State v. Corey R. Kucharski , 363 Wis. 2d 658 ( 2015 )

2015 WI 64
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP557-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Corey R. Kucharski,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 354 Wis. 2d 622, 848 N.W.2d 903)
(Ct. App. 2014 – Unpublished)
OPINION FILED: July 7, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 10, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jean A. DiMotto
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., joined by ABRAHAMSON, J. dissent
(Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Marguerite M. Moeller, assistant attorney general,
with whom on the briefs was Brad D. Schimel, attorney general.
For the defendant-appellant, there was a brief by Matthew
S. Pinix, Milwaukee, and oral argument by Matthew S. Pinix.
An amicus curiae brief was filed by Melinda A. Swartz,
Milwaukee, on behalf of the Wisconsin Association of Criminal
Defense Lawyers.
2015 WI 64
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP557-CR
(L.C. No. 2010CF652)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. JUL 7, 2015
Corey R. Kucharski, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed and
remanded.
¶1 N. PATRICK CROOKS, J. This is a double-murder case
that centers on the evidence presented on the question of the
defendant's mental responsibility. The circuit court1 found the
defendant responsible. The court of appeals, in a split
decision,2 granted the defendant a new trial under its
discretionary authority to reverse convictions in cases where
"it appears from the record that . . . it is probable that
1
The Milwaukee County Circuit Court, the Honorable Jean
DiMotto presiding.
2
State v. Kucharski, No. 2013AP557-CR, unpublished slip op.
(Wis. Ct. App. May 6, 2014).
1
No. 2013AP557-CR
justice has for any reason miscarried[.]"3 We now reverse the
grant of a new trial because we conclude that the court of
appeals erroneously exercised its discretion, and we remand to
the court of appeals for the resolution of the remainder of the
claims raised on appeal.
¶2 Corey Kucharski was charged with two counts of
intentional homicide for the murders of his parents, which he
later said he committed in obedience to voices he heard. He
pleaded not guilty by reason of mental disease or defect (an NGI
plea). He pleaded no contest to the guilt phase of the trial,
and waived a jury trial on the responsibility phase.4
3
Wisconsin Stat. § 752.35 (2013-14) states
In an appeal to the court of appeals, if it appears
from the record that the real controversy has not been
fully tried, or that it is probable that justice has
for any reason miscarried, the court may reverse the
judgment or order appealed from, regardless of whether
the proper motion or objection appears in the record
and may direct the entry of the proper judgment or
remit the case to the trial court for entry of the
proper judgment or for a new trial, and direct the
making of such amendments in the pleadings and the
adoption of such procedure in that court, not
inconsistent with statutes or rules, as are necessary
to accomplish the ends of justice.
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
4
State v. Magett, 2014 WI 67, ¶¶33-34, 39, 355 Wis. 2d 617,
850 N.W.2d 42, states
A bifurcated criminal trial consists of two phases:
(1) the guilt phase; and (2) the responsibility phase.
When a criminal defendant pleads not guilty and not
guilty by reason of mental disease or defect, the jury
hears evidence relating to the defendant's guilt in
the first phase of the trial, and if the jury finds
2
No. 2013AP557-CR
¶3 During the trial, one doctor, Dr. Rawski, testified as
the sole witness for the defense; his and other doctors' reports
and materials were entered into evidence. Dr. Rawski testified
that it was his opinion to a reasonable degree of medical
certainty that Kucharski's symptoms of schizophrenia were so
severe on the night he killed his parents that he lacked
substantial capacity to appreciate the wrongfulness of his
conduct or conform his conduct to the law. A second doctor who
examined him for the defense, Dr. Pankiewicz, was also of the
opinion that at the time of the crime, Kucharski was not
mentally responsible. A third expert who examined Kucharski at
the State's request, Dr. Jurek, did not come to any different
conclusion. At trial, the State presented no witnesses; it did
not dispute that Kucharski was mentally ill but argued that
the defendant guilty, the trial proceeds to the second
phase. Wis. Stat. § 971.165(1)(a). In the second
phase, the jury considers whether the defendant had a
mental disease or defect at the time of the crime and
whether, "as a result of mental disease or defect the
person lacked substantial capacity either to
appreciate the wrongfulness of his or her conduct or
conform his or her conduct to the requirements of
law." Wis. Stat. § 971.15(1).
The responsibility phase described above has evolved
over time and has now become close to a civil trial.
. . . [T]he defendant has the burden of proof to show
mental disease or defect by the greater weight of the
credible evidence, the same burden imposed for most
issues in civil trials.
If the NGI plea were tried to a jury, the verdict would
have to be agreed to by at least five sixths of the jurors.
See Wis. Stat. § 971.165(2).
3
No. 2013AP557-CR
undisputed evidence of Kucharski's actions showed that he did
have substantial capacity to appreciate the wrongfulness of what
he did and to conform his conduct to the law.
¶4 The circuit court agreed with the State, citing
evidence such as Kucharski's statements about expecting
punishment for the crime and his decision not to commit suicide
or engage in a shootout with police despite reporting that he
had heard voices telling him to do so. In light of that
evidence, the circuit court found that Kucharski had not met his
burden on the issue of responsibility.5 He was convicted and
sentenced to consecutive life sentences.
¶5 Though Kucharski raised several claims on appeal, the
court of appeals' analysis focused solely on granting his motion
for a new trial under Wis. Stat. § 752.35, the discretionary
reversal statute. For purposes of interpreting that statute,
justice has miscarried if "there is a substantial probability
that a new trial would produce a different result."6 We have
held that "only in exceptional cases" is it appropriate for a
reviewing court to exercise its discretion to grant a new trial
in the interest of justice.7
5
Wisconsin Stat. § 971.15(3) (stating that the burden on
defendant in NGI trial is to prove "to a reasonable certainty by
the greater weight of the credible evidence" that he is not
responsible).
6
State v. Murdock, 2000 WI App 170, ¶31, 238 Wis. 2d 301,
617 N.W.2d 175.
7
State v. Armstrong, 2005 WI 119, ¶114, 283 Wis. 2d 639,
700 N.W.2d 98, State v. Avery, 2013 WI 13, ¶38, 345 Wis. 2d 407,
826 N.W.2d 60, Morden v. Cont'l AG, 2000 WI 51, ¶87, 235 Wis. 2d
325, 611 N.W.2d 659.
4
No. 2013AP557-CR
¶6 The court of appeals held that there was a substantial
probability of a different outcome at a new trial "because
[Kucharski] met his burden"8 of proving by the greater weight of
the credible evidence that he was not mentally responsible for
the murders. It found that the evidence in his favor "certainly
comprised 'the greater weight of the credible evidence.'"9 The
dissent would have affirmed the circuit court, citing the well-
established proposition that "the credibility of witnesses, the
weight of the evidence and the determination of whether the
defendant has met his burden" are questions that "are the
province of the trial court alone."10
¶7 The State argues that the trial court appropriately
weighed the evidence in a way that is consistent with prior case
law such as State v. Sarinske,11 which holds that a trier of fact
is not required to accept the opinion of an expert, even if
uncontradicted. The State argues that the court of appeals
"wholly ignore[d] this requirement and instead substitute[d] its
8
State v. Kucharski, No. 2013AP557-CR, ¶35, unpublished
slip op. (Wis. Ct. App. May 6, 2014).
