lesser included offense instruction in Wisconsin

1993"Submission of a lesser included offense instruction is proper only when there are reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense." Sarabia, 118 Wis. 2d at 661 , 348 N.W.2d at 531 (emphasis in original).

1993"Submission of a lesser included offense instruction is proper only when there are reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense." Sarabia, 118 Wis. 2d at 661 , 348 N.W.2d at 531 (emphasis in original).

2025“The submission of a lesser-included offense instruction is proper only when there are reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense.” State v. Wilson, 149 Wis. 2d 878, 898 , 440 N.W.2d 534 (1989). 6 No. 2023AP1738-CR ¶15 Additionally, the State also had to prove that Medina did not act lawfully in self-defense.

2025“The submission of a lesser-included offense instruction is proper only when there are reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense.” State v. Wilson, 149 Wis. 2d 878, 898 , 440 N.W.2d 534 (1989). 6 No. 2023AP1738-CR ¶15 Additionally, the State also had to prove that Medina did not act lawfully in self-defense.

2022See Miller, 320 Wis. 2d 724, ¶46 ; State v. Van Straten, 140 Wis. 2d 306, 320 , 409 N.W.2d 448 (Ct. App. 1987) (rejecting defendant’s claim that counsel was ineffective for 7 No. 2021AP309-CR failing to consult with him on a lesser-included offense instruction and failing to request such an instruction because the evidence did not support the instruction). ¶16 Because “utter disregard for human life” is the only element that is different between first- and second-degree reckless injury, we must weigh the facts of this case and determine whether Ramczyk acted with an utter disregard for human l

2022See Miller, 320 Wis. 2d 724, ¶46 ; State v. Van Straten, 140 Wis. 2d 306, 320 , 409 N.W.2d 448 (Ct. App. 1987) (rejecting defendant’s claim that counsel was ineffective for 7 No. 2021AP309-CR failing to consult with him on a lesser-included offense instruction and failing to request such an instruction because the evidence did not support the instruction). ¶16 Because “utter disregard for human life” is the only element that is different between first- and second-degree reckless injury, we must weigh the facts of this case and determine whether Ramczyk acted with an utter disregard for human l

1991LESSER-INCLUDED OFFENSE The defendant argues by analogy that since the court in Hawthorne v. State, 99 Wis. 2d 673, 682 , 299 N.W.2d 866, 870 (1981) 4 found that the old Endangering Safety by Conduct Regardless of Life statute was a lesser-included offense of the old Attempted First-Degree Murder statute, the revised Recklessly Endangering Safety statute, sec. 941.30, Stats., is a lesser-included offense of the revised First-Degree Intentional Homicide statute, sec. 940.01, Stats.

1991LESSER-INCLUDED OFFENSE The defendant argues by analogy that since the court in Hawthorne v. State, 99 Wis. 2d 673, 682 , 299 N.W.2d 866, 870 (1981) 4 found that the old Endangering Safety by Conduct Regardless of Life statute was a lesser-included offense of the old Attempted First-Degree Murder statute, the revised Recklessly Endangering Safety statute, sec. 941.30, Stats., is a lesser-included offense of the revised First-Degree Intentional Homicide statute, sec. 940.01, Stats.

2021“The submission of a lesser-included offense instruction is proper only when there exists reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense.” Borrell, 167 Wis. 2d at 779 . “[T]he lesser-included offense should be submitted only if there is a reasonable doubt as to some particular element included in the higher degree of crime.” Foster, 191 Wis. 2d at 23 (citation omitted). ¶22 The crime of first-degree reckless homicide is committed by one who “recklessly causes the death of another human being under circumstances which show utter

2020This is powerful lesser included testimony that the defense counsel … should have made a note of, because he requests a lesser included jury instruction[.] ¶22 “The submission of a lesser-included offense instruction is proper only when there exists reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense.” State v. Borrell, 167 Wis. 2d 749, 779 , 482 N.W.2d 883 (1992).

1987The standard to be applied in a determination of whether an instruction should be given to a jury has been consistently stated to require submission of a lesser-included offense instruction only where "'under a different, but reasonable view,’ the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower —” State v. Bergenthal, 47 Wis. 2d 668, 675 , 178 N.W.2d 16 (1970) (quoting Zenou v. State, 4 Wis. 2d 655, 688, 91 N.W.2d 208 (1958)), cert. denied 402 U.S. 972 (1971).

