State v. Decarlos K. Chambers

S
                                                             

2021 WI 13

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2019AP411-CR


COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Decarlos K. Chambers,
                                 Defendant-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 393 Wis. 2d 595,947 N.W.2d 648
                                     (2020 – unpublished)

OPINION FILED:         February 23, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 11, 2021

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Jeffrey A. Wagner

JUSTICES:
ZIEGLER, J., delivered the majority opinion for a unanimous
Court.
NOT PARTICIPATING:



ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
filed by Mark S. Rosen and Rosen and Holzman, LTD., Waukesha.
There was an oral argument by Mark S. Rosen.


       For the plaintiff-respondent, there was a brief filed by
Scott E. Rosenow, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Scott E. Rosenow.
                                                                            

2021 WI 13

                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.       2019AP411-CR
(L.C. No.    2017CF289)

STATE OF WISCONSIN                               :             IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,                                      FILED
      v.                                                          FEB. 23, 2021
Decarlos K. Chambers,                                                 Sheila T. Reiff
                                                                   Clerk of Supreme Court
             Defendant-Appellant-Petitioner.



ZIEGLER,     J.,   delivered    the   majority       opinion     for    a   unanimous
Court.




      REVIEW of a decision of the Court of Appeals.                    Affirmed.



      ¶1     ANNETTE KINGSLAND ZIEGLER, J.              This is a review of an

unpublished decision of the court of appeals, State v. Chambers,

No. 2019AP411-CR, unpublished slip op. (Wis. Ct. App. Jun. 2,

2020), affirming the Milwaukee County circuit court's1 judgment

of    conviction          and   order     denying          Decarlos         Chambers'

postconviction motion.          The State charged Chambers with first-

degree reckless homicide with a dangerous weapon, as a party to

a crime, and possession of a firearm by a person adjudicated

      1   The Honorable Jeffrey A. Wagner presided.
                                                                        No.     2019AP411-CR



delinquent for a felony.            After a trial, a jury found Chambers

guilty of the lesser-included offense of second-degree reckless

homicide with a dangerous weapon, as a party to a crime, and

possession of a firearm by a person adjudicated delinquent for a

felony.

    ¶2      After Chambers' conviction, the United States Supreme

Court     announced    its   decision             in     McCoy   v.    Louisiana,        584

U.S. ___, 

138 S. Ct. 1500

(2018).                   In McCoy, the Court held that

trial counsel cannot concede a client's guilt when a client

expressly    asserts      that    the    objective          of   the    defense     is   to

maintain innocence and the client objects to the concession of

guilt.

Id. at 1509

. 
         The Court also held that this error is

structural, and one for which a new trial is required.
                              Id. at

1512.

    ¶3 
     Seeking to apply McCoy to his case, Chambers filed a

postconviction motion challenging his judgment of conviction on

the grounds that his trial counsel conceded his guilt during

closing    arguments      contrary       to       his     objective    of      maintaining
absolute innocence and over his objections.                       The circuit court

disagreed with Chambers and held that Chambers' trial counsel

did not concede his guilt during closing argument.                            The court of

appeals agreed, holding that Chambers' counsel did not violate

the principles set forth in McCoy.                     We also agree.

    ¶4      Because    we    conclude             that     Chambers'    counsel      never

conceded    his   guilt    during       closing          arguments,    Chambers'      McCoy

claim fails.      Accordingly, we affirm.


                                              2
                                                                        No.        2019AP411-CR



              I.    FACTUAL BACKGROUND AND PROCEDURAL POSTURE

      ¶5      On    January    17,      2017,      the    State    filed       a     criminal

complaint against Chambers.               The complaint alleged two counts.