9
Id.
10
Id., ¶45.
11
State v. Sarinske, 91 Wis. 2d 14, 48, 280 N.W.2d 725
(1979).
5
No. 2013AP557-CR
judgment for that of the fact-finder . . . ."12 Kucharski argues
that "[t]he very nature of the test for miscarriage of justice
necessitates substitution of the appellate court's judgment for
that of the factfinder" and that in fact an appellate court
should have "unfettered discretion to review the record without
deference to the factfinder's conclusions."
¶8 We uphold discretionary rulings unless they are
reached under an incorrect view of the facts or the law. In
State v. D'Acquisto13 we stated,
The appropriate standard of review for assessing the
propriety of the court of appeals' [discretionary
ruling] is that this court will uphold the court's
discretion if its decision is made on appropriate
facts and the correct law and thus is one which a
court reasonably could have reached. If it is
demonstrated that the court of appeals made a
discretionary order, . . . based upon a mistaken view
of the law, we will ordinarily reverse that order.
In this case, that is what happened.14 The reason given by the
court of appeals in this case for invoking the rarely used power
of discretionary reversal was that the defendant had "met his
12
The State also argues that this court should "tighten the
requirements for granting a new trial on mental responsibility
under the miscarriage-of-justice prong of § 752.35" by adding a
requirement that "error, counsel's misfeasance, or some form of
unfairness infected the defendant's trial." We are confident
that the existing rules are adequate and decline the invitation
to write additional requirements into the statute.
13
State v. D'Acquisto, 124 Wis. 2d 758, 762, 370 N.W.2d 781
(1985) (citations omitted).
14
Even under this deferential standard, it is not incorrect
for this court to reverse a ruling based on mistake of law. It
would not be proper to leave undisturbed, under the guise of a
deferential standard of review, a mistaken application of the
law. See Dissent, ¶3.
6
No. 2013AP557-CR
burden," which is going too far for a reviewing court on a
question of fact. Further, the sole reason given for the
discretionary reversal was that improperly reached conclusion.
The framework for reviewing evidentiary challenges must
recognize "established rules of jurisprudence designed to
protect the sanctity of findings of fact . . . ."15 It is thus
error for a reviewing court to set aside findings of fact
without evaluating them under the proper standard of review.
¶9 The proper standard of review for appellate review of
whether a party has met his burden on the matter of mental
responsibility is uncontroversial and well established in both
Wisconsin law and federal law: whether a person has met his or
her burden on the question of mental responsibility is a
question of fact, subject to a clearly erroneous standard of
review.16
15
State v. Hintz, 200 Wis. 636, 642, 229 N.W. 54 (1930).
16
Wisconsin cases that support this proposition include
State v. Leach, 124 Wis. 2d 648, 660, 370 N.W.2d 240 (1985);
State v. Sarinske, 91 Wis. 2d 14, 48, 280 N.W.2d 725, (1979);
Pautz v. State, 64 Wis. 2d 469, 476, 219 N.W.2d 327 (1974); Kemp
v. State, 61 Wis. 2d 125, 137, 211 N.W.2d 793 (1973); State v.
Bergenthal, 47 Wis. 2d 668, 685, 178 N.W.2d 16 (1970);; State v.
Ryan, 2000 WI App 47, ¶16, 233 Wis. 2d 273, 610 N.W.2d 229; and
State v. Murdock, 2000 WI App 170, ¶3, 238 Wis. 2d 301, 617
N.W.2d 175..
Federal cases that have stated this standard include United
States v. Waagner, 319 F.3d 962, 964 (7th Cir. 2003); United
States v. Barton, 992 F.2d 66, 68 (5th Cir. 1993); and United
States v. Smeaton, 762 F.2d 796, 798-99 (9th Cir. 1985). A law
review article summarizing the development of appellate
standards for review of federal insanity defense cases described
two of the key cases as follows:
7
No. 2013AP557-CR
¶10 The court of appeals' holding reveals its error: it
simply performs a new weighing of the evidence and then states
outright that Kucharski "met his burden" and that the evidence
"certainly comprised" the required burden of proof--
determinations that are unquestionably issues of fact, not law.
By way of illustration, in State v. Hintz,17 a case that
considered a sufficiency of the evidence challenge and
discretionary reversal, we acknowledged, as we remanded for a
new trial, that the ultimate question of whether the evidentiary
burden was met would be one for the trier of fact and not for
the reviewing court: Noting that "it is the function of the
[trier of fact] to resolve this doubt," we remanded so that "the
In United States v. Barton in 1993, the Fifth Circuit
addressed whether the Jackson sufficiency of the
evidence standard applied in situations when insanity
is an affirmative defense, and the defendant, rather
than the prosecution, has the burden of proof.
. . . After recognizing the implications of shifting
the burden of proof to the defendant, the court noted
that slight modification to the sufficiency of the
evidence standard was necessary. Accordingly, the
Barton court stated that it "should reject the jury
verdict only if no reasonable trier of fact could have
failed to find that the defendant's criminal insanity
at the time of the offense was established by clear
and convincing evidence." . . .
As in Jackson, the Barton court noted that appellate
courts are not to supplant the role of the jury as
fact finders when reviewing the sufficiency of the
evidence supporting a conviction.
Kevin Thompson, Criminal Appellate Procedure——Insanity Defense——
the Proper Standard of Appellate Review When Reviewing A Jury
Decision on Sanity, State v. Flake, 88 S.W.3d 540 (Tenn. 2002),
70 Tenn. L. Rev. 1213, 1224-25 (2003).
17
Hintz, 200 Wis. at 642.
8
No. 2013AP557-CR
question of defendant's guilt should be passed upon by another
jury . . . ."18
¶11 Applying the proper standard of review and not
disturbing the factual findings of the circuit court concerning
the burden of proof because they are not clearly erroneous, we
conclude that the court of appeals erroneously exercised its
discretion. In this case the only reason given by the court of
appeals for the new trial in the interest of justice was that
court's improper de novo weighing of the evidence. When the
evidence is reviewed under the proper standard, there is not a
probability of a different result on retrial such that a new
trial in the interest of justice is warranted.
¶12 We therefore reverse the grant of a new trial under
Wis. Stat. § 752.35 and remand to the court of appeals for the
resolution of Kucharski's remaining unaddressed claims.19
I. BACKGROUND
¶13 Kucharski called 911 after midnight on a February
night in 2010 to request a coroner. He told the 911 operator
that his parents were dead, named the gun he had used to kill
them, and was clear in communicating that there was no need to
send medical assistance. When police arrived, he surrendered
18
Id.