1987The standard to be applied in a determination of whether an instruction should be given to a jury has been consistently stated to require submission of a lesser-included offense instruction only where "'under a different, but reasonable view,’ the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower —” State v. Bergenthal, 47 Wis. 2d 668, 675 , 178 N.W.2d 16 (1970) (quoting Zenou v. State, 4 Wis. 2d 655, 688, 91 N.W.2d 208 (1958)), cert. denied 402 U.S. 972 (1971).

2022Id. at 510 . ¶29 In this case, trial counsel discussed requesting a lesser-included offense instruction with Johnson at the close of the State’s evidence, and even prior to trial, trial counsel discussed an all-or-nothing approach with Johnson and developed a self-defense theory of the case.

2022We will not second-guess trial counsel’s strategy, given his assessment of the evidence at trial and his discussions with Johnson. “[T]he decision of whether to request a lesser-included offense instruction is a complicated one involving legal expertise and trial strategy.” See Eckert, 203 Wis. 2d at 509 .

2022See Miller, 320 Wis. 2d 724, ¶46 ; State v. Van Straten, 140 Wis. 2d 306, 320 , 409 N.W.2d 448 (Ct. App. 1987) (rejecting defendant’s claim that counsel was ineffective for 7 No. 2021AP309-CR failing to consult with him on a lesser-included offense instruction and failing to request such an instruction because the evidence did not support the instruction). ¶16 Because “utter disregard for human life” is the only element that is different between first- and second-degree reckless injury, we must weigh the facts of this case and determine whether Ramczyk acted with an utter disregard for human l

2022See Allen, 274 Wis. 2d 568, ¶9 . 6 The phrase ‘utter disregard for human life’ has the same meaning as ‘depraved mind, regardless of life,’ the former language used in the Wisconsin code until 1987 to denote the aggravating element in crimes of recklessness.” State v. Miller, 2009 WI App 111, ¶32 , 320 Wis. 2d 724 , 772 N.W.2d 188 . 11 No. 2021AP309-CR CONCLUSION ¶23 We conclude that under the facts of this case that Ramczyk was not entitled to a lesser-included offense instruction for second-degree reckless injury, and therefore, trial counsel was not ineffective.

2004See also State v. Nicholson, 148 Wis. 2d 353, 369 , 435 N.W.2d 298 (Ct. App. 1988) (noting that the circuit court erred in failing to submit a lesser-included offense instruction, but ruling that this claim could not be brought under § 974.06).

2004See also State v. Nicholson, 148 Wis. 2d 353, 369 , 435 N.W.2d 298 (Ct. App. 1988) (noting that the circuit court erred in failing to submit a lesser-included offense instruction, but ruling that this claim could not be brought under § 974.06).

1995State v. Chapman, 175 Wis. 2d 231, 241 , 499 N.W.2d 222, 226 (Ct. App. 1993).

1995State v. Chapman, 175 Wis. 2d 231, 241 , 499 N.W.2d 222, 226 (Ct. App. 1993).

2021“In determining the propriety of a defendant’s request for a lesser-included offense instruction, the evidence must be viewed in the light most favorable to the defendant and the requested instruction.” State v. Foster, 191 Wis. 2d 14, 23 , 528 N.W.2d 22 (Ct. App. 1995).

2021“In determining the propriety of a defendant’s request for a lesser-included offense instruction, the evidence must be viewed in the light most favorable to the defendant and the requested instruction.” State v. Foster, 191 Wis. 2d 14, 23 , 528 N.W.2d 22 (Ct. App. 1995).

2020See State v. Davis, 144 Wis. 2d 852, 857 , 425 N.W.2d 411 (1988) (holding that when conducting a lesser-included offense analysis, “seriousness of an offense” is determined based upon the maximum penalty that may be imposed).

2020See State v. Davis, 144 Wis. 2d 852, 857 , 425 N.W.2d 411 (1988) (holding that when conducting a lesser-included offense analysis, “seriousness of an offense” is determined based upon the maximum penalty that may be imposed).

1989A jury may be given a lesser-included-offense instruction "only when there are reasonable grounds in the evidence both for the acquittal on the greater charge and conviction on the lesser offense." Id. at 792 , 440 N.W.2d at 327 (emphasis in original).

1989A jury may be given a lesser-included-offense instruction "only when there are reasonable grounds in the evidence both for the acquittal on the greater charge and conviction on the lesser offense." Id. at 792 , 440 N.W.2d at 327 (emphasis in original).

2025See id. (“[D]efense counsel’s failure to request a lesser-included offense instruction was reasonable despite counsel’s subjective averment that he overlooked the availability of such a defense.” (citing United States v. Smith, 10 F.3d 724, 728 (10th Cir. 1993))).

2001Id. at 728-29 .

1987The standard to be applied in a determination of whether an instruction should be given to a jury has been consistently stated to require submission of a lesser-included offense instruction only where "'under a different, but reasonable view,’ the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower —” State v. Bergenthal, 47 Wis. 2d 668, 675 , 178 N.W.2d 16 (1970) (quoting Zenou v. State, 4 Wis. 2d 655, 688, 91 N.W.2d 208 (1958)), cert. denied 402 U.S. 972 (1971).

1987The standard to be applied in a determination of whether an instruction should be given to a jury has been consistently stated to require submission of a lesser-included offense instruction only where "'under a different, but reasonable view,’ the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower —” State v. Bergenthal, 47 Wis. 2d 668, 675 , 178 N.W.2d 16 (1970) (quoting Zenou v. State, 4 Wis. 2d 655, 688, 91 N.W.2d 208 (1958)), cert. denied 402 U.S. 972 (1971).

1987See State v. Mendoza, 80 Wis. 2d 122, 150-51 , 258 N.W.2d 260, 272 .

1987See State v. Mendoza, 80 Wis. 2d 122, 150-51 , 258 N.W.2d 260, 272 .

1985“Submission of a lesser included offense instruction is proper only when there are reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense.” State v. Sarabia, 118 Wis. 2d 655, 661 , 348 N.W.2d 527, 531 (1984); see also Jordan v. State, 93 Wis. 2d 449, 468 , 287 N.W.2d 509 (1980).

1985“Submission of a lesser included offense instruction is proper only when there are reasonable grounds in the evidence both for acquittal on the greater charge and conviction on the lesser offense.” State v. Sarabia, 118 Wis. 2d 655, 661 , 348 N.W.2d 527, 531 (1984); see also Jordan v. State, 93 Wis. 2d 449, 468 , 287 N.W.2d 509 (1980).

2025See id. (“[D]efense counsel’s failure to request a lesser-included offense instruction was reasonable despite counsel’s subjective averment that he overlooked the availability of such a defense.” (citing United States v. Smith, 10 F.3d 724, 728 (10th Cir. 1993))).

2022See State v. Smith, 170 Wis. 2d 701, 715 , 490 N.W.2d 40 (Ct. App. 1992).

2022See State v. Smith, 170 Wis. 2d 701, 715 , 490 N.W.2d 40 (Ct. App. 1992).

2022See Allen, 274 Wis. 2d 568, ¶9 . 6 The phrase ‘utter disregard for human life’ has the same meaning as ‘depraved mind, regardless of life,’ the former language used in the Wisconsin code until 1987 to denote the aggravating element in crimes of recklessness.” State v. Miller, 2009 WI App 111, ¶32 , 320 Wis. 2d 724 , 772 N.W.2d 188 . 11 No. 2021AP309-CR CONCLUSION ¶23 We conclude that under the facts of this case that Ramczyk was not entitled to a lesser-included offense instruction for second-degree reckless injury, and therefore, trial counsel was not ineffective.

2022See State v. Lemberger, 2017 WI 39, ¶18 , 374 Wis. 2d 617 , 893 N.W.2d 232 (“[F]ailure to raise arguments that require the resolution of unsettled legal questions generally does not render a lawyer’s 6 No. 2021AP339-CR services ‘outside the wide range of professionally competent assistance’ sufficient to satisfy the Sixth Amendment.” (quoted source omitted)).

2022See State v. Lemberger, 2017 WI 39, ¶18 , 374 Wis. 2d 617 , 893 N.W.2d 232 (“[F]ailure to raise arguments that require the resolution of unsettled legal questions generally does not render a lawyer’s 6 No. 2021AP339-CR services ‘outside the wide range of professionally competent assistance’ sufficient to satisfy the Sixth Amendment.” (quoted source omitted)).