Wisconsin Court of Appeals rules attorney must advise of lesser offense.

• Author: Ziemer, David

Byline: David Ziemer

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...