The   first    count     alleged       that   Chambers      committed         first-degree

reckless    homicide      with    a    dangerous         weapon,   as     a    party     to   a

crime, contrary to Wis. Stat. §§ 940.02(1) and 939.05 (2017-18).2

Specifically, the complaint alleged that Chambers "as a party to

a crime, did recklessly cause the death of Kyle Tymone Weary,

another    human      being,     under    circumstances           which       showed    utter

disregard for human life" "while using a dangerous weapon."                                  The

second     count,      possession        of   a     firearm       by    an     adjudicated

delinquent, alleged that Chambers possessed a firearm despite

being adjudicated delinquent of an act that would constitute a

felony, contrary to Wis. Stat. § 941.29(1m)(bm).                          That same day,

Chambers was arrested and made his initial appearance before the

circuit court.

      ¶6      On     January     25,     2017,      the    circuit        court       held    a

preliminary hearing, found probable cause for the charges, and
bound Chambers over for trial.                    On February 7, 2017, the court

arraigned Chambers.            The State filed its Information, charging

Chambers      with     the     two     counts       contained      in      the       criminal

complaint.         Chambers pled not guilty to both counts.

      ¶7      On August 14, 2017, Chambers' jury trial commenced.

After both sides rested their arguments, the circuit court began


      2All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.

                                              3
                                                                            No.    2019AP411-CR



a discussion with the parties regarding jury instructions.                                   The

State    requested        that   the    court       instruct     the       jury   as    to   the

lesser-included           offense      of    second-degree            reckless      homicide.

Chambers did not object.               Chambers' trial counsel requested time

to discuss the proposed jury instructions with Chambers prior to

the court finalizing those instructions.                        After a discussion off

the   record,      Chambers'        trial      counsel      confirmed        that      Chambers

agreed     with     the     proposed        jury     instructions,          including        the

instruction for second-degree reckless homicide.

      ¶8        The following day, August 16, 2017, the circuit court

instructed        the     jury    and       both     parties        made    their       closing

arguments.         As part of her closing argument, Chambers' trial

counsel stated that because "whoever shot [Kyle Weary]" did so

"at night, in the dark, in the rain, a distance away," the jury

"should     consider"           second-degree            reckless      homicide.             She

concluded the closing argument by insisting that because there

was reasonable doubt based on the evidence, the jury "should

find [Chambers] not guilty."
      ¶9        The court then submitted the case to the jury, which

began its deliberation.               Later that afternoon, the jury returned

its verdict.            The jury found Chambers guilty of the lesser-

included        offense    of    second-degree            reckless      homicide        with   a

dangerous weapon, as a party to a crime, for count one and

guilty     of    possession       of    a    firearm       by   a     person      adjudicated

delinquent for a felony for count two.                              The court sentenced

Chambers to ten years of initial confinement and eight years of
extended    supervision          on    count       one   and    two    years      of    initial
                                               4
                                                                    No.     2019AP411-CR



confinement and three years of extended supervision on count

two, with the sentences to run consecutively.

      ¶10     On    December     12,     2018,     Chambers   filed        his   motion

seeking postconviction relief.               In this motion, he claimed that

his   trial     counsel       conceded    his    guilt    against    his     expressed

intent to maintain absolute innocence, contrary to the new rule

the   United        States     Supreme     Court    announced       in    McCoy,     
138

S. Ct. 1500 
(2018).           Specifically, Chambers argued that when his

trial counsel stated that the jury "should consider" second-

degree reckless homicide, it was a concession of his guilt on

the lesser-included offense.               Because this error is structural,

Chambers asserted that he must receive a new trial to remedy the

error.        The    circuit     court     denied     Chambers'      postconviction

motion, holding that Chambers' trial counsel never conceded his

guilt at trial.

      ¶11     Chambers appealed both his judgment of conviction and

the   circuit       court's    order     denying    his   postconviction         motion.

The court of appeals affirmed the circuit court.                         Chambers, No.
2019AP411-CR, ¶5.             The court of appeals held that, "[t]rial

counsel's closing argument, read in its entirety, shows that

trial counsel did not concede Chambers' guilt."
                   Id.

      ¶12 
    On June 30, 2020, Chambers petitioned this court for

review.     We granted review.