19
Kucharski argued at the court of appeals that the trial
court erred in its application of Wis. Stat. § 971.15, that the
trial court’s conclusions regarding mental responsibility lack
support in the record, and that he was entitled to a new trial
due to ineffective assistance of counsel. See State v.
Kucharski, No. 2013AP557-CR, unpublished slip op., ¶31, n.2
(Wis. App., May 6, 2014).
9
No. 2013AP557-CR
without incident. Police found Kucharski's father and mother in
the home, dead of multiple gunshot wounds.
¶14 Once in police custody, Kucharski invoked his right to
counsel when asked specifics about the shootings. When he was
questioned by detectives, after he received his Miranda
warnings, Kucharski stated, "[A]s far as the statement about
most of what happened that evening and I'd rather have a lawyer
here for that." When the detective reiterated his right to do
that, Kucharski stated, "If you want to ask me any questions
about my background or any, any other questions, fine. . . . I
know you want to talk about the evening but I still rather have
somebody here before I start answering questions about that
night."20
¶15 He willingly talked to investigators without counsel
present about his history, prior drug use, alcohol use, and his
experience of hearing voices, which he said began five years
earlier after a period of extensive drug use. He said he
20
Dr. Rawski, the doctor who testified at the trial,
acknowledged on direct examination that Kucharski
clearly . . . recognized the illegality of homicide
and recognized that there would be, in his term,
quote, repercussions, unquote, that he did not expect
to have to deal with when planning his – the
executions because he expected to have been killed by
police afterwards and – and engaging in a shootout
with them. His – His decision to invoke his right [to
counsel] is based on his knowledge that he would be in
legal trouble, that he was arrested by police and that
he was criminally charged. He was not so out of touch
with reality that he didn't know he was in jail or
that he didn't know he was arrested or that he didn't
know what he had actually done.
10
No. 2013AP557-CR
continued hearing the voices after he stopped using drugs. The
voices he heard told him to do specific things and berated him
for certain mistakes. He also disclosed that he had experienced
other auditory distortions such as hearing another person's
voice while a person was speaking to him. He drank heavily,
which he said was an effort to quiet the voices.21 He had held
jobs in prior years both in Wisconsin and in other states. In
2005 he had returned to his parents' Milwaukee home, where he
spent his time increasingly isolated, drinking daily and
amassing a gun collection. He sought disability benefits for a
medical condition but gave no indication at that time that he
was experiencing mental health problems. He was never treated
for mental health issues and never told anyone that he was
experiencing them.
¶16 At trial, Dr. Rawski testified that Kucharski's
account of the evening was that he had been present at an
argument between his parents in the early evening. Afterward,
he recalled, he had heard voices saying, "[J]ust [expletive]
kill them, give them what they want . . . ." At that point, he
21
Dr. Rawski's written report, which is in the record, also
contained Kucharski's account of the evening of the murders. He
stated that he had been drinking beginning in the afternoon but
did not specify the number of drinks he had. He did not
consider himself intoxicated after he awoke from a nap. In
testimony, Dr. Rawski noted that Kucharski "was not assessed to
be intoxicated by alcohol by the police afterwards." It was Dr.
Rawski's conclusion that "[t]his is a planned – executed set of
executions in a[n] organized fashion driven by motive, driven by
– by delusion and hallucinations, in my opinion, not by
disinhibition and behavior by alcohol dependence." The circuit
court made no contrary findings regarding the role of alcohol or
drug use in Kucharski's health or in the homicides.
11
No. 2013AP557-CR
had gone to his bedroom to sleep. He had awakened a couple of
hours later and had heard a clear voice telling him to "end it"
—— to kill his parents and die while engaging in a shootout with
police when they arrived. At that point, he had gone downstairs
and confronted his father in the kitchen and shot him. He had
stepped into another room and shot his mother, apparently as she
was coming toward him. Kucharski's father was shot 10 times;
his mother was shot four times. He had waited a couple of hours
before placing the 911 call. He stated that in the past his
father had stated that if he had a medical emergency, he wished
for Kucharski to delay an hour before calling 911 so that there
would be no possibility of resuscitation. He stated he did so
in this instance in keeping with his father's wishes.
¶17 Kucharski was charged with two counts of first-degree
intentional homicide while using a dangerous weapon.22 He
entered an NGI plea under Wis. Stat. § 971.15.
¶18 Kucharski waived his right to trial on the issue of
guilt, instead pleading no contest. The issue of mental
responsibility was tried to the court after he waived his right
to a jury. The three doctors who examined him all concluded in
their reports that, as a result of his schizophrenia, Kucharski
"lacked substantial capacity either to appreciate the
wrongfulness of his . . . conduct or conform his . . . conduct
22
The statutes defining first degree intentional homicide
by use of a dangerous weapon are Wis. Stat. §§ 940.01(1)(a),
939.50(3)(a), and 939.63(1)(b).
12
No. 2013AP557-CR
to the requirements of law," that he satisfied both requirements
of the test, and that he was therefore not mentally responsible.
¶19 The circuit court found that Kucharski had failed to
meet his burden of proving that he was not responsible. The
circuit court concluded that Kucharski did suffer from
schizophrenia; however, it also concluded that the experts'
opinions that he was not mentally responsible were speculative
and insufficient to overcome other evidence from which it could
be inferred that he appreciated the wrongfulness of his conduct
and had the capacity to conform his conduct to the requirements
of the law.
¶20 As to the question concerning his ability to
appreciate the wrongfulness of his conduct, the circuit court
stated, "[T]here are indications, very near the point in time
that the Defendant committed these crimes, that he understood
they were wrongful, illegal." For example, the court said, he
had expressed the knowledge that he needed a lawyer and would be
"rotting in jail" for the killings.
¶21 As to the issue of whether he could conform his
conduct to the requirements of the law, the circuit court stated
that Kucharski had heard
command voices about killing himself, and he did not
follow through with that before or after he killed his
parents. . . . [Y]et he doesn't respond to the command
voice, especially the derogatory one that he was the
cause of the fight, and he should kill himself and so
on, whether directly, or through a shootout with the
police.
13
No. 2013AP557-CR
The court subsequently stated, "I'm finding him legally
responsible because I'm not persuaded beyond a level scale.
. . . It's not tipping, even slightly, that he lacked
substantial capacity to conform his conduct to the law." The
circuit court observed that "the basis of [the experts']
opinions . . . is that they're speculating about what happened.
¶22 The court of appeals reversed, and the State
petitioned for review, which we granted.
