of the felony murder of Robinson only if there was an attempted armed robbery of Robinson. (¶¶8-16, 22-31).
Relying on Wulff, Williams argued the felony murder conviction for the death of Robinson was not supported by sufficient evidence. In Wulff, the jury was instructed on two of the multiple ways to commit sexual assault—namely, when the victim is unconscious, or by an intrusion into the genital or anal opening of the victim. 207 Wis. 2d at 148. But there was no evidence supporting either of those ways to commit the offense; instead, the evidence at trial supported only a different way to the commit the offense (fellatio), and the jury wasn’t instructed as to that mode of commission. Id. at 146-48. The supreme court measured the sufficiency of evidence against the instructions given to the jury, saying it could uphold the conviction “only if there was sufficient evidence to support guilt on the charge submitted to the jury in the instructions.” Id. at 153; see also id. at 152 (quoting Chiarella v. United States, 445 U.S. 222, 236 (1980) (“we cannot affirm a criminal conviction on the basis of a theory not presented to the jury”)).
The state countered with State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, where the defendant was charged with fleeing, which may be committed in three different ways under the disjunctive language of § 346.04(3). The jury was instructed Beamon engaged in two of the three prohibited behaviors and told them they had to find he did both of them, not one or the other. 347 Wis. 2d 559, ¶¶33, 35-36. Beamon argued the evidence was insufficient under the jury instructions because there was no evidence Beamon engaged in one of the behaviors. The supreme court held the instruction was erroneous because, by stating the elements in the conjunctive, it imposed a requirement not supported by the statute, and when there’s an erroneous instruction, sufficiency is measured against the statutory elements, not the jury instructions. Id., ¶¶22-23, 28, 38-29. The instruction in this case, the state says, is erroneous like the instruction in Beamon, because it imposes an “additional” requirement—namely, that the victim of the felony murder must also be the victim of the predicate felony offense, even though Williams could be convicted of felony murder of Robinson even if Parker was the only target of the robbery.
The supreme court resolves the debate by holding that an instruction is erroneous if, as in Wulff, it instructs on a theory of liability not supported by the evidence, and that the error in the instruction is subject to harmless error analysis:
¶54 In Beamon, we identified one way in which a jury instruction can be erroneous: “a jury instruction that does not accurately state the statutory requirements for the crime charged constitutes an erroneous statement of the law.” Beamon, 347 Wis. 2d 559, ¶24. However, it would oversimplify the law to hold that a jury instruction for a crime is erroneous only if the instruction omits an element or includes an extra element.
¶55 The statutory elements of some crimes may be highly context-specific. See id., ¶55 (Bradley, J., dissenting) (“[C]ourts throughout this state regularly give jury instructions that contain factual theories of prosecution.”). If the State pursues charges on one theory for a crime, it cannot be said that a jury instruction is erroneous if it omits theories of the crime that were not presented to the jury. ….
¶56 On the other hand, we think it is apparent that jury instructions can be considered erroneous if they instruct the jury on a theory of the crime that was not presented to the jury.
¶57 In much the same way, jury instructions may be erroneous if they fail to instruct the jury on the theory of the crime that was presented to the jury during trial. See Manning v. Kentucky, 23 S.W.3d 610, 614 (Ky. 2000) (“A trial court is required to instruct on every theory of the case reasonably deducible from the evidence.”). The jury instructions in Wulff are an example of this type of error. In a sense, these jury instructions are erroneous because they do not “accurately state the statutory requirements for the crime charged” as applicable to the facts presented. Beamon, 347 Wis. 2d 559, ¶24. This concept is a mere variant of the established principles discussed above.
¶63 In sum, what constitutes an “erroneous” jury instruction goes beyond simple misstatements of statutory elements. Even instructions that provide a correct statement of the statutory elements of one way to commit a crime may be erroneous in the context of a given case, as, for example, under facts similar to those in Wulff. These erroneous instructions are subject to harmless error review, and a conviction based on an erroneous instruction can be upheld if the court is convinced, beyond a reasonable doubt, that the jury would have convicted the defendant if a proper instruction—an instruction that is consistent with both the relevant statute and the factual theory presented—had been provided to the jury…..
 Wulff was not analyzed under the harmless error framework because it predated this court’s adoption of the harmless error analysis in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189. If this court were to decide Wulff today, it would do so under Harvey‘s harmless error framework.
The court finds the instruction regarding the felony murder of Robinson was erroneous and that the error was harmless. (¶¶65-72).
Finally, the court holds that Williams’s trial lawyer wasn’t ineffective for failing to strike a juror on the basis of bias or for failing to object to the admission of crime scene photographs. (¶¶73-87).
Rest assured that the court “do[es] not mean to discount the vital importance of correct instructions to the administration of justice. The State has the burden of developing and presenting a theory of the crime to the jury. State v. Velez, 224 Wis. 2d 1, 15-16, 589 N.W.2d 9 (1999). The State cannot second-guess its theory or theories after trial, Chiarella, 445 U.S. at 236, and jury instructions must be expected to control jurors’ deliberations.” (¶58). The court provides no guidance on figuring out whether the state made an error that could be harmless or whether it’s now second-guessing its theory after the fact.
The court does note, however, that it’ll be easier to find harmless error when the instruction mistakenly adds an element than when it fails to align with the theory reflected in the trial evidence: “if an erroneous jury instruction omits an element or instructs on a different theory, it will often be difficult to surmise what the jury would have done if confronted with a proper instruction, even if the jury convicted under the erroneous instruction. In other words, in the latter situation it will be more difficult to demonstrate that the error in the jury instruction was harmless.” (¶62).
Finally, as discussed here, in its next term the U.S. Supreme Court is hearing a case (Musacchio v. United States) that could affect this ruling. As always, stay tuned to On Point for coverage of that decision when it comes out. UPDATE (1/26/16): The Supreme Court decided Musacchio on January 25, 2016. Our post on the decision is here.