                                            5
                                                                          No.     2019AP411-CR




                                  II.    STANDARD OF REVIEW

      ¶13       Chambers alleges that his trial counsel conceded his

guilt      in    closing           argument,      violating       his    right     to        "the

Assistance           of     Counsel      for     his    defence,"       which    the     Sixth

Amendment to the United States Constitution guarantees.                                  "This

court       independently               reviews        whether     deprivation          of      a

constitutional right has occurred."                       State v. Jones, 
2010 WI 72
,

¶23, 
326 Wis. 2d 380
, 
797 N.W.2d 378
.


                                         III.     ANALYSIS

      ¶14       We        begin    our    analysis        by     discussing      the     Sixth

Amendment and McCoy.                 We then turn to the merits of Chambers'

McCoy claim in this case.3

                           A.     The Sixth Amendment and McCoy

      ¶15       The       Sixth    Amendment       to    United    States       Constitution

provides that "[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of Counsel for his
defence."        This right "speaks of the 'assistance' of counsel,

and   an    assistant,            however       expert,    is    still    an    assistant."

McCoy, 138 S. Ct. at 1508 
(quoting Faretta v. California, 
422

U.S. 806
, 820 (1975)).                   While counsel "is still an assistant,"



      3The State argued that Chambers forfeited his right to
raise a McCoy claim.   Because we reject Chambers' claim on the
merits, we decline to address the State's forfeiture argument.
See Maryland Arms Ltd. P'ship v. Connell, 
2010 WI 64
, ¶48, 
326
Wis. 2d 300
, 
786 N.W.2d 15 
("Issues that are not dispositive
need not be addressed.").

                                                  6
                                                                      No.      2019AP411-CR



"[t]rial management is the lawyer's province."
                       Id.       This means

that 
    "[c]ounsel     provides     his       or    her    assistance         by     making

decisions such as 'what arguments to pursue, what evidentiary

objections to raise, and what agreements to conclude regarding

the admission of evidence.'"
               Id. (quoting Gonzalez v. 
United

States, 
553 U.S. 242
, 248 (2008)).                     While counsel makes the

decisions     regarding      trial    management,           some      decisions           "are

reserved for the client——notably, whether to plead guilty, waive

the right to a jury trial, testify in one's own behalf, and

forgo appeal."
      Id.

       ¶16 
  The United States Supreme Court has previously held

that   "[w]hen     counsel    informs      the       defendant     of    the        strategy

counsel believes to be in the defendant's best interest and the

defendant    is    unresponsive,      counsel's        strategic        choice       is    not

impeded by any blanket rule demanding the defendant's explicit

consent."      Florida v. Nixon, 
543 U.S. 175
, 192 (2004).                                 In

Nixon, Nixon's counsel repeatedly explained that the litigation

strategy he was pursuing was to concede guilt and focus on the
penalty phase of the trial——attempting to avoid a death penalty

sentence.
     Id. at 181. 
         "Nixon was generally unresponsive" to

these explanations and neither consented nor objected to his

counsel's     strategy.
        Id.         Counsel         followed      his 
       proposed

litigation    strategy,      but     Nixon      was    still     found      guilty         and

sentenced to death.
          Id. at 184. 
           Nixon appealed, arguing that

his counsel provided ineffective assistance because his counsel

never obtained his express consent to a strategy of conceding
guilt.
       Id.   at   186-87. 
       The      United      States      Supreme        Court
                                           7
                                                                     No.       2019AP411-CR



disagreed        and   concluded       that       when    the    defendant       "neither

consents nor objects" to a strategy of conceding guilt, such

decisions are within the scope of counsel's strategic choices.4


Id. at 178.