II. STANDARD OF REVIEW
¶23 "This court does not normally review a discretionary
decision of the court of appeals. However, when [it] do[es]
review a discretionary act of the Court of Appeals, [it]
review[s] the decision as [it] would any other exercise of
discretion."23 "[A] court erroneously exercises its discretion
when it fails to set forth its reasoning and the facts of record
do not support its decision. Further, a court erroneously
exercises its discretion when it proceeds under a mistaken view
of the law."24 "This court has held that it is an erroneous
exercise of discretion for the court of appeals . . . to
shortcut [established] procedures . . . when there is no
23
Raz v. Brown, 2003 WI 29, ¶14, 260 Wis. 2d 614, 660
N.W.2d 647.
24
State v. Evans, 2004 WI 84, ¶20, 273 Wis. 2d 192, 682
N.W.2d 784, abrogated on other grounds by State ex rel. Coleman
v. McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d 900
(citations omitted).
14
No. 2013AP557-CR
apparent reason for doing so."25 Reversals in the interest of
justice should be granted only in exceptional cases.26
¶24 "The credibility of the witnesses is properly the
function of the jury or the trier of fact, in [cases where the
right to a jury is waived,] the trial judge. It is only when the
evidence that the trier of fact has relied upon is inherently or
patently incredible that the appellate court will substitute its
judgment for that of the fact finder, who has the great
advantage of being present at the trial."27
III. DISCUSSION
A. REVERSAL UNDER WIS. STAT. 752.35 WAS ERROR BECAUSE
REVERSAL WAS BASED ON AN IMPROPER WEIGHING OF THE EVIDENCE
WITHOUT APPLYING THE CORRECT STANDARD
¶25 Two of the remedies that can be sought by a defendant
following conviction are an outright reversal of a conviction
and a reversal and remand. An outright reversal can be based on
various grounds, including a conclusion that the evidence is
insufficient as a matter of law; this results in no retrial.28 A
reversal and remand for a new trial may be granted for various
reasons, including when it is probable that justice has
25
Id.
26
State v. Armstrong, 2005 WI 119, ¶114, 283 Wis. 2d 639,
700 N.W.2d 98, State v. Avery, 2013 WI 13, ¶38, 345 Wis. 2d 407,
826 N.W.2d 60.
27
Gauthier v. State, 28 Wis. 2d 412, 416, 137 N.W.2d 101
(1965).
28
State v. Hayes, 2004 WI 80, ¶40, 273 Wis. 2d 1, 681
N.W.2d 203.
15
No. 2013AP557-CR
miscarried and justice requires that the evidence be presented
to a new trier of fact for a verdict.29
¶26 We focus on the reason given by the court of appeals
that it was probable that there would be a different outcome on
retrial. It was clearly a reweighing of the evidence. The
court of appeals stated:
We agree with Kucharski that there is a substantial
probability that a new trial would produce a different
result because he met his burden under Wis. Stat.
§ 971.15(3). See Murdock, 238 Wis. 2d 301, ¶31. The
evidence showing that Kucharski lacked substantial
capacity either to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements
of the law was, as we will discuss more fully below,
very strong, and certainly comprised "the greater
weight of the credible evidence."30
¶27 It is well established that factual findings are
upheld unless they are clearly erroneous.31 It is also well
established that "[t]he question of whether an accused has or
has not met this burden [of proving that the accused was not
mentally responsible for a crime] is one of fact, not one of law
29
Hintz, 200 Wis. at 642 ("Whatever doubts we may entertain
concerning the justice of this verdict, our power to disturb it
is limited by established rules of jurisprudence designed to
protect the sanctity of findings of fact, a function which
constituted society has committed to the jury.")
30
State v. Kucharski, No. 2013AP557-CR, unpublished slip
op., ¶35 (Wis. Ct. App. May 6, 2014) (emphasis added).
31
State v. Novy, 2013 WI 23, ¶22, 346 Wis. 2d 289, 827
N.W.2d 610 ("We will uphold a circuit court's findings of fact
unless they are clearly erroneous.")
16
No. 2013AP557-CR
for this court on appeal."32 When the proper framework is
applied to an evaluation of the factual findings, the findings
here must be upheld because there is no basis for saying that
the findings are clearly erroneous.
¶28 There are four points the court of appeals identified
as the basis for its conclusion.
¶29 The first point was that "there is no dispute that
Kucharski was in fact suffering from schizophrenia when he
killed his parents."33 The circuit court found that to be proved
and identified the real focus of the case, stating,
I don't think there's even a doubt, much less a
reasonable doubt, that Mr. Kucharski suffered from a
mental illness at the time that he committed these
crimes, and the name of that mental illness is
schizophrenia. The close call is whether he lacked
substantial capacity to conform his conduct to the law
or to understand the wrongfulness of his conduct.
The court later repeated, "There's no question that he suffered
from schizophrenia at the time that he engaged in that planned,
purposeful, intentional behavior to shoot his parents to death."
While this fact is listed as a reason for the court of appeals'
reversal, the issue of an existing mental illness was not the
basis of the circuit court's original finding of fact in support
of conviction, and the conclusion that Kucharski suffered from
mental illness was not an obstacle to the circuit court's
decision.
32
State v. Sarinske, 91 Wis. 2d 14, 47-48, 280 N.W.2d 725
(1979) (emphasis added).
33
Id., ¶36.
17
 No. 2013AP557-CR
¶30 The second point was that "the expert testimony was
uncontroverted."34 It is certainly accurate to state that the
doctors who examined Kucharski came to the opinion that the
schizophrenia rendered him unable to appreciate the wrongfulness
of his conduct and to conform his conduct to the law. But the
opinions of experts are not dispositive. The trier of fact
retains the sole responsibility for determining whether the
defendant has met his burden. Further, we have explicitly
stated that an expert's opinion, "even if uncontradicted need
not be accepted by the [trier of fact]."35 This is especially
true where "the defense doctors relied substantially on
information provided by [the defendant]."36 That is precisely
the situation in Kucharski's case. As Dr. Rawski, the
testifying doctor, acknowledged, he had conducted a three-and-a-
half-hour meeting with Kucharski, but he was missing much of the
context he normally relies on for an NGI opinion:
In my NGI evaluation we have some glaring absences of
information that we typically rely upon[,] one of
which is the statements of the victim or witnesses and
there are none in this particular situation. Secondly
– I mean there are – there are victims but there are
no statements from them about the incident.
Secondly we do not have a – a history of psychiatric
evaluations over the course of time indicating the
presence of mental illness and the supporting details
that we look for to examine comparable contexts for
similar behavior and symptoms as well, so that's
absent as well, and so the evaluation and the NGI
34
Id., ¶37.
35
Sarinske, 91 Wis. 2d at 47-48.
36
Id. at 49.
18
No. 2013AP557-CR
opinion, one way or another, is going to be primarily
based largely upon the evidence such as the jail
observations afterwards, the police observations
afterwards, the random statements by neighbors who did
not know Mr. Kucharski very well because of his very
isolated lifestyle and based upon the limited
information from that disability report.
¶31 Sarinske also involved a mental responsibility trial.
