Attorney must advise of lesser offense

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Failing to advise a client about a lesser-included offense can constitute ineffective assistance of counsel.

But only if the request for a lesser-included offense instruction would not be inconsistent with, or harmful to, a different defense.

An April 23 opinion from the Wisconsin Court of Appeals reversed a conviction for first-degree reckless injury while armed as a result of counsel’s failure to advise his client that he could request an instruction on second-degree reckless injury.

The court also found the evidence insufficient to support the first-degree conviction.

The case arose out of a 1999 after-bar party at the home of James D. Miller, which ended with a shotgun blast. Miller shot Calvin Nakai, a guest at the party.

At various points before the shooting, Nakai slapped Miller several times; Nakai, a former marine in special forces, also picked up a screwdriver on two occasions, asking Miller if he knew what he could do with it, to which Miller said Nakai could probably kill him with it.

Nakai, a Native American, also refused to leave the party when asked, insisting that it was his home, because it was stolen from his ancestors.

Nakai also struck another guest, threatened to “get [Miller’s] little sister,” and wouldn’t let a guest use the bathroom.

Miller called 911, but before they arrived, he armed himself with a shotgun and shot Nakai in the leg from approximately 16 feet away. After the shooting, Miller called 911 again.

Miller was charged with first-degree reckless injury while armed, and aggravated battery while armed. Miller argued self-defense, but the jury found him guilty of both charges.

Miller moved for postconviction relief, which the trial court granted, vacating both convictions.

In an opinion written by Judge Paul B. Higginbotham and joined by Judge Charles P. Dykman, the Court of Appeals affirmed the vacation of the reckless injury conviction, but reversed the vacation of the aggravated battery count.

Judge Margaret J. Vergeront dissented in part, concluding that the evidence was sufficient to support the conviction for first-degree reckless injury, but agreeing with the majority that counsel was ineffective.

First-degree Reckless Injury

First, the court held the evidence insufficient to support the conviction for first-degree reckless injury. One of the elements is that the defendant act with “utter disregard for human life.”

“Utter disregard” requires the defendant possess “a state of mind which has no regard for the moral or social duties of a human being.”

The court concluded this element was not met based on Miller’s 911 call and the uncontroverted testimony concerning Nakai’s belligerence, size, military training, threats to Miller and others, and refusal to leave the home.

The court also relied on the state’s own admission: “the prosecutor acknowledged in his closing argument that Miller ‘was acting in self-defense, but he wasn’t acting in lawful self-defense.’ It would appear undisputed that a reason, if not the reason, for Miller’s conduct was to protect himself and his friends. This reason is inconsistent with conduct evincing utter disregard.”

Lesser-included Offenses

On the lesser-included offense issue, the court split: it held it was not ineffective assistance with regards to the aggravated battery charge, but was with regards to the first-degree reckless injury charge.

Both aggravated battery and second-degree reckless injury contain an element that the defendant caused great bodily harm. They differ in that aggravated battery requires intent to do so, while second-degree reckless injury requires that it be caused by criminally reckless conduct.

Because Miller’s act was intentional, the court concluded that no reasonable jury could acquit him of aggravated battery, while convicting him of second-degree reckless injury.

Thus, counsel could not be deficient for not considering the lesser-included instruction.

However, the court found counsel was deficient for not informing Miller of the option of a lesser-included offense on the first-degree reckless injury count, distinguishing its opinion in State v Eckert, 203 Wis.2d 497, 553 N.W.2d 539 (Ct.App.1996).

The defendant in Eckert was charged with armed robbery, and presented an alibi defense.

The court held that requesting a lesser-included offense of generic robbery would have been inconsistent with, and harmful to, the alibi defense. Thus, it was not deficient performance for counsel not to pursue it.

However, in Miller’s case, the lesser-included offense would not be inconsistent with the defense. Counsel could request the instruction, while still maintaining self-defense as a defense to both.

The court also noted that second-degree reckless injury is a lesser-included offense of both aggravated battery conviction and first-degree reckless injury. Thus, conviction of second-degree reckless injury would have precluded conviction on both the charged offenses, drastically reducing Miller’s prison exposure.

Finally, the trial court found that Miller would have requested the instruction if informed of the option.

“While counsel had the right to make the decision whether to request a lesser-included offense instruction, his failure to adequately inform Miller about the option to make the request was deficient performance,” the court concluded. “Counsel’s failure deprived Miller of the opportunity to express to counsel his views on a strategic decision with serious implications for his future, and to fire counsel if, after being properly informed, he still opposed counsel’s strategic decision.”

Prejudice

Turning to prejudice, the court concluded that, since the evidence was insufficient to support the first-degree reckless injury conviction, it was necessarily prejudicial for counsel not to request the instruction on the lesser charge.

Accordingly, the court reversed the first-degree reckless injury conviction, but concluded that the trial court erred in vacating the aggravated battery conviction.

Case analysis

Effectively, the opinion requires counsel to advise clients of any applicable lesser-included offenses, whenever requesting one would not be inconsistent with, or harmful to, the planned defense.

The court cites three differences between the case at bar and Eckert, but that is the only relevant distinction.

The second reason for distinguishing Eckert was the potential to “dramatically” reduce the prison exposure.

But a lesser-included offense instruction always has the potential to reduce prison exposure. But what is dramatic and what is not? With no guidance on that question, attorneys should assume any potential reduction suffices.

The other factor the court cited is the trial court’s finding that Miller would have wanted the lesser-included offense instruction if he knew about it.

But that is necessarily a finding that can only be made after trial (and conviction). So counsel has no real option except to assume that the defendant will want the instruction, and inform him of the option.

One other aspect of the case deserves mention.

Even though the court held that the aggravated battery conviction should not have been vacated, because counsel was not deficient with respect to that charge, it should still be vacated for another reason.

The court noted in its opinion that, had the jury found Miller guilty of second-degree reckless endangerment, and not guilty on the first-degree charge, conviction on the lesser offense would have precluded Miller from being convicted of both charged felonies.

This being the case, the finding of ineffective assistance on the one charge should have resulted in both convictions being vacated.