      ¶17 
    The United States Supreme Court recently distinguished

its Nixon holding.             
McCoy, 138 S. Ct. at 1512
.                In McCoy, the

defendant's counsel "concluded that the evidence against McCoy

was overwhelming and that, absent a concession at the guilt

stage     that    McCoy   was    the    killer,      a   death   sentence        would   be

impossible       to    avoid    at     the    penalty     phase."
        Id.     at    1506

(footnote omitted).             McCoy "vociferously insisted that he did

not engage in the charged acts and adamantly objected to any

admission of guilt."
             Id. at 1505. 
           Instead of complying with

McCoy's wishes, his counsel told the jury during his opening

argument that "there was 'no way reasonably possible' that [the

jury] could hear the prosecution's evidence and reach 'any other

conclusion than Robert McCoy was the cause of these individuals'

death.'"
      Id. at 1506 
(quoted source omitted).                   In his closing
argument, McCoy's counsel "reiterated that McCoy was the killer"

and   "told      the   jury    that    he    'took   [the]      burden     off    of   [the

prosecutor].'"
         Id. at 1507 
(quoted source omitted).                      The jury

found him guilty and returned three death sentences.
                        Id.




      4The 
United States Supreme Court determined that such
claims are subject to a standard ineffective-assistance-of-
counsel analysis, pursuant to Strickland v. Washington, 
466 U.S.
668
, 688 (1984).

                                              8
                                                              No.     2019AP411-CR



       ¶18    On appeal, the United States Supreme Court addressed

the question of "whether it is unconstitutional to allow defense

counsel to concede guilt over the defendant's intransigent and

unambiguous     objection."
        Id.   at   1507
.    The   Court    held   that

"[a]utonomy to decide that the objective of the defense is to

assert innocence" belongs in the category of decisions reserved

for the defendant alone.5
          Id. at 1508. 
      A lawyer violates that

autonomy "[w]hen a client expressly asserts that the objective

of    'his    defence'   is   to   maintain     innocence    of     the   charged

criminal acts" and the lawyer acts contrary to that objective.


Id. at 1509 
(quoting U.S. Const. amend VI).              The Court expounded

upon this holding:

       If a client declines to participate in his defense,
       then an attorney may permissibly guide the defense
       pursuant to the strategy she believes to be in the
       defendant's best interest. Presented with express
       statements of the client's will to maintain innocence,
       however, counsel may not steer the ship the other way.

Id.        The Court concluded 
that this error was structural and

therefore subject to neither the Court's ineffective-assistance-

of-counsel jurisprudence nor ordinary harmless-error analysis.


Id. at 1510-11.

       ¶19 
   Distinguishing McCoy's facts from Nixon's facts, the

Court explained that Nixon's counsel did not violate Nixon's

autonomy because Nixon never asserted that his desired defense

       We note that the United States Supreme Court made this
       5

holding specifically in the context of a capital murder case.
See McCoy v. Louisiana, 584 U.S. ___, 
138 S. Ct. 1500
, 1505
(2018). We assume, without deciding, that this holding applies
equally in non-capital murder cases.

                                         9
                                                                    No.    2019AP411-CR



objective was absolute innocence.
                Id. at 1509
-10.             Instead,

"Nixon 'was generally unresponsive' during discussions of trial

strategy, and 'never verbally approved or protested' counsel's

proposed approach."
          Id. at 1509 
(citing 
Nixon, 543 U.S. at

181
).     While Nixon complained about the admission of guilt only

after trial, 
Nixon, 543 U.S. at 185
, McCoy opposed his counsel's

admission of guilt "at every opportunity."                     
McCoy, 138 S. Ct. at

1509
.      Ultimately in McCoy, the Court held that because his

counsel    conceded    his   guilt     against       his    insistent     objections,

McCoy's    Sixth   Amendment     rights       were    violated,     and    McCoy    was

granted a new trial due to the error.
                Id. at 1512.6

    ¶20 
    Accordingly,       to      succeed       on    a    McCoy     claim,     the

defendant must show that he or she "expressly assert[ed] that

the objective of 'his defence' is to maintain innocence of the

charged criminal acts" and the lawyer did not "abide by that

objective and [overrode] it by conceding guilt."
                        Id. at 1509
;

see, e.g., Atwater v. State, 
300 So. 3d 589
, 591 (Fla. 2020)