Although the State in that case did put on an expert witness who
contradicted the defense witnesses, Sarinske stated that a trier
of fact may reject the opinions of an expert, even when there is
no testimony to the contrary, when the basis of the expert's
opinion is information substantially derived from the defendant.
As Sarinske stated:
[T]he jury is free to disbelieve the defense witnesses
entirely, and even if the State declines . . . to
present any experts in rebuttal, the accused may fail
to satisfy his burden of affirmatively proving that he
was suffering from mental disease. Because the
defense doctors relied substantially on information
provided by [the defendant], the basis of their
opinion and their diagnoses could be questioned by the
jury on this ground alone.37
¶32 The source of virtually all of the reports and
interviews came down to Kucharski's own version of events and
perspective. The evidence of mental health issues that preceded
the murders included the defendant's own account that he had
begun hearing voices about five years earlier and several pages
of handwritten notes found in his room that he said were his
attempts over a period of a year to document the comments the
voices made. Dr. Rawski described the notes as "very bizarre
37
Id. at 48-49 (citations omitted) (emphasis added).
19
No. 2013AP557-CR
and inexplicable." Therefore, under Sarinske, the fact that the
expert reports were uncontroverted is not dispositive. The
circuit court had no obligation in its role as the trier of fact
to accept the conclusion of the experts who relied on Kucharski
for their reports.
¶33 The third point was that "there was a complete lack of
evidence of alternative explanations for Kucharski's behavior."38
The court of appeals cited to State v. Murdock, apparently for
the implied proposition that absent a rational explanation for
behavior, it may be inferred that the explanation is that the
person lacked capacity to appreciate the wrongfulness of his
conduct or conform it to the law.39 However, it cites to no
38
State v. Kucharski, No. 2013AP557-CR, unpublished slip
op. ¶40 (Wis. Ct. App. May 6, 2014).
39
Murdock, 238 Wis. 2d 301, ¶44, made its statement in the
context of setting forth the facts in that case:
The evidence presented at trial presents no
explanation for why Murdock would stab Grams
approximately twenty times in order to steal his car,
but then park the car in front of the Smiths' house,
drag Grams out of the back of the car and leave him in
the Smiths' front yard. Although Murdock demanded
money from the Smiths, tried to prevent Shirley Smith
from calling the police, and fled to the basement when
the police came in the house after him, viewed as a
whole, his behavior does not appear as purposeful as
the State contends. After demanding money from the
Smiths, Murdock "went berserk stabbing" them. When the
first police officer arrived, Murdock was sitting on
the Smiths' front steps near Grams's dead
body. Murdock did not try to flee, but instead stood
up and sat back down on the steps, and went in and out
of the house several times. He even opened the door to
the Smiths' house so that the police could come
inside.
(emphasis added).
20
No. 2013AP557-CR
authority for the proposition that a rational explanation must
be offered for a criminal act. Indeed, that approach would
appear to shift the burden of proof on an NGI plea to the State.
As the circuit court noted,
I think both Dr. Pankiewicz and Dr. Rawski opined that
they could not find evidence of a rational,
alternative motive for the Defendant's behavior. I
don't disagree with that. I think shooting your
parents to death with a gun, is conduct that we might
not find quote unquote rational.
¶34 The fourth point was that the court of appeals
"conclude[d] that evidence that Kucharski appeared to understand
the legality of his actions and did not commit suicide as the
voices directed does not mean that he was generally able to
control his behavior or appreciate its wrongfulness at the time
of the shooting."40 This is the crux of the court of appeals'
reasoning, and it is a bare reweighing of what the evidence
means, which is not permitted by a reviewing court.
¶35 Kucharski argues that "[t]he very nature of a test for
a miscarriage of justice necessitates substitution of the
appellate court's judgment for that of the factfinder." That is
not correct.
¶36 To agree would allow any sufficiency of the evidence
claim to be converted to an interest of justice claim, thereby
evading the stringent standard for reviewing findings by the
trier of fact. That is contrary to the law. It would also be
an inappropriate use of the power to grant discretionary
40
State v. Kucharski, No. 2013AP557-CR, unpublished slip
op. ¶41 (Wis. Ct. App. May 6, 2014).
21
No. 2013AP557-CR
reversals. Put a different way, a reversal in the interest of
justice is not intended to put the reviewing court in the shoes
of the trier of fact in a way that is otherwise not permitted.
It is not permitted to review factual findings without employing
the correct standard of review.41 The reviewing court in such a
case may go only so far as to say that it is "probable" that
justice has miscarried and that it concludes that "the question
of defendant's guilt should be passed upon by another jury
. . . . "42
41
The approach Kucharski argues for, that an appellate
court should have "unfettered discretion to review the record
without deference to the factfinder's conclusions," is in
conflict with the proper standard of review; it would turn
appellate courts into simple do-overs. However, it is
inaccurate to say that appellate courts are precluded by that
standard of review from evaluating the evidence. It is, in
fact, the kind of evaluating of evidence that appellate courts
routinely do when they are reviewing questions of fact.
Contrary to the dissent's assertions, we apply settled law on
questions of fact and appellate standards of review here and
make no new law.
42
Hintz, 200 Wis. 636, 637. The court of appeals
imprecisely characterized the conclusion of this court in regard
to the Kemp case when it stated, "The supreme court reversed
Kemp's conviction, concluding that he lacked the capacity to
appreciate the wrongfulness of his conduct or conform his
conduct to the requirements of the law." State v. Kucharski,
2014 WI App 71, ¶42, 354 Wis. 2d 622, 848 N.W.2d 903 (emphasis
added). That is not correct. In Kemp v. State, 61 Wis. 2d 125,
137, 211 N.W.2d 793 (1973), this court stopped short of making
that factual finding and merely remanded for a finding on that
question to be made by a second trier of fact. Kemp, 61 Wis. 2d
at 137 ("We believe the weight of the testimony is such that
justice has probably miscarried and that it is probable a new
trial will result in a contrary finding.")
22
No. 2013AP557-CR
¶37 The court of appeals considered the facts of this case
comparable to those of Kemp v. State,43 in which the defendant, a
Vietnam veteran who had been treated extensively for war-related
mental health problems, was granted a new trial after being
convicted of shooting and killing his wife. The court of
appeals said that "Kemp supports our decision to reverse
. . . . " We disagree. In that case, there was evidence of
pervasive and debilitating mental illness that had resulted in
inpatient and outpatient treatment of the defendant over a
period of years prior to the shooting.44 There was testimony
from neighbors about the absence of any indication that Kemp
would have intentionally killed her.45 The court of appeals also
noted that in this case, unlike in Kemp, there were no experts
who concluded Kucharski was mentally responsible for the
killings; therefore, it concluded that reversal in this case was
even more justified than in Kemp, where the experts consulted
had come to varying conclusions.
¶38 Where a defendant seeks to mitigate punishment for a
crime on the basis of mental disease or defect, it is highly
relevant to consider the kind of external corroborating evidence
that existed prior to the charged offense. In Kemp this court
recognized this when it noted, "The record clearly reveals that
this is not a case where the question of the defendant's mental
43
Kemp, 61 Wis. 2d at 137.
