Client must be told of lesser offense

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On May 21, the Wisconsin Court of Appeals reissued its opinion in a case after withdrawing, on May 12, its original April 23 opinion.

The new opinion doesn’t change the result -– a defendant’s conviction for first-degree reckless injury while armed is vacated, but his conviction for aggravated battery while armed stands. However, the court’s analysis is somewhat different.

For a full explication of the facts, see the earlier article on the original opinion. David Ziemer, “Attorney must advise of lesser offense”.

In summary, James D. Miller shot a guest in the leg with a shotgun at his home during an after-bar party. The guest was behaving violently and refused to leave.

A jury found him guilty of the aggravated battery and first-degree reckless injury charges. On appeal, Miller argued the evidence was insufficient to support the convictions, and that he received ineffective assistance of counsel, because his attorney failed to advise him that he could request an instruction on a lesser included offense -– second-degree reckless injury.

In both the original opinion and the reissued opinion, the majority concluded the evidence was insufficient to support the conviction for first-degree reckless injury. Given uncontroverted evidence that Miller called 911 before shooting the victim, and evidence concerning the victim’s belligerence, the court concluded the evidence could not support a finding that Miller acted with “utter disregard for human life.”

Judge Paul G. Higginbotham wrote the majority opinion, joined in part by Judge Charles P. Dykman.

Judge Margaret J. Vergeront dissented from this section of the opinion, concluding that the evidence was sufficient to support the conviction.

However, both Higginbotham and Vergeront agreed that Miller’s counsel was ineffective for not advising Miller of the possibility of a lesser-included offense instruction (Judge Dykman did not join this section of the opinion, on the grounds that it was unnecessary, in light of the sufficiency of the evidence holding).

In this section of the opinion, there are substantive differences between the original and the reissued opinion.

In the original opinion, the court gave three reasons why counsel was deficient.

First, the lesser-included offense instruction would not have been inconsistent with, or harmful to, Miller’s claim of self-defense. This fact distinguished the case from State v. Eckert, 203 Wis.2d 497, 553 N.W.2d 539 (Ct.App.1996). In Eckert, the court held that an attorney’s failure to seek a lesser-included offense instruction was not deficient, because it would have been inconsistent with the defendant’s alibi defense.

Judge Higginbotham wrote for the court, “Miller admitted he was there and that he shot Nakai, but claimed he did so in self defense and the defense of others; an instruction on the lesser-included offense would not have been inconsistent with his defense to the charged offense.”

Although the language is slightly different from the original opinion, the substance of this reasoning is the same.

Second, in the original opinion, the court added that, if the jury had found the defendant guilty of second-degree reckless injury, it would have precluded conviction on both the first-degree reckless injury and the aggravated battery charges. Nevertheless, inconsistent with this reasoning, the court affirmed the conviction for aggravated battery.

In the reissued opinion, the inconsistent language has not been included. The conviction for aggravated battery stands.

The third reason the court gave in the original opinion as to why counsel was deficient, was that Miller would in fact have wanted the lesser-included instruction if aware of the option.

In the reissued opinion, the court still agrees with this conclusion. However, it is to be found solely in the section of the opinion concerning prejudice, rather than that section addressing whether counsel was deficient in the first place.

Thus, for future cases, when considering whether or not counsel was deficient for failing to seek a lesser-included offense, there is only one relevant factor distinguishing Eckert from the case at bar: whether the instruction would be inconsistent or harmful to the defendant’s theory of defense.