(dismissing    a    McCoy      claim     because      the      defendant     did    not
"express[] to counsel that his objective was to maintain his

innocence or that he expressly objected to any admission of

guilt"),    petition     for    cert.      filed,         (U.S.   Jan.     13,     2021)

(No. 20-6851); United States v. Felicianosoto, 
934 F.3d 783
, 787

(8th Cir. 2019) (analyzing the record to determine the defendant

    6  McCoy holds that in order to prove a Sixth Amendment
violation, a defendant must have expressed to his counsel his
clear opposition to admission of his guilt.     We read McCoy as
not necessarily requiring a defendant to contemporaneously
object on the record in order to preserve that claim.

                                         10
                                                               No.    2019AP411-CR



did not maintain absolute innocence), cert. denied, 
140 S. Ct.

2644 
(2020); Merck v. State, 
298 So. 3d 1120
, 1121 (Fla. 2020)

(holding that counsel did not concede guilt at trial), petition

for   cert.      filed,   (U.S.   Jan.   8,   2021)   (No.   20-6806);      United

States      v.   Wilson,    
960   F.3d    136
,    143-44     (3rd    Cir.   2020)

(describing the kinds of concessions reserved for the defendant

under McCoy), cert. denied, __ S. Ct. __, 
2021 WL 78300 
(2021);

Truelove v. State, 
945 N.W.2d 272
, 276 (N.D. 2020) (holding that

the defendant did not meet either requirement of a McCoy claim).

                           B.   Chambers' McCoy Claim

      ¶21     Chambers argues that his trial counsel violated his

right to autonomy, recognized in McCoy, necessitating that he

receive a new trial.7             Chambers asserts that when his trial

counsel told the jury that it should "consider" second-degree

reckless homicide instead of first-degree reckless homicide, his

trial counsel conceded his guilt to the lesser-included offense

of second-degree reckless homicide.              We conclude that Chambers'




      7We note that the parties agree that McCoy announced a new
rule for criminal prosecutions and must be applied retroactively
to Chambers' case as it is before us on direct review.       See
Griffith v. Kentucky, 
479 U.S. 314
, 328 (1987) ("[A] new rule
for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct
review or not yet final, with no exception for cases in which
the new rule constitutes a 'clear break' with the past."); State
v. Koch, 
175 Wis. 2d 684
, 694, 
499 N.W.2d 152 
(1993) (applying
the Griffith rule to Wisconsin).

                                         11
                                                  No.   2019AP411-CR



trial counsel did not concede his guilt during closing argument.8

Accordingly, Chambers' McCoy claim fails.

    ¶22   Chambers argues that the following statement in his

trial counsel's closing argument conceded his guilt:

         But the jury instruction tells you to all see if
    you can agree on first-degree reckless.   And only if
    you can't, then you should go to the second part,
    which is second-degree reckless, right?

         Second-degree   reckless    is   also   criminally
    reckless conduct. Which I think everybody would agree
    that should you have a gun, shooting in the direction
    of a house or person, is criminally reckless conduct.

         And I think that under these circumstances, the
    second-degree reckless -- that does not include utter
    disregard for human life is something you should
    consider. There's an actual description.

         And the jury instructions from the judge say the
    difference between first and second-degree reckless
    homicide is that first-degree requires a proof of one
    additional element.   Circumstances of conduct showed
    utter disregard for human life.



    8  Because the record here demonstrates that Chambers'
counsel did not concede his guilt, we assume, without deciding,
that Chambers "expressly assert[ed] that the objective of 'his
defence' is to maintain innocence of the charged criminal acts,"
satisfying the first requirement of a McCoy claim.           
138
S. Ct. 1509
. Additionally, because of this assumption, we need
not address the situation of when the State and defendant
disagree about whether the defendant "expressly assert[ed] that
the objective of 'his defence' is to maintain innocence of the
charged criminal acts," as a McCoy claim requires.
 Id. Compare
United States 
v. Felicianosoto, 
934 F.3d 783
, 787 (8th Cir.
2019) (declining to remand the case for an evidentiary hearing)
with State v. Howard, No. 2019AP1384-CR, ¶42, unpublished slip
op. (Wis. Ct. App. Dec. 15, 2020) (per curiam) (remanding the
case for an evidentiary hearing to determine whether McCoy was
violated).