44
Id. at 134.
45
Id.
23
No. 2013AP557-CR
condition was asserted for the first time after the act or the
commencement of a criminal prosecution under circumstances that
might suggest the defense is a self-serving afterthought to
avoid legal responsibility."46
¶39 Kucharski's, in contrast, is exactly that type of
case. The expert reports dismissed concerns that Kucharski was
malingering, but, contrary to the court of appeals' implication,
those opinions are not dispositive. The trier of fact was not
bound to accept those conclusions in light of evidence such as
Kucharski's extraordinarily careful statements to law
enforcement, from which contrary inferences could be drawn.
¶40 It is clear from Kemp that the court placed great
weight on the evidence of the prior corroborated mental health
problems. This single distinguishing fact is enough to make it
unreasonable to view Kemp as supportive of a reversal on these
facts.
¶41 Kemp is instructive in that it also illustrates the
principle that other claims of error must be addressed before
moving to a consideration of whether a case is so exceptional it
warrants reversal in the interest of justice.47 Before beginning
its analysis of the interest of justice claim, the court
addressed one claimed evidentiary error and then noted, "The
defendant has asserted other procedural errors. We have reviewed
46
Id. at 137.
47
Where there is no identified error in the circuit court,
a defendant will have a more difficult time showing reversal is
warranted in the interest of justice.
24
No. 2013AP557-CR
them and find no error."48 As noted above, reversals under Wis.
Stat. § 752.35 are rare and reserved for exceptional cases.49
¶42 In Avery, this court further noted that a
determination that a case was the exceptional case that
warranted such a reversal must be supported by an analysis
setting forth the reasons for the determination.50
¶43 We have similarly held that taking "shortcuts" where a
particular analysis is prescribed will be deemed error: "This
court has held that it is an erroneous exercise of discretion
for the court of appeals . . . to shortcut [established]
procedures . . . when there is no apparent reason for doing
so."51 In an exceptional case, after all other claims are
weighed and determined to be unsuccessful, a reviewing court may
determine that reversal is nevertheless appropriate under Wis.
Stat. § 752.35.
B. THE FACT-FINDING OF THE TRIER OF FACT THAT KUCHARSKI DID
NOT MEET HIS BURDEN IS NOT CLEARLY ERRONEOUS
¶44 A reviewing court upholds the findings of fact by a
trier of fact unless they are clearly erroneous. The
determination of whether a party has met his or her burden is a
48
Kemp, 61 Wis. 2d at 136.
49
Armstrong, 283 Wis. 2d 639, ¶114; Avery, 345 Wis. 2d
407, ¶38; Morden, 235 Wis. 2d 325, ¶87.
50
Avery, 345 Wis. 2d 407, ¶59 (holding that "the court of
appeals erroneously exercised its discretion when it failed to
properly analyze whether this was an exceptional case that
entitled Avery to a new trial in the interest of justice.")
51
Id.
25
No. 2013AP557-CR
matter of fact, not law.52 Therefore, unless it is clearly
erroneous, the court of appeals is obligated to uphold the
finding that Kucharski did not meet his burden of showing by the
greater weight of the credible evidence that he was not mentally
responsible for the crimes.
¶45 We agree with the court of appeals' dissent in this
case:
The trial court gave reasoned explanations for its
findings on the second prong of mental responsibility.
It found that Kucharski was able to appreciate the
wrongfulness of his conduct, quoting the experts that
Kucharski thought killing his parents was the right
thing to do and quoting Dr. Rawski as saying Kucharski
knew right after the shooting that he needed a lawyer.
And the trial court found that Kucharski failed to
meet his burden of showing that he lacked the
substantial capacity to conform his conduct to the
rules of law because he obeyed part of what the voices
commanded and chose not to obey other parts . . . .
The trial court drew proper inferences from the
evidence and found those inferences more reliable than
the doctors' opinions as to the second prong of mental
responsibility. The trial court explained that it
distrusted the self-report basis for the doctors'
opinions. . . .
In questioning the basis for the experts' opinion, the
trial court was engaging in the same evidence weighing
process that the Wisconsin Supreme Court approved in
Sarinske.53
IV. CONCLUSION
¶46 Applying the proper standard of review and not
disturbing the factual findings of the circuit court concerning
52
Sarinske, 91 Wis. 2d at 48.
53
State v. Kucharski, No. 2013AP557-CR, unpublished slip
op. ¶¶47-49 (Wis. Ct. App. May 6, 2014).
26
No. 2013AP557-CR
the burden of proof because they are not clearly erroneous, we
conclude that the court of appeals erroneously exercised its
discretion. In this case the only reason offered by the court
of appeals for the new trial in the interest of justice was that
court's improper de novo weighing of the evidence concerning the
burden of proof on the NGI plea of the defendant. When the
evidence is reviewed under the proper standard, there is not a
probability of a different result on retrial such that a new
trial in the interest of justice is warranted.
¶47 We therefore reverse the grant of a new trial under
Wis. Stat. § 752.35 and remand to the court of appeals for the
resolution of Kucharski's remaining unaddressed claims.
By the Court.—Reversed and remanded.
27
¶48 ANN WALSH BRADLEY, J. (dissenting). I agree with the
majority that a reviewing court's discretionary power of
reversal should be sparingly exercised. Majority op., ¶¶5, 42.
I part ways with the majority's analysis, however, because it
formulates a new rule that arbitrarily limits our powers. The
majority declares that a reviewing court cannot base a decision
to reverse in the interest of justice on a reassessment of the
evidence. Id., ¶¶10, 26.
¶49 Its decision to limit a reviewing court's
discretionary powers in this manner is extraordinary. It
conflicts with the expressed purpose of the discretionary
reversal statute and contradicts decades of precedent. Because
this court's discretionary powers of reversal are coterminous
with the powers of the court of appeals, the majority inexorably
limits the discretionary powers of both.
¶50 The exercise of discretion is a core judicial
function. The court of appeals' decision to reverse in the
interest of justice is an exercise of discretion entitled to a
deferential standard of review. Even if we may disagree with
the result, this court "will uphold the discretion of a court
[it is] reviewing if the decision made on appropriate facts and
the correct law is one which a court reasonably could have
reached." McConnohie, 113 Wis. 2d 362, 370, 334 N.W.2d 903
(1983).
¶51 I conclude that the court of appeals decision to
reverse in the interest of justice should be upheld. Because
the court of appeals' discretionary decision was based on
1
No. 2013AP557-CR.awb
appropriate facts and the correct law, and was a decision that a
court could reasonably reach, I respectfully dissent.
I
¶52 The majority errs by creating a new rule that limits
the discretion of reviewing courts: a reviewing court's decision
to reverse in the interest of justice cannot be based on a
reassessment of the evidence. See Majority op., ¶34. This
arbitrary limit on a reviewing court's discretion conflicts with
the expressed purpose of the discretionary reversal statute.
