Court issues decision for third time

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In a rare procedural twist, the Wisconsin Court of Appeals has now issued its third opinion in the same case, after twice issuing earlier opinions only to later withdraw them.

While the end result is the same for the defendant, James D. Miller — one conviction vacated, the other not -– the analysis is radically different.

In the first two opinions, the court held that, because the evidence was insufficient to support one of the convictions, his trial counsel was ineffective for failing to advise him that he could seek an instruction on a lesser-included offense.

In the latest opinion, the court held that, because the evidence was insufficient, the conviction must be vacated, without examining the ineffective assistance issue.

The court concluded that a sufficiency of the evidence claim is a constitutional issue that can be raised directly in a sec. 974.06 motion, and not just as part of an ineffective assistance claim.

For a full explication of the facts, and the holdings in the earlier opinions, see David Ziemer, “Attorney must advise of lesser offense” (Wis.L.J., May 4, 2009); David Ziemer, “Client must be told of lesser offense” (Wis.L.J., June 1, 2009).

Shooting at Party

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

A jury found him guilty of aggravated battery and first-degree reckless injury. 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. The trial court agreed and vacated both convictions.

In all three opinions, 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 by Judge Charles P. Dykman. Judge Margaret J. Vergeront dissented in part, concluding that the evidence was sufficient to support both convictions.

The majority began by concluding that Peterson v. State, 54 Wis.2d 370, 195 N.W.2d 837 (1972), has been superseded by State v. Ivy, 119 Wis.2d 591, 350 N.W.2d 622 (1984), and State v. Hayes, 2004 WI 80, 273 Wis.2d 1, 681 N.W.2d 203.

Sufficiency of Evidence

In Peterson, the state Supreme Court held that a sufficiency of the evidence claim may not be raised in a sec. 974.06, because it does not raise a constitutional claim.

In Ivy and Hayes, however, the Supreme Court held that it does. Because the majority found insufficient evidence that Miller acted with “utter disregard for human life,” it reversed the first-degree reckless injury conviction, without considering whether counsel was ineffective.

However, it found that the evidence was sufficient to support the aggravated battery conviction, and that no reasonable jury would have found him not guilty of that charge, while also finding that he was guilty of second-degree reckless injury.

Accordingly, the court reversed the circuit court opinion vacating the jury’s verdict on this charge.

In contrast, Judge Vergeront concluded that the evidence was sufficient to support the first-degree reckless injury charge, and so analyzed whether counsel was ineffective for not pursuing the lesser-included charge.

Finding that Miller had a plausible defense to all charges (although the jury rejected it), Judge Vergeront found counsel was not ineffective for pursuing an all-or-nothing defense.