                               12
                                                                       No.    2019AP411-CR


            So again, shooting a gun in the dark, when
       somebody is shooting a gun already, and it's clear
       that the ShotSpotter evidence is that there is
       overlapping shots, right? It's not like one person or
       one gun shoots and then stops, and then another gun
       shoots,   does  not   support  first-degree  reckless
       homicide.
(Emphasis added.)          Chambers argues that when his trial counsel

stated that the jury should "consider" second-degree reckless

homicide, she conceded his guilt.                     However, in reviewing her

entire       closing     argument,    we    conclude      that     Chambers'          trial

counsel never conceded Chambers' guilt.9

       ¶23     Chambers primarily focuses his argument on his trial

counsel's use of the word "consider."                     However, the language

that       trial   counsel   used    matches     the     language        of    the    jury

instruction        the    court    read.        Prior     to     Chambers'       closing

argument, the circuit court instructed the jury.                             As part of

those jury instructions, the court told the jury that it must

consider       whether    the     defendant     was    guilty     of     second-degree

reckless       homicide.          Specifically,         the    court         stated    the

following:

            The defendant in this case is charged with first-
       degree reckless homicide as a party to a crime.    You
       must first consider whether the defendant is guilty of
       that offense.

            If you're not satisfied the defendant's guilty of
       first-degree reckless homicide, as a party to a crime,

       Because we conclude that Chambers' trial counsel did not
       9

concede his guilt during closing argument, we do not address the
State's argument that counsel can maintain absolute innocence
while simultaneously suggesting that, in the alternative to
absolute innocence, the jury should consider a lesser-included
offense if the jury believes the defendant to be guilty.

                                           13
                                                 No.   2019AP411-CR


     you must consider whether or not the defendant is
     guilty of second-degree reckless homicide, as a party
     to a crime, which is a less serious degree of
     homicide.

     . . . .

          If you are satisfied beyond a reasonable doubt
     that the defendant or a person the defendant was a
     party to a crime with caused the death of Kyle Weary
     by   criminally   reckless  conduct, and   that  the
     circumstances of the conduct showed utter disregard
     for human life, you should find the defendant guilty
     of first-degree reckless homicide.

          If you are not so satisfied, you must not find
     the defendant not [sic] guilty of first-degree
     reckless homicide, party to a crime, and you should
     consider whether the defendant is guilty of second-
     degree reckless homicide, as a party to a crime, in
     violation of 940 of the Criminal Code of Wisconsin,
     which is a lesser included offense of first-degree
     reckless homicide as a party to a crime.
(Emphases added.)10   Accordingly, when counsel stated that the

jury should "consider" second-degree reckless homicide, she was


     10This jury instruction is nearly identical to the pattern
jury instruction for first- and second-degree reckless homicide.
See Wis. JI—Criminal 1022 (2015). The pattern jury instruction
provides:

          The defendant in this case is charged with first
     degree reckless homicide, and you must first consider
     whether the defendant is guilty of that offense.   If
     you are not satisfied that the defendant is guilty of
     first degree reckless homicide, you must consider
     whether or not the defendant is guilty of second
     degree reckless homicide which is a less serious
     degree of criminal homicide.

     . . . .

          If you are satisfied beyond a reasonable doubt
     that the defendant caused the death of (name of
     victim) by criminally reckless conduct and that the
     circumstances of the conduct showed utter disregard
                               14
                                                                  No.   2019AP411-CR



merely restating the jury instruction the circuit court gave

earlier that morning.11

       ¶24     If   the   similarity   between      the   jury    instruction      and

what Chambers' trial counsel said were all we had to review in

this case, it may be a more difficult decision.                       We have more

than    just    this      similarity   in    this   case.        We   have   all   of

Chamber's trial counsel's closing argument, which when read in

its entirety (as the jury would have heard it), unquestionably

shows that Chambers' trial counsel never conceded his guilt.