¶53 For over a century, appellate courts in Wisconsin have
had the power to reverse judgments in the interest of justice.
Since its initial codification in 1913, this power has been
broadly stated:
In any action or proceeding brought to the supreme
court by appeal or writ of error, if it shall appear
to that court from the record, that the real
controversy has not been fully tried, or that it is
probable that justice has for any reason miscarried,
the supreme court may in its discretion reverse the
judgment or order appealed from, regardless of the
question whether proper motions, objections, or
exceptions appear in the record or not, and may also,
in the case of reversal, direct the entry of the
proper judgment or remit the case to the trial court
for a new trial, and direct the making of such
amendments in the pleadings and the adoption of such
procedure . . . as shall be deemed necessary to
accomplish the ends of justice.
Wis. Stat. § 2405m (1913). The statute's enactment was part of
a movement to simplify the law so that technicalities would not
be permitted to thwart justice. See Marvin B. Rosenberry, J.,
Recent Progress in Judicial Administration and Procedure in
Wisconsin, 5 Marq. L. Rev. 3, 4-5, 9 (1920).
2
No. 2013AP557-CR.awb
¶54 The statute has subsequently gone through slight
revisions and has been renumbered as Wis. Stat. § 751.06. The
substance, however, is substantially the same:
In an appeal in the supreme court, if it appears from
the record that the real controversy has not been
fully tried, or that it is probable that justice has
for any reason miscarried, the court may reverse the
judgment or order appealed from, regardless of whether
the proper motion or objection appears in the record,
and may direct the entry of the proper judgment or
remit the case to the trial court for the entry of the
proper judgment or for a new trial, and direct the
making of such amendments in the pleadings and the
adoption of such procedure in that court, not
inconsistent with statutes or rules, as are necessary
to accomplish the ends of justice.
Wis. Stat. § 751.06.
¶55 When the court of appeals was created in 1978, the
legislature enacted a nearly identical statute, Wis. Stat.
§ 752.35, granting the same power of discretionary reversal to
the court of appeals.1 State v. Schumacher, 144 Wis. 2d 388,
399-400, 424 N.W.2d 672 (1988). Because Wis. Stat. § 751.06 and
1
Wisconsin Stat. § 752.35 provides:
Discretionary reversal. In an appeal to the court
of appeals, if it appears from the record that the
real controversy has not been fully tried, or that it
is probable that justice has for any reason
miscarried, the court may reverse the judgment or
order appealed from, regardless of whether the proper
motion or objection appears in the record and may
direct the entry of the proper judgment or remit the
case to the trial court for entry of the proper
judgment or for a new trial, and direct the making of
such amendments in the pleadings and the adoption of
such procedure in that court, not inconsistent with
statutes or rules, as are necessary to accomplish the
ends of justice.
3
No. 2013AP557-CR.awb
Wis. Stat. § 752.35 share the same language, this court has
determined that "the power of reversal under these statutes is
identical." Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797
(1990); see also State v. Avery, 2013 WI 13, ¶38 n.17, 345 Wis.
2d 407, 826 N.W.2d 60 ("The discretionary reversal power of this
court and the court of appeals is coterminous.").
¶56 The language used in Wis. Stat. §§ 752.35 and 751.06
indicates that the legislature intended the discretionary
reversal power of reviewing courts to cover a broad range of
situations. For example, they both permit reversal when "it is
probable that justice has for any reason miscarried." Wis.
Stat. §§ 751.06, 752.35 (emphasis added). Further, under the
statutes, neither court's ability to reverse in the interest of
justice is limited to proper motions or objections appearing in
the record. Id. "[The statutes'] very breadth, as a matter of
statutory interpretation, indicates that they are meant to
provide courts with the opportunity to exercise their discretion
without constraint." Monica Mark, A Fearless Search for the
Truth No Longer: State v. Henley and Its Destructive Impact on
New Trials in the Interest of Justice, 2012 Wis. L. Rev. 1367,
1386.
¶57 This court has explained that "[t]his broad
discretion enables [the court of appeals] to achieve justice in
individual cases." Vollmer, 156 Wis. 2d at 21; see also State
v. Mathis, 39 Wis. 2d 453, 458, 159 N.W.2d 729 (1968) ("The
statute is intended as an emergency exit for the probably
innocent."). Considering that "[t]he function of the judiciary
4
No. 2013AP557-CR.awb
is the administration of justice," In re Kading, 70 Wis. 2d 508,
518, 235 N.W.2d 409 (1975), the breadth of the discretionary
reversal statute is appropriate.
¶58 By determining that appellate discretion does not
extend to a reassessment of the evidence, the majority
erroneously constricts the discretionary power of reviewing
courts. It removes a swath of cases from review, opening the
door for the potential of an unaddressed and unreviewable
miscarriage of justice. The majority's determination to limit
reviewing courts' discretion runs counter to the broad language
of the statute and its expressed purpose "to accomplish the ends
of justice." Wis. Stat. § 752.35.
¶59 The majority opinion is further flawed because it
contradicts decades of Wisconsin precedent permitting reviewing
courts to reverse in the interest of justice when the evidence
raises great doubts about whether the state has met its burden,
suggesting that justice has miscarried. See State v. Fricke,
215 Wis. 661, 667, 255 N.W. 724 (1934) ("Occasionally when such
grave doubts exist in our minds regarding guilt of a defendant
as to make us conscientiously believe that justice probably has
miscarried, we exercise the authority specifically given to us
by section 251.09 [subsequently renumbered as Wis. Stat.
§ 751.06], and reverse the judgment for a new trial.").
¶60 This court has oft recognized that reviewing courts
may reassess the evidence when considering whether justice has
miscarried. For example, in Hintz, 200 Wis. 636, 229 N.W.2d 54
(1930) the court's decision to reverse in the interest of
5
No. 2013AP557-CR.awb
justice was based on an assessment of the evidence. In that
case, the court reviewed a conviction for obtaining money under
false pretense. It observed that an essential element of the
charge was the intent to defraud. The court recited the
evidence relating to intent, which strongly favored the
defendant, and acknowledged that weighing this sort of evidence
is typically a jury function. Id. at 641. However, the court's
analysis did not stop there. After stating that the "evidence
leaves the question of defendant's intent to defraud in the
greatest of doubt," the court concluded that "[w]hile it is the
function of the jury to resolve this doubt, it seems probable to
us that justice has miscarried by the verdict rendered. Under
such circumstances it is within our power to order a new trial."
Id. at 642. Accordingly, the court reversed the conviction and
remanded the cause for a new trial. Id.
¶61 Similarly, in Hughes v. State, 219 Wis. 9, 261 N.W.
670 (1935), the court's determination that justice had been
miscarried was based on its review of the evidence. There,
although the court observed that sufficient evidence had been
presented to raise a jury question, it expressed doubts
regarding the witness's version of events: "the story of the
complaining witness is inherently improbable." Id. at 11-12.
