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REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 393 Wis. 2d 595,947 N.W.2d 648 (2020 – unpublished)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unpublished decision of the court of appeals, State v. Chambers,
No. 2019AP411-CR, unpublished slip op.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
By the Court.—The decision of the court of appeals is
affirmed.
17 No. 2019AP411-CR