Immediately preceding the statements that Chambers believes show

the concession, his trial counsel made the following statement:




       for human life, you should find the defendant guilty
       of first degree reckless homicide.

            If you are not so satisfied, you must not find
       the   defendant  guilty   of  first   degree   reckless
       homicide,   and  you   should  consider   whether   the
       defendant is guilty of second degree reckless homicide
       in violation of § 940.06 of the Criminal Code of
       Wisconsin, which is a lesser included offense of first
       degree reckless homicide.

Wis. JI—Criminal 1022, at 1, 3 (2015) (emphases added).

        Chambers specifically consented to the inclusion of this
       11

jury instruction that used the word "consider." If he felt that
instructing the jury to "consider" second-degree reckless
homicide was a concession of guilt, he could have objected to
the jury instruction at that time. Had he done so, the circuit
court, as well as appellate courts, could examine the jury
instruction to determine if it accurately restates that law or
is constitutionally infirm. See, e.g., State v. Trammell, 
2019
WI 59
, ¶15, 
387 Wis. 2d 156
, 
928 N.W.2d 564 
(reviewing whether
Wis.   JI——Criminal   140  (2017)   misstates  the  law   or  is
constitutionally infirm).

                                        15
                                                         No.   2019AP411-CR


           In this case, though, whoever shot that person
      who made the bad decision, Kyle Weary, whoever shot
      him is at night, in the dark, in the rain, a distance
      away.   You heard the medical examiner say it's not a
      close-up shot. And it is under circumstances that are
      so confusing and so not clearly utter disregard for
      human life that I don't agree that the first-degree
      reckless homicide is a reasonable verdict.
She   also   concluded   the   argument   asserting   Chambers'   absolute

innocence, stating the following:

      That's what he said at the beginning.       Not guilty.
      Denied each and every element of the crime.

           In this case, there is information              that if
      believed, if it is found to be credible,             reliable
      evidence might support the fact that Decarlos        Chambers
      was the shooter.   But that's the problem.           It might
      support it.

           And this is not a civil case where you              think
      about who's got a little better story than the           other
      side and balance it out.  And I'm balancing my           hands
      like the scales of justice.  That's where that           comes
      from.

           In this case, you know, this is a homicide case.
      There are serious consequences to Mr. Chambers. This
      is a case where there has to be confidence beyond a
      reasonable doubt before there should be a conviction.

           And because of the problems that I've pointed out
      that you all know, you all sat there and listened, had
      notebooks. I’m sure you'll go back there and think of
      some things that I [didn't] think about that are
      inconsistent,   that   don't    add   up,   that   are
      contradictions, that lead you to what I think is a
      reasonable conclusion that there's not sufficient
      evidence beyond a reasonable doubt to convict Decarlos
      Chambers.

             I think that you should find him not guilty.
These statements demonstrate that Chambers' trial counsel never
abandoned his position of absolute innocence.           She continued to


                                    16
                                                                   No.    2019AP411-CR



advocate Chambers' absolute innocence both before and after she

told the jury to "consider" second-degree reckless homicide.

    ¶25     When looking at the entire record, it is clear that

Chambers'    trial    counsel    never       conceded      his   guilt.      She    was

mirroring     the     language        from    the      jury      instructions       and

continually       advocated    his    absolute       innocence     throughout       her

closing argument.       Accordingly, Chambers' McCoy claim fails.


                                IV.    CONCLUSION

    ¶26     Because     we    conclude       that     Chambers'     counsel     never

conceded    his    guilt   during     closing       arguments,     Chambers'    McCoy

claim fails.       Accordingly, we affirm.



    By     the    Court.—The    decision       of    the   court    of    appeals    is

affirmed.




                                         17
    No.   2019AP411-CR




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