It further described the story presented as "doubtful" and
indicated that the circumstances added to its "misgivings." Id.
Due to its uneasiness with the evidence presented, the court
ordered a new trial in the interest of justice:
While none of the evidence heretofore reviewed
destroys as a matter of law the credibility of the
6
No. 2013AP557-CR.awb
state's witness, we are satisfied that there are so
many circumstances casting doubt upon the story of
complaining witnesses, and that the evidence so
strongly preponderates against her story, that there
is good ground to conclude that justice has probably
miscarried. In view of this conclusion, we deem it
proper, in the exercise of authority conferred by sec.
251.09 Stats. [subsequently renumbered as Wis. Stat.
§ 751.06], to order a new trial.
Id. at 13.
¶62 The cases described above are but a sample of the many
decisions granting reversal in the interest of justice based
solely on a reassessment of the evidence. See, e.g., Kemp v.
State, 61 Wis. 2d 125, 137, 211 N.W.2d 793 (1973) (granting new
trial in the interest of justice because evidence as a whole
predominated on Kemp's side); Combs v. Peters, 23 Wis. 2d 629,
129 N.W.2d 174 (1964) (given the evidence of record tending to
show that the defendant was the offending driver, court
determined that the jury finding to the contrary was probably a
miscarriage of justice, reversed the judgment, and remanded for
a new trial); Schuh v. State, 221 Wis. 180, 183, 266 N.W. 234
(1936) (reversing in the interest of justice where the
circumstances under which the alleged act took place were
"inherently improbable"); Jacobson v. State, 205 Wis. 304, 309-
10, 237 N.W. 142 (1931) (determining that "it is probable that
justice has been miscarried" when the evidence in a bastardy
case "indicate[d] very strongly" that the defendant was not the
child's father); Paladino v. State, 187 Wis. 605, 606, 205 N.W.
320 (1925) (determining that despite the lack of errors, the
case against defendant was very "doubtful" and defendant should
have the opportunity to present the case to another jury); State
7
No. 2013AP557-CR.awb
v. Murdock, 2000 WI App 170, ¶¶40, 45, 238 Wis. 2d 301, 617
N.W.2d 175 (ordering new trial in the interest of justice
because, considering the evidence presented at trial, there was
a substantial probability that a new trial would produce a
different result).
¶63 Although the majority does acknowledge Kemp and
attempts to distinguish it on the facts, it misses that Kemp did
the very thing that the majority now states is prohibited: it
reversed in the interest of justice based on a reassessment of
the evidence. The failure to address this aspect of Kemp, as
well as numerous other cases taking the approach that it now
disavows, greatly undermines the majority opinion.
II
¶64 In contrast to the majority, I conclude that the court
of appeals' decision to reverse in the interest of justice
should be upheld. Its decision to reverse in the interest of
justice is an exercise of discretion entitled to a deferential
standard of review. This court "will uphold the discretion of a
court [it is] reviewing if the decision made on appropriate
facts and the correct law is one which a court reasonably could
have reached." McConnohie, 113 Wis. 2d at 370. Here, the court
of appeals' discretionary decision was based on appropriate
facts and the correct law, and was a decision that a court could
reasonably reach.
¶65 The court of appeals' decision accurately recited the
following facts of this case. State v. Kucharski, No.
2013AP557-CR, unpublished slip op. (Wis. Ct. App. May 6, 2014).
8
No. 2013AP557-CR.awb
Kucharski, charged with two counts of first degree intentional
homicide, pled not guilty by reason of mental defect. Id., ¶3.
He asserted that he began having hallucinations and hearing
voices in 2005. Id., ¶6. Shortly thereafter, he moved in with
his parents and became very isolated. Id., ¶¶6-7. The voices
continued, making derogatory remarks and commanding Kucharski to
do things. Id., ¶8. In 2009, he began keeping a journal to
help him sort out what the voices meant. Id., ¶11. By 2010,
this journal consisted of 40-50 pages of notes and diagrams.
Id.
¶66 On the day he killed his parents, the voices told
Kucharski to "simply end it." Id., ¶12. He intended to follow
their directives by killing his parents and then killing himself
in a shoot-out with the police. Id., ¶13. However, by the time
the police arrived, he forgot to have the shootout. Id., ¶14.
¶67 Kucharski presented the reports of two psychiatrists
to support his defense. Both opined that he was suffering from
schizophrenia at the time he killed his parents. Id., ¶15. One
determined that Kucharski lacked substantial capacity to
appreciate the wrongfulness of his actions. Id. Similarly, the
other determined that he lacked the capacity to appreciate the
wrongfulness of his actions and to conform his behavior to the
requirements of the law. Id.
¶68 The psychiatrists based their opinions on interviews
with Kucharski, his actions on the day of the incident,
recordings of his 911 call shortly after the incident, his
responses on the SIRS-II test (which is used to detect feigning
9
No. 2013AP557-CR.awb
or exaggeration of mental illness), his journal, clinical
observations by a psychologist, and information from police
reports. Id., ¶¶17-25. Kucharski also presented the report of
a psychologist, who indicated that he would not have a different
conclusion regarding Kucharski's mental responsibility. Id.,
¶15.
¶69 After reciting the above facts, the court of appeals
correctly described the governing law for this case, Wis. Stat.
§ 752.35, which permits the court of appeals to reverse in the
interest of justice when "it is probable that justice has for
any reason miscarried." Id., ¶32. It acknowledged that it may
conclude that justice has miscarried if there is a substantial
probability of a different result on retrial. Id., ¶33. It
also acknowledged that it may exercise its discretion only in
exceptional cases. Id.
¶70 Reasonably applying this law to the facts of the case,
the court of appeals determined that the evidence "'predominates
quite heavily on the side of the defendant on the issue of his
mental responsibility,' and that, consequently, 'justice has
miscarried and . . . a new trial will probably bring a different
result.'" Id., ¶44 (quoting Kemp, 61 Wis. 2d at 138). It
observed that Kucharski was suffering from schizophrenia when he
killed his parents; the expert evidence supporting his defense
was uncontroverted; and there was a complete lack of evidence of
alternative explanations for Kucharski's behavior. Id., ¶¶36-
41.
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¶71 The court of appeals' analysis is consistent with a
long line of cases permitting courts to reverse in the interest
of justice based on a reassessment of the evidence. See supra,
¶¶12-15. This court should be hesitant to cabin that
discretion.
¶72 Rather than creating a new rule of law that limits the
discretionary powers of reviewing courts, I would apply well
established existing precedent and give deference to the court
of appeals discretionary decision. Because the court of
appeals' exercise of its discretion was based on appropriate
facts and the correct law, and was a decision that a reasonable
court could make, it was not erroneously exercised and should be
upheld. Accordingly, I respectfully dissent.
¶73 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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No. 2013AP557-